SDS v R

Court of Criminal Appeal (NSW)|2009-05-29|Before: Giles JA, Buddin J, Harrison J

JUDGMENT OF: Giles JA at 1; Buddin J at 2; Harrison J at 25

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - sexual intercourse with a child under the offender's authority (x4) - pattern of sentencing for offences committed in 1997 - whether sentences manifestly excessive - whether the sentencing judge gave adequate weight to applicant's mental condition - whether sentencing judge failed to find good prospects of rehabilitation and unlikelihood of re-offending

Foster v R (NSWCCA unreported 14 July 1998) Leach v R [2008] NSWCCA 73 MJR v R (2002) 130 A Crim R 481 Moon v R (2000) 117 A Crim R 497 R v CJB [2000] NSWCCA 161 CASES CITED : R v DJM (2002) 136 A Crim R 269 R v Gould [1999] NSWCCA 177 R v Hemsley [2004] NSWCCA 228 R v JCW [2000] NSWCCA 209 R v LTP [2004] NSWCCA 109 R v PBH (NSWCCA unreported 2 May 1996) R v RJW, (NSWCCA unreported, 2 August 1994)

PARTIES: SDS (Applicant) Regina (Respondent)

COUNSEL: C Loukas (Applicant) J Dwyer (Crown) (Respondent)

SOLICITORS: S O'Connor (Solicitor Legal Aid Commission) (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/6072

GILES JA BUDDIN J HARRISON J

WEDNESDAY 10 JUNE 2009 SDS v R Judgment 1 GILES JA: I agree with Buddin J. 2 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court following his pleas of guilty to four counts of having sexual intercourse with a child aged between 10 and 16 years who at the time was under his authority. The offences, which constituted contraventions of s 66C(2) of the Crimes Act 1900, all occurred between 1 April and 3 July 1997. At that time the maximum penalty for each of the offences was imprisonment for 10 years. Counts 1, 2 and 4 involved penile/vaginal intercourse whilst count 3 involved an act of fellatio. In respect of count 1, the applicant was sentenced to a fixed term of 3 years imprisonment to commence on 24 January 2007, the date upon which he went into custody. In respect of count 2, the applicant was sentenced to a fixed term of 3 years imprisonment to commence on 24 January 2008. In respect of count 3, the applicant was sentenced to a non-parole period of 2 years with a total term of 3 years imprisonment to commence on 24 January 2009. In respect of count 4, the applicant was sentenced to a non-parole period of 1 year with a total term of 3 years imprisonment to commence on 24 January 2010. The effective non-parole period is thus one of 4 years with a total term of imprisonment of 6 years. The applicant is eligible for release on parole on 23 January 2011. 3 An agreed statement of facts was tendered before the sentencing judge. It revealed that the victim, who was 14 at the time and in Year 8 at high school, was the applicant's sister in law. The applicant, who was aged 23 at the time that the offending conduct commenced, lived with the victim's sister and their infant daughter. The victim moved in with them for a period of about 10 months because of problems she was experiencing at home. She told police that the offences occurred on a number of separate occasions over a period of about 2 months and that they occurred just before she moved back to her parents' home. She was able to recall the details of four such occasions which were reflected in the counts in the indictment. 4 It is unnecessary to describe the offences in any further detail although is to be observed that the applicant did not use a condom on any of the occasions on which he had penile/vaginal intercourse with the victim. On one such occasion the victim told the applicant that she thought that she was pregnant and expressed concerns that "now everybody is going to find out". The applicant replied "I want you to go to the next school social and tell Tina [his wife] afterwards that you slept with some-one". The consequences which the offences had upon the victim were described in considerable detail in a victim impact statement which was prepared on her behalf by a sexual assault counsellor. 5 The sentencing judge was provided with information about the applicant's background in two pre-sentence reports and in a report prepared by a psychologist, Dr Peter Nelson. The applicant, who was 34 at the time of sentence, also gave evidence during the course of the sentence hearing. The applicant's father died when he was young. He had a distant relationship with his alcoholic mother who is reported to have been abusive towards him. The applicant left school at the end of Year 11. As I have said, the applicant was married at the time of the offences. That relationship eventually broke down because of the applicant's abuse of alcohol and illicit drugs. The result was that the applicant made little effort to find employment which caused the couple to experience serious financial problems. The applicant has had no contact with either his ex-wife or his daughter for more than 10 years. He has since had two other relationships of short duration. For many years leading up to his incarceration, the applicant had led an isolated existence. He had only worked intermittently, mainly as a cleaner. However he had not worked at all for about 5 years prior to his arrest. During that time he was on a disability pension because of various issues which related to his mental health. The evidence revealed that the applicant had suffered from depression since his early teens. Dr Nelson reported that the applicant had a long history of substance abuse disorder. He also expressed the opinion that he has "a mood disorder with high levels of depression, anxiety and dysthymia". He said that the applicant also suffered from borderline personality disorder, a feature of which was a history on the part of the applicant to self-harm. There was other evidence that the applicant had been admitted to psychiatric facilities in both 2003 and 2005 in Queensland. 6 The applicant had a minor criminal record which the sentencing judge quite properly disregarded. His Honour concluded that the applicant was genuinely remorseful and that he had self-harmed because of the shame that he felt arising from his having committed these offences. The applicant was extended a discount of 25% from the otherwise appropriate sentence to reflect his early pleas of guilty. His Honour found "special circumstances" because it was the applicant's first custodial sentence and because of "his need [for] assistance on parole [given] the matters referred to in Dr Nelson's report". 7 The notice of appeal was expressed in the following terms: 1 That the sentence is manifestly excessive is based upon the following propositions: a. That there was inadequate weight given to the evidence on sentence of the applicant's mental condition. b. That the sentencing judge failed to determine, and failed to find, that the applicant had good prospects of rehabilitation and was unlikely to re-offend despite evidence that established each point. c. The starting point for the total effective sentence was 8 years and this was excessive in the sense of it constituting an error of law.

The sentence was manifestly excessive 8 The sentencing judge indicated that but for the discount for the pleas of guilty the overall sentence would have been a period of imprisonment of 8 years. It was submitted that such a starting point was too high. Counsel referred to statistics maintained by the Judicial Commission which were said to demonstrate that the sentences imposed upon the applicant were either at, or towards the top of the range of sentences imposed for offences of a similar kind. However, counsel acknowledged that because the sample of cases was very small, the statistics were of limited utility. Moreover, it was also recognised that care needs to be taken in sentencing for historical offences and that regard must be had to the sentencing pattern which prevailed at the time of the relevant offending: see Moon v R (2000) 117 A Crim R 497; MJR v R (2002) 130 A Crim R 481. 9 In an endeavour to assist the court to arrive at a more informed view as to that sentencing pattern, the parties referred to seven decisions in which sentences for offences against s 66C(2) of the Crimes Act had been considered by this Court. In R v RJW, (NSWCCA unreported, 2 August 1994) the respondent pleaded guilty to 10 charges pursuant to s 66C(2) which involved acts of fellatio committed upon two boys who were aged 13 and 14 respectively. The activities in each instance were consensual. An appeal by the Crown was allowed and sentences consisting of minimum terms of 2 years imprisonment with an additional term of 8 months were substituted for minimum terms of 12 months imprisonment with an additional term of 4 months which had been imposed at first instance. 10 In R v PBH (NSWCCA unreported 2 May 1996) the respondent pleaded guilty to one offence of penile/vaginal intercourse, laid pursuant to s 66C(2), which was committed upon his daughter who was then aged 14 years 9 months. As a result of the incident, his daughter became pregnant and in due course gave birth to a child. The respondent, who had no prior convictions, was re-sentenced following a successful Crown appeal to a minimum term of 2 years 6 months imprisonment with an additional term of 10 months which was substituted for a minimum term of 18 months imprisonment and an additional term of 18 months which had been imposed at first instance. 11 In Foster v R (NSWCCA unreported 14 July 1998) the applicant pleaded guilty to three counts laid pursuant to s 66C(2) which involved acts of digital penetration, cunnilingus and penile/vaginal penetration respectively. The events all took place on the one occasion. The victim, who was aged 15 years 9 months, was the applicant's step-daughter. The incident had occurred in circumstances in which the victim had taken ill after drinking wine and had gone to bed naked. The court, after having had regard to the victim's age and to the fact that the offence was an isolated one, allowed the appeal and substituted a minimum term of 2 years imprisonment with an additional term of 1 year for the minimum term of 3 years imprisonment with an additional term of 1 year which had been imposed at first instance. 12 In R v Gould [1999] NSWCCA 177, the applicant pleaded guilty to one count laid pursuant to s 66C(2) which involved an act of fellatio, to an offence of indecent assault which involved touching the outside of the victim's vagina and to two offences on a Form 1 of carnal knowledge involving penile/vaginal penetration. The offences, which were committed against the applicant's step-daughter, continued over a four year period during which time the victim was aged between 12 and 15. The offences were not isolated instances. The applicant had pleaded guilty, was a person of prior good character and had a number of health problems. An appeal against a minimum term of 5 years imprisonment with an additional term of 2 years 6 months was dismissed. 13 In R v CJB [2000] NSWCCA 161, the applicant pleaded guilty to seven counts laid pursuant to s 66C(2) and one count of carnal knowledge. The victim was the applicant's step-daughter. The offending conduct lasted for a number of years during which time the victim was aged from about 10 until she was 16. Most of the offences involved penile/vaginal penetration. As a result of two of the offences, the victim became pregnant and gave birth on each occasion to a child. Some time after the applicant and the victim's mother split up, the victim moved in to live with the applicant. She continued having a relationship with him for several years after she turned 16. The application for leave to appeal against an effective minimum term of 7 years imprisonment with an additional term of 3 years was described as one which "entirely lacks substance" and was refused. 14 In R v DJM (2002) 136 A Crim R 269 the applicant pleaded guilty to two counts laid pursuant to s 66C(2). The victim, who was the niece of the applicant's wife, was just under the age of 15 at the time. She had had a relationship with the applicant, which involved kissing and cuddling him, prior to the date of the offences. On the day in question the victim and a friend had gone fishing with the applicant. The offences involved digital penetration and fellatio respectively. The applicant was of prior good character and suffered from a mental disorder which impacted upon the appropriate sentence. An appeal against a sentence of 2 years imprisonment with a non-parole period of 1 year was dismissed. 15 In R v LTP [2004] NSWCCA 109 the applicant was convicted after trial of one offence laid pursuant to s 66C(2). It involved penile/vaginal penetration of his daughter who was then aged 12. The applicant, who was a man of prior good character and had a good employment record, was on compensation for work related injuries at the time of the offence. This court substituted a sentence of 6 years imprisonment with a non-parole period of 4 years 6 months for the original sentence of 8 years imprisonment with a non-parole period of 6 years which had been imposed. 16 Due allowance must be made for the fact that the sample of cases to which the court was referred was somewhat limited. Furthermore, there are obvious differences between the various cases to which reference has been made and the present one. Nevertheless, an analysis of those decisions confirms my own preliminary view that the sentences imposed in the present case did not exceed the legitimate range of the sentencing judge's discretion. 17 Clearly the applicant was able to rely upon a number of favourable subjective features. On the other hand, the objective gravity of his offending conduct was significant. Far from being isolated incidents, his offences represented a repeated course of conduct: see R v JCW [2000] NSWCCA 209 [at par 121]. Three of the four offences involved unprotected penile/vaginal penetration which exposed the victim to the risk of pregnancy and other potential problems. In the circumstances, I would reject the contention that the sentences were manifestly excessive.

The sentencing judge failed to give adequate weight to the applicant's mental condition 18 I referred earlier to the evidence concerning the applicant's mental condition. Of that evidence, the sentencing judge observed that "he has had some mental health issues in the past. They stay to some extent with him, as are set out in Dr [Nelson's] report, which is very helpful. He is somebody who does need help from the appropriate authorities and I am confident that it will be afforded to him." A little later his Honour observed that "I bear in mind in reaching the sentence I have the medical evidence about the offender, but nevertheless it still remains, in my view, a serious matter as far as the victim is concerned." 19 The applicant drew attention to the decision of this court in R v Hemsley [2004] NSWCCA 228, in which Sperling J said: Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43]. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]. A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]. 20 See also Leach v R [2008] NSWCCA 73 at [par 10]. 21 It was expressly conceded on behalf of the applicant that as there was little in the evidence which could have established a link between the applicant's condition and his offending behaviour, the first consideration referred to in Hemsley had little application to the present case. Nor, it was submitted, was the fourth consideration of any relevance. On the other hand it was submitted that the second and third considerations were relevant and that they had apparently been given insufficient weight. 22 It is true that the sentencing judge's reasons were somewhat economical. The extent of the applicant's mental condition was a matter of some complexity given the interplay between his history of illicit substance abuse, his variable compliance with medication and his neglect, at times, of his mental health. The issue of the applicant's mental condition required a delicate balancing of the various competing sentencing considerations. It is apparent that the sentencing judge was alive to that requirement and that his Honour sought to give effect to it. I am not persuaded that his Honour, in imposing the sentence which he did, failed to give appropriate weight to this aspect of the matter.

The sentencing judge's failure to find that the applicant had good prospects of rehabilitation and was unlikely to re-offend 23 The applicant submitted that the sentencing judge had erred in failing to find that each of these matters had been established. Attention was drawn to the applicant's plea of guilty and his expressions of remorse, to the fact that he had a negligible criminal record and in particular to the fact that he had not committed other offences of a similar kind to those in respect of which he stood for sentence. The sentencing judge expressly took each of those matters into account. The applicant also referred to the opinions expressed by Dr Nelson and the author of the pre-sentence report which were to the effect that the applicant represented only a low risk of recidivism. The sentencing judge was not obliged uncritically to accept those opinions. Indeed the sentencing judge would have been amply justified in being somewhat sceptical about the applicant's prospects of rehabilitation in view of his unresolved mental health problems, his inability to work and his isolated lifestyle whilst in the community. But I would not, in any event, be disposed to conclude that the sentencing judge failed to take these matters into account or that he failed to give them such weight as they deserved. 24 I propose that leave to appeal be granted but that the appeal be dismissed. 25 HARRISON J: I agree with Buddin J. **********

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