229 A Crim R 337[2013] HCA 37
Dinsdale v R (2000) 202 CLR 321115 A Crim R 558[2000] HCA 54
Hili v The QueenJones v The Queen (2010) 242 CLR 520204 A Crim R 434[2010] HCA 45
House v The King (1936) 55 CLR 499[1936] HCA 40
Huynh v R (2008) 188 A Crim R 287[2008] NSWCCA 216
Johnson v The Queen (2004) 205 ALR 346[2004] HCA 15
Kentwell v The Queen (2014) 252 CLR 601(2014) 238 A Crim R 134[2014] HCA 37
Krivosic v R [2017] NSWCCA 167
Lowndes v The Queen (1999) 195 CLR 665[1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Mills v R [2017] NSWCCA 87
R v George (2004) 149 A Crim R 38[2004] NSWCCA 247
R v Morgan (1993) 70 A Crim R 368
Veen v R (No 2) (1988) 164 CLR 46533 A Crim R 230[1988] HCA 14
Wong v The Queen (2001) 207 CLR 584
Judgment (10 paragraphs)
[1]
Judgment
HOEBEN CJ at CL: I agree with Lonergan J.
PRICE J: I agree with Lonergan J and the orders proposed. The sentencing judge was entitled to give added weight to specific deterrence because of the applicant's prior sexual offending and paedophilic disorder. However, the undiscounted starting point of the sentence for count 2 of 9 years 4 months was well in excess of a sentence that could be justly imposed for the offence, the objective gravity of which was just below the mid-range and the maximum penalty was 10 years imprisonment.
LONERGAN J: The Applicant seeks leave to appeal with respect to a sentence of imprisonment imposed at the Sydney District Court on 1 July 2016 in relation to one of two counts of aggravated indecent assault.
[2]
The offences and aggregate sentence
The offences for which the Applicant was sentenced were committed in 2015 and 2012 respectively and involved the daughters of a friend of the Applicant. The Applicant pleaded guilty at the first opportunity at Penrith Local Court on 18 March 2016 to the following charges:
1. Count 1 - Between 1 and 30 June 2015, committing an act of indecency upon CWG, a person aged under 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of imprisonment for 10 years.
2. Count 2 - Between 1 January and 31 December 2012, committing an act of indecency upon TWG, a person aged under 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of imprisonment for 10 years.
Both offences carry a standard non-parole period of 8 years.
At the time of the commission of count 1, the victim was aged 15 years and the Applicant was aged 58 years. At the time of the commission of count 2, the victim was 10 years of age and the Applicant was aged 55 years.
In respect of count 1, his Honour Judge Buscombe sentenced the Applicant to a fixed term of 18 months imprisonment to commence on 26 November 2015 and to expire on 25 May 2017. No non-parole period was specified in respect of the sentence for this count.
In respect of count 2, involving TWG, the sentencing Judge sentenced the Applicant to 7 years imprisonment with a non-parole period of 5 years.
In respect of the two sentences, his Honour stated the commencement date for count 2 to be 26 November 2016 and to expire on 25 November 2023 with the non-parole period to expire on 25 November 2021. This approach reflects a 6-month concurrence of the two sentences such that the sentence for the total offending was, in effect, 8 years with a 6 year non-parole period.
[3]
Grounds of appeal
The notice of application for leave to appeal filed on 27 March 2017 relied on a single ground, namely that the sentence imposed for the offence committed against TWG (count 2) was manifestly excessive.
[4]
Facts of the offence
These facts are taken from the Agreed Facts tendered at the sentencing hearing.
The Applicant was born on 19 March 1957. He was a friend of the mother of TWG and CWG. The Applicant spent time at the family's home to socialise with the family and to assist the mother with computer work. The Applicant and the victims' mother had met through a local church. The mother knew the Applicant had served a sentence of imprisonment from 1991 to 1995 following his conviction for offences of child sexual assault. The mother had instructed the Applicant never to be alone with her children, not to babysit them, not to drive them anywhere, and not to go into their bedrooms.
Count 2 was the offence that occurred first in time. It occurred in 2012 when TWG was 10 years old. She had gone to bed wearing a nightie and underpants. She woke to find the Applicant sitting on the edge of her bed and tapping her on the vagina with his fingers. Her nightie had been pulled up to her waist and her underwear had been pulled slightly down. She rolled over and the Applicant left the room.
Count 1 occurred in June 2015 when CWG was home from school unwell. She was 15 years of age at the time, and fell asleep on a couch watching television. She woke up to feeling pressure on her chest and saw that the Applicant was sitting on the edge of the couch with both hands on her breasts on the outside of her clothing.
Both children disclosed these incidents to their father in September 2015. Both children were interviewed on 24 November 2015 and the Applicant was arrested on 26 November 2015. Whilst he declined to be interviewed, the Applicant was recorded as telling the police, "I did something silly". He also told the police that he was attracted to female children.
[5]
Proceedings on sentence and findings of the sentencing Judge
The Applicant relied upon a report of a psychologist, Ms Hopkins, dated 27 June 2016 which provided detail of the Applicant's educational, psychosexual and medical backgrounds, substance use and criminal history. The report of Ms Hopkins diagnosed the Applicant as having paedophilic disorder and that he was at a moderate risk of reoffending without appropriate intervention and treatment, but his recidivism needed to be re-assessed after engagement in treatment programs.
There was also in evidence a letter from the Applicant undated, a letter from Corrective Services noting the Applicant was housed in protective custody, as well as some sentencing statistics.
There were no oral submissions. Written submissions were tendered by both the Applicant and the Crown. The Crown submissions emphasised the need for general deterrence in dealing with child sexual offences as well as specific deterrence. Given the factors relevant to the offending including the young age of TWG and the nature of the offending, the Crown submitted that the offence would fall towards the middle of the range of this type of offending.
It was also submitted by the Crown that the Applicant was not a person of good character and that his criminal record, including convictions for similar offences, disentitled him to leniency.
The details of the previous convictions were before the sentencing Judge and were as follows:
1. Sexual intercourse with a child between the ages of 10 and 16;
2. Indecent assault on a person under the age of 16 (2 counts);
3. Aggravated sexual assault;
4. Committing an act of indecency.
and concerned the Applicant's 10-year-old foster daughter.
The Applicant pleaded guilty to each of the offences in the Local Court and was sentenced in the District Court at Penrith in October 1991. Following a successful severity appeal to this Court, he was sentenced to serve 5 years 6 months imprisonment with a non-parole period of 3 years 6 months.
The Applicant submitted before the sentencing Judge that the previous conviction should not be regarded as an aggravating feature increasing the objective seriousness of the offences in the current sentencing proceedings, particularly given they occurred in 1991. In respect of the offences, submissions were made in relation to objective seriousness considerations that the offence relating to CWG falls below the mid-range of objective seriousness for that type of offence. Although the offence involving TWG was conceded to be of "greater objective seriousness", it was submitted that the offence was of short duration, ceased as soon as the victim became awake, was not planned but was rather opportunistic, and the offence did not involve any coercion, threats or conduct that would cause fear to the victim.
[6]
Submissions on the Appeal
Counsel for the Applicant submitted that to establish a sentence as manifestly excessive, it is necessary for the offender to demonstrate that the sentence under challenge is "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. Given the sentencing Judge considered that the objective seriousness of the offence fell just below the mid-range, and taking into account the early guilty plea and the identified reduction of 25% for the utilitarian value of that plea, the sentence of 7 years imprisonment with a non-parole period of 5 years was excessive.
Counsel for the Applicant sought to illustrate this by comparison with sentences imposed upon other offenders for breaches of s 61M(2).
In reply, the Crown submitted that the sentence imposed on the Applicant was within the sentencing Judge's discretion. The Crown's submissions emphasised that the Court's consideration of the appeal is constrained by the fact that "it may not substitute its own opinion for that of the sentencing Judge merely because [it] would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion": Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; House v The King (1936) 55 CLR 499; [1936] HCA 40.
The Crown also submitted that the sentence needs to be demonstrated to be unreasonable or plainly unjust (Dinsdale v R (2000) 202 CLR 321; 115 A Crim R 558; [2000] HCA 54) in the context where there is no single correct sentence (Bugmy v The Queen (2013) 249 CLR 571; 229 A Crim R 337; [2013] HCA 37) and where judges at first instance are to be allowed as much flexibility in sentencing as in consonant with consistency of approach and as accords with the statutory regime that applied (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27] citing Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15 at [26]).
The Crown provided a counter analysis of the comparative cases put forward by the Applicant in an attempt to distinguish them from the type and nature of the Applicant's offending and the personal circumstances of the respective offenders in those cases.
The Crown observed (correctly) that, as a matter of principle, the use of comparative cases is of limited utility in assessing whether the sentence imposed in the present case is manifestly excessive. As stated in Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216, Johnson J with whom Alsop P and Price J agreed set out at [61]:
The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George (2004) 149 A Crim R 38 at 47 [48]-[49].
[7]
Decision
The sentencing Judge's characterisation of the offence involving TWG as "just below the mid-range" is not challenged on this appeal. What is challenged is that this assessment, combined with the stated 25% discount for the early plea, is not reflected in the sentence imposed for this offence of 7 years imprisonment with a non-parole period of 5 years.
The authorities are clear that this Court must not substitute its own opinion for that of the sentencing Judge merely because it may have exercised its discretion differently. However, the difficulty manifest in the Applicant's sentence for the offence involving TWG is that it is quite apparent that the sentence imposed does not reflect the sentencing Judge's own analysis of the objective seriousness when viewed against the legislative penalties and the stated discount for the early guilty plea. A sentence reflective of slightly below the mid-range of objective seriousness should result in something closer to the range of 5 years given the maximum penalty of 10 years. This penalty then needs to be further reduced to take into account the sentencing Judge's stated discount of 25% for the early guilty plea. A sentence of 7 years with a non-parole period of 5 years does not reflect the findings made by his Honour.
As stated in Mills v R [2017] NSWCCA 87 by RA Hulme J at [63]:
A complaint of manifest excess is a conclusion; it does not admit of lengthy exposition; and it is derived from an inference that there was "a failure properly to exercise the discretion which the law reposes in the court" below: Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 at [58]-[59].
Applying Mills, a lengthy exposition of analysis is not needed to see that there has been a failure properly to exercise the discretion which the law reposes in the court. Error has been established and the applicant will need to be resentenced.
[8]
Resentencing
It is necessary for the Court to exercise its sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601 at 617-8; 238 A Crim R 134; [2014] HCA 37 at [42]-[43]. As observed by RA Hulme J in Krivosic v R [2017] NSWCCA 167 at [61], it is open to the Court to act upon findings made by the primary Judge which were not challenged by the Applicant. I accept the findings made by the sentencing Judge set out in paras 23 to 32 of this judgment.
Further material tendered by the Applicant on this appeal comprised an affidavit of the Applicant affirmed on 5 May 2017 which deposes to a willingness to undertake programs to assist in reducing the risk of his reoffending, the difficulties of serving his sentence in protection, a lack of access to education and other programs in custody and a concern he holds regarding potential risk to him in less protected forms of custody. The Applicant also referred to his efforts to occupy himself in custody and that he does not have visitors because his parents live too far from the correctional facility in which he is held and they are elderly.
Other material tendered comprises an affidavit of the solicitor for the Applicant attaching case notes from the Department of Corrective Services which, in summary, observes that the Applicant is a quiet and compliant inmate held in the Special Area Management Protection, having moved at his request from incarceration as a "limited association" inmate.
None of this additional material has any particular persuasive role in relation to resentencing. No submission was made that any of the findings of the sentencing Judge as to subjective matters or special circumstances should be revisited by this Court and I see no reason to undertake that task. No submission was made that the degree of accumulation, with the sentence for count 1 determined by the Sentencing Judge, was in error.
The 25% reduction on account of the Applicant's early plea of guilty should remain. Accepting the sentencing Judge's findings relevant to sentence as set out in paragraphs 23 to 32, the sentence proposed for Count 2 is imprisonment for 5 years commencing 26 November 2016, to expire on 25 November 2021 with a non-parole period of 3 years commencing 26 November 2016 to expire on 25 November 2019.
This sentence reflects for both counts together a total term of imprisonment of 6 years which commenced on 26 November 2015 and will expire on 25 November 2021, with a non-parole period of 3 years associated with count 2 which commenced on 25 November 2016 and will expire on 25 November 2019.
[9]
Orders
I propose the following orders:
1. Leave to appeal allowed and the appeal against sentence upheld.
2. Quash the sentence imposed in the District Court on 1 July 2016 in respect of Count 2 on the indictment and in lieu, sentence the Applicant to imprisonment comprising a period of 5 years to commence on 26 November 2016 and expire on 25 November 2021 with a non-parole period of 3 years to commence on 26 November 2016 and expire on 25 November 2019.
3. The Applicant will become eligible for release on parole upon the expiration of his non-parole period.
[10]
Amendments
01 December 2017 - Removed certification post-script.
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: 01 December 2017
In respect of the assessment of the objective seriousness of the offence involving TWG, the sentencing Judge observed that this offence was the more serious of the two offences. He noted that both offences involved a breach of trust and occurred in the children's home, and that TWG was only 10 years of age at the time of the assault. He acknowledged that the assault involved limited force, but it did involve tapping on the vagina. He also found that the offence appeared on the facts to have been opportunistic "in the main", although it appeared the offender waited until the child had fallen asleep. The sentencing Judge assessed the objective criminality as just below the mid-range.
In terms of the offence involving CWG, the sentencing Judge concluded that it was opportunistic, appearing that the offender waited for the child to be asleep and that he placed his hands on the child's breasts but on top of her clothing. He noted that the child was considerably older, at 15 years of age, and that the duration of the offence appeared to be short and that in assessing objective seriousness, that offence was towards the bottom of the range of objective seriousness for such offending.
The sentencing Judge considered subjective features including the sentences of imprisonment for the previous offences and the psychologist's report.
The sentencing Judge noted as a matter of "considerable concern" in terms of his prospects of rehabilitation that he masturbates to thoughts of children, has a sexual interest in female children, and meets the criteria for paedophilic disorder, non-exclusive type, sexually attracted to females.
The sentencing Judge noted the expression of remorse that the Applicant had made to the psychologist and the psychologist's view that the Applicant posed a moderate risk of re-offending across the sexual domain on the basis that he had not received treatment. The sentencing Judge noted the early guilty plea and determined a 25% discount for the utilitarian value of that early plea.
In respect of a submission by the Crown that the prior offences amounted to an aggravating feature pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing Judge determined that given the gap in the offending, the principles discussed in Veen v R (No 2) (1988) 164 CLR 465; 33 A Crim R 230; [1988] HCA 14 apply. His Honour did however conclude that the prior offending, coupled with the content of the psychologist's report, meant that there needed to be a component of specific as well as general deterrence in the sentence imposed. He also found that the criminal record for the prior offending disentitles the Applicant to leniency.
In respect of the submission that the offences were committed in the victim's home and involved an abuse of trust, his Honour noted that he had regard to those considerations when assessing the objective seriousness of the offending and had done so to avoid double counting.
His Honour noted that the Applicant's prospects of rehabilitation were "no more than reasonable" and that there was evidence of remorse independent of the guilty plea in the statements to the psychologist and the letter to the Court.
In determining the non-parole period, his Honour noted that he had departed from the standard non-parole period because of his assessment of the objective seriousness involved in the offences and the guilty pleas.
His Honour declined to find special circumstances and noted that there should be some degree of accumulation because the offences were discrete offences involving different victims, and in having regard to the principles of totality.
The specific determination in respect of the count concerning TWG was stated to be as follows:
I impose a sentence consisting of a non-parole period of 5 years and a balance of term of 2 years. That is a total sentence of 7 years imprisonment. That sentence commences on 26 November 2016 and expires on 25 November 2023. He is eligible to be released to parole on 25 November 2021.