Allen v R

[2010] NSWCCA 47

New South Wales
Court of Criminal Appeal

CITATION:	ALLEN v R [2010] NSWCCA 47
HEARING DATE(S):	16 March 2010
JUDGMENT OF:	McClellan CJatCL at 1; Latham J at 2; Schmidt J at 30
EX TEMPORE JUDGMENT DATE:	16 March 2010
DECISION:	1. Leave to appeal granted. 2. Appeal allowed in part. The sentence imposed on 11 February 2009 for the offence under s 86(1)(b) of the Crimes Act is quashed. 3. In lieu, a non parole period of 4 years is imposed, commencing 15 September 2008, expiring 14 September 2012, with a balance of term of 2 years expiring 14 September 2014.
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - kidnapping of 5 year old boy for sexual gratification - factors relevant to assessment of objective gravity of offence - brief period of detention - sentence manifestly excessive - no error in exercise of discretion to partially accumulate sentences.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Collett & Robson (NSWCCA, unreported, 7 June 1979) R v Newell [2004] NSWCCA 183 R v Falls [2004] NSWCCA 335
PARTIES:	David Walter Allen - Applicant Regina - (Crown) Respondent
FILE NUMBER(S):	CCA 2008/19398
COUNSEL:	W Hunt - Applicant J Dwyer - (Crown) Respondent
SOLICITORS:	Steve O'Connor - Applicant S Kavanagh - (Crown) Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	11/02/2009
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	11 February 2009

2008/19398

McCLELLAN CJ at CL
LATHAM J
SCHMIDT J

16 MARCH 2010

DAVID WALTER ALLEN v R

Judgment

1 McCLELLAN CJ at CL : I agree with Latham J.

2 LATHAM J : The applicant pleaded guilty on 3 December 2008 to two charges in the Local Court, namely sexual intercourse with a child under 10, pursuant to s 66A of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment and a standard non parole period of 15 years, and kidnapping, pursuant to s 86(1)(b) of the Crimes Act, carrying a maximum penalty of 14 years imprisonment. On the 11 February 2009 the applicant was sentenced by his Honour Judge Garling (the judge) to a total term of 16 years imprisonment, within an aggregate non parole period of 12 years. The applicant seeks leave to appeal against the severity of the sentence.

3 On the kidnapping charge, the applicant was sentenced to a non parole period of six years, commencing 15 September 2008, expiring 14 September 2014, with an additional term of two years, expiring 14 September 2016. On the sexual intercourse charge, the applicant was sentenced to a non parole period of 10 years, commencing 15 September 2010, expiring 14 September 2020, with an additional term of four years expiring 14 September 2024.

4 Two grounds were argued on the appeal. The first claims that the degree of accumulation of the two sentences was excessive. The second claims that the sentence imposed in respect of the kidnapping charge was manifestly excessive.

The Offences

5 The circumstances of the offences were the subject of an agreed statement of facts (Exhibit A). The complainant was a five-year-old boy who was staying with his parents in a caravan park at Port Macquarie. The applicant rented a cabin at the same caravan park. In the afternoon of 15 September 2008, the complainant and his family were using the playground facilities at the caravan park. The applicant engaged the boy's parents in conversation. At about 4 p.m. the complainant’s father took his three sons to the shower block located within the park grounds. The applicant followed them and continued to speak with the complainant's father. After showering the children, they left the facilities whereupon the applicant said that he had forgotten his thongs and followed the family back to the cabins.

6 At about 6 p.m. the complainant's parents were preparing the dinner in the camp kitchen. The applicant walked into this area, placed a number of bottles of beer in the fridge and again engaged the parents in conversation. The complainant and his father went to the community TV room in the park and the applicant followed. After the complainant's father had returned to the kitchen area, the applicant spoke to the complainant and asked him if he wanted five dollars. The complainant said yes. The applicant took the complainant's hand and led him to nearby bushland, near the rear entrance to the caravan park.

7 Shortly after the complainant left the TV room, his father realised that he was missing and commenced to search the area with the assistance of a number of other persons. Meanwhile, in the bushland, the applicant removed the complainant's pants and underwear. The complainant described the applicant committing fellatio upon him for an indeterminate period of time. The complainant told the applicant that he wanted to go home. The applicant said to him "I have your knickers". However, the complainant dressed and left the area with the applicant.

8 At about this time, two other occupants of the caravan park were in the area looking for the complainant. They saw the applicant and the complainant walk from the bushland holding hands. The applicant was not confronted at this time. A short time later, when one of the occupants of the caravan park returned to this area with a torch, he saw the applicant crouching over slightly, holding the complainant's arm. The complainant appeared to be shaking and did not answer when he was asked his name. The applicant said that he had found the child next to a tennis centre. The complainant was separated from the applicant and taken back to his parents. The complainant said that he had been taken away by the applicant and that the applicant had asked him to "suck his willy".

9 The complainant's parents confronted the applicant on his return to the caravan park and told him that the police had been called. The applicant was prevented from getting into his vehicle. Shortly after when the police arrived and confronted the applicant, the applicant said "I was watching tennis and saw a lost kid so I was taking him back to his parents". The applicant was arrested and his property was searched. In his wallet were four individual pieces of yellow paper containing various messages written in black biro, including "let me suck your dick, I’ll give you $100 cash" and others to the same effect.

10 The applicant entered into a record of interview wherein he denied the allegations. He gave an account which was consistent with the version he had earlier given to police before his arrest. He claimed not to have known the complainant or had any contact with him before encountering him at the tennis courts. Later DNA analysis of the complainant's underpants revealed a quantity of DNA consistent with that of the applicant.

The Applicant’s History

11 At the time of the commission of the offences the applicant was 45 years of age. He had been the subject of previous supervision by the Probation and Parole Service, most relevantly in 1996 and 1999 for sexual offences involving children. In 1996 the applicant was sentenced to two years imprisonment with an additional term of two years for two counts of sexual intercourse with a child under 10 (several other offences of a like nature were taken into account on a Form One). In 1999 the applicant was convicted of loitering near a public place, being a registered child sexual offender, and received a minimum term of 18 months imprisonment with an additional term of six months.

12 The 1996 offences involved the commission of fellatio a number of times upon two male children (brothers, aged six and seven respectively) between January and August 1990 in circumstances that are not dissimilar to the instant offence. The applicant had befriended the complainants’ family and had committed some of the offences when visiting a park with each of the complainants. The applicant was not charged with these offences until October 1995. When he was arrested, the applicant denied all knowledge of the complainants and the family, despite evidence establishing that the applicant had contacted both of the complainants, who were then residing in the Northern Territory, since the commission of the offences, in order to discuss their sexual experiences.

13 The presentence report before the Judge noted that the applicant's "response to supervision is best described as poor and uncommitted with frequent periods of supervision being breached by the offender due to re-offence (sic)." Furthermore, the applicant's attendance and compliance with relevant programs whilst in custody was described as poor, with the exception of a sex offender-based program which the applicant undertook in 1998 when it appears "he was motivated by the prospects of his impending release at that time."

14 The applicant is the younger of two siblings, born to a family in Sydney where, according to the applicant, he was raised by an alcoholic father and a somewhat disengaged mother. The applicant married at the age of 20 and the marriage produced one child. Since the marriage ended in 1998 the applicant has had no contact with his former wife or child. He had been residing with his parents in Port Macquarie but was forced to leave the family home due to a falling out with his parents. At the time of the offences the applicant claimed he was essentially homeless.

15 The applicant left school after completing year 10 and has worked in a variety of unskilled labouring jobs since that time. He has been unable to secure employment and has relied on social security benefits over the last 10 years.

16 The applicant has a long-standing history of alcohol abuse and is receiving treatment for cataracts in both eyes. He has been diagnosed with depression and schizoid personality disorder and received treatment at the Ryde Mental Health Unit in 1994 and 1995. The applicant self-medicates with alcohol rather than remain compliant with ongoing supervision, medication and counselling.

17 The applicant's account to the Probation and Parole officer of the offences sought to excuse the applicant's conduct by the fact that he was allegedly intoxicated. However, the persistent cultivation of the complainant and the complainant's family over the course of the afternoon tends to contradict this explanation. More importantly, the applicant was resistant to participating in any further sex offenders programs, indicating to the Probation and Parole officer that he did not require that intervention. The applicant is presently in segregation and is unable to engage in any employment or education programs. He has been assessed by the prison psychologist as in the high range of risk factors relating to sexual re-offending.

Resolution of the Appeal

18 The remarks on sentence were brief and were delivered on the same day that the sentencing proceedings commenced and concluded. The Judge characterised the sexual intercourse charged as "a very serious matter" which "fell well above the mid range of these types of offences". No issue is taken with these findings. In respect of the kidnapping charge, the Judge went no further than to note that the second offence "is also extremely serious [and that] this young child was taken from his parents, taken to bushland. He is five years of age. Whilst I do not know how long the prisoner intended to hold him, there is some merit in the Crown's submission that he intended perhaps to hold him for longer than he did and was reluctant to let him go."

The Sentence for the Kidnapping Offence

19 Having regard to the sentence imposed in respect of the kidnapping offence, the starting point before the application of the 25% discount was in the order of 10 years and nine months imprisonment. It would appear therefore that the judge had determined that the kidnapping offence was close to an offence within the worst category, given that the maximum penalty is one of 14 years imprisonment. This is an assessment of the objective gravity of the offence with which I cannot agree.

20 The combination of factors relevant to an assessment of the objective gravity of an offence under s 86 of the Crimes Act were identified by this Court in R v Collett & Robson (NSWCCA, unreported, 7 June 1979), per Roden J, as the duration of the detention, the extent of fear or terror occasioned, the manner of treatment and what is demanded of the victim by the offender, the purpose of the detention, and the extent (if any) to which third parties were subjected to ordeal or anguish by reason of fear for the welfare of the victim.

21 In R v Newell [2004] NSWCCA 183, Howie J (Bell and Hislop JJ agreeing) said :-

32 The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence.

This approach was reiterated by Howie J (Dunford J agreeing) in R v Falls [2004] NSWCCA 335.

22 The period of detention in this case was relatively brief and only for so long as it was necessary to commit the sexual offence. The tender age of the child is no doubt a factor to be taken into account. However, when the child indicated that he wished to go back to his parents, there is nothing to suggest that the applicant did anything to prolong the detention. In that respect, it was speculative to infer to the contrary, against the applicant’s interests.

23 I accept that the complainant was terrified. The witness who first confronted the applicant saw the child trembling. I also accept that the child’s parents were traumatised by the child’s disappearance, but this was not a case where a third party was informed of the detention and threatened that if the offender’s demands were not met, some harm would be meted out to the victim. Given the child’s age, it was not necessary for the applicant to do anything other than offer the child money. As for the purpose of the detention, that is not determinative and the weight placed upon this factor in the circumstances of this case ought to have been approached with some care, at the risk of introducing an element of double punishment.

24 This was a serious offence, but I would not describe it as “extremely serious” in the absence of the type of factors that the courts have traditionally taken into account when determining where, in the range indicated by the maximum penalty, such an offence lies. A sentence of 8 years imprisonment would meet the objective gravity of this offence, before the application of the 25% discount. I would uphold this ground of the appeal.

The Degree of Accumulation

25 The applicant's counsel acknowledges that the degree of accumulation was a matter within the discretion of the Judge, and that some measure of accumulation was required in order to mark the totality of the applicant’s criminality. No patent error was identified.

26 There is no complaint in respect of the refusal by the Judge to find special circumstances, nor is there a complaint in respect of the finding by the Judge to the effect that the applicant's criminal history disentitled him to any leniency. The applicant’s risk of re-offending was high and the protection of the community and personal deterrence were significant factors in the sentencing exercise. The Crown’s submission is that the degree of accumulation imposed by the Judge required the applicant to effectively serve only 2 years imprisonment referable solely to the kidnapping offence.

27 The question remains whether an aggregate sentence of 16 years imprisonment with an aggregate non parole period of 12 years is manifestly excessive. In my view, the answer is no. The applicant’s lack of insight into his offending, his poor response to supervision in the past and the questionable benefit of sex offender programmes he has undertaken, were matters of significant concern, notwithstanding a period of 7 years between his release from prison on the last occasion and the instant offences. The Judge placed considerable weight upon the Crown’s submission below that the applicant was “a danger to the community”.

28 Whilst the detention was an integral part of the applicant’s intention to sexually assault the child, which he accomplished by enticing the complainant away with the promise of money, the aggregate sentence and aggregate non parole period were required to reflect the criminality inherent in two discrete offences. The overall sentence may be legitimately considered a heavy one, but not in my view manifestly excessive.

Re-Sentencing

29 I propose the following orders :-

1. Leave to appeal granted.

2. Appeal allowed in part. The sentence imposed on 11 February 2009 for the offence under s 86(1)(b) of the Crimes Act is quashed.

3. In lieu, a non parole period of 4 years is imposed, commencing 15 September 2008, expiring 14 September 2012, with a balance of term of 2 years expiring 14 September 2014.

30 SCHMIDT J : I agree with Latham J.

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