Wright v R

Court of Criminal Appeal (NSW)|2019-03-18|Before: Bathurst CJ, Price J, Ierace J

Solicitors: Sydney Criminal Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2015/348893 Decision under appeal Court or tribunal: District Court Date of Decision: 15 June 2017 Before: McLennan SC DCJ File Number(s): 2015/348893

Grounds of appeal

The grounds of appeal are:
The sentencing judge failed to have proper regard to and apply the principle of totality when imposing an aggregate sentence; and
The sentence is manifestly excessive.

The factual basis of the sentence

The facts as set out by his Honour in his remarks on sentence were to the following effect.
The applicant commenced a relationship with the complainant's mother when the complainant was 5 years old. The complainant gave evidence in the trial that after she turned 14, on occasions when she was alone with the applicant, his behaviour towards her changed. At times, he would touch her on her breasts and bottom and move closely behind her, almost mimicking a sexual act.
The complainant had given evidence in the trial that the applicant would come into her bedroom ostensibly to kiss her goodnight, but attempt to kiss her passionately using his tongue. Sometimes he would touch her on her breasts. The behaviour progressed to the applicant undressing himself and trying to take the complainant's pants down.
His Honour found that he was satisfied beyond reasonable doubt of the complainant's evidence of these contextual acts and stated that the basis on which he sentenced the applicant for the 3 counts was that they were not isolated acts, but rather, part of a course of conduct.
The complainant's evidence in relation to the aggravated sexual intercourse without consent charge was that, when she was aged 15, she was alone in her bedroom one morning, half asleep, when the applicant came in. She could hear the applicant pulling down his pants and asked, "What are you doing?" to which he replied, "Nothing I'm just checking on you", or words to that effect. She attempted to go back to sleep, but the applicant got into her bed, lay beside her and started taking off her underpants. She said, "No, what are you doing?". The applicant then lay on top of her, engaged in penile-vaginal intercourse and then left the room. She explained that she had not screamed out because she did not know what to do or how to react to what was going on, given the relationship between the applicant and her mother, who she thought would have been asleep in an adjoining room.
The second and third counts arise from a single incident which occurred three weeks after the complainant turned 16. His Honour related the complainant's account when interviewed by police, in his remarks on sentence, as follows: "I was in bed and it was in the afternoon. Mum went out, I was home. My brothers and sisters were in the lounge room and he came in then, I was laying on my bed. He comes over to me, he starts kissing me and stuff. And I said, 'Stop it.' and 'Go away.' And then he just stayed there. And so then I got up to walk out. And then he got up and like pulled me back and I said, 'I'm going out.' and he said, 'No just stay there.' So then I sat down on my bed and because he said he needed to talk so I sat down and listened and then he started kissing me again."
The kissing was the basis of the second count.
The complainant continued: "And then you know the same as like every other night that he would come in, take his pants off …" and later: "And then he took my, tried taking mine off and I said, 'No.' and then I laid there and then he tried taking them off again, I said, 'No.' and then I pushed him off me and then I got up and walked out."
His Honour noted from the complainant's evidence that: "… when [the applicant] took his pants down the complainant could see his penis; that he pushed her down in spite of her resistance and that he had his penis on her pants as he was trying to take them down."
This behaviour was the basis of the third count.
His Honour noted the contents of a victim impact statement by the complainant, in particular, the impact of the offending on her mental and physical health and the loss of her trust in males generally. In her victim impact statement, the complainant said that because of the offences, she was no longer allowed to reside at her mother's house and had no contact with her siblings.

Subjective material and findings

The applicant had a minor criminal record comprising an assault occasioning actual bodily harm committed when he was aged 18, for which he received a bond, and a number of driving offences. This was his first custodial sentence.
The applicant was aged 31 to 32 at the time of the offences and 34 at the time of sentence. He continued to be in a relationship with the complainant's mother, with whom he had fathered two children, aged 7 and 8 years.
A reference from the applicant's mother was tendered, attesting to his prior good character as a son and sibling.
A report prepared by a forensic psychiatrist, Dr Kerri Eagle, found that the applicant did not have an underlying mental illness or mental condition that potentially impacted on his offending conduct. In particular, he did not have a paraphilia or sexual deviancy disorder, and based on information provided by the applicant, there was no suggestion that he had a personality disorder.
Dr Eagle administered two risk assessment tools, the Static 99R and Stable 2007, which can, in combination, place offenders within an overall risk category of sexual recidivism. The applicant scored zero on both assessments, which placed him in below average and low risk categories of reoffending with another sexual offence.
His Honour concluded that the offending behaviour was uncharacteristic and apparently related to relationship discord.
The report of Dr Eagle establishes to my mind that there is nothing in the background of the applicant which would explain his conduct. He had a sound upbringing. He has had, it seems, good relationships with women. He has had a good work history and certainly this offending is not characteristic of him as evidenced either by his criminal history or by what his mother has known about him. I am satisfied that this offending was most likely related to the situation that the applicant found himself in at the time, which is that his relationship with the complainant's mother had gone through a period of discord and that he thought it was appropriate to satisfy his sexual needs by grooming and then engaging in the conduct forming the basis of the offences with the complainant. None of that excuses his conduct in the least, but it does offer an explanation for what, on the face of it, seems to be inexplicable behaviour.
This led to an acceptance by his Honour of future risk scenarios as assessed by Dr Eagle in this passage from her report: "On the basis of the facts alleged [the applicant's] offending has occurred against a related post-pubescent child in the family home. The offending occurred when others were present and in the home. The offending has been stated to have been associated with times when [the applicant] was in conflict with his partner …. The offending was preceded by increased sexualised behaviours towards the victim. Based on this formulation potential scenarios of increased risk of reoffending would include circumstances where [the applicant] was present with children in the home, unsupervised and at times when there was conflict or other potential inter-personal stressors with his partner."

The sentence

His Honour assessed the objective seriousness of each offence as he was obliged to do, since both ss 61J and 61M(1) of the Act had standard non-parole periods: s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
His Honour assessed the first count as being at the mid-range, describing it as a "serious example" of the offence and "a grave breach of trust", as the applicant was the complainant's stepfather, he perpetrated the offence as she slept in the sanctity of her bedroom with her mother asleep in the next room, and he persisted after she had clearly indicated her rejection of his behaviour.
In relation to the second and third counts, his Honour again took into account that the offences occurred in the complainant's own bedroom. As to the second count, his Honour considered that the tongue kissing of itself was: "… to the lower end of objective seriousness, but given the persistence with which it was engaged in it is not to the lower end of that range of objective seriousness by any means." His Honour did not indicate where he ultimately fixed its objective seriousness, which suggests it remained below mid-range.
His Honour assessed the third count as being above the mid-range of seriousness. Although there was no actual touching of genitalia, the applicant was naked from the waist down, he exposed his penis to the complainant and it was against her pants as he persisted in trying to remove them.
His Honour declined a submission that special circumstances were made out by this being the applicant's first custodial sentence. Although the aggregate sentence reflected that finding, the indicative sentence for the offence of aggravated sexual intercourse without consent had a NPP that was slightly lower than the statutory ratio, at 72 per cent of the total indicative sentence.
As noted earlier, his Honour was satisfied to the requisite standard that the context of all three offences was a course of conduct that commenced shortly after the complainant's fourteenth birthday and was still current on the occasion of the last offence in time, which occurred when the complainant was aged 16. The relevance of such a finding is not to aggravate the offences, but rather, to deprive the offender of any claim to mitigation and attendant reduction of an appropriate sentence: see R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [68] and AK v R [2016] NSWCCA 238 at [67]-[73].
The nature of the "course of conduct" identified in his Honour's judgment was behaviour that would have qualified as aggravated indecency, and was thus of a similar nature to the applicant's actions that founded counts 2 and 3. His Honour did not refer to any allegation by the complainant of any act of sexual intercourse other than that captured in count 1.
The sentencing judge's finding that his "course of conduct" finding applied to count 1 as well as the indecency counts was not the subject of complaint by the applicant and, in any event, I am of the view that it was relevant in determining the indicative sentence for count 1, in accordance with JCW.

Ground 1: the sentencing judge failed to have proper regard to and apply the principle of totality when imposing an aggregate sentence

Ground 2: the sentence is manifestly excessive

The applicant appropriately acknowledged at the hearing that ground 2 depends on the view that the Court takes to the question of accumulation and concurrency which lies at the heart of ground 1, so it is convenient to consider both grounds together.
The applicant acknowledged authority for the proposition that, on an appeal from an aggregate sentence, the indicative sentences are not to be analysed in terms of issues of concurrence and accumulation in the same way as with multiple sentences. Instead, the aggregate sentence is to be assessed as to whether it reflects the totality of the criminality involved: JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]. However, there is utility in considering indicative sentences in a notional sense of concurrence and accumulation for the purpose of determining whether the aggregate sentence is excessive: Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] and R v Brown [2012] NSWCCA 199 at [35].
The applicant submitted that it was appropriate for the aggregate sentence to reflect the principle of totality in two ways. Firstly, the indicative sentence for the second count, being the less serious count of aggravated indecency, should have been either totally subsumed in the sentence for the third count or minimally accumulated, since they were part of the same incident. Secondly, a degree of concurrency was appropriate between those two counts and the first count, in recognition of the greater rate of increase in the severity of a sentence, the longer a sentence is fixed: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [16]-[17]. Such a submission had also been advanced at the sentence hearing.
In pursuance of this submission, the applicant noted that if counts 1 and 3 had been consecutive sentences, the head sentence would have been 10 years 6 months, since consecutive sentences must commence no later than the day after the previous sentence's NPP expires: s 47(4)(b) of the Crimes (Sentencing Procedure) Act ("s 47(4)(b)").
The applicant sought to further illustrate this submission by contrasting the aggregate sentence with two scenarios of wholly consecutive sentences fashioned from the indicative sentences. In each scenario, the subsequent sentences commence from the date of expiration of the NPP of the previous sentence, in accordance with the procedure required by s 47(4)(b) when imposing consecutive sentences.
If the sentences are accumulated in this fashion in the order they appeared on the indictment, a total sentence of 12 years is obtained, which is equivalent to the aggregate total sentence that was imposed. If the order is according to the higher sentences first, that is, in order of counts 1, 3 and 2, the total sentence is 11 years and 6 months, being 6 months less than the aggregate sentence imposed of 12 years.

Consideration

The first issue is whether his Honour did consider the issue of totality. His Honour did not acknowledge the principle of totality in his remarks on sentence. However, during the course of the sentence hearing, which the judgment on sentence immediately followed, his Honour responded to the applicant's counsel submitting that concurrency was appropriate in the following terms: "… there will be an aggregate sentence … and … an aggregate sentence to some extent conceals what used to be obvious which is the accumulation. … I'll just reflect on that."
As well, his Honour sought the assistance of counsel as to whether partial accumulation in combination with it being the applicant's first time in custody warranted a finding of special circumstances.
It is appropriate to have regard to the indicative sentences when determining whether an aggregate sentence reflects due regard by the sentencing judge to the totality principle: see, for example, R v Rae [2013] NSWCCA 9 at [43]. In R v Nykolyn [2012] NSWCCA 219, R A Hulme J said at [58]: "The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at …"
The indicative sentences, on their face, are evidence that his Honour applied the principle. The aggregate sentence of 12 years is 80 per cent of the sum total of the indicative sentences (15 years) and the NPP of the aggregate sentence is 82 per cent of the sum total of the NPPs of the indicative sentences.
The next consideration is the degree to which the principle was applied. Questions of accumulation, subject to the application of established principle, are discretionary: R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]. The problems involved in utilising indicative sentences in assessing an aggregate sentence have been recognised. In Truong, Button J said, at [231]: "But it is clear that the process of aggregate sentencing, unlike traditional sentencing, does not permit of a mathematical analysis of the degrees to which partial and complete concurrence or accumulation have been adopted by a sentencing judge. All one can really do is look at each of the individual offences for which the offender was to be dealt, consider the indicative sentences … and then determine whether the aggregate head sentence and aggregate non-parole period are erroneous in light of that background. The whole point of aggregate sentencing is to free sentencing judges from the task of creating elaborate sentence structures. A logical consequence of that is that this Court is not in a position to undertake an analysis of explicit questions of concurrence and accumulation in the same way that it can analyse traditional sentencing structures."
The applicant's two scenarios of complete accumulation of the indicative sentences pursuant to s 47(4)(b) illustrate, with respect, the problems with "mathematical analysis" of indicative sentences.
The total sentence in this notional exercise of accumulation, applying s 47(4)(b), varies according to the order in which the indicative sentences are tallied. A third scenario, being a sequence of counts 2, 3 and then count 1, delivers a total sentence of 13 years 6 months. However, on all three scenarios, the NPP would remain 11 years, which would be either 91 per cent (on the first scenario), 96 per cent (on the second scenario) or 81 per cent (on the third scenario) of the total sentence.
The fact that the NPP of the aggregate sentence is 9 years, rather than 11 years, is consistent with his Honour having significantly, although not generously from the applicant's perspective, applied the principle of totality.
Further, the fact that the aggregate sentence is 3 years more than the indicative sentence for count 1 and the NPP is two and a half years more than that for count 1, is consistent with the notional exercise of the indicative sentence for count 2 being wholly subsumed in count 3 and there being 12 months concurrency between the sentences for counts 1 and 3, with 18 months concurrency between the NPPs of counts 1 and 3.

Comparative cases

The applicant has sought to demonstrate the severity of the aggregate sentence by reference to five comparative sentences arising from applications to this Court concerning sentences imposed pursuant to s 61J(1), some in conjunction with s 61M(1) offences, where the complainant was under the age of 16, the offending behaviour occurred in the complainant's home and the offender was in a position of trust and authority.
As the applicant recognised, there are limitations to the use of comparative cases; the Court must take a "careful approach" and needs to weigh the similarities and dissimilarities of the objective and subjective circumstances between each case: MLP v R [2014] NSWCCA 183 at [44]. Even so, a close alignment of such circumstances in comparative cases yielding lesser sentences is not determinative of manifest excess. Rather, it is inconsistency in the application of relevant legal principles that is significant: Vandeventer v R [2013] NSWCCA 33 at [43], [45]-[46].
In all five cases, unlike the instant case, there was a finding of special circumstances. Three of the five cases, Enriquez v R [2012] NSWCCA 60, FB v R; R v FB [2011] NSWCCA 217, and Aloniu v R [2017] NSWCCA 74, involved behaviour in a single incident and absent a prior course of conduct, in respect of a complainant of the same or a similar age. Making appropriate allowances for differences and similarities with the instant case, none are so disparate that a question arises here as to whether the aggregate sentence in the present case is manifestly excessive.
By way of example, I will refer to one of the three, Enriquez, in which this Court dismissed an application for leave to appeal the severity of a sentence imposed for a count pursuant to s 61J(1), following a plea of guilty, of 8 years 6 months with a NPP of 6 years. A count of attempted aggravated sexual intercourse without consent pursuant to s 61J(1) was taken into account on a Form 1.
The applicant and the complainant's mother had been in a relationship which had ended about a year before the offences. The applicant had entered the mother's home whilst she was at work on a nightshift. The complainant, aged 15, was present, caring for her two younger siblings. She fell asleep on her mother's bed and woke to find the applicant standing next to the bed, touching her leg. She ran to the door but the applicant closed it, preventing her from escaping. He attempted to force her to engage in fellatio. She pushed him away and he left the room. This gave rise to the count on the Form 1. The complainant went back to sleep, thinking the applicant had left the house. She was woken by him again. This time he had locked the door and forced himself upon her, having penile-vaginal intercourse. When the complainant again thought the applicant had left, she went back to sleep. Her mother found the applicant asleep in bed with the complainant the next morning.
The applicant, aged 39, had a minor criminal record with no prior custodial sentence. There were strong subjective features. He pleaded guilty and gave evidence on sentence accepting responsibility and publicly apologising to the complainant. A former partner who had maintained contact with him gave "compelling evidence about the applicant's remorse" (at [27]). By way of explanation for committing the offences, the applicant gave evidence of having used methylamphetamine for two years prior to the offences. A forensic psychologist report, tendered on his behalf, stated he had a substance abuse disorder, a gambling addiction and long-standing symptoms of depression, anxiety and low self-esteem. Special circumstances were found, being a combination of the applicant's age, the fact that it was his first prison sentence and his need for rehabilitation, in particular, attendance at drug and alcohol counselling. The variation of the standard NPP ratio was modest (71 per cent). The sentencing judge expressly found that there were good prospects of rehabilitation.
The sentencing judge had allowed a discount of 15 per cent for the guilty plea, from a starting-point sentence of 10 years. Allowing for the relevant dissimilarities, Enriquez does not suggest that the aggregate sentence here is excessive.
The other two cases, RSW v R [2012] NSWCCA 13 and R v DAJ [2012] NSWCCA 143, both involved considerably younger complainants (aged 9 or 10 years), a mix of ss 61J(1) and 61M(1) offences and the commission of the offences in the context of a course of conduct over a period of time. The aggregate sentences, for DAJ in particular, were significantly lower than the present offence. However, neither involved a s 61J(1) offence of penile-vaginal intercourse.
In RSW, the applicant was convicted at trial of two counts pursuant to s 61J(1) (counts 1 and 2), and one pursuant to s 61M(1) (count 3). Counts 2 and 3 occurred on the same day, which was after count 1. Counts 1 and 2 were allegations of cunnilingus and count 3 involved the offender placing the complainant's hand on his penis. The complainant's evidence, which was accepted by the judge for the purposes of sentence, was that the offending was part of a course of similar conduct.
His Honour fixed the seriousness of counts 1 and 2 at lower than mid-range. The applicant was sentenced on each of counts 1 and 2 to 8 years with a NPP of 5 years, with a 12 month period of accumulation between the two sentences, and for the third count, 6 years with a NPP of 3 years, which was wholly concurrent with count 2. The overall sentence was 9 years with a NPP of 6 years. The severity appeal was dismissed.
DAJ was a successful Crown appeal against leniency of sentence imposed for two s 61 J(1) offences and four counts of aggravated indecent assault pursuant to s 61M(1). The sentencing judge had assessed the objective seriousness of the two s 61J(1) offences, which involved digital penetration, as being at the lower end of the range and expressed no finding about the objective gravity of the aggravated indecent assaults. This Court found that the sentencing judge had underestimated the gravity of all the offences, leading to a manifestly inadequate sentence. The fresh sentence was 6 years 6 months, with a NPP of 4 years 3 months, although the objective seriousness of the six offences was not identified in terms of the mid-range.
In Simon v R [2013] NSWCCA 328, Macfarlan JA (Latham and R A Hulme JJ agreeing), said, at [113]: "Sentencing decisions are discretionary judgments to which the principles in House v The King are applicable. Thus, 'a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion' (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]). If no specific error can be demonstrated, an appellant cannot succeed unless he or she establishes that the sentence is unreasonable or plainly unjust, such that it can be concluded that some, albeit unidentified, error must have occurred (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]). This ground, referred to as one of manifest excess, is established where the sentence imposed 'is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it (Hili v The Queen [2010] HCA 45; 242 CLR 520 at [60]; Bugmy v The Queen at [52])."

Conclusion

Intervention on the basis of manifest excess is only warranted where the difference between the sentence imposed below and sentences imposed in other cases is such that it may be concluded that there must have been some misapplication of principle, or where the sentence imposed is so far outside the range of sentences available that there must have been error: Ngati v R [2018] NSWCCA 32 at [27].
A principal focus of determination of a ground alleging manifest excess in respect of an aggregate sentence is whether aggregate sentence reflects the criminality involved: JM at [40]. The indicative sentence for the first count was high, although it was not submitted that either it, or those for the other two counts, were excessively so. The aggregate sentence, in light of the indicative sentences, is notionally consistent with there being a significant degree of concurrency between the second and third counts and some concurrency, in turn, with count 1.
His Honour indicated that he intended to impose a "stern" sentence, which it was. This Court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from that in which the sentencing judge exercised his or her discretion: Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]. In all the circumstances, the aggregate sentence was within the range of sentences available to the sentencing judge to reflect the bounds of the criminality encompassed in the three offences.
Accordingly, I propose the following orders:
Leave to appeal granted.
Appeal dismissed.

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