TMTW v R

Court of Criminal Appeal (NSW)|2008-01-29|Before: McClellan CJ, James J, Simpson J, Clellan CJ

The application for leave to appeal 30 Five grounds of appeal were pleaded. They are framed as follows: "1. The sentencing judge erred in his assessment of the applicant's culpability in respect of Counts 4 and 5.

The sentencing judge erred in giving less weight to the applicant's prior good character because of the 'sexual' nature of Count 4.

The sentencing judge erred in making a finding that 'gratuitous cruelty' was made out as an aggravating factor.

The sentences imposed on Counts 4 and 5 are manifestly excessive.

The sentencing [judge] erred in fixing the sentence on Count 4 with a view to creating what he saw as an adequate period of parole." 31 Neither the written or the oral submissions advanced on behalf of the applicant directly or separately addressed any of the pleaded grounds of appeal. 32 In relation to the sentence imposed in respect of Count 4, two points, essentially, were made. The first was that an overall sentence of 5½ years for that offence was well beyond any permissible discretion. 33 Very fairly, the Crown conceded that that sentence was "problematic", and explained the concession by reference to the judge's remarks concerning the serial discounts he had allowed - the R v Thomson; R v Houlton discount of 25 percent, and the additional discounts for remorse, and another discount for the benefit to the victim in not being required to give evidence. 34 The total sentence was of 5 years and 6 months or 66 months. That is after the discount of 25 percent. But simple mathematics shows that, if 66 months represents 75 percent of the sentencing starting point, then the starting point was of 88 months - or 7 years and 4 months. That is greater than the maximum sentence applicable to the offence (7 years); and that calculation does not take into account the additional discounts his Honour intended to apply. 35 Further, although the offence was plainly a very serious one, and his Honour (correctly) held it to have been above the middle of the range of objective seriousness for offences of its kind, he made no finding that it was a "worst category" offence calling for the imposition of the maximum penalty. 36 It is, in my opinion, plain that one of two errors affected the process: either his Honour failed to give the applicant the benefit of the discount of 25 percent, plus some more, that he stated he intended to do; or he began with a sentence which was beyond, and well beyond, the statutory maximum. 37 In my opinion the sentence imposed in respect of Count 4 must be adjusted. I hasten to add, however, that the judge was required to have regard to the totality of the applicant's offending: see R v Pearce [1998] HCA 57; 194 CLR 610. The consequence of that approach is that it may well be that a further adjustment needs to be made to the accumulation of sentences in order to reach a correct overall result. His Honour made it very plain that his intention was to impose sentences structured in such a way that the applicant would serve a non-parole period of 4 years for all offences. That is not an excessive sentence for the overall criminality. 38 The next submission made, again in respect of the fourth count, was put, in written submissions, as follows: "Further, a large part of the seriousness of offences committed against s 61M is to be found in their sexual nature. What happened here, although 'indecent' because it involved the child's penis, had no real 'sexual' aspect to it. The 'sexual' aspect of the applicant's conduct only occurred because of the sexual assaults committed on the applicant's daughter." 39 I do not accept this. That the applicant intended to commit a sexual assault is clear from what he said to the victim at the time - "how does it feel if I do it to you?". The applicant intended to attack the victim sexually as a consequence of the victim's sexual attacks on his daughter. 40 I accept that, in contrast to the vast majority of offences of indecent assault, this offence was not committed for the sexual gratification of the applicant. I am not persuaded that that circumstances necessarily renders the offence less heinous. I do not accept that the categories of seriousness of offences of indecent assault can be so readily compartmentalised. I would reject Ground 1 of the application. 41 Ground 2 is founded upon what I consider to be a misconstruction of the sentencing remarks. It is predicated upon the judge having given less weight to the applicant's prior good character because of the "sexual nature" of that offence. It is for that reason that I have set out above that passage in the remarks on sentence. When the whole of that passage is read, it is plain, in my view, that the judge gave considerable weight to the applicant's prior good character. He said he was entitled to have it taken into account "very heavily" in his favour. I would reject ground 2. 42 The submission made in support of ground 3 was made orally. It was made in the context of submissions concerning the weight given to previous good character, but was this: "This is a man of completely unblemished character so that it in my submission, ideas of gratuitous cruelty and the like really go out the window. He is not a man of any violent or sadistic characteristics or tendencies. He overreacted in a terrible way in respect of the bulk of the central offences for a period of four minutes, according to his evidence." 43 Leaving aside the issue of the period of time over which the offences were committed, the proposition is that, because of the applicant's prior "unblemished" character it was an error for the sentencing judge to take into account, in accordance with s 21A(2)(f) of the Sentencing Procedure Act, that the offence involved gratuitous cruelty. I take the submission to encompass a challenge to the finding of fact concerning the circumstances of the offences. The second proposition (that it was erroneous to find that the offences involved gratuitous cruelty) in no way follows from the first (that the applicant was a man of "unblemished" character). Good character does not preclude gratuitous cruelty. If it were correct to find that the offence involved gratuitous cruelty, then the fact of prior good character could not undermine that finding. The facts I have stated above make it clear, in my view, that the finding was incontrovertibly correct. The offences - at least the offence that constituted Count 4 - did involve gratuitous cruelty. The applicant was, of course, entitled to have that balanced against mitigating factors, including his prior good character. But it is quite wrong to suggest that "ideas of gratuitous cruelty … go out the window" because of prior good character. I would reject ground 3. 44 The submission in relation to ground 5 was: "It would appear that part of the reason for the lengthy sentence was to enable an adequate period on parole. This is also redolent of error …" 45 For reasons I have already given, it was entirely proper for the judge to determine the non-parole period that properly represented the totality of the offending. The sentence imposed in respect of Count 4 was erroneous for other reasons, as set out above. It was not erroneous because of the assessment of a proper non-parole period to reflect the overall criminality. 46 During the course of oral argument a submission was made on behalf of the applicant to the effect that a further relevant sentencing consideration arose from the provisions of the Child Protection (Offenders Registration) Act 2000 ("the Offenders Registration Act"). 47 Leave was given to counsel to supplement their submissions, in writing, in this respect. Both provided further written submissions. Because of the nature of the offence of aggravated indecent assault committed against the victim by the applicant, the applicant became a "registrable person" within the meaning of s 3A of that Act. This circumstance carries a series of consequences which will impinge, for some time after his release, upon the applicant's liberty. For example, he will be required to meet annual reporting conditions for a period of 8 years after his release from prison and notify the Commissioner of Police of any interstate travel and provide various other information. The regime provided by the Offenders Registration Act creates a burden for the offender. 48 Senior counsel for the applicant therefore submitted that the regime so imposed constitutes a form of extra curial punishment which it is open to the sentencing court to take into account: see R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398. 49 In making that submission senior counsel acknowledged that the decision of this Court in R v KNL [2005] NSWCCA 260; 154 A Crim R 268 is to the contrary. There, Latham J, with whom Brownie AJA and Buddin J agreed, doubted that, in the circumstances of that case, the requirements as to registration under the Offenders Registration Act could be properly characterised as extra curial punishment entitling the respondent to any mitigation of penalty. Her Honour went on to point out that that respondent was not, at the time of sentence, or likely in the future to be, pursuing any occupation which gave him access to children. That is equally so in the present case (except that the applicant has children of his own). Latham J rejected the proposition that what the Offenders Registration Act required or imposed amounted to extra curial punishment. 50 Senior counsel argued that KNL was a decision on its facts, not one which embodied any authoritative statement of law. Indeed, her Honour added: "I do not mean to suggest that there could never be a case where extra-curial punishment might arise from the requirements of the Offenders Registration Act , but this case fell far short of any penal consequence being visited upon the respondent because of a conviction. Even allowing for some regard to the requirements of registration and the potential restriction on employment, that factor deserved very little weight."

In respect of the final sentence her Honour cited Daetz and Wilson at [62]. 51 It is true that the present is an unusual case to come within the provisions of the Offenders Registration Act. The Offenders Registration Act is plainly designed to provide protection for the victims, past and potential, from individuals who pose a risk to them - that is, a risk that they will commit offences of a sexual nature. On no view of the present case could it be said that the applicant has a predilection sexually to molest children, or is likely to pose such a risk in the future. The Offenders Registration Act does not appear to envisage any exemption from its provisions, even where it can be clearly seen that an offender does not pose a relevant risk. 52 It seems to me that the regime that will be imposed upon the applicant for a period of 8 years could properly qualify for the description "extra curial punishment". The real question is whether that ought to operate in such a way as to reduce the sentence that is appropriate to the offending. 53 Bearing in mind that physical reporting is required only once in each year, I do not regard that requirement as such that it ought to be accorded any weight in the sentencing decision. There may well, however, be a less tangible burden on an offender such as the applicant. He is, for eight years after his release, to be branded a sexual offender, to be known, at least to local police, in that capacity, and will be reminded of his crime, something he would, no doubt, prefer to put out of his mind. I do not regard this as entirely irrelevant. 54 Because of the error in relation to the sentence imposed in respect of Count 4, it is necessary for this Court to consider the question of re-sentencing. Against that possibility the Court admitted an affidavit affirmed by the applicant on 25 January 2008. He repeated his regret at his actions, and asserted that his actions were out of character. He said that his daughter was suffering from the impact of what has happened. In other respects, he deposed, unsurprisingly, to the bleakness of his life in prison, and programmes he has undertaken towards rehabilitation. He annexed a report of a counsellor concerning his daughter, and her response, both to the assaults on her by her cousins, and the absence of her father. None of this comes as any surprise, and it casts no new light upon the sentencing decision. 55 The first issue in this application is whether the overall sentence, including the non-parole period of 4 years, was manifestly excessive. I do not think it was. The second issue is whether the error in relation to Count 4 so affected the sentencing judge as to deflect him from a proper assessment of the overall non-parole period to be imposed, and led him to inflate the resultant figure. I have found this question more difficult to resolve. All things considered, I have come to the view that the error probably did infect that assessment. 56 Accordingly, I propose that the sentence imposed in respect of Count 4 be adjusted, and that the commencement date also be adjusted in order to the correct the error I have identified above. I would otherwise adopt the approach taken by Knight DCJ, including the finding of special circumstances, and the substantial discounts on sentence allowed in respect of the plea of guilty, remorse and contrition, and the benefit to the victim in not having to give evidence. I would adopt the finding of the existence of reasons for departing from the standard non-parole period. The effect of what I propose is to reduce the overall head sentence and non-parole period by 6 months each. 57 The sentence I propose in respect of Count 4 has a starting point of 5 years and 6 months. Adopting the 25 percent discount for utilitarian value reduces that to a little over 4 years. Applying the further discounts (which I assess at no more than 4 months) results in a head sentence of 3 years and 8 months. I would divide that into a non-parole period of 1 year and 8 months, with a balance of term of 2 years. I propose that the sentence be specified to commence on 11 January 2008; the non-parole period to expire on 10 September 2009, and the balance of term to expire on 10 September 2011. 58 I am conscious that this sentence, if it stood alone, would be quite disproportionate to the gravity of the offence; it comes about as a result of the accumulation of sentences. The most important consideration is the issue of totality. In order to achieve the overall sentence I consider appropriate, it has been necessary to adjust the individual sentence applicable to Count 4. 59 The orders I propose are:

(3) In lieu thereof the applicant be sentenced to imprisonment for 3 years and 8 months made up of a non-parole period of 1 year and 8 months commencing on 11 January 2008 and expiring on 10 September 2009, and the balance of term of 2 years, expiring on 10 September 2011. **********

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R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398 R v Fahda (Court of Criminal Appeal, 31 August 1999, unreported) R v Glen (Court of Criminal Appeal, 19 December 1994, unreported) CASES CITED : R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v Pearce [1998] HCA 57; 194 CLR 610 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168

The remarks on sentence 18 Knight DCJ recounted the facts of the assaults, of the applicant's admissions, and the subjective circumstances. He observed (as had been stated in the pre-sentence report and which was, in any case, obvious) that the applicant is a very large man, at the time of the assaults weighing 145 kg. He noted that that fact alone significantly diminished any chance that the victim might have been able to defend himself by resisting the attacks upon him. 19 The judge accepted that the pleas of guilty had been entered at the earliest reasonable opportunity, entitling the applicant to a reduction in sentence in accordance with the principle stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, and allowed the maximum available discount, 25 percent. He characterised the offences as carrying "massive amounts of criminality" and the applicant's conduct as "quite appalling". He described the applicant as having: "… inflicted a torture regime for a comparatively short period of time on this young boy in order to get him to disclose information …" 20 He noted the evidence that the applicant had, during his incarceration, been described as "a model inmate" who was a hard worker, obliging and helpful. It is convenient to extract verbatim some passages of the remarks on sentence. His Honour said: "You were aware of the allegations of sexual misconduct by [the victim] and his brother against your six year old daughter when [the victim] was dropped off at your home that morning. You formed a deliberate intention to speak to him about it. It seems to me that the proper conclusion to draw, and the one that I do draw, is that you had an initial intention of simply discussing the matter with him and not inflicting any pain on him. However, when he refused to answer your questions or to supply the whereabouts of the machine, you then lost control of yourself and attacked the boy. That because the boy persisted in his approach, you escalated your attack on him ultimately using the pliers both to his genitals and to his fingers and I am satisfied that you realised at the time that you were inflicting pain and were quite content for that pain to be inflicted … I am quite satisfied that there was an element here of retribution on your part for the boy's alleged actions in relation to your daughter." 21 He accepted that the applicant was "extremely remorseful" and ashamed of his conduct, and determined that "a further discount of a significant value" ought to be allowed in recognition of that factor. 22 His Honour then gave careful attention to the relevant sentencing factors, set out as aggravating or mitigating features in s 21A of the Sentencing Procedure Act. Section 21A(3)(c) specifically identifies, as a mitigating factor relevant to sentencing: "(c) the offender was provoked by the victim" 23 Of this his Honour said: "Sub-s 3(c) also seems to me to be involved here; that is that the offender was provoked by the victim. I do not use or consider that the word 'provoked' where is is used in paragraph 21A(3)(c) is used in the strict sense of provocation at law. Rather I think it refers to a situation where there was some action on the part of the victim which caused a response on the part of the offender. In this case there was a reason for your actions, albeit one that does not excuse them. The reason was that you had been informed some time before that your daughter had been sexually assaulted by this 10 year old boy. Obviously your actions were very largely conditioned by what had been told to you about what had happened to your daughter and your natural desire, as a parent to protect your child and to conduct yourself in a way that would further her interests. However it must be remarked that here you went far too far and I am satisfied that a large amount of what you did, was in response to [the victim] refusing to supply the information you sought and led to you deliberately inflicting pain on him. Nevertheless I consider that the element of provocation in this case needs to be taken into account in your favour and I do so ." (italics added) 24 He gave considerable weight to the absence of any prior criminal convictions. He noted the standard non-parole period of 5 years that applies to the offence of aggravated indecent assault but, in accordance with the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168, recognised that the applicant's plea of guilty provided sufficient reason to depart from that sentence. However, he considered that the offences: "… fell above the mean for offences of this nature." 25 He considered that the offences constituting Counts 4 and 5 were: "… more serious than the mid range for an offence of this nature." 26 His Honour then said:

It is a matter of some significance in my view when a 42 year old man, that is a man of mature years, comes before the court with no previous criminal record. It is true that in sexual cases, and of course the fourth offence here is a sexual offence, there is authority for the proposition that previous good character is of less significance than in other types of cases but as the decision of Ryan v The Queen [[2001] HCA 21; 206 CLR 267] in the High Court of Australia shows, it is still not irrelevant.

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