Enriquez v R

[2012] NSWCCA 60

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Frederick Paval ENRIQUEZ v Regina [2012] NSWCCA 60

Hearing dates:

20/03/12

Decision date:

11 April 2012

Before:

McClellan CJ at CL at 1;
Davies J at 2;
Garling J at 3

Decision:

(1) Leave to appeal granted

(2) Appeal dismissed

Catchwords:

CRIMINAL LAW - Sentencing appeal - Aggravated sexual assault - Victim 15 year old step-daughter at home - No other adult at home - Remarks on victim's future consequences based on general knowledge not evidence - No error finding not of good character - No error not entitled to mitigation by reason of past record - Sentence not manifestly exercise - Appeal dismissed

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:

R v Allpass (1993) 72 A Crim R 561
R v Scott [2003] NSWCCA 28

Category:

Sentence

Parties:

Frederick Paval Enriquez (applicant)
Regina (respondent)

Representation:

G Corr (applicant)
T Smith (respondent)
Ford Criminal Lawyers (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s):

CCA 2009/238917

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2011-02-21 00:00:00

Before:

English DCJ

File Number(s):

2009/238917

Judgment

1. MCCLELLAN CJ at CL: I agree with Garling J.

1. DAVIES J: I agree with Garling J.

1. GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court by her Honour Judge English, on 21 February 2011.

1. The applicant Frederick Paval Enriquez pleaded guilty before English DCJ to one offence contrary to s 61J of the Crimes Act 1900.

1. The offence occurred on 22 October 2009, when Mr Enriquez had sexual intercourse with TF without her consent, knowing that she was not consenting and in circumstances of aggravation, namely that TF was person under the age of 16 years.

1. The maximum penalty for the offence is 20 years imprisonment. A standard non-parole period of 10 years is applicable.

1. As well as the offence to which he pleaded guilty, the applicant asked English DCJ to take into account one further charge of attempted aggravated sexual intercourse without consent, which was placed upon a List of Additional Charges (Form 1) pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.

1. The sentencing Judge imposed an overall sentence of 8 years and 6 months imprisonment with a non-parole period of 6 years commencing on 14 April 2010.

Facts

1. A Statement of Agreed Facts was tendered to the sentencing Judge. A brief summary of these facts is set out below.

1. In 1998, TF's mother became involved in a relationship with the applicant. They lived together with TF and her siblings at St Clair until September 2008 when the relationship between TF's mother and the applicant ended.

1. About a year later, in October 2009, TF who was then 15 years old, was at home looking after her two siblings whilst her mother was at work on nightshift.

1. TF, on the evening of Wednesday 21 October 2009, went to sleep in her mother's bedroom. At about 3am on Thursday 22 October 2009, TF woke to find the applicant standing next to the bed touching her leg. She got out of the bed and ran to the bedroom door, but the applicant closed the door and prevented her from escaping.

1. The applicant then removed his penis from his shorts and attempted to force TF to engage in fellatio. She pushed him away but did not call out because she did not want her brother to hear. This conduct formed the offence of attempted aggravated sexual assault which was placed on the List of Additional Charges (Form 1).

1. The offender left the room and TF believed he had left the residence. She returned to bed and fell asleep.

1. A short time later, TF awoke to find the applicant standing at the end of the bed without any clothes on. The applicant closed and locked the bedroom door. He then climbed into the bed where TF had been sleeping. She tried to move away from him, but he took hold of her physically and prevented her from getting off the bed. He then forcibly removed her underwear. TF resisted until her legs cramped and she could no longer prevent the applicant from removing her underwear. The applicant then lay on top of TF, pinning her to the bed with his arm and then engaged in a penetrative act of penile-vaginal intercourse. This conduct constituted the offence to which the applicant pleaded guilty.

1. TF ran away and locked herself in the toilet, and when she believed that the applicant had left, she returned to the bed and again fell asleep.

1. The applicant was discovered naked in bed next to TF the next morning when TF's mother returned from work.

1. TF was taken to hospital for a medical assessment, police were notified and investigations were undertaken.

1. On 28 October 2009, the applicant attended the police station of his own volition, where he was placed under arrest.

Applicant's Submissions on Sentence

1. The applicant agreed with the facts to which I have just made reference. On sentence, he gave evidence himself and relied upon the contents of a report from a clinical psychologist, Mr Tim Watson-Munro. As well, submissions were made on his behalf by his counsel.

1. The applicant in his evidence accepted his responsibility for what occurred and proffered publicly an apology to TF. He denied any memory of what had happened that night, but accepted that by reason of the fact that his DNA was found in semen detected in swabs taken from TF, that he was the person who had undertaken the assault.

1. He gave evidence to the sentencing Judge that he had a drug problem, that for a period of about two years leading up to the offence he had been using ice. However, he made it clear that he was not using his drug taking as a reason for the reduction in his culpability for the offence.

1. It would appear from Mr Watson-Munro's report that the applicant had long-standing symptoms of depression, anxiety and low self-esteem and was a person who had, for many year prior to this offence, a long-standing gambling addiction.

1. Mr Watson-Munro concluded his report in these terms:

"It is clear that he has been suffering from a broad band of symptoms reflective of an Adjustment Disorder according to DSM-IV TR criteria. In addition, he has previous suffered from severe Substance Abuse Disorder involving primarily 'Ice' which is now in partial remission as well as a Gambling Addiction in the past. ... His current situation and his remorse are aggravating his symptoms of depression, anxiety and self-esteem."

1. The following subjective matters were before the sentencing Judge. The applicant was born in the Philippines in March 1970. He has two sisters who live in the United States of America. He came to Australia at the beginning of Year 5 at the age of 11 and had difficulty making the necessary cultural adjustment, largely because he spoke no English and he was exposed to a divergent society. He continued his schooling until he completed his HSC at Westfield High School. He was not an academic student but gained employment after completing school and remained employed in a number of jobs over the years until about 6 months prior to his arrest. By that time, he found it impossible to remain at work because of his drug addiction.

1. During the sentencing hearing, his former partner, Ms Bell, with whom he had two sons, who were 16 and 15 at the time, gave evidence. Although their relationship had long since ceased, she remained supportive of the applicant and visited him regularly in jail, including taking his mother and his sons to visit him.

1. Ms Bell gave compelling evidence about the applicant's remorse, and his continuing attempts to be a father to his teenage children.

1. In the course of submissions, the sentencing judge was informed that after his initial arrest, the applicant had been in custody from 28 October 2009 to 15 February 2010, when he was released on bail. He remained on bail until he was rearrested for a breach of conditions of bail on 2 August 2010. He remained in custody at all times after that re-arrest.

1. The effect of this broken pre-sentence custodial history was that the sentence was backdated to reflect his time spent in custody. It was for that reason that her Honour, without complaint in this Court or below, fixed the commencement date of the applicant's sentence as being 14 April 2010.

Other Subjective Matters

1. The applicant was born on 20 March 1970 and was aged 39 at the time of the offence.

1. He had a history of minor crimes. These minor crimes were dealt with by way of fines, an order for compensation, and a bond for a period of 9 months with respect to a motor traffic offence.

1. The applicant told Mr Watson-Munro that he had been drug free after he was bailed on 15 February 2010, and claimed to Mr Watson-Munro that he had remained drug free during the time he had been returned to custody.

Remarks on Sentencing

1. The sentencing Judge found that the applicant's criminal behaviour was reprehensible. In dealing with the seriousness of the criminality, her Honour noted that the offence had occurred in TF's home, and that, because of the relationship that existed with the applicant as her stepfather, TF was under his authority because he had been a person who had been the head of the household. The sentencing Judge found that ordinarily TF was required to do what she was told by the applicant in the normal course of the family situation. This was an abuse of trust.

1. Her Honour found that the applicant knew that there was no adult in the house at the time he visited the house to engage in the conduct that he did. The sentencing Judge found that in all of the circumstances TF was a vulnerable person.

1. Her Honour concluded that the offence was carried out for the applicant's own sexual gratification and for no other reason. She concluded that the offence fell within the mid-range of offences.

1. Her Honour accepted that the applicant had long-standing symptoms of depression, anxiety and low self-esteem but concluded that these were not matters that would make the applicant a person for whom less weight should be given to the principle of general deterrence.

1. Her Honour noted that the applicant was not a person of previous good character by reason of his criminal history. However, she found that that record did not aggravate the offence, but rather tempered any leniency to which the applicant would otherwise be entitled.

1. In summary, she said of the applicant's offence:

"This appears to be an opportunistic offence to prey upon his step-daughter for his own sexual gratification in circumstances where aid was not readily available to her had she called out for help."

1. Her Honour noted that the applicant had entered a plea of guilty, but concluded, in line with the Crown's submissions, that it had not been entered at the first available opportunity but nevertheless still had significant utilitarian value. She allowed a 15 per cent discount to the applicant by reason of that plea.

1. She found that the applicant was remorseful and contrite and that he had good prospects of rehabilitation that would require attendance at drug and gambling counselling to ensure the risk of relapse was minimised.

1. Her Honour concluded that there was a need to ensure that the penalty imposed reflected not just the offence to which the applicant had pleaded guilty but also to the offence that was placed on the Form 1.

1. Finally, her Honour found special circumstances by reason of the applicant's age, the fact that he was being held in custody for the first time and that he would need a lengthier than normal period of supervised parole to assist with his rehabilitation.

Grounds of Appeal

1. Four grounds were contained in the Notice of Grounds of Appeal filed by the applicant. They were:

(1)   that her Honour erred in finding that the sentences were above mid-range in terms of seriousness;

(2)   that her Honour made findings of fact which were not based on any evidence;

(3)   that her Honour made a finding that the applicant was not a person of good character and was therefore not entitled to leniency on that basis;

(4)   that both the head sentence and the non-parole period were excessive.

Ground 1 - Erroneous Finding on Objective Seriousness

1. This Ground, which asserted that the learned sentencing Judge had found, erroneously, that the applicant's criminality was above the mid-range of seriousness, was abandoned at the hearing of the appeal.

1. This was unsurprising since her Honour made no such finding.

1. The Ground requires no further consideration.

Ground 2 - Findings of Fact not based on any Evidence

1. The applicant submits that included in her Honour's Remarks on Sentence, are the following remarks, which were not supported by any evidence before the sentencing Judge:

"This young girl will suffer for the rest of her life from the vile actions of this offender. ... The impact upon her in later life is likely to be an inability to trust men, to form satisfactory relationships and it may well impact upon her ability to bond with her own children. All through no fault of her own."

1. It was submitted that, in short, there was no evidence to support any of these future possibilities. It may be accepted that there was no specific evidence provided with respect to TF that would support these conclusions.

1. However, having regard to the nature of this offence, and the well-known effects of an offence of this kind on the development of teenagers and young adults, I think that it was open to her Honour to draw on her general experience of the consequences of an offence of this kind to raise any of these matters as a prospect for TF in the future.

1. Her Honour's approach accords with, and is supported by, the judgment of this Court in R v Scott [2003] NSWCCA 28 at [19]. See also R v Allpass (1993) 72 A Crim R 561 at 565.

1. I can detect no error in her Honour referring in such terms to the possible outcome of the criminal conduct upon TF's future psychological well being.

1. I would not uphold the appeal on this Ground.

Ground 3 - Past Character

1. The applicant submitted that the conclusion that the applicant was "not a person of otherwise good character" was not fairly open to the sentencing Judge because such remarks were based on his prior criminal history, which was, it was submitted, a minor one.

1. The applicant submitted that the offences of which he had been convicted, in the past, were

"... not of such a nature nor of such magnitude as to disentitle him from leniency."

The applicant submitted that this was an error in the sentencing process.

1. It seems to me that what her Honour was doing in making these remarks, was drawing to attention to the fact that under s 21A(3)(f) of the Crimes (Sentencing Procedure) Act, a matter to be taken into account in mitigation of penalty is the previous good character of any offender. What her Honour was remarking was that, because the applicant was not of previous good character because he had a criminal record, there was no basis upon which there could be any mitigation of penalty by reason of this feature. She specifically noted that his past criminal history did not aggravate the offence.

1. I can detect no error in her Honour's dealing with this issue.

1. I would not uphold the appeal on this Ground.

Ground 4 - Manifest Excess

1. It was submitted that both the non-parole period and the balance of term were manifestly excessive. This submission in large part relied upon statistics from the Judicial Commission of NSW.

1. Considerable circumspection is necessary in taking into account and relying upon, statistics of the kind that the applicant provides. In particular, with offences against s 61J of the Crimes Act, there is, commonly, a significant variation between the facts and objective criminality of each offence.

1. It is necessary for this Court when considering a particular sentence to have specific regard to the individual features which underpin the particular sentence. Obviously, the objective seriousness of the criminality involved and the culpability of the offender assume principal importance.

1. As the sentencing Judge correctly noted, this was a serious offence. There were a number of aggravating factors relating to TF's age, the fact that she was in her own home, the fact that the applicant knew that there would be no adult present and that accordingly, TF was vulnerable at the time. The previous familial relationship of stepfather and stepdaughter also placed TF in a vulnerable position when compared with the applicant. The conduct of the applicant amounted to a breach of trust.

1. The offence that the sentencing Judge was asked to take into account on the Form 1 was similarly a very serious attempt at an aggravated sexual assault. If nothing else, TF's response to this attempt would have placed the applicant fairly on notice that what he was doing was wrong and that TF was having no part in any of it.

1. But the applicant was not deterred, he returned and then perpetrated what is, on the agreed facts, a violent attack and sexual assault on TF.

1. Accepting that the applicant has good prospects of rehabilitation, I am unable to conclude that the sentence imposed by the learned sentencing Judge was so far outside the appropriate range as to justify the description "manifestly excessive" and that there must therefore have been a failure to correctly exercise the sentencing discretion.

1. Nor am I persuaded that any lesser sentence is warranted as a matter of law: s 6(3) Criminal Appeal Act 1912.

1. I would not uphold the appeal on this Ground.

Orders

1. I propose the following orders:

(1)   Leave to appeal granted

(2)   Appeal dismissed.

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Decision last updated: 11 April 2012