AC v R

[2016] NSWCCA 107

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AC v R [2016] NSWCCA 107
Hearing dates:	16 May 2016
Date of orders:	08 June 2016
Decision date:	08 June 2016
Before:	Chief Justice T Bathurst at [1] Schmidt J at [2] Wilson J at [90]
Decision:	(1)   Leave to appeal be allowed. (2)   The appeal be dismissed.
Catchwords:	CRIMINAL LAW – leave to appeal against sentence – – Crimes Act 1900 (NSW) s 66EA offence – whether there was a failure to give weight to the “victim impact statement” – whether there was a failure to take into account prospects of rehabilitation, and likelihood re-offending – whether there should have been a finding of special circumstances – appeal allowed – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	ARS v R [2011] NSWCCA 266 Butters v R [2010] NSWCCA 1 Caristo v R [2011] NSWCCA 7 R v Fidow [2004] NSWCCA 172 Langbein v R [2008] NSWCCA 38; (2008) 181 A Crim R 378 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Cramp [2004] NSWCCA 264 R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 R v Hutchinson [1994] 15 Cr App R (S) 134 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 R v Nunn [1996] 2 Cr App R (S) 136 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Roche [1999] 2 Cr App R (S) 105 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Van Hong Pham [2005] NSWCCA 94 Shaw v R [2008] NSWCCA 58 Shrestha v The Queen [1991] HCA 26; (1991) 173 CLR 48 TS v R [2007] NSWCCA 194 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category:	Principal judgment
Parties:	AC (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Lange (Applicant) Mr E Balodis (Crown)   Solicitors: (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2014/39283
Publication restriction:	Non-publication order re the name of the complainant, the complainant’s father, the offender and the relevant facts (Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: -- Date of Decision: 6 March 2015 Before: Sweeney DCJ File Number(s): 2014/39283

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgment of Schmidt J. I agree with her Honour’s conclusions and with her reasons.

2. SCHMDIT J: The applicant pleaded guilty to an offence of persistent sexual abuse of a 12 year old girl, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). On 6 March 2015, after a 25% discount for his early plea, Sweeney DCJ sentenced him to a term of imprisonment of 10 years, commencing 6 February 2014 and expiring 5 February 2024. His 7 year, 6 month non-parole period expires on 5 August 2021.

3. The applicant seeks leave to appeal that sentence on three grounds. For the reasons which follow, I consider that while leave to appeal should be granted, the appeal must be dismissed.

The s 66EA offence

4. Section 66EA provides:

“66EA Persistent sexual abuse of a child

(1)    A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.

(2)    It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3)    It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales.

(4)    In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(5)    A charge of an offence against this section:

(a)    must specify with reasonable particularity the period during which the offence against this section occurred, and

(b)    must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(6)    In order for the accused to be convicted of an offence against this section:

(a)    the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and

(b)    the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and

(c)    if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and

(d)    the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section.

(7)    In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6).

(8)    A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10).

(9)    A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence.

(10)   If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly.

(11)   Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions.

(12)   In this section:

child means a person under the age of 18 years.

sexual offence means any of the following:

(a)   an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A,

(b)    an offence of attempting to commit an offence referred to in paragraph (a),

(c)    an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b).

5. In Langbein v R [2008] NSWCCA 38; (2008) 181 A Crim R 378 it was observed at [115] that “[t]he offence of persistent sexual abuse contrary to s 66EA carries a maximum prison term of 25 years. It is a more serious offence than the offences which comprise the individual acts.” In sentencing an offender for such an offence, the foundational offences must be established beyond reasonable doubt (see ARS v R [2011] NSWCCA 266 at [230]). In this case they were established by the agreed facts.

6. The particulars of the offence to which the applicant entered his plea were:

“Between 11 January 2014 and 5 February 2014 at Raymond Terrace and elsewhere in the State of New South Wales, did on at least three separate occasions and on at least three separate days engaged in conduct in relation to a particular child, namely [MG] that constituted a sexual offence, namely, had sexual intercourse with [MG] a person above the age of 10 years and under the age of 14 years, namely 12 years.”

The sentencing judge’s obligations

7. In sentencing the applicant her Honour had to take into account the purposes of sentencing specified in s 3A of Crimes (Sentencing Procedure) Act1999 (NSW), namely:

“(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,”

8. Her Honour also had to take into account the maximum penalty fixed for the offence; the applicant’s plea of guilty; the objective seriousness of the offence, as revealed by the evidence; the applicant’s moral culpability for his offending; the specified aggravating and mitigating matters provided in s 21A of the Crimes (Sentencing Procedure) Act revealed by the evidence; as well as the applicant’s subjective circumstances. Those matters all had to be taken into account when the sentence was determined by her Honour undertaking the instinctive synthesis discussed in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [37] – [39].

9. Her Honour also had to determine the amount of the discount which the applicant should receive for his plea, to a maximum of 25% (see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1). In arriving at that discount her Honour had to bear in mind that in some cases, even an early plea may not result in a discount, where the offence in question is so serious that no discount should be given (see Thomson at [158]). Her Honour also had to ensure that the sentence finally imposed after discount, was not unreasonably disproportionate to the nature and circumstances of the applicant’s offence (see s 22(1A) of the Crimes (Sentencing Procedure) Act).

10. In this case, these considerations necessitated that a heavy sentence be imposed on the applicant for his serious offence.

Grounds of Appeal

11. The three grounds on which the applicant sought leave to appeal his sentence were:

“1.   Her Honour failed to give weight to the “victim impact statement” prepared by the complainant, MG;

2. Her Honour failed to take into account the applicant’s prospects of rehabilitation, and the question of the likelihood of his re-offending, as required by s 21A(3) Crimes (Sentencing Procedure) Act 1999; and

3.   Her Honour erred in failing to consider whether to make a finding of special circumstances.”

The evidence as to the offence

12. The agreed statement of facts included extracts from an ERISP which the applicant gave on his arrest, parts of which were also tendered by the Crown. A statement made by the victim, entitled “victim impact statement” was also tendered, as were statements made by Imam Abdelalim and Imam Khamis, who had both advised the applicant. They were not required for cross-examination. In the defence case transcripts of the victim’s interviews by police were tendered, as were two psychologists’ reports and two references from persons who had come to know the applicant at Villawood Detention Centre.

13. The applicant did not give evidence, nor was evidence called from the victim’s father, or the Sheikh who performed the ceremony by which the applicant understood that he and the victim had become husband and wife. It was not in issue that the ceremony is not one recognised under Australian law; that the victim was not legally entitled to marry; nor that she could not legally give her consent to the sexual intercourse which the applicant had with her following that ceremony.

14. The applicant was 26 years old when he committed this offence and the victim only 12 years. She was 13 years when she made her “victim impact statement”. The applicant was living in Australia on a student visa, having arrived in June 2013 to study at the University of Newcastle. He was living at Chester Hill in Sydney with his brother and travelling back and forth to Newcastle. He told Dr Rastogi that on arrival he had undertaken a course in English and that he had proposed to pursue a tertiary degree in megatronics.

15. The victim lived at home with her father and siblings when she met the applicant. They were practising Muslims, attending the Wallsend mosque. Her parents were separated.

16. The applicant attended that mosque, where he first saw the victim in November 2013. They did not speak, but he approached Imam Abdelalim and told him that he wanted to marry the victim. On the Imam’s statement, the applicant said that he wanted to have a stable life and family, but was having difficulty finding a match, because he had no work. He asked for the Imam’s help.

17. On accounts he has given, the applicant initially thought that the victim was 17 years old, but soon learned that she was only 12. Imam Abdelalim knew the victim, who attended a class which he taught at the mosque. The applicant asked Imam Abdelalim to arrange for him to speak to her. The Imam refused, on his unchallenged statement, telling the applicant that he was not allowed and that they could find him a more suitable wife in the Lebanese community. The Imam was not approached by the victim’s father about the applicant’s proposed marriage to his daughter.

18. Imam Khamis also knew both the applicant and the victim’s father. He was aware of the father’s concerns about the victim going to high school. The applicant also approached Imam Khamis about marrying the victim in late 2013. Imam Khamis’ unchallenged statement was that he told the applicant even more directly, “this is not allowed. This is illegal. It is against the law”. After this advice the applicant left the mosque, but spoke to the Imam again by telephone about a week later, when he told the Imam: “I want to marry her.” The Imam told him again: “It is not allowed, it is better to look for one which is fit for you.” The applicant did not speak to the Imam again and the victim’s father also did not approach him about the applicant’s desire to marry the victim.

19. In his police interview the applicant confirmed that the Imams had told him the victim’s age; that marrying the victim was illegal here; and that he would get into trouble if he married her.

20. Still the applicant had a friend approach the victim’s father to ask if he could marry the victim. They met at a prayer place at Heatherbrae, where the father told him that the victim was not interested in marrying him. At this time the victim did not know the applicant.

21. Despite this advice, the applicant then began attending the Wallsend mosque, in order to meet the victim’s father. He then asked to meet the victim. Her father first permitted him to meet the victim at the end of November, in his company. Afterwards the victim told her father that she did not wish to marry the applicant, as he was too old. Despite this, her father gave the applicant her phone number.

22. The applicant then pursued contact with the victim. She did not respond to the 26 text messages which he sent her on the evening of 27 November 2013, or to the 25 messages which he sent on 29 November, or the message which he sent her on 8 December.

23. Some time later the applicant met the victim’s father at another mosque at Rooty Hill, where he had been invited to a meeting with the applicant. The father again told the applicant that his daughter did not wish to marry him. The applicant insisted that if she got to know him, she would.

24. The applicant then sent further text messages to the victim on 28 and 29 December. On the 29th the victim replied. They then exchanged over 200 messages a day until 11 January 2014. On 12 January, with her father’s approval, she invited the applicant to her home and he gave her a $100 as a gift. The applicant and the victim’s father again discussed marriage.

25. Her father then telephoned her mother and told her that the victim wished to marry the applicant and that he wanted her to meet him. Understandably, the victim’s mother did not agree with the victim marrying, but her father said that: “it was OK under Muslim law”. Still the victim’s mother disagreed and the call ended. Shortly afterwards she called the victim and told her that she did not agree to the marriage. The victim then said: “If you say I can’t do it then I can’t do it”, but her father took the phone and told her mother: “Next time you see your daughter she is going to be married” and words to the effect that he could not look after the victim forever. After that call concluded, he told the applicant and the victim that they were to be married that day.

26. The applicant then made arrangements with a friend to meet Sheikh Tasawar at Mayfield mosque, because he knew that the Imams at the Wallsend mosque which the victim and her family attended, would not assist, they having previously told him that it was illegal for him to marry the victim.

27. After meeting the Sheikh for a few minutes, the applicant and his friend returned to the victim’s home. There is no evidence as to what the applicant told the Sheikh about the victim, or her age. It is agreed, however, that at the victim’s home a ceremony took place in Arabic and that the applicant and the victim were then “married under an Islamic ceremony”.

28. There is, however, no evidence that this ceremony was one recognised under Sharia law, as it is agreed that the applicant believes. Such a claimed belief alone cannot establish what Sharia law might provide, particularly given the agreed fact that the advice which the applicant had received from the two Imams from whom he had sought advice, who both knew the victim and her age, was that it was illegal for him to marry her.

29. It is also relevant that the applicant told police that apart from the two witnesses present at the ceremony, no members of the Islamic community had attended. He later told Dr Rastogi that as the result of his offending, he had been ostracised by his community. That is also not consistent with his professed belief as to the rightness of his conduct under the faith which he shares with that community.

30. After the ceremony the victim’s father told the applicant that he would take care of giving the Sheikh money. He also gave the victim $500 as a wedding gift. Later her father told her not to use any birth control pills or condoms and not to let the applicant use any kind of contraception. The applicant then drove the victim to a motel at Newcastle, which was paid for using money the victim’s father had given her.

31. The first to fifth acts involved in the applicant’s offence took place that day at the motel. Over the following days the applicant and the victim stayed at a number of different motels in Sydney, having sexual intercourse three to five times a day. On the weekend they stayed with the victim’s father. The sixth and seventh acts of sexual offending took place on the weekend of 17-19 January, at the home of the victim’s father, to his knowledge. The following week the applicant and the victim again stayed at different motels in Sydney, continuing to have sexual intercourse at least twice a day.

32. On the weekend of 24 - 26 January they returned to the victim’s father’s home, where he had built a queen sized bed for them to share in her old bedroom. On 28 January they moved to a rented house at Guildford West, where they had sexual intercourse. On 4 February, the eighth act of sexual offending took place.

33. On 5 February the applicant attempted to enrol the victim in year 7 at Auburn Girls High School. Consistent with the advice the Imams had given him, he did not disclose the nature of his relationship with her, but told the Vice Principal that her parents were in Newcastle and he was looking after her. He was told that he needed to be registered as her guardian before she could be enrolled, and was directed to Centrelink or Family and Community Services.

12. The applicant and the victim then went to Centrelink, where the applicant enquired about guardianship and claiming benefits for the victim. When asked about the nature of their relationship, he said that they were boyfriend/girlfriend and living together. He was advised that because the victim was under 16, he would need to speak to Family and Community Services. That afternoon the victim spoke to a caseworker by phone, explaining that she was living with her 26 year old boyfriend, that she wanted to enrol in an Islamic girls school, how she had met him and that her parents accepted their relationship. An appointment was made for the next day. When they attended police were notified.

13. During police interviews, the victim said amongst other things that she understood that under Islamic or Sharia law she could get married at puberty; that her father had allowed her to marry immediately on learning that this was the law; that she knew the Sheikh from the Mayfield mosque because the applicant had gone to get him to marry them; that he had gone there because the Wallsend mosque would not help him; that he had paid the Sheikh for marrying them; and that they had had intercourse repeatedly, at times that she described.

14. Police then spoke to the victim’s father, who confirmed his knowledge that she had married the applicant and was living with him. The applicant was then arrested.

15. During his interview the applicant made numerous admissions, that is, representations contrary to his interests. They included admissions as to his repeated sexual intercourse with the victim and that he had married her. He also said that “it was the Islamic way” to marry, once a girl was bleeding, if she wanted; that they had married under Islamic law, but not Australian law, under which they were just boyfriend and girlfriend; that he was aware that she was only 12 when he had married her, but that he had not heard of the legal age of consent until that day; that he did not consider his relationship to be criminal, but holy; that it was not a crime; that it was common to give birth at, 10, 12 or 13; that birth was “nothing”; that they had had sex, after the victim had said yes and was his wife; that he did not agree that this was a crime in New South Wales; that there was no problem, because they were happy; that he had the permission of her dad; that there was thus nothing wrong with having sex with the victim, because she was his wife; that he did not agree that it was a crime because he was a Muslim and could marry her once she had her period.

16. In June 2014 the applicant told Dr Rastogi that he had been raised in a very strict religious environment, with strong enforced values and practices; that in Islamic law, it was allowed to get married to girls once they attained puberty; he grew up in that environment; his sister had married at 16; that was acceptable in Lebanon; that when he married the 12 year old victim, he perceived that he was doing the right thing; and “I never thought this was wrong, I grew up in such an environment where marrying a minor was normal tradition and common occurrence as per the religion”.

17. What he told Dr Rastogi was undoubtedly untrue, given the unchallenged evidence of both Imam Abdelalim and Imam Khamis and the agreed facts.

18. The applicant also gave a false account to Ms De Santa Brigida. He told her that the Sheiks who he approached at the mosque that the victim attended were not of assistance, because they did not really know him; they thought he might be seeking marriage only as a means of securing residence in Australia; and that he could not marry because he did not have citizenship in Australia. He did disclose to her that he found out the victim’s age, after he first approached her father and heard her say “he is too big for me”, but, he said, marriage at that age in his faith in Lebanon was a very common practice and that young females are considered to be of marriageable age, once they have reached puberty. He also claimed not to know that what he had done constituted a criminal offence in Australia.

19. The applicant also led no evidence on sentence to establish that the law in Lebanon permitted the common practice of 12 year old girls marrying, which he claimed there exists.

Ground 1 – the victim impact statement

42. The victim was the “primary victim” of the applicant’s offence, as that term is defined in s 26 of the Crimes (Sentencing Procedure) Act. A “victim impact statement” is there defined to mean:

“… a statement containing particulars of:

“(a)    in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence,

…”

43. The Crown tendered an unsigned and undated document from the victim entitled “victim impact statement”. It did not disclose that she had suffered any harm. There she said that “the law is only tring(sic) to do its best to protect me but what are u protecting me from?” She also said that she was being caused harm, because she was not “protected from the motions that go through my body and I’m not protected from the tears that burn my face and eyes each and every night”. The victim also asked for her husband back so that she could “have the happy life I deserve”. She expressed the opinion that “one happily married couple and their families do not deserve to go through the stress and pain just for an act of crime that didn’t hurt any body in anyway”.

44. By its terms it is apparent that this document is not a victim impact statement as defined. It does not identify the personal harm which the victim has, in fact, already suffered as the result of the applicant’s offending. It could not be assumed that there had been no such harm and on the evidence, the harm which had already been caused included an ectopic pregnancy and it must be inferred, a miscarriage.

45. In the result, this statement was not one that the sentencing judge was entitled to take into account under s 28 of the Crimes (Sentencing Procedure) Act as a victim impact statement, even if her Honour had considered it appropriate to do so. Section 30(3) provides that a “court may receive and consider a victim impact statement only if it is given in accordance with and complies with the requirements prescribed by or under this Division”.

46. Sweeney DCJ took the view that:

“That the child’s father gave permission for the Moslem marriage does not excuse or mitigate [the applicant’s] offence.

Nor does the attitude of the child. The Crown and [the applicant] disagreed about the significance of a victim impact statement prepared by the child. The Crown tendered the victim impact statement in accordance with s 28 of the Crimes (Sentencing Procedure) Act which states that “a court may receive and consider a victim impact statement” but the Crown did not rely on the contents of the statement, in which the victim said she misses her husband and is unhappy about his having been taken from her.

The Crown submitted that the view of the victim is not relevant to the appropriate sentence to be imposed. [The applicant’s] counsel submitted that that principle of law has been superseded by s 30A of the Crimes (Sentencing Procedure) Act which permits a victim to read out her victim impact statement in court.

I do not read the procedural terms of s 30A as having changed or eroded the often expressed principle that the attitude of the victim cannot reflect the proper sentence for an offender.

In R v Palu (2002) 134 A Crim R 174 Howie J said:

“The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. Sentencing proceedings are not a private matter between the victim and the offender.

A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution.”

In R v Kershaw [2005] NSWCCA 56 Bryson J said:

“The sentencing process is not, and of course should not be, in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interests of justice in imposing an appropriate sentence.”

Whether the victim is intelligent, articulate or sophisticated is difficult to discern from the transcript of her interviews and the short snippet of the recorded interview which the Crown played in court. If she is, it does not assist [the applicant] by mitigating his offence. She may be intelligent and articulate for a 12 or 13 year old girl, but she was still a 12 year old girl. Some of her answers may display a precocious attitude to what she has been taught about her faith. That she has the cultural or religious beliefs that she expressed in her interview, that girls can be married at puberty, does not excuse or mitigate the offender’s conduct towards her.”

47. On appeal the applicant accepted that the statement was not “strictly speaking” a victim impact statement under the Act, but argued that given the sentencing judge’s obligation under s 21A of the Crimes (Sentencing Procedure) Act, to take into account the aggravating and mitigating matters there specified, which were revealed by the evidence, that the victim’s statement had to be considered in accordance with s 21A(3)(a), which provides:

“The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a)    the injury, emotional harm, loss or damage caused by the offence was not substantial”

48. Both at trial and on appeal what the victim had told police in her interviews was relied on for the applicant to support the submission that despite then being aged only 12 years, she did have a level of maturity and that it could not simply be inferred from her age that she was “immature and therefore she cannot be in a position to understand the consequences of her actions”. In the result the statement she had provided for sentence in which she said that she was suffering harm as the result of the applicant’s incarceration could be accepted as relevant and taken into account by way of mitigation.

49. It is correct that on sentencing evidence may be called from a victim as to the matters specified in s 21A(1)(3)(a). Whether or not such evidence will be accepted and if it is, what weight it should be given, is a matter for a sentencing judge to determine. In R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 it was observed at [82] - [83]:

“82    Although victims of crimes are entitled to make a statement to the court as to the effect of the crime for which sentence is being passed upon them, they are not entitled to express their views as to the appropriate sentence to be imposed, the matters to be taken into account by the sentencing judge, or, their personal opinions of the offender. See R v Walsh and Sharp [2004] NSWSC 111 and s 28(3) of the Crimes (Sentencing Procedure) Act.

83    This is not to suggest that there may be the comparatively rare cases where forgiveness of the accused by the victim may be a relevant fact. Most cases, where this issue has been considered, have been in the context of domestic violence.”

50. In this case, it must not be overlooked that the statement relied on came from a child who has been the victim of extraordinary abuse.. His actions were unarguably not only contrary to her healthy development during childhood, but they exposed her to considerable risk of both physical and psychological injury. Such physical risks have in fact already materialised.

51. The victim’s statement itself sheds light on the psychological consequences which have already resulted for the victim. That statement reveals that she presently considers herself more harmed by the applicant’s arrest and punishment for his admitted serious offending against her, than she does from the offending itself, notwithstanding the ectopic pregnancy and miscarriage which resulted.

52. This statement explains why in R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 it was observed at [110] as to children like the victim:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”

53. Here, it was argued, however, in written submissions on appeal, that the victim’s statement “eloquently demonstrates the additional distress, which she is experiencing due to the applicant’s incarceration” and that the sentencing judge erred in failing to take it into account “as mandated, in considering (in the absence of any contrary evidence) the lack of harm” she had been caused.

54. This submission cannot be accepted.

55. What, in truth, this abused child asks for in her statement is something beyond the law enacted for her protection to grant, namely, a return to the abusive relationship and sexual offending which the applicant knew to be contrary to law when he pursued it and which only came to an end as the result of his arrest.

56. The victim’s letter thus cannot sensibly be understood as evidencing either maturity, forgiveness, or an account which supports the conclusion that the injury, emotional harm, loss or damage caused by the applicant’s offence was not substantial. Consistent with her youth and consequent immaturity, it rather reveals a lack of real understanding of the seriousness of the assaults committed against her and the potential ongoing consequences of that abuse for her future development.

57. This victim remains at considerable risk of further psychological harm materialising in the years ahead, notwithstanding what she said in this statement and what she earlier told police. From what she said in those interviews it is apparent that the victim was then not entirely honest, given, for example, what she said as to her mother’s consent to the marriage and what was agreed by the parties on sentence, as to her mother’s opposition. That interview also revealed that the victim was unaware of relevant circumstances, including the advice which the applicant had received from the Imams he had approached at the mosque she attended with her family and his knowledge of the illegality of his actions.

58. In the face of all of this evidence it is surprising, indeed, that on sentence the Crown did not challenge the applicant’s case that the harm he had caused the victim was not an aggravating factor which ought to be taken into account on sentencing. That submission was contrary to the provisions made in s 21A(2)(g) which required account to be taken of the evidence that “the injury, emotional harm, loss or damage caused by the offence was substantial”.

59. On appeal misplaced reliance was also placed on observations such as those in Shaw v R [2008] NSWCCA 58, where it was observed at [45]:

“The affidavit of Ms Pahl tendered on re-sentence is also relevant to re-sentence. To my thinking, it also permits this Court to approach the issue of rehabilitation in a most favourable light. She makes it plain that her support for the applicant is ongoing, reflected as much by what she says as by the fact that she has travelled some distance to visit the applicant to ensure the relationship with his son is maintained. She acknowledges the legal principles that warrant sentences being imposed for domestic violence offenders but impresses on the Court her assessment of the applicant’s violence on the day of the offending as being “totally out of character for him” as a man she says she has loved and lived with for seven years. She describes the applicant as a “good man and a great father and provider”. Although I am mindful of the caution that should be exercised before evidence of a victim’s forgiveness is given undue weight in a sentencing exercise, and also mindful of the observations of Simpson J in R v Glen to which I have already referred, I am persuaded in the particular facts of this case to give Ms Pahl’s evidence significant weight.”

60. Here the evidence did not permit any favourable conclusions to be reached as to the applicant’s prospects of rehabilitation, given the false accounts he had given the psychologists who interviewed him, accounts directly inconsistent with the agreed facts.

61. It was also submitted that the circumstances were analogous to those considered in R v Roche [1999] 2 Cr App R (S) 105, where family members of the victim were closely related to the offender and R v Hutchinson [1994] 15 Cr App R (S) 134, where an adult rape victim had been in a relationship and by trial the victim had forgiven the offender. In R v Hutchinson it was concluded at 137 that:

“It seems that the fact of forgiveness must mean that the psychological and mental suffering must be very much less in those circumstances than would be the case in respect of a woman who very understandably could not forgive such an offence as that with which we are dealing. Accordingly, some mitigation must be seen in that one factor. It is not provided by anything which this appellant has done; it is provided by the forgiveness of his victim.”

62. Such considerations cannot be accepted as arising in this case. Here there is not even an appreciation by the victim that she has anything to forgive.

63. In Roche, Lord Bingham CJ discussed the need for consistency in sentencing, but observed by reference to R v Nunn [1996] 2 Cr App R (S) 136 at 108 that:

“The court went on to say that the opinions of the victim or the surviving member of his family about the appropriate level of sentence did not provide any sound basis for re-assessing a sentence. If the victim felt utterly merciful towards the criminal, as some did, the crime had still been committed and must be punished as it deserved. If the victim was obsessed with vengeance, as sometimes happened, the punishment could not be made longer than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely different ways, leading to improper and unfair disparity. The court pointed out that, if carried to its logical conclusion, the process would end up by imposing unfair pressures on the victims of crime or the survivors of a crime resulting in death to play a part in the sentencing process which many would find painful and distasteful.”

64. After referring to commentary by the Criminal Law Review, his Honour concluded (at 109) that it is:

“ … a cardinal principle of sentencing that it is for the court to pass what it judges to be the appropriate sentence, having regard to all the circumstances relating to the offence and the offender. The system is not one which allows the injured party to dictate the sentence to be imposed, which must always have regard to wider considerations than the wishes of those who suffer as the result of the commission of criminal offences. Just as it is not for the injured party to call for such and such a sentence to be imposed by way of vengeance, so it is not for the injured party to prevail by calling for a sentence well below the level of sentence ordinarily passed. If the court were as a matter of course to accede to a plea for vengeance by the relatives of a deceased person, then it would be appropriate to pay regard to pleas for compassion also. But the court is not swayed by demands for vengeance and has to be very cautious in paying attention to pleas for mercy.

There is however, in the judgment of the court, this difference. Whereas the court can never ignore the public interest element of offences of this kind and can never become an instrument of vengeance, nonetheless it can in appropriate circumstances, and to some degree, become an instrument of compassion. That seems to us to be an appropriate response to this case.”

65. The applicant was submitted to fall into a similar category, namely, an offender who should become the instrument of the Court’s compassion. That submission cannot be accepted, given the nature and seriousness of the applicant’s offending against this 12 year old child, when considered in light of the purposes of sentencing by which the Court is bound.

66. No 12 year old should, as the victim was, be put at risk of disease, pregnancy, child birth, or miscarriage and the physical, hormonal and emotional consequences which they can each have, let alone the risk of motherhood and all of the lifelong responsibilities which that can bring with it.

67. Not only was the victim put at risk, she in fact became pregnant and also suffered one of its complications, an ectopic pregnancy. That, even nowadays in Australia, where such victims have access to advanced medical care, can be potentially life threatening. She also suffered a miscarriage. Fortunately there is no evidence that the victim has suffered other long term physical harm, but the possibility of such harm, or indeed further psychological harm materialising in the years to come, as the result of the applicant’s offending, remains real. Despite what the victim said in her statement, compassion for her situation cannot result in a lesser sentence for the applicant.

68. In the result, this ground must fail.

Ground 2 – prospects of rehabilitation and likelihood of re-offending

69. As discussed in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]:

“This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the 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 671-672 [15].”

70. The applicant’s case was that although on sentence no submissions were addressed to the questions of re-offending and rehabilitation, the sentencing judge was obliged to assess and take into account by way of mitigation of his sentence, that he had good prospects of rehabilitation and not offending again. That may not be accepted. As discussed in Zreika at [81]:

“… The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].”

71. Given the evidence earlier discussed, it would seem that there was good forensic reason for not pursuing arguments as to the applicant’s prospects.

72. It has repeatedly been observed that histories given to those who assess offenders should be approached with some caution when they choose not to give evidence (see for example R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 and TS v R [2007] NSWCCA 194 at [30]; Butters v R [2010] NSWCCA 1 at [18]). That was an important consideration in this case, given all that the applicant initially told police as to his beliefs, what he told the experts and the facts which were later agreed.

73. The applicant did not give evidence. Had he done so he would have been cross-examined not only as to the accounts he had given the experts on whose reports he relied on appeal, but also as to what he had told those who gave character references. What they said made it apparent that the applicant had also not been entirely frank with them.

74. The applicant, seemingly an intelligent man with no prior record, pursued serious and deliberate offending, even though warned by two Imams who knew the victim, that what he proposed to do was illegal.

75. When he was examined by Dr Rastogi and Ms De Santa Brigida in June 2014 he had not yet entered his plea. In the circumstances that he was undoubtedly then in, his plea reflected a recognition of the inevitability of his conviction. A positive assessment as to his prospects of rehabilitation and the likelihood of further offending, depended, however, not on a recognition of the inevitability of that conviction, but on demonstration of an alteration of the views he had held even when he was examined by the two experts, as to his right to marry the victim and to have sexual intercourse with her, despite his understanding as to her age, and that his conduct involved serious offending under the law.

76. That the applicant now accepts that, notwithstanding his prior belief that he was entitled to do what he did, it was in fact criminal to pursue his desires, has not been established by evidence. In his case, given the departures in the histories he had earlier given, from the agreed facts, little weight can be placed on the conclusions reached by the experts as to his prospects of re-offending. .

77. In the result, it was not open to conclude that he has good prospects of rehabilitation and not offending further, even if such a case had been advanced on sentence. It was not.

78. Accordingly, this ground must be dismissed.

Ground 3 - special circumstances

79. It appears that the applicant is at risk of deportation once his sentence is served. This was not a relevant consideration on sentence, even in fixing the applicant’s non-parole period. Deportation is a matter for the Executive Government (see R v Van Hong Pham [2005] NSWCCA 94 referring to Shrestha v The Queen [1991] HCA 26; (1991) 173 CLR 48).

80. The ratio between the head sentence and non-parole period imposed on the applicant reflected the statutory ratio provided by s 44 of the Crimes (Sentencing Procedure) Act, which relevantly provides:

“44    Court to set non-parole

(1)   Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2)    The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2A)   ...

(2B)   ...

(2C)   ...

(3)   The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.

…”

81. The section imposes a fetter on a sentencing judge’s discretion (see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [61]). A finding of special circumstances permits an adjustment downwards of the non-parole period, but that discretion must be exercised in the light of “the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence” (see R v Simpson at [63]).

82. As s 44(2) specifies, departure from the statutory ratio must be explained by reasons given, by reference to the relevant facts on which the finding of special circumstances rests (see Caristo v R [2011] NSWCCA 7 at [28]). Simply because there are circumstances which are capable of constituting special circumstances, however, does not require a sentencing judge to make such a finding (see R v Fidow [2004] NSWCCA 172 at [19]). This Court is unlikely to interfere with the exercise of that discretion, unless the non-parole period is found to be manifestly inadequate or manifestly excessive (R v Simpson at [73]).

83. It follows that where, as here, no finding of special circumstances was sought on sentence and, in exercise of the discretion the statutory ratio was adhered to by the sentencing judge, on appeal what must be shown is that the exercise of the discretion has been infected by some error, or has resulted in a non parole period that was manifestly excessive. Adherence to the statutory ratio, of itself, cannot establish such an error.

84. On appeal Dr Rastogi’s opinions that the applicant was suffering severe depression and a grief reaction, currently in denial, with a need for ongoing psychological support long term for his multiple losses, which would impact upon his self esteem, were relied on to submit that there should have been a finding of special circumstances, with the result an adjustment downwards of the non-parole period which the applicant is to serve.

85. That was not, however, the applicant’s case on sentence. Then there was no submission advanced that there should have been any adjustment to the non-parole period, for this or any other reason.

86. On the evidence earlier discussed, that there was any error in her Honour not having departed from the statutory ratio, given both the absence of any submission that there should be a finding of special circumstances and the problems already discussed with the opinions formed by Dr Rastogi, given the history provided by the applicant, is difficult to accept.

87. The non-parole period imposed on the applicant was 10 years, after a discount of 25%. Given all that her Honour was obliged to take into account in arriving at the applicant’s sentence, that this non-parole period was manifestly excessive, has not been established. To the contrary, given that the harm which he caused the victim was not taken into account as an aggravating factor, as s 21A(3)(a) contemplated, it is arguable that the sentence was unreasonably disproportionate to the true nature and circumstances of the applicant’s offence. That, however, was not the Crown’s case and so need not be considered further.

88. In the result, however, this ground must also be dismissed.

Order

89. Accordingly, the orders I would propose are:

1. Leave to appeal be allowed.

2. The appeal be dismissed.

90. WILSON J: I agree with Schmidt J.

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Decision last updated: 08 June 2016