RJB v R

Subjective case

1. The applicant was aged between 35 and 39 during the period of the offences, and he is now 47. He has a criminal history which, his Honour noted, "would not entitle him to leniency." There are no prior sexual offences, but there are a number of convictions for common assault, assault occasioning actual bodily harm and contravening apprehended domestic violence orders. The victim of some of these offences was his wife, whom he would sometimes assault during heated arguments. On one occasion, in 2003, he struck her, rendering her unconscious. Police were called, he brandished a knife and a three hour siege ensued.
2. The applicant did not give evidence in the sentence proceedings. His subjective case is to be found in the report of a psychologist, Ms Case, who assessed him for the purpose of the proceedings. He had a difficult background. When he was about 15 months old, he and his older brother were effectively abandoned by their parents. They became State wards and spent a period of some years in a children's home. At the age of 10 he joined a family in Adelaide as a foster child, leaving his brother in the children's home. To Ms Case he described his foster parents as strict, and said that he felt "left out of the family and unloved." After some years he moved with the family to Sydney until he began to live independently at the age of 17. Generally, he described the period with the family as happy, but he felt guilty at having left his brother behind.
3. In his early twenties he re-established contact with his biological father, with whom he maintained contact for about 15 years before his father moved on without explanation and without farewelling him. He learnt that he was one of 12 children to his mother, and that she had died of cancer. He never had any contact with her or with his siblings, except for the brother to whom I have referred. He told the psychologist that he no longer wished contact with that brother because he had assisted the police in their enquiries into these offences.
4. He was educated to year 10 standard, and had only sporadic employment. He gave the psychologist a history of alcohol and drug abuse from his late teens, although he had never undertaken a detoxification or rehabilitation program. He believed that his drug use was "problematic" during the period of the offences and said that on occasions he committed them while intoxicated.
5. He reported having suffered from depression and anxiety for his "whole life", and to have attempted suicide on several occasions. He had had counselling "on and off" over the years for this condition and for his drug abuse. While in custody following his arrest he had seen a psychiatrist and was prescribed antidepressant medication.
6. In addition to his step-children, he and his wife had 3 children of their own. Since being in custody he has had no contact with them, apparently at the direction of the Department of Community Services. To the psychologist he described his wife as "mentally abusive", and himself as the submissive party in the relationship. Nevertheless, he admitted that on many occasions he had threatened or intimidated her, and physically abused her. He said that he "guessed" he loved her, but added, "I don't really know what love is. I've never really received love from my parents or anyone."
7. Asked by Ms Case what was significant about the complainant, he could not explain it but admitted having had sexual feelings for her. Asked whether he thought of his behaviour as abusive, he said, "I guess I do" but added that he could also see it "as love." Ms Case reported: "[The applicant] expressed remorse for his actions and is distressed by the repercussions of his behaviour on losing access to his wife and children. [He] recognised the detrimental effects on the victim to include the loss of a father figure and trust issues within relationships. He acknowledged that her disclosures to her mother and installing a lock on her own bedroom door were indications that his behaviour was unwelcome."
8. Ms Case reported that he denied having been the victim of any physical or emotional abuse while in foster care, but that he disclosed "flashbacks of a sexual nature, and described visualising sexual imagery and scenes involving himself and unknown adults." He "questioned whether this could indicate a personal history of abuse."
9. Ms Case recommended that, while in custody, he participate in a sexual offending program and receive psychotherapy to explore his childhood issues. She also recommended immediate intervention in respect of his depression and anxiety symptoms, and recommended a "comprehensive substance abuse treatment program to address his alcohol and illicit substance abuse."
10. His Honour accepted the applicant's statements to Ms Case as "some" evidence of his remorse, which he also saw as reflected in his pleas of guilty. He noted that those pleas were entered at the earliest opportunity, entitling him to a discount of sentence of 25%. He saw his prospects of rehabilitation as "very much dependent on his ability to undertake successfully the programs whilst in the custodial setting."

The application

1. It is not a ground of the application that the sentences individually, or the overall sentence, are manifestly excessive. The three grounds argued assert that the sentencing judge fell into error in various respects in his approach to the sentencing task, and counsel for the applicant, Mr Ginges, submitted that this court, finding error, should determine that a lesser sentence is warranted and re-sentence the applicant in the exercise of its own discretion. Put shortly, it is said that his Honour erred in his assessment of the objective gravity of the offences, in the manner in which he accumulated sentences, and in failing to give adequate weight to the applicant's subjective case.
2. A subsidiary ground notes that his Honour fell into technical error in passing fixed term sentences in respect of counts 3 and 5, because a standard non-parole period was prescribed for each of those offences. That being so, they were among the offences set out in the Table to Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999, and the power conferred by s 45(1) of the Act to decline to set a non-parole period was not available in respect of them.

Objective gravity

1. Mr Ginges referred to his Honour's observation that "each offence is an example of the most serious criminal conduct". He submitted that this amounted to a finding that each of the offences was at or towards the top of the range of objective seriousness for offences of that kind, and that his Honour failed to assess the objective gravity of each offence individually. He argued that a proper assessment of the objective gravity of each offence, by reference to offences of its kind, would have been the following: Counts 1 & 3 (sexual intercourse by digital penetration) - below the mid-range of objective seriousness; Count 5 (sexual intercourse without consent by digital penetration) - below the mid-range; Count 2 (sexual intercourse by penetration with an object) and Count 4 (penile/vaginal sexual intercourse) - mid-range; Count 6 (sexual intercourse without consent by anal penetration) - towards the upper end of the mid-range.
2. Mr Ginges cited in support of his argument the judgment of McClellan CJ at CL (with whom the other members of the court agreed) in AWKO v R [2010] NSWCCA 90. That was a case involving an offence which carried a standard non-parole period, in which the sentencing judge had classified the offence as "at least in the middle range of objective seriousness." The Chief Judge observed at [14] that this assessment did not identify the extent to which the offence fell above the mid-range, and added: "When an ambiguous expression is used by a sentencing judge it does not enable the offender or this Court to understand the sentencing judge's conclusion as to the seriousness of the offence which is fundamental to the sentence which was ultimately imposed." In support of that proposition, the Chief Judge referred to the statement of Howie J to the same effect in R v Knight & Biuvanua [2007] NSWCCA 283, 176 A Crim R 338, at [39] (346).
3. However, these observations must be understood in their context. Knight & Biuvanua was also a case involving an offence which carried a standard non-parole period. In both cases the court was focusing upon the standard non-parole period provisions in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999: in particular, s 54A(2) which, as it then stood, provided that the standard non-parole period represented the non-parole period for an offence "in the middle of the range of objective seriousness" for the offences specified in the Table to the Division. (That subsection and other provisions in Div 1A were amended in 2013, following the decision of the High Court in Muldrock v The Queen [2011] HCA 39, 244 CLR 120.) The two decisions were among a number of authorities requiring the sentencing judge in standard non-parole period cases to specify with some particularity where the objective seriousness of an offence lay in relation to the mid-range. That approach arose from the "two-stage approach to the sentencing of offenders for Div 1A offences", in which the standard non-parole period played a pivotal role, which was rejected by the High Court in Muldrock: at [27]-[31] (132-3).
4. This is not to deny the necessity, which has long been recognised, of a sentencing judge to assess the objective gravity of the offence or offences for which sentence is to be passed. That is what his Honour did in the passages of his remarks on sentence to which I have referred at [9]-[11] above. True it is that his Honour's observations related to the offences globally, without considering them individually. Nevertheless, as the Crown prosecutor in this court pointed out, it is apparent from the sentences passed that his Honour did consider the objective gravity of each of them. I accept the Crown prosecutor's submission that no further elaboration of the objective seriousness of the offences was required.
5. This ground is not made out.

Accumulation

1. Mr Ginges did not take issue with the sentences passed for each offence, or with the need for partial accumulation of them. His complaint was the manner in which his Honour approached the accumulation, arguing that he had failed properly to apply the principle of totality. He referred to the observation of this court in R v MMK [2006] NSWCCA 272, 164 A Crim R 481, at [13] (486) that the discretion to direct that one sentence is to be served cumulatively upon another "is generally circumscribed by a proper application of the principle of totality." He also cited the following passage from that judgment at [11] (also 486): "[11] One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616."
2. Mr Ginges referred to the summary of the principles governing the issues of accumulation and concurrence by Hall J in R v XX [2009] NSWCCA 115 at [52]. Relevantly for present purposes, his Honour said: "[52] There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:- (1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing. (2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is 'not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed' but his Honour observed that 'this is not an inflexible rule' and '[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct'.(3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12]. (4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253. (5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27]. (6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27]. (7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence. … (9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13]. … ."
3. It will be remembered that the sentence for count 2 (penetration by an object) was accumulated by 1 year upon the sentence for count 1 (digital penetration). The sentences for counts 3 and 5 (both digital penetration) were concurrent but were accumulated by a further year upon the sentence for count 2. The sentence for count 4 (penile/vaginal penetration) was accumulated upon the sentences for counts 3 and 5 by 2 years. Finally, the sentence for count 6 (penile/anal penetration) was accumulated upon the sentence for count 4 by 3 years.
4. As refined in oral argument, Mr Ginges' challenge was to the accumulation of the sentence for count 4 by 2 years and the further accumulation of the sentence for count 6 by 3 years. I should record two subsidiary arguments which can be disposed of immediately.
5. He referred to the concurrent sentences for counts 3 and 5, noting that count 5 was the digital penetration which occurred on the same occasion as the anal penetration the subject of count 6. He argued that it would have been more appropriate to make the sentence for count 5 concurrent with that for count 6. That was an approach which was open to his Honour, but it was equally open to make the sentences on counts 5 and 3 concurrent because they both involved digital penetration. Whichever approach was taken would have made no practical difference.
6. He noted that the sentence for count 3 was accumulated upon the sentence for count 1 by 2 years, whereas the sentence for count 2 was accumulated upon count 1 by only 1 year. He pointed out that count 2 involved penetration by an object, which might be seen as more serious than digital penetration. His argument, as I understood it, was that it was incongruous that the measure of accumulation of the sentence for count 3 upon the sentence for count 1 should be greater than that for count 2. This argument is misconceived. As I have said, what his Honour did was to accumulate count 2 upon count 1 by 1 year and accumulate count 3 upon count 2 by a further 1 year. For practical purposes, the measure of accumulation was the same. If Mr Ginges' argument were accepted, the sentences for counts 2 and 3 would be concurrent.
7. The gravamen of Mr Ginges' argument was that there should have been less accumulation between the concurrent sentences for counts 3 and 5 and the sentence for count 4, and between the sentence for count 4 and the sentence for count 6. However, he did not demonstrate error in his Honour's approach by reference to any of the principles summarised by Hall J in XX. Count 4, penile/vaginal intercourse, was a significant escalation of the pattern of criminality demonstrated by the first three counts, and the 2 year accumulation could not be said to be inappropriate. The same must be said of count 6, anal intercourse, which his Honour clearly saw as the most serious of all the offences. The sentence for that count was accumulated upon the sentence for count 4 by 3 years, although it commenced 2 years after the expiration of the concurrent sentences for counts 3 and 5. Those sentences are concurrent with the sentence for count 4 to the extent of 1 year.
8. The measure by which his Honour accumulated the sentences was within the proper exercise of his discretion, and did not cause the sentencing process to miscarry. In answer to a question from the bench whether the total sentence would have been inappropriate if the sentences had been structured differently, Mr Ginges made it clear that there was no complaint of manifest excess. As he put it, if the total term had been passed as an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act, it would not "give rise to manifest excessiveness of the sentence as a ground of appeal."
9. I would reject this ground.

Subjective case

1. Mr Ginges acknowledged that his Honour had summarised the applicant's subjective case in some detail in his remarks on sentence. He submitted, however, that his Honour did not explain how he had taken that material into account and, in particular, did not appear to have regard to: the applicant's significant mental health problems, which were present during the offending period; his substance abuse and, in particular, his drug use which he described as "problematic" during the offending period; his dysfunctional upbringing, including his lack of experience of love, and the relevance of this to his offending; the likelihood that he had himself been sexually abused as a child and the impact that had on his offending; the evidence of his remorse.
2. As to the applicant's mental health, as noted above, his Honour summarised the material in the psychological report: his longstanding depression and anxiety, his attempted suicide, and the counselling he had undergone from time to time over the years for that condition and his drug abuse. Mr Ginges submitted that this material raised the familiar principles governing the relevance of mental health to sentence summarised by Sperling J in R v Hemsley [2004] NSWCCA 228 at [33]-[36]: in particular, that mental illness which contributes to the commission of an offence may reduce the offender's moral culpability and the need for denunciation of the offence, may moderate the consideration of general deterrence, and may make custody weigh more heavily upon the offender. However, there was nothing in the material before his Honour, including the psychological report, which raised any of those considerations. Certainly, there is nothing to suggest that mental illness had any bearing upon the applicant's longstanding pattern of offending.
3. The applicant's history of alcohol and, more particularly, drug abuse was also referred to by his Honour, together with his assertion that he had been affected by drugs or alcohol over the period of his offending. However, as the Crown prosecutor pointed out in written submissions, such material as there was about his substance abuse provided no explanation for his offending over the 4 year period, nor mitigate the gravity of his continuous abuse of the victim.
4. The applicant admitted being sexually attracted to the child. In my view, his Honour correctly recorded his history of depression and substance abuse as a relevant part of his background, to be taken into account along with his dysfunctional upbringing and the lack of affection he suffered during it.
5. His Honour did not mention the material, referred to at [19] above, about flashbacks raising a question whether the applicant himself had been the victim of sexual abuse. However, that material is so speculative that it is difficult to see how any weight could have been afforded to it. It seems that his Honour did not take it into account, an approach which was clearly available to him.
6. As to remorse, Mr Ginges argued that his Honour failed to indicate how he took into account the evidence of remorse from the psychological report and in the applicant's letter to his brother. This material, he said, met the requirements of remorse as a mitigating factor to be found in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act.
7. However, as I have said, his Honour did find "some evidence" of remorse in the psychological report. Ms Case reported his expression of remorse and his recognition of the detrimental effect of his behaviour upon the victim. However, the expression of remorse as it was recorded in the report, quoted at [18] above, was not entirely unqualified. He "guessed" that he thought his behaviour as abusive, adding that he also saw it "as love."
8. It is true that his Honour did not refer to the applicant's letter to his brother, which was also capable of being seen as evidence of remorse. However, plainly enough he did find a measure of remorse on the part of the applicant, and the fact that he did not refer to the letter does not convey to me that he failed to give the evidence of remorse the weight it deserved.
9. This ground also fails.

Standard non-parole period offences - counts 3 and 5

1. It remains to consider how this court should deal with his Honour's undoubted error in failing to pass a sentence with a non-parole period for each of counts 3 and 5. The options available to this court to deal with errors of that kind were considered by Johnson J in Hristovski v R [2010] NSWCCA 129, at [64]-[65]. In the present case the error is the subject of a ground of appeal, and it is appropriate that it be remedied.
2. It appears to me that the 3 year term his Honour fixed in respect of each offence is what he would have considered an appropriate non-parole period. Whether that is how a fixed term should be arrived at was a question raised, but not resolved, by RA Hulme J in Collier v R [2012] NSWCCA 213, at [56]-[62]. Nor need it be resolved here. I would propose that the 3 year term for each offence be treated as a non-parole period and that a balance of term, complying with the statutory proportion, be added to it. This is consistent with the approach of this court in Aguirre v R [2010] NSWCCA 115, at [33]-[36], [114]. I would re-sentence the applicant on each count to imprisonment for 4 years with a non-parole period of 3 years, dating from the day specified by his Honour. Both sentences would remain partly concurrent with the sentences on count 2 and count 4, and would leave the total sentence and effective non-parole period unchanged.

Orders

1. Accordingly, I would intervene only for the purpose of adjusting the sentences on counts 3 and 5. I would propose the following orders: (1) Leave to appeal is granted and the appeal is allowed. (2) The sentences on counts 3 and 5 are quashed and, in lieu, on each count the applicant is sentenced to a non-parole period of 3 years, commencing on 2 August 2014 and expiring on 1 August 2017, and a balance of term of 1 year, commencing on 2 August 2017 and expiring on 1 August 2018. (3) The appeal is otherwise dismissed.
2. RS Hulme AJ: I agree with the orders proposed by Hidden J and with his Honour's reasons.

Amendments 28 May 2015 - re Coversheet - under heading "Publication Restriction" - reason entered DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2015