Corby v R

Case [2010] NSWCCA 146

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Corby v R [2010] NSWCCA 146

FILE NUMBER(S):
2009/9699

HEARING DATE(S):
5 July 2010

JUDGMENT DATE:
14 July 2010

PARTIES:
Jonathon James Corby (Applicant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Kirby J Johnson J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/9699

LOWER COURT JUDICIAL OFFICER:
Woods ADCJ

LOWER COURT DATE OF DECISION:
25 September 2009

COUNSEL:
Mr GA Brady (Applicant)
Mr PA Leask (Respondent)

SOLICITORS:
Benjamin & Leonardo Criminal Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
sentence
pleas of guilty
indecent assault by 39-year old male on 14-year old girl
offence involved kissing on lips and cuddling
three offences of commit act of indecency towards victim
offender sent images of his erect penis to victim by multimedia text message via mobile telephone
offender had honest but unreasonable belief that victim was over 16 years
victim with limited intellectual capacity
offender with limited cognitive capacity and limited social skills
relevance of standard non-parole period for indecent assault offence
failure by sentencing Judge to engage in assessment of objective seriousness concerning all offences
error established
lesser sentences warranted in law after proper assessment of objective seriousness of offences and subjective circumstances of offender
appeal allowed

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Veen v The Queen (No. 2) (1988) 164 CLR 465
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Hoadley (NSWCCA, 14 September 1990, BC9002004)
R v Duffy [1999] NSWCCA 321
R v McEvoy [2010] NSWCCA 110
Dunn v R [2010] NSWCCA 128
Hristovski v R [2010] NSWCCA 129
R v Sellars [2010] NSWCCA 133
Phan v R [2010] NSWCCA 8
Porter v R [2008] NSWCCA 145
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Nguyen v R [2007] NSWCCA 14
R v XX [2009] NSWCCA 115
Maldonado v R [2009] NSWCCA 189
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
R v Dagwell [2006] NSWCCA 98
Hudson v R [2008] NSWCCA 90
R v PGM [2008] NSWCCA 172; 187 A Crim R 152
Kenny v R [2010] NSWCCA 6
R v Barrass [2005] NSWCCA 131
Director of Public Prosecutions v Eades [2009] NSWSC 1352
DCU v State Parole Authority of New South Wales [2006] NSWSC 526
Lee v State Parole Authority of New South Wales [2006] NSWSC 1225
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Cage [2006] NSWCCA 304

TEXTS CITED:
Report of New South Wales Sentencing Council, "Penalties Relating to Sexual Assault Offences in New South Wales", August 2008

DECISION:
1.  grant leave to appeal against sentences imposed at the Dubbo District Court on 25 September 2009 granted.
2.  Appeal allowed and sentences quashed.
3.  For the offence under s.61N(1) Crimes Act 1900 committed on 26 January 2009, the Applicant is sentenced to a fixed term of imprisonment for three months commencing on…

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Corby v R [2010] NSWCCA 146
Case
[2010] NSWCCA 146
Decision Date

CaseChat Overview and Summary

The applicant, Corby, appealed against the sentence imposed by the District Court of New South Wales, following his pleas of guilty to three offences of indecent assault on a 14-year-old girl with limited intellectual capacity. The court was required to determine whether the sentence was appropriate in light of the objective seriousness of the offences and the subjective circumstances of the offender. The applicant had an honest but unreasonable belief that the victim was over 16 years old, and he had limited cognitive capacity and social skills. The legal issues included whether the sentencing judge had properly assessed the objective seriousness of the offences and whether the sentence was commensurate with the crimes committed.

The Court found that the sentencing judge had not adequately assessed the objective seriousness of the offences, which was an error of process. The court observed that while such an error did not necessarily mean the sentence was inappropriate, it was necessary for the sentencing judge to engage in a process of fact-finding to assess the objective seriousness of the crimes. The Court concluded that a lesser sentence was warranted in light of the proper assessment of the objective seriousness of the offences and the subjective circumstances of the offender. Corby's appeal was allowed, and the case was remitted to the District Court for resentencing.

The Court ordered that the case be remitted to the District Court for resentencing, taking into account the objective seriousness of the offences and the subjective circumstances of the offender.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The total effective sentence imposed was one of imprisonment for three-and-a-half years with a non-parole period of two years.Facts of Offences An Agreed Statement of Facts was tendered at the sentencing hearing. It revealed the following facts. The Applicant, then 39 years’ old, committed the offences against the victim, a 14-year old girl, in the early months of 2009. The Applicant and the victim lived in a town in the central west of New South Wales. The Applicant had known the victim’s family for about three-and-a-half years at the time of the offences and was a friend of the victim’s father. The victim had limited intellectual capacity and attended a special-needs class for children of low intellectual capabilities at the local high school. According to the Agreed Statement of Facts, the Applicant had been in love with the victim and the victim had been reciprocating his feelings. The Applicant had been aware that it was inappropriate to have a relationship with the victim, and that the victim’s parents would not have approved of their relationship. The Applicant encouraged the victim to keep their relationship a secret. On a school day in early 2009 (some time after the commencement of the school year and before 27 February 2009), the Applicant picked up the victim during lunchtime and drove her to his house in his vehicle. In the lounge room of the Applicant’s house, the victim ate a meat pie whilst the Applicant fed his cow in the backyard. Shortly after, the Applicant came back into the lounge room, sat next to the victim and kissed her on the lips and cuddled her (the s.61M(2) offence). Thereafter, the victim returned to school. On 27 February 2009, the DOCS Help Line received a report in relation to the Applicant and the victim, and police commenced investigations thereafter. During these investigations, the victim’s mobile phone was seized as an exhibit. The Applicant had given the mobile phone to the victim around Christmas 2008. The screen saver on the mobile phone was a photo of the Applicant taken by the victim. On the mobile phone, approximately 150 text messages were found to have been sent by the Applicant to the victim, with the general theme being the Applicant’s love towards the victim and their arrangements to meet each other. Also found on the mobile phone were three multi-media text messages of a man’s erect penis. These images were sent on 26, 27 and 30 January 2009 (the three s.61N(1) offences). The victim was interviewed in relation to these matters on 9 March 2009. The next day, the Applicant was arrested and cautioned at his home and was conveyed to the Narromine Police Station. He participated in a recorded interview with police and admitted that he kissed the victim on her lips and cuddled her. The Applicant admitted that he had sent the three multi-media text messages to the victim, with the image in each case depicting his own erect penis. The Crown tendered at the sentencing hearing a report dated 2 September 2009 of Mr Greg Tyrer, psychologist, concerning the victim. Mr Tyrer conducted a WISC-IV cognitive assessment test, with the victim scoring lower than 99 out of 100 individuals her age on each of the verbal, performance and full-scale scores. He concluded that the victim had intellectual functioning that falls into the extremely low range of developmental disability, below more than 99% of the population of her age. He observed that there was no significant difference between her verbal and performance scores, indicating that this assessment was a reasonable measure of her current (as at 2 September 2009) functioning and intellectual potential. Mr Tyrer observed that estimates of the victim’s adaptive behaviour skills suggested that she was making very positive use of the family and community support available to her, in terms of her day-to-day adaptive behaviours.

Evidence

Evidence Before The Court

Thus, the subjective evidence before the District Court suggested that the Applicant was a socially isolated man of limited intelligence who had devoted his time between 1999 and 2007 as the full-time carer for his seriously ill mother. It appears that the Applicant had not coped well following the death of his mother in 2007. Evidence and Submissions in the District Court Before turning to the grounds of appeal, it is appropriate to refer to evidence adduced at the sentencing hearing and certain submissions made concerning the objective seriousness of the offences. As will be seen, a central challenge to the sentences in this case is that the sentencing Judge failed to engage in a process of fact finding leading to an assessment of the objective seriousness of the Applicant’s crimes. As already mentioned, the Applicant gave evidence at the sentencing hearing on 17 September 2009. In evidence in chief, the Applicant said that he believed that the victim was 16 years’ old at the time of his relationship with her because that is what she had told him (T9.30, T20.15). Although asserting a belief that the victim was 16 years’ old at the relevant time, the Applicant readily conceded in evidence in chief that the belief was not a reasonable one in the circumstances (T9-10). In the course of his evidence in chief, the Applicant was shown a digital photograph on his mobile phone which he said had been sent to him by the victim about the end of February 2009. The photograph carried a caption “Babluv 16” (T10). Another photograph bearing the same caption was shown to the Applicant, and he said that that photograph had been sent to him by the victim about three or four weeks before his arrest on 10 March 2009 (T11). The Applicant said in evidence that he believed that the number “16” in the caption indicated the victim’s age (T12). He was asked by his counsel during evidence in chief (T12-13):“Q. You’re now aware that you’d involved yourself with a 14 year old?A. Yes I am now.Q. How do you feel about involving yourself with this young teenage girl? What do you feel about it now?A. I feel - I feel bad. Like I shouldn’t have done anything like that.Q. Are you going to do anything like this ever again?A. No.Q. Have you done anything like this ever before?A. No.Q. Why should his Honour accept that you won’t do this again at some stage?A. I wouldn’t never ever do anything like that again. It was just a mistake like I just sort of I wanted a friend really to talk to.Q. And why do you think you chose to become involved with this girl?A. Well she kept on ringing me up and calling me and talking to me all the time and wanting to go out with me and that.Q. All right so you were friends with her at stage [sic], is that right?A. Yeah.Q. Nothing more than friends?A. We were just friends.Q. All right and then at some stage it moved to more than friendship?A. Yes.Q. And you as an adult made a choice step [sic] from more than friendship and into a relationship didn’t you?A. Yes.Q. And you accept as an adult that whoever was ringing who, you were responsible for that weren't you?A. Yeah.Q. You’re responsible for your own decisions as an adult aren’t you?A. Yes.Q. And how do you feel about the decision or choice that you made at that point?A. How do I feel?Q. Yeah?A. I feel like I’ve done wrong and I shouldn’t never ever done it and I feel guilty for doing it.”

Decision

Reasons for decision

The Crown acknowledged that no express findings were made concerning the objective seriousness of the offences. It was submitted, however, that the sentencing Judge’s assessment of the objective seriousness of the offences could be inferred from the sentences actually imposed for these offences and that the sentences were appropriate for the offences. Decision The Applicant stood for sentence for an offence which carried a standard non-parole period, together with several offences which did not. Given the Applicant’s plea of guilty, the standard non-parole period for the s.61M(2) offence applied as a guidepost or reference point only: R v Way [2004] NSWCCA 131; 60 NSWLR 168. However, as many decisions of this Court have made clear, it was appropriate for the sentencing Judge to make a finding concerning the objective seriousness of the s.61M(2) offence, to assist an assessment of the significance in the particular case of the standard non-parole period as a guidepost or reference point. Further, the common law duty to give reasons for imposition of sentence called for some assessment of the objective seriousness of the s.61M(2) offence and the s.61N(1) offences: R v Hoadley (NSWCCA, 14 September 1990, BC9002004, page 3); R v Duffy [1999] NSWCCA 321 at [11]. A number of submissions had been made in the District Court on these issues. This Court has made clear that the assessment of objective seriousness for the purpose of sentence for a standard non-parole period offence does not require an elaborate verbal formula: R v McEvoy [2010] NSWCCA 110 at [89]; Dunn v R [2010] NSWCCA 128 at [19]-[21]; Hristovski v R [2010] NSWCCA 129 at [35]-[38]; R v Sellars [2010] NSWCCA 133 at [11]-[14]. In R v McEvoy, Simpson J at [89] referred to an omission to make a finding concerning the position of an offence on the range of objective seriousness as an error of process, and observed that it did not necessarily follow that there was some error in the imposition of the sentence imposed. Even if such an error of process has occurred, a sentence may well lie within the range of the sound exercise of sentencing discretion: Phan v R [2010] NSWCCA 8 at [11], [16]; Dunn v R at [20]. These decisions reflect the need for a practical approach to be taken by this Court in assessing remarks on sentence, with an emphasis upon substance (and the resulting sentence) and not just matters of form. That said, the law requires that a sentencing Judge engage in consideration of matters bearing upon the objective seriousness of a crime for the purpose of determining sentence. The sentencing Judge reserved for a week on the question of sentence and had the opportunity to consider the helpful written and oral submissions on sentence. However, the extracts from the remarks on sentence set out at [38]-[40] above, reveal only general statements concerning this class of offending, without any assessment of arguments, let alone conclusions, concerning the objective seriousness of the Applicant’s offences. The closest his Honour came to consideration of the Applicant’s submissions on objective seriousness was the statement (at [38] above) that it “is all very well saying that the offence involved only touching, however that is exactly what the law is stating”. Of course, indecent “touching” of the victim was an element of the s.61M(2) offence. The submissions made to the Court concerned the nature and extent of the touching in this case. His Honour did not address this issue.

Ratio Decidendi

Legal Principle Established

There was no victim impact statement before the sentencing Judge. However, the report of Mr Tyrer provided some insight into the victim’s circumstances. It may be taken that the victim was adversely affected by the offences, including at the least, a degree of confusion concerning sexual relationship issues.Subjective Factors and Other Considerations On the subjective side, the Applicant is now 41 years of age. He has no prior history of sex offending. There has been a history of alcohol abuse which has brought him into conflict with the criminal law. The Applicant’s sisters are strongly supportive of him and will provide assistance to him upon his release from custody. The Applicant had been devoted to the care and assistance of his ill mother between 1999 and 2007, and it seems clear that, in several respects, he was languishing following her death. The present offences occurred in that context. An assessment of the risk of reoffending by reference to the Static-99 test only must be approached with caution. It is a common tool in risk assessment of sex offenders, although it forms only part of the process: DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [80]. A complete process of risk assessment involves a combination of static (historical and non-changeable) factors and dynamic (changeable) risk factors: Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 at [26], [45]. To the extent that risk assessment is relevant to sentence and the protection of the community, it is appropriate to have regard to all the evidence, including the psychological report of Ms Brown concerning the Applicant. In a sense, Ms Brown’s report provides a type of dynamic risk assessment to be considered in conjunction with the Static-99 assessment. Bearing in mind that the Applicant has no prior history of sex offending and taking into account the context in which the present offences occurred, I do not think that there is a significant risk of reoffending, in particular if the counselling and treatment recommended in his case occurs and the social support of his family is provided. It is necessary to keep in mind as a guidepost or reference point, the standard non-parole period of eight years applicable to the s.61M(2) offence. I have made a finding that this offence lies towards the bottom of the range of objective seriousness for this class of offence. There are significant subjective factors operating in the Applicant’s favour on sentence. The Applicant pleaded guilty to these offences in the Local Court and was committed for sentence. A discount of 25% for the utilitarian value of his pleas ought be applied once again, as it was in the District Court. I do not think that the Applicant is assisted by the possibility that the s.61M(2) and s.61N(1) offences could have been dealt with to finality in the Local Court. The Applicant was to be sentenced for the 61M(2) offence which related to the s.61N(1) offences. It was clearly appropriate that the Applicant be sentenced in the District Court for all offences, so that the sentences could reflect his total criminality. The theoretical prospect that the offences could have been dealt with in the Local Court does not assist the Applicant on sentence: R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 45-48 [76]-[90]; R v Cage [2006] NSWCCA 304 at [31].