CS v The Queen

[2014] NSWCCA 229

Court of Criminal Appeal

New South Wales

Case Title:	CS v R
Medium Neutral Citation:	[2014] NSWCCA 229
Hearing Date(s):	2 September 2014
Decision Date:	21 October 2014
Before:	Beazley P at [1]; R A Hulme J at [2]; Garling J at [50]
Decision:	1. Leave to appeal against sentence granted 2. Appeal allowed in part. 3. Quash the dates of commencement of each sentence and specify new commencement dates as follows: Court 5 - 23 February 2013 Count 1- 23 February 2014 Counts 2 and 3 - 23 February 2015 Count 4 - 23 February 2017 Count 6 - 23 August 2017 4. The applicant will become eligible to be released on parole when the last non-parole period expires on 22 August 2020.
Catchwords:	CRIMINAL LAW - appeal against sentence - aggravated sexual intercourse with child between 10 and 16 - aggravated act of indecency with child under 16 - failure to take into account short period of pre-sentence custody - special circumstances found primarily to allow for accumulation - overall sentence did not fail to reflect special circumstances - no hierarchy regarding forms of sexual intercourse but not impermissible to impose heavier sentence to reflect nature of intercourse and surrounding circumstances - individual sentences and overall term not unreasonable or plainly unjust
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Achurch v The Queen [2014] HCA 10; 306 ALR 566 BT v R [2012] NSWCCA 276 Caristo v R [2011] NSWCCA 7 CM v R [2013] NSWCCA 341 Collier v R [2012] NSWCCA 213 Fina'i v R [2006] NSWCCA 134 Hejazi v R [2009] NSWCCA 282; 217 A Crim R 151 Ibbs v R [1987] 163 CLR 447 MLP v R [2006] NSWCCA 271; 164 A Crim R 93 R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1 R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 SS v R; JC v R [2009] NSWCCA 114
Category:	Principal judgment
Parties:	CS (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: Mr T Gartelmann (Applicant) Ms S Dowling SC (Crown)
- Solicitors:	Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):	2011/301237
Decision Under Appeal
- Before:	Conlon SC DCJ
- Date of Decision:	26 February 2013
- Court File Number(s):	2011/301237

JUDGMENT

1. BEAZLEY P: I agree with R A Hulme J.

2. R A HULME J: CS (the applicant) was sentenced in the District Court at Wollongong on 26 February 2013 by his Honour Judge Conlon SC to imprisonment for 10 years 6 months with a non-parole component of 7 years 6 months in respect of five offences of aggravated sexual intercourse with a child aged between 10 and 16 (s 66C(2) Crimes Act 1900 (NSW)) and one offence of aggravated act of indecency with a child under 16 (s 61O(1)).

3. Brief details of each offence and the individual sentences are as follows:

Offence	Period of offence	Particulars	Maximum penalty of imprisonment	Sentence
Count 5 Aggravated act of indecency with child under 16	1.9.01-31.12.01	Photographing the complainant while she was naked. Complainant aged 14.	5 years	Fixed term of 1 year 6 months from 26.2.13
Count 1 Aggravated sexual intercourse with child between 10-16	1.10.97-30.1.98	Cunnilingus. Complainant aged 10.	10 years	Fixed term of 2 years from 26.2.14
Counts 2 and 3 Aggravated sexual intercourse with child between 10-16	1.6.00-31.8.00	Cunnilingus. Complainant aged 12.	10 years	3 years with non-parole period 2 years from 26.2.15
		Penile-vaginal intercourse. Complainant aged 12.	10 years	5 years with non-parole period 3 years from 26.2.15
Count 4 Aggravated sexual intercourse with child between 10-16	1.3.01- 2.6.01	Fellatio. Complainant aged 14.	10 years	3 years with non-parole period 2 years from 26.2.17
Count 6 Aggravated sexual intercourse with child between 10-16	1.5.02	Penile-vaginal intercourse. Complainant aged 14.	10 years	6 years with non-parole period 3 years commencing 26.8.17

Facts

1. The facts of the offences were described in a statement of agreed facts which included that they were "representative of ongoing conduct between the offender and [the complainant] over the time period".

2. The complainant was born in June 1987 and was aged between 10 and 14 when the offences occurred. She and her family moved from Australia to Saudi Arabia in 1994. The applicant and the complainant's mother were working at the same school in Saudi Arabia and he became good friends with the complainant's family. He moved into their compound and continued living there for some time.

3. After separating from her husband in 1997, the complainant's mother moved back to Australia with her children. The applicant followed about six months later and moved into the family's home in Bulli, where he had his own room.

4. Towards the end of 1997 when the complainant was 10 she woke up one night and, after failing to get back to sleep, joined the applicant in his bed. She regularly did this when she had trouble falling to sleep in Saudi Arabia. She went back to sleep but at some stage awoke to find the applicant removing her clothes. This had not happened before; she did not understand what was going on and did not say anything. The applicant got under the sheets and performed cunnilingus (count 1). The complainant said she just lay on the bed wondering what was happening.

5. One day in the winter of 2000 when the complainant was 12 she was getting ready for school but the applicant told her to hide and wait. Her siblings walked to school and he drove her mother to her workplace. When he returned home, he and the complainant went to a bedroom where he told her to undress. He also undressed and proceeded to perform cunnilingus as she lay on the bed (count 2). After doing this for some time he moved up and had penile/vaginal intercourse "until he finished" (count 3).

6. On a Saturday afternoon in March - May 2001 when the complainant was 14, her mother was napping and her siblings were out. The applicant entered the kitchen where the complainant was sitting and her out to the lounge room. He lay down with the complainant sitting in front of him. He then indicated that he wanted her to perform oral sex on him. She had not done this before but he had previously explained it to her. She took his penis in her mouth and he began to sigh and moan (count 4). She stopped after a short time because she felt humiliated and degraded and left the room.

7. Towards the end of 2001 when the complainant was 14 there was an occasion when she was getting out of the shower and found the applicant in the bathroom with a Polaroid camera. He instructed her to stand in a suggestive pose and took a photograph. He "was very excited" and led her by the hand to his bedroom. He instructed her to lay on the bed with her legs apart, exposing her vagina, and took a photograph of her in that pose (count 5). She said that she felt very vulnerable and extremely uncomfortable.

8. The final incident occurred on 1 May 2002. The complainant, still aged 14, returned home from school one day to find the applicant alone in the house. They went into his bedroom where he instructed her to take off her underwear. The applicant undressed and then lay on his back on the bed. She climbed on top of him and inserted his penis in her vagina (count 6). They had sexual intercourse for a short period until the noise of the garage alerted them to the fact that her mother and siblings had arrived home. She quickly left the room and went and had a shower.

9. The applicant did not use a condom on any occasion. He had counselled her about having unprotected sex with boys, saying that they would not be so careful to avoid ejaculating inside her.

10. Shortly after the last incident of sexual intercourse the complainant's mother found the photographs referred to in count 5 and confronted the applicant. He moved out of the home but remained in regular contact with the family.

11. The complainant approached the police for the first time in 2010. The applicant was arrested on 15 September 2011 after having made admissions in a covertly recorded telephone conversation with her.

Personal circumstances of the applicant

1. The applicant was one of two children. He was raised by his mother after his parents separated when he was six. He did not have much contact with his father when he was young. He left school after Year 11 and worked with his father in a scientific laboratory. He trained as a forensic toxicologist and subsequently found employment in that field. His father took a position as a biochemist in Saudi Arabia in about 1994-5 and after visiting, the applicant found work in an international school, where he met the complainant's mother.

2. A report of a forensic psychologist was before the sentencing judge. The applicant informed the psychologist that he was not in a de-facto relationship with the complainant's mother. The psychologist also indicated that the applicant reported that the age of the complainant was immaterial to his attraction to her, rather being an extension of his positive emotional relationship with her (a claim the sentencing judge described as alarming). Notwithstanding this the applicant expressed considerable remorse in respect of the offences. The sentencing judge accepted that he was genuinely remorseful.

3. The applicant had been treated for depression for many years. His sister passed away in 2012 after a long battle with alcohol. The applicant was her sole carer for the last few years of her life and had a very close relationship with her profoundly deaf son.

4. There was no history of similar offending; indeed, no criminal history at all. The psychologist indicated that it was difficult to label the applicant with a psycho-sexual disorder and that "there are no other symptoms of such a diagnosis". He noted his history of problems with alcohol and depression and concluded that attention to psycho-sexual matters alone "would not solve his problems". He said "he would benefit from attention for a wide range of issues".

5. Considering all the material, and particularly the fact that the applicant had not since re-offended, the sentencing judge found good prospects of rehabilitation.

Ground 1 - The judge erred in failing to take into account a relevant period of pre-sentence custody

1. The applicant was arrested in Victoria on 15 September 2011. He was extradited to New South Wales and released on bail on 17 September 2011. The earliest of the sentences was ordered to commence on the date of sentencing, 26 February 2013. It appears to have been by oversight that the sentence was not ordered to commence 3 days earlier.

2. A judge is required by s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take into account "any time for which the applicant has been held in custody in relation to the offence". A failure to do so constitutes legal error but does not render the sentence "contrary to law". The error is amenable to correction on appeal, not by way of re-opening the sentencing proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act: Achurch v The Queen [2014] HCA 10; 306 ALR 566. The Crown conceded that this ground should be upheld. The concession was appropriate, notwithstanding that the practical effect upon the overall sentence is quite minimal.

Ground 2 - The judge erred in imposing an overall sentence with an effective non-parole period that fails to reflect the finding of special circumstances

1. Section 44(2) of the Crimes (Sentencing Procedure) Act requires that the balance of the term of a sentence must not exceed one-third of the non-parole period unless the court decides that there are special circumstances for it being more. The sentencing judge found that there were special circumstances:

   "At forty-nine years of age this will be the first time the offender serves a custodial sentence. Partial accumulation will also be required. The combination of these factors is sufficient reason for me to make a finding of special circumstances and to vary the statutory ratio."

2. Where sentences are accumulated it is conventional sentencing practice to adjust the non-parole period of the final sentence so as to ensure, where appropriate, that the usual proportions contemplated by s 44(2) are maintained in the overall sentence: Hejazi v R [2009] NSWCCA 282; 217 A Crim R 151 at [35]-[36] (Howie J).

3. From time to time this Court is faced with arguments about whether a finding of special circumstances has been reflected in the overall result of accumulated sentences. Sometimes it is found that through inadvertence or miscalculation it has not and the Court will be inclined to intervene. But on other occasions it is found that the overall result is precisely what the judge intended and no intervention is warranted. See, for example, Fina'i v R [2006] NSWCCA 134 at [31]-[40]; Caristo v R [2011] NSWCCA 7 at [33]-[37]; and BT v R [2012] NSWCCA 276 at [27]-[33]. In CM v R [2013] NSWCCA 341, with the concurrence of Ward JA and Harrison J, I said:

   "[40] Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflected in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. A recent example of the former may be found in Houri v R [2013] NSWCCA 279; see also Phipps v R [2008] NSWCCA 178; and Stoeski [[2008] NSWCCA 230]. Examples of both varieties of the latter can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40]. Appeals asserting such error are not uncommon, and as Howie AJ remarked in Maglis v R [2010] NSWCCA 247 at [24], their success will often 'depend upon what can be gleaned of the Judge's intention from the sentencing remarks'."

4. The applicant submitted that the intended departure from the "statutory proportion" was given effect in the individual sentences but not in respect of the overall sentence. There was nothing to be achieved by departing from the statutory proportion in relation to the sentences for counts 2, 3 and 4 because the balance of terms of those sentences were almost completely subsumed by the non-parole period of the sentence for count 6.

5. It was also submitted that there was no point in the judge finding that there were special circumstances beyond just the partial accumulation of sentences if it were not to be reflected in the overall sentence. Accordingly, by inference, the judge must have intended a greater degree of departure from the statutory proportion in the overall term than was in fact achieved.

6. Reference was made to SS v R; JC v R [2009] NSWCCA 114 which was said to involve "essentially indistinguishable circumstances from those in the present application". Individual sentences were imposed which comprised non-parole periods that were 66.67 per cent of the head sentence but after partial accumulation of sentences the overall sentence comprised a non-parole component that was 71.43 per cent of the total term. In the present case, the non-parole periods for counts 2, 3, and 4 are 66.67, 60, 66.67 per cent respectively of their head sentences but in the overall sentence the non-parole component is 71.43 per cent of the total term.

7. Submissions were also directed to further reasons why a finding of special circumstances was warranted in this case (delay and the applicant's history of depression). But there was such a finding; the ground is concerned with whether there was error in failing to reflect it in the overall sentence.

8. The Crown submitted that where the ratio between non-parole and parole periods is challenged, the principal focus of enquiry should be whether the non-parole period imposed is the minimum period that the applicant must spend in custody having regard to all the elements of punishment, the objective seriousness of the offence and the applicant's subjective circumstances. The third basis of the finding of special circumstances, partial accumulation, supports the conclusion that his Honour found special circumstances in order to preserve the statutory ratio in relation to the overall sentence, rather than to extend the period on parole to a period longer than three years. In oral submissions, the Crown submitted that a supervision period of three years was adequate to address the mental health issues faced by the applicant.

   Consideration

9. The ratios for the individual counts were altered and the total non-parole period comprised 71.43 per cent of the total term. Although the alteration of the ratios for the individual counts was greater, in my view it is likely that the sentencing judge altered the ratios of the individual sentences for practical reasons; that is to impose sentences with non-parole periods in round figures. For example, the 3 year sentence for count two would have involved a non-parole period of 2 years 3 months if the statutory proportion was maintained but his Honour set the non-parole period at 2 years. The same reasoning may be inferred in relation to the sentences for counts 3 (a non-parole period of 3 years instead of one of 3 years 9 months) and 4 (a non-parole period of 2 years instead of one of 2 years 3 months.

10. The real focus should be upon the non-parole period of the final sentence (count 6) and upon the non-parole component of the total term. The non-parole period for count 6 is 50 per cent of that sentence. The non-parole component of the total term is 71.43 per cent. In relation to the latter, there is an allowance for a 3 year period for supervision under parole. No further period of supervision would be available, even if the parole period was longer: cl 218 Crimes (Administration of Sentences) Regulation 2014 (NSW).

11. I am satisfied that the judge was conscious of the effect of the partial accumulation of sentences upon the proportion of the total term represented by the non-parole component. The primary need for finding special circumstances was the accumulation. He made a substantial adjustment of the non-parole period for the final sentence (count 6) in order to achieve an intended overall result.

12. The additional feature cited by his Honour ("at forty-nine years of age this will be the first time the offender serves a custodial sentence") was really of little weight, and on its own would be a rather dubious basis for finding special circumstances at all: see, for example, Collier v R [2012] NSWCCA 213 at [36] (McClellan CJ at CL). It did have an impact in the overall result but it was appropriately modest, resulting in a reduction of the total non-parole component from the usual 75 per cent with the practical effect being a reduction of 4.5 months.

13. The fact that after announcing the individual sentences the judge announced the total term and the overall non-parole component further confirms that he had fashioned the sentences so as to achieve a result he intended.

14. Finally, I do not (with respect) accept the submission that SS v R; JC v R involved "essentially indistinguishable circumstances from those in the present application". In that case it was concluded that the judge had overlooked the impact that the accumulation of sentences would have upon the finding of special circumstances and there were more cogent reasons for the finding than in the present case. SS was aged 15 at the time of the offences, 17 at the time of sentencing and he was said to have made good progress towards rehabilitation whilst in custody. Even then, the non-parole component of the total term was only reduced by this Court by a further period of 4 months.

15. I would not uphold this ground.

Ground 3 - The sentences imposed on counts 3 and 6 are unreasonable or plainly unjust

Ground 4 - The overall term and effective non-parole period are unreasonable or plainly unjust

1. It is convenient to deal with these two grounds together.

2. The sentences imposed varied from 2 years (count 1), 3 years (counts 2 and 4) to 5 years (count 3) and 6 years (count 6). The applicant submitted that although the differing acts - cunnilingus for counts 1 and 2, fellatio for count 4 and penile-vaginal intercourse for counts 3 and 6 - may have warranted some variation in the sentences, the severity of the sentences for counts 3 and 6 was not justified. There is no hierarchy regarding forms of sexual intercourse and the seriousness of a particular offence depends on all the circumstances: the submissions cited Ibbs v R [1987] HCA 46; 163 CLR 447 at 452; R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [26]; R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1 at [20].

3. Furthermore, there is no apparent rationale for the one year increase between count 3 and count 6. If anything, a lesser sentence was warranted for count 6 given the brevity of the conduct and that the complainant was older. Generally, the younger the child the more serious was the offence: the submissions cited R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [41]-[42]; MLP v R [2006] NSWCCA 271; 164 A Crim R 93 at [22].

4. It was submitted that before the discount for the guilty plea, the nominal starting point for count 3 was more than half the maximum penalty, while that for count 6 was more than two-thirds the maximum. The offences did not disclose especially serious instances of offending conduct, particularly given the range of offending conduct covered by the offence.

5. The Crown submitted that while it is true that the type of sexual penetration is not determinative of the objective seriousness of an offence, it is not erroneous to regard it as a significant factor. Furthermore, count 6 represented the last of many counts of sexual abuse, with the complainant having been groomed to the point where she was an active and enthusiastic participant. It was also submitted at the hearing that the 50 per cent non-parole to parole ratio somewhat undermines the significance of the length of the term.

6. In relation to the final ground, the applicant submitted that the total extent of accumulation of the last sentence upon the first sentence, that is 4 years and 6 months, exceeded what was called for in considering the principle of totality. The overall term and non-parole period similarly failed to properly reflect the principle and are unreasonable or plainly unjust.

7. The Crown pointed to various factors that warranted the overall sentence imposed, such as the maximum penalties for the offences; the duration of the offending behaviour and the variety of sexual acts; the fact that the offences were not isolated incidents; and the applicant's position of trust.

   Consideration

8. Counts 3 and 6 involved penile-vaginal intercourse. The other s 66C(2) counts involved cunnilingus and fellatio. Fullerton J summarised how courts deal with "hierarchies" of sexual offences in R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [26]:

   " ... While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others (see Ibbs v The Queen (1987) 163 CLR 447). This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending to which Simpson J referred in AJP [R v AJP [2004] NSWCCA 434; 150 A Crim R 575] at [24]-[26]."

9. It was open to the judge to impose heavier sentences in respect of counts 3 and 6 based upon the nature of the intercourse they involved. There were a variety of other factors that bore upon the assessment of the sentences as well. The incident with which count 3 was concerned involved two offences; the cunnilingus (count 2) and the penile-vaginal intercourse (count 3) but the sentences for these offences were ordered to be served concurrently. That incident occurred when the complainant was aged 12 and in the context of ongoing sexual activity for over 2 years. The incident with which count 6 was concerned was the final act after over 4 years of ongoing sexual activity with the sentencing judge remarking that "he had so groomed this child that by the time she was about fourteen, having become so conditioned to his predatory conduct, she began to 'consent' to it".

10. The sentencing judge referred to the complainant's victim impact statement which was tendered without objection and was read. After making some observations about its contents he said they "simply serve to highlight the most serious nature of the offending conduct".

11. The objective gravity of these offences was at a high level. The sentencing judge was right to take into account the "gross breach of ... trust" and that the applicant had "substantially exploited the youth of the complainant". He was also correct in rejecting any suggestion that the offending was "opportunistic". Indeed, at the hearing of the application, counsel for the applicant (with his customary responsibility and candour) accepted that his client had acted when opportunity arose, knowing that the complainant had become habituated to his conduct.

12. I accept that the sentences for counts 3 and 6 and the overall term were heavy but I am not persuaded that they were unreasonably so. I would not uphold these grounds.

Orders

1. I propose the following orders:

   1 Leave to appeal against sentence granted

   2 Appeal allowed in part.

   3 Quash the dates of commencement of each sentence and specify new commencement dates as follows:

   Court 5 - 23 February 2013

   Count 1 - 23 February 2014

   Counts 2 and 3 - 23 February 2015

   Count 4 - 23 February 2017

   Count 6 - 23 August 2017

   4 The applicant will become eligible to be released on parole when the last non-parole period expires on 22 August 2020.

2. GARLING J: I agree with R A Hulme J.

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