SMITH James Duncan v R

Ground 1 His Honour erred in finding that the offences in counts 7, 8 and 9 were in the middle of the range of objective seriousness. 26A principal basis advanced in support of this ground was that his Honour had reached his conclusion in the case of all three offences at least in part because the Applicant was on bail. Attention was drawn to the decisions of this court in, inter alia, R v Way (2004) 60 NSWLR 168 at [90]-[92], Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [30], and R v Van Rysewyk [2008] NSWCCA 130 at [25] where this court made it clear that while the fact an offender was on conditional liberty was relevant to the determination of the appropriate punishment, it did not bear on the objective seriousness of an offence. The Crown conceded that his Honour in this connection had erred. 27In further support of this ground attention was drawn to the fact that the intercourse was not penile, there was no physical injury or risk of disease, the offending occurred over a relatively short period of time, there were no threats of physical or other harm. It was further submitted that the indecent assault offences were of a relatively minor nature. 28In response the Crown submitted that to make out this ground the Applicant had to show that the findings that the offences were not in the middle range of objective seriousness were not open to his Honour, citing in support R v Mulato [2006] NSWCCA 282 at [46], and R v King [2009] NSWCCA 117 at [34]. The Crown relied also on passages in a number of cases to the effect that there was no rule that digital penetration must be considered less serious than other forms. 29I have no difficulty in accepting the proposition that there is no such rule. Nevertheless, confining attention for the moment to the nature of the penetration, there can be no doubt that the digital penetration as it occurred in this case was vastly less serious than many other instances of sexual penetration with which this Court has, from time to time, had to deal. The fact that the Applicant persisted despite the complainant saying his action hurt tends to add to the seriousness of his conduct in that respect but in any judgment as to the severity of that aspect of his conduct it is proper to recognise that the complainant sought solace from him later in the evening after she discovered her own father was absent, and this in circumstances where the Applicant's wife was also in the house. 30His Honour was also correct in observing that the Applicant was in a position of trust viz-a-viz the complainant at the time. Indeed the Applicant had procured or encouraged a situation where the complainant's father was not at the premises and the Applicant and his wife had been left in charge of the complainant and it is impossible to avoid the conclusion that there was premeditation and a degree of planning in respect of the seventh to ninth offences. Of course, there are many circumstances e.g. parent or teacher, where the breach of trust should be given significantly more weight than in the case of the Applicant. 31That said, the fact that the touching in the case of the eighth offence was of the complainant's breasts rather than of her genitalia also goes a long way to establishing that the offence was not in the middle range of objective seriousness. 32Presumably the reference in the Crown statement of facts so far as this ninth offence is concerned to the complainant being touched (inside her pyjama pants) to her "bottom cheek" refers to one of the complainant's buttocks. Having sat through the trial his Honour seems to have so regarded it. The location thus argues strongly against this assault falling into the middle range of objective seriousness, despite the other matters to which his Honour referred. There is nothing to suggest that this assault lasted for anything more than a short time. 33The fact that his Honour's conclusion that the seventh to ninth offences fell within the middle of the range of objective seriousness was influenced by his erroneous regard to the Applicant being on bail means that, whatever limitations there may be in this Court departing from it in other circumstances, the Court is free to consider the matter ab initio in this case. 34Having regard both to the factors relied on by Cogswell DCJ and those to which I have referred, I am of the view that each of these seventh to ninth offences were below the middle of the range of objective seriousness. Indeed, while I do not suggest they were not serious, on the scale of offending encompassed by s 61M(1) I would characterise the eighth and ninth offences as, while not at the bottom, well down on the scale of objective seriousness. I would not so characterise the seventh offence but it was significantly below the middle of the range. 35Accordingly, this ground of appeal is made out.

Ground 2 The individual sentences imposed were manifestly excessive. 36In support of this ground, it was submitted that if his Honour did in fact assess the objective seriousness of first to sixth offences, as they were not offences for which a standard non-parole period has been prescribed, he was in error. 37I disagree. A sentencing judge has always to consider the objective seriousness of an offence - see R v Whyte ( 2002) 55 NSWLR 252 at [155] - [160] - and although prior to the introduction of s 54A et seq of the Crimes (Sentencing Procedure) Act 1999 it was unusual to characterise the conclusion reached in terms such as his Honour employed, it was not an error for his Honour to do so. 38A question that does arise, however, is whether his Honour's characterisations of the seriousness of the first to sixth offences was correct for, if not, it is likely that the sentences imposed reflected error. I my view the characterisations were in a number of respects erroneous and to a degree where R v Mulato imposes no limitation on this Court interfering. 39One factor that affected a number, if not all of the offences was that his Honour regarded the Applicant as having been in a position of trust. As is apparent from what I have said, I do not dissent from this view in the case of offences 7 to 9. However, as it would seem that the complainant's father was in the room, albeit asleep, when the other offences occurred, and there was no evidence to suggest that the Applicant had been given or undertaken any responsibility for the complainant, I see no basis for describing him as in a position of trust as that term is used in this area of the law. Certainly, his position in the case of offences 1 to 6 was not comparable with that of a teacher, babysitter or step-father. It is to be inferred that this error by his Honour influenced his assessment of the seriousness of each of offences 1 to 6. 40As a general rule the younger a complainant falling within the terms of one of the sexual offence provisions, the more seriously is the offending regarded. As has been said, in this case the complainant was 9, and possibly almost 10 at the time of the third to sixth offences and somewhere between 7 and 9 at the time of the first two offences. The onus was on the Crown to show matters tending to aggravate the Applicant's criminality so that criminality must be assessed on the basis that the complainant was towards the upper end of the age group of victims falling with the relevant statutory provisions. 41There is no evidence that the first offence was prolonged, there was no violence and only a minor inducement to discourage the complainant reporting the first offence. When to these matters are added the fact that the actus reus of the offence was the stroking of the complainant's vagina rather than many more serious forms of assault which come before the courts, and the Complainant's father was in the room and able to be appealed to if the Complainant felt significant distress, it is impossible to regard the first offence, as his Honour did, as in the middle of the range of objective seriousness. 42When one considers also the range of circumstances of penetration, and the range of accompanying conduct that can occur in offences under s 66A, it is also impossible to agree with his Honour's assessment that the second offence fell just below the middle of the range of objective seriousness. It was well below. 43It is not necessary that I consider seriatim all of the remaining offences. It is apparent that his Honour's erroneous view of relative seriousness, i.e. relative to the seriousness of offences against the respective sections that can be committed, affected his consideration of all of the offences. 44Counsel for the Applicant also sought to take the Court to the statistics for offences falling within the sections under which the Applicant was charged. The wide variety of circumstances in which offences under the sections can be committed makes those statistics of very limited assistance but it may be noted that in the case of s 61M(2) - offences 1, 3, 4 and 6 were laid under this section - the statistics for the period January 2003 to December 2009 refer to 38 offenders of whom 20 were sent to prison. Twelve of these had non-consecutive terms, and in the case of these 12, the sentences ranged between 6 months and 4 and a half years with the median being between 2 and 2 and a half years and the non-parole periods (or fixed terms) ranged between 6 months and 2 and a half years with the median being 1 and a half years. The statistics do not deal with the non-parole periods imposed on those who were sentenced to consecutive terms but when the sentences imposed on the 20 offenders are considered, there were only two sentences - one of 6 years and one of 8 years - that exceeded 4 and a half years. 45The statistics for offences under s 66A - offences 2 and 5 - for the period from July 2002 to June 2009 show that of 75 offenders, 70 were sentenced to full time imprisonment. Sentences imposed on these 70 ranged from 1 and a half years to 14 years and of the 31 offenders sentenced to non-consecutive terms, the non-parole periods or fixed terms ranged between 6 months and 8 years with the median being 2 years. 46The statistics for offences under s 61J(1) - offence 7 - for the period from February 2003 to December 2009 show that 149 of 151 offenders were sentenced to full time imprisonment. The sentences imposed on these 149 ranged from 2 years to 14 years with the median being 8 years. Of the 69 of these offenders sentenced to non-consecutive terms, the non-parole periods or fixed terms ranged between 6 months and 10 years with the median being between 3 and 4 years. 47The statistics for offences under s 61M(1) - offences 8 and 9 - for the period February 2003 to December 2009 show that of 107 offenders, 70 were sentenced to full time imprisonment. The sentences imposed on these seven varied between 1 year and 6 years with the median being 3 years. Of the forty of these offenders sentenced to non-consecutive terms, the non-parole periods or fixed terms ranged between 6 months and 4 years with the median being 1 and a half years. 48The limits on the usefulness of statistics, which say nothing about the details of the offences or of the circumstances of the offenders reflected in them has been the subject of remark in this Court on numerous occasions and, more recently, by the High Court in Hili and Jones v The Queen [2010] HCA 45, (2010) 85 ALJR 195 where however, at [54], their use as a yardstick was endorsed. 49In this case, it is accordingly worth observing that:- The 3 and 4 years fixed terms imposed by Cogswell DCJ for offences 1, 3, 4, and 6 exceed, in the case of the 4 year terms substantially, the highest non-parole period or fixed terms reflected in the statistics for s 61M(2) offences; The 5 year fixed terms imposed by Cogswell DCJ for offences 2 and 5 substantially exceed the median non-parole period or fixed terms reflected in the statistics for s 66A offences but are themselves significantly exceeded by the highest non-parole period in those statistics; The 10 years non-parole period fixed by Cogswell DCJ for offence 7 was equal to the highest non-parole period reflected in the statistics for offences under s 61J(1) and the 13 years full term fixed by his Honour was but one year less than the highest full term reflected in them; and The 5 years non-parole period fixed by Cogswell DCJ for offences 8 and 9 exceeded the highest non-parole period or fixed terms of 4 years reflected in the statistics for offences under s 61M(1) and the head sentences imposed by his Honour were equal to the highest head sentence reflected in the statistics. 50When regard is had to the general nature of offences under the various sections with which this Court has had, all too often, to deal and to the results of those cases as reflected in the statistics, the above comparison certainly indicates that his Honour's sentences were very high. Indeed, pressed during the course of argument, counsel appearing for the Crown ultimately conceded that the sentences imposed for offences 1 to 6 were too high. 51Neither counsel provided the Court with any significant reference to any prior cases and I have not found it necessary to undertake any comprehensive survey of them. However, reference to five is useful. 52In R v Slack [2004] NSWCCA 128 this Court regarded as manifestly excessive concurrent sentences of 5 years including non-parole periods of 3 years imposed on an offender who was found guilty of offending against s 61J. The complainant was a friend of the offender's daughter. When the complainant was staying with the daughter and asleep, the offender came into the bedroom containing both girls, knelt beside the bed, put his hands under the bedcovers, placed 2 fingers in the complainant's vagina and moved his fingers around for about 2 or 3 minutes. The complainant tried to stop this by moving away. The offender stopped, left the room but returned shortly afterwards and repeated his offending for about a minute. The complainant was 11 or 12 in the month during which the offences were said to have occurred and was accepted to have suffered some emotional harm. The offender was of prior good character but was regarded as having been guilty of a breach of trust. This Court imposed concurrent sentences of 3 years including non-parole periods of 2 years. 53In Rolfe v The Queen [2007] NSWCCA 155, 173 A Crim R 168 the offender was sentenced in respect of 7 charges of aggravated indecent assault under s 61M (2), 2 charges of sexual intercourse with a person under 10 contrary to s 66A and one count of aggravated indecency contrary to s 61O(2). He was convicted after a trial. The offences occurred over a period of about 2 years and 9 months when the complainant was aged between 5 and a half to 8. The complainant was a daughter of a woman with whom the offender was in a relationship. Most of the incidents of indecent assault were of causing the complainant to masturbate him. The sexual intercourse was fellatio and cunnilingus. 54The report does not detail the sentences imposed for individual offences but the effective sentence imposed was of 8 years including a non-parole period of 6 years. Giles JA concluded, with the assent of James and Harrison JJ, that there were no grounds for interfering. 55In R v PGM [2008] NSWCCA 172, the offender was a neighbour of the complainant, then aged 6 or 7. He had been found guilty of 6 offences. Three were of sexual intercourse contrary to s 66A of the Crimes Act, which prescribed a maximum penalty of 25 years and for which a standard non-parole period of 15 years had been prescribed. (It may be noted that these terms are longer than provided for at the time of the Applicant's offending.) The other three offences were of indecent assault contrary to s 61M(2). 56From time to time the complainant would visit the offender's home. On one occasion of offending he invited her there. On another the report merely indicates she was there. On these two occasions he performed cunnilingus on her. On a third he commenced to put his penis into her "private parts" but it came out. The sentencing judge took the view that the degree of penetration was just sufficient to amount to sexual intercourse. 57One of the offences of sexual assault was constituted by the offender removing the complainant's underwear and then ejaculating onto her. Another involved him removing her underwear, placing his penis on her vagina where he "wiggled it". The third involved rubbing the complaint's vagina with his hand. The sentencing judge took offences of possession of child pornography into account when sentencing for the second of these offences. 58This Court took the view that the sentences imposed at first instance were affected by error and inadequate and re-sentenced. For the sexual intercourse offences sentences of 9 years including non-parole periods of 6 years were imposed. For the offences of sexual assault not involving the Form 1 offences, the sentences imposed were of 6 years including non-parole periods of 4 years. These periods were increased by 8 months for the offence where the Form 1 offences were taken into account (although a comparison between the orders made and [19] - [21] of the judgments seems to indicate a mistake as to which offence was which). Most of the sentences had the same commencing date and the effective sentence was of 9 and a half years including a non-parole period of 7and a half years. Fullerton J, with whom Spigelman CJ and Barr J agreed, at [31] expressed the view that, having regard to the degree of genital connection in 2 of the assault offences (including that involving the hand rubbing of the vagina) meant that the sentencing judge had erred in characterising the offending as at the lower end of mid-range. Her Honour also took the view that there had been a breach of trust and that the sentencing judge had failed to give adequate weight to the complainant's age. 59The sentence reflected considerations of double jeopardy. Although the report is not clear, it would seem that the sentences were also mitigated to some extent on account of the offender's mental condition. The High Court refused special leave to appeal - see PGM v R [2009] HCASL 62. 60In RWB v R [2010] NSWCCA 147, the offender was convicted of, inter alia, 8 counts of sexual intercourse contrary to s66A and 4 counts of sexual assault contrary to s 61E(2) or s 61M(2) against his niece, aged 6 and 7 at the time of the offending. A Crown appeal to this Court was allowed. The offences occurred in the complainant's house to which the offender had ready access. The offences occurred in 1990 and 1991 but were not reported until 2006. The Court moderated its sentences at least to some degree in recognition of the fact that the pattern of sentences in 1990 and 1991 was lower than when the matter was heard in this Court. 61The offences under s 61M(2) consisted of the offender rubbing the complainant in her vaginal area but outside her clothing and, on another occasion, requiring her to touch and kiss his penis, after which he ejaculated. The sentences imposed for the first of these offences was for a fixed term of 6 months and for each of the others, concurrent fixed terms of 18 months. 62Six of the sexual intercourse offences consisted of anal or vaginal penetration with the finger and for these offences the sentences imposed were of fixed terms or included non-parole periods varying between 2 years and 6 months and 3 years and 6 months. The remaining sexual intercourse offences involved penile vaginal intercourse. The sentences for these offences were of 7 and a half years, in one case including a non-parole period of 5 years and in the other - the last to be served - a non-parole period of 4 years and 8 months. The total effective sentence was on 11 years and 4 months including a non-parole period of 8 years and 6 months. The report does not suggest that there was any particular pressure exerted by the offender on the complainant beyond their ages and their relationship 63In BT v R [2010] NSWCCA 267 the offending, the subject of the three charges under s 61M(1) was constituted by a stepfather of the 15 years old complainant going to her bed while she was asleep and placing his hand down inside her pyjama pants and underwear and touching her in the area of her vagina. The fourth offence was constituted by the offender on the last of the occasions just mentioned, placing his finger into her vagina. At the commencement of each assault the complainant was asleep. During the first two occasions, according to her, she pretended to remain asleep until the Applicant stopped and left the room. On the third occasion the complainant was spoken to by the Applicant prior to the penetration but the complainant was uncertain as to what he said. The penetration lasted for a short time and again the Applicant simply left the room. There was nothing to suggest that the Applicant had used force, threats or pressure to induce the complainant's compliance or silence beyond such pressure as was implicit in his relationship with her mother. Apart from offences committed against the complainant, the offender was of exemplary good character. 64In that case, the Court (of which I was a member) took the view that the offences were all below, and in the case of the sexual intercourse offence, very substantially below, the mid-range in objective seriousness. The Applicant had pleaded guilty, receiving a 25% discount for doing so, and this Court imposed concurrent sentences of 3 years including non-parole periods of 2 years for the sexual assaults and, for the sexual intercourse offence, a sentence of 5 years including a non-parole period of 3 years. To the extent of 1 year this last mentioned sentence was concurrent with the non-parole periods for the sexual assault offences. The effective sentence was thus of imprisonment for 6 years including a non-parole period of 4 years. 65While some of the offending in those cases was similar to some of that committed by the Applicant, demonstrably there are differences. As might be expected given those differences, no consistent pattern emerges. However it might be noted that, in general the sentences were:- Sexual Assault In PGM - 6 years including non-parole periods of 4 years; In RWB - fixed terms of 18 months; and In BT - 3 years including non-parole periods of 2 years Sexual Intercourse In Slack - 3 years including non-parole periods of 2 years; In PGM - 9 years including non-parole periods of 6 years; In RWB - fixed terms of 18 months; and In BT - 5 years including non-parole periods of 3 years. 66Having taken account of all of the matters to which I have referred, there is no doubt that the sentences imposed by Cogswell DCJ in respect of all of the offences were manifestly excessive and should be quashed and the Applicant re-sentenced.

Ground 3 His Honour erred in his application of the totality principle. 67Given the conclusions previously expressed, it is unnecessary to deal with this ground.

Re-sentence 68Subject to what is said below concerning count 7, for the counts indicated the following non-parole periods or fixed terms should be imposed:- (i) (stroking vagina) 2 years; (ii) (digital/anal intercourse) 3 years: (iii) (hand on penis) 1 year; (iv) (attempted kissing of penis) 18 months; (v) (digital/ vaginal intercourse) 3 years; (vi) (Squeezing of bottom or breasts) 6 months; (vii) (digital/vaginal intercourse) 4 years (viii) (touching of breasts) 9 months (ix) (touching of "bottom cheek") 6 months 69Because of the number of sentences to be imposed, it is convenient to impose fixed terms for most of the Applicant's offences and that is why I have expressed the above table in the way I have. The full terms of any sentences, unless fixed terms, should be higher. In the circumstances I find it necessary to express this higher sentence in only the case of the seventh offence, an appropriate full term of which is 5 years and 4 months, and in the case of the eighth and ninth offences. 70Section 54B of the Crimes (Sentencing Procedure) Act requires that a non-parole period be set for offences where a standard non-parole period has been prescribed and for reasons to be given if a non-parole period other than the standard is being imposed. In the case of offences 7 to 9, the reason for not imposing the standard non-parole periods is that the offences fall well short of offences in the mid-range of objective seriousness. 71The principle of totality means that the terms set out above should not simply be aggregated and it is necessary to determine what an appropriate total sentence and non-parole period should be. In arriving at the various periods set out above, I have taken account of the Applicant's subjective circumstances except for his history of sexual offending which may more conveniently be taken into account in determining the effective sentence rather than risk double counting in circumstances where this history bears on more than one sentence. 69 That total effective sentence should be of 10 years, including non-parole periods totalling 7 and a half years. Of necessity, that will result in a deal of concurrency of individual sentences. 70 Cogswell DCJ declined to find special circumstances and, apart from the impact of accumulation of sentences, I see no error in his Honour's conclusion. However, that accumulation does inspire such a finding and an adjustment of the components of the sentence to be imposed for the seventh offence to provide a balance of term appropriate to the total sentence. Accordingly, although I have said that the non-parole period for the seventh offence should be 4 years and the total term for that offence, 5 years and 4 months, that non-parole period should be reduced to 2 years and 10 months and the starting date fixed at 30 April 2012 so as to provide a non-parole period of 2 years and 6 months. 71 Accordingly, I propose the following orders: (i) Grant leave to appeal; (ii) Allow the appeal; (iii) Quash the sentences imposed on the Applicant by Cogswell DCJ on 28 August 2009; (iv) In respect of count 1, sentence the Applicant to imprisonment for a fixed term of 2 years commencing on 31 August 2007; (v) In respect of count 2, sentence the Applicant to imprisonment for a fixed term of 3 years commencing on 31 August 2007; (vi) In respect of count 3, sentence the Applicant to imprisonment for a fixed term of 1 year commencing on 31 August 2010; (vii) In respect of count 4, sentence the Applicant to imprisonment for a fixed term of 1 year and 6 months commencing on 31 August 2010; (viii) In respect of count 5, sentence the Applicant to imprisonment for a fixed term of 3 years commencing on 31 August 2010; (ix) In respect of count 6, sentence the Applicant to imprisonment for a fixed term of 6 months commencing on 31 August 2010; (x) In respect of count 7, sentence the Applicant to imprisonment for a non-parole period of 2 years and 10 months commencing on 30 April 2012, together with a balance of term of 2 years and 6 months commencing on 28 February 2015; (xi) In respect of count 8, sentence the Applicant to imprisonment for a non-parole period of 9 months commencing on 31 August 2013 together with a balance of term of 3 months commencing on 31 May 2014; (xii) In respect of count 9, sentence the Applicant to imprisonment for a non-parole period of 6 months commencing on 31 August 2013 together with a balance of term of 2 months commencing on 28 February 2014; (xiii) Record as the date upon which it appears to the Court that the Applicant shall become eligible for parole, 28 February 2015. 72ADAMS J: I agree with RS Hulme J.

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: 03 August 2011