A.I.S. v Regina

[2006] NSWCCA 355

CITATION:	A.I.S. v Regina [2006] NSWCCA 355
HEARING DATE(S):	30 October 2006
JUDGMENT DATE:	20 November 2006
JUDGMENT OF:	Beazley JA; Sully J; Hislop J
DECISION:	(1) Leave to appeal granted; (2) Appeal dismissed.
CATCHWORDS:	These proceedings are subject to the limitations upon publication and/or broadcasting imposed by s 11(1) of the Children (Criminal Proceedings) Act 1987 - Criminal law - Sentence - Indecent assault on 13 year old girl - Sentence not manifestly excessive.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 - s 11(1) Crimes Act 1900 - s 61M(1) Criminal Appeal Act 1912 - s 5(1)(c)
CASES CITED:	Markarian v R (2005) 215 ALR 213 R v Allpass 72 A Crim R 561 R v Simpson (2001) 53 NSWLR 704 R v Tait (1979) 46 FLR 386
PARTIES:	Applicant - A.I.S. Respondent - Regina
FILE NUMBER(S):	CCA 2006/1859
COUNSEL:	Applicant - Mr P. Rosser QC Respondent - Ms J. Dwyer
SOLICITORS:	Applicant - Moray & Agnew Respondent - Director of Public Prosecutions (New South Wales)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/0403
LOWER COURT JUDICIAL OFFICER:	English DCJ
LOWER COURT DATE OF DECISION:	24 May 2006

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2006/1859

BEAZLEY JA
SULLY J
HISLOP J

20 November 2006

A.I.S. v REGINA

Judgment

These proceedings are subject to the limitations upon publication and/or broadcasting imposed by s 11(1) of the Children (Criminal Proceedings) Act 1987.

1 BEAZLEY JA: I agree with Hislop J.

2 SULLY J: I agree with Hislop J.

HISLOP J:

3 On 5 December 2005 the applicant pleaded guilty to the offence that he did assault a named victim (“A”), and at the time of the assault, he did commit an act of indecency upon her, in circumstances of aggravation, namely, she then being a person under the age of 16 years, namely, 13 years of age, contrary to the Crimes Act 1900 s 61M(1). The maximum penalty for such an offence is 7 years imprisonment. A standard non parole period of 5 years is applicable to the offence.

4 On 24 May 2006 the applicant was sentenced for that offence in the District Court to imprisonment for a non parole period of 9 months commencing on 24 May 2006 and expiring on 23 February 2007, with the overall term of imprisonment being 2 years and 9 months, 2 weeks and 4 days commencing on 24 May 2006 and expiring on 13 March 2009.

5 The applicant has sought leave to appeal against that sentence pursuant to the Criminal Appeal Act 1912 s 5(1)(c). The grounds of appeal are:

(1) The sentencing Judge erred in using inappropriate comparable cases to determine the range of sentence;
(2) The sentencing Judge erred in regarding herself as bound to impose a sentence of imprisonment;
(3) In all the circumstances the sentence imposed was manifestly excessive.

6 The facts of the offence, as recounted by the sentencing Judge in her Remarks on Sentence were:

The victim, A, has known the offender through their mutual involvement with swimming since she was around 7 years old.
When A first started school swimming, the offender was a senior student swimming in the senior squad. A swam in the juniors at that time.
In January 2002, after leaving school, the offender obtained a position as a swimming coach at a swimming club. In January of the following year the offender was involved in coaching A, and he continued as her coach until around July 2003. A was one of twenty or so children aged between 8 and 14 who were trained by the offender.
On a day in May or June 2003, A was on the internet chatting on line with the offender. He made a number of suggestive comments to her in his messages.
The next day A attended swimming training where the offender was coaching her. A’s mother asked the offender to take A home after training. And so when training finished, the offender and A went to the offender’s car.
The offender drove off, but did not take A home immediately. He stopped at the carpark near a railway station, telling A he wanted to chat with her.
The offender then leaned towards the passenger seat from the driver’s seat, and kissed A on the mouth, inserting his tongue into her mouth, She pulled away, and asked him what he was doing.
The offender told A to relax, and began to touch her with his hand. The victim said “no”, but the offender continued. He moved his hand inside the victim’s jeans, and then underneath her underpants. He began to touch her genitals. When A again asked him what he was doing, he again told her to relax, that he was exploring. The offender took hold of A’s hand and placed it on his groin area. The offender continued to touch A’s genitals for some moments before stopping and removing his hand from underneath her clothing.
A told the offender she needed to go home and he said he would take her home. The offender then drove her to her home. As she was getting out of the car, he told her not to tell anyone, saying that if she did “things won’t work out”. A told the offender that he was her swimming coach and she didn’t want things to work out.
At the time of the incident A was aged just 13, and the offender was 19 years old. In late August 2003 A told her mother … what had happened and police were notified.

Ground One – The sentencing Judge erred in using inappropriate comparable cases to determine the range of sentence.

7 Her Honour in the course of her Remarks on Sentence reviewed 6 recent cases which her Honour’s researches had revealed. As the first 2 cases predated the commencement of the standard non parole period regime her Honour concluded they offered little or no guidance. The essence of the remaining 4 cases, as distilled by her Honour, was as follows:

(a) 70 year old gymnastics coach touched breasts of 13 year old girl and patted her buttocks on outside of clothing – guilty plea – 12 months imprisonment partially suspended;
(b) 44 year old male placed hands on outside of 13 year old girl’s clothing in area of her breasts and vagina, attempted to kiss her, prior similar offence – 4 years and 3 months imprisonment, non parole period 2 years and 9 months;
(c) 67 year old male exposed penis, forced 12 year old girl onto bed demanding she have sex with him – girl escaped – 5 years 2 months imprisonment, non parole period 3 years and then there was a reduction of the non parole period from the original sentence;
(d) natural father, whilst intoxicated, placed hand on vagina of his naked 9 year old daughter – plea of guilty – 3 years imprisonment non parole period 1 year 6 months.

8 The applicant submitted:

To establish a range that precluded a non custodial sentence by reference to these cases was to ignore the very considerable distinctions between them and the present case. Most importantly to regard them as comparable was to ignore the relatively narrow gap between the ages of the applicant and the complainant.

9 The applicant’s submissions assumed that her Honour by reference to those cases alone established a range that precluded a non custodial sentence.

10 Her Honour’s reference to the cases was immediately preceded by the following remarks:

Counsel on behalf of the offender submits that other than a custodial sentence is appropriate. The Crown says that a non custodial option is within range. I do not agree. The judicial commission statistics are of little assistance, a review of recent cases is of more assistance.

11 The reference to the cases was immediately followed by:

I have given consideration to all of those cases to which I have referred, and I have given consideration to the sentencing options available to me. I have also given consideration to the submissions made on behalf of the offender, and by the Crown. However, only a sentence of full time imprisonment will satisfy the requirements of general and specific deterrence. Had the matter proceeded to trial, I would have imposed a head sentence of 3 years and 6 months.

12 The matter is not completely clear but, in my opinion, the context is such as to lead me to conclude the consideration of the “comparable cases” was but one of the factors taken into account by her Honour in determining that a custodial sentence was appropriate in this case. Her Honour, in considering the matter, was mindful of the age difference as she specifically stated in her Remarks on Sentence that the applicant’s age lessened the objective seriousness of the offence and reduced what would otherwise have been a mid range offence into one at the lower end of mid range. In my opinion the applicant has failed to demonstrate error on this ground.

Ground Two - The sentencing Judge erred in regarding herself as bound to impose a sentence of imprisonment.

13 Her Honour, in her Remarks on Sentence, stated:

The absence of a prior criminal record, and the fact that an offence occurs spontaneously are often features of cases of sexual assault upon children by adults. A sentencing decision which does not involve a period of full time custody because of the existence of these factors, either individually or collectively, will stand for nothing.

14 The applicant in his written submissions argued:

It is difficult to interpret this statement as other than a proposition that in all cases of sexual assault by adults upon children a custodial sentence must be imposed. The statement ignores the vast range of circumstances – relative ages, degrees of “grooming” or pre mediation – that may be disclosed by the facts of an individual case.

15 Her Honour’s statement however, even when read in isolation, does no more than indicate that the absence of a prior criminal record and the fact the offence was spontaneous do not alone provide a reason why a full time custodial sentence should not be imposed. Her Honour explained why in the balance of that paragraph in that:

The fact that a person is of otherwise good character enables them to gain the position where they can gain exposure to children, and be in a position of authority over them. That is not to say that I find this offender was such a person. I refer to the principle because in a case such as this, prior good character carries very little weight. There is a much greater need for emphasis to be given to general deterrence in the sentencing exercise.

16 That her Honour was not advancing a proposition that in all cases of sexual assault by adults upon children a custodial sentence must be imposed is apparent when regard is had to her Honour’s comments elsewhere in the Remarks on Sentence where she refers to the state of the law prior to the implementation of the standard non parole regime as one in which this Court had declined to lay down any requirement that a custodial sentence should ordinarily be imposed in relation to the charge of indecent assault. Her Honour then referred to the standard non parole period regime as being the clearest indication that the Court should regard these offences as being objectively very serious but she did not conclude that the effect of that regime was to make a custodial sentence mandatory in all cases of sexual assault by adults upon children. As her Honour observed, the standard non parole period was not binding where the offender had pleaded guilty. I would not uphold this ground of appeal.

Ground Three - In all the circumstances the sentence imposed was manifestly excessive.

17 In R v Allpass 72 A Crim R 561 at 563 the Court held:

A sentencing Judge, in determining what punishment to impose upon an individual who has broken the law, will often need to take into account a complex combination of facts and circumstances. The Judge must never lose sight of, or fail to give due weight to, the objective seriousness of the offence. On the other hand, the subjective characteristics of the offender will usually be of relevance, and sometimes of great relevance, in determining the appropriate punishment for the conduct in question.

18 As to the objective seriousness of the offence her Honour found:

This is not a situation where there was a brief touching of a young girl on the outside of her clothing, it was an unwelcome advance over quite some time, with many warnings to him that what he was doing was wrong. … He saw an opportunity and seized upon it to sexually assault this young girl. A young girl who looked up to him as her swimming coach, … at a time she had been entrusted into his care by her mother to deliver her home safely. … he knew full well what he did was wrong, and he knew full well if his actions were discovered, he would find himself in the very position he is in today, facing sentence for committing a very serious offence. … He is one of those offenders who having committed an offence, goes about his daily life not expecting his victim to come forward and complain, confident that he has been successful in his threat over her not to tell. Confident that his good character will stand him in good stead, oblivious to the harm he may have caused to his victim, either in the short or long term. Confident that the complainant will be too embarrassed, afraid or inhibited by feelings of guilt to complain. ,,, The offence for which he now faces sentence is one which clearly demonstrates a loss of control over his impulses. There can be no other explanation for his offending other than for his own gratification. It certainly cannot be attributed to a clouding of the mind by drugs or alcohol.

19 It may be added that A was born on 26 February 1990 and was thus at a very important developmental stage of her life. At that age a difference of 6 years between victim and offender is significant. However, in the absence of evidence, her Honour was unable to find that the emotional harm suffered was substantial.

20 As to subjective characteristics the applicant gave evidence at the sentencing hearing. In addition, a probation and parole service Pre Sentence Report and a psychologist’s report were tendered on his behalf. Evidence was also given by a family friend who spoke highly of him. Her Honour found:

(a) The applicant was born on 29 December 1983. He completed his Higher School Certificate and commenced a Bachelor of Science degree at University, but left after completing 12 months at the end of 2002.
(b) He was employed as a swimming coach. He had been a competitive swimmer himself since 13. He had volunteered at the Pan Pacific Swimming Championships and the Sydney Olympics. He is currently employed in the family engineering business. It was apparently his dream to become an Air Force pilot.
(c) He did not suffer from any psychological, pathological or personality disorder and could give no satisfactory explanation for his behaviour.
(d) He had no criminal record at the time of this offence but on 18 October 2004 he was fined for maliciously destroying or damaging property.
(e) He had demonstrated some remorse and contrition.
(f) The offence had not been planned.
(g) His prospects of rehabilitation were good and that he was unlikely to re-offend.
(h) His age lessened the objective seriousness of the offence.
(i) As a result of the plea of guilty on the first day of the trial the applicant was entitled to a discount of 20 percent.

21 Her Honour took, as her starting point, a head sentence of 3 years and 6 months which she discounted by 20% to allow for the plea of guilty. She found special circumstances and significantly varied the statutory non parole period. In doing so she took into account the applicant’s youth, his prospects for rehabilitation, the fact that this is the first time he will find himself in custody and no doubt his time will be spent on protection. Her Honour fixed a non parole period of 9 months.

22 The applicant contended:

In terms of objective circumstances more weight should have been given to the relative ages of the applicant and the complainant, to the spontaneous nature of the offence and to the fact that it occurred in a location where the sexual activity was unlikely to have developed beyond what occurred. While it was open to find that there was a breach of trust and authority the circumstances here are a world away from the case of a mature and significantly older adult in the family, employment or school situation who breaches that trust. It was open to the sentencing Court to have imposed a non custodial sentence. Such a sentence would have been an appropriate disposition of the matter.

23 In Markarian v R (2005) 215 ALR 213 the High Court held at [27]:

The judgment is a discretionary judgment and, as the bases for appellate review revealed, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached … As has now been pointed out more than once, there is no single correct sentence. And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

24 Her Honour took into account each of the subjective and mitigating factors. She gave such matters the weight which she considered appropriate. She closely considered whether a non custodial sentence was appropriate and concluded it was not. She found the applicant’s age lessened the objective seriousness of the offence and that had he been older she would have found it to be a mid range offence.

25 In my opinion the offence was serious in its nature and it was open to her Honour to impose a full time custodial sentence. It is not open to this Court to interfere with that decision.

26 How a particular sentence is to be quantified according to correct principle will always come down, ultimately, to that process of “instinctive synthesis” of which the relevant authorities speak: Markarian v R (2005) 215 ALR 213. In my opinion, that process, when applied to the given facts of the present case, suggests that the starting point taken by her Honour, of 3 years and 6 months discounted by 20%, yields a head sentence that is very severe. I have given anxious consideration to the question whether that head sentence can fairly be accepted as falling within the relevant range of sentence properly open to her Honour. I have concluded, but not without hesitation, that it can, albeit the sentence is, in my opinion, at the upper and outer limit of that range.

27 Even had I come to the contrary conclusion, the applicant would have faced great difficulty in challenging the non-parole period set by her Honour. The discounted head sentence set by her Honour would have entailed, absent a finding of special circumstances, a non-parole period in the order of 2 years. The finding of special circumstances by her Honour resulted in the setting of a non-parole period of about one-third of that term. I do not see any margin of possible adjustment of the discounted head sentence that would justify a reduction in a non-parole period of 9 months.

28 This is a Court of error. It does not interfere with the sentence imposed merely because it would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. It interferes only if it be shown that the sentencing Judge was in error, and then only if it forms a positive opinion that some other, less severe, sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79], Criminal Appeal Act 1912 s 6(3).

29 In my opinion error has not been established nor has it been established that some sentence, less severe, is warranted in law and should have been passed. Whilst I would grant leave to appeal I would dismiss the appeal.

Orders

30 I propose the following orders:

(1) Leave to appeal granted;
(2) Appeal dismissed.

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