Hartley v The Queen

[2020] NSWCCA 330

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hartley v R [2020] NSWCCA 330

Hearing dates:

3 December 2020

Date of orders:

11 December 2020

Decision date:

11 December 2020

Before:

Simpson AJA at [1]
Bellew J at [45]
Campbell J at [46]

Decision:

1. Leave to appeal against sentence granted.

2. Appeal allowed, sentence set aside.

3. The applicant be sentenced to imprisonment made up of a non-parole period of 2 years commencing on 24 April 2018 and expiring on 23 April 2020, with a balance of term of 1 year which will expire on 23 April 2021.

Catchwords:

CRIME — Appeals — Appeal against sentence – applicant sentenced in relation to one count of assault with act of indecency on a person aged under 16 years – s 61M(2) Crimes Act – whether sentencing judge erred in finding that offence was “slightly below the middle of the range” of objective seriousness – whether sentencing judge erred in finding that the applicant had an “abnormal sexual disorder which has not abated” – previous sexual offence 29 years earlier – no sexual offending since – where no medical evidence adduced in relation to sexual disorder – whether sentence manifestly excessive – leave to appeal against sentence granted, applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66C(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), Pt 4 Div 1A

Cases Cited:

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Mulato v R [2006] NSWCCA 282

Category:

Principal judgment

Parties:

David James Hartley (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Paingakulam (Applicant)
E Wilkins SC (Crown)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/196479

Publication restriction:

Non-publication of any information or material that may lead to the identification of the complainant

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 November 2019

Before:

Arnott SC DCJ

File Number(s):

2017/196479

Judgment

1. SIMPSON AJA: On 29 July 2019 the applicant was arraigned in the District Court on an indictment that contained five counts (the second and fourth being presented as alternative to the first and third). Counts 1 and 3 alleged aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). Counts 2 and 4 alleged sexual intercourse with a child under the age of 16 (12 or 13 years) contrary to s 66C(1) of the Crimes Act. Count 5 alleged assault with act of indecency on or in the presence of a person under the age of 16 years, contrary to s 61M(2) (since repealed) of the Crimes Act. An offence against subs (2) of s 61M carried a maximum penalty of imprisonment for 10 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) a standard non-parole period of 8 years was applicable. The offence created by s 61M(2) was an aggravated form of the offence created by s 61M(1), for which the maximum penalty was imprisonment for 7 years. The aggravating circumstance was the age of the victim – under 16 years.

2. All offences were alleged to have been committed between 1 January 2015 and 14 November 2015.

3. The applicant entered pleas of not guilty to all counts, a jury was empanelled and a trial proceeded before Arnott SC DCJ. On 12 August 2019 the jury returned a verdict of guilty on the fifth count. It was unable to agree on verdicts in relation to counts 1-4.

4. On 29 November 2019 Arnott SC DCJ sentenced the applicant to imprisonment for 4 years and 6 months, commencing on 24 April 2018, with a non-parole period of 3 years which will expire on 23 April 2021. The applicant seeks leave to appeal against that sentence.

The relevant facts

5. At all relevant times the complainant lived with his family in a Sydney suburb. The applicant lived in the premises next door, which he shared with another man. The applicant and the complainant became friendly; the complainant visited the applicant several times a week to play video games. Other children also visited. The applicant gave the complainant gifts of video game consoles and video games.

6. On an afternoon in the second half of 2015, when he was 13 years of age, the complainant attended the applicant’s home to play video games. Other children who had been present had left, leaving the applicant and the complainant alone. While the complainant was sitting on a lounge playing a video game, the applicant put his hand on the complainant’s leg and tried to pull down his shorts, using both hands. In doing so he used some force. He said to the complainant “don’t worry, just stay here”. The complainant attempted to escape, in fear that the applicant was going to attempt to rape him. He ran towards the front door but the applicant blocked his path and kicked the door shut, causing it to lock. The complainant then ran towards the back door. The applicant took hold of the complainant, bending him over the back of a lounge. The complainant escaped via the back door. He did not immediately report the event and did not do so until mid-June 2017, when he told his older sister what had happened.

The applicant’s personal circumstances

7. Little by way of evidence of personal circumstances was put before the sentencing judge. Some personal history is known. The applicant was born in October 1967 and was 47 or 48 when the offence was committed. He was 52 years of age at sentencing. He has some criminal record, including for offences of offensive behaviour, stealing, unlawful entry, assault and contravention of apprehended violence orders issued for the protection of the complainant. These contraventions were committed after the present offence and involved conduct towards the complainant that was not of a sexual nature (although, on 16 November 2016 the applicant instructed another person to ask the complainant and his sister if they still loved him). On these offences the applicant was sentenced to two partially cumulative six month terms of imprisonment (totalling 10 months) which he served between November 2017 and September 2018.

8. By far the most significant entry on the applicant’s record was an offence of homosexual intercourse with a person under the age of 10 years (7 years), committed in 1986 when the applicant was 19 years of age, to which he entered a plea of guilty. The sentencing remarks in relation to that offence were before the sentencing judge.

Other material

9. Also before the court was a victim impact statement in which the complainant graphically described the impact on him of the offence. He said, for example:

“Every day I sit and try so hard not to think about the assault but it’s impossible my worst nightmare is following me around I wish [there] was a way to escape from reality where I could be like the happy person I used to be where I had a mind filled with anything other than darkness But my reality is I’ll never be the happy person I used to be or want to be because [there] is no way of escaping my own thoughts and memories [There is] no getting over what has happened to me what this man has done to my body”

10. It should be acknowledged that, although the victim impact statement was tendered for the purpose of sentencing in respect of the indecent assault offence only, it appears to have been directed also to the offences the subject of the counts of which the applicant was not convicted. The last sentence extracted tends to confirm that that is so. It cannot be assumed that the single offence of indecent assault, alone, would have had the impact described. The sentencing judge rejected the tender, by the Crown, of a psychological report in relation to the effects of the offence on the complainant, on the ground that it was prepared on the basis of two sexual assaults in addition to the indecent assault of which the applicant was convicted and for which he stood for sentence.

The remarks on sentence

11. The primary judge recounted the facts of the offence and, so far as he was able given the deficiency of evidence, the applicant’s personal circumstances.

12. He found that the offence fell “slightly below” the middle of the range of objective seriousness of offences of its type. He identified a number of matters that contributed to that assessment, including:

• that offences against s 61M(2) cover a broad range of criminal activity;

• that, while the applicant did not actually touch the complainant’s genitals, the offence involved an element of force;

• that the complainant had just turned 13 years of age, an age significantly less than the statutory age of 16 years to which the offence applies;

• that the offence involved a breach of trust because the complainant was a child in the applicant’s home under his care and supervision;

• that the offence occurred over a short space of time and did not involve “skin on skin”;

• that the offence was opportunistic and took advantage of the children across the road having left the house.

13. The sentencing judge rejected a Crown submission that the offence for which the applicant was to be sentenced went beyond the initial incident of the applicant putting his hand on the complainant’s leg and attempting to pull down his pants, and included the subsequent events of the applicant running after the complainant and bending him over the lounge. That, the sentencing judge said, was not how the prosecution case was presented to the jury. The applicant was not to be sentenced for a more serious offence than that with which he was charged.

14. The sentencing judge paid significant attention to the 1986 offence and said:

“The [applicant]’s record of repeat similar offending means that greater weight needs to be given to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist. However, I am mindful of the fact that the 1986 offence occurred some 29 years prior to the present offence and consider, as Sully J expressed and approached it in Bain v R [2006] NSWCCA 79 at [23] that he is ‘entitled to some prudently measured consideration’ to having refrained for a longer rather than a short time before reoffending.”

15. After considering the facts of the offences of contravention of apprehended violence orders, the sentencing judge went on to say:

“[the applicant] has demonstrated no remorse or contrition. I find [the applicant’s] prospects of rehabilitation and not reoffending to be particularly guarded. The reason for this is because of his past criminal history including as it does a conviction for child sexual assault as well as the breaches of the [apprehended violence order] notably that which occurred on 16 November 2016. This suggests an abnormal sexual disorder which has not abated. … ”

16. The sentence imposed did not conform to the statutory ratio between the head sentence and the non-parole period (75%-25%) stated in s 44(2) of the Sentencing Procedure Act. Departure from that ratio requires a finding of special circumstances. The special circumstances found by the sentencing judge were expressed to be:

“the need on [the applicant’s] release from custody to be supervised in the community and for his mental health issues relating to sexual disorder.”

The application for leave to appeal

17. Three proposed grounds of appeal were identified, and pleaded as follows:

“Ground 1:   The sentencing judge erred in finding that the offence was ‘slightly below the middle of the range’.

Ground 2:   The sentencing judge erred in finding that the applicant had an ‘abnormal sexual disorder which has not abated’ and, in turn, using that finding to inform the prospects of rehabilitation and risk of reoffending.

Ground 3:   The sentence imposed was manifestly excessive.”

Ground 1:    Objective seriousness

18. On behalf of the applicant it was contended that the finding that the offence lay “slightly below” the middle of the range of objective seriousness was not open and that the offending “could have only been found to be at the low end of the range for offences of its kind”. Two particular aspects of the sentencing judge’s reasoning were pinpointed as indicative of error. The first lay in the sentencing judge’s reference to the age of the complainant (13 years) as “significantly less than the statutory age of 16 years to which the offence applies being an aggravating factor”.

19. It was submitted that, contrary to his Honour’s view, the complainant’s age was towards the upper end of the range of ages encompassed by s 61M(2). The significance of the complainant’s age, as set out above, was that it took the offence into the aggravated form as provided by s 61M(2), with the penalty increased from 7 years to 10 years. The argument was that because, unlike some other provisions in the Crimes Act (which provide for graduated maximum penalties, dependent on the age of the victim, reflecting perceived graduated levels of seriousness), section 61M(2) provided only for victims under the age of 16 and, accordingly, the range to which it applied was the whole range of ages up to 16 years. On that approach, it could be said that 13 years of age is towards the upper end of the range of ages encompassed.

20. The argument might have some merit if the sentencing judge had placed the complainant somewhere on a scale, towards the bottom of a range of ages contemplated. But he did not. He merely said that the complainant’s age was “significantly less than the [upper limit] of 16 years”. It is incontestable that 13 years is “significantly less” than 16 years. The sentencing judge said, and intended, no more than that.

21. The second asserted error was that the sentencing judge failed to take account of some “salient facts”, which emerge from the case law as considerations relevant to the assessment of objective seriousness. These were identified as:

• the degree of physical contact (particularly, whether there is contact with intimate bodily areas);

• the degree (if any) of force used;

• the length of the offending conduct;

• whether the offence was planned or impulsive;

• the age differential between the victim and the offender;

• the relationship between the victim and the offender;

• whether threats were used to secure consent or ensure silence.

22. I accept that all of these are relevant considerations in the assessment of objective seriousness. I do not accept that the sentencing judge overlooked them. Indeed, as set out above, in the outline of the sentencing remarks, the sentencing judge referred, specifically, to the precise conduct that constituted the offence and rejected a Crown submission that would have expanded it to incorporate immediately subsequent events (the applicant attempting to block the complainant’s exit). The sentencing judge expressly referred to:

• the fact that the offence “involved an element of force”;

• that the offence took place over a short space of time;

• that the offence was opportunistic;

• the age of the complainant (but not the age of the applicant – to have highlighted this differential would not have diminished the assessment of objective gravity);

• the relationship of the applicant and the complainant – the applicant occupied a position of trust.

23. On the hearing of the appeal, counsel accepted that the two lists are all but co-extensive: that is, that in his assessment the judge expressly took into account all the relevant factors propounded on behalf of the applicant as relevant.

24. The only circumstance identified in the applicant’s list of relevant considerations of which the sentencing judge made no mention is the absence of threats. It is well established that the absence of an aggravating feature does not operate as a mitigating factor. It was not suggested that failure to mention that the applicant had not threatened the complainant constituted failure to take account of a relevant sentencing consideration.

25. Reference was then made to a series of decided cases, the point being to illustrate that, at times, less serious conduct has been characterised as “below mid-range” (not “slightly” below mid-range), and more serious conduct has been given a similar assessment.

26. As the sentencing judge recognised, s 61M(2) encompassed a broad range of conduct that constituted the offence. In Mulato v R [2006] NSWCCA 282, Spigelman CJ said (at [37]):

“Characterisation of the degree of objective seriousness… is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which [the sentencing judge] gave to the circumstances of the offence was open to her Honour.”

27. Interestingly, notwithstanding these strictures, the Chief Justice expressed, in that case, some hesitation in finding that the sentencing judge’s characterisation of mid-range of objective seriousness was open, and, while finding that it was, nevertheless went on to express it as “at the lower end of [that] range”.

28. There will be circumstances in which departure by this Court from a sentencing judge’s assessment of objective seriousness is warranted. In my opinion, this is such a case. While I would hesitate to accept the description, given by counsel for the applicant, as “just trying to pull the complainant’s pants down” as accurately portraying the offence, I do accept that the conduct constituting the offence (abruptly terminated as it was by the complainant’s reflexive reaction) was significantly less objectively serious than is indicated by the characterisation “slightly below the middle of the range” (and significantly less serious than it might have been without the complainant’s quick response).

29. I would therefore uphold this ground of appeal.

Ground 2:   unabated sexual disorder

30. By ground 2 the applicant complains of the finding that he had an unabated abnormal sexual disorder, evidenced by the present offence, his breaches of apprehended violence orders, and a single offence of homosexual intercourse with a child almost three decades earlier. No psychiatric evidence was provided to support such a finding.

31. On behalf of the applicant it was argued that in the absence of medical evidence, it was not open to the sentencing judge to make such a finding, and that the finding was inconsistent with the applicant’s history, in which no offending of a sexual nature had been identified over a period of 29 years.

32. I agree that this finding was not open to the sentencing judge.

33. The Crown sought to defend the finding by pointing to evidence that the applicant had admitted, when in hospital, that he was sexually attracted to the complainant, that he gave him gifts of money, chocolate and electronic toys and that one of the apprehended violence order offences was constituted by his sending a message to the complainant asking if he “still loved” him. The Crown then submitted that that evidence:

“32.   …could appropriately give rise to a concern by the sentencing judge that the applicant had some abnormal sexual proclivities, which had not resolved since the 1986 conviction … .”

34. Even if that were to be accepted (and it is, at least, dubious), a “concern” that “some abnormal sexual proclivities” might exist is a long distance from a finding of an “abnormal sexual disorder which has not abated”. The Crown placed some weight on the language used by the sentencing judge – that the previous conviction (and the breaches of the apprehended violence orders) “suggests” an abnormal (unabated) sexual disorder. That, the Crown appeared to contend, fell short of conveying a concluded finding of a sexual disorder. That cannot be accepted. That the judge went further, and accepted his own diagnosis, is evident in his reasons for finding special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act. The Crown seized on that as indicating that the finding in fact afforded some benefit to the applicant, in the reduction of the non-parole period and extension of the parole period. But the real use made of the finding lay in concluding that the applicant’s prospects of rehabilitation and not reoffending were “particularly guarded”. Prospects of rehabilitation is an important sentencing factor. It is obvious, in my opinion, that the finding operated adversely to the applicant (even though it also afforded him some benefit). The finding was not open on the evidence.

34. I would also uphold this ground of appeal.

35. That means that it is necessary for this Court to proceed to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. It is unnecessary to embark on a detailed analysis of whether the sentence was, as proposed in ground 3, manifestly excessive. It is, however, worth making the following observations. In sentencing, the Court is obliged to take into account two “legislative guideposts”, the statutory maximum sentence prescribed for the offence and (where applicable) the standard non-parole period. It is well established that the maximum sentence is to be imposed only for the most serious offences of the kind under consideration, and that the sentence imposed must bear a proper relationship to the prescribed maximum. Where, as here, the standard non-parole period is fixed at 80% of the statutory maximum, adherence to both guide posts is all but impossible, and often productive of injustice. In the circumstances of this offence a sentence of almost half of the statutory maximum seems to me to be excessive and may well have resulted from the errors outlined above.

36. The precedents relied upon on behalf of the applicant to establish manifest excess are of use in the resentencing exercise, and I have had regard to them.

Resentencing

38. In many cases in which this Court is called upon to resentence after a successful appeal it is convenient, and appropriate, to adopt the factual findings and evaluations of the sentencing judge where these are not contested. Having regard to the conclusions above, that is not possible in this case. It is, however, possible to deal briefly with the relevant considerations. The first is, of course, the nature of the offending, which has been fully outlined above. The objective seriousness of the offence, as I have held in my consideration of ground 1, was significantly less than middle of the range. For reasons given in the reference to the complainant’s victim impact statement, it is difficult to assess the impact on the complainant of this offence (as distinct from the other offences alleged, which were not proved in the trial).

39. The applicant’s criminal history, while (apart from the previous sexual offence) relatively minor, is to be taken into account as not entitling him to a significant degree of leniency. Given that almost three decades have passed between the commission of the previous sexual offence and the commission of the present offence I would accord to it only a moderate degree of weight.

40. There is little material to make an assessment of applicant’s prospects of rehabilitation. So far as any assessment can be made, his age (now 53) might give some cause for optimism. Certainly, I would not regard the likelihood of reoffending as a significantly adverse sentencing consideration.

41. Having regard to all of the circumstances, in my opinion an appropriate sentence is one of imprisonment for 3 years. I would adopt the sentencing judge’s finding of special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, the reasons for which included, not only the finding (that I consider to be erroneous) that the applicant suffers from an abnormal sexual disorder, but also his need for supervision on his release from custody (with which I agree). The variation should be modest. I propose that the applicant be sentenced to imprisonment for 3 years with a non-parole period of 2 years.

42. It remains to consider the date of commencement of that sentence. The sentencing judge directed that the sentence commence on 24 April 2018, although (by reason of breach of his bail conditions constituted by the apprehended violence order offences) the applicant had been in custody since 22 November 2017. The commencement date was selected with considerations of totality in mind, combined with the need for the apprehended violence order contraventions not to be “nullified” by the imposition of a wholly concurrent sentence. On behalf of the applicant it was submitted that any new sentence should be further back dated.

43. I do not agree. In my opinion the sentencing judge appropriately balanced considerations of totality and the need for some separate punishment of the apprehended violence order offences. I see no other reason for departure from the selected commencement date.

44. The orders I propose are, therefore:

1. Leave to appeal against sentence granted;

2. Appeal allowed, sentence set aside;

3. The applicant be sentenced to imprisonment made up of a non-parole period of 2 years commencing on 24 April 2018 and expiring on 23 April 2020, with a balance of term of 1 year which will expire on 23 April 2021.

45. BELLEW J: I agree with Simpson AJA.

46. CAMPBELL J: I agree with Simpson AJA.

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Amendments

11 December 2020 - formatting correction

Decision last updated: 11 December 2020