Wilson v R

Court of Criminal Appeal (NSW)|2017-03-16|Before: Hoeben CJ, Garling J, Beech-Jones J, Jones J

Solicitors: Stidwill Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/151458 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 15 September 2015 Before: Culver DCJ File Number(s): 2013/151458

Judgment

HOEBEN CJ at CL: I agree with the reasons of Beech-Jones J.
GARLING J: The reasons of Beech-Jones J are those which persuaded me to agree with the orders made by the Court on 16 March 2017.
BEECH-JONES J: This is an application for leave to appeal from a custodial sentence imposed by her Honour Judge Culver DCJ for an indecent assault committed between 1982 and 1983 (Criminal Appeal Act 1912, s 5(1)(c)).

The Offences

Placed before the District Court was an agreed statement of facts concerning the principal offence and the Form 1 offence. I will summarise its contents.
As at the time of sentencing the Applicant was 77 years old. When he committed the principal offence the Applicant was either 45 or 46 years old. He was a self-employed electrician. He lived in the Hills District of Sydney with his family. His family socialised with KT's family on an ongoing basis. The Applicant's daughter and KT were friends.
The agreed facts record that between 1979 and 1985 KT attended the Applicant's home to play with his daughter on a number of occasions and that "[o]n some of these occasions, the [Applicant] indecently assaulted [KT] … by removing his penis from his pants, pushing aside [KT's] underwear and rubbing his exposed penis on the area outside her vagina". The agreed facts state that this "conduct occurred on a regular basis" and that KT "was unable to remember the first time this conduct occurred" although she did recall the specific assaults constituted by the principal offence and the Form 1 offence.
The principal offence took place between 1 November 1982 and 31 March 1983. The victim attended the Applicant's home to show his daughter a dress. The agreed facts state: "The [Applicant] was home but [his daughter] was not. The victim entered the home. The [Applicant] took her to the garage of the home which contained amongst other things a number of sleeping bags. The [Applicant] laid a sleeping bag on the floor and laid the victim on top … . He pushed the victim's green … dress up and removed the shorts that she was wearing underneath it. He then pushed her underwear to one side, took his penis out of his trousers and began rubbing his exposed penis on the skin of the victim on the area outside her vagina. The [Applicant] did not penetrate the victim. The conduct continued until the [Applicant] ejaculated. The [Applicant] then told the victim to remove the green dress which she did. The [Applicant] took the dress and hosed it off and then hung it out to dry. The [Applicant] then gave the victim a netball to play with and told her [that his daughter] would be home soon. The victim shot goals waiting for [the Applicant's daughter] to return home. [The Applicant] did not return home during this time. When the dress dried, the victim put it back on and returned to her home."
The agreed facts record that the Applicant engaged in the "same conduct" on a number of subsequent occasions in different locations including the back of a work van garage as well as the floor, bathroom and master bed room of the family home.
The agreed facts state that the Form 1 offence was the last occasion that the Applicant indecently assaulted KT. As noted, this offence occurred between 1 January 1985 and 31 December 1985. Again the victim attended the Applicant's home to visit his daughter but she was not home. The Applicant took the victim into either the garage or a bedroom. He laid her down and pushed her underwear to the side. The Applicant then removed his penis from his pants and rubbed it on the area of skin outside the victim' vagina. The Applicant said "I want to screw you". The Applicant did not penetrate KT. She went home and complained to her mother. KT told her mother what the Applicant said and that he "touched her down there".
A few days later KT's parents approached the police but they decided not to pursue the matter. The families ceased socialising. In 1999 KT reported the Applicant to the police. However she did not make a written complaint until 2011. The Applicant was arrested and charged in May 2013.

The Sentencing Judgment

The sentencing judgment is clear and comprehensive. The sentencing judge addressed the matters relevant to sentence by reference to 15 topics. The relevant findings can be summarised by reference to those topics.
First, her Honour noted that the maximum penalty for the offences at the time of their commission was 6 years imprisonment.
Second, her Honour noted the Form 1 offence.
Third, her Honour set out in the facts of the principal offence and the Form 1 offence.
Fourth, her Honour summarised a victim impact statement that was delivered by KT during the sentencing hearing. Her Honour described the trauma and suffering experienced by KT as regrettably "to be expected as a consequence of these sorts of offences perpetrated against young children".
Fifth, the sentencing judge addressed the gravity of the principal offence. Her Honour noted that KT was much younger than 16 when it was committed. Her Honour considered the nature of the contact involved in the commission of the principal offence, its duration and its context. Her Honour noted that the contact involved the rubbing of the Applicant's naked penis on the victim's skin and ejaculating. Her Honour concluded that the "simulated sexual intercourse" involved in each offence did not occur in a "split second". Her Honour accepted that the offence did not involve any "pre‑planning" but also did not accept it was isolated. Instead her Honour found that it was part of a course of conduct and occurred while the Applicant was supervising KT. Her Honour concluded that the principal offence was a "serious example" of an offence under s 61E.
Sixth, her Honour addressed the Applicant's criminal history. In 1979 the Applicant was convicted of indecent assault upon a female under the age of 16. He received a recognisance under former s 558 of the Crimes Act. In 1999 he was convicted of six further offences of indecent assault upon a female under the age of 16. For those offences he received a combination of community service and s 558 recognisances. Each of those six offences was committed between 1972 and 1978 and involved three different victims. Her Honour noted that there was a "pattern of offending by the [Applicant] in very similar terms upon all the victims" culminating in the principal offence and the Form 1 offence. Her Honour noted that the principal offence and the Form 1 offence were committed after the Applicant had been convicted of a similar offence in 1979. Her Honour found that his record showed a "continuing attitude of disobedience to the law by the offender up until 1985".
Seventh, her Honour allowed a 10% discount on account of the Applicant's plea of guilty. His plea was entered on the eve of his trial after her Honour delivered a judgment allowing the Crown to rely on tendency evidence.
Eighth, her Honour addressed the Applicant's age, health and personal background. Her Honour noted that the Applicant was being treated for cardiomyopathy, sleep apnoea and the after effects of the amputation and reattachment of his hand in 2014. Her Honour found that the Applicant would receive appropriate medical care in custody. Nevertheless, her Honour accepted that his health conditions were relevant in considering whether special circumstances were demonstrated. Otherwise her Honour noted that the Applicant had separated from his wife in 2004 and since that time he had not had contact with his two daughters. Prior to being sentenced the Applicant performed voluntary work for a charity organisation.
The ninth and tenth matters addressed by the sentencing judge were the Applicant's risk of reoffending and prospects of rehabilitation respectively. Her Honour noted an assessment by a psychologist that the Applicant was "in the low risk category relative to other adult male sex offenders". Her Honour appeared to accept that opinion but added that "[t]here must be some recognition … of a residual risk" and that he "could not be said to be absent a risk of re‑offending" especially as he had committed offences after he was convicted in 1979.
The eleventh matter the sentencing judge addressed was the delay in the prosecution. Her Honour accepted that delay in the prosecution of an offence can be relevant in that it may leave an offender in "a state of anxiety and uncertainty" about the outcome of any investigation. However her Honour did not accept that there was any evidence of his experiencing anxiety over this matter since 1985. Otherwise, her Honour accepted that the passage of time was of assistance to the Applicant in that he had not committed offences in the meantime and that the delay in prosecuting the matter "contributes to the finding of special circumstances".
The twelfth matter her Honour addressed was the sentencing principles applicable to historical sexual offences. Her Honour accepted that the Court was bound to take into account the sentencing practice prevailing "as at the date of the commission of an offence when sentencing practice has moved adversely to an offender" (citing Regina v MJR [2002] NSWCCA 129; 54 NSWLR 368; "MJR"). Further her Honour also accepted that the historical approach to the setting of non‑parole periods was a "matter that will feature in a finding of special circumstances in this case". In a passage that is of significance to this application, her Honour referred to the practice of determining non-parole periods when the principal offence and Form 1 offence were committed stating: "The Court has been referred to the fact that any relativity between parole and non-parole [periods] was ordinarily framed in a ratio where the parole period was in the order of one-third to one-half of the total sentence, unlike the current ratio where no special circumstances are found." (emphasis added)
The thirteenth matter the sentencing judge addressed was the significance of the Form 1 offence. Her Honour found that matter was of "equal significance" to the principal offence and was also part of a "pattern of conduct". Her Honour concluded that, having regard to the need for personal deterrence and retribution, the Form 1 offence justified "increasing the penalty that would otherwise be appropriate" (citing Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146; see also Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [22] to [23] per Bathurst CJ, at [64] per Basten JA, at [104] per Hoeben CJ at CL and at [154] per Garling J).
The fourteenth and fifteenth matters addressed by her Honour were the necessity to impose a custodial sentence and the term of the sentence respectively. Consistent with the extract set out in [27] above the parole period was 42% of the total sentence.

Additional Evidence on Sentence

At the hearing of the appeal an affidavit from the Applicant sworn 2 March 2017 was read. The affidavit was received by the Court on the basis that it would be considered if error was shown and the Court came to resentence the Applicant (Betts v The Queen [2016] HCA 25).
In his affidavit the Applicant outlines the difficulties he has experienced in receiving treatment in custody as a consequence of the surgery to reattach his hand. At some point the Applicant had a bone from his hip grafted into his left forearm. When the Applicant first entered custody his left forearm was in a cast. The Applicant states that he has experienced difficulties in obtaining painkillers and equipment to bathe his forearm. He also states that since being incarcerated he has not had access to a machine that assists him with his sleep apnoea. Further, in September 2016 the Applicant suffered a stroke. It has left him weak in the left side of his body and particularly affected his left wrist. He describes the difficulties in movement that he experiences in gaol including defecating. He also suffers from back pain and continues to suffer from sleep apnoea. Medical records were tendered indicating that he suffered the stroke on 28 September 2016. He was admitted to hospital and released on 7 October 2016.

The Grounds of Appeal

The Applicant's notice of appeal filed 26 October 2016 raised four grounds of appeal namely:
Her Honour erred in her consideration of the Applicant's risk of re-offending and his prospects of rehabilitation in the context of the 30 year delay in prosecution.
Her Honour erred in only taking into the account the Applicant's serious physical disabilities rendering imprisonment more burdensome as a special circumstance.
Her Honour erred in her consideration of general deterrence, retribution and accountability.
The sentence is manifestly excessive.
Just prior to the hearing of the application, the Court drew the parties' attention to the discussion in Denham v R [2016] NSWCCA 309 at [41] to [56] of the practice adopted by sentencing courts in the 1980's when setting non-parole periods. As a consequence, at the hearing of the application the Applicant sought and was granted leave to add two further grounds of appeal namely:
Her Honour failed in her application of sentencing practices at the time of the offence relevant to the relativity between the non-parole period to the term of the sentence.
Her Honour failed to give effect to her findings of special circumstances.
I will address grounds 5 and 6 together.

Grounds 5 and 6: Historical Approach to the Setting of Non‑Parole Periods

As noted by her Honour, it is accepted in New South Wales that it is proper for a sentencing court to take into account the sentencing practice prevailing as at the date of commission of the offence charged when sentencing practice has moved adversely to an offence since that time (MJR at [31] per Spigelman CJ, at [71] per Grove J and at [105] per Sully J). In AJB v Regina [2007] NSWCCA 51 ("AJB") Howie J (with whom Adams and Price JJ agreed) rejected an attempt to extend MJR so as to require that account be taken of the policy of the executive government in 1982 to grant remissions on head sentences (at [31]). However his Honour did accept that this Court (and sentencing courts) "should endeavour to apply the practice that existed in 1982 in specifying a non‑parole period" (at [37]). His Honour found that this would be accommodated by a finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act so as to "avoid [the] unfairness that would arise by reason of the delay in the prosecution of the current charges as a result of a change in the law in relation to the determination of the appropriate non-parole period" (AJB at [37]; cf MPB v R [2013] NSWCCA 213 at [31] per Basten JA; "MPB"). Further, Howie J found that "in 1982 a non-parole period was fixed at somewhere between a third and a half of the term of the sentence" (emphasis added) (AJB at [39]). This assessment of the prevailing practice in 1982 concerning the fixing of non-parole periods has been consistently applied in this Court since AJB was decided (Bradbery v Regina [2008] NSWCCA 93 at [36] per Mathews AJ with whom Mason P and Latham J agreed; CPW v R [2009] NSWCCA 105 at [69] per James J with whom McLellan CJ and CL and Adams J agreed; MPB at [93] per Garling J with whom R A Hulme J agreed; Henderson v R [2016] NSWCCA 8 at [44] to [46] per Hoeben CJ at CL, Bathurst CJ and R S Hulme J agreeing; "Henderson").
There was no challenge to any of these propositions on this application. Thus ground 5 of the application reduced to the simple proposition that the passage extracted in [27] above reveals that her Honour erred, or more correctly was led into error, in finding that the ordinary sentencing practice at the time of the commission of the principal offence was that the ratio of the parole period to the total sentence was between one third and one half. Instead, as the various decisions just cited demonstrate, the ordinary sentencing practice at the time of the commission of the offence was that the ratio of the non-parole period to the total sentence was between one third and one half.
The sentence imposed by her Honour reveals that this error was applied in determining the sentence. In the sentencing judgment, her Honour referred to a number of matters that could be considered "special circumstances" and thus warranted a reduction in the non-parole period. However, the non‑parole period of the Applicant's sentence was 58% of the total sentence which is well above the range of ratios that a non‑parole period bore to a total sentence during the relevant period as stated by Howie J in AJB namely, one-third to one half. In contrast the parole period of the Applicant's sentence was 42% of the total sentence which was well within the incorrect range of ratios that her Honour set out in the extract set out at [27] above.
In both Denham (at [56]) and Henderson (at [46] to [48]) a failure by a sentencing judge to take into account the correct position concerning the historical sentencing practice in setting non‑parole periods was found to establish error justifying this Court's interference. No different conclusion is warranted in this case.
It follows that ground 5 is made out.
It also follows that ground 6 is made out in that the effect of her Honour's misstatement of the applicable practice in setting a non‑parole period in 1982 meant that her Honour did not give effect to the findings her Honour made in respect of various matters that were said to establish "special circumstances".
However it is necessary to note that I do not accept one of the criticisms made in the Applicant's supplementary submissions in support of ground 6. In those submissions it was contended that her Honour erred in confining any consideration of the Applicant's poor health to a determination of whether "special circumstances" had been shown and thus whether the non‑parole should be reduced. This submission cross referred to the Applicant's written submissions in support of ground 2 which contend that the Applicant's poor health was also relevant to a determination of the Applicant's head sentence (citing Regina v M A [2004] NSWCCA 92 at [33] per Dunford J with whom Studdert and James JJ agreed).
I do not accept that her Honour made any such error. The matters affecting an offender's health can be taken into account both in the fixing of a head sentence and the determination of the non‑parole period (see Bugmy v The Queen [1990] HCA 18; 169 CLR 525 at 531 per Mason CJ and McHugh JJ; Griffiths v The Queen [1989] HCA 39; 167 CLR 372 at 379 per Brennan and Dawson JJ; Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704) although the weight to be attached to those factors will or may vary at each step in the sentencing process (M A at [33]; Bugmy at 531). In particular any double counting of matters affecting the length of the head sentence and matters that might constitute special circumstances must be avoided (Regina v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ). In the Applicant's case there was no error per se in her Honour's approach of affording weight to the Applicant's health issues at the point of determining the non‑parole period rather than when determining the overall sentence. To have done otherwise in his case would have to been to double count this factor.

Ground One: Finding in Relation to the Risk of Reoffending

Error having been established the remaining grounds of appeal do not arise. Instead, this Court is obliged to undertake an "independent exercise of its discretion" (Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35], [42] and [43]; "Kentwell") and determine whether some lesser sentence is warranted in law or the "same sentence or a greater sentence is the appropriate sentence" (Kentwell at [43]) (Criminal Appeal Act 1912, s 6(3)). In that regard the Crown's submission was that no lesser sentence is warranted. Before I address this issue it is necessary to address one aspect of ground 1 as it concerns a finding relevant to resentencing.
The written submissions in support of ground 1 challenge both her Honour's finding about the Applicant's risk of reoffending and prospects of rehabilitation and the extent to which her Honour gave effect to the finding that was made on that topic in fixing the non‑parole period. The latter complaint falls away given the success of grounds 5 and 6. The former complaint has no substance.
The essence of the Applicant's submission about her Honour's findings concerning the Applicant's prospect of reoffending is that, given that the Applicant was not convicted of any offence committed in the 30 years after he committed the Form 1 offence, her Honour was obliged to find that there was low risk of the Applicant of reoffending. In fact her Honour accepted he was a "low risk" but also found that the Applicant represented a "residual risk" and that a risk of reoffending was not "absent". Her Honour's qualification of the finding that the Applicant was a "low risk" of reoffending was well founded. Her Honour also noted that the psychologist who described the Applicant as being in the low risk category did not discuss the circumstances of the offences with him and recommended that, if the Applicant was imprisoned, then he should attend a custody based intervention program. Otherwise, from 1972 to 1985 the Applicant was a persistent and serious sex offender who preyed on young girls. As her Honour noted, despite being discovered and convicted in 1979 he still offended against KT in 1982 and 1985.

Resentencing and Whether a Lesser Sentence is Warranted

Subject to three matters, in considering the appropriate sentence for the Applicant, I accept and adopt the findings of the sentencing judge noted in [20] to [25] and [28]. In particular, the nature of his conduct, the age of his victim and the level of authority he exercised more than justified her Honour's characterisation of the principal offence as a very serious example of an offence under s 61E. The same observations apply with respect to the Form 1 offence. Both offences formed part of a pattern of offending that the Applicant persisted with after he was convicted of a similar offence in 1979.
The first matter concerns the deterioration in the Applicant's medical condition since he was incarcerated. As noted, since he was sentenced the Applicant has continued to experience difficulties with the aftermath of his hand operation. More relevantly it can be accepted that the stroke suffered by the Applicant in September 2016 has made his time in custody more difficult (R v Badanjak [2004] NSWCCA 395 at [9] per Wood CJ at CL with McClellan AJA and Smart AJ agreeing; R v Smith (1987) 44 SASR 587 at 589). I have already outlined the approach to be taken in sentencing an offender with health issues. In the Applicant's case, and unlike the sentencing judge, I propose to take into account his medical condition in determining the length of the head sentence. I propose to adopt this approach because from this point the balance of the Applicant's sentence is likely to be served in the community and a reduction in his head sentence will recognise the extra hardship that he has already endured as a result of his stroke.
The second matter concerns the delay in the prosecution of the Applicant. As noted by her Honour such delay can be relevant in that the "uncertain suspense in which a person may be left" for an extended period can be taken into account (R v Blanco [1999] NSWCCA 121; "Blanco" at [16]). However in this case there was no evidence to base any finding that the Applicant experienced any uncertainty or anxiety. Also, delay between the commission of an offence and the imposition of a sentence can enable an offender to demonstrate progress towards rehabilitation in the intervening period (Blanco at [16]). In this case the Applicant has had the benefit of a 30 year period from 1985 without having committed any offence that led to a conviction although that must be considered against a 13 year period of persistent sex offending. Finally with delay it is also said that a "sentence for a stale crime does call for a measure of understanding and flexibility of approach" (Blanco at [16]). I do not accept that the commission of an offence on someone so young even 30 years ago should necessarily be considered a "stale crime".
The third matter concerns the approach that this Court must adopt in taking into account the prevailing sentencing practice for an offence of this kind including the approach to non‑parole periods which has been described above at [35].
Allowing for the Applicant's plea of guilty and his health conditions I considered that the appropriate head sentence was 3 years imprisonment (and thus a lesser sentence was warranted). These were serious offences and the Applicant was a persistent sex offender. However his subjective case has strengthened because of the absence of offences in the intervening period although the existence of a residual risk of reoffending cannot be excluded even allowing for his age and medical condition. A sentence of 3 years imprisonment represents half the maximum penalty for the offence. I consider that is appropriate for a serious offence committed by a recidivist with a complex subjective case.
I also proposed fixing a non‑parole period of 18 months and 2 days, that being at the upper end of the range stated by Howie J in AJB; ie half of the head sentence. As the sentence imposed is 3 years, the Court must make an order directing the release of the Applicant at the end of his non‑parole period Crimes (Sentencing Procedure) Act, s 50(1)).
The Court is empowered to impose conditions on the Applicant's release on parole (Crimes (Sentencing Procedure) Act, s 51(1)). However an order of this Court directing the Applicant's release on parole is also defined to be a "parole order" for the purposes of the Crimes (Administration of Sentences) Act 1999 (s 3). As a consequence his release is subject to the standard conditions imposed on parole orders by that Act and the Regulations made under it as well as any additional conditions imposed by the Parole Board (s 128(1)(a), s 128(1)(c)). It is to be expected that, under that regime, the Parole Board will impose a condition that the Applicant not be allowed to reside with, or have unsupervised access to, persons under the age of 16.
It was for these reasons that I joined in the orders of the Court made on 16 March 2016.

Amendments 05 April 2017 - The words "and resentencing" removed from the end of the heading to [46] 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: 05 April 2017

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