AM v R

[2020] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AM v R [2020] NSWCCA 101
Hearing dates:	6 May 2020
Date of orders:	21 May 2020
Decision date:	21 May 2020
Before:	R A Hulme J at [1] Fagan J at [2] Hidden AJ at [3]
Decision:	1.   Extend the time for filing this application to 11 December 2019. 2.   Leave to appeal granted. 3.   Appeal allowed. 4.   Sentence in the District Court quashed. 5.   Applicant resentenced to an aggregate sentence of 6 years and 6 months, commencing on 6 October 2017 and expiring on 5 April 2024, with a non-parole period of 4 years, expiring on 5 October 2021. 6.   The applicant will be eligible for release on parole on 6 October 2021.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – sexual offences committed by the applicant upon his 10 year old half-sister – aggregate sentence – finding of special circumstances but a minimal departure from statutory proportion – no explanation – error found – applicant resentenced
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1990
Cases Cited:	CM v R [2013] NSWCCA 341 Jonson v R [2016] NSWCCA 286, (2016) 263 A Crim R 268 MD v R [2015] NSWCCA 37 R v AA [2017] NSWCCA 84 R v Ellis (1986) 6 NSWLR 603 Sefian v R [2018] NSWCCA 194
Category:	Principal judgment
Parties:	AM (Applicant) Regina (Crown)
Representation:	Counsel: K Averre (Applicant) C Curtis (Crown)   Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2016/76835
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Not applicable Date of Decision: 11 April 2018 Before: Delaney A/DCJ File Number(s): 2016/76835

Judgment

1. R A HULME J: I agree with Hidden AJ.

2. FAGAN J: In the course of the hearing of this application I agreed with the other members of the Court that ground 1 should be upheld. I did so having regard to the principles and authorities now referred to by Hidden AJ. In my view the learned sentencing judge did not give meaningful effect to his finding of special circumstances, nor did the judge provide reasons for departing only minimally from the statutory ratio, in a case where the finding warranted a tangible and practical adjustment. I concur in Hidden AJ’s reasoning with respect to this. I also agree with the orders his Honour proposes for the re-sentence of the applicant and with his Honour’s assessment of the relevant sentencing factors.

3. HIDDEN AJ: The applicant was committed to the District Court for sentence on a series of sexual offences committed against his half-sister. There were five principal offences, together with further offences on two Form 1 documents.

4. The principal offences were:

• two offences of sexual intercourse with a person aged between 10 and 14 years (sequences 17 and 18): s 66C(1) of the Crimes Act 1900 (NSW), carrying a maximum sentence of 16 years’ imprisonment and a standard non-parole period of 7 years;

• an offence of indecent assault upon a person under 16 years (sequence 8): s 61M(2) of the Crimes Act, carrying a maximum sentence of 10 years’ imprisonment and a standard non-parole period of 8 years;

• two offences of committing an act of indecency with or towards a person under 16 years (sequences 11 and 14): s 61N(1) of the Crimes Act, carrying a maximum sentence of 2 years’ imprisonment.

5. In sentencing the applicant for the first offence under s 66C (sequence 17), the sentencing judge took into account on Form 1A the following additional offences:

• two offences of indecent assault upon a person under 16 years (sequences 1 and 5): s 61M(2);

• two offences of committing an act of indecency with or towards a person under 16 years (sequences 3 and 12): s 61N(1);

• two offences of inciting a person under 16 years to commit an act of indecency (sequences 9 and 10): s 61N(1).

6. In sentencing the applicant for the second s 66C offence (sequence 18), the sentencing judge took into account on Form 1B the following offences:

• committing an act of indecency with or towards a person under 16 years (sequence 7): s 61N(1);

• two offences of inciting a person under 16 years to commit an act of indecency (sequences 13 and 16): s 61N(1).

7. The applicant was sentenced to an aggregate term of imprisonment of 8 years and 3 months, with a non-parole period of 6 years, dating from 6 October 2017. The indicative sentences were as follows:

• sequence 17 (sexual intercourse), taking into account the matters on Form 1A: 6 years and 3 months with a non-parole period of 3 years and 9 months;

• sequence 18 (sexual intercourse), taking into account the matters on Form 1B: 5 years and 2 months with a non-parole period of 3 years;

• sequence 8 (indecent assault): 3 years with a non-parole period of 1 year and 8 months;

• on each of sequences 11 and 14 (commit act of indecency): 7 months.

8. The applicant seeks leave to appeal against the aggregate sentence. A notice of intention to appeal was filed within time but an application for leave to appeal, filed on 11 December 2019, is out of time. Affidavits have been filed to explain the delay, and the Crown did not oppose an extension of time if the application were found to have merit.

Facts

9. The victim of the offences was 10 years old at the time and the applicant was 19. The common parent was their father. The victim resided with her father and mother, and her two siblings from that union, at a home in Cecil Park. One of those siblings was her brother, NM, who was 13 years old at the relevant time. The applicant had been estranged from his father, but in January 2016 he began to visit the Cecil Park home on occasions. On three occasions between January and February 2016 he slept over at the home on a weekend. All but one of the offences were committed on one of those weekends: 19-21 February.

10. During these visits the applicant would become sexually aroused when the victim sat on his lap while they were watching television. These were the circumstances in which the offence which did not occur on the weekend of 19-21 February was committed. On an unspecified date before that weekend, while the victim was sitting on his lap, he touched her on the buttocks on the outside of her clothing. This was the principal offence of indecent assault, sequence 8.

11. The facts of the offences of the weekend of 19-21 February can be extracted from a convenient summary in the Crown’s written submissions.

1. On the night of 19 February 2016, the applicant shared the bottom of a bunk bed with NM. The victim slept in the top bunk. In the morning of 20 February, NM awoke to the bed shaking. He found the applicant standing on the side of the bed touching the victim’s bottom. Her pants had been pulled down and she was asleep (sequence 5, s 61M(2): Form 1A offence).

2. That evening, the applicant slept in the bottom bunk with the victim, while NM slept in the top bunk. The victim was wearing a nightie and underpants. At around 11pm, the applicant touched the victim on her bottom about three times on the outside of her clothing as she slept (sequence 1, s 61M(2): Form 1A offence).

3. The following morning (21 February), the applicant and the victim awoke at the same time to the applicant’s alarm. The applicant’s penis was erect and he pulled it out of the top of his boxer shorts (sequence 3, s 61N(1): Form 1A offence). He then asked the victim to touch his penis but she refused (sequence 9, s 61N(1): Form 1A offence).

4. The applicant said, “Now that you’ve seen mine I have to see yours”. The victim pulled her underpants down and lifted her nightie up (sequence 10, s 61N(1): Form 1A offence). The applicant touched the victim on her vagina within the labia majora for a few seconds and felt that it was wet (sequence 17, s 66C(1)). The victim pulled his hand away and said it tickled. The victim then tried to pull her underpants up but the applicant touched her again “in the same way”. The victim again pulled the applicant’s hand away.

5. The applicant then watched a pornographic video on his iPad next to the victim (sequence 12, s 61N(1): Form 1A offence), while masturbating (sequence 11, s 61N(1)). The applicant ejaculated in his pants and spoke to the victim about what had happened.

6. The next offence happened during the course of that day, at about 1pm, when the applicant and the victim happened to be in the same room. The applicant pulled his pants down and exposed his erect penis to the victim, telling her that he now “[had] to see yours”. The victim pulled her underpants down for a short time (sequence 16, s 61N(1): Form 1B offence).

7. At about 3pm the same day, the applicant came into the victim’s room and showed her his erect penis again (sequence 7, s 61N(1): Form 1B offence). He asked her to pull down her pants, which she did (sequence 13, s 61N(1): Form 1B offence). The applicant touched the victim’s vagina again in the same manner as he had done earlier (within the labia majora) and felt that it was wet (sequence 18: s 66C(1)).

8. At around 4pm, the applicant came into the victim’s room again and asked if she wanted to see his penis. When she declined, he asked if he could “touch himself” in front of her again and she agreed. The applicant then exposed his erect penis to the victim and masturbated in front of her, ejaculating into his pants (sequence 14, s 61N(1)). The applicant told the victim not to tell anyone.

12. The circumstances in which the offences came to light and the applicant was arrested are unusual. They relate to sexually explicit messages between him and the victim’s mother, which began in March 2017 and which it is unnecessary to set out in any detail. A sufficient summary of the messages relevant for present purposes can also be extracted from the account of them, and of the applicant’s ensuing arrest, in the Crown’s written submissions:

1. One day the victim’s mother told the applicant that the victim was sick and home from school. The applicant replied that she needed to get better as “can’t have her watching me fuck you now can I”. The victim’s mother told him that involving the victim in his fantasies was inappropriate and became suspicious that something might have happened to her daughter. She encouraged the applicant to tell her anything that had occurred with a view to finding out what, if anything, he had done to her daughter.

2. The applicant ended up confessing that (inter alia) he had an attraction for the victim (“I have a thing for her ass…”), that he wanted the victim to “suck my cock” and that he was going to “fuck her asshole” (p4-5 agreed facts). He sent messages exhorting the victim’s mother to use her influence to encourage the victim to engage in sexual activity with him (eg “make it easier for me. You’re going to have to touch her pussy and finger it before me. So she knows what she is getting into”; “do that every night so she starts to enjoy it”; “get her to stick her finger in your pussy…she needs to know what another woman feels like”). He asked her to send him a photo of the victim’s vagina. He spoke of fantasies of “incest sex” involving not only the victim but also the victim’s brother.

3. Upon questioning by the victim’s mother, he confessed to the offences that had occurred. He said that he had touched the victim’s vagina and that he “had to dig a little because her cunt is still cameltoe-ish…so I had to peel back the skin to feel...she kept pulling my hand away”, that he had tried to “cop a feel” while she was sleeping, and that he had masturbated while watching pornography with the victim. The victim’s mother, armed with the messages, went to the police with the victim’s father on 10 March 2016.

4. The victim participated in an interview on 11 March in which she disclosed some, but not all, of what the applicant had done to her. She said he had touched her vagina and bottom and showed her his penis. She did not disclose anything about the pornography and it was agreed by the Crown during the sentencing proceedings that nor did she disclose sufficient detail to prove penetration of the vagina.

5. Police attended the applicant’s home on 10 March and asked him if he had touched the victim. The applicant confessed that he had and was arrested. He then participated in an interview in which he made full admissions, including to penetration of the victim’s outer genitalia.

Subjective case

13. As I have said, the applicant was 19 years old at the time of the offences. He is now 23. He has no criminal history. He was on bail from the time of his arrest until the completion of the proceedings on sentence on 6 October 2017. It was on that date that the aggregate sentence was expressed to commence.

14. The applicant gave evidence in the sentence proceedings. The sentencing judge also received a pre-sentence report, two psychiatric reports of Dr Tanveer Ahmed, two psychological reports of Mr Michael Costello, some brief material concerning psychological treatment since the applicant’s arrest, and a number of favourable testimonials from family members and an employer. The effect of this material can be summarised briefly.

15. Dr Ahmed diagnosed the applicant as suffering from social anxiety (a DSM classification), which had led him to the use of pornography and a lack of understanding of what constituted appropriate social and sexual behaviour. He saw that mental condition as “a direct contributor to the ultimate crime”. Mr Costello also noted “extremely high levels of anxiety”, and considered the applicant to meet the criteria of severe major depressive disorder. On the history provided to him, he concluded that the applicant was likely to have met the criteria of major depressive disorder, at varying levels, since the age of about 14. Mr Costello concluded that overall, while the applicant knew that what he did was wrong, he was a “very immature and insecure young man who did not meet the criteria of paedophilia or paedophilic disorder”.

16. The initial reports of Dr Ahmed and Mr Costello were prepared after consultations with the applicant not long after his arrest. Both experts saw him again closer to the sentence proceedings, after he had been treated by a combination of medication and psychological therapy, and both provided supplementary reports. Dr Ahmed described the results of the treatment as “very positive”, and saw the applicant as of “little risk to the community”. Dr Ahmed noted that he was in employment and was functioning “far better socially within a range of friends”, and referred to the continuing support of his mother. Mr Costello observed him to be “much more mature,…more confident, more responsible, and…much more well-rounded”. He described him as “at very low risk of reoffending”.

17. In his evidence the applicant expressed remorse for his behaviour, and acknowledged the gravity of its impact upon the victim. Asked in cross-examination if he had an underlying attraction to children, he replied that he did have “at the time”. He added, however, that he had sought “psychological help” and had had “conversations” with his friends and family. He acknowledged that the underlying attraction was “still there”, but that he knew himself and would “pull myself up”.

18. The sentencing judge accepted that there was a causal relationship between the applicant’s mental condition and his offending. He saw the offences as requiring “condign punishment”, but found that “the emphasis on general deterrence for each of the offences is somewhat less than might have been the case had he not had the psychological and psychiatric profile that is shown in the reports…”.

19. His Honour found the applicant’s evidence to be “direct, contrite and truthful”. He accepted that he was remorseful, and that he had made progress towards rehabilitation. He expressed himself to be “generally satisfied” that the applicant was unlikely to reoffend, although this could not be known ultimately until his “release and rehabilitation into the community”.

20. His Honour found special circumstances, warranting a departure from the statutory proportion between sentence and non-parole period, on a number of bases: the applicant’s youth, the fact that these were his first offences and this was his first time in custody, because there must be some accumulation of sentence, and because of “the need for assistance and treatment in the community, especially having regard to the situation that relates to a registered sex offender”.

21. His Honour allowed a reduction of sentence of 25% in recognition of the utilitarian value of the applicant’s early pleas of guilty. He also had regard to the applicant’s disclosure of certain aspects of his offending which might otherwise might not have come to light, although he did not specify any reduction of sentence on that account.

The application

22. In written submissions counsel for the applicant, Mr Averre, argued the application on two grounds:

1. His Honour failed sufficiently to vary the statutory ratio to give effect to his finding of special circumstances.

2. The aggregate sentence is manifestly excessive.

23. In the event, it was not necessary to consider the second ground. In the course of argument at the hearing of the application, the court determined that ground 1 should succeed. Accordingly, the discretion to resentence was enlivened and counsel’s submissions were invited on that issue.

Ground 1

24. His Honour arrived at the indicative sentences after a reduction of 25% for the applicant’s pleas of guilty. For the offences under s 66C (sequences 17 and 18) and s 61M(2) (sequence 8), he specified non-parole periods because they were offences for which a standard non-parole period is prescribed. The indicative sentences are set out at [7] above. It will be seen that for those three sequences the non-parole period is roughly 60% of the head sentence. However, in the aggregate sentence of 8 years and 3 months with a non-parole period of 6 years, the proportion is just under 73%.

25. His Honour initially specified a non-parole period of 6 years and 2 months, which is almost exactly 75% of the head sentence. At the time he announced that non-parole period, he said that he needed to ensure that he had not made any error in his “calculations for the finding of special circumstances”, and that he would “check that again now”. Apparently having done so, he announced his intention to specify the non-parole period of 6 years. The result is an increase of the period of parole eligibility above the statutory proportion by some 9 weeks.

26. Of course, the extent of the reduction of the non-parole period because of special circumstances is a matter within the discretion of the sentencing judge: MD v R [2015] NSWCCA 37, per Gleeson JA (with whom Johnson and Hall JJ agreed) at [40]. However, this Court has intervened in a number of cases in which it appears that a judge intended to reduce a non-parole period for special circumstances but, in the event, did not give that intention effect in the sentence passed. It is sufficient to refer to the judgment of RA Hulme J (with whom Ward JA and Harrison J agreed) in CM v R [2013] NSWCCA 341, at [39]-[40]:

39.   A finding of special circumstances does not compel a variation in the non-parole period. But if no variation is made, a judge is expected to give reasons as to why the finding is not being reflected in the ultimate term: Saad v R [2007] NSWCCA 98 at [33]-[36]; Heron v R [2006] NSWCCA 215 at [31]-[32]. This Court may also intervene where the result of accumulation of multiple sentences is to remove the effect of a finding of special circumstances: Stoeski v R [2008] NSWCCA 230 at [25]; Cicekdag v R [2007] NSWCCA 218 at [47]-[49].

40.   Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflect[ed] in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. A recent example of the former may be found in Houri v R [2013] NSWCCA 279; see also Phipps v R [2008] NSWCCA 178; and Stoeski. Examples of both varieties of the latter can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40]. Appeals asserting such error are not uncommon, and as Howie AJ remarked in Maglis v R [2010] NSWCCA 247 at [24], their success will often "depend upon what can be gleaned of the Judge's intention from the sentencing remarks".

27. Significantly for present purposes, in Sefian v R [2018] NSWCCA 194, where a sentencing judge who had found special circumstances fixed a non-parole period which was 73% of the total sentence, this Court held that the judge should have explained why the reduction had been so modest: see the judgment of Hoeben CJ at CL, with whom Price and Harrison JJ agreed, at [78]-[79]. (In that case the appeal was dismissed because the period of parole eligibility was still a substantial one, and the Court was not persuaded that a lesser sentence was warranted.)

28. In the present case, the Crown prosecutor in written submission argued that his Honour’s re-calculation of the non-parole period, referred to above, suggests that the 6 year period was not the result of inadvertence and that he had turned his mind to the appropriate reduction in the light of the finding of special circumstances. However, in oral argument, the Crown prosecutor said that she could put her response to this ground no higher than that, and it was she who brought the decision in Sefian to the Court’s attention.

29. It is not clear to me whether his Honour did turn his mind to the practical effect of the 6 year non-parole period in the light of his finding of special circumstances. However, even if he did, an explanation for such a modest reduction of the statutory proportion was clearly called for. Given the strength of the applicant’s case for a finding of special circumstances, a reduction of the statutory proportion by a mere 9 weeks could be of little or no utility. It is for these reasons that I agreed that this ground should be upheld.

30. The sentencing discretion having miscarried, it falls to this Court to consider resentence.

Resentence

31. This is undoubtedly a serious pattern of offending. His Honour received a victim impact statement by the victim’s mother on the victim’s behalf, setting out the enduring psychological effects the offences have had upon her: effects from this kind of offending of a nature with which the courts are well familiar. The offences were a grave breach of trust. They were, of course, committed in the victim’s home, an aggravating feature under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1990: Jonson v R [2016] NSWCCA 286, (2016) 263 A Crim R 268.

32. The 10 year old victim was at the bottom of the range of age for the purpose of s 66C(1) of the Crimes Act, and at the lower end of the range of age in s 61M(2) and s 61N(1). The first of the s 66C(1) offences (sequence 17) was pursued in the face of some resistance from the victim, she having pulled his hand away and tried to pull her underpants up. That offence calls for a higher penalty than the other s 66C(1) offence (sequence 18), for this reason and also because a greater number of offences on a Form 1 are to be taken into account. That said, it must be noted that the sequence 18 offence was committed later the same day despite her resistance to the earlier offence.

33. As to objective gravity, the sentencing judge found sequences 17 and 18 to fall “just below mid-range”, sequence 8 to be “below mid-range”, and sequences 11 and 14 (the s 61N(1) offences of masturbating in front of the victim) to be mid-range. In this court no issue was taken with those estimates, although Mr Averre noted that sequence 8 involved touching the victim’s bottom through her clothing. Equally, no issue was taken with his Honour’s finding about the contribution of the applicant’s mental condition to his offending, or to his generally favourable findings in relation to the applicant’s subjective case, including his prospects of rehabilitation.

34. The messages between the applicant and the victim’s mother are undoubtedly of concern, as is the applicant’s acknowledgement in evidence that he was not entirely free from an underlying attraction to children. Certainly, as his Honour pointed out, whether he would not reoffend could not be known until his release. However, it is clear from the psychological reports and from the applicant’s evidence that he has responded well to treatment, is remorseful, and is motivated to pursue his rehabilitation. As noted above, both experts in their supplementary reports saw his risk of reoffending as low. Nevertheless, the sentence for these offences should reflect specific deterrence. General deterrence, of course, remains an important factor.

35. For the purpose of resentence, affidavits of the applicant and of his solicitor were read. This material discloses that he has had psychological counselling in custody and intends to pursue counselling upon his release, that he has been undergoing further general education, as well as undertaking courses in various occupational skills, and that he enjoys the continuing support of his mother, his step-father and other family members.

36. In written submissions, Mr Averre provided sentencing statistics for the s 66C(1) offence, together with a number of decisions relating to that offence of this Court and at first instance. He also provided some decisions relating to the aggravated offence in s 66C(2) and the offence of aggravated sexual intercourse without consent under s 61J(1). The Crown prosecutor provided further statistical material relating to the s 66C(1) offence, and statistics for the offence under s 61M(2).

37. This material was supplied primarily for the purpose of the ground of manifest excess, which need not be determined. I find it of very little assistance for present purposes, and I do not propose to refer to it. As one might expect, the statistics reveal a wide range of sentences. The cases dealing with the offences under s 66C(2) and s 61J(1) do not assist as they are different offences. As to the cases dealing with s 66C(1) offences, they encompass a wide variety of circumstances, both objective and subjective, and I do not find them of assistance in determining the appropriate outcome in the present case.

38. I am satisfied that in this case a lesser sentence is warranted. Although the offences are related, and almost all of them were committed over a relatively short period, they did amount to what the Crown prosecutor referred to as “discrete episodes of offending” and a measure of accumulation of sentences is called for. In my view, an aggregate sentence is the appropriate course. The applicant is entitled to a reduction of the indicative sentences by 25% for his pleas of guilty. In addition, he is entitled to recognition of his disclosure of penetration in relation to the s 66C(1) offences: R v Ellis (1986) 6 NSWLR 603 and this should be done by way of a separate discount: R v AA [2017] NSWCCA 84 at [43]. In respect of the two offences here I would propose an additional discount of 10%. Accordingly, the sentences for those two offences will be reduced by 35%.

39. As to special circumstances, I would specify non-parole periods in respect of the s 66C(1) and s 61M(2) offences, as well as the aggregate sentence, of about 60% of the head sentence.

40. In respect of sequence 17 (taking into account the matters on Form 1A), from a starting point of imprisonment for 8 years and after a reduction of 35%, I would indicate a sentence of 5 years with a non-parole period of 3 years. For sequence 18 (taking into account the matters on Form 1B), from a starting point of imprisonment for 7 years with the same reduction, I would indicate a sentence of imprisonment for 4½ years with a non-parole period of 2 years and 9 months. In respect of sequence 8, from a starting point of imprisonment for 3 years, with a reduction of 25%, I would indicate a sentence of imprisonment for 2 years and 3 months with a non-parole period of 1 year and 3 months. For each of sequences 11 and 14, from a starting point of imprisonment for 8 months, after a 25% reduction, I would indicate terms of imprisonment for 6 months.

41. For all of these offences, I would propose an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years.

Orders

42. Accordingly, I would extend the time for filing this application to 11 December 2019. I would grant leave to appeal, allow the appeal, and quash the sentence in the District Court. In lieu, I would sentence the applicant to an aggregate sentence of 6 years and 6 months, commencing on 6 October 2017 and expiring on 5 April 2024, with a non-parole period of 4 years, expiring on 5 October 2021. The applicant would be eligible for release on parole on 6 October 2021.

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Decision last updated: 21 May 2020