BT v R

[2019] NSWCCA 147

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	BT v R [2019] NSWCCA 147
Hearing dates:	1 April 2019
Date of orders:	05 July 2019
Decision date:	05 July 2019
Before:	Bathurst CJ at [1] Ierace J at [2] Hidden AJ at [3]
Decision:	Leave to appeal granted, appeal dismissed.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – sexual intercourse with a child under 10 years (and related offences) – whether the sentencing judge properly had regard to the applicant’s deprived background – whether special circumstances should have been found – whether sentence unreasonable or plainly unjust
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
Cases Cited:	Beale v R (2015) NSWCCA 120 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Jones v R [2012] NSWCCA 262 Kertai v R [2013] NSWCCA 252 Morton v R [2018] NSWCCA 84 Newman v R [2018] NSWCCA 208 Perkins v R [2018] NSWCCA 62 Prince v R [2013] NSWCCA 274 R v Fernando (1992) 76 A Crim R 58 R v ND [2016] NSAWCCA 103 R v Scavera [2016] NSWCCA 145 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 RR v R [2011] NSWCCA 235 SW v R [2013] NSWCCA 255
Category:	Principal judgment
Parties:	BT (Applicant) Regina (Crown)
Representation:	Counsel: S Kluss (Applicant) K Ratcliffe (Crown)   Solicitors: Ross Hill & Associates (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2016/190470
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 23 March 2018 Before: Colefax SC DCJ File Number(s): 2016/190470

Judgment

1. BATHURST CJ: I agree with the orders proposed by Hidden AJ and with his Honour’s reasons.

2. IERACE J: I agree with the orders proposed by Hidden AJ and with his Honour’s reasons.

3. HIDDEN AJ: The applicant pleaded guilty in the District Court to the following charges:

• committing an act of indecency towards a child under the age of 10 years, an offence under s 61O(2) of the Crimes Act 1900 (NSW), carrying a maximum sentence of 7 years imprisonment;

• sexual intercourse with a child under the age of 10 years, an offence under s 66A(1) of the Crimes Act, carrying a maximum sentence of imprisonment for life and a standard non-parole period of 15 years.

His Honour also took into account on a form 1 an offence of indecent assault on a child under the age of 16 years, an offence under s 61M(2) of the Crimes Act, carrying a maximum sentence of 10 years imprisonment and a standard non-parole period of 8 years.

4. His Honour imposed concurrent sentences. On the first count he sentenced the applicant to imprisonment for 1 year and 4 months, and on the second count, taking into account the form 1 matter, to imprisonment for 9 years with a non-parole period of 6 years and 9 months. Both sentences were directed to commence on the date of the applicant’s arrest, 23 June 2016.

Facts

5. The victim of the offences was a 4 year old girl. The applicant was 29 years old at the time. The victim’s mother was a friend of his partner. In the evening of 21 June 2016, the mother visited the applicant and his partner at their home, taking the victim with her. The two women left the house briefly, and the victim stayed behind with the applicant.

6. After the women left the house, the applicant took off his clothes so that he was wearing only his underwear. His penis was protruding from his underpants, although the sentencing judge did not find that it was erect. In this condition he gave the victim a hug. This was the behaviour constituting the act of indecency the subject of the first count.

7. He then gave the victim a “hard” kiss on her lips, which constituted the indecent assault on the form 1.

8. The victim then needed to use the toilet. The applicant followed her to the toilet. There he unbuttoned the garment she was wearing, a “onesie”, and pulled it down to her knees, and he also pulled down her underwear. The girl went to the toilet and stood up when she had finished. The applicant then told her to bend over forwards so that she was touching the floor with her hands and her bottom was in the air. While she was in this position the applicant inserted one of his fingers repeatedly into her vagina. The victim was crying and trying unsuccessfully to pull up her underwear. When he did stop, he said to her, “You can’t tell anyone about that”. This was the offence of sexual intercourse the subject of the second count.

9. The applicant and the victim then returned to the lounge room and watched television. Shortly thereafter, her mother and the applicant’s partner returned to the home. The victim was crying and she ran to her mother but, when asked why she was crying, said that she had “missed” her. However, after she and her mother left, about two hours later, the victim told her mother on the way home what had happened and police were contacted.

10. The following day the applicant was interviewed by police. He denied the offences, saying that all he did was to unbutton the victim’s clothes when she was going to the toilet. As noted, he was arrested the next day, 23 June 2016.

11. His Honour referred to the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse that what was previously regarded as low level sexual abuse can have catastrophic effects on children. He added that what the applicant had done to the complainant in this case “could not be regarded, even in previous times, as low level sexual abuse.” He assessed the first court, the act of indecency, as towards (but not at) the bottom of the range for an offence of its type. The second count, the sexual intercourse, he assessed at the mid-range.

12. In the sentence proceedings there was a victim impact statement by the girl’s father. The sentencing judge recorded that from that statement it was clear that the offences had had a very significant impact upon the girl psychologically. She was undergoing weekly counselling, and there was “an obvious and substantial change in her personality”.

Subjective case

13. The applicant is now 32 years old. He has a relatively minor criminal history, which contains no offences of a sexual nature.

14. His father was Aboriginal, and he identifies as Aboriginal. He is the oldest of five children. He had a very disturbed upbringing. His father was heavily involved in criminal activity and had substance abuse issues. From a young age he suffered severe physical abuse by both his parents, as well as witnessing significant violence perpetrated by his father on his mother. Also at an early age his parents separated. He remained with his mother, who entered into another relationship which also was abusive.

15. In addition, he was sexually abused by his paternal grandfather on three or four occasions until he was about eight years old. At that age he was made a ward of the State, and lived in multiple foster arrangements and in accommodation provided by Youth off the Streets until he was 18 years old.

16. He left school at the end of year 11. Having obtained a forklift licence, he had some work in the civil construction industry on a casual or contract basis. However, at the time of the offences he had been unemployed for about 18 months.

17. He had been in three long term relationships, the first of which produced two children who are now eight and nine years old. Following a suicide attempt by their mother, they are now in the care of his mother under a FACS order. The order does not permit him to visit the children and he has had no contact with them for some years.

18. A joint report of two psychologists disclosed that he had an extensive mental health history, beginning in childhood. He was diagnosed with ADHD, and also reported diagnoses of bipolar disorder, post traumatic stress disorder, depression and anxiety. He had been prescribed various medications from his early childhood. In his teenage years he began to use cannabis daily until he ceased in 2014. He then began to abuse non-prescription medication. The authors of the report concluded, and his Honour accepted, that he met the diagnosis of substance abuse disorder.

19. He told the psychologists, and again his Honour accepted, that on the evening of the offence he had taken oxycodone (Endone), pregabalin (Lyrica) and diazepam (Valium) in greater than prescribed quantities due to severe back pain. He said that, as a result, he was sedated to the point of “not being able to see in front of him.”

20. The psychologists did not arrive at a diagnosis of paraphilic interest in children. This was despite material supplied to them disclosing that in 2003 and 2004 the applicant had admitted inappropriate sexual behaviour towards his sister, bother and other children when he was aged between about 10–17 years. He had participated in a youth sex offender program when he was 16. He was described as vague and guarded when asked about these matters, and the report notes that there was no further information about his behaviour at the time or about the circumstances leading to his participation in that program. The authors expressed the view that this adolescent sexual behaviour may be relevant to the present matters, pointing towards problems in sexual development, but noted that “childhood sexual acting out is not the same phenomena (sic) as adult sexual offending.”

21. As to the offences, the authors of the report expressed this opinion:

“Although the underlying offence dynamic of his sexual offending behaviour are (sic) unclear the current offences were committed in the context of relationship instability and [the applicant’s] abuse of pain relief medication. The offence appears to have been opportunistic, where [the applicant] is likely to have been disinhibited on the night of the offence and had unsupervised access to a child.”

22. The psychologists recommended that, in the event of the applicant being sentenced to imprisonment, his suitability for custody based sex offender treatment programs should be assessed. They also expressed the view that he would greatly benefit from individual or group programs addressing substance abuse, which were available through the EQUIPS suite of programs both in custody and in the community.

23. As to the issue of a paraphilic interest in children, his Honour observed that not all people who are disinhibited engage in the sexual abuse of children. He saw it as “the only rational inference in the circumstances” that the applicant did have a sexual interest in underage girls “which, when he is disinhibited, he will act upon – and that he opportunistically did so on this occasion.” He saw the offender’s inappropriate sexual behaviour in earlier years as tending to confirm that conclusion, although he noted that, while details of that history might have been of considerable assistance to the Court and to the psychologists, no further information had been provided.

24. His Honour found that the applicant was not remorseful, noting the psychologists’ observation of his “low level of insight into his offending.” He noted that the applicant had not engaged in any rehabilitation program either for his substance abuse disorder or (apart from whatever was involved in the youth sex offender program) for his underlying interest in young children. He considered his prospects of rehabilitation as “regrettably not good.” He declined to find special circumstances to vary the statutory ratio between sentence and non-parole period. He allowed a 10 per cent discount of sentence for the applicant’s late pleas of guilty.

The application

25. Counsel for the applicant, Ms Kluss, argued the application on three grounds:

1. In sentencing the applicant, his Honour erred in failing to apply the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

2. His Honour’s discretion miscarried by failing to properly consider a finding of special circumstances.

3. The sentence is unreasonable or plainly unjust.

Bugmy Principles

26. The examination by the High Court in Bugmy of the relevance to sentence of a background of social deprivation is well known. At [40], after referring to the decision of Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, the Court said:

“The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

27. In his reasons his Honour dealt at some length with the applicant’s background, and said of him that he “therefore had a dysfunctional upbringing and, with it, a reduced moral culpability for his offending that the High Court has directed sentencing judges to take into account.” Clearly, this was a reference to Bugmy, which had been raised in submissions to his Honour.

28. Ms Kluss acknowledged as much, but noted that his Honour later said that in the applicant’s case “considerations of both specific and general deterrence are fully engaged.” Ms Kluss argued that that observation indicated that, while his Honour had accepted that the Bugmy approach was applicable, it had had no effect on the sentence imposed. However, there is no inconsistency between his Honour’s finding that the applicant’s background raised a Bugmy issue, on the one hand, and that weight should be given to specific and general deterrence, on the other.

29. As the Crown prosecutor in this Court rightly submitted, that background was but one of a number of competing sentencing considerations which his Honour had to take into account and, in all the circumstances of the case, it was open to him to conclude that deterrence, general and specific, should be reflected in the sentence. The Crown prosecutor cited, by way of example, Prince v R [2013] NSWCCA 274, per Schmidt J (with whom Gleeson JA and McCallum J agreed) at [153]. Among the other matters for consideration here were his Honour’s findings that the applicant had a substance abuse problem and a sexual interest in underage girls, neither of which had been addressed by any rehabilitation program, that he had not expressed remorse and had a low level of insight into his offending, and did not have good prospects of rehabilitation.

30. In Bugmy at [44], the High Court held that the effects of profound deprivation do not diminish with the passage of time and that such a background should be given “full weight” in every sentencing decision. Their Honours continued:

“However, this is not to suggest … that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult….”

31. Ms Kluss also argued that his Honour erroneously believed that the Bugmy approach required a causal nexus to be established between the dysfunctional background and the offending behaviour. She referred to Perkins v R [2018] NSWCCA 62, where White JA examined that issue at [72] ff and concluded that the High Court’s reasoning in Bugmy does not endorse such a requirement. However, the basis of this submission is unclear. There is nothing in his Honour’s reasons to convey that he believed such a causal link was necessary.

32. This ground is not made out.

Special circumstances

33. Having observed that the applicant’s prospects of rehabilitation were “not good”, his Honour added that he did not think that they would be “enhanced by a longer period on parole.” A little later he expressly declined to find special circumstances, saying that no basis for that finding had been established.

34. In challenging that conclusion, Ms Kluss referred to the applicant’s abuse of drugs, the product of his significantly dysfunctional background, and the link between his drug use and the disinhibition characterising his offending behaviour. She argued that the combination of his background, his history of substance abuse, his need for treatment and counselling for his own sexual abuse and mental health issues, and the fact that this term of imprisonment would be his first time in custody provided a proper basis for a finding of special circumstances.

35. It is, of course, well established that a finding of special circumstances involves the exercise of a discretionary judgment with which this Court would be slow to interfere. It is sufficient to refer to the five judge decision of this Court in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534. Speaking of the statutory proportion between sentence and non-parole period established by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), Spigelman CJ (with whom the other members of the Court agreed) said at [73]:

“One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a “special circumstance”. The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.”

36. The effective sentence in the present case allows for a period of parole eligibility of two years and three months. That is a lengthy period for the benefit of supervision and the sanction of parole, and it is that period to which his Honour referred when he expressed the view that the applicant’s prospects of rehabilitation would not be enhanced by a longer period. The discretion to find special circumstances is a broad one, and it is important that decisions of this Court do not confine the factors which might give rise to such a finding. However, here the focus of his Honour’s consideration of the issue, and of the submissions to him and in this Court, was upon the applicant’s rehabilitation.

37. In Beale v R (2015) NSWCCA 120, the Court was called upon to deal with a question whether a finding of special circumstances was called for because of a risk of institutionalisation of the applicant in that case. It was in that context that Beech-Jones J (with whom Hoeben CJ at CL and RA Hulme J agreed) observed at [68]-[69]:

“The overall purpose of the exercise is to facilitate the offender’s rehabilitation. To that end “there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful” (R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20]).

It follows that, even if an offender is either institutionalised or at risk of institutionalisation, it is open to a sentencing judge to nevertheless decline to make a finding of special circumstances and vary the minimum ratio if they are not sufficiently satisfied that a longer period of parole is likely to result in their rehabilitation being successful, especially if the other factors relevant to sentencing do not warrant that course (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] and [65]).”

38. There was a body of material in the present case capable of justifying a finding of special circumstances, and other sentencing judges may have done so. However, such a finding is matter of discretionary judgment and, consistent with the appellate approach enunciated by Spigelman J in the passage from Simpson cited above, it cannot be said his Honour’s conclusion that there were no special circumstances demonstrates error.

38. This ground also is not made out.

Excessive sentence?

40. The focus of this ground was upon the sentence for the second count, sexual intercourse with a child under the age of 10 years. The principles governing this Court’s consideration of whether a sentence is unreasonable or plainly unjust are the subject of a deal of familiar authority. They were recently summarised in Newman v R [2018] NSWCCA 208 at [47]:

“… When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

it is not to the point that this Court might have exercised the sentencing discretion differently;

there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

See Obeid v R [2017] NSWCCA 221 (R A Hulme J; Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]; Hughes v R [2018] NSWCCA 2 at [86] per Payne JA, R A Hulme and Garling JJ.”

41. Ms Kluss and the Crown prosecutor referred to a number of decisions of this Court in cases of sexual intercourse with a child under the age of 10 where the offences were isolated incidents, rather than part of a pattern of abuse.

42. Ms Kluss attached to her written submissions a list of cases in the Public Defenders sentencing schedules, in which sentences affirmed or imposed by this Court ranged from five years to nine years. She referred particularly to SW v R [2013] NSWCCA 255 and R v ND [2016] NSWCCA 103. However, all those cases involved offences for which the maximum sentence was 25 years. The maximum sentence of imprisonment for life, applicable to the present case, was introduced by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW).

43. To the cases referred to by Ms Kluss, involving the 25 year maximum, the Crown prosecutor added RR v R [2011] NSWCCA 235, in which a 12 year sentence was upheld, and Jones v R [2012] NSWCCA 262, in which this Court imposed a 12 year sentence after a successful appeal against a longer term. Most of these cases involved pleas of guilty, but RR and Jones involved convictions at trial.

44. The Crown prosecutor referred to three cases where the maximum sentence was life imprisonment, being either offences under s 66A(1) after the increase of the maximum sentence, or aggravated offences under the now repealed s 66A(2), which also carried a maximum sentence of life. These were Kertai v R [2013] NSWCCA 252, R v Scavera [2016] NSWCCA 145 and Morton v R [2018] NSWCCA 84. In Kertai, a conviction under s 66A(2) after trial, a sentence of imprisonment for 12 years was upheld. In Scavera, a Crown appeal in relation to s 66A(2) offences to which the respondent had pleaded guilty, the Court substituted a sentence of seven and a half years. (In that matter there was a strong subjective case and a 25 per cent reduction of sentence for the plea of guilty.) In Morton, after pleas of guilty to offences under s 66A(1) and s 66A(2), sentences of nine years for each offence were upheld.

45. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194, Simpson J (as she then was) said at [304] that previous sentencing decisions “can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence”, a proposition endorsed by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, at [54]. Here, however, it is doubtful that the small number of cases cited where the maximum sentence was life imprisonment could provide such a yardstick. Insofar as they might be seen to do so, the sentence in the present case is not markedly out of step with them.

46. The effect of the amending Act of 2015 was to consolidate the offence of sexual intercourse with a child under 10, dispensing with specified circumstances of aggravation, and to provide a maximum sentence of imprisonment for life for all of them. In her second reading speech the Attorney General at the time said:

“Whether committed in circumstances of aggravation or not, this offence, by its very nature, is exceptionally serious. The devastating and lifelong impact of an offence committed under this section should carry the harshest potential penalty available—that is, life imprisonment.”

(Hansard, Legislative Assembly, 12 May 2015)

47. As I have said, the submissions of Ms Kluss on this ground relied only upon cases where the maximum sentence was 25 years imprisonment. In particular, she relied upon SW and ND, which shared features with the present case and in both of which significantly lower sentences had been passed. In both matters there had been pleas of guilty. In SW a sentence of 7 years and 7 months with a non-parole period of 5 years was upheld. ND was a successful Crown appeal, in which a sentence of 6 years with a non-parole period of 4 years was substituted. In both matters there was a subjective case eliciting sympathy, including intellectual disability. However, those two cases and the other matters in the Public Defender’s schedule do not provide relevant guidance in the present case, given the subsequent increase in the maximum sentence.

48. Ms Kluss noted that the sexual intercourse was digital, and the offences encompassed by the two counts and the form 1 were committed at the same time and over a relatively short period. She also relied upon the applicant’s lack of any relevant criminal history and generally upon his subjective case.

49. However, as the Crown prosecutor in this Court rightly pointed out, the victim was at a very tender age, she was temporarily in the applicant’s care, and he persisted in his digital penetration of her notwithstanding her attempts at resistance and her obvious distress. The sentences for the two counts were entirely concurrent and the form 1 matter required to be taken into account. She also noted his Honour’s findings as to the applicant’s lack of remorse and low level of insight into his offending.

50. The sentence on the sexual intercourse count is severe, but it cannot be said to be beyond the bounds of the legitimate exercise of his Honour’s discretion. I am not persuaded that the sentence is unreasonable or plainly unjust, and this ground also fails.

Order

51. Accordingly, I would grant leave to appeal but dismiss the appeal.

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Amendments

08 July 2019 - Appealed from decision of Colefax SC DCJ

Crown Prosecutor K Ratcliffe

At [49] last sentence begins with "She"

Decision last updated: 08 July 2019