Woodward v R

Court of Criminal Appeal (NSW)|2016-10-31|Before: Beazley P, Hulme J, Bellew J

Solicitors: O'Brien Solicitors Solicitor for Public Prosecutions File Number(s): 2013/195895 Decision under appeal Court or tribunal: District Court Date of Decision: 2 October 2014 Before: Conlon SC DCJ File Number(s): 2013/195895

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with his Honour's reasons and proposed orders.
R A HULME J: Geoffrey Woodward ("the applicant") seeks leave to appeal in respect of an aggregate sentence of imprisonment imposed by Conlon SC DCJ in the Wollongong District Court on 2 October 2014.
For a number of child sexual assault offences committed in the early to mid-1970's the applicant was sentenced to an aggregate term of imprisonment for 18 years with a non-parole period of 9 years. He will become eligible for release on parole on 22 February 2022.
The offences comprised five counts of rape and one count of buggery. Rape was an offence punishable by penal servitude for life pursuant to s 63 of the Crimes Act 1900 (NSW). Buggery was an offence punishable by penal servitude for 14 years pursuant to s 79 of the same Act.
At the applicant's request the judge took into account an offence of indecent assault which was an offence contrary to s 76 (maximum penalty 5 years penal servitude) and two offences of carnal knowledge by a father which was an offence contrary to s 78A (maximum penalty 7 years penal servitude). These offences were listed on a Form 1 document and some problems with the manner in which they were taken into account will be addressed below.

Details of the offences

The applicant is the natural father of the complainant. He sexually assaulted her on a number of occasions between 1973 and 1975 when she was aged between 10 and 13. It was an undisputed fact that the offences charged were representative of a sustained course of repetitive offending.

Count 1 - rape - 9 March - 1 April 1973 - indicative sentence: 6 years

On a family holiday in March 1973 the applicant took the complainant on a boat to a small island where he removed her shorts and underwear and had penile vaginal intercourse with her, ejaculating on her stomach. This was the first occasion when the applicant had sexually assaulted the complainant. He told her not to tell anyone. She was 10 years of age; soon to turn 11.

Count 2 - rape - 1 April - 31 May 1973 - indicative sentence: 6 years

This event occurred a week or two after the event in Count 1 and after the family had returned from holidays. The complainant had turned 11. On this occasion the applicant made her stand in a passageway of the home. He lifted her school skirt, removed her underwear and had penile vaginal intercourse with her.

Form 1 - indecent assault - 1973

Soon after the event in Count 2 the applicant took to entering the bedroom the complainant shared with her younger sister. He would wake her and tell her to be quiet so as not to wake her mother. He then digitally penetrated her vagina. One such event was taken into account but the statement of facts asserted that this occurred on a regular basis.

Count 3 - rape - 1 May 1973 to 31 May 1974 - indicative sentence: 6 years

There was an occasion when the applicant took the complainant from her bedroom to the lounge room. He lifted her top and felt her breasts and then took off her pants and touched her vagina with his erect penis. He then had penile vaginal intercourse with her. The complainant was 11 years of age. The applicant threatened that if she told anyone she would never see her brother again.
After the complainant had sex education classes at school when she was aged about 12 she asked the applicant why he was having sex with her when he was only supposed to have sex with her mother. He replied, "The school has taught you wrong. I love you and that's the reason that I do it."

Count 4 - rape - 1 May 1974 to 30 June 1974 - indicative sentence: 6 years

This offence concerned an occasion when the applicant took the complainant for a drive. He stopped the car, took a blanket out and put it on the ground. He made the complainant lie on the blanket and took off her clothes. He removed his own clothing and had penile vaginal intercourse while she was crying.

Count 5 - rape -1975 - indicative sentence: 6 years

By 1975 the applicant had put the complainant on the contraceptive pill. There was an occasion when she was aged 12 or 13 when he again had penile vaginal intercourse with her in the passageway in the family home after having sent the complainant's younger sister outside to play.

Form 1 - carnal knowledge by a father - 1975

On another occasion in 1975 the applicant had penile vaginal intercourse with the complainant in a caravan that he kept in the backyard.

Form 1 - carnal knowledge by a father - 1975

On a further occasion in 1975 the applicant had penile vaginal intercourse with the complainant in the corridor of the family home while her mother was at work and her younger sister was playing outside.

Count 6 - buggery - 1975 - indicative sentence: 7 years

On this occasion the applicant made the complainant turn around and tried to insert his penis into her anus. He said, "We should try it a little and if it hurts I'll stop". She said he was gentle at first but when he penetrated her fully she screamed.
The statement of facts includes that the applicant persisted with anal intercourse on a number of occasions before reverting to vaginal intercourse.
The complainant disclosed the assaults to a friend when she was aged 14 (1976-1977) and to her mother in 1978 in the presence of the offender. Her mother asked the applicant if he denied the accusation and he replied, "No I won't". Her mother then filed for divorce, citing incest as the ground. The complainant provided an affidavit for the purpose of those proceedings in which she described ongoing sexual assaults from the age of 10 until 1978.
In a recorded telephone conversation between the applicant and the complainant in 2010 he apologised for everything that had happened and explained that he had become "obsessed with her". He also said that he had no excuse and that he knew that it was wrong.
The applicant was extradited from the United Kingdom in June 2013. He participated in an interview in which he denied all allegations of sexual impropriety with his daughter and said that she was a liar.
On 2 October 2013 he entered pleas of guilty in the Local Court and was committed to the District Court at Wollongong for sentence.
A victim impact statement before the sentencing judge relayed the pain that the applicant had inflicted upon the complainant and the long term effects of the abuse upon her and her relationships, including with her husband. For my part, I consider it one of the most eloquent and instructive victim impact statements I have read.

The further offences taken into account

The Form 1 document listing the further offences referred to the applicant being "charged with the offence of rape before the Wollongong District Court". It did not specify a particular offence in respect of which these further offences were to be taken into account: the "principal offence" to use the terminology of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The submissions for both parties in the District Court did not deal with the issue and, apart from a general reference to how further offences are to be taken into account, neither did the sentencing judge. The indicative sentences for each of the rape offences are identical so it appears that the judge may have taken the further offences into account in some global but otherwise unspecified way. Error in relating further offences sought to be taken into account to a specific offence for which an offender is to be sentence is not without precedent: Doumit v R [2011] NSWCCA 134 at [13]-[17].
Another aspect of this issue is that no attention was paid to the basic statutory requirements: for example, the requirement in s 33 of the Crimes (Sentencing Procedure) Act to inquire of the offender whether he or she admits guilt in respect of the further offence(s) and asks that it/they be taken into account. Such formalities are not empty gestures and it has been said that courts should be astute that they are complied with: R v Felton [2002] NSWCCA 443; 135 A Crim R 328 at [3]; R v Brandt [2004] NSWCCA 3; 42 MVR 262 at [8].
However, just as in R v Felton and R v Brandt, the point was not taken in this case. While this Court understands the heavy workload facing the District Court, it is important to highlight the necessity for attention to mandatory statutory requirements.

Personal circumstances of the applicant

The applicant was born in 1941. He was in his early 30's at the time of the offences and was aged 73 at the time of sentencing.
He had no previous (or subsequent) criminal convictions.
Reports by Dr Gerald Chew, consultant psychiatrist with the Justice Health & Forensic Mental Health Network, and by Ms Laura Durkin, clinical and forensic psychologist, were tendered to the learned sentencing judge.
Dr Chew's report of 10 February 2014 was relatively brief but he was responding to a judicial request to address a limited range of issues. Ms Durkin's report of 30 May 2014 was considerably more detailed. The applicant's history that is portrayed in the reports does not indicate anything of particular significance for present purposes in his formative years, his adult life, employment history, relationships or social life. There were certainly a number of difficulties he has faced but nothing particularly pertinent to an understanding of his offending behaviour.
Of present relevance is the account of the applicant's physical and mental health. He gave a history to Dr Chew that included mild dementia; significant cardiovascular disease; previous mild strokes; hypertension; type-2 diabetes; and gall bladder issues. A hearing problem was also evident (as it was at the hearing in this Court).
Dr Chew suggested that there be further investigation of the applicant's dementia as to whether it is Alzheimer's, vascular, or both. He noted that a British Medical Journal study had shown the median lifespan for a person aged about 60 diagnosed with dementia was about 6.7 years but said that the applicant's dementia appeared to be progressing more slowly than this. Dr Chew recommended a thorough review by a geriatrician and/or a psycho-geriatrician.
Ms Durkin's report did not include anything about the applicant's mental or physical health that went beyond that provided in Dr Chew's report.
One matter of particular significance in Ms Durkin's report is the applicant's account of his attitude towards his offending. It is apparent that he tended to minimise the gravity of it, including by attributing blame to the complainant for what he alleged was her promiscuity. He is reported to have said, "it's not rape, it's incest and most of the time she consented". Ms Durkin said: "Mr Woodward seems to have little empathy for his daughter, is engaging in victim [blaming] and he appears to lack an understanding of the effect such abuse may have had on his daughter's wellbeing." (AB 63 [36]) "Mr Woodward described a particularly strong, and unusual, affection for his eldest daughter. Over the years, it appears that he came to justify his abuse of her as an expression of that affection and, indeed, he seems to have even perceived his actions as, in part, protective, ensuring his daughter did not engage in sex with other men. These distortions in thinking remain current and it is evident that Mr Woodward lacks insight into the impact his thinking had on his conduct [and] the inappropriateness of his views." (AB 68 [57])
Ms Durkin recommended that the applicant's dementia would benefit from ongoing review and anticipated that intervention of some description will be required in the future. She seemed to be more concerned at the time of her assessment for his physical health. She said: "Mr Woodward's physical health generally is poor and particular attention to his physical wellbeing will be important to improve his long-term outcomes. … [G]enerally speaking, Mr Woodward's needs post release are more likely to be focused around his physical health. He is not a well man and his mental state is only likely to continue to deteriorate given the diagnosis of dementia." (AB 69 [59]-[60])

The sentence proceedings

The proceedings on sentence on 6 June 2014 were confined to the tender of documents, the reading of the complainant's victim impact statement on her behalf and some relatively brief oral submissions. The applicant's representative provided written submissions, some statistics, cases and other materials dealing with the issue of sentencing for historical child sexual assault offences. The learned judge reserved his decision until 2 October 2014. Aspects of the sentencing judgment will be referred to where necessary in dealing with the various grounds of appeal.

Grounds of appeal

The applicant seeks leave to appeal on the following grounds: 1 His Honour erred in having regard to a maximum penalty which has since been reduced. 2 His Honour failed to have regard to the sentencing practices that applied at the time of the offences. 3 His Honour failed to give sufficient weight to the age and ill-health of the applicant. 4 The sentence was manifestly excessive.

Ground 1 - error in having regard to a maximum penalty which has been reduced

I have previously mentioned that the penalty for the common law offence of rape at the time of the applicant's offending was penal servitude for life. In Magnuson v R [2013] NSWCCA 50 at [125], Button J referred to the "modern analogue" of such an offence committed against a person under the age of 16 as the offence of aggravated sexual intercourse without consent in s 61J(1) for which the prescribed maximum penalty is imprisonment for 20 years. There is also prescribed under the Crimes (Sentencing Procedure) Act a standard non-parole period of 10 years (which does not apply to offences committed before 1 February 2003).
The sentencing judge referred to a number of authorities dealing with the issue of delay and, in particular, sentencing for sexual assault offences that were committed many years ago. In the course of this he quoted from the judgment of Latham J in R v EGC [2005] NSWCCA 392 at [41] (he omitted the internal citations which I have included): "In the absence of relevant statistical material, the approach set out by Howie J in Moon at 511 [67] - [71]; is the correct one; R v MJR (2000) 54 NSWLR 368 at 384. In summary, a court must have regard to the maximum penalty for the offence at the time the offence was committed, and the court must consider where in the range of conduct covered by the offence the particular criminal conduct committed by the offender falls. In undertaking that exercise, the subjective features of the offender ought not overshadow the objective gravity of the offence: Dodd (1991) 57 A Crim R 549."
Given the reference in that passage to R v Moon [2000] NSWCCA 534; 117 A Crim R 497 and Conlon DCJ's later mention of it, I will quote the relevant passage in the judgment of Howie J: "[65] It may be the case that crimes similar to those committed by the applicant are now dealt with more harshly than they were at the time when the applicant committed his offences. If so, this would probably be a reflection of a change in the legislature's attitude to such conduct evidenced by a change in the nature of the offence proscribing that conduct and an increase in the maximum penalty applicable to such an offence; Sha (1988) 38 A Crim R 334 at 335. [66] Where there has been a change in the policy of the legislature to a particular type of criminal conduct, judicial attitudes to that conduct must respect the change of policy and reflect it in the sentences imposed on those who commit offences under the new statutory regime; R v Peel [1971] 1 NSWLR 247. But, notwithstanding changes in the structure and nature of offences over time, the fundamental approach adopted by the courts in determining the appropriate sentence that will reflect the legislature's policy remains the same. [67] Firstly, the court must have regard to the maximum penalty for the offence at the time when the crime was committed. This will indicate the policy of the legislature at the time the offence was committed: Oliver (1980) 7 A Crim R 174. It will prescribe the limit of the court's discretion, as the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; Ibbs v The Queen (1987) 163 CLR 447 at 451. Prima facie the maximum penalty indicates the seriousness of the offence: Gilson v The Queen (1991) 172 CLR 353 at 364. [68] Secondly, the court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; Ibbs, above, at 452. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie. [69] A pattern of sentencing, if available, will also indicate the range of appropriate sentence for the type of conduct under consideration. But this pattern will reflect "the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature": Oliver, above, at 177. [70] The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. [71] When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time."
The last of the cases referred to by Conlon DCJ was Magnuson v R. His Honour said: "In Magnusson [sic] Button J when noting at para 125 that the maximum penalty for rape (formerly life) had in fact decreased stated as follows: 'The maximum penalty for rape has decreased, although, if one considers the offence of sexual intercourse without consent with a person under the age of 16 years [s 61J of the Crimes Act] as the modern analogue on the facts of this appeal, it retains a substantial maximum penalty of imprisonment for 20 years. It also features a standard non-parole period that of course did not exist in the 1970s.' In the present matter I am of the view there is an absence of relevant statistical material, and accordingly I will approach this sentencing task in accordance with R v Moon [2000] A Crim R 497 at para 70 [sic] and R v EGC [2005] NSWCCA 392 at 41."

The first limb of the applicant's argument

In written submissions, counsel for the applicant argued that by referring to R v Moon and R v EGC, his Honour was saying, in effect, that in the absence of relevant statistical material he would have regard to the maximum penalty for the offence at the time that the offence was committed and would consider the range of conduct covered by the offence. Notwithstanding the reference to the reduction in the maximum penalty for rape in the passage quoted from Magnuson v R, his Honour expressly, but erroneously, had regard to the maximum penalty at the time of the offence which, in the case of rape, was life imprisonment. (AWS [13]-[15])
This characterisation of his Honour's approach cannot be accepted. It cannot be the case that he referred to what Button J said in Magnuson v R at [125] and then completely ignored it. It seems clear enough to me that his Honour was simply saying that in the absence of material that would establish the pattern of sentencing prevailing at the relevant time he would approach the matter as described in R v Moon and R v EGC but would have regard to the fact that the maximum penalty for the equivalent offence now was less.

The second limb of the applicant's argument

In oral submissions, counsel advanced a further argument after the Court had notified the parties before the hearing that it would like counsel to address another aspect of the history of the common law offence of rape and its subsequent statutory equivalents. Briefly, it was contended that the applicant's conduct, which was once susceptible to a maximum penalty of life, had become an offence punishable by 10 years, and later punishable by 20 years. He should have the advantage of the reduction to 10 years but not be subject to any regard being had to the increase to 20 years. It was submitted that this was consistent with the policy of the criminal law that offenders should receive the benefit of any reduction in penalties but not be subject to later increases.
In order to assess the argument it is necessary to trace some rather convoluted history of the statutory offences that were created following the abolition of the offence of rape. I will confine this to what is presently relevant; the complete history is a very dark well which is unnecessary to fathom completely.

Rape

The common law offence of rape was abolished as of 14 July 1981 by the Crimes (Sexual Assault) Amendment Act 1981 (NSW). It created in lieu various categories of sexual assaults which included: "Sexual assault category 1 - inflicting grievous bodily harm with intent to have sexual intercourse." Offences of this nature were in s 61B and the maximum penalty was penal servitude for 20 years. "Sexual assault category 2 - inflicting actual bodily harm, &c, with intent to have sexual intercourse." Offences of this nature were in s 61C and the maximum penalty was penal servitude for 12 years. "Sexual assault category 3 - sexual intercourse without consent." Offences of this nature were in s 61D and the maximum penalty was "penal servitude for 7 years or, if the other person is under the age of 16 years, to penal servitude for 10 years".
The most comparable of these new offences with the applicant's crimes of rape was the offence in s 61D(1) where, because of the age of the complainant, the maximum penalty was penal servitude for 10 years.
It needs to be recognised that although there was a reduction in the maximum penalty applicable to conduct that would formerly be prosecuted as rape, it was not as substantial as might first appear. The new categories of sexual assault were not independent or stand-alone offences: R v PJ Smith [1982] 2 NSWLR 569. The scheme was to provide for prosecution of a category 1 or 2 offence alone if sexual intercourse did not occur but also for a category 3 offence if it did. Accordingly, an offender who inflicted grievous or actual bodily harm with intent to have sexual intercourse, and proceeded to have sexual intercourse without consent, would be liable for prosecution for a s 61B or s 61C offence as well as a s 61D offence and be liable to a total maximum penalty of penal servitude for 27 years or 19 years as the case may be. If the victim was under the age of 16 years, the offender would be exposed to a potential maximum of 30 years or 22 years.
The Crimes (Child Assault) Amendment Act 1985 (NSW) inserted sub-s (1A) in s 61D so as to provide an offence of sexual intercourse without consent with a person under the age of 16 years who was under the authority of the offender. The maximum penalty was penal servitude for 12 years. This offence involved conduct the same as the applicant's offence of rape.
Section 61D was further amended by the Crimes (Personal and Family Violence) Amendment Act 1987 (NSW) so as to provide for an increase in the maximum penalty for the basic offence of sexual intercourse without consent to penal servitude for 8 years (in lieu of 7 years). Such an offence committed in company became an offence punishable by penal servitude for 10 years, or, if the victim was aged under 16, for 12 years: new s 61D(1B). Where the offence was committed in company and the victim was under 16 and also under authority, it was punishable by penal servitude for 14 years: new s 61D(1C). The cumulative maximum penalty for what would formerly be prosecuted as rape accordingly became anything from 8 years to 34 years.
A degree of rationalisation of this progressive confusion of offences substituted for the offence of rape soon came and it was accompanied by Parliament's realisation that the penalties had been out of keeping with community expectations.
As of 17 March 1991, the sexual assault offences in s 61B to s 61D (and s 61E which was concerned with indecent assault) were abolished and replaced by a new regime with higher maximum penalties: Crimes (Amendment) Act 1989 (NSW). Sexual intercourse without consent with a person under the age of 16 became an offence pursuant to s 61J(1) for which the maximum penalty was (and remains) imprisonment for 20 years.
The Attorney General explained in his second reading speech for the 1989 Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 November 1989 at 13569): "The existing sexual assault provisions contained in the Crimes Act 1900 have long been lagging behind community standards. The penalties prescribed are too low for the criminality involved in these serious offences. … My aim in introducing the Crimes (Amendment) Bill is to bring the sexual assault laws into line with community expectations by increasing the penalties, extending their scope, and introducing a new, simplified scheme of offences to clarify the law."
The Attorney General described the increase in the maximum penalty for the basic offence of sexual intercourse without consent in s 61I to "a more realistic" 14 years (formerly 8 years under s 61D).

Buggery

The common law offence of buggery (and the offence of bestiality) was punishable by s 79 of the Crimes Act with penal servitude for 14 years. By the Crimes (Amendment) Act 1984 (NSW), the reference to buggery in the section was removed. Various offences concerning "homosexual intercourse" with persons under the ages of 10 and 18 were inserted elsewhere in the Crimes Act. Section 580 was inserted so as to prohibit a prosecution for buggery (committed thereafter) at common law.
Accordingly, a crime in the nature of the applicant's offence of buggery in Count 6 committed after the 1984 amendments took effect (8 June 1984) would have been prosecuted under s 61D(1) which, as noted above, had a maximum penalty of penal servitude for 10 years. Currently the same activity would fall for prosecution under s 61J(1) with the maximum penalty of 20 years.
In respect of both the offences of rape and buggery, liability for prosecution for offences committed before these amending Acts was preserved by operation of s 8 of the Interpretation Act 1897 (NSW) and subsequently s 30 of the Interpretation Act 1987 (NSW).

Relevant principles

In R v MJR [2002] NSWCCA 129; 54 NSWLR 368 it was held by four of the members of a specially convened five-judge bench of this Court that where sentencing practice has moved adversely to an offender it is necessary to have regard to the sentence practice as at the date of the commission of the offence.
That sentencing policy is reflected in s 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW): 19 Effect of alterations in penalties (1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty. (2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement. (3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.
Spigelman CJ in R v MJR said in relation to s 19: "[27] Section 19 of the Crimes (Sentencing Procedure) Act 1999 and its predecessor [s 55 of the Interpretation Act 1987 (NSW)] reflects a principle of perceived fairness applicable to maximum and minimum penalties, which it is appropriate to adopt for other aspects of the exercise of the sentencing discretion."
Section 19 does not have direct application to the present issue. The penalty for rape and buggery was not reduced by Parliament; rather, the common law offences were replaced with statutory offences in somewhat different terms.
A similar situation arose for consideration in R v Ronen [2006] NSWCCA 123; 161 A Crim R 300 where the offenders were sentenced for offences of conspiracy to defraud the Commonwealth of taxation revenue. There were two counts in the indictment but that was only because within the period in which the conspiracy was on foot there was a change to the statutory provisions prescribing the offences charged. The maximum penalty under both provisions at the relevant time was imprisonment for 20 years. After the offences but before sentencing the most recent offence making provision in the Crimes Act 1914 (Cth) was repealed. In its place, a series of offences was created in the Criminal Code whereby the maximum penalty for similar offending was imprisonment for 10 years.
Howie J referred (at [29]) to s 4F(2) of the Crimes Act (Cth) which made similar provision to s 19(2) of the Crimes (Sentencing Procedure) Act. He rejected (at [32]) an argument that s 4F(2) should be considered broadly and held that there had not been a reduction in the maximum sentence for the offence formerly in the Crimes Act (Cth). The Criminal Code provisions covered the same criminal activity but provided different offences with different elements and were affected by the Code's provisions in relation to criminal responsibility.
The same is the case here. The common law offence of rape was confined to penile/vaginal intercourse whereas the offence of sexual intercourse without consent in s 61D by virtue of the extended definition of "sexual intercourse" in new s 61A applied to a broader range of sexual activity. The same can be said about the common law offence of buggery. Moreover, s 4(1) of the Crimes (Sexual Assault) Amendment Act specifically applied s 8 of the Interpretation Act 1897 to the abolition of s 63 of the Crimes Act in the same way as it applied in the case of the repeal of a former Act (in effect, preserving its operation in respect of conduct occurring prior to the abolition). The same can be said about the Crimes (Amendment) Act 1984 in that the same Interpretation Act provision would apply by virtue of the repeal of the wording of s 79 and the substitution of wording confining its concern to the offence of bestiality.
In R v Ronen, after concluding that the former maximum penalty of imprisonment for 20 years applied, Howie J went on to say (at [41]) that it did not necessarily follow that the subsequently reduced maximum was totally irrelevant. He said (at [71]) that it was impossible to ignore the fact that the maximum penalty for the same conduct had in fact been reduced and that an Explanatory Memorandum accompanying the amending Bill included an express statement that the older penalty was "far too high". After referring (at [72]) to the maximum penalty for an offence representing the policy of the legislature (and citing authorities including Markarian v The Queen [2005] HCA 25; 228 CLR 357) he concluded (in part) (at [74]-[75]): "In my opinion the Judge was correct to take into account the change in the legislature's attitude to this type of offending and to reduce the impact of the maximum penalty accordingly. … The judge was bound to take the change of legislative policy into account, not simply as a matter of fairness to the applicant, but also because it maintains consistency in the way that the courts are guided in sentencing by the legislature's view of the seriousness of the offending expressed through the maximum penalty prescribed for an offence."
Applying R v Ronen, a court sentencing an offender for offences of rape and buggery committed against a child under the age of 16 years after the amendments made in 1981 and 1984 would take into account that Parliament had reduced the maximum penalty applying to such offending conduct from penal servitude for life and 14 years respectively to 10 years. But what of the case where the person comes to be sentenced after the amendments that took effect in 1991 whereby such conduct would from that time on attract an increased maximum penalty of imprisonment for 20 years?
Counsel for the applicant submitted that, consistently with the policy evident in s 19 of the Crimes (Sentencing Procedure) Act and decisions of this Court, particularly R v MJR, the applicant should obtain the benefit of the maximum penalty for an offence of sexual intercourse without consent with a child under the age of 16 being reduced from life to 10 years in 1981 and should not be subject to the subsequent increase in 1991 to 20 years. (T11.45)
The Crown, on the other hand, submitted that the correct approach was to have regard to the maximum penalty at the time of the offence, any identifiable sentencing practices and patterns at that time, and the maximum penalty reflecting community attitudes prevalent at the time of sentencing. It was submitted to be inappropriate to "trawl through the intervening legislative period with a view to finding the lowest penalty that applied at any given [time] and then to apply that penalty". It was appropriate and consistent with authority to have regard to lower maximum penalties applicable at the time of sentencing because an offender should not be sentenced in a fashion that was not in accordance with community attitudes then prevailing. To sentence in accordance with a maximum penalty that was lower than at both the time of offending and of sentencing would be to disregard community attitudes at those times. (T13.30; 16.10; 17.40)
In PH v R [2009] NSWCCA 161 at [27], Howie J very succinctly, but usefully, summarised the overarching principle of sentencing for offences committed many years ago: "[T]he court ensures, so far is it is able to do so, that the offender is not disadvantaged by any change in the way specific types of offences have been considered by sentencing courts over the years that followed the offending or by changes to the legislation governing sentencing."

Determination

In the cluttered history of continual amendment of legislation dealing with sexual assault offences since the abolition of rape in 1981 and buggery in 1984, only a small proportion of which I have mentioned, the picture emerges that the conduct constituting the applicant's offences has been the subject of varying maximum penalties.
The High Court of Australia said in Elias v The Queen [2013] HCA 31; 248 CLR 483 at [27] that the maximum penalty represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. In the 40-odd years since the applicant's offending the yardstick has varied quite significantly. Rape was an offence punishable by life but it was replaced by offences constituting potential component parts of it that, depending on the breadth of offending conduct involved, saw an offender exposed to a maximum of anything from 7 years to 30 years imprisonment. The constituent components in the applicant's offence of rape became an offence with a maximum of 10 years. In 1984, the applicant's conduct constituting the buggery offence become something that would also bring liability for the same penalty.
There were increases in penalties for conduct that contained attributes of a crime of rape in the course of the 1980's until the present time when what previously was rape can constitute an offence carrying a maximum penalty of 14 years (s 61I) up to life (s 61JA - aggravated sexual intercourse without consent in company).
The second limb of the applicant's argument in respect of this ground is to the effect that he should have the benefit of being sentenced within the confines of a maximum penalty that applied to his offending conduct at its lowest point within this convoluted legislative history; a maximum penalty that reflected the legislature's assessment of the seriousness of an offence that prevailed for less than a quarter of the time that has passed since his offending. It was an assessment that was acknowledged by the legislature in 1989 to have been unrealistic and out of keeping with community expectations.
There is no statutory provision that entitles the applicant to the result for which he contends. There is nothing in the general law that does either.
I accept the submission by counsel for the Crown. The correct approach was to have regard to the maximum penalty at the time of the offence, any identifiable sentencing practices and patterns at that time, and the maximum penalty reflecting community attitudes prevalent at the time of sentencing. It would be entirely inappropriate to afford the applicant leniency by way of windfall by having regard to a lower maximum penalty that prevailed for a time before it was abandoned many years before he came to be sentenced.
The maximum penalty of 10 years' imprisonment that prevailed in the 1980's was never something the applicant was potentially subject to. He is not disadvantaged by a sentencing court in the 21st century not having regard to it.
Ground 1 should be rejected.

Ground 2 - failure to have regard to sentencing practices at the time of the offences

The primary judge was acutely aware of the principles he was required to apply. A good part of his sentencing remarks were devoted to a discussion of various decisions of this Court dealing with them. It cannot be accepted that he "failed to have regard" to them.
Moreover, despite the ground asserting that his Honour "failed to have regard" to historical sentencing practices, the written submissions assert that he erred "in failing to give any application" to them. It was submitted that this was because he had regard to the maximum penalty having been life imprisonment (a contention rejected under the first limb of the argument in relation to Ground 1). And, whilst his Honour recognised that in the 1970's, sentences imposed for child sexual assault offences were less than they are now (a proposition that is very broad and pays no attention to the particular offence under consideration), it was submitted that he failed to apply this to his assessment of sentence.
This ground does not disclose any discrete House v The King error (House v The King [1936] HCA 40; 55 CLR 499). It is really a particular of the final ground asserting that the sentence is manifestly excessive.
This ground should be rejected.

Ground 3 - failure to give sufficient weight to the applicant's age and ill-health

The judge discussed the issues pertaining to the applicant's age and ill-health. Plainly he took them into account. In written submissions it was contended that he did not give them "sufficient weight". This Court does not intervene on the basis that it would take a different view as to the weight to be accorded to some matter: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 588 [24].
However, the argument was further developed. It was contended that the judge erred by: (i) failing to treat the age and ill-health of the applicant as matters increasing the burden of custody; (ii) failing to treat the applicant as less of an appropriate vehicle for general deterrence because of his dementia; and (iii) failing to treat the age and ill-health of the applicant as special circumstances warranting a lesser non-parole period.

The burden of custody

As to the "burden of custody", the first point is to observe that it was a matter touched upon only in a very broad sense in the court below. There was no specific evidence of difficulties the applicant had experienced or might in the future. There was no suggestion that Justice Health were not able to provide adequate care and treatment as and when required.
The judge carefully reviewed the evidence before him as to these aspects of the applicant's subjective case. He referred at length to the reports of Dr Chew and Ms Durkin. He expressed awareness of the possibility of the applicant dying in gaol. He referred to the judgment of Howie J in PH v R specifically to a passage (at [24]) concerning the sentencing of a person of advanced age with the possibility of there being little prospect of surviving a gaol sentence or having any worthwhile life left after release. He said that "given this offender's age and health prison will likely bear more heavily upon him". No discretionary error is evident here.

General deterrence

As to the matter of general deterrence, his Honour also referred to what Howie J said in PH v R (at [32]) about it possibly having less significance in such circumstances. The primary judge concluded, however, that because of the enormity of the applicant's crimes, "general deterrence still has a significant role to play in sentencing this offender". (ROS 15.9)
The applicant's submission was to the effect that less weight should have been given to general deterrence; not that there should have been no weight given to it. Again, no discretionary error is evident.
Further, the Crown submitted that his Honour was correct to conclude that the applicant's age and ill-health could not justify the imposition of a sentence that failed to pay due regard to the objective gravity of the offence: R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep); R v Moon at [70]; R v EGC at [41]. This submission should be accepted.

Special circumstances

As to the third matter of complaint, a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) warranting the imposition of a lesser non-parole period is discretionary. It is a matter about which this Court will be slow to second-guess the assessment of the primary judge: R v Cramp [2004] NSWCCA 264 at [31] and R v Fidow [2004] NSWCCA 172 at [19].
In this case, the judge found special circumstances "in order to avoid any unfairness that might arise by reason of the delay in the prosecution of the present charges". (AB 29) One product of the delay was that the applicant stood for sentence at an advanced age and with various health issues. His Honour was clearly cognisant of this. The extent of the reduction of the non-parole period was a matter for the discretionary judgment of the primary judge.
The applicant argued that non-parole periods fixed in the time in which his offences occurred were generally in the range of one-third to one-half of the total term: see MPB v R [2013] NSWCCA 213 at [26] (Basten JA) and [93] (Garling J). The non-parole period in this case was one-half of the total term which prompted the submission by the applicant that his age and ill-health "were given no weight whatsoever". (AWS [31])
This submission implicitly carries the notion that the one-third to one-half range of non-parole periods in the past was a practice that was invariable. Further, that when sentencing now, this was a starting point from which a further reduction should be made if there were other factors that could be identified as "special circumstances". The submission should be rejected in both respects.
The passage in the judgment of Garling J in MPB v R at [93] is as follows: "This Court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1 to 4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]-[156]. This is factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999."
It is notable that his Honour included the word "usually" in describing the past practice. It is also notable that he described it as a matter that a judge "should take into account" in determining whether there are special circumstances. There is no automatic or mandatory consequence; it is a matter for discretionary assessment.

Conclusion

No error in the exercise of the sentencing judge's discretion has been shown in relation to any of the matters raised under this ground.

Ground 4 - manifest excess

No further written or oral submissions were made by counsel for the applicant in relation to this ground. The ground is based upon what was put in support of the preceding grounds.
The crime of rape pre-14 July 1981 (being confined to penile/vaginal intercourse) was one that encompassed a much narrower range of sexually penetrative conduct than was later encompassed in the various forms of offences of sexual intercourse without consent. But the circumstances in which the offence could be committed varied widely. A victim could be anyone from a young female child to a mature or elderly woman. There might be no physical violence beyond the intercourse itself or there could be the infliction of extreme physical injury. The offence could be committed alone or by a gang of offenders. In relation to child victims, the perpetrator could be a stranger or could be a trusted friend or relative, even a close family member in a position of trust. The permutations were almost infinite. Similar considerations apply to the former crime of buggery.
In this case there was regular child sexual abuse of an extremely serious kind by a father towards his natural daughter when she was aged from 10 until 13. The six offences for which the applicant was to be sentenced, and the three further offences to be taken into account, were not isolated instances but were part of a sustained course of conduct. (Of course, the applicant was only to be punished for what he was charged with.) The applicant appears to have had a sense of entitlement to the serious criminal mistreatment of his daughter: "I love you and that's the reason that I do it". If she screamed out in pain or cried it did not deter him from continuing. He told her not to tell anyone and on one occasion he threatened that she would not see her brother again if she did. To further cover up his offending the applicant put the child on the contraceptive pill. Most of the offending occurred in the family home where the child was subject to the power and authority of her tormentor. She had no effective choice but to submit to the sexual depravations of a person who should have been her protector.
In the more enlightened understanding of such matters these days, the enduring harm the applicant's offending caused the complainant does not come completely by surprise when one reads the victim impact statement. It makes abundantly clear that her life in a variety of respects has been affected badly and for a very long time.
The sentencing judge was correct, with respect, to find that the offences were "extremely serious".
To make good a ground asserting that a sentence is manifestly excessive it is not a matter of this Court simply substituting its own view of what the appropriate sentence might have been: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. It is necessary for the applicant to establish that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen at 370-371 [25].
This was a case in which there was a very fine but difficult balance to be struck: an aged offender with various forms of ill-health on the one hand with very serious crimes for which he was to be brought to account on the other. I accept that general deterrence was of less significance in the circumstances. The applicant was of otherwise good character; he had entered early pleas of guilty; and, although he was less than completely remorseful with his attempts to blame his victim, he was unlikely to re-offend.
The applicant's conduct constituting the rape offences would these days attract a maximum penalty of imprisonment for 20 years when the penalty was formerly life imprisonment. But considering the range of conduct encompassed by the offence of rape, it is not apparent to me that the sentence that would have been imposed in the 1970's would have been much different to what might be expected if the same offence was committed by a father upon a daughter in the same circumstances now. It is not apparent that the indicative sentence for the offence of buggery would have been appreciably different either if the applicant had been sentenced against the then maximum penalty of 14 years in the 1970's.
The non-parole period assessed by the primary judge which is half of the total term could possibly have been less if some more weight had been given to the applicant's age and ill-health but I do not believe the primary judge's assessment was one that was not open to him in the exercise of his discretion.
In short, I am not persuaded that the aggregate sentence, and non-parole period, are manifestly excessive.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
BELLEW J: I agree with R A 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: 22 March 2017

Crimes (Child Assault) Amendment Act 1985(NSW)

Crimes (Amendment) Act 1984(NSW)

Crimes (Amendment) Act 1989(NSW)

Crimes (Personal and Family Violence) Amendment Act 1987(NSW)

Crimes (Sexual Assault) Amendment Act 1981(NSW)

Interpretation Act 1897(NSW)s 8

By the Crimes (Amendment) Act 1984(NSW)

Crimes Act 1900(NSW)ss 63, 79

Crimes Act 1914(Cth)s 4F(2)

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