Regina v Smith

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Ainger v Coffs Harbour City Council [2005] NSWCA 424 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Dinsdale v R (2000) 202 CLR 321 Johnson v R [2004] HCA 15; 78 ALJR 616 CASES CITED: Markarian v R [2005] HCA 25; 79 ALJR 1048 Pearce v R (1998) 194 CLR 610 R v Allpass (1993) 72 A Crim R 561 R v Holyoak (1995) 82 A Crim R 502 R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Regina (Appellant) Michael Robert Smith (Respondent)

COUNSEL: J Girdham (Appellant) CB Craigie SC (Respondent)

SOLICITORS: S Kavanagh (Appellant) SE O'Connor (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2006/1575 CCAP

HIDDEN J BELL J JOHNSON J

Friday 10 November 2006 REGINA v Michael Robert SMITH Judgment 1 HIDDEN J: I agree with the orders proposed by Bell J and with her Honour's reasons. 2 BELL J: This is an appeal brought by the Director of Public Prosecutions against the claimed inadequacy of sentences imposed on the respondent in the District Court at Armidale on 22 June 2006. 3 The respondent pleaded guilty to an indictment containing six counts charging him with sexual offences under the Crimes Act 1900 committed against the complainant, AM. He asked the Judge to take into account a further three offences committed against AM on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, when sentencing him for the offence charged in count 2. He was sentenced on count 2 to a non-parole period of three years and three months to date from 20 June 2006 with a balance of sentence of two years and nine months. The sentences imposed in relation to the five other offences were directed to be served concurrently with this sentence and were wholly subsumed by it. 4 The six offences covered a period of eight years, from when AM was aged nine years until she was aged 17 years. AM was living with her mother and stepfather at the time of these events. The respondent and AM's stepfather were friends who had known one another since their schooldays. AM and her family were living on a property in the country. From time to time the respondent and his wife visited AM's family and on occasions AM and her family visited them. 5 The first offence occurred on an occasion when AM and her family were staying with friends in Sydney. The respondent called to visit them. During the course of the evening he entered the children's bedroom and, on the pretence of giving a massage to AM, he rubbed her buttocks and vaginal/genital area over her clothing. He was charged with aggravated indecent assault contrary to s 61M(2). The circumstance of aggravation relied upon was that AM was aged under 10 years. The maximum sentence for this offence is 10 years' imprisonment. The respondent was sentenced to a fixed term of 18 months' imprisonment for this offence (count 1). 6 The offence charged in count 2 took place when AM was aged nine or 10 years on an occasion when the respondent and his wife were staying with her family at their home. AM was asleep in her brother's bedroom. The respondent came into the bedroom and penetrated her vagina with his finger, moving it in and out. He made her hold his penis and he licked her vagina. He was charged with one count of aggravated sexual intercourse without consent with a person under 16 years of age, pursuant to s 61J. The maximum penalty for this offence is 20 years' imprisonment. This is the offence to which the three offences on the Form 1 were linked. The Form 1 offences comprised: (i) aggravated indecent assault - an offence that occurred when AM was 12 years old - the respondent entered her bedroom and rubbed her vaginal area; (ii) indecent assault - an offence that occurred when AM was aged 17 years - AM and her family were visitors at the respondent's home, he grabbed her by her breasts when she was in the swimming pool; and (iii) commit act of indecency - this was a further offence that occurred when AM was aged 17 years and when she was at the respondent's home - the respondent fondled his penis in front of her when they were both in the swimming pool.

This was the offence for which the respondent was sentenced to a non-parole period of three years and three months and a balance of term of two years and nine months (count 2). 7 The third count involved a further offence committed when AM was aged nine or 10 years and took place on the night following the assault charged in count 2. The respondent came into the bedroom in which AM was sleeping and put his fingers inside her vagina. He was charged with a further count of aggravated sexual intercourse without consent with a person under the age of 16 years. He was sentenced to a fixed term of two years and nine months' imprisonment for this offence (count 3). 8 The next offence took place when AM was aged 11 years. She and her family were visiting the respondent and his family at their home near Tweed Heads. The respondent "played" with AM's vagina, moving his fingers in and out. He was charged with a further count of aggravated sexual intercourse without consent. He was sentenced to a fixed term of imprisonment of two years and nine months for this offence (count 4). 9 The next offence took place on an occasion when the respondent and his wife were visiting AM's family at their home. AM was aged 12 years. She was awakened in her bedroom by the respondent, touching and licking her vagina. He wanted her to "pull" on his penis. He was charged with aggravated indecent assault in relation to this incident pursuant to s 61M(1). The maximum penalty for this offence is seven years' imprisonment. He was sentenced to a fixed term of 18 months' imprisonment for this offence (count 5). 10 The final offence occurred when AM was aged 17 years. She and her family were visiting the respondent and his family. This was an occasion that took place a matter of weeks after the visit during which the swimming pool offences occurred (these are recorded on the Form 1). AM was sharing a bedroom with one of the respondent's daughters. The respondent came in to the bedroom and woke AM, moving his finger in and out of her vagina. He was charged with the offence of sexual intercourse without consent contrary to s 61I. This offence carries a maximum sentence of 14 years' imprisonment. The offence was committed in December 2003 and is one to which the provisions of Pt 4 Div 1A of the Sentencing Procedure Act applies. An offence under s 61I is subject to a standard non-parole period of seven years. The respondent was sentenced to a fixed term of two years' imprisonment for this offence (count 6). 11 The respondent was a married man aged 48 years at the date of sentence. He and his wife had two daughters. 12 AM disclosed the offences in June 2005, which was approximately 18 months after the last offence. She told her stepfather who telephoned the respondent and confronted him with her allegations. In the course of this telephone discussion the respondent made admissions. At the stepfather's insistence he made an immediate confession to his wife and offered to pack his bags and leave home. She told him to leave, saying that she was not going to risk having their daughters taken from her. The respondent moved out of the family home and returned to live with his mother.

13 The respondent approached a counselling service shortly after the revelation of these events and he attended a number of counselling sessions. He was referred to a psychiatrist who expressed the opinion that he was not clinically depressed, but that he was suffering from an adjustment disorder with anxiety and some depression as a reaction to his situation.

14 The respondent entered pleas of guilty before the Local Court at Tamworth. It appears that there was some defect with the committal papers and for this reason he was arraigned on indictment in the District Court. The Crown accepted that the respondent's pleas of guilty were entered in the Local Court at the earliest opportunity. 15 The Judge found that the respondent was suffering from depression, anxiety and adjustment disorder for which he was receiving counselling and that there was no doubt that he was ashamed of his behaviour. His Honour commented that the respondent's family life had been ruined as the result of his misbehaviour and that there was no reason to doubt that he had been severely punished by reason of the loss of the support of his family. 16 In written submissions the Crown contended that the sentences were manifestly inadequate individually and in the aggregate (at [21]). The Crown also submitted that: … the individual sentences are clearly at the bottom of the range of appropriate sentence, the Crown asserts manifestly so, (especially count 2 which was required to reflect the 3 offences on Form 1, counts 3, 4 each of which were subject to a 20 year maximum penalty, and count 6 which was subject to the guidepost of a 7 year non-parole period) (at [54]).

This paragraph is ambiguous. In oral submissions the Crown Prosecutor stated that the Crown challenges the sentences imposed for the offences on counts 2 and 6 as manifestly inadequate. Its principal challenge remains to the structure of the sentences. In the Crown's submission, the decision not to provide for any measure of accumulation was an error that has resulted in an effective sentence that fails to reflect the respondent's criminality for all the offences.

17 The Judge's reasons for directing that the sentences should be served concurrently was explained in this way: Count 2 is the most serious of the offences. My mind has fluctuated as to whether the sentences should be served consecutively or concurrently however, as the first of these offences was committed 11 years ago, it seems to me that the sentences should be served concurrently (ROS 7).

18 Senior counsel for the respondent acknowledged that the structure of the sentence was unusual in light of the approach that courts have adopted since the decision of the High Court in Pearce v R (1998) 194 CLR 610. Counsel did not seek to support the order for concurrency on the basis identified by the Judge. He submitted that the sentence of six years imposed for the offence in count 2 (taking into account the three matters on the Form 1) was a severe one, and suggestive that it had been selected as a lead count to reflect the whole of the respondent's criminality, adopting an approach that was common prior to Pearce. Counsel conceded that such an approach would constitute error. However, in his submission an effective sentence of six years was adequate to reflect the criminality involved in all the offences and, accordingly, this Court should decline to intervene. In support of his submission Counsel pointed to the following features of the offences: s They were not aggravated by threats or pressure of the type that is commonly seen in cases involving the sexual exploitation of children; s The respondent immediately confessed his guilt and by so doing vindicated AM's complaint from the outset; s The respondent was prompt in seeking out and undergoing counselling when confronted with his misbehaviour; s The respondent entered pleas of guilty to the offences at the first opportunity. 19 The Crown complains that the Judge's reasons were expressed with such brevity as to be inadequate, in that they do not explain how his Honour reconciled the competing submissions advanced on the Crown's and the respondent's behalf so as to arrive at the individual sentences and the overall structure of them: Ainger v Coffs Harbour City Council [2005] NSWCA 424. 20 The Judge referred to each of the submissions made by the Crown, including the need for general deterrence in sentencing for sexual offences committed against children; that the offences formed part of a repeated course of conduct; the objective seriousness of the offences; and the emotional harm caused by them (ROS 3 & 4). His Honour was aware of each of the matters upon which the Crown submitted he should place emphasis. The Crown's complaint is that in weighing up the competing considerations that bear on the ultimate determination the Judge is to be taken to have erred because the result is manifestly inadequate.

21 The Court was not taken to other cases in an endeavour to identify the pattern of sentencing for offences under s 61J. No reliance was placed on the statistics maintained by the Judicial Commission of New South Wales in this respect. It is necessary to consider the competing submissions (that a sentence of six years for the offence under s 61J is manifestly inadequate, alternatively, that it is severe) in the light of the Court's experience of the pattern of sentencing for this offence and by reference to the maximum penalty that is provided for it.

22 The respondent stood for sentence as a person of good character, with no prior convictions, who had pleaded guilty at the earliest opportunity and who had shown remorse. It was necessary for the Judge in sentencing him for the offence charged in count 2 to take into account the three matters on the Form 1 consistently with the approach explained in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. Upon the assumption that the Judge allowed a discount of 25 per cent to reflect the utilitarian value of the plea of guilty, the starting point for the sentence was eight years. I am not persuaded that this is a sentence of such inadequacy as to bespeak error.

23 I return to the challenge that the Crown makes to the determination that each of the sentences be served concurrently. It is to be remembered that sentencing judges are to be accorded as much flexibility in sentencing as is consonant with consistency and with the requirements of the Sentencing Procedure Act: Johnson v R [2004] HCA 15; 78 ALJR 616 per Gummow, Callinan and Heydon JJ at 624 [26]; Markarian v R [2005] HCA 25; 79 ALJR 1048. Nonetheless I consider that the Crown has established that the Judge's discretion miscarried in this respect. His Honour's reasons for deciding that all of the sentences were to be served concurrently does not accord with principle. The offences were a series of discrete incidents. The delay came about because they were undetected over nearly a decade during which the respondent continued to assault AM when the opportunity presented itself. It is well recognised that children often do not complain of sexual violation for many years. There was no delay on the part of the authorities in prosecuting the respondent after AM made her complaint. There was no evidence that the respondent had suffered any detriment as the result of the delay in these matters finally coming to light: R v Holyoak (1995) 82 A Crim R 502.

24 It cannot be said that after fixing an appropriate sentence for each offence the Judge was constrained by the principle of totality to direct that they all be served concurrently. A sentence of six years comprising a non-parole period of three years and three months and a balance of term of two years and nine months, in my opinion, is manifestly inadequate to reflect the criminality involved in these six offences involving the sexual violation of AM from when she was aged nine years until she was aged 17 years. 25 The Crown also submitted that the sentence imposed for the offence charged in count 6 was manifestly inadequate. This is an offence that following conviction at trial has a standard non-parole period of seven years. The respondent pleaded guilty at the earliest opportunity and was entitled to a significant discount reflecting the utilitarian value of the plea. While the standard non-parole period does not apply to his case, it remains a guidepost: R v Way [2004] NSWCCA 131; 60 NSWLR 168. 26 The Judge considered that the offences, including the one charged in count 6, were just below the mid-range of seriousness for offences of this nature. 27 Accepting the assessment of the offence as just below the mid range of seriousness for such offences and that the respondent was entitled to a discount of 25 per cent for his early plea of guilty, I have concluded that an overall sentence of two years' imprisonment is manifestly inadequate for this offence. The respondent's subjective case was favourable in that he was of otherwise good character, remorseful and has good prospects of rehabilitation. However, he was not entitled to the degree of mitigation that an offender for whom the offence was an isolated lapse might attract. Furthermore, although not raised by either party, s 45(1) of the Sentencing Procedure Act does not permit a court to decline to set a non-parole period when sentencing for an offence that has a standard non-parole period.

28 Despite the Crown having made good its challenge both to the inadequacy of the sentence imposed for the offence charged in count 6 and to the structure of the sentences, the Court retains a discretion not to intervene: R v Allpass (1993) 72 A Crim R 561. 29 An affidavit affirmed by the respondent's solicitor annexing a report, dated 18 October 2006, prepared by Peter Ashkar, a psychologist, was relied upon in the event the Court came to consider the discretion or re-sentence. 30 Mr Ashkar reports that the respondent maintains telephone contact with his two daughters but that he has not seen them since the separation. The respondent has lost all his social relationships since his arrest. His mother is his sole source of emotional support. The respondent reports no history of sexual attraction to children, although Mr Ashkar observes that his offending behaviour reflects an entrenched paedophilic arousal pattern. The respondent has applied to enter the CUBIT program (a custody-based treatment program for sex offenders). He is assessed by Mr Ashkar as likely to respond well to treatment and as being a low risk for sexual recidivism. 31 In my opinion the structure of the sentences requires that the Court intervene and re-sentence to the extent of varying the dates of commencement of the sentences on counts 2 to 6 so as to provide a measure of accumulation. I also consider that the respondent should be re-sentenced for the offence charged in count 6. In re-ordering the sentences and in re-sentencing on count 6 it is appropriate to exercise restraint in recognition of the element akin to double jeopardy that attends appeals brought by the Crown: Dinsdale v R (2000) 202 CLR 321.

32 The Judge found that there were special circumstances justifying a departure from the statutory proportion between the non-parole period and the balance of the sentence. His Honour took into account the need for the respondent to have an extended period on supervision. I consider that the finding of special circumstances should be preserved because the sentences that I propose involve a degree of accumulation, which makes it appropriate to depart from the statutory proportion to ensure that the respondent has the benefit of an appropriate period on parole to assist with his rehabilitation. 33 I propose that the sentences for each of the counts be partly accumulated on the sentences for the previous counts. Count 5, an offence of indecent assault, will commence on the same date as the sentence imposed for the offence charged in count 4 and will be wholly subsumed by it. This reflects considerations of totality and the need for restraint. I propose that the sentence for the offence charged in count 6 be quashed and in lieu thereof that the applicant be sentenced to a non-parole period of three years and a balance of term of two years. The longest sentence remains that imposed for the offence charged in count 2 and I propose that it be partly accumulated on the sentence for the offence charged in count 6. 34 The total sentence which I propose is one of seven years' and nine months' imprisonment comprising an effective non-parole period of five years and a balance of term of two years and nine months.

3. Confirm the sentences on counts 2 to 5 but vary their dates of commencement as set out in order 5: 4. Quash the sentence on count 6 and, in lieu thereof, the respondent is sentenced to a non-parole period of three years and a balance of term of two years each to commence as specified in order 5; 5. The dates of commencement of the sentences are as follows: Count 1 - fixed term of 18 months' imprisonment to date from 20 June 2006 and to expire on 19 December 2007; Count 3 - fixed term of two years' and nine months' imprisonment to date from 20 December 2006. This sentence will expire on 19 September 2009;

Count 4 - a fixed term of two years' and nine months' imprisonment to date from 20 June 2007 and to expire on 19 March 2010;

Count 5 - a fixed term of 18 months' imprisonment to commence on 20 June 2007. This sentence will expire on 19 December 2008; Count 6 - a non-parole period of three years to date from 20 October 2007 and to expire on 19 October 2010 and a balance of term of two years to expire on 19 October 2012; Count 2 - non-parole period of three years and three months to date from 20 March 2008. The non-parole period will expire on 19 June 2011. Specify a balance of term of two years and nine months. This sentence will expire on 19 March 2014. 35 JOHNSON J: I agree with Bell J. *******

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