CC v The Queen

[2019] NSWCCA 230

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	CC v R [2019] NSWCCA 230
Hearing dates:	11 September 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Before:	Payne JA at [1] Fullerton J at [2] Bellew J at [34]
Decision:	1. Extend the time for the filing of the notice of application for leave to appeal to 20 June 2019. 2. Leave to appeal is refused.
Catchwords:	CRIMINAL LAW – sentence appeal – six counts of sexual assault with a child – victim is applicant’s brother – whether aggregate sentence was manifestly excessive
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	CC v R [2019] NSWCCA 229
Category:	Principal judgment
Parties:	CC (Applicant) The Crown (Respondent)
Representation:	Counsel: S Kluss (Applicant) B Baker (Crown)   Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2015/251163
Publication restriction:	Non-publication order on the names of the applicant and the complainant
Decision under appeal	Court or tribunal: District Court Date of Decision: 2 March 2018 Before: Huggett DCJ File Number(s): 2015/251163

Judgment

1. PAYNE JA: I agree with Fullerton J.

2. FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 5 years with a non-parole period of 2 years and 9 months imposed by Huggett DCJ on 2 March 2018 following a trial in which the applicant was convicted by the jury of six counts of sexual assault with a child, in each case his younger brother.

3. The application for leave to appeal is brought out of time, requiring a grant of leave under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW). The applicant filed a Notice of Intention to Appeal on 15 March 2018. On 20 June 2019, he filed a further Notice of Application for Leave to Appeal out of time which accompanied the filing of the Notice of Appeal, grounds of appeal and counsel’s submissions.

4. No evidence was filed in advance of the hearing of the appeal to support the grant of leave to extend time, a matter that was drawn to the attention of the applicant’s counsel by the Court. Counsel did not apparently appreciate that the appeal was filed out of time. The Court granted leave to file by 4pm the following day such evidence as the applicant relied upon in support of the grant of leave to extend time.

5. On 13 September 2019, an affidavit from Ross Hill, solicitor, was filed and served on the Crown. Mr Hill annexed email correspondence with the Registry following the filing of an All Grounds Notice of Intention to Appeal on 15 March 2018. On 12 September 2018, a request for an extension of time was sought and granted to 14 December 2018. On 28 December 2018, a request for a further extension of time to 14 February 2019 was sought and granted on the stated basis that the materials in relation to the appeal were with counsel, together with the materials in connection with another All Grounds Notice of Intention to Appeal following the applicant’s conviction in unrelated proceedings in June 2018. The extension of time was sought to enable what was described by Mr Ross as “the merit stage” to be finalised. I understand that to be a reference to Legal Aid NSW requiring the provision of an advice on the merit in bringing either or both conviction and sentence appeals in order to support a grant of legal aid.

6. On 20 June 2019, a further application for an extension of time was lodged on the basis, as stated in the notice, that “the extension … from 14.2.19 to date was somehow overlooked”. In Mr Ross’s affidavit he elaborated on his reasons for “overlooking” the need to apply for a further extension by what he described as “continued and ongoing issues with the provision of necessary transcripts by Reporting Services Branch until and beyond 26 April 2019”.

7. Although in the Crown’s filed submissions the Crown opposed leave being granted to bring the sentence appeal out of time, upon service of Mr Hill’s affidavit the Court was notified that the Crown did not propose to rely on any evidence in reply, from which I assume the Crown does not oppose leave being granted. I take the Crown to maintain the submission that there is no merit in the ground of appeal that contends the aggregate sentence is manifestly excessive, and that leave to appeal should be refused and the appeal dismissed on that basis.

The sentence proceedings

8. The sentencing proceedings concerned the applicant’s conviction and sentence on the following counts.

The sexual offences

Counts 1-2: Sexual intercourse with a child of or above 10 years of age and below 16 years of age contrary to s 66C(1) of the Crimes Act 1900 (NSW) for which the maximum penalty is 8 years’ imprisonment.

These offences were committed over successive years between January 2001 and December 2002 when the applicant’s brother was aged 11 or 12 and the applicant was aged between 15 and 16.

A sentence of 10 months’ imprisonment was indicated for Count 1 and a sentence of 12 months’ imprisonment for Count 2.

Counts 3-5: Sexual intercourse with a child of or above 10 years of age and below 14 years of age contrary to s 66C(1) of the Crimes Act for which the maximum penalty is 16 years’ imprisonment.

These offences were committed between July and September 2003. The applicant’s brother was aged 13 and the applicant was aged 17.

A sentence of 2 years’ imprisonment was indicated for each Count.

Count 6: Sexual intercourse with a child of or above 14 years of age and below 16 years of age contrary to s 66C(3) of the Crimes Act for which the maximum penalty is 10 years’ imprisonment.

This offence was committed between July and August 2005. The applicant’s brother was aged 15. The applicant was aged 19.

A sentence of 2 years and 6 months’ imprisonment was indicated.

9. The applicant’s brother made a formal complaint to police on 14 January 2014. On 27 August 2015, following a police investigation which included the lawful recording of telephone conversations between the applicant and his younger brother, the applicant was arrested and charged with the offending the subject of Counts 1 to 6.

The pervert the course of justice offence

10. On arraignment the applicant pleaded guilty to offering money to his younger brother in exchange for him withdrawing the allegations of sexual misconduct with the intention of perverting the course of justice contrary to s 319 of the Crimes Act (Count 7). That offence attracted a maximum penalty of 14 years’ imprisonment. After applying a 10 per cent discount for the plea of guilty, a sentence of 2 years and 8 months’ imprisonment was indicated.

The aggregate sentence

11. In applying principles of totality and after considering the applicant’s subjective circumstances, an aggregate sentence of 5 years with a non-parole period of 2 years and 9 months was imposed. The structure of the sentence reflects a finding of special circumstances based upon the applicant’s age at the time of the sexual offending; the likely conditions of his custody; and the fact that the sentence was his first experience of full-time custody.

12. At the time of sentence the applicant was due to stand trial for unrelated offences committed after the last of the offences committed against his brother. After conviction he was sentenced by Neilson DCJ on 22 June 2018 to a further aggregate sentence. That sentence is the subject of a separate appeal, also heard by this Court on 11 September 2019. It is the subject of a separate judgment (CC v R [2019] NSWCCA 229).

The appeal

13. The applicant challenges the aggregate sentence as manifestly excessive. The challenge was limited to what counsel submitted were the excessive sentences indicated for each of Counts 1 to 5, and an excessive sentence indicated for Count 7, thereby resulting in an aggregate sentence that was manifestly excessive, in the sense that it was unreasonable or plainly unjust.

14. That submission was maintained despite there being no challenge to the sentencing judge’s indication of 2 years and 6 months for the sexual offending the subject of Count 6 (by which time the applicant was aged 19 years), despite the substantial notional concurrency in the sentences indicated for Counts 3, 4 and 5, and in the absence of any suggestion that the principle of totality had been misapplied in fixing the aggregate sentence.

15. For the reasons which follow, I am not persuaded there is any merit in the challenge to the aggregate sentence, or the submissions advanced in support of that challenge to justify a grant of leave to appeal. I would refuse leave to appeal and dismiss the appeal.

16. Given the way in which counsel approached the application for leave to appeal, is not necessary to do otherwise than to summarise the facts her Honour found established from the evidence at trial, including the findings of fact which underpinned her assessment of the sexual offending in each of Counts 1 to 6 as objectively grave, and her further finding that despite the reduction in the applicant’s moral culpability for Count 7 in light of the role played by his father in its commission, the interference with the administration of justice the applicant intended by his approach to his younger brother was also serious with a real capacity to undermine and subvert the criminal justice system.

The sexual offences

17. The facts for sentencing purposes can be conveniently summarised as follows:

1. In 1997, when the applicant’s brother (“the complainant”) was 7 years of age turning 8 and the applicant was 10 years of age turning 11, the applicant showed him a pornographic video. A few weeks later the applicant began showering with the complainant. Over time they began playing “the sliding game” during which they would slide naked along the soapy bathroom floor. On one occasion during the sliding game, the applicant showed the complainant his erect penis. The applicant told him he could “make milk” and masturbated, ejaculating onto the complainant’s chest. The applicant told the complainant not to tell anyone.

2. In time, the applicant began asking the complainant to suck his penis in exchange for Pokemon toys. On occasions, when the complainant refused the applicant would offer him more toys. At some stage the applicant sucked the complainant’s penis.

3. The complainant kept a record of the Pokemon toys he was owed. When he was 8, he asked the applicant when he would be receiving his toys. Later that day, the complainant told his mother that the applicant had been asking him to suck his penis in exchange for toys. The complainant’s mother sat with her sons and asked the applicant if this was true. The applicant denied the allegations.

4. In 2001, when the applicant was 14 turning 15 and the complainant was 11 turning 12, the applicant woke the complainant in the bedroom they were sharing and asked him to suck his penis. The complainant refused. The applicant offered to suck the complainant’s penis which he also refused. Upon the offer of five dollars, the complainant agreed to let the applicant suck his penis. The applicant asked the complainant to ejaculate into his mouth. The applicant paid the complainant five dollars. This was the conduct the subject of the first count on the indictment.

5. Between 13 and 30 June 2002, when the complainant was 12 and the applicant had recently turned 16, the complainant sucked the applicant’s penis for about five minutes while the applicant spoke to his girlfriend on the phone. When the applicant ended the phone call he told the complainant that his girlfriend sucked better than him. This was the conduct the subject of the second count on the indictment.

6. Between 21 July and 5 September 2003, when the complainant was 13 and the applicant was 17, the complainant sucked the applicant’s penis but stopped because it smelt bad. The applicant then washed his penis and the complainant put it in his mouth. The complainant then washed the applicant’s penis and sucked it a third time. This was the conduct the subject of Counts 3 to 5 on the indictment.

7. Between 15 July and 18 August 2005, when the complainant was 15 and the applicant was 19, the complainant was on the computer near the kitchen. The applicant was naked and approached him. He initially refused to suck the applicant’s penis, but after further requests, he did so because he wanted the money he expected to be paid, but also because the only time he felt loved by his brother was when he was asked for sexual contact. This was the conduct subject of Count 6 on the indictment.

8. Between 2001 and 2003, that is, during the timeframe comprehended by Counts 1 to 5 on the indictment, there was sexual contact between the applicant and the complainant monthly or fortnightly. After the applicant’s parents separated in 2006, sexual contact between the applicant and the complainant lessened to about once every six months until 2008 when the applicant moved out of home.

The perversion of justice offence

18. After the applicant’s admission into custody on 25 February 2016, he had a number of conversations over a two-week period with his father about action that could be taken so that his brother would retract the sexual allegations. Those conversations were lawfully recorded. They discussed paying the complainant $100,000 to retract the allegations. In one conversation, the applicant told his father to “keep pushing [the complainant]”. In another conversation, the applicant’s father told the applicant that the police had contacted him and told him to stop pushing the complainant to drop the charges. The applicant also warned his father that the police could be recording calls. It was agreed that the father would see the complainant in person to avoid calls being recorded.

19. The complainant did not retract his allegations. On 14 April 2016, when the applicant’s father told the applicant that he was able to come up with the $100,000, but that he could not contact the complainant again because he (the applicant’s father) might be charged, the applicant told his father to “let it be”.

20. In respect of the sexual offending the subject of Counts 1 to 6, the sentencing judge made the following findings:

1. Counts 1 to 6 were representative counts denying the applicant leniency which might otherwise have obtained if Counts 1 to 6 represented isolating offending.

2. Although the offending was spontaneous and opportunistic rather than being premeditated, it extended beyond what could be meaningfully described as childhood sexual experimentation since it was calculated and deliberate, and involved enticements in the form of money and gifts to secure the co-operation of the complainant.

3. The complainant was entitled to trust his older brother who breached that trust and took advantage of him to gratify himself sexually.

4. Each offence occurred in the complainant’s home.

5. The applicant was not remorseful and had no insight into the impact of his offending on the complainant.

21. In respect of the offending the subject of Count 7, her Honour was satisfied that the applicant’s motivation was to avoid conviction and punishment for the sexual offending against the complainant.

The applicant’s subjective circumstances

22. The applicant was aged 31 at the time of his trial and sentence.

23. Her Honour acknowledged the applicant had been in a relationship with a Korean woman for two years whose visa was due to expire soon. Her Honour also noted the applicant completed high school and excelled academically until year 10 when his performance declined because of his increasing interest in girls. After school, he worked in hospitality and sales. Insofar as concerns the applicant’s mental health, her Honour noted:

In relation to his present mental health I have referred to the fact that a report is before the Court from Mr Watson-Munro, psychologist. That report is based on the documents number 1 to 7 on page 1 of the report and upon what the offender said during the consultation (or consultations) with Mr Watson-Munro. The Beck Depression Inventory was also administered, that being a self-reporting questionnaire designed to canvass symptoms of depression and anxiety experienced over the preceding fortnight.

It is significant to note that Mr Watson-Munro does not appear to have corroborated anything the offender said during their consultation (or consultations). Rather he appears to have simply accepted what the offender told him. In fact, pertinent and relevant information was not before Mr Watson-Munro, for example; that the offender had been convicted of having committed other offences for which he was yet to be sentenced, that is, the unrelated charges; that he has a conviction for assault occasioning actual bodily harm on his record; that he had amassed considerable debt in his twenties and as at May 2013 had no job and was awaiting Centrelink benefits (trial ex 13).

Matters such as these may well have impacted opinions Mr Watson-Munro could offer regarding issues such as the offender’s risk of re-offending and prospects of rehabilitation. At the very least it would call into question Mr Watson-Munro’s opinion that,

“The offender denies any forensic history and beyond the present matters his life appears to be primarily pro-social, as characterised by an absence of drug use, limited alcohol intake and a solid work ethic.”

On the basis of the material before him and the test he administered, Mr Watson-Munro concluded that the offender suffered a depressive disorder. I am prepared to accept that the offender is currently very depressed, anxious and stressed. That is hardly surprising given his current custodial situation and the fact he is also awaiting sentence for the unrelated charges. There can be no doubt that a large component of his depression is referrable to the fact of and consequences of his convictions.

The offender’s present state of depression and his anxiety is, however, likely to make custody more onerous for him particularly in light of his apparent classification and the onerous conditions that entails. These are all matters I have taken into account in sentencing him.

24. Her Honour accepted that the applicant’s risk of sexual reoffending was low. However, since she was aware of the applicant’s prior conviction for assault occasioning actual bodily harm and other offences for which the applicant was still to be sentenced by Neilson DCJ, she was not prepared to find his risk of committing other offences was similarly low and, that being the case, the sentence needed to reflect the need for specific deterrence.

The appeal

25. The challenge to the indicative sentences for Counts 1 to 5 (sentences which ranged in ascending order from 10 months to 2 years) was limited to what counsel submitted was the failure on the part of the sentencing judge to sufficiently account for the fact that each offence was committed when the applicant was a juvenile, namely between the ages of 14 turning 15 and 17. Although the exercise of the discretion in s 18(1A) in Part 2 Div 4 of the Children (Criminal Proceedings) Act 1987 (NSW) to prosecute the applicant according to law was not said by counsel to reflect an error of principle, the submission advanced was that each of the indicative sentences corresponding with Counts 1 to 5 failed to reflect the different sentencing regime that would have obtained under that Act had the applicant been sentenced as a juvenile, that is, had those offences been reported to the authorities closer to the time of their commission.

26. Her Honour dealt with the significance of the applicant’s age at the time of the sexual offending the subject of Counts 1 to 5 in her sentencing reasons in a principled and coherent way which warrants being cited in full:

As I have referred to earlier, counts 1 to 5 occurred when the offender was himself a child. Had those offences been reported to the authorities closer to their commission, then the Children (Criminal Proceedings) Act 1987 (NSW) would have had application.

Counts 1 to 5 are not “serious children’s indictable offences” therefore a court would have been required to determine whether the offender should be dealt with in accordance with Part 3 Div 4 of that Act or according to law.

Section 18(1)(a) of that Act mandates matters to be taken into account in making that determination. The exercise of the discretion under s 18 was considered in R v WKR (1993) 32 NSWLR 447. Hunt CJ at CL as he was, with whom Campbell J agreed, said that

“while the Act does not identify any particular basis upon which the discretion is to be exercised, matters to be taken into account would include the nature of the particular offence, the age and the maturity of the offender both at the time of the offence and when standing for sentence, and the nature of the penalty which would be appropriate to the circumstances of the case in light of those matters.”

While the nature of the offending is apparent, I have little to no information regarding the maturity of the offender at the time he committed the sexual offences beyond the evidence suggesting he was educated until year 12, did very well at school until year 10, when his focus shifted to girls.

As to the nature of the penalty that would have been appropriate in all the circumstances, again there are too many variables to attempt to go back in time and predict how the discretion conferred by s 18 would have been exercised and indeed when it would have been exercised. For example, if it was exercised after the commission of only Count 1 or perhaps Counts 1 and 2 (had there been immediate complaint, which was perhaps unlikely because the victim’s earlier complaint to his mother was not believed and acted upon), it is possible that no conviction might have been recorded or, if so, a bond imposed.

If that matter was being considered after all six offences had been committed in counts 1 to 6, the situation would likely have been quite different, the offender being, at the time of count 6, an adult.

The most that can be reliably said now is that counts 1 to 6 could have been dealt with by the Children’s Court had complaint been made sooner and that imposes a very different sentencing regime and has a wide range of available sentencing options. Had the offender been sentenced when he was younger, considerable emphasis would have been placed on the need to provide him with an opportunity for rehabilitation.

Irrespective of how the discretion was exercised, namely, whether to deal with him as a child or at law, s 6 of the Act would have had application. Amongst other things it recognises that children who commit criminal offences bear responsibility for their actions, but because of their state of dependency and immaturity they require guidance and assistance. Considerations of general deterrence and retribution would also have been of less weight. Cognitive, emotional and/or psychological immaturity would have been an important factor.

Significantly, had the matters been dealt with closer to their commission, then the offender would not have been appearing for sentence in relation to count 7 as he is now. Count 7 was committed when the offender was much older and more mature and that offence significantly changes the landscape as far as the sentencing task before me is concerned.

In sentencing the offender I have taken into account the guideposts of the respective maximum penalties and the competing purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act.

27. Beyond counsel’s assertion that her Honour’s sentencing discretion miscarried in appointing indicative sentences for each of Counts 1 to 5, no attempt was made to critically analyse the sentencing judge’s approach to the fact of the applicant’s age at the time he sexually offended against the complainant, or to suggest where, in that approach, there was any indication that the sentencing judge had failed to appreciate its significance. Neither was there any attempt to deal with the additional remarks her Honour made when indicating the sentences for Counts 1 to 6 as follows:

The indicative sentences for those counts, counts 1 to 6, and in turn the aggregate sentence I will impose does not reflect the sentence that would be imposed on an adult offender for equivalent offences as reflected in counts 1 to 6. I have made allowance for the fact counts 1 to 6 were committed – or at least counts 1 to 5 were committed when the offender was a child and when sentencing practices, patterns and regimes were considerably more favourable to him.

28. In my view, the challenge to the indicative sentences on Counts 1 to 5 is without substance.

29. Counsel for the applicant challenged the discounted sentence of just under 3 years’ imprisonment indicated for Count 7 as failing to reflect her Honour’s finding that “the applicant played a secondary role and that his culpability arose by reason of his failing to stop or discourage what his father was doing”. That submission misstates entirely the basis upon which her Honour assessed the criminality inherent in the applicant’s offending.

30. Although the sentencing judge found that the applicant’s father played a pivotal role and was motivated for his own reasons to engage in conduct intending to pervert the course of justice, her Honour was satisfied the applicant encouraged his father’s conduct, and stood to substantially benefit from it had the complainant agreed to accept payment for his silence. Her Honour went on to say:

While it is not clear on the evidence who instigated the plan to attempt to persuade the victim to retract his allegations, in light of the pivotal role the father played and his position of authority in relation to the offender, I am prepared to find on balance that it was the father who initiated the plan.

It would further appear that it was the father who came up with the amount to offer the victim to retract the allegations, given the offender effectively queried why it had to be $100,000 that was offered. That said, the offender was more than a willing participant and at times encouraged the father to continue to place pressure on the victim. Indeed at no time did the offender attempt to stop or discourage what the father was doing, only telling him to let it be after the police had warned the father he might be charged if he contacted the victim again.

The nature of the perversion intended by the offender was serious and had the real capacity to undermine and subvert the criminal justice system. I am satisfied his motivation was not because he wanted to be released from custody because the allegations were not true but because they were true and the offender wanted to avoid conviction and punishment.

31. The challenge to the appointment of a discounted indicative sentence of 2 years and 8 months for Count 7 against a statutory maximum of 14 years on the basis contended for by the applicant is without merit.

32. In the absence of any meritorious challenge to the sentences indicated for Counts 1 to 5 and Count 7, or any residual basis upon which it could be said the aggregate sentence is “unreasonable or plainly unjust”, in my view, leave to appeal should be refused.

33. The orders I propose are:

1. Extend the time for the filing of the notice of application for leave to appeal to 20 June 2019.

2. Leave to appeal is refused.

34. BELLEW J: I agree with Fullerton J.

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Decision last updated: 19 December 2019