Wray v Regina

Court of Criminal Appeal (NSW)|2014-08-11|Before: Macfarlan JA, Adamson J, Bellew J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with the judgment of Adamson J, and also with the additional observations of Bellew J. 2ADAMSON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed by his Honour Judge Sides on 27 November 2013 in the District Court at Parramatta of 12 years with a non-parole period of 9 years commencing 20 February 2013. 3The offences for which the applicant was sentenced and the indicative sentences in respect of each are as follows: Offence Maximum penalty/ Standard Non-Parole period (SNPP) Indicative Sentence: total term/ non-parole period Sequence (1) Aggravated indecent assault (victim, CV, under the age of 16 years) 10 years imprisonment/ 8 years SNPP 5 years, 6 months / 3 years, 9 months (Crimes Act 1900 s 61M(2)) Form 1 (Crimes Act 1900 Produce and possess child abuse material 10 years imprisonment Taken into account in sentence for sequence (1) s 91H(2)) Sequences (2), (5) and (9) Aggravated indecent assault (victims, CV and EJ under the age of 16 years) 10 years imprisonment/ 8 years SNPP 5 years/ 3 years, 9 months Sequences (6), (7) and (8) Aggravated indecent assault (victim EJ under the age of 16 years) 10 years imprisonment/ 8 years SNPP 5 years/ 3 years, 9 months

4The applicant seeks leave to appeal on the following grounds: (1)The learned judge erred in failing to give appropriate weight to the subjective features of the applicant. (2)The learned sentencing judge gave undue weight to the finding of the applicant's future dangerousness. (3)The sentence was manifestly excessive.

Victim CV 5The victim CV was born on 18 December 2003. The applicant met CV's mother in about 2010. He was on the Child Protection Register as a result of previous offences. In February 2012 CV, her parents and her three brothers moved to North Rocks. CV attended the local primary school and was, in 2012, in year 4. Following the move to North Rocks, the applicant became involved in CV's family's life. He not only helped with household tasks and odd jobs, but he also drove CV's parents from home to the train station so that they could attend work and picked up CV and her siblings from school. 6In about December 2012, the applicant was assisting CV's father, who was on the roof of the house, to install a television antenna. The applicant suggested that CV climb up the ladder so that he could take a photograph. When she climbed up the ladder, the applicant asked her to adjust her pyjama pants so that he could see her underpants. Although she declined, he adjusted them and took a photograph of her. When he subsequently asked her if he could print the photograph and stick it on his wardrobe, she said that she did not know. On another occasion when CV was riding her skateboard, he took a photograph of her with his iPad. She was not aware of his doing so at the time. When he later showed her the photograph she could see her underpants showing. She asked him to crop the photograph and he did so. It was common for the applicant to take photographs both with his iPad and his phone. 7From Christmas 2012, the applicant showed increasing interest in CV and wanted to spend time with her and buy gifts for her.

Sequence 1: aggravated indecent assault on victim less than 16 years old 8In mid-January 2013, during the school holidays, the applicant asked CV to vacuum his car. At this time her father was inside the house with her brothers. When she had finished the task she was sitting on the back seat of the car when the applicant knelt outside on the concrete and told CV that she was not to tell her mother. He then used two fingers to rub her vagina on the outside of her shorts. He asked her to open her legs and asked whether she could feel a "tingle". She said that she could. He then rubbed her vagina for a further half a minute. He stopped when CV's brother came along. 9After the offence, the applicant talked to CV about buying her a bicycle and drove her to K-mart to look at bicycles. On the way he asked if he could kiss her and tongue her and she said no.

Sequence 2: aggravated indecent assault on victim less than 16 years old 10On another occasion, while at CV's home, the applicant got CV to stand on the couch. He hugged her for a few seconds and pushed his body against her so that she could feel his penis against her stomach. CV described the feeling as "weird". Nothing was said between them on this occasion.

Sequence 5: aggravated indecent assault on victim less than 16 years old 11It was the applicant's practice to interact with CV through her mother. He asked CV's mother if CV could come to his house to help him clean the drawers in his room as he had trouble bending down. CV's mother insisted on being present. The applicant, who knew that CV's mother usually worked on Wednesdays, came to collect her on Wednesday 13 February 2013 at about 4.30 pm, when her father, but not her mother, was at home. 12The applicant drove CV to his home where she helped him clean out the drawers. After she had finished she sat on a chair. He closed the door and asked her to sit on his lap. She complied. He then rubbed her nipples with both thumbs on the outside of her clothing and lifted up her shirt and kissed her navel three times and also her neck. He then drove her to Red Rooster and where he bought dinner. On the way back to the applicant's house, CV spilled sauce on her shirt. She removed it at the applicant's direction so that it could be washed. He provided her with a pyjama top that he had purchased for her to put on. He also gave her the pyjama pants and a blue dress with a belt as a reward. CV, who did not want her brothers to know that the applicant had bought her gifts, asked for her wet shirt back so that she could put it on again before returning home at about 5.45 pm. 13The following day, CV's mother, who was concerned that the applicant had taken her to his home without her permission, asked CV if the applicant had done anything wrong to her. CV burst into tears and told her mother that the applicant had been feeling her. CV's mother went to the police station the following day and reported the matter.

Sequence 4 (taken into account in sentence for sequence 1 as on Form 1): production and possession of child abuse material 14CV participated in a recorded interview on 19 February 2013. On 20 February 2013 the police executed a search warrant and seized items belonging to the applicant, including his mobile phone and iPad. He admitted knowing CV, whose photo he used as his screensaver. His iPad password included CV's name. The photographs on the applicant's iPad and phone included 15 images of CV lifting her shirt, revealing her stomach, lying down in a suggestive pose or close up shots of her genital area with her underwear on. The photographs fall into category one of the child exploitation tracking scheme categorisation of photographs. This gives rise to sequence 4 which was on the Form 1 and was taken into account in the sentence for sequence 1.

Victim EJ 15EJ was born on 17 December 2005. When she was interviewed on 5 March 2013 she revealed four occasions when the applicant had indecently assaulted her.

Sequence 6: aggravated indecent assault on victim less than 16 years old 16In November or December 2013, the applicant collected EJ and her 11-year-old brother from primary school. While they were in the street, at a time when EJ's brother was apart from them, the applicant tickled and squeezed EJ's vagina under her school skirt but on top of her underwear. His actions hurt her physically.

Sequence 7: aggravated indecent assault on victim less than 16 years old 17When EJ's brother rejoined them, they continued to the car park and then went to Donut King. When they had bought food, the applicant seated himself between EJ and her brother. At one point, he leaned over to EJ, placed his elbow between her legs and rubbed her vagina on the outside of her clothes, which she said really hurt.

Sequence 8: aggravated indecent assault on victim less than 16 years old 18The next day the applicant again collected EJ and her brother from school and drove to a shopping centre where he gave EJ's brother some money for ice creams. The applicant slapped EJ's bottom gently and instructed her to get in the back of the car. She complied. The applicant started to tickle and squeeze her vagina area on top of her underpants. He then pulled her shorts aside and asked her if he could kiss it. EJ, who did not feel that she had a choice, submitted while he kissed her vagina on the outside of her underpants. The applicant, who was about to do it again, stopped when EJ's brother returned.

Sequence 9: aggravated indecent assault on victim less than 16 years old 19On the last day of term in December 2012, the applicant picked up EJ and her brother from school. Her brother sat in the front seat and EJ sat in the seat behind her brother. He took them to a fast food outlet for dinner. On the way home he leaned over and used his left hand to tickle EJ's vaginal area.

The remarks on sentence 20After recounting the facts set out above, his Honour recorded the finding that the applicant had had a dysfunctional upbringing and had been dealt with as a neglected child at the age of 12. He abused substances in the past but there is no evidence that that continued, or played any part in his offending conduct. The applicant, who was 66 at the time of sentence, had substantial physical ailments but there was no evidence as to life expectancy or to indicate that he was not receiving appropriate treatment in gaol. 21He was divorced in 1990 after a marriage that lasted for sixteen years. He has six adult children, one of whom died eighteen months before the sentence hearing. 22His Honour addressed the applicant's criminal history and noted that he had previously been convicted of two counts of sexual intercourse with a person between 10 and 16, one count of sexual intercourse with a person under 16 while in authority, three counts of carnal knowledge and one of incest and one of aid and abet carnal knowledge. After an appeal to this Court in 1999 he received an overall sentence of 12 years, 6 months with a non-parole period of 9 years. The sentencing judge recorded that the applicant said that he had been on parole since 2007. He had not completed any custody-based courses for sex offenders. 23The sentencing judge accepted the evidence of Dr Furst, psychiatrist, whose report was tendered on behalf of the applicant at the sentence hearing, that the applicant is a paedophile who is driven to commit offences because of his sexual attraction to pre-pubescent children. His Honour found that the applicant had formed a relationship with the victims' families and that all offences involved significant breaches of trust. 24His Honour found that the offences were opportunistic but occurred in the context of grooming CV and that there was no evidence of physical injury to either victim. 25His Honour addressed the seriousness of such offences and their impact on the victims in the following terms: "It is not unusual for a child who has been the attention of this sort of behaviour to suffer long term emotional and/ or psychological problems. Sometimes those sorts of problems will not be apparent until many years later. The offences are serious, but not within the middle of the range of objective seriousness as denoted by the standard non-parole period of eight years." 26The sentencing judge found that there was no evidence that the applicant did not know what he was doing, the consequences of his conduct (at least as far as he was concerned) or that his judgment was impaired. His Honour considered that there was no basis to consider his moral culpability to be compromised and referred to his buying of gifts and attempts to persuade his victims not to tell others of what had occurred. His Honour found the applicant to be remorseful but considered his prospects of rehabilitation to be "very, very poor". As to future dangerousness, the sentencing judge found: "The Court is satisfied beyond a reasonable doubt that he poses a danger to the public in the future." 27His Honour was not satisfied that there were special circumstances. The applicant did not give evidence at the sentence hearing. 28His Honour allowed a discount of 25% for the applicant's plea of guilty.

Grounds of appeal 29The first two grounds of appeal are related in that the third ground, manifest excess, is a conclusion that is said to arise from the first two grounds. The first two grounds seek to explain the third. 30A sentence reflects all relevant considerations. The weight to be given to each is not susceptible to mathematically determination or calculation. The first two grounds are, in substance, particulars of the third ground.

Ground 1: alleged failure to give appropriate weight to the subjective features of the applicant 31The applicant submitted that his age at the time of sentence, his significant physical ailments and his remorse were not sufficiently taken into account by the sentencing judge and contended, that if they had been, the sentence would have been significantly lower. He contended that the notional starting point (before the deduction of 25% for the plea) of 16 years did not take adequate account of the subjective circumstances. 32The applicant argued that his Honour ought to have inferred from his "substantial physical ailments", which included, according to Dr Furst, emphysema resulting in a collapsed lung, degenerative spinal disease, arthritis, obesity and cardiomyopathy, that his life expectancy was compromised and that, accordingly the sentence was "crushing". 33The applicant's age at time of sentence and his age upon release is the result of his having committed serious sex offences at the age of 65. His age and relative infirmity did not prevent the commission of the offences. Indeed these attributes may have assisted his grooming of the victims and their families. On one occasion he used his lack of physical prowess as a ruse to have CV come and help him clear out the drawers in his bedroom in the course of conduct that became sequence 5. 34Although subjective circumstances are a relevant consideration, the weight to be given to them is a matter for the sentencing judge. I am not persuaded that the weight given to them by the sentencing judge was insufficient.

Ground 2: alleged giving of undue weight to the finding of future dangerousness 35The applicant placed particular emphasis on the following finding in the remarks on sentence: "It is clear [the applicant] is a paedophile. These offences were committed at the age of sixty-five. In the Court's view, his prospects of rehabilitation are very very poor. The Court is satisfied beyond reasonable doubt that he poses a danger to the public in the future." 36The applicant argued that his Honour erroneously made a finding of fact, rather than considering the degree of risk of re-offending. He relied on the following passage from R v McNamara [2004] NSWCCA 42 in which Grove J (Sully and Bell JJ agreeing) said: "[27] Counsel for the respondent contended that the test is "whether the offender poses the risk of relevant future conduct" and that the correct approach is for a judge to determine whether he is satisfied beyond reasonable doubt that such risks exist. With respect to the contender, I do not find that formulation useful. [28] In the span of human affairs risk can always be postulated and of its mere existence there can be no doubt. For example, there is risk . . . that a person of previously unblemished character may commit a crime, that a convict may offend again. The elimination of risk is something which is viewable only from hindsight. . . . The convict, to the end of his life, did not re-offend. What is of concern to a sentencing judge is, in my opinion, not the existence of risk - that I would see as a given - but a degree of risk. That does not require the certitude of proof beyond reasonable doubt nor the exercise of balance to determine what is more probable than not. [29] On that approach, references to proof beyond reasonable doubt or proof on the balance of probabilities become otiose. . . . " 37The applicant contended that his Honour's finding led him to attribute undue significance to future dangerousness. The applicant also argued that his Honour did not adequately consider the applicant's advancing age and infirmity at the time of release when assessing the risk of future offending. 38The applicant argued that his Honour was dismissive of the benefit that could be derived from custody-based programmes for sex offenders or pharmacological treatment to reduce his sex drive, both of which affected the degree of risk. The applicant relied on statements made to the sentencing judge by his counsel that he had not previously had such treatment but was willing to engage in it. 39The passage set out above from R v McNamara does not assist the applicant. It was not necessary for the sentencing judge to be satisfied beyond reasonable doubt that the applicant "poses a danger to the public in the future" since that is not the relevant test. But there was no reason for the sentencing judge not to express the finding in those terms. That the applicant had not undergone custody-based programmes for sex offenders and re-offended does not provide a basis for optimism that if he undertook such a programme he would not re-offend. That he has not had pharmacological treatment in the past to reduce his levels of testosterone does not establish that, even if he were to consent to such treatment, it would be effective in the future to control his urges and prevent recidivism. 40To protect the community from the offender is a relevant consideration in sentencing: s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). Whether the community requires protection requires an assessment of the offender's risk of re-offending. As Gleeson CJ said in Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at [12]: "No doubt, predictions of future danger may be unreliable, but, as the case of Veen [(No. 2) (1998) 164 CLR 465] shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release." 41The sentencing remarks indicate that his Honour considered the risk to be high. I do not discern any error in the finding, either in the terms in which it was expressed, or in its substance. That a 65-year-old man, who has already been incarcerated for a significant period for more serious, but otherwise similar, offences against children, would re-offend by committing the index offences, thereby exposing himself to the risk of a further lengthy term of incarceration is a powerful indication either that he was unable or unwilling to control his paedophilic sex drive. Although the past is not always repeated in the future, it is a guide to what may occur, particularly when past conduct, as in the present case, arises from a mental condition which, when acted on, necessarily results in criminal conduct. 42It was, in my view, open to the sentencing judge to regard as no more than speculative the prospect that there would be any substantial diminution in the risk of the applicant's re-offending by reason either of custody-based sex offender programmes or pharmacological treatment, neither of which had previously been tried, or of the applicant's increased age on release. It may be accepted that testosterone levels in younger men are generally considerably higher than in older men. However, one cannot infer from this truism that the applicant's risk of re-offending will be materially diminished by the increase in his age occasioned by the passage of the non-parole period.

Ground 3: the sentence was manifestly excessive 43The applicant submitted that the notional starting point of sixteen years was manifestly excessive and out of line with the statistics of similar offences. He referred to the "relatively low level of his offending" and relied on the fact that all contact with the victims' genital areas was outside the victims' clothing. 44Manifest excess is a conclusion: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]. As can be seen from the table at the commencement of these reasons, the offences of aggravated indecent assault each carry a maximum sentence of ten years and a standard non-parole period of 8 years. The offence on the Form 1 carried a maximum sentence of ten years and it was appropriate that it be taken into account with a view to increasing the sentence for sequence 1 due to the greater weight to be given to personal deterrence and retribution: Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42] per Spigelman CJ. These legislative guideposts provide an indication of the seriousness with which Parliament views such offences: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Statistics and previously decided cases are of limited value in the sentencing process: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [54] - [55]. 45The applicant manipulated and breached the trust of the victims, their parents and their siblings. He exploited the vulnerability, naivete and innocence of his victims. His use of fast food and gifts to corrupt his victims was cynical. The way in which he ingratiated himself with the victims' parents by providing driving and handyman services was calculated to engender trust, familiarity and facilitate access. He damaged his victims in a manner and extent that may not manifest itself fully for years and may well be permanent. 46Section 3A of the Act provides: "Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 47It was open to the sentencing judge to give more weight to the purposes other than s 3A(d), in circumstances where his Honour did not consider rehabilitation to be a real prospect. 48I consider that the sentencing judge was entitled to assess the objective seriousness of the offending conduct as below mid-range but nonetheless potentially very damaging to the victims. Although the offending conduct for the index offences was not of the gravity of his earlier offending, this does not afford any basis to conclude that there has been any rehabilitation in the interim. That the offending stopped when it did was a reflection of CV's mother's vigilance and concern for her daughter which led to his apprehension rather than any self-control or moderation on the applicant's part. 49As referred to above, the weight to be given to the various, and at times conflicting, purposes of sentencing was a matter for the sentencing judge and could not be determined as a matter of mathematics: Veen (No. 2) [1998] HCA 14; 164 CLR 465 at 476; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39]. His Honour was obliged to act in accordance with the principles of totality and proportionality. In my view his Honour did so by allowing for a degree of implicit concurrence (of 3 years and 9 months) within the aggregate sentence. 50I am not persuaded that the sentence imposed was manifestly excessive.

Proposed orders 51I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed. 52BELLEW J: I have had the advantage of reading in draft the judgment of Adamson J. For the reasons set out by her Honour, I agree with the orders she proposes. I would simply add the following. 53Her Honour noted (at [32]) that one of the submissions advanced on behalf of the applicant was that the sentence imposed was "crushing". In R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 this Court (Spigelman CJ, Howie and Whealy JJ) observed (at [17]; 164): " ... an extremely long total sentence may be "crushing" upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there maybe of rehabilitation and reform." 54However it is important to bear in mind that the Court then said: "Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint." 55The present was a case of multiple offending. In my view, the various circumstances of that offending to which Adamson J referred, particularly those at [45] and [48], disentitled the applicant to the element of mercy to which this Court referred in MAK.

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: 20 August 2014

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