SW v R

Court of Criminal Appeal (NSW)|2019-07-19|Before: Bathurst CJ, Bell P, Davies J

Judgment

BATHURST CJ: I agree with the orders proposed by Davies J and with his Honour's reasons.
BELL P: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Wollongong Local Court to the following offences: Sequences 19, 26 and 28: Aggravated sexual intercourse without consent with a person under the age of 16 years contrary to s 61J(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years' imprisonment. Sequences 20, 24 and 25: Aggravated indecent assault of a person under the age of 16 years contrary to s 61M(1) (since repealed) of the Crimes Act. The maximum penalty for this offence was seven years' imprisonment. Sequence 30: Assault with act of indecency contrary to s 61L of the Crimes Act (since repealed). The maximum penalty for this offence was five years' imprisonment.
In relation to sequence 19 the applicant asked for a further offence of aggravated indecent assault of a person under the age of 16 years to be taken into account on a Form 1. In relation to sequence 26 the applicant asked that two further offences of aggravated indecent assault of a person under the age of 16 years be taken into account on a Form 1.
On 10 September 2018 the applicant was sentenced by Judge Haesler SC to an aggregate sentence of three years' imprisonment commencing 10 September 2018 and expiring 9 September 2021 with a non-parole period of one year and six months expiring 9 March 2020.
On 25 March 2019, the applicant filed a Notice of Application for Leave to Appeal containing the following grounds:
That the sentencing judge failed to give sufficient weight to the offender's youth and delay; and placed excessive weight on general deterrence.
That the sentence was manifestly excessive. However, at the hearing of the appeal, ground 1 was not pressed.
The applicant also seeks an extension of time within which he may seek leave to appeal. The Notice of Intention to Appeal expired on 17 March 2019 and the Notice of Application for Leave to Appeal was filed on 25 March 2019. The delay is less than a week and is adequately explained. The Crown opposes the extension of time only on the basis that there is no merit in the appeal.

The offending

What made this such a difficult matter for the sentencing judge was the fact that the offending took place in 2001 to 2002 when the complainant was aged 10 and 11 years and the applicant was aged 15 and 16 years. Further, the applicant and the complainant were stepbrothers who resided together. The complainant's father and the applicant's mother were in a de facto relationship. The complainant commenced living with his father and the applicant's mother in 1997. At that time the complainant was five years old and the applicant was 11 years old.
In early 1998, when the complainant was 6 years old, the applicant first commenced sexually assaulting the complainant. The assaults would occur in their shared bedroom at night and would involve the applicant getting the complainant to masturbate him. The applicant would also masturbate the complainant. At some point the applicant threatened the complainant, saying, "you can't tell anyone about this."
In 1999, after renovations to the home, each of the boys had their own bedroom. However, the sexual assaults continued and would occur after school when the complainant and the applicant were home alone.
In the year 2000 the assaults began to include oral sex. At that time the complainant was eight years of age and was in third class at school. The applicant turned 14 during that year.
The applicant and the complainant would often have sleep-outs in a tent in the backyard during the warm months of the year. The complainant recalled sexual assaults during those occasions and they would involve threats not to tell anyone by the applicant.
On one occasion in 2001 just prior to Christmas when the complainant was ten years old and the applicant was 15 years old, the boys were having a sleep out. The complainant noticed at one point that the television and lights in the house were off indicating that their parents were in bed. The applicant kissed the complainant on the lips and pushed his tongue into the complainant's mouth. That constituted one of the aggravated indecent assaults on the Form 1 referable to sequence 26.
The complainant was unable to stop the applicant because he was forceful in his actions. The complainant told the applicant he did not want to kiss him. The applicant told the complainant to suck his penis. The complainant felt frightened. He sucked the applicant's penis briefly and then stopped. That constituted the offence in sequence 19.
The applicant told the complainant to masturbate him. The complainant used his hand to masturbate the applicant until the applicant ejaculated. That constituted the offence in sequence 20 of aggravated indecent assault. At the same time, the applicant used his hand to masturbate the complainant's penis. That constituted the aggravated indecent assault on the Form 1 in relation to sequence 19.
When the complainant was in year five on one of the last days of term 1 or term 2 in 2002, the applicant picked up the complainant from his school and took him home on the bike. The boys were home alone. The applicant removed from one of his mother's drawers a flesh coloured object that the complainant subsequently came to know was a vibrator. The applicant said, "It's mum's, shove it up your arse, it feels awesome." The applicant then proceeded to pull down his pants and insert the vibrator into his anus and start moving it in and out. That constituted the assault with the act of indecency being sequence 30.
From 2002 the applicant would ask the complainant to sleep in the detached garage as an alternative to setting up the tent or beach shelter for their sleep outs. During one particular garage sleep out, when the complainant was 11 years old and the applicant was 16 years old, the applicant waited until it appeared the parents were asleep. He then shut the garage door and locked it. He told the complainant to undress and get into the applicant's sleeping bag.
When the complainant was in the sleeping bag, the applicant put his arms around him and began kissing him. This was the second aggravated indecent assault on the Form 1 referable to sequence 26. As the applicant kissed the complainant, the complainant could feel the applicant's erect penis against him. Each of them masturbated the other. Those were the aggravated indecent assaults in sequences 24 and 25. There were then two episodes of oral sex, first the applicant on the complainant and then the complainant on the applicant. They constituted the offences in sequences 26 and 28.
The complainant did not report these sexual assaults to anyone until November 2016. At that time, the complainant was told by his father of a request made by the applicant that the complainant become the godfather of the applicant's new child. Shortly after that day, the complainant reported the sexual assaults to the police. A lawfully recorded telephone conversation between the complainant and the applicant obtained some admissions from the applicant, and he was arrested and charged on 20 April 2017.

Submissions

The applicant submitted that there were two compelling factors relevant to sentencing. First, the applicant was a child at the time of the offending and there was a delay of approximately 16 years in prosecution. The applicant submitted that if the Court had sentenced him when he was about 16 years of age, it would have given very significant weight to his youth. It was also submitted that if he had been sentenced to a term of imprisonment at that time, he would have served that sentence in a juvenile detention centre. Reliance was placed on the approach taken in RL v R [2015] NSWCCA 106.
The applicant submitted that the delay, apart from anything else, has meant that the applicant can no longer have the benefit of serving any sentence in the less rigorous environment of a juvenile detention centre. Further, the options of periodic detention, intensive correction order or a suspended sentence are no longer available to the applicant. The applicant submitted that the delay means that a discount should be applied to any sentence that would otherwise be appropriate if he were being sentenced shortly after the offending.
The applicant submitted that the following additional considerations are significant in the sentencing of the applicant: (a) The offending, while serious, is not in the worst category. It falls below the mid-range; (b) There is a low risk of re-offending; (c) Remorse is demonstrated by the applicant; (d) The applicant's prior good character; and (e) The plea of guilty.
The applicant submitted that when those factors are taken into account and considered with factors relating to his youth and the delay, the sentence was manifestly excessive. The applicant submitted that his youth and the delay made this a truly exceptional case. He submitted that the sentence he should receive, taking into account his rehabilitation and other factors, should be significantly less than what he would have received if he had been sentenced in 2002.
The Crown, having identified the principles to be applied when determining whether a sentence is manifestly excessive, pointed to the following matters to suggest that the sentence imposed was not unreasonable or plainly unjust.
First, the aggregate sentence and the non-parole period, including the notional starting point, must be considered against the maximum penalties of the seven offences for which the applicant was convicted. Three of those offences had maximum sentences of 20 years' imprisonment.
Secondly, the offences were representative charges for the applicant's repeated sexual offending including acts of penile-oral penetration against his stepbrother who was aged 10 or 11 years at the time of the offending. In addition, the offending involved a degree of coercion where the applicant exploited the age difference and the respect the complainant had for his older stepbrother.
Thirdly, the sentencing judge was required to have regard to the trauma of sexual abuse on children as understood at the time of sentencing. The sentencing judge considered that the harm done to the complainant, though not uncommon for such offences, was one of the reasons why significant penalties were required.
The Crown submitted that the sentencing judge had regard to the fact that a longer sentence was likely to mean that the applicant's pro-social contacts in the community would break down and that he may be more likely to commit general offences, despite the low risk of recidivism for sexual violence. In those circumstances, the Crown submitted that the sentencing judge fixed the custodial portion of the applicant's sentence at the minimum required by the seriousness of the offending.
The Crown submitted that there were a number of differences between RL and the present case which constrain that case's utility for comparative purposes. Although in RL the offending involved two complainants and a broader range of penetrative intercourse, three of the seven offences were committed after the offender had attained the age of 18 years. In RL, none of the offences contained a maximum penalty exceeding ten years' imprisonment.

Determination

In RL, the offender committed a series of sexual offences against younger relatives from 1981 to 1986 when he was aged from 14 to 19 years. Complaint was not made about any of the offending until 2013, and the offender came to be sentenced in February 2014. Between the last offending in 1986 and the time he was sentenced, the offender had led an exemplary life.
The Court said: [6] Sentencing in a case of this kind is fraught with difficulties, both in terms of principle and technicality. So far as principle is concerned, there is an anxious tension between the need for public condemnation of the conduct involved and the vindication of the dignity of the victims, on the one hand, and on the other, the imposition some 30 years after the events, of penal consequences on an offender who has led a subsequently blameless life and has readily acknowledged his own wrongdoing, when confronted with the complaints. … [46] As noted above, there is a high level of tension in relation to sentencing offenders years after the events which constitute the criminal conduct, in providing adequate punishment, giving some effect to general deterrence, denouncing the conduct of the offender and recognising the harm done to the victim, in circumstances where there is no palpable risk of reoffending, no need to deter the offender, no need to protect the community from the offender nor to promote the rehabilitation of the offender. …
The Court also considered the manner in which it was likely the offender would have been dealt with if he came to be sentenced shortly after the offending. The Court said at [40] that where the first four charges occurred whilst the offender was a young person, recognition should have been given to the probability that he would have been dealt with by a Children's Court. In those circumstances, the offender would have been committed to a juvenile institution for a period not exceeding two years.
Although ground 1 was not pursued at the hearing of the appeal, the matters of delay and the applicant's youth at the time of the offending were relied upon to demonstrate that the sentence was manifestly excessive. The sentencing judge was careful to place considerable emphasis upon those matters. His Honour said in his Remarks on Sentence (ROS) (at 2): Delay, even considerable delay, should not be allowed to dictate a sentence that is not appropriate to punish a particular offender. The sentence must still be proportionate to the circumstances of the particular offence. While there is no universal rule, the delay here does mean that the punishment that might otherwise have been imposed can be moderated.
His Honour rejected any suggestion that s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) was intended to displace rules that applied to the principle of delay. Nor, his Honour said, did s 25AA prohibit him from taking into account that the offences were committed by a child on another child. His Honour noted further that, had the applicant been dealt with as a child, a different sentencing regime would have applied to him; a regime with greater focus on rehabilitation than the retributive regime that applies to an adult.
His Honour said that the applicant's demonstrated progress to rehabilitation and the fact that there has been no offending of a similar nature were important matters that operated to the applicant's advantage and were matters that his Honour had to take into account.
His Honour said (at ROS 8): I also have to, so far as I am able, apply principles that relate to the sentencing of young and immature offenders. …The fact that the offences occurred as a child does not minimise their objective seriousness, but I recognise that there is a vast difference between a young immature offender committing offences when they are not neurologically able to think as an adult, and when one comes to sentence a mature adult who offends against a child. The child's criminal actions, even sexual actions, are generally not regarded as being as morally reprehensible as if the offences had been committed by an adult.
Finally, his Honour said (at ROS 13): There are a number of important factors in this case. The delay, the fact that the offender was himself a child at the time, requires a sentence which by comparison with that which would have been imposed on an adult, might be considered lenient.
Despite the allowances that his Honour made for the youth of the applicant at the time of the offending, and the delay, there were a number of significant matters that resulted in his Honour forming the view that there had to be a period of full-time imprisonment.
First, there were three counts of aggravated sexual intercourse without consent at a time when the complainant was aged 10 and 11 years. The maximum penalty for each of those offences was 20 years' imprisonment. One of those counts had an offence of aggravated indecent assault of a person under the age of 16 years on a Form 1, and another of the counts had two further offences of aggravated indecent assault of a person under the age of 16 years on a Form 1. In addition, there were three counts, not contained on a Form 1, for which the applicant was sentenced involving that same offence. The maximum penalty was seven years' imprisonment for each such offence. Finally, there was a count of assault with act of indecency carrying a maximum penalty of five years' imprisonment. This all constituted significant offending.
Secondly, the offences charged were representative offences in circumstances where the applicant first sexually assaulted the complainant when the complainant was six years old. The offending continued from that time until the offending in 2001 and 2002 that constituted the particular offences charged.
Thirdly, the offending involved coercion where the complainant made it clear, at least on some occasions, that he did not wish to participate in the sexual activity. Further, the offending involved threats throughout the period that the complainant should not tell anybody about what had occurred. That was in circumstances where, as the sentencing judge found, the applicant exploited both the age difference and the respect the complainant had for the applicant as his older stepbrother.
Fourthly, unlike the applicant in RL, a case upon which counsel for the applicant relied, the present applicant has not led a blameless life since the index offences. Between 2004 and 2013 he has been convicted of a number of offences including offences of violence (assault occasioning actual bodily harm being the worst), drug offences, two offences of driving while disqualified and two offences of contravening an apprehended violence order. Those last two offences demonstrate contempt for orders of the courts, quite apart from disobedience of the law.
The applicant has been placed on conditional liberty on a number of occasions. He has been called up more than once for breaching that conditional liberty, and in 2006 was sentenced to three months' imprisonment for breaching conditional liberty in respect of three offences, as well as for his second offence of drive while disqualified. It may be accepted that there has been no subsequent sexual offending, but his criminal record shows that his disregard for the law was not the product of mere immature offending.
One of the principal reasons for mitigating a sentence in the case of extended delay is because of the weight that is to be given to the applicant's rehabilitation in the meantime: R v Todd [2982] 2 NSWLR 517 at 519. That basis is largely absent here, at least until 2013.
Having regard to all of these matters, and to the generous allowance the sentencing judge made for special circumstances, and in the light of the principles to be applied when determining whether a sentence is manifestly excessive as set out in Hughes v R [2018] NSWCCA 2 at [86], it cannot be said that the sentence imposed was unreasonable or plainly unjust. Nor could it be suggested that the sentence was so far outside the range of sentences available that there must have been error.

Conclusion

The issue concerning delay and offending as a child was significant enough to warrant the grant of leave to appeal and, therefore, an extension of time for leave to appeal, particularly for the latter when the Notice was only one week late. I would propose the following orders: (1) Extend time for leave to appeal to 25 March 2019. (2) Grant leave to appeal. (3) Dismiss the appeal.

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: 19 August 2019

Crimes Act 1900(NSW)s 61J, 61M, 61L

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