SENDY, Ian William v R

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986

Hejazi v R [2009] NSWCCA 282 R v Borkowski [2009] NSWCCA 102 CASES CITED : R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Sullivan v R; Skillin v R [2008] NSWCCA 296

PARTIES: Ian William Sendy (App) The Crown (Resp)

COUNSEL: S Corish (App) P Leask (Resp)

SOLICITORS: Legal Aid Commission (App) Solicitor for Public Prosecutions (Resp)

IN THE COURT OF CRIMINAL APPEAL 2007/7778

BASTEN JA FULLERTON J McCALLUM J

18 DECEMBER 2009 IAN WILLIAM SENDY v R JUDGMENT 1 BASTEN JA: I agree with the orders proposed by Fullerton J and with her Honour's reasons. 2 FULLERTON J: This is an application for leave to appeal against sentences imposed in the District Court at Griffith on 7 February 2008 in respect of four counts on indictment and four offences charged by way of Court Attendance Notices issued under the Criminal Procedure Act 1986. The applicant also asked that four further offences be taken into account on a Form 1 in accordance with the operation of s 32 of the Crimes (Sentencing Procedure) Act 1999. 3 The eight offences for which the applicant was sentenced were committed between July 2006 and January 2007 and involved multiple acts of indecency and larceny and two offences of breaking and entering with intent. The four offences of larceny on the Form 1 were each committed on nominated dates between November 2006 and January 2007. All offences had either a sexual element or a sexual dimension in the way in which they were committed.

4 Pleas of guilty to each of the four counts on the indictment were entered in the District Court on 18 October 2007 on arraignment. On 9 May 2007 the applicant was committed for trial in respect of each of these offences and each of the offences ultimately dealt with on the Form 1. The pleas of guilty to the offences in the Court Attendance Notices were entered on 6 February 2008 in the Local Court at Narrandera and were brought before the sentencing judge by arrangement with the Local Court with a view to having all matters disposed of in the one sentence proceeding. 5 The sentencing judge applied a discount of 25 per cent to the sentences imposed on each of the offences charged in the Court Attendance Notices, and a 15 per cent discount to the sentences imposed on each of the counts on the indictment. The differentiation in the discount was accounted for on the basis that the pleas of guilty on indictment were entered after a committal for trial, albeit before a trial date was fixed. The grounds of appeal 6 The applicant submitted that the sentencing judge was in error in differentiating between the utilitarian value of the pleas of guilty in this way and, that if consideration had been given to the circumstances in which the pleas came to be entered in the District Court, the applicant would have been entitled to a discount of 25 per cent in the calculation of sentence on each count on the indictment. The Crown submitted that his Honour was entitled to take the approach he did having regard to the different timing of the pleas of guilty and further, to the extent that the applicant's submissions to this Court offer any explanation for the lateness or the delay in entering the pleas on indictment, that the issue was not ventilated before the sentencing judge. For that reason alone, so it was submitted, this Court could not be satisfied that his Honour's assessment of the value of the pleas of guilty disclosed error.

7 The applicant also submitted that the sentencing judge erred in his approach to the sentence imposed on count 2 on the indictment when he noted that the applicant was on bail at the time he committed that offence when that was not the case, a matter which he apparently treated as a feature of aggravation under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

8 The Crown conceded the error but submitted that when viewed in the context of his Honour's assessment of the seriousness of that particular offending (on any view the most serious offence in the course of offending for which he was sentenced), and the fact that a standard non-parole period of 5 years applied to that offence pursuant to Division 1A of Part IV of the Crimes (Sentencing Procedure) Act, the erroneous reference to the offence having been committed on bail did not have any material bearing on the sentence imposed. 9 In the course of the hearing of the appeal the applicant sought and was granted leave to add a further ground of appeal. The Crown did not oppose leave being granted. The additional ground concerned the application of s 44(2) of the Crimes (Sentencing Procedure) Act. It was submitted that the sentencing judge erred in setting a balance of term in excess of one third of the non-parole period on counts 2 and 3 on the indictment in the absence of a finding of special circumstances as required by s 44(2) of the Crimes (Sentencing Procedure) Act. 10 The Crown submitted that despite the fact that his Honour took into account a statutory feature of aggravation in the calculation of sentence for count 2 when this was not available, and even were there error in the approach to valuing the pleas of guilty on each of the four counts on the indictment or in applying s 44 of the Crimes (Sentencing Procedure) Act, this Court would be satisfied that no other sentence for any of the four counts on indictment is warranted in law in accordance with s 6(3) of the Criminal Appeal Act 1912. The Crown also submitted that when regard is had to the accumulation of the sentences for counts 2 and 3, the effective non-parole period should not be reduced given the seriousness of the offending overall and the extended time frame over which the offences were committed.

11 Although the applicant's grounds of appeal were limited to a challenge to the sentences imposed on the four counts on the indictment, it is necessary to summarise the facts as they relate to the entire course of offending in order to gain an appreciation of the factual complex with which his Honour was concerned and the structure of the sentences imposed. The offences

12 The first offence in time was an act of indecency contrary to s 61N(1) of the Crimes Act 1900. It was the first of four offences charged by way of a Court Attendance Notice. On 19 July 2006 at Balranald in the early evening the applicant walked towards a young girl who was playing in the front yard. When he was about 40 metres from her he exposed his penis. He then walked across the road towards the house, along the footpath and out of sight. The child reported what had occurred to her mother and that she had been scared. 13 The next offence in time was also laid contrary to s 61N(1) of the Crimes Act. It was the second of four offences charged by way of a Court Attendance Notice. It occurred a few days after the first offence, also in a suburban street in Balranald in the early evening. On this occasion the applicant approached a six year old girl in her front yard. He called her over to the fence whereupon he lifted up his coat and exposed his penis. Again the child reported what had occurred to her mother and the police were contacted. 14 The applicant was arrested in December 2006 and charged with both offences, together with two further acts of indecency contrary to s 61N(1) committed in October and November 2006, also charged by way of Court Attendance Notices. He was granted bail. The October offence was committed when the applicant masturbated in the presence of three young girls in a playground in Balranald and the offence in November when he masturbated in the direction of a six year old girl who was waiting for the bus, also in Balranald. 15 The sentencing judge imposed fixed terms of between 8 and 12 months for each of these offences against a maximum of 2 years imprisonment and ordered partial accumulation. These sentences are not the subject of any challenge. 16 Throughout the period from 16 October to 18 November 2006 (ie within the time frame encompassed by his commission of the acts of indecency) the applicant was engaged in the conduct charged as count 1 on the indictment, namely a charge of larceny contrary to s 117 of the Crimes Act for which a maximum period of 5 years imprisonment is provided. The victim of the larceny was a 17 year old schoolgirl who had recently moved to Balranald. The applicant apparently became infatuated with her and, after watching her through the front window of her home on repeated occasions, including when she was undressing, stole underwear from her clothesline. A fixed term of 15 months was imposed for this offence.

17 On 17 November 2006 the applicant committed an aggravated break and enter with intent to commit a serious indictable offence contrary to s 112(2) of the Crimes Act. That offence attracted a standard non-parole period of 5 years pursuant to Division 1A of Part IV of the Crimes (Sentencing Procedure) Act against a statutory maximum penalty of 20 years imprisonment. It was charged as count 2 on the indictment. It also involved the same 17 year old schoolgirl, although on this occasion, after the applicant watched her talking with friends outside her home before she retired for the night, he entered her bedroom through the locked rear door of the house. He then pulled his trousers down, removed his penis and demanded that she masturbate him. She refused, after which he grabbed her and tried to hold her down. She screamed alerting her housemates. The applicant ran from the house. He was arrested for a second time in January 2007. He made full admissions to police stating that he intended to have sexual intercourse with the young woman without her consent and that he ran from the house when he realised that she did not live alone. 18 I have already noted the Crown's concession that the sentencing judge wrongly regarded this offence as aggravated under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. After taking into account the four larceny offences on the Form 1, each of which involved the theft of female underwear from clotheslines, a sentence of imprisonment of 5 years was imposed with a non-parole period of 2 years and 6 months. The sentence was ordered to commence on 8 March 2009 upon the expiration of the concurrent fixed terms imposed for the offending comprehended by the Court Attendance Notices and was wholly accumulated on the non-parole period imposed on the third count on the indictment. 19 Count 3 charged a break and enter with intent to have sexual intercourse without consent contrary to s 113(1) of the Crimes Act for which a maximum term of 10 years imprisonment is provided. A sentence of 2 years and 6 months with a non-parole period of 18 months was imposed. That offence was committed in January 2007 when the applicant entered the unlocked but closed door of the house of another young woman who lived in Balranald. She was not at home at the time. The applicant searched the house before looking inside the woman's bedroom. He conceded in an interview with police on the date of his arrest in December 2007 that when he entered the house he intended to have sex with her. Before leaving the house he took a piece of the woman's underwear. He was charged with theft of the underwear as count 4 on the indictment. A fixed term of 12 months was imposed for that offence which was ordered to be served concurrently with the non-parole period imposed for count 3. 20 In the result, an effective sentence of 7 years and 2 months was imposed with a non-parole period of 4 years and 8 months. The applicant's subjective circumstances 21 A pre-sentence report dated November 2007 was tendered by the Crown. It confirmed that the applicant had no prior criminal record. He was aged 38 at the time of sentence. 22 He left school after completing year 10 after which he secured employment in a service station as a console operator, a position he held for 12 years. He was employed in that job at the time of the offending. He resided with his mother until her death some months before he committed the first offence in July 2006. The Probation and Parole officer who prepared the report recommended that the applicant be psychiatrically assessed with a view to exploring, at some greater depth, what were identified as obsessional features of the applicant's offending and unresolved grief issues which were thought to contribute to the offending behaviour. The officer also noted that the applicant expressed an awareness of the inappropriateness of his actions. He was assessed by the officer as suitable for a high level of intervention by the Probation and Parole Service upon his release with particular strategies identified to address areas of the applicant's criminogenic need. 23 The applicant was psychiatrically assessed by Dr Westmore in January 2008 and diagnosed as suffering from a psychosexual disorder characterised by exhibitionism and "snow dropping" based upon his history, the nature of his offending and its frequency. In Dr Westmore's opinion there was no evidence that the grief reaction the applicant suffered on his mother's death became pathological in nature. That said, he was also of the view that the fact that the offending occurred within a short time of her death may have had significance to the course of offending thereafter in that she may have acted as a source of social control over the applicant's behaviour and that he experienced a sense of freedom after her death which he expressed in antisocial ways. 24 Dr Westmore also noted that the applicant admitted to having a long history of sexual fantasies involving teenage girls. In addition, he has not had a mature relationship or engaged in sexual intimacy with a woman due largely to his psychosocial difficulties which were compounded by his morbid obesity since adolescence and his resultant poor self-esteem. The applicant told Dr Westmore that he committed the offences because it excited him. He said that initially he was not courageous enough to expose himself or to take women's underwear for his sexual gratification but that after the first time "he kept doing it and it went from there". Dr Westmore considered that the applicant's long-term prognosis was a lot more favourable than many of the sexual offenders he has examined in a clinical setting. He accepted, however, that the extent to which that may prove to be the case can only be determined after the applicant has attended and completed a sex offender program in custody and after his response to the program has been monitored. Dr Westmore also considered that the applicant needed a multidisciplinary approach to his longer term management involving weight reduction, counselling about his psychosexual skills and social skills, and specific counselling about his offending behaviour with a view to addressing and controlling his sexual urges and impulses.

25 The sentencing judge described the applicant as having a lonely, self-contained life being cared for by his mother. When she fell ill he became her carer. His Honour accepted that when he committed the offences the applicant appreciated that his behaviour was wrong and that he was candid in describing the level of excitation he experienced. His Honour also noted that the applicant progressed from relatively minor to more serious offences within a period of months before his arrest in January 2007. Although he acknowledged that there was some basis for optimism with regard to the applicant's prospects for rehabilitation, he emphasised that the focus of the applicant's sexual expression needed to be altered, including the possibility of a pharmacological approach to control or reduce his sexual urges if psychosexual counselling proved unsuccessful. 26 In the result, despite the applicant's clear criminal record and the temporal link between the death of his mother and his offending conduct, and despite the fact that his Honour expressed some sympathy for the applicant given his difficult social and personal circumstances, the need for general and specific deterrence dictated that an extended period in custody was imposed. His Honour emphasised that this was the inevitable outcome where young children were indecently assaulted on multiple occasions and the sanctity of the homes of two young women were violated. Was there error in the discount allowed for the pleas of guilty for the counts on indictment? 27 It is apparent from the remarks on sentence that his Honour allowed the discount of 15 per cent for each of the sentences on the counts on the indictment by reason of the fact that the pleas were entered in the District Court on arraignment. This approach reflected the views of Howie J in R v Borkowski [2009] NSWCCA 102 at [31] that, in the usual case, a plea of guilty on arraignment would not justify a discount of more than 15 per cent. His Honour's approach was also in accordance with the established sentencing principle that the utilitarian value of a plea of guilty is determined largely by its timing without it being the sole consideration (see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [154]). 28 The applicant's counsel conceded that his Honour was not invited to consider allowing a greater discount than 15 per cent. He also conceded that there was no material tendered on sentence explaining the delay in the pleas being entered, assuming that his Honour might have been persuaded to receive evidence bearing on the issue as an exception to the general rule that the reason for a delay in entering a plea is irrelevant since, if it is not forthcoming at the first available opportunity, the utilitarian value is reduced for that reason (see R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 at [11]). In these circumstances it is difficult to see how the applicant can make good the submission that there was error in his Honour's approach. 29 Furthermore, it was not submitted on the appeal that the failure to put evidence before the sentencing judge on the issue of delay grounded a submission that the applicant's legal representative was incompetent because he should have undertaken his own research into the reason the pleas were not entered in the Local Court and that this Court ought intervene to redress the error that infected the sentencing order as a result.

30 Despite the applicant's further concession that his Honour was not obliged to make any independent inquiry into the reason why pleas of guilty were not entered in the Local Court, the applicant submitted that it is nevertheless open to this Court to be satisfied on the material tendered on the appeal that the delay was not due to any reluctance on the part of the applicant to admit his guilt but due solely to the position taken by his solicitor in the Local Court. It was submitted that the transcript of proceedings in the Local Court on 9 May 2007 (as set out below) would satisfy this Court that after the prosecutor elected to have some matters prosecuted on indictment, and for other charges to remain in the Local Court to be dealt with after the District Court proceedings, the applicant's solicitor deliberately refrained from taking instructions on the question of guilt because he would not have the carriage of the matter in the District Court. It was also submitted that the solicitor conscientiously sought to preserve his client's entitlement to the benefit of an early plea even if his efforts in that regard were not fully appreciated when the matter was ultimately dealt with in the District Court in sentence proceedings. 31 After the magistrate committed the applicant for trial on the indictable matters in accordance with the procedure provided for in s 61 of the Criminal Procedure Act, and after he adjourned the remaining matters generally until after the District Court proceedings had resolved, the applicant's solicitor is recorded on the transcript as saying: "Mr Middleton: … If I could just indicate just for the purposes of the tape that I won't be having carriage of the matter now the matter has been adjourned to the District Court. I just didn't want to prejudice Mr Sendy in any way by taking pleas. He will be represented, I understand, by Mr David Davidge and I just wanted to make that clear that--

Mr Middleton: … if pleas are not taken at the earliest possible stage your Honour, it's going to be because he's going to be having different representation at the Griffith District Court…" 32 It was also submitted that when the applicant appeared in the District Court on a number of occasions prior to his arraignment in October 2007 there was no suggestion that the matters would be defended. The delay in entering pleas of guilty at that time was to obtain psychiatric reports which could only have been relevant to sentence there being no outstanding question of the applicant's fitness. 33 It is regrettable that his Honour was not informed about these matters, and that no meaningful submissions were advanced as to what an appropriate discount for the pleas of guilty ought to be in circumstances where the delay in entering the plea was not due to any reluctance on the part of the applicant to admit his guilt or otherwise to gain some forensic advantage (see Sullivan v R; Skillin v R [2008] NSWCCA 296). Were his Honour informed of these matters it may have been open to his Honour to have allowed a greater discount for the pleas of guilty in the valid exercise of his discretion. In R v Borkowski at [31], consistent with a principled approach to the question of valuing the discount for a plea of guilty, Howie J recognised that that there may be instances, albeit exceptional, where a higher discount is appropriate even though a plea of guilty is not entered until the matter is before the District Court. 34 That said, in the absence of any submission that there was incompetence on the part of the applicant's representative, the explanation for delay cannot be relied upon in this Court as grounding error on the part of the sentencing judge. However, if for other reasons a sentence is set aside and the applicant re-sentenced, it would be appropriate to take these matters into account. Were the sentences imposed in accordance with s 44 of the Crimes (Sentencing Procedure) Act? 35 The challenge to the sentences imposed on counts 2 and 3 on the indictment is twofold. I will deal first with the error said to have resulted from the relationship between the non-parole period and the balance of the term imposed on each count being contrary to the operation of s 44 of the Crimes (Sentencing Procedure) Act. 36 That section provides that the sentencing court must first set a non-parole period representing the minimum period for which the offender must be kept in custody, and that the balance of the term of the sentence must not exceed one third of the non-parole period unless the court decides there are special circumstances for the balance of term in excess of that period. In the present case his Honour imposed a non-parole period of 2 years and 6 months as part of what his Honour described as "an overall sentence" of 5 years on count 2 and a non-parole period of 18 months as part of an "overall sentence" of 2 years and 6 months on count 3. The balance of term on each count exceeded the one third ratio prescribed by s 44(2). His Honour did not make a finding that special circumstances warranted disturbing the statutory ratio on either count. In particular, he did not explain why the relationship between the non-parole period and the balance of term on count 2 involved such a significant departure from the statutory ratio, although it is open to infer from the sentencing remarks that he fixed the non-parole periods on each of counts 2 and 3 with the intention that the applicant serve an aggregate of 4 years and 8 months in custody prior to being eligible for release to parole with a balance of term of 2 years and 6 months subject to supervision on parole. 37 Having regard to the material presented on sentence and the submissions of counsel, there seems no reason to doubt that his Honour intended to vary the statutory ratio on each of counts 2 and 3 and that he simply overlooked specifying a finding of special circumstances and articulating the reasons for such a finding. The nature of the supervision proposed by the Probation and Parole Service in the pre-sentence report and the views of Dr Westmore which were directed to concerns about the applicant's readjustment to community life once at conditional liberty, views which were noted by his Honour in the sentencing remarks, would have provided a proper basis for an extended period of supervision on parole. Equally, the fact that the sentences on counts 2 and 3 were partially accumulated may also have justified interfering with the statutory ratio between the aggregate or effective term of imprisonment to be served and the aggregate or effective non-parole period applying to that term (see Hejazi v R [2009] NSWCCA 282 at [34]). However, to fix the balance of term on an individual count by reference to the aggregate of the sentences to be imposed, or to extend a sentence on an individual count to increase the period to be spent on supervised parole, is not permissible. 38 Accordingly, in this case, it was essential that the balance of the term on counts 2 and 3 bear an appropriate relationship to the non-parole period imposed on each individual count not simply to the counts in aggregate, and that the overall sentence be no longer than that which is appropriate having regard to the circumstances of the offence and the offender. The mere fact that after accumulation of the sentences for counts 2 and 3 the applicant might be subject to supervision on parole for 2 years and 6 months, a period which is equal to the balance of term on the second count, does not compel the conclusion that his Honour impermissibly increased the sentence on that count to produce that result or that he manipulated the statutory ratio with the same objective. It is necessary to look at the sentence imposed and the sentencing remarks before coming to that conclusion. There is nothing is the sentencing remarks that is suggestive of error in his Honour's approach. To the contrary, the sentencing order appears to give effect to his Honour's intentions that there be a significant time spent in custody and extended supervision on parole. In addition, leaving to one side the question whether erroneously taking into account a feature of aggravation has led to the imposition of an excessive sentence on count 2, the objective circumstances of the offending, and the fact that four offences of larceny on the Form 1 were taken into account in the calculation of sentence, permits the conclusion that a 5 year sentence against a maximum sentence of 20 years was within range even if at the higher end, and, on the assumption that special circumstances are available, a non-parole period of 2 years with a balance of term of the same length is also defensible. 39 Accordingly, despite his Honour's failure to specify a finding of special circumstances, there is no error in the application of s 44 of the Crimes (Sentencing Procedure) Act.

Was an excessive sentence imposed on count 2? 40 The remaining ground of appeal is limited to the sentence imposed on count 2 and can be simply stated. Has the fact that his Honour took into account a feature of aggravation not available to him in the calculation of sentence on count 2 resulted in the imposition of an excessive sentence warranting the intervention of this Court? The fact that the non-parole period of 2 years and 6 months is 50 per cent of a standard non-parole period of 5 years does not dictate that the error was not productive of an excessive sentence. What has to be considered is the whether the error resulted in an increase in the overall sentence of 5 years. Despite the fact that his Honour referred specifically to the offence being aggravated by being committed whilst the applicant was subject to conditional bail for his misconduct in relation to the young children when he had not at that time been arrested and charged with those offences (although he had by that time committed two of the four offences), the fact that the overall sentence of 5 years was otherwise within range leads me to conclude that no lesser sentence is warranted at law. 41 The orders I propose are:

1. Application for leave to appeal is granted.
2. The appeal is dismissed.

42 McCALLUM J: I agree with the orders proposed by Fullerton J and with her Honour's reasons, subject to one matter of clarification. I agree that it is not permissible to extend a sentence on an individual count to increase the period to be spent on supervised parole. Her Honour has referred in that context to the remarks of Howie J in Hejazi as to the application of s 44 of the Sentencing Procedure Act 1999 to accumulated sentences. As Howie J explained at [35] to [36] in that case (Hislop J agreeing), it is permissible, in the case of accumulated sentences, to reduce the non-parole period on the last sentence on the strength of a finding of special circumstances, so as to reflect the statutory relationship between the appropriate aggregate non-parole period and the overall total sentence imposed. In those circumstances, the determination of the balance of term on an individual count is referable to the aggregate sentence imposed. **********

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