REGINA v TOTTEN

LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0118 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60118/03

SHELLER JA JAMES J O'KEEFE J

Thursday 14 August 2003 REGINA v Graham Sherne TOTTEN Judgment 1 SHELLER JA: I agree with James J 2 JAMES J: Graham Sherne Totten applied for leave to appeal against sentences imposed on him in the District Court on 12 September 2002 by his Honour Judge McGuire for an offence of aggravated indecent assault, the circumstance of aggravation being that the victim was under the age of sixteen years, and an offence of sexual intercourse with a child aged between ten and sixteen years, who was under the authority of the applicant. For the first offence his Honour imposed a sentence of a fixed term of imprisonment of eighteen months commencing on 12 September 2002 and for the second offence his Honour imposed a sentence of imprisonment for five years four months, also commencing on 12 September 2002, with a non-parole period of four years. Aggravated indecent assault is an offence under s 61M of the Crimes Act for which the maximum penalty is imprisonment for seven years. Sexual intercourse with a child aged between ten and sixteen years who is under the authority of the offender is an offence under s 66C(2) of the Crimes Act for which the maximum penalty is imprisonment for ten years. 3 The objective facts of the two offences can be briefly stated. The victim of both offences, who I will refer to simply as "the victim" or "the complainant", was a girl who was born in November 1985. In about 1994 the complainant's mother began working for the applicant in a caravan hire business he conducted and the complainant's mother and the applicant became friendly. 4 On an occasion some time between January 1996 and January 1998 the complainant, who was then between ten and twelve years old, accompanied the applicant as he delivered a caravan to a customer in the course of his business. The applicant asked the complainant to move into the centre of the front bench seat of the vehicle the applicant was driving and the complainant complied. The applicant then put his hand down the front of the complainant's shirt and on to her breast. While doing this, the applicant made a lewd comment. The applicant told the complainant not to tell her mother about the incident. This incident was the subject of the first offence charged against the applicant. 5 In about November 1997 the complainant's mother entered into a sexual relationship with the applicant and in about January 1998 the applicant, the complainant's mother and the complainant began living together. 6 On an occasion at some time between 1 June 1998 and 13 November 1998, when the complainant was twelve years old, the complainant accompanied the applicant to a building which the applicant used as his business premises. The applicant told a friend of the complainant, who was with her, to go to her home and he asked the complainant to go with him into the building. When inside the building, the applicant asked the complainant to go to a room, where a number of mattresses were stored. In this room the applicant spread two mattresses on the floor and told the complainant to sit on them. The applicant removed the complainant's clothing, told her to open her legs and, when she had complied, the applicant committed cunnilingus on the complainant. After a time the applicant stopped, saying that his tongue was getting sore. The complainant dressed and the applicant took her home. This incident was the subject of the second offence charged against the applicant. 7 The complainant made a complaint to her mother about the applicant's conduct but her mother did not believe her. On 11 October 1999 the complainant reported the incidents to police. The complainant went to live with her father at her father's home. However, it was not until 14 December 2000 that police arrested and charged the applicant. After being arrested the applicant declined to be interviewed by police. On 24 August 2001 the applicant was committed for trial in the District Court. On 10 May 2002 when the applicant was arraigned in the District Court, he pleaded guilty to both offences. 8 Although a number of character witnesses gave evidence in the proceedings on sentence, there was actually little information before his Honour about the subjective circumstances of the applicant. As I have already indicated, the applicant had declined to be interviewed by police and he did not give evidence in the proceedings on sentence. In the proceedings on sentence the applicant's counsel objected, successfully, to a tender by the Crown of a pre-sentence report about the applicant. 9 In his remarks on sentence his Honour referred to the few subjective circumstances of the applicant which were disclosed by the material before his Honour. The applicant had no relevant criminal history and the sentences of imprisonment his Honour was about to impose would be the first prison sentences the applicant had served. The applicant was a person of previous good character, as testified to by the character witnesses, whose evidence his Honour accepted. The applicant had had children by two previous relationships. 10 There was admitted into evidence in the proceedings on sentence a victim impact statement prepared by a psychologist. In the victim impact statement the psychologist recorded that the complainant had described episodes of sexual abuse by the applicant against her from late 1997 to October 1999. While the abuse was taking place, the applicant had experienced significant difficulties in her personal life and at school, but, after going to live with her father and changing schools, "her circumstances have significantly improved". 11 In his remarks on sentence his Honour said that the sexual molestation of children demonstrated criminality of a high order and was aggravated when the molestation involved the breach of a relationship of trust between the victim and the offender. 12 In his remarks on sentence his Honour said that he would give credit for the utilitarian value of the applicant's pleas of guilty, even though they were belated, particularly as the complainant had been saved from having to give evidence at a trial. His Honour also said that he was prepared to infer that the applicant's pleas of guilty reflected some contrition on his part. In the absence of evidence, his Honour found it difficult to determine what the applicant's prospects of rehabilitation were. His Honour said that he had considered the question of special circumstances and could find none. 13 On this application counsel for the applicant relied on a number of specific grounds, which I will consider in turn. I will deal firstly with the grounds which I consider can fairly readily be disposed of and will then deal with what I consider to be the more substantial grounds.

His Honour was in error in failing to take into account the length of time between the commission of the offences and the sentencing. 14 It was submitted on behalf of the applicant that delays had occurred between (1.) the occurrence of the offences at some time between January 1996 and January 1998 and at some time between 1 June 1998 and 13 November 1998 and the victim complaining to police in October 1999 (2.), between the victim complaining to police in October 1999 and the applicant being arrested on 14 December 2000 and (3.), between the applicant being arrested and the applicant being sentenced; and that his Honour had erred in not taking those delays into account in favour of the applicant in sentencing the applicant. I note that no submission of this kind was made before the sentencing judge. 15 It does not seem to me that the delays complained of were unusual. The time which elapsed between the commission of the offences and the making of a complaint to police was in fact much less than often occurs in the case of sexual offences committed against children. I accept that some delay did occur between the making of a complaint to the police and the police arresting the applicant. The delay between the arrest of the applicant and the sentencing of the applicant would not be an unusual delay in proceedings in which the accused person had been granted bail and did not plead guilty until he was arraigned in the District Court. 16 Counsel for the applicant cited R v Todd (1982) 2 NSWLR 517 at 519, where Street CJ said:- "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - ". 17 The present case is clearly distinguishable from Todd. In the present case there was no evidence before the sentencing judge about any progress in the applicant's rehabilitation; any state of suspense the applicant might have been in as to what would happen to him in the criminal proceedings would only have been between the date of his arrest and the date of his sentencing, a period of less than two years; and the applicant's offences were not "stale" crimes, as compared with the crimes for which Todd was sentenced. 18 I would reject this ground of appeal.

His Honour was in error in considering that the offences were not isolated instances 19 As I have already noted, in the victim impact statement which was admitted into evidence in the proceedings on sentence the psychologist who prepared the statement said that the complainant had described episodes of sexual abuse by the applicant against the complainant, occurring from late 1997 to October 1999. 20 In written submissions in the proceedings on sentence the Crown submitted that the two offences were not isolated incidents, so that, while the applicant was not to be punished for offences of which he had not been convicted, the applicant lost the benefit he might otherwise have had of being sentenced for the two offences of which he had been convicted, on the basis that the two offences were isolated aberrations. 21 In his oral submissions in the proceedings on sentence counsel for the applicant, who is an experienced criminal counsel, referred to this passage in the Crown's written submissions and said it was true that the offences for which the applicant was being sentenced were not isolated incidents. 22 On this application it was submitted on behalf of the applicant that his Honour should not have had any regard to the passage in the victim impact statement and that the concession made by counsel for the applicant in the proceedings on sentence was an "extraordinary" concession, for which there was no basis in the material before his Honour. 23 I would reject this ground. 24 Although counsel for the applicant in the proceedings on sentence objected to the tender of the pre-sentence report, no objection was made to the tender of the victim impact statement. The victim impact statement not being objected to, his Honour was entitled, under s 28 of the Crimes (Sentencing Procedure) Act to receive and consider the victim impact statement, if he considered it appropriate to do so. 25 I do not consider that the concession made by counsel for the applicant in the proceedings on sentence was "extraordinary". I would infer that the concession was made, only after counsel had received instructions from the applicant. Sentence proceedings are usually conducted informally and it often happens that counsel for the prisoner, on instructions from his client, makes admissions and concessions about matters which are not strictly proved by evidence. In Weininger v The Queen (2003) HCA 11 Gleeson CJ, McHugh, Gummow and Hayne JJ in their joint judgment referred at par 21 to "the well known and long established procedures in sentence hearings in which much of the material placed before the sentencing judge is not proved by admissible evidence".

His Honour was in error to speculate about the applicant's response after the complainant reported his conduct to her mother 26 In his remarks on sentence his Honour said:- "It's to be noted from the victim impact statement that she (the complainant) reported the offender's conduct to her mother yet was not believed. Presumably the prisoner had denied his sexual assaults upon her'. 27 It was submitted that there was no evidence that the complainant's mother had ever confronted the applicant with the complainant's allegations and there was no evidence that the applicant had denied the offences and that, accordingly, his Honour's remark, that the applicant had denied sexually assaulting the complainant, was sheer speculation. 28 I would accept that there was no evidence that the applicant had denied sexually assaulting the complainant and an inference that the complainant's mother had confronted the applicant with the complainant's allegations and that the applicant had then denied that he had sexually assaulted the complainant was not the only inference which it was reasonably possible to draw. For example, the complainant's mother might simply have disbelieved the complainant and not even mentioned the complainant's allegations to the applicant. Consequently, his Honour should not have made the remark that he did. However, it could properly be inferred that the applicant had not made any admission that he had sexually assaulted the complainant. In any event, I would regard his Honour's remark as a mere aside, which had no material effect on his Honour's reasoning process. 29 I would reject this ground. 30 I will now turn to the two grounds of challenge to the sentences which were principally relied on by counsel for the applicant. These two grounds can conveniently be dealt with together.

His Honour was in error in declining to take into account that the applicant would be likely to serve at least some of his sentence in protective custody

His Honour failed to take into account the likelihood that the applicant would spend some or part of his sentence in protective custody as a consideration relevant to the issue of "special circumstances" 31 In the course of counsel for the applicant making oral submissions in the proceedings on sentence, the following exchange occurred between counsel and the sentencing judge:- "STRATTON: Lastly your Honour if there is a term of imprisonment that's fixed in relation to this matter my submission is that he will have to serve it on protection. I would ask you Honour to take that into consideration because-- HIS HONOUR: Well why would I accept that Mr Stratton? STRATTON: Because that's what happens/ HIS HONOUR: Is it? STRATTON: Yes. HIS HONOUR: Or is it what happens is that offenders of this type are put in a special section of Long Bay where conditions are substantially more advantageous than they are for the general prison population. STRATTON: Well if your Honour knows that, your Honour knows more than me but that's not surprising. HIS HONOUR: Well that's what I have - that's what the last two times such a matter has come before me that's what I've been told I don't know. I don't know - what I do know is that I have been told, there has been evidence before me that offenders of this type are put in with similar offenders - like offenders in a special section, there's no protection involved, they get the advantage of not being in the general prison population, they have more advantageous conditions with regard to employment, education, rehabilitation et cetera et cetera, so if there is to be some - if I'm take that into account Mr Stratton -- STRATTON: Well I haven't drawn any evidence all I know is that I don't make a practice of doing these cases but the last one I did - I did it before another District Court judge and he thought that was terribly important. HIS HONOUR: Yes I know it's terribly important, because people do as you are doing now and I'm not suggesting any attempt to mislead because you wouldn't do that but it's generally accepted that that's the situation. I'm told that it's not the situation. STRATTON: Alright okay well I'll withdraw that, I'll take it out…". 32 The remark attributed to counsel for the applicant "well, I haven't drawn any evidence" may contain a transcription error and I consider that the remark should be read as equivalent to counsel saying "well, I haven't called any evidence (about protection)". 33 In his remarks on sentence his Honour made no reference to whether the applicant would serve any part of the sentences in protective custody. 34 It was submitted on behalf of the applicant that this Court has often said that a person sentenced to imprisonment for an offence of sexually assaulting a child is likely to spend at least part of the sentence in protective custody; that while in protective custody the prisoner will be subject to conditions of custody which are more onerous and more disadvantageous than those to which prisoners in the general prison population are subject; and that that circumstance is relevant both to determining the length of the sentence which should be imposed and to whether the sentencing judge should find that there are special circumstances such that the balance of the term of the sentence should exceed one third of the non-parole period of the sentence. Counsel for the applicant referred inter alia to R v Burchell (1987) 34 A Crim R 148 at 151 per Hunt J and R v Scott (unreported [2003] NSWCCA 28) especially at pars 21 to 26 per Bell J. 35 It was submitted on behalf of the applicant that if, in sentencing the applicant, the sentencing judge, on the basis of what he had been told in other cases or even on the basis of evidence adduced in other cases, had taken into account, to the disadvantage of the applicant, a view that the applicant's conditions of custody would be likely to be more advantageous than the conditions of custody to which prisoners in the general prison population are subject, then his Honour was in error. 36 It was further submitted on behalf of the applicant that, even if his Honour had not made that first error, his Honour had been in error in not taking into account, in favour of the applicant, the circumstance that part at least of his sentences would be likely to be served on protection, both in determining the length of the sentences to be imposed and in determining whether there were special circumstances. 37 It was submitted on behalf of the Crown that in the proceedings on sentence counsel for the applicant had withdrawn the submission that the sentencing judge should take into account that the applicant's sentences would be served on protection; that the sentencing judge had not made either of the errors ascribed to him; that the conditions of custody to which the applicant would be likely to be subject would be much less disadvantageous to him than the conditions of custody to which the prisoners in some of the reported cases would have been subject and that this was the point his Honour had been endeavouring to make in his exchange with counsel for the applicant; and that it could safely be inferred that an experienced sentencing judge such as his Honour would not have failed to take into account the likelihood of the applicant having to serve part of his sentence in some form of protective custody in determining whether there were special circumstances and that this circumstance did not require his Honour to make a finding of special circumstances. 38 It is the position that sentencing courts and this Court have often taken into account, in favour of a person sentenced for an offence of child sexual assault, that the whole or part of a sentence of imprisonment is likely to be served in some form of protective custody and that the conditions of that protective custody are likely to be more disadvantageous or onerous for the offender than the conditions of custody to which prisoners in the general prison population are subject. These matters have been taken into account, both in determining the length of the sentence which should be imposed and in determining whether there should be a finding of special circumstances. In many such cases there has been no evidence before the sentencing judge about the likely conditions of custody under any prison sentence imposed by the sentencing judge. 39 In R v Burchell Hunt J, with the concurrence of the other members of the Court, referred at p 151 to:- "the well known fact… that child molesters are subjected to severe physical assaults by the inmates of the regular gaols and they usually are obliged to serve their sentences under heavy protective guard and often in isolation, even from those other inmates on protection". 40 The use by Hunt J in this passage of the expression "well know fact" suggests that his Honour considered that the fact was sufficiently notorious for a court to take judicial notice of it, without the need for evidence. 41 In the recent decision of R v Scott, a decision of a two judge bench of this Court, Bell J, with the concurrence of O'Keefe J the other member of the Court, said at par 26, citing authority including R v Burchell:- This Court has held that the circumstance that a sentence of imprisonment is likely to be served in conditions of protection is a matter that is relevant both to a consideration of the length of the term and to the question of whether special circumstances exist to justify a departure from the statutory proportion between the sentence and the non-parole period". 42 In R v Wahabzadah [2001] NSWCCA 253, a decision of a two judge bench of this Court consisting of Wood CJ at CL and Howie J, the case turning largely on whether the sentencing judge should have made a finding of special circumstances, Howie J with the concurrence of Wood CJ at CL, said at par 20:- "…but it (that the applicant is in protective custody) should be considered and taken into account on the question of whether in a particular case special circumstances exist which warrant a lesser non-parole period than the statutory relationship prescribes".

Howie J made it clear that such a circumstance does not always require a sentencing judge to find special circumstances justifying a reduction in the non-parole period. 43 There are difficulties in a sentencing judge taking into account a circumstance that part or all of a sentence of imprisonment is likely to be served in some form of protective custody. Taking such a circumstance into account involves the sentencing judge in making a prediction about how the offender will be dealt with in the Correctional system. The sentencing judge's prediction may not be fulfilled. Furthermore, as Bell J pointed out in her judgment in Scott, there are within the Correctional system not just one form of protective custody with fixed conditions of custody but a number of different kinds of protective custody, the conditions of which vary considerably in the extent to which they depart from the conditions of custody to which prisoners in the general prison population are subject. Not all forms of protective custody involve the serious disadvantages referred to by Hunt J in Burchell, such as being obliged to serve the sentence under heavy protective guard and in isolation, even from other inmates on protection. In some forms of custody which are described as protective custody the prisoner is kept in a Correctional Centre or an area of a Correctional Centre in which the other inmates are prisoners who have been sentenced for similar offences and the prisoner is able to mix freely with those other inmates and to have access to programmes conducted by the Department of Correctional Services. I would agree with what Bell J said in par 34 of her judgment in Scott that:- "It is appropriate for a sentencing court to take into account the circumstance that a sexual offender may spend his custody in conditions subject to some form of 'protection' status. Evidence as to the likely conditions of custody is important if the Court is to make an informed assessment of the extent to which the offender's custody will be more onerous than that of prisoners housed in the general prison population. The concerns of which Hunt J spoke in Burchell would seem to be significantly lessened for sexual offenders who are placed in special facilities such as the MSPC…". 44 Notwithstanding the difficulties in a sentencing judge taking into account, especially without the benefit of evidence, a circumstance that part or all of any sentence of imprisonment imposed is likely to be served in some form of protective custody, I consider that it is a well entrenched principle that it is a circumstance that a sentencing judge should take into account, in favour of the prisoner, both in determining the length of the sentence to be imposed and in determining whether there are special circumstances. That a sentencing judge may not have expressly referred to this circumstance in his or her remarks on sentence should not necessarily give rise to an inference that he or she has failed to take the circumstance into account. What weight the circumstance should be given will depend very much on all the circumstances of the particular case. 45 In the present case I do not consider that the sentencing judge made the first error ascribed by counsel for the applicant, that is that the sentencing judge took into account, to the disadvantage of the applicant, a view he had formed from what he had been told in other cases or from evidence in other cases, that the applicant's conditions of custody would be likely to be actually more advantageous than the conditions of custody to which prisoners in the general prison population are subject. However, I do consider that his Honour did make the second error ascribed by counsel for the applicant, that is that his Honour did not take into account, in favour of the applicant, the circumstance that part at least of the applicant's sentences would be likely to be served in some form of protective custody, both in determining the length of the sentences and in determining whether there were special circumstances. 46 It is true that in the proceedings on sentence counsel for the applicant withdrew his submission about the likelihood of a prison sentence being served on protection but, in my view, counsel withdrew this submission, only after the sentencing judge had made it plain that the submission had no prospect of success and after the sentencing judge had intimated that, if he did take into account the circumstance that a sentence would be served on protection, he might take the circumstance into account in a way which would be disadvantageous to the applicant. I am satisfied from the terms of the exchange between the sentencing judge and counsel that the sentencing judge rejected the submission made by counsel "I would ask your Honour to take (that the prisoner will have to serve the sentence on protection) into account". Contrary to a submission made by the Crown on this application, his Honour was not merely making the point that there are different kinds of protective custody which vary in the degree to which they are disadvantageous or onerous. 47 As I consider that his Honour failed to take into account a relevant factor, his Honour's sentencing discretion miscarried and it is necessary for this Court to determine what sentences should be imposed on the applicant and in particular whether lesser sentences should be imposed. 48 The Court received some additional evidence on the basis that it would be admissible in any re-sentencing of the applicant. 49 In an affidavit by the Deputy Superintendent of the Metropolitan Special Programme Centre (MSPC) Long Bay the Deputy Superintendent said in part:- "5. The Applicant in these proceedings was placed on protection on 12 September 2002. This protection order expired on 11 December 2002. 6. The Applicant is not currently on protection, however, he is accommodated in Area 5 of the MSPC which is a designated SMAP (Special Management Area Placement) area. These areas accommodate inmates who are all convicted of a similar offence. In the case of Area 5 and Area 3 in the MSPC, all inmates are sex offenders. 7. Whilst accommodated in Area 5 in the MSPC, the Applicant has full access to the services offered by Education, AOD, Welfare and Psychology. 8. The inmates in this area also have the opportunity to be employed in a number of industries based with the MSPC, such as, the Textile Unit, the Technology Unit and the Food Services Unit. Employment is also offered as domestic sweepers in the Centre". 50 Records were produced by the Department of Corrective Services showing that the applicant had not been moved from the Junee Correctional Centre to the MSPC Long Bay until 28 May 2003 and that while he had been at the Junee Correctional Centre the applicant had not had access to any programmes. 51 In an affidavit by the applicant, on which he was not cross-examined, the applicant said that he had spent the first three days of his custody at the Bathurst Correctional Centre in a non-association cell and had not been allowed out of the cell. He had spent the next two weeks of his custody in a strict non-association pod at the Bathurst Correctional Centre. On 29 September 2002 the applicant had been transferred to the Junee Correctional Centre. At the Junee Correctional Centre he was placed in a pod where he could mix with other prisoners. 52 The applicant said in his affidavit that on or about 29 October he had noticed that other prisoners were staring at him and he was accused of being a "rock spider". He telephoned his sister and was informed that an article about his case had been published in a newspaper. On the advice of a prison officer, the applicant locked himself in his cell. 53 The applicant said in his affidavit that he was in a strict protection pod between 29 October 2002 and 28 May 2003. During this period he was too frightened for his safety to use a recreation area and he did not take part in any programmes or courses. 54 The applicant accepted in his affidavit that the conditions of custody in the MSPC were much better than they had been at Junee. In the area in which he is housed there are only sex offenders, there is no harassment and the applicant has taken some courses. 55 I consider that the evidence establishes that the applicant's conditions of custody, at least for the first eight months of his sentence, were more onerous and disadvantageous than the conditions of custody of prisoners in the general prison population. 56 A report by a psychologist which was prepared before the applicant was sentenced but which was not tendered in the proceedings on sentence was admitted in this Court, in the event of the Court re-sentencing the applicant. In the report the psychologist expressed the opinion that the applicant has a borderline personality disorder and should receive very close monitoring and supervision by the Probation and Parole Service over an extended period of time. 57 I have referred to the objective facts of the offences and certain subjective circumstances of the applicant earlier in this judgment. I have now referred to the further evidence this Court admitted as relevant to re-sentencing. I have taken into account the matters referred to in the Crimes (Sentencing Procedure) Act. I have concluded that a somewhat lesser sentence should be imposed for the principal offence and that the Court should find special circumstances in the applicant having served at least the first eight months of his sentence in more than usually disadvantageous conditions of custody and in the applicant's need for close monitoring and supervision by the Probation and Parole Service after he is released on parole. 58 In my opinion the following orders should be made:- 59 1. Leave to appeal granted. 60 2. Confirm the first sentence imposed by his Honour, that is the sentence of eighteen months commencing on 12 September 2002 for the offence of aggravated indecent assault. 61 3. Quash the sentence imposed by his Honour for the offence of sexual intercourse with a child between the age of ten years and sixteen years and in lieu thereof the applicant should be sentenced to a term of imprisonment of five years commencing on 12 September 2002, with a non-parole period of three years six months commencing on 12 September 2002 and expiring on 11 March 2006. The earliest date on which the applicant would be eligible for release on parole would be 11 March 2006. 62 O'KEEFE J: I agree with James J. **********

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