RJP v Regina

Court of Criminal Appeal (NSW)|2006-03-24|Before: Hidden J, Kirby J, Hislop J

JUDGMENT OF: Hidden J at 1; Kirby J at 2; Hislop J at 11

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal law - Sentencing - Sexual assaults on children - Mitigating factors - Totality - Sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - ss 61D, 66A, 67, 76 Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(g)

Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Dar (unreported NSWCCA 2 October 1997) R v Hearne 124 A Crim R 451

PARTIES: Applicant - RJP Respondent - Regina

COUNSEL: Applicant - Mr L.M.B. Lamprati SC Respondent - Mr C.J.G. Smith

SOLICITORS: Applicant - Mr D. McMillian (solicitor) Respondent - Director of Public Prosecutions (New South Wales)

1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/2267

HIDDEN J KIRBY J HISLOP J

1 HIDDEN J: I agree with the orders proposed by Hislop J, substantially for his Honour's reasons. However, I would respectfully adopt the reasoning of Kirby J in relation to ground 1, as I would his Honour's additional observations in relation to ground 2. 2 KIRBY J: In this matter I have had the advantage of reading the judgment of Hislop J. I agree with the orders proposed (that leave be granted but the appeal be dismissed), substantially for the reasons provided by his Honour. I should like to add certain additional comments. 3 In respect to ground 1, the applicant complains that the sentence imposed on count 1 of the second indictment failed to have regard to the youth of the applicant at the time of the commission of the offence. That count was a charge of carnal knowledge of a girl under the age of 10 years, being the applicant's sister who was then aged 9 years. At the time the applicant was approximately 15 years (there being some uncertainty as to the date of the offence). 4 Having pleaded guilty before Solomon DCJ, the applicant was interviewed by the Probation and Parole Service. At the time of the interview he was 52 years old and recalling the events 37 years earlier. The Probation and Parole Report included the following statement: "In relation to the offences that occurred prior to him turning 14 years of age, he stated that he was unaware that his behaviour towards his sister was wrong. He claimed that by 14 years of age he began to realise that his behaviour was not acceptable." 5 I accept that the reference to the applicant being 14 was an error and that he was differentiating between his state of mind before count 1 and his appreciation of the unacceptable nature of his conduct as he got older. 6 In sentencing on count 1 on the second indictment, his Honour was obliged to take account of the offences on the Form 1. Count 1 itself was plainly a serious offence. It carried a maximum penalty of life imprisonment (s 67 Crimes Act 1900) (since repealed). It involved penile penetration of a girl aged nine years. Nonetheless, the applicant's immaturity, he then being 14 or 15 years old, was relevant. His immaturity was likely to have affected his ability to exercise self control. 7 The second and third offences on the Form 1, however, involving the same victim, were committed by the applicant when he was older. The third offence, for instance, was committed when he was about 18 years old. By then, he well knew his behaviour was unacceptable, as he acknowledged to the Probation and Parole Service. Although I believe the sentence of seven years with a non parole period of three years was high, given the immaturity of the applicant at the time of that offence, nonetheless, taking account of the offences on the Form 1 and the criminality they involved, the sentence was, I believe, within the sentencing range. 8 In respect of ground 2 (the application of s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999), the complaint made against the sentencing Judge was that he was bound to find that the applicant was unlikely to reoffend. 9 Certainly there was, on this issue, material which may have justified such a finding. As mentioned, the applicant was, at the time of sentencing, a man aged 52 years. He was being sentenced in 2005 in respect of conduct which had occurred between 1968 and 1987. He had also been sentenced in Queensland in respect of a similar offence in 1989. He was released in December 1991. There was no evidence of further offending behaviour between 1991 and 2005. 10 On the other hand, the nature of the offences, the length of time over which they had been committed, and the absence of a psychological report providing insight into the applicant's mind, made it unsurprising that his Honour should refrain from making the finding which it is suggested he was obliged to make. Like Hislop J, I find no error upon that basis.

Introduction 11 On 7 March 2005 the applicant pleaded guilty on indictment to counts that:

(1) Between 25 November 1968 and 24 November 1969 he did carnally know JT, a girl under the age of 10 years, namely 9 years, contrary to the Crimes Act 1900 s 67 (since repealed). The maximum penalty for the offence at the time of its occurrence was life imprisonment.

(2) Between 10 May 1974 and 1 August 1974 he did assault JT and at the time of such assault did commit an act of indecency on JT she then being under the age of 16 years, namely 14 years contrary to the Crimes Act 1900 s 76 (since repealed). The maximum penalty for the offence at the time of its occurrence was 5 years imprisonment. 12 The applicant also requested that the sentencing Judge take into consideration on count (1) a further three charges of indecent assault of JT contrary to the Crimes Act 1900 s 76, on a Form 1 under the Crimes (Sentencing Procedure) Act 1999. These offences occurred when JT was aged 9, 10 and 12 respectively. The maximum penalty for each offence at the time of its occurrence was 5 years imprisonment. 13 JT was the applicant's sister. The applicant was born on 25 April 1953. He was thus aged 15 or 16 at the time of the first offence. That offence involved indecent assault culminating in cunnilingus and penile vaginal intercourse. The charges taken into account in sentencing on count 1 essentially involved vaginal touching. 14 Count (2) occurred when the applicant engaged in digital penetration of JT and caused her to commit fellatio upon him. The applicant was aged 21 at the time of this offence. 15 On the same date the applicant pleaded guilty on a further indictment to counts that:

(1A) Between 1 October 1984 and 31 December 1984 he had sexual intercourse with TS without her consent knowing she was not consenting she being then under the age of 16 years namely 6 years contrary to the Crimes Act s 61D (since repealed). The maximum penalty for the offence at the time of its occurrence was 10 years imprisonment; and (2A) Between 1 January 1987 and 4 May 1987 he had sexual intercourse with TS, a child then under the age of 10 years, namely 8 years contrary to the Crimes Act 1900 s 66A (since amended). The maximum penalty for the offence at the time of its occurrence was 20 years imprisonment. 16 TS was a cousin of the applicant. The offences in counts (1A) and (2A) involved digital penetration. 17 The applicant also requested that the sentencing Judge take into consideration on count (2A) a further seven charges on a Form 1. These charges related to two offences of sexual intercourse without consent and five charges of indecent assault by the applicant against TS and two other female cousins. The victims were aged from 5 to 9 years at the time of the offences. Three of the offences involved digital penetration, the remainder vaginal touching and rubbing, on one occasion coupled with breast touching and on another occasion requiring the child to rub the applicant's penis. The offences occurred between October 1973 and December 1986. 18 On 6 May 2005 Solomon DCJ sentenced the applicant as follows: (a) On count (1A) imprisonment for 3 years to date from 7 March 2005 and expire on 6 March 2008. (b) On count (2A) imprisonment for 5 years to date from 7 March 2005 and to expire on 6 March 2010. The offences against the cousins listed in the Form 1 were taken into account on this count. (c) On count (1) imprisonment for 7 years to date from 7 March 2010 and expire on 6 March 2017 with a non parole period of 3 years to date from the commencement of the sentence and expire on 6 March 2013. The Form 1 offences against JT were taken into account on this count. (d) On count (2) imprisonment for 2 years to date from 7 March 2010 and expire on 6 March 2012.

The result was that the applicant effectively was sentenced to 12 years imprisonment from 7 March 2005 to 6 March 2017 with a non parole period of 8 years commencing on 7 March 2005 and expiring on 6 March 2013. 19 The applicant seeks leave to appeal against sentence.

The sentencing Judge's findings 20 His Honour made the following findings in his remarks on sentence: (1) The applicant committed sexual offences against his sister when she was aged between 9 and 14 years of age and when he was aged between 15 and 21 years of age. He committed sexual offences against his cousins when they were aged between 5 years of age and 8 years of age and when he was aged between 21 years of age and 33 years of age. (2) The offences are serious offences as is reflected in the maximum penalties. (3) The applicant treated his victims in a cruel and callous way. He exploited his position in the family by breaching the trust reposed in him as a member of the family in order to systematically sexually abuse his sister and cousins over a long period of time for his own selfish sexual gratification. (4) The applicant's behaviour regarding his sister and cousins has had tragic consequences. Each of the victim's lives has been severely impacted upon as a result of the applicant's offences with the probability that the victims will suffer psychological sequelae from the applicant's behaviour long into the future. (5) The applicant has two other sexual assault offences on his record. On 15 August 1985 he was placed on 12 months probation for the offence of aggravated assault of a sexual nature and on 7 December 1989 he was sentenced to 4 years imprisonment for two offences of indecent dealing with a boy under the age of 14 years. (6) The applicant has not re-offended since his release from custody in 1991. His Honour was unable to make a finding as to the likelihood or otherwise of the applicant re-offending. (7) The probation and parole service pre sentence report indicates the applicant has expressed feelings of disgust and sadness in relation to his behaviour and expressed a willingness to participate in extensive sexual rehabilitation programs. (8) The applicant has a good employment record. (9) The applicant is entitled to a 20% discount on sentence for his guilty pleas.

The Application for Leave to Appeal 21 There are four proposed grounds of appeal. They are discussed hereunder.

Ground One - The sentencing Judge erred in failing to have regard to the youth of the Applicant at the time of the commission of the offences in respect of the victim JT. 22 The applicant was 15 or 16 years of age at the time of the commission of the first offence and 21 at the time of the commission of the last offence against JT. 23 His Honour was aware of the applicant's age at the time of the offences as he made reference to it when reciting the agreed facts in his remarks on sentence. However he made no specific reference to the effect, if any, he accorded that fact in sentencing the applicant on count (1). 24 The youth of an offender may be relevant in the sentencing process. It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation - R v Dar (unreported NSWCCA 2 October 1997). Also, where youthful immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years - R v Hearne 124 A Crim R 451 at 458 [25]. This is because, with maturity, may come a recognition of the unacceptable nature of the behaviour and a greater ability to exercise self control. 25 A probation and parole pre sentence report which was tendered stated: In relation to the offences that occurred prior to him turning 14 years of age, he stated that he was unaware that his behaviour towards his sister was wrong. He claimed that by 14 years of age he began to realise that his behaviour was not acceptable.

The applicant, at the time he was interviewed for the report, was 52 years of age and recalling events which had occurred many years before. It was submitted on appeal that the reference to age 14 may have been an error as the applicant had not been charged with any offence prior to age 15 or 16. This may have been the case, however no steps were taken to correct any supposed error at the sentencing hearing and the applicant chose not to give evidence. It seems to me unlikely the applicant was not aware prior to the commission of the first offence with which he was charged that such behaviour was not acceptable. 26 In any event I would infer from the pattern of repeat offending over many years that any immaturity by reason of his age at the time of the first offence was not a significant contributing factor to the offence as, with admitted knowledge that his behaviour was unacceptable, he persisted with such behaviour for many years thereafter. It is notable that counsel for the applicant on the sentencing hearing, in his written and oral submissions, advanced no argument that there should be any mitigation of penalty by reason of the applicant's age at the time of the first offences. 27 The offence under count 1 was a significant offence which carried a maximum penalty of life imprisonment. The offences which were taken into consideration on that count on the Form 1 were also serious. In my opinion the sentence imposed on this count was within the range open to the sentencing Judge. Ground Two - The sentencing Judge erred in the application of s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. 28 Section 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 provides: (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (g) the offender is unlikely to re-offend, 29 His Honour in his remarks on sentence said: The offender has not re-offended since his release from custody in 1991. I do not have the benefit of any psychologist report, so am unable to make a finding as to the likelihood or otherwise of the offender re-offending. 30 The applicant submits that notwithstanding the absence of a psychologist's report his Honour was obliged to make a finding favourable to the applicant as to the likelihood of him re-offending. 31 I do not agree. The subject offences had occurred over a period of many years. There had been other offences dealt with in the Queensland courts. His Honour noted the applicant had not re-offended since his release from custody in 1991. However the applicant chose not to give evidence. No report from a psychiatrist or psychologist was tendered on his behalf. The probation and parole service pre-sentence report was quite guarded in this regard. It noted the applicant had undergone a sex offender's program while serving a custodial sentence in Queensland but concluded: Although this program appears to have given him some insight into the dynamics of this behaviour, he still appears to have difficulty acknowledging full responsibility for his offending and would benefit from further participation in intensive programs. His expressed willingness to participate in further treatment is positive. 32 Whilst it may have been open to his Honour to make such a finding he was not bound to do so and in my opinion no error has been demonstrated in this regard.

Ground Three - The sentencing Judge erred in the application of the principle of totality. 33 His Honour was required by the principles set out by the High Court in Pearce v The Queen (1998) 194 CLR 610 to impose an appropriate sentence for each of the offences of which the offender had been found guilty and then to consider questions of concurrence, cumulation and totality. 34 In my opinion his Honour imposed appropriate sentences for each of the offences to which the applicant had pleaded guilty, particularly when regard is had to the serious additional matters which were taken into account. 35 The indictment in respect of JT related to offences in 1968 and 1974. The offences on the Form 1 relating to JT occurred between 1968 and 1972. The sentences imposed in relation to the two counts in respect of JT were concurrent. 36 The indictment in respect of TS related to offences in 1984 and 1987. The offences on the Form 1 relating to TS occurred in 1985 and 1986. The sentences imposed in relation to the counts in respect of TS were concurrent. 37 His Honour accumulated the sentences imposed on the indictment in respect of JT and the sentences imposed on the indictment in respect of TS. This, in my opinion, was appropriate. The offences were quite separate and distinct and occurred at least ten years apart. 38 The fact that there were offences on the Form 1 relating to offences against other cousins between 1973 and 1978 which were taken into account on the indictment relating to TS does not demonstrate error by his Honour in accumulating the sentences as he did. Ground Four - The sentence is manifestly excessive

39 As is apparent from the nature of the offences and the sentencing Judge's remarks on sentence these were extremely serious offences. The objective gravity of the offences and the need for general deterrence and retribution are such as to justify the overall sentences imposed by his Honour. This Court will intervene only if it be shown that the sentencing Judge was in error and then only if it forms a positive opinion that some other, more lenient, sentence is warranted in law and should have been passed. In my opinion the applicant has failed to demonstrate error on the part of his Honour or that some other, more lenient, sentence was warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

Orders 40 I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed. **********

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