Sausa v R

Special circumstances

1. The reference to "special circumstances" in the sole ground of appeal is to that expression as it is found in s 44(2B) of the Sentencing Act. Section 44(1) relevantly provides that, when sentencing an offender to imprisonment for an offence, the court must first set the non-parole period, being that portion of the sentence which the offender is required to serve in custody. The applicant received an aggregate sentence under s 53A of the Sentencing Act. Section 44(2A) of that Act provides that a court imposing an aggregate sentence of imprisonment in respect of two or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. Section 44 (2B) of the Sentencing Act provides as follows: (2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (Emphasis added.)
2. Section 44(2B) is in similar terms to s 44(2) which applies when a sentence is being imposed for one offence. Most of the relevant principles derived from the decisions of this court concerning s 44(2) of the Sentencing Act apply to s 44(2B). As I observed in CM v R [2020] NSWCCA 136 at [26]: "The requirement in s 44(2) that, unless 'special circumstances' are found, the 'balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence' has been variously described for convenience as either 'the one third rule' or the 'statutory ratio.' I propose to refer to it as the statutory ratio. In practical terms, if the one third rule is applied, the non-parole period would not be less than 75% of the head sentence. To put this another way, the statutory ratio between the non-parole period and the head sentence, in the event that special circumstances are not found, would not be less than 75%/25%."

Background

1. The Crown conceded that it was open to this court to find that error had been established and that the appeal should be allowed. That concession should be accepted for reasons I will set out below.
2. No complaint was made about the length of the aggregate sentence; only the proportion of it that the applicant would be required to serve in custody. On that basis, it was the joint position of the parties that, given the nature of the error, the court would not need to exercise the sentencing discretion afresh consistent with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell"). Rather, this court could resolve this appeal by varying the statutory ratio consistent with the intention of the sentencing judge. I am satisfied that this is an appropriate way to dispose of this application in the circumstances. On that basis, it is not necessary to set out the facts, subjective case and remarks on sentence in any detail.
3. The applicant was born on 17 March 1967. The applicant and the victim's mother had an affair from 2011 and had a son together in 2012. The applicant, the victim's mother, their son and the victim moved in together to a unit in Turramurra in about May 2016. From July 2016, the applicant would stay at the unit about 5 days per week.
4. In late 2016, the applicant touched the victim's breast on the outside of her clothing (Form 1). A few days later, the applicant put his hand on the victim's breast under her shirt and over her bra (sequence 2). In the winter of 2017, during a car ride with the victim's mother and the victim, the applicant touched the victim's genitals with his fingers underneath a blanket that covered the applicant and the victim (sequence 11). In September 2018, the applicant touched the victim under her underwear, put his fingers inside her genitals and performed cunnilingus on her (sequence 11). The victim recalls that there were additional occasions, not subject to any charges, during 2017 and 2018 that were of a sexual nature.
5. The offences came to light when the victim's mother read an entry in the victim's diary.
6. The applicant was 54 years old at the time of the sentencing. He had no convictions. He migrated to Australia from Peru when he was 22 years old. He had an extensive history of employment. He pleaded guilty in the Local Court and made a number of admissions when interviewed by police. The offences were committed on occasions when he was intoxicated.
7. The Crown conceded in written submissions and again orally before the sentencing judge that it was open to her Honour to find special circumstances in this matter on the basis that it was the applicant's first time in custody.

Remarks on sentence

1. After setting out the agreed facts, the sentencing judge considered the objective and subjective case, the submissions of both parties and the victim impact statement. Her Honour found the offences to be at the mid-range of objective seriousness. She noted that the offender pleaded guilty in the Local Court and had no prior criminal record. Her Honour accepted that he was sorry for the offence, had always worked hard and had contributed financially to his family.
2. Her Honour noted the report of Dr Jonathan O'Dea tendered on behalf of the applicant on sentence. He explained the offending by the fact that the applicant was suffering from marital and financial stressors at the time which led to significant alcohol abuse. Her Honour then extracted the following portion of Dr O'Dea's report in her remarks: "Mr Sausa would likely benefit from having the opportunity to explore, with a suitably qualified forensic psychiatrist or psychologist, his sexuality in general and the sex offending behaviour in particular, including further exploration of any potential paedophilic component to his overall sexuality."
3. Her Honour went on to note that the observations of Dr O'Dea that further investigation is required should be a matter for Probation and Parole to consider. Her Honour then observed the following: "Taking all those matters into account, I can make a finding that the offender has reasonable prospects of rehabilitation, provided only that he undertakes the further investigations suggested by Dr O'Dea and that he undertakes further assistance with respect of his alcohol abuse. It may well be the case that he should not drink alcohol at all."
4. Her Honour went on to address the various submissions made on behalf of the applicant including the following: "It is submitted on behalf of Mr Sausa that special circumstances should be found for the reasons that he has no previous convictions and this is his first experience of incarceration. It is suggested that Mr Sausa is not a risk of reoffending. For reasons that I set out above I simply cannot make that finding and there is no evidence to support it."
5. Later in her Honour's reasons, she stated the following: "He has no criminal record and is entitled to some leniency as a result of that. I propose to make a finding of special circumstances on the aggregate sentence that will be imposed."
6. At the conclusion of her Honour's sentencing remarks, she stated the following: "HER HONOUR: Again, the aggregate term of six years, a non parole period of four years and six months, and a balance of one year and six months. Mr Sausa will be eligible for release on parole on 5 December 2024. Any questions? [CROWN]: No, your Honour. HER HONOUR: Mr [defence counsel]? [DEFENCE COUNSEL]: I have no questions, your Honour."
7. Regrettably, the fact that the aggregate sentence imposed by her Honour did not reflect the finding of special circumstances was not drawn to her attention by the parties at that time.

Submissions

1. The applicant submitted that the sentencing judge erred in failing to give effect to her finding of special circumstances. It was submitted that the aggregate sentence imposed by the sentencing judge did not adjust the length of the non-parole period from the statutory ratio under s 44 of the Sentencing Act: the non-parole period of 4 years and 6 months is 75 percent of the 6 year head sentence. The result of this is that her Honour's finding of special circumstance was not given effect.
2. It was submitted that the error was one of "inadvertence or miscalculation" on the part of the sentencing judge, citing Caristo v R [2011] NSWCCA 7 at [36]; CM v R [2013] NSWCCA 341 at [40]; MD v R [2015] NSWCCA 37 at [42]-[43]. It was submitted that the court should intervene so that it does not "make a mockery" of the finding of special circumstances: Sutton v R (2004) 41 MVR 40; [2004] NSWCCA 225 at [30] (Howie J).
3. The Crown's submission was that the relevant question for this court is whether the overall result reflects what the sentencing judge specifically intended or whether it was a result of inadvertence on this calculation: CM v R [2013] NSWCCA 341. Despite this, it was accepted that if this court was satisfied that the sentencing judge did make a finding of special circumstances it is clear that such a finding is not reflected in the aggregate sentence imposed.
4. The Crown submitted that upon a finding of special circumstances any variation to the statutory ratio would be modest in order to reflect the finding that it was his first time in custody. Counsel for the Crown on appeal accepted, in response to a question from Wilson J, that there is authority for the proposition that the fact that it is an offender's first time in custody is not necessarily a matter capable of amounting to a special circumstance. Despite this, given that the concession had been made before the sentencing judge, counsel for the Crown did not wish to be heard on that question further.

The concession should be accepted

1. I have set out the relevant portions of her Honour's sentencing reasons above. I am satisfied that her Honour expressly made a finding of special circumstances. Despite this, the aggregate non-parole period is 75% of the aggregate head sentence.
2. It is pertinent to note that in relation to the three indicative sentences her Honour allowed for a ratio of 75% between the non-parole period and head sentence for sequence 11 and a ratio of 74% for the remaining two counts.
3. Given that I am satisfied that her Honour's intention is not reflected in the aggregate sentence she imposed I am satisfied that error has been established. Accordingly, I would uphold the sole ground of appeal.
4. The next question is whether this appeal can be disposed of by varying the statutory ratio or whether, contrary to the position of the parties, this court is required to exercise the sentencing discretion afresh.

"Kentwell" error

1. Counsel for the applicant submitted that it would be open to the court on resentencing the applicant to maintain the aggregate head sentence and vary the non-parole period to reflect the intention of the sentencing judge. The Crown accepted that this was an appropriate way to dispose of the appeal.
2. Usually, if error is established in the sentencing process the court is required to resentence the applicant afresh: Kentwell. Despite this, there will be some appeals in which the nature of the error is such that a variation can be made to the sentence to correct the arithmetical error below.
3. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 ("Lehn") the court sat a five judge bench to consider the scope of Kentwell and, in particular, what sort of discrete errors do not require the court to re-sentence afresh. The court observed that when re-sentencing an applicant where the error is in respect of "a discrete part of the process," it is still necessary for this court to form its own view of the appropriate sentence. As Bathurst CJ, with whom Beazley P and Schmidt J agreed, stated at [68]: "… It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence…"
4. Despite this, it was noted by the court in Lehn that there may be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. An example provided by Bathurst CJ at [72] was when an arithmetical error has occurred, the extent of which can be properly determined.
5. I am satisfied that the error established in this matter is an arithmetical one the extent of which can be properly determined such that it is not necessary for this court to exercise the sentencing discretion afresh.

Re-sentence

1. The basis upon which the Crown conceded at first instance that special circumstances exist in this matter was that it would be his first experience of incarceration. As stated above, there is some doubt as to whether the fact that it is an offender's first time in custody alone is sufficient to attract such a finding. In Collier v R [2012] NSWCCA 213 McClellan CJ at CL (with whom RA Hulme and Schmidt JJ agreed) observed the following at [36]: "For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special.
2. More recently, R A Hulme J (with whom Bell P (as his Honour then was) and Johnson J agreed) observed the following in Singh v R [2020] NSWCCA 353 at [79]: "Finding special circumstances upon the basis that the sentence will represent an offender's first time in custody is a dubious proposition: Collier v R [2012] NSWCCA 213 at [35]-[36] (McClellan CJ at CL). If a person has no prior convictions and has therefore not been imprisoned before, that is relevant to the setting of the overall sentence. If there is some additional reason why that fact bears upon the non-parole period such that it warrants some further amelioration it should be stated. Otherwise, what might be involved is mere double counting which should be eschewed: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ)."
3. Despite doubts raised in these and other cases as to whether the mere fact that it is an offender's first time in custody warrants a finding of special circumstances, this court has approved a finding of special circumstances on the basis of an offender's first time in custody in conjunction with other features: Leslie v R [2009] NSWCCA 203 at [3 7]; R v Little [2013] NSWCCA 288 at [3 0].
4. In the present appeal, the sentencing judge did not make a finding that the applicant posed no risk of reoffending. On his own admission he had committed these offences whilst intoxicated. Furthermore, her Honour noted the observations by Dr O'Dea that the applicant may benefit from the opportunity of a further exploration of any potential paedophilic component to his overall sexuality. Her Honour was of the view that his risk of reoffending was to some extent dependent on further investigation in that regard.
5. I am satisfied that it is appropriate to vary the statutory ratio in the applicant's case based on the combination of this being his first experience of incarceration and the additional basis to assist in his rehabilitation in relation to the potential need to abstain from alcohol and to investigate the matters raised by Dr O'Dea. These were matters expressly acknowledged by her Honour although she did not include them in her conclusion that special circumstances were established.
6. Given that the head sentence remains the same, so too do the indicative sentences that I have already set out above.
7. I would propose the following orders: 1. Leave to appeal is granted. 2. The sentence imposed by Judge Syme on 22 October 2021 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 6 years imprisonment commencing on 6 June 2020 and expiring on 5 June 2026 with a non-parole period of 4 years expiring on 5 June 2024.
8. CAVANAGH J: I agree with N Adams J.

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