SAT v R

Court of Criminal Appeal (NSW)|2009-06-30|Before: Grove J, Howie J, Buddin J

The applicant's subjective case 24 The sentencing judge was furnished with information about the applicant by way of a pre-sentence report and a psychological report prepared by Ms Anne McGregor, as well as from evidence which the applicant herself gave. The applicant was born in May 1967 and was accordingly 38 when the offence giving rise to count 1 was committed, and 39 when she committed the remaining offences. The applicant was raised in a stable family environment and is one of four siblings. However, she only maintains a relationship with one of them. She was a high achiever at high school both academically and otherwise. After completing her Higher School Certificate she commenced, but did not finish a university degree. After leaving university, she entered the workforce where she remained in regular employment for a period of about 10 years. She worked in a number of positions in the hospitality industry, including in a managerial capacity. She left the workforce when R. was about 2 and, at the time of the offences, was a full-time single parent. 25 The applicant's mother died in 1991, an event which had a profound impact upon her. The evidence reveals that as a result the applicant developed significant "abandonment issues". In the months leading up to June 2006, the applicant's father became very ill. It would appear that it fell to the applicant to assume much of the burden for providing him with support. His illness is said to have also caused her a high degree of emotional distress. 26 The evidence revealed that the applicant has experienced great difficulties in forming intimate relationships and that she has had very few such relationships of any significance. She had a two year relationship when she was a teenager which she terminated because she found her partner to be too controlling. Shortly after her mother died, she met her ex-husband who is the father of her two children. Her ex-husband was a heavy drinker and was reported to have mentally abused her. That relationship lasted for about 12 years but the applicant eventually terminated it because she said that she was "sick to death of being miserable". Since her incarceration, the applicant has had no contact of any kind with her children who now reside with their father. 27 The applicant described herself as being a "lonely, overweight woman who had a propensity to try to make others happy, even at her own expense". The sentencing judge accepted that the applicant was lonely and that she had few friends. It was against that background that the applicant began to use the internet to seek out friendships. In due course she came into contact with DC. The applicant admitted that she had hoped that the relationship with him might develop into an intimate one. That apparently did not occur even after he came out to Australia to stay with her in the latter part of 2006. In any event, it would appear that the applicant succumbed to pressure from DC to involve herself in these very serious crimes because of her desire to win his affection. 28 The applicant has, for all and intents purposes, a clear criminal history. The only previous matter recorded against her was an offence of mid-range PCA committed in 1990 and, as the sentence judge correctly observed, it was of "no consequence" so far as the present proceedings were concerned. 29 The sentencing judge nevertheless observed that: [t]he fact that she is a person of otherwise good character is of little assistance to her. All too often those who have no prior criminal antecedents commit these types of offences. It is their otherwise good behaviour which often prevents detection. They hide behind the façade of respectability, confident that if the children were to come forth and complain they would not be believed because their mother is a person who is otherwise held in high regard by others. 30 On 24 August 2007 the applicant pleaded guilty to counts 1, 5, 6, 7 and 8 in the Local Court and was committed for sentence to the District Court. At that stage they were the only matters with which she had been charged. On 28 August 2007 the applicant provided a statement to police in which she set out the details of the evidence which she was prepared to give against DC. In due course she signed an undertaking to that effect. In her statement, she described most, if not all, of the matters which were set out in the agreed statement of facts which, as I have said, was tendered at the sentence hearing. She also admitted matters which she had previously denied, including the conversations with DC in June 2006 in which he had asked her to involve her daughters in the sexual acts which gave rise to counts 2-4. On 13 December 2007 the applicant appeared in the District Court for sentence. Just prior to that appearance, the Crown informed her legal representative that it was going to present an ex-officio indictment against her which contained, in addition to the five matters to which she had already pleaded, the three further counts which eventually became counts 2 - 4. After briefly conferring with her legal representative, the applicant pleaded not guilty to those three additional counts whilst adhering to her pleas to the original five matters. The applicant's legal representative then went on leave. Upon his return from leave, he arranged a conference at the gaol with the applicant and the informant. Immediately upon being shown that part of the Crown brief which contained images of the events which gave rise to counts 2-4, the applicant instructed her solicitor to enter pleas of guilty to those counts as well. The Crown was then advised that the applicant had changed her pleas. These events occurred some two to three weeks before the scheduled trial date. The sentencing judge extended to the applicant a discount of 25% for her pleas of guilty to counts 1 and 5-8 and a discount of 20% for her pleas of guilty to counts 2-4 upon the basis that they were not entered at the earliest opportunity. Having considered all the material, and having heard the applicant give evidence at the sentence hearing, Her Honour concluded that "she is truly remorseful and contrite". 31 Although the applicant was initially less than forthright about what she had done, the sentencing judge accepted that the applicant "has developed insight into the potential harm that she has caused. ….and [that] she will need assistance in minimising her risk of relapse and re-offending post release". It was in that context that her Honour made a finding "that with supervision and counselling the risk of re-offending is minimal". 32 The sentencing judge allowed the applicant a further discount of 20% for her assistance to the authorities. The assistance related to evidence which she indicated she was prepared to give against DC. The sentencing judge described the assistance as being "significant" and acknowledged that the applicant's motivation for providing it was entirely genuine. Her Honour also accepted the applicant's evidence that she "needs to stop [DC] from doing this to anyone else [and that she] needs to live with herself knowing that she has done everything within her power to stop him". 33 In the upshot, DC ended up pleading guilty to his involvement in these offences. The applicant nonetheless indicated her preparedness to honour her undertaking should a dispute arise about the facts upon which DC was to be sentenced. The significance of her assistance, as the applicant acknowledged, was to remove from circulation a person who was described as "an on-line predator". Her Honour accepted that the applicant was on protection as a consequence of her decision to assist the authorities. The fact that she was known to a Correctional Services officer as well as the nature of the offences which she had committed provided additional reasons for her being in that form of custody. 34 The evidence before the sentencing judge revealed that the applicant had been progressing well since her incarceration. She had not incurred any institutional charges and had been working in trusted positions as a sweeper in the reception area and in the mental health support unit. She was described by custodial staff as being "a model inmate who relates well to staff and other inmates". 35 The sentencing judge made a finding of "special circumstances" because, as her Honour explained, "[t]here is clearly a need for lengthy and supervised parole to ensure attendance at appropriate counselling and to minimise the risk of relapse" and because this was her first time in gaol. 36 The applicant relies upon the following grounds of appeal:

2 (i) The sentencing judge erred in treating the applicant's previous good character as irrelevant.

(ii) The sentencing judge erred in making a generalisation that evidence of previous good character should not be a mitigating factor in child sexual assault cases.

3 The sentencing judge, having found the offender's risk of re-offending to be minimal, erred in law by emphasising the need for specific deterrence.

4 A different, less severe, sentence is warranted and ought to have been imposed.

The appeal 37 The nub of the applicant's submission in respect of Ground 1 can be briefly stated. It was contended that since an overall effective discount of 40% was extended to the applicant for her pleas of guilty and assistance to the authorities, it followed that the sentencing judge must have had in mind a starting point of approximately 23 years imprisonment in order to arrive at the effective total term of imprisonment of 13 years 9 months. Even allowing for the fact that the applicant had committed offences of the utmost gravity, it was argued that such a starting point was manifestly excessive. I accept that submission and I am fortified in doing so by the Crown Prosecutor's concession to that effect made during oral argument. 38 The court was provided with summaries of a number of cases which were said to bear comparability to the present case. However, given that the facts of the present case are highly unusual, and particularly since only one of the cases to which the court was referred concerned a female offender, I am of the view that those authorities are of only limited assistance. That said, the impression which I have gained from them serves to confirm my view that the sentences in the present case are indeed manifestly excessive. 39 Having arrived at that conclusion, it follows that the court should proceed to re-sentence the applicant. In those circumstances it is unnecessary to consider the remaining grounds of appeal. For the purposes of re-sentencing, I have had regard to the contents of an affidavit sworn by the applicant. In it she candidly acknowledges that being on protection has had only a "limited impact" upon her. Indeed she has been able to maintain her employment as a sweeper. She has also managed to complete the Tertiary Preparation Program through the University of Southern Queensland and achieved good marks in doing so. She has now enrolled to undertake a Bachelor of Arts degree (majoring in English literature) by correspondence with the same university. She says that she was distressed when she was unable to attend the funeral of her father who died after she went into custody. She also describes the pain associated with being ostracised from her family. She expresses the hope that she may, in time, be able to re-establish a relationship with her children and the rest of her family. However, she recognises that she requires on-going professional assistance to enable her to address her underlying problems. 40 In re-sentencing the applicant it is of course necessary to have regard to the various principles which inform the sentencing process including the maximum penalties which have been prescribed for the various offences in question. Consideration must be given to all the circumstances in which the offences on the indictment, as well as the three Form 1 offences, occurred. As the mother of two of the victims and as an adult who was in a position of authority in relation to the third, the offences which the applicant committed involved a very significant breach of trust on her part. See R v BJW (2000) 112 A Crim R 1 [at par 20]. The victims were subjected to abuse in the sanctity of their own home, a place where they were entitled to feel safe and secure. It is also necessary to have regard to the number of victims, and to their ages, although it is important to recognise that the age of the various victims is, in most instances, an element of the offence: see generally R v AJP (2004) 150 A Crim R 575 at 585; and MLP v R (2006) 164 A Crim R 93 [at paras 18-22]. 41 Clearly enough the offences giving rise to counts 2-4 are the most serious. Although it makes little difference in the overall assessment of the applicant's criminality, it may be accepted that despite the fact that she instructed the victims as to what they were to do, she did not personally interfere with them. The offences were not accompanied by any violence and nor was there any penetration of the sexual organs of the victims. Furthermore, it appears that the applicant participated in these activities only after a degree of persistence over a considerable period of time on the part of DC. Those requests came from a person upon whose friendship the applicant placed a high premium. By the same token the offences could hardly have been said to have occurred spontaneously. 42 Whilst it is true, so far as the offence giving rise to count 1 is concerned, that the applicant ultimately desisted in making overtures towards the victim, she did so only after first having offered the victim inducements to participate and after then having threatened her. So far as count 8 is concerned, the applicant deleted the images after she had sent them to DC. However, once she had sent them to him she had no control over what he might do with them, even if she may have believed or perhaps hoped, that he too would delete them once he had viewed them. 43 On the other hand, there are a number of factors upon which the applicant is entitled to rely which serve to significantly ameliorate the otherwise appropriate sentence. The applicant is entitled to a substantial discount for her pleas of guilty and assistance to the authorities. In my view the applicant should receive the same overall effective discount of 40% which was provided to her by the sentencing judge. I would also extend an additional measure of leniency to the applicant for her expressions of remorse. The applicant is also entitled to call in aid, in accordance with well-settled principles, her prior good character. For a discussion of the relevant authorities see R v Gent (2005) 162 A Crim R 29 [at paras 45-69] per Johnson J. See also Kite v R [2009] NSWCCA 12 [ at para 19); R v Woods [2009] NSWCCA 55 [at para 65]. 44 I accept the sentencing judge's conclusion that so long as she responds satisfactorily to supervision, the applicant is at "minimal risk" of re-offending. I would also confirm the finding of "special circumstances" for the reasons given by the sentencing judge. 45 There is one other matter that needs to be considered. In respect of counts 2-4 the sentencing judge made the following observations: These are offences contrary to the provisions of s 66A of the Crimes Act , offences which attract maximum penalties of twenty-five years imprisonment. Offences contrary to s 66A of the Crimes Act attract standard non-parole periods of fifteen years imprisonment following upon a guilty verdict after trial for offences failing within the mid range of objective seriousness. 46 Her Honour characterised the offences as falling within the mid-range of objective seriousness. Her Honour then observed that the pleas of guilty "and the fact that the offences are ones of aiding and abetting are matters which may amount to reasons for not imposing the standard non-parole period". It may be inferred that her Honour had those considerations in mind when she imposed sentence. 47 Neither in written submissions nor in oral argument did the applicant challenge the sentencing judge's conclusion that the standard non-parole period provisions applied to the present offences. On the other hand the Crown did raise the issue and sought to rely upon this court's decision in Hosseini v R [2009] NSWCCA 52 as providing support for the conclusion that the standard non-parole provisions do apply to offences of aiding and abetting. The court there decided that the standard non-parole period provisions applied to an offence of "knowingly take part" in the manufacture of a large commercial quantity of prohibited drugs. 48 It was in that context that the Court requested that the parties provide supplementary written submissions upon the issue. In Hosseini (supra) Price J, (with whom Hodgson JA and James J agreed), placed particular reliance upon the fact that the section referred to in the table of standard non-parole period was a section which dealt with both 'supply/manufacture' and 'knowingly take part in supply'. His Honour said: In my opinion, the words within the brackets in the Table items do not identify or limit in any way the offence to which the standard non-parole period applies. The offence to which the standard non-parole provisions applies is identified by the section of the statute which is found opposite the standard non-parole period in the particular Table item. [at par 48] 49 In those circumstances I am not persuaded that Hosseini provides any particular assistance in resolving the present issue. 50 As counsel for the applicant pointed out there is no reference in the table of standard non-parole periods to ss 345-51 of the Crimes Act which are the provisions which attach liability to 'aiders and abettors' and other offenders whose liability is ancillary in nature. By reason of those provisions such offenders are nevertheless exposed to the same maximum penalty as the principal offender. The same considerations also however apply to persons who attempt or conspire to commit substantive offences. An accessory before the fact can be charged, pursuant to s 346 of the Act, as a principal. See generally King v the Queen (1986) 161 CLR 423. 51 It is to be observed that this court has held that the standard non-parole period provisions do not apply to offences of attempting to commit substantive offences other than offences of attempted murder: DAC v R [2006] NSWCCA 265. In arriving at that decision the court took into account a number of considerations including the fact that the Attorney-General, when introducing the standard non-parole period legislation, specifically referred to the fact that offences of attempt were excluded from its reach. This court has also held that the provisions do not apply to offenders charged with conspiracy: Diesing & Ors v R [2007] NSWCCA 326. In that case the parties conceded that it was an error for the sentencing judge to have applied the provisions to offences of that type and the court, without any further analysis, intervened and proceeded to resentence those offenders. That said it may well be that different considerations apply to offences of attempt and conspiracy, which of their very essence are preliminary in nature. 52 There are however two decisions of this court in which the issue has arisen. In DJB v R, R v DJB [2007] NSWCCA 209, the Court had to deal with a Crown appeal against sentence. That offender was charged, inter alia, with two offences of aggravated sexual intercourse without consent pursuant to s 61J of the Crimes Act. With respect to one of those charges, DJB was charged as having aided and abetted his 14 year old son, NB to have intercourse with a 14 year old female TE, who had been drugged with Diazepam. With respect to the other, he was charged with having himself had intercourse with TE. The court proceeded upon the basis that the standard non-parole period applied to each of the s 61J offences and indeed one of the grounds upon which the Crown relied was "the failure to impose sentences for two offences under s 61J in accordance with the standard non-parole period provisions of the Crimes (Sentencing Procedure) Act 1999". In upholding that ground of appeal Price J, with whom McClellan CJ at CL and Hidden J agreed, said:

A separate and careful consideration of counts 2 and 3 [the s61J counts] could not have reasonably led to the characterisation of these offences as falling below the mid-range of objective seriousness. The respondent initiated the sexual assault by his son, which constitutes the second offence. His active encouragement included removing the then helpless TE's pants and those of NB who was heavily intoxicated. Without the respondent, this offence would not have happened. Although he was to be sentenced as an aider and abettor, the respondent was dominant in the commission of the offence and his culpability was substantially more than that of his 14-year-old son. He then removed his son and commenced having sexual intercourse with the victim himself….(at para 100). 53 No doubt his Honour had in mind the following passage in GAS & SJK v The Queen (2004) 217 CLR 198, in which the High Court observed that: … However, as the Court of Appeal pointed out in the present case, it is not a universal principle that the culpability of an aider and abettor is less than that of a principal offender, … A manipulative or dominant aider and abettor may be more culpable than a principal (at [23]). 54 In R v Merrin [2007] NSWCCA 255 a Crown appeal against the inadequacy of sentence was upheld. Some of the counts involved allegations that that offender had aided and abetted offences of aggravated break and enter and steal. The court again proceeded upon the basis that the standard non-parole provisions applied to the offences of aiding and abetting. 55 It is pertinent to observe that in neither DJB nor Merrin was any issue raised as to whether the standard non-parole period provisions did in fact apply and presumably in those circumstances there was no occasion for the court to consider the question of principle which presently arises. 56 The principles which are to be applied in cases of ancillary or accessorial liability are not without their difficulties. The High Court provided a comprehensive analysis of them in Osland v The Queen (1998) 197 CLR 316 especially per McHugh J at 341-351. That analysis includes a discussion of the concept of joint criminal enterprise and common purpose. The factual scenario which arose in GAS & SJK (supra) provides one such illustration of the difficulties which can arise. There two offenders broke into the victim's premises. During the course of the incident the victim was killed. As the Crown was unable to prove to the requisite standard which of the offenders was responsible for the death, each offender was treated as an aider and abettor and not as the principal in the first degree. See also Mohan v The Queen [1967] AC 187. None of those complexities were addressed in the supplementary written submissions. Accordingly, in my view, the issue which has been raised remains to be authoritatively determined. That said, I see no reason for present purposes at least, to depart from the approach taken in DGB (supra) and Merrin (supra). In any event, I have no hesitation in accepting the submission advanced by counsel for the applicant that there were a number of reasons, mainly related to the subjective features of the applicant's case, why the standard non-parole period had a substantially reduced significance in the process of determining the appropriate sentences in the present case. That is so even allowing for the fact that the offences may properly be characterised as falling within the mid-range of objective seriousness. 57 In structuring the sentences now to be imposed, it is convenient to take the same approach which the sentencing judge adopted. That is to say, I would order that each of the sentences in respect of counts 2-8 should be concurrent with one another but be partially cumulative upon the sentence in respect of count 1. I would do so because although the sexual assault offences and the child pornography offences involved separate criminal activities, they were all interrelated and had the same ultimate purpose which was the facilitation by the applicant of the exploitation of her own children for the sexual gratification of another person. 58 I propose the following orders:

Quash the sentences imposed in the District Court and in substitution therefore impose the following sentences:

(a) in respect of count 1, sentence the applicant to a fixed term of imprisonment of 2 years to commence on 11 December 2006 and to expire on 10 December 2008.

(b) in respect of count 5, sentence the applicant to a fixed term of imprisonment of 3 years to commence on 11 December 2007 and to expire on 10 December 2010.

(c) in respect of count 6, sentence the applicant to a fixed term of imprisonment of 3 years to commence on 11 December 2007 and to expire on 10 December 2010.

(d) in respect of count 7, sentence the applicant to a fixed term of 2 years 6 months to commence on 11 December 2007 and to expire on 10 June 2010.

(e) in respect of count 8, sentence the applicant to a fixed term of 2 years 6 months to commence on 11 December 2007 and to expire on 10 June 2010.

(f) in respect of count 3, sentence the applicant to a non-parole period of 6 years to commence on 11 December 2007 and to expire on 10 December 2013 with a total term of 9 years imprisonment to expire on 10 December 2016.

(g) in respect of count 4, sentence the applicant to a non-parole period of 6 years to commence on 11 December 2007 and to expire on 10 December 2013 with a total term of 9 years imprisonment to expire on 10 December 2016.

(h) in respect of count 2, and taking into account the matters on the Form 1 document, sentence the applicant to a non-parole period of 6 years to commence on 11 December 2007 and to expire on 10 December 2013 with a total term of imprisonment of 9 years 6 months to expire on 10 June 2017.

(i) The applicant will be eligible for release to parole on 10 December 2013. The total effective sentence consists of a non-parole period of 7 years with a total term of imprisonment of 10 years 6 months.

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.

DAC v R [2006] NSWCCA 265 Diesing & Ors v R [2007] NSWCCA 326 DJB v R, R v DJB [2007] NSWCCA 209 GAS & SJK v The Queen (2004) 217 CLR 198 Kite v R [2009] NSWCCA Hosseini v R [2009] NSWCCA 52 King v the Queen (1986) 161 CLR 423 CASES CITED : MLP v R (2006) 164 A Crim R 93 Mohan v The Queen [1967] AC 187 Osland v The Queen (1998) 197 CLR 316 R v AJP (2004) 150 A Crim R 575 R v BJW (2000) 112 A Crim R 1 R v Gent (2005) 162 A Crim R 29 R v Merrin [2007] NSWCCA 255 R v Woods [2009] NSWCCA 55

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (10)

Cited By (4)