AP v The Queen

[2017] NSWCCA 270

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AP v R [2017] NSWCCA 270
Hearing dates:	2 August 2017
Date of orders:	24 November 2017
Decision date:	24 November 2017
Before:	Johnson J at [1] Davies J at [2] Lonergan J at [3]
Decision:	(1) Leave to appeal is granted. (2) The appeal is dismissed.
Catchwords:	CRIME – appeals – sentencing – assessment of objective seriousness – where offence does not carry a standard non-parole period – whether sentencing Judge assessed objective seriousness – where sentencing Judge described the offences as “objectively serious matters” – where issue not taken at first instance – no error demonstrated – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) ss 61M, 66C Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 5, 21A, 53A
Cases Cited:	Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 Charbaji v R [2011] NSWCCA 181 Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 Gal v R [2015] NSWCCA 242 Georgopolous v R [2010] NSWCCA 246 Harris v R [2015] NSWCCA 81 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 R v Campbell [2014] NSWCCA 102 R v Sivell [2009] NSWCCA 286 R v Van Ryn [2016] NSWCCA 1 Sharma v R [2017] NSWCCA 85 Simpson v R [2014] NSWCCA 23 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category:	Principal judgment
Parties:	AP (Applicant) Regina (Respondent)
Representation:	Counsel: A Karim (Applicant) N J Adams (Crown Respondent)   Solicitors: J Nashed (Applicant) Solicitor for Public Prosecutions (Crown Respondent)
File Number(s):	2014/82621
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 21 April 2016 Before: M L Williams SC DCJ File Number(s): 2014/82621

judgment

1. JOHNSON J: I agree with Lonergan J.

2. DAVIES J: I agree with Lonergan J.

3. LONERGAN J: The Applicant, AP, sought leave to appeal against a sentence imposed on him at the Parramatta District Court on 21 April 2016 for three offences in relation to an 11-year-old child. The Applicant is described by the use of initials. This course has been adopted by this Court to protect the identity of the victim as she is his step-granddaughter.

The offences and aggregate sentence

4. The offences for which the Applicant was sentenced were committed in January 2013 when the victim was staying at the Applicant’s home. He was not charged until March 2014 when a note written by the victim which disclosed she had been abused by the Applicant was found by the paternal grandmother.

5. After initially pleading not guilty when he was arraigned on 4 December 2014, he entered a plea of guilty on 26 October 2015, the first day listed for his trial to take place at the Parramatta District Court. Counts 1-3 on the indictment did not proceed, with the Crown accepting his pleas of guilty to 3 counts in full discharge of the indictment. The Applicant pleaded guilty to the following charges numbered in accordance with the indictment:

1. Count 4 – Between 1 January 2013 and 31 January 2013, aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900, an offence carrying a maximum penalty of imprisonment for 10 years with a standard non-parole period of 8 years.

2. Count 5 – Between 1 January 2013 and 31 January 2013, sexual intercourse with a person above the age of 10 and under the age of 14 years in circumstances of aggravation, contrary to s 66C(2) of the Crimes Act 1900, an offence carrying a maximum penalty of imprisonment for 20 years.

3. Count 6 – Between 1 January 2013 and 31 January 2013, having sexual intercourse with a person above the age of 10 and under the age of 14 years, namely 11 years of age, in circumstances of aggravation, namely being under the authority of the Applicant, contrary to s 66C(2) of the Crimes Act 1900.

6. On 21 April 2016, his Honour Judge M L Williams SC sentenced the Applicant to an aggregate term of imprisonment for 7 years and 9 months to date from 31 January 2016 (to take into account periods of pre-sentence custody) and expiring on 30 October 2023, with a non-parole period of 4 years and 6 months expiring on 30 July 2020.

7. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge noted the following indicative sentences:

1. Count 4 – Imprisonment for 2 years and 6 months with a non-parole period of 18 months.

2. Count 5 – Imprisonment for 5 years.

3. Count 6 – Imprisonment for 5 years and 3 months.

Grounds of appeal

8. By notice of application for leave to appeal filed on 12 May 2017, the Applicant relies upon the following singular ground of appeal:

1. Ground 1 – The learned sentencing judge failed to make and state an assessment of the seriousness of Counts 5 and 6.

Facts of offences

9. What follows is drawn from the statement of agreed facts tendered at the sentencing hearing.

10. The Applicant is the step-grandfather of the victim. She calls him “Pop”. He was aged 62 at the time of the offences. In January 2013 when she was 11 years old, the victim stayed with the Applicant and her grandmother during the school holidays. In the evening, the Applicant and her grandmother watched the horror movie The Exorcist, and shortly after, the victim went to bed, had a nightmare about the movie, and because she was scared, went and lay in the bed with the Applicant and her grandmother. The victim lay there for approximately 40 minutes and her grandmother was asleep. The Applicant then pulled up the victim’s shirt and pulled her pants down. The victim felt the Applicant touch her all over her body including her breasts (Count 4).

11. The victim then felt the Applicant insert his fingers into her vagina for probably a couple of minutes (Count 5).

12. The Applicant then moved down the bed and placed his mouth over the victim’s vagina. The victim felt the Applicant insert his tongue into her vagina. She recalls that this also lasted for a couple of minutes. During this time, the Applicant was in a bent over position on top of the victim (Count 6).

13. When the victim was staying with her paternal grandmother in March 2014, a letter left in her school uniform pocket was discovered which disclosed that the victim had been abused by the Applicant on a number of occasions, and stating that the victim felt worthless and hated herself and had not disclosed the abuse earlier as she was concerned her family would not believe her.

14. The police were contacted, and the victim participated in an electronically recorded interview on 17 March 2014 in which she disclosed that she had been sexually assaulted by the Applicant on a number of occasions including the incidents outlined. The Applicant was arrested and charged by police on 18 March 2014.

15. It was expressly agreed that the Applicant would not assert at sentence that the incident described in the statement of agreed facts was an isolated incident.

Procedural history

16. As noted earlier, the Applicant pleaded guilty on 26 October 2015. The sentencing proceedings were then adjourned to 15 April 2016.

17. On 15 April 2016, evidence was tendered. The Applicant gave evidence and was cross-examined, and the proceedings were adjourned to 21 April 2016 for sentence.

Evidence concerning subjective matters

18. On 15 April 2016, the Crown bundle was tendered as well as a bundle of documents on behalf of the Applicant which comprised a psychological report of Jason Borkowski dated 4 April 2016, a letter of the Applicant dated 15 April 2016, which included an apology to the victim and a request for mercy given his wife’s lung cancer, a letter of the Applicant’s wife dated 15 April 2016, and two character references, one from the Applicant’s sister and the other from his mother.

19. The Applicant confirmed in cross-examination that he was “besotted” with the victim and that he did not intentionally want to hurt her. He said that the relationship was “a lot stronger than the typical grandfather-granddaughter relation from my perspective…”. He also admitted that he was sexually aroused when he committed the offences before the Court.

20. The psychologist observed that the Applicant appeared to take full responsibility for his actions and seemed genuinely remorseful for the potential harm he may have caused the victim, and for the impact his offences have had on those involved.

Findings of the sentencing Judge

21. The sentencing hearing proceeded before his Honour M L Williams SC DCJ on 16 April 2016, at the conclusion of which he adjourned the matter for sentence on 21 April 2016.

22. In his 21 April remarks on sentence (“ROS”), the sentencing Judge said that he had taken into account the purposes of sentencing as set out in s 3A of the Crimes(Sentencing Procedure) Act 1999 (NSW) (ROS 1) and that the Applicant, having pleaded guilty on the first day of the trial following negotiations with the Crown, accepted that it was appropriate to allow a discount of 10% on any sentence of imprisonment in recognition of the utilitarian value of the pleas of guilty (ROS 2).

23. Counsel for the Applicant conceded that the overall criminality involved was such that the s 5 threshold has been met and a full-time custodial sentence must be imposed, and therefore the sentencing Judge need not consider alternative forms of punishment (ROS 2).

24. Specific and general deterrence were emphasised (ROS 3):

As the Crown points out, these various purposes of sentencing overlap and none can be considered in isolation from each other. I must ensure that the offender’s subjective circumstances do not cause inadequate weight to be given to the objective circumstances of the case. In particular, I must have regard to the abhorrence with which the community regards the sexual molestation of children and the importance of general deterrence. As the Courts have said time and time again, sexual assaults upon young children, especially by those who stand in a position of trust or authority to them, must be severely punished, not only to punish them but also to deter others who may have similar inclinations.

25. The sentencing Judge referred to having taken into account the Victim Impact Statement written by the victim, as well as noting the psychological report and the references from the Applicant’s mother and sister.

26. A number of mitigating factors pursuant to s 21A were conceded by the Crown, namely that the offending was not part of a planned, organised criminal activity, there was no record of previous convictions, the Applicant was a person of good character and was unlikely to reoffend, there was remorse shown and pleas of guilty.

27. After the sentencing Judge dealt with the question of accumulation (ROS 11-12), he stated the following:

I take into account the principles of totality and accumulation and the need to avoid imposing a crushing sentence with particular assistance from the propositions as set out by Hall J in XX. In cases of sexual assault, the Court is required to identify a sentence appropriate for each separate act and some degree of accumulation is sometimes necessary to address additional criminality. I accept that the aggravated indecent assault is slightly below mid-range, and the two counts under s 66C are objectively serious matters.

I impose an aggregate sentence of 7 years and 9 months to date from 31 January 2016 to take into account periods of pre-sentence custody. I impose a non-parole period of 4 years and 6 months. The offender is eligible for release to parole on 30 July 2020.

(emphasis added)

Ground 1: The sentencing judge failed to make and state an assessment of the seriousness of counts 5 and 6

Applicant’s submissions

28. Mr Karim, counsel for the Applicant, submitted that the sentencing Judge had fallen into error in failing to explain in his sentencing remarks how he had dealt with the question of the objective seriousness of Counts 5 and 6. He submitted that the statement “the two counts under s 66C are objectively serious matters” (see [27] above) is inadequate and provided no indication of his Honour’s evaluation of the relative seriousness of those two offences. It was submitted that those remarks do not identify with any clarity the factors that were taken into account to underpin the assessment. There was no expression of whether certain submissions made on behalf of the Applicant were accepted or rejected and the only conclusion articulated by the sentencing Judge about the relevant objective factors concerned the breach of trust issue dealt with at ROS 10.

29. Counsel for the Applicant disavowed any suggestion that the ground of appeal was really a complaint that the reasons were inadequate. He submitted that R v Van Ryn [2016] NSWCCA 1 at [133]-[141] made it clear that there was a requirement that the sentencing Judge determine the objective criminality of the offences. The sentencing Judge in that case had failed to make the necessary determinations. It was said that the same failures occurred here.

30. Three particular areas of inadequacy in the sentencing Judge’s remarks were asserted. The first (ROS 4), where the sentencing Judge noted that the Applicant thought at the time he committed the offences that the victim was asleep, and that there was “no way he would ever want to hurt her”.

31. The second at ROS 7, where reference is made to the Applicant denying any planning or manipulation of the situation. All the sentencing Judge said in respect of this was a reference to the offences being opportunistic and to the psychologist noting the Applicant took full responsibility for his actions and seemed genuinely remorseful. It was said that there was inadequate analysis as to how these considerations were dealt with.

32. The third asserted failure was said to be evident where (at ROS 9), the submissions for the Applicant that Counts 5 and 6 were below mid-range because the assaults were of short duration, there were no threats or coercion, there was no physical pain, and they were opportunistic offences were noted, but nowhere in the sentencing remarks is it explained how these considerations were dealt with in determining the objective seriousness of those counts.

33. Counsel for the Applicant submitted that in making the necessary determination, the sentencing Judge should have made an assessment of the weight he attached to each of these factors and whether he accepted or rejected them in assessing the objective seriousness of the offences. His failure to do so caused the sentencing task to miscarry.

34. It was further submitted that the sentencing Judge committed an error in notional accumulation. Because the sentencing Judge made a number of favourable findings about the Applicant’s subjective case, a more modest level of accumulation would have been appropriate.

Crown Submissions

35. The Crown agreed that an assessment of the objective seriousness of an offence remains a critical component of the sentencing process, citing Harris v R [2015] NSWCCA 81 at [57] per Adamson J with whom Basten JA and RA Hulme J agreed, referring to R v Campbell [2014] NSWCCA 102 at [27] per Simpson J, Hall J agreeing. However, where no standard non-parole period is applicable to an offence, it is neither necessary nor desirable for a sentencing Judge to make an express finding of where, on a scale of objective gravity, a particular offence lies: R v Sivell [2009] NSWCCA 286 at [2]-[5]; Georgopolous v R [2010] NSWCCA 246 at [30]-[32] per Howie J, Allsop ACJ and Adams J agreeing.

36. The Crown noted that in Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [147], it was held that a sentencing Judge was not required to do more than characterise an offence as “very serious” to be viewed in light of a fair reading of the remarks as a whole. There was no need for elaborate reasons for a conclusion as to the seriousness of the offences (Bland at [143]) and it is not necessary to make a finding as to where precisely the offence lies in the spectrum of offending (Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [78]; Charbaji v R [2011] NSWCCA 181 at [15]).

37. The Crown argued that in Simpson v R [2014] NSWCCA 23 at [27] it was enough for the sentencing Judge to state the offences were objectively very serious.

38. It was submitted that the sentencing Judge’s statement in respect of Counts 5 and 6 reflected the requirements of the law in this regard.

39. As re-stated in R v Van Ryn at [136] citing the remarks of Hoeben CJ at CL in Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]:

While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.

40. It was submitted that this ground of appeal had not been made out and the sentencing process did not miscarry.

Decision

41. The issue the Court of Criminal Appeal addressed in Van Ryn was that the sentencing Judge in that case had made no assessment at all about the objective seriousness of any of the offences with which he dealt. He merely recited the facts of each offence, all but one of which were offences involving standard non-parole periods. There was no such error or issue here.

42. Counsel appearing for the Applicant at the sentencing hearing did not submit that it was necessary for the sentencing Judge to make a finding of where the offences fell within the range of objective seriousness. Near the end of the sentencing hearing the sentencing Judge raised expressly with counsel what was required in this case. The following exchange appears at p 13 of the transcript of the sentencing hearing on 15 April 2016:-

HH:   On the two offences for which there is no standard non-parole period, it is not necessary for me to make a finding of where the offences fall in the range of objective seriousness, is it?

Crown:   Your Honour, in relation to those…

HH:   Sorry, I’m wondering if I’ve put that incorrectly.

Crown:   Your Honour does not have to make a determination of where they fall in terms of mid-range of objective seriousness which is a specific term contemplated in the standard non-parole period legislation. Your Honour would, as part of the sentencing exercise, in my respectful submission, consider the objective seriousness of the other two offences and I have referred to those in my written submissions. (emphasis added)

Counsel appearing for the Applicant did not advance any contrary submissions in response.

43. In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Johnson J stated (at [80], McClellan CJ at CL and Rothman J agreeing):

There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49].

Counsel for the Applicant at the sentencing hearing did not ask the sentencing Judge to make a specific finding on the scale of seriousness given these were not offences that involve standard non-parole periods.

44. Gal v R [2015] NSWCCA 242 also dealt with the issue of an asserted failure to assess the objective seriousness of an offence. Beech-Jones J concluded (at [39], Bathurst CJ and Price J agreeing):

…nothing in this judgment is meant to suggest that a sentencing judgment must dwell upon either the facts of an offence or their objective seriousness at any length. Instead, at a minimum, such reasons should state or refer to the essential facts upon which an offender is sentenced and provide at least some assessment of, or reflection upon, the seriousness of the offending conduct.

45. In Sharma v R [2017] NSWCCA 85, RA Hulme J (Beazley P and Walton J agreeing) said at [64]:

Whilst her Honour’s broad expression is not erroneous, the term “serious offences of their type” is open to the criticism that it is vague or imprecise. It has been held that it is not inappropriate for sentencing judges to make an assessment of objective offending according to a scale of seriousness: Aldous v R [2012] NSWCCA 153; 227 A Crim R 184 at [33] per Davies J (citing R v Koloamatangi [2011] NSWCCA 288 at [18]-[19]; Zreika v R [2012] NSWCCA 44 at [45] and [47]). Whilst greater precision may be desirable, it is not essential.

46. The principle in Sharma v R has direct application in a case where as here, complaint is made concerning sentencing for offences which do not carry standard non-parole periods.

47. Error has not been demonstrated on the part of the sentencing Judge.

48. Having referred to statistical information that had been provided, the sentencing Judge observed (ROS 11) that the median head sentence for s 66C(2) offences was 6 years with a non-parole period of 4 years. He then noted the submission made on behalf of the Applicant that the objective seriousness was “below the mid-range”, and so the objective features would lead the Court to ameliorate the sentence which would otherwise be imposed, principally because of the good prospects of rehabilitation (ROS 11). The Crown submission that there should be some degree of accumulation of sentences to properly reflect that the criminality involves discrete acts within one episode was noted as was the fact that then counsel for the Applicant conceded some accumulation would be appropriate (ROS 11).

49. It is only then, just before imposing the aggregate sentence, the sentencing judge says, “I accept that the aggravated indecent assault is slightly below mid-range and that the two counts under s 66C are objectively serious matters” (ROS 12).

50. It was not submitted by the Applicant’s counsel at first instance that a more elaborate finding was required, nor was a more elaborate finding required by law. His Honour’s reasoning and the indicative sentence nominated for these two offences do not show error on the part of the sentencing Judge.

51. I would reject the sole ground of appeal.

Conclusion

52. The Applicant has not demonstrated error and in the circumstances, leave to appeal should be granted but the appeal dismissed.

53. I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

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Decision last updated: 27 November 2017