Henderson v R

[2016] NSWCCA 8

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Henderson v R [2016] NSWCCA 8
Hearing dates:	2 October 2015
Decision date:	09 February 2016
Before:	Chief Justice Bathurst at [1] Hoeben CJ at CL at [2] RS Hulme AJ at [68]
Decision:	I propose the following orders:  1. Grant leave to appeal. 2. Allow the appeal 3. Quash the sentences imposed by Judge Syme on 13 November 2014. 4. Sentence the Applicant to an aggregate sentence including a non-parole period of 3 years commencing on 16 October 2014 together with a balance of term of 2 years commencing on 16 October 2017. 5. Record as the date upon which it appears to the Court that the Applicant should be released to parole 16 October 2017. 6. Imprisonment for 5 years commencing 16 October 2014 and expiring on 15 October 2019 with a non-parole period of 3 years expiring 15 October 2017.
Catchwords:	CRIMINAL LAW – sentence appeal – historic sexual offences – seven counts of assault female and commit act of indecency – two counts of assault male and commit act of indecency - four victims – aggregate sentence – whether sentencing judge applied sentencing practices applicable at time of offending – whether discount for early plea of guilty available and whether it was in fact applied – whether applicant in a position of trust in respect of three of the victims – whether sentencing judge’s findings as to risk of re-offending open on the evidence – error established in formulation of indicative sentence requiring aggregate sentence to be reconsidered – appeal allowed – applicant re-sentenced.
Legislation Cited:	Crimes Act 1900 – ss 76 and 81 Crimes (Sentencing Procedure) Act 1999 – s 21A(2)(k); s 44; s 53A Criminal Appeal Act 1912 – s 5(1)
Cases Cited:	AJB v The Queen [2007] NSWCCA 51; 169 A Crim R BP v R [2010] NSWCCA 303 Bradbery v R [2008] NSWCCA 93 Dousha v R [2008] NSWCCA 263 Karl Suleman v R [2009] NSWCCA 70 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 MPB v R [2013] NSWCCA 213; 234 A Crim R 576 Magnuson v R [2013] NSWCCA 50 Mill v The Queen [1988] HCA 70;166 CLR 59 Moon v R [2000] NSWCCA 534; 117 A Crim R 497 Nelson v R [2007] NSWCCA 221 Nykolyn v R [2012] NSWCCA 219 Peiris v R [2014] NSWCCA 58 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Todd [1982] 2 NSWLR 517 at 519 Veen v The Queen [1988] HCA 14; 164 CLR 465 Wright v R [2008] NSWCCA 91
Category:	Principal judgment
Parties:	John Bruce Henderson – Applicant Regina – Respondent Crown
Representation:	Counsel: Ms P Wass SC/Ms M Ellicott – Applicant Ms G O’Rourke – Respondent Crown   Solicitors: Legal Aid of NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2013/2486502013/337938
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 13 November 2014 Before: Syme DCJ File Number(s): 2013/248650 2013/337938

Judgment

1. CHIEF JUSTICE BATHURST: I agree with the orders proposed by Hoeben CJ at CL and with his Honour’s reasons.

2. HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty to nine counts of indecent assault against four complainants between 1961 and 1978/9. There were also two further counts of indecent assault taken into account on a Form 1. The offences under ss 76 and 81 of the Crimes Act 1900 each carried a maximum penalty of 5 years imprisonment.

3. The offences can be grouped as follows: three offences of assault female (CC aged 3 years) and commit act of indecency contrary to s 76 of the Crimes Act 1900 (counts 1 – 3).

(The two Form 1 matters also involved assault and acts of indecency against CC, contrary to s 76 of the Crimes Act and were attached to count 1.)

Two counts of assault female (LB aged 7 – 8) and commit act of indecency contrary to s 76 of the Crimes Act 1900 (counts 4 – 5).

Two counts of assault male (RB – aged 8 – 9) and commit act of indecency contrary to s 81 of the Crimes Act 1900 (counts 6 – 7).

Two counts of assault female (GB aged 7 – 10) and commit act of indecency contrary to s Crimes Act 1900 (counts 8 – 9).

4. Submissions on sentence were made on 16 October 2014 and the applicant was sentenced by her Honour Judge Syme on 13 November 2014. Her Honour imposed an aggregate sentence comprising imprisonment with a non-parole period of 3 years and 10 months, commencing 16 October 2014 and expiring 15 August 2018 with an additional term of 2 years and 2 months, expiring 15 October 2020.

5. Her Honour outlined the indicative sentences for each offence as follows:

OFFENCE DETAILS	MAXIMUM PENALTY	INDICATIVE SENTENCE
VICTIM CC Count 1	5 years imprisonment.	3 years imprisonment. Non parole period of 2 years.
VICTIM CC Count 2	5 years imprisonment.	3 years imprisonment. Non parole period of 2 years.
VICTIM CC Count 3	5 years imprisonment.	3 years imprisonment. Non parole period of 2 years.
VICTIM LB Count 4	5 years imprisonment.	3 years and 6 months imprisonment. Non parole period of 2 years and 3 months.
VICTIM LB Count 5	5 years imprisonment.	4 years imprisonment. Non parole period of 2 years and 7 months.
VICTIM RB Count 6	5 years imprisonment.	2 years imprisonment. Non parole period of 18 months.
VICTIM RB Count 7 Assault male and commit	5 years imprisonment.	2 years imprisonment. Non parole period of 18 months.
VICTIM GB Count 8	5 years imprisonment.	3 years and 6 months imprisonment. Non parole period of 2 years and 3 months.
VICTIM GB Count 9	5 years imprisonment.	3 years and 6 months imprisonment. Non parole period of 2 years and 3 months.

6. The application is brought under s 5(1) of the Criminal Appeal Act 1912. The applicant relies upon the following grounds:

Ground 1: Her Honour erred in her application of the sentencing principles of the time in a number of material respects.

Ground 2: Her Honour failed to take into account the utilitarian value of the plea of guilty.

Ground 3: Her Honour erred in finding that the applicant was in a position of trust in respect of all offending or alternatively, offending on sequences 1 – 7 inclusive.

Ground 4: Her Honour erred in failing to take into account or alternatively, gave insufficient weight to the applicant’s lack of offending since 1975 in making findings as to rehabilitation and the risk of re-offending.

Ground 5: Her Honour erred in finding without evidence that the applicant was not unlikely to re-offend.

Ground 6: The sentence was manifestly excessive.

FACTUAL BACKGROUND

7. The proceedings before her Honour proceeded on the basis of agreed facts. The relevant facts are as follows. The applicant was born in 1940. He was the uncle of LB and RB and a cousin of CC. CC is deaf and had been since she was aged two and a half. The victim GM was not related and did not know the other three complainants.

8. CC was born in 1958 and was aged three at the time of the offences. The applicant was aged 21. CC would regularly visit the applicant and his mother at their home on Friday nights after dinner. When they arrived, the adults would sit in the lounge-room to chat and drink tea. The applicant was always present and CC recalled that he used to perform magic tricks, such as making coins disappear.

9. During one evening, the applicant and CC were alone in the laundry together and the applicant shut the door. He picked CC up and held her in front of him with her legs wrapped around his waist. CC was wearing a dress at the time. The applicant started touching CC’s vagina and pressing against it with his fingers. CC described his actions as being “like a bumping” sensation (offence 1, Form 1). The applicant then removed his penis from his pants and rubbed it against CC’s vagina (count 1). CC was wearing her underpants at the time.

10. As he was doing this, the applicant continued to breathe heavily for a couple of minutes until he ejaculated. Following this, the applicant’s mother suddenly opened the door and he immediately bent down and pretended he was patting the dogs. The applicant’s mother left the laundry and he and CC went back inside the house.

11. On another later occasion the applicant was at home when CC and her parents visited. During the afternoon, he took CC to the laundry room and shut the door. He picked CC up in exactly the same manner as previously and placed her legs around his waist. He then pulled CC’s underpants to one side and rubbed her vagina with his hand (offence 2, Form 1). He then unbuckled his belt, removed his penis from his pants and rubbed it against CC’s vagina (count 2).

12. The applicant then placed CC’s hand on his penis for a couple of minutes (count 3). He continued touching CC for a few minutes but stopped when his mother walked into the laundry. The applicant again pretended to be patting the dogs. The applicant and CC then left the laundry and played outside in the backyard with the dogs.

13. RB and LB, who were the applicant’s nephew and niece respectively, spent most weekends at their grandparents’ house where the applicant was usually present.

14. One evening in about 1974 LB with her brother and parents visited the applicant and his parents at Campsie. They had dinner together and after dinner, LB and RB went to the applicant’s bedroom to watch television while the adults stayed in the back room playing cards. LB was aged between seven and eight. The applicant was aged 33 – 34.

15. The applicant gave LB a musk lolly stick and she recalled falling asleep soon after. She awoke later but was unable to open her eyes. The applicant asked her if she was okay but she recalled being unable to speak. The applicant pulled her pants down and lifted up her top. He then removed his penis from his pants and rubbed it against her vagina. LB could feel the head of his penis on her vagina and later felt what she described as a warm liquid in the area (count 4). The applicant then wiped the complainant’s vagina clean with a handkerchief.

16. On another occasion, LB had again fallen asleep in the offender’s bedroom and woke up without any clothes on. She could feel his fingers inside her vagina and heard him say “I’m just trying to change you into your pyjamas”. LB again recalled feeling wet between her legs (count 5). The applicant wiped the complainant’s body with a face-washer and put her clothes back on. LB left the bedroom to watch TV in the lounge-room.

17. Their grandfather died in 1977. Due to the house being so small when LB and RB stayed over, RB and the offender would share the same bed and sleep head to toe. On one occasion, RB was in the offender’s bed, lying head to toe. He was lying on his back and the applicant moved his hand up his leg and under his boxer shorts towards his groin. The applicant then grabbed RB’s penis and fondled it (count 6). RB was aged between eight and nine at the time.

18. On another occasion, RB was again in the applicant’s bed sleeping head to toe, when the applicant moved his hand upwards and began to rub his penis over his underpants (count 7). At the same time, the applicant made RB rub his (the applicant’s) leg.

19. GB was a member of St Michael’s parish and regularly attended St Michael’s Church with her parents. During the 1960’s St Michaels Church and School held an annual fete. On one occasion between November 1964 and November 1967 a popular children’s entertainer was hired to perform at the fete. The applicant was a hobby magician and this year he was tasked to assist the professional performer.

20. One afternoon the applicant approached GB who recognised him from the church and knew that he was a magician. He asked GB to assist him in carrying things for the show that night and offered two shillings as payment. GB agreed to help and walked with the applicant to his house.

21. Inside the house the applicant took GB to the sunroom. He then stood facing her and lifted her school uniform and placed his hand down her underpants, probing her genital area. He inserted his fingers into her vagina for a few seconds with a motion GB described as “digging deep” (count 8). The applicant continued to touch and stroke GB’s genital area with his fingers for a couple of minutes in total (count 9). The applicant had his other arm around the victim at the time.

22. The applicant and GB then moved to the sunbed and lay down together – the victim was lying beside and slightly on top of the applicant. GB recalled feeling terrified and begging the applicant to take her back to the fete. GB ran from the house and returned to the fete. GB was aged between seven and ten at the time and the applicant was aged between 24 and 27.

23. LB’s daughter’s christening was held in October 1994 when LB was aged 28. At the christening the applicant picked up LB’s daughter which triggered a memory flashback for her. The following day LB told her parents that she remembered the applicant doing things to her that he should not have done. LB’s father confronted the applicant by telephone later that same day.

24. LB and her father discussed speaking to the police but LB had concerns about her own daughter’s safety. There was no contact between LB and her parents with the applicant until 2013. In February 2013 RB drove to the applicant’s home in Parramatta and confronted him about the incidents involving him. The applicant admitted to RB that he had touched and fondled him.

25. CC first spoke about the assault to her own daughter in 2008. At a family barbeque in March 2013 CC became aware of the allegations in relation to RB and it was at this point that she spoke of her own abuse. GB provided her statement to the police in July 2013.

26. On 15 August 2013 the applicant was arrested and charged. He participated in a recorded interview with police on the same date, and during this interview he did not deny the allegations in relation to GB. Additionally, the applicant told police that members of his family had spoken to him about allegations concerning LB and he stated that he had touched her at least half a dozen times. On 7 November 2013 the applicant was interviewed by police and he did not deny the allegations in relation to RB.

27. It was common ground that until the commission of the first offence in 1961, the applicant was of good character and had no relevant convictions. In 1968, however, (during the course of the offending for which he was in due course sentenced), the applicant was charged and pleaded guilty to an offence of indecent assault involving the unlawful detention of a 10 year old girl. He was sentenced to a term of imprisonment for 2 years with a non-parole period of 18 months. His family was unaware of this offending, conviction and imprisonment.

Remarks on sentence

28. Her Honour noted that the applicant had pleaded guilty at an early point in time. Her Honour noted:

“The court is required to consider in so far as possible, sentencing practices as at the date of the offences, while considering the specific actions that occurred and the objective seriousness of those acts within the charged offence. A formal discount of 25% was not usually a sentence consideration stated to be taken into account in sentencing at the time of the commission of these offences. Both considerations apply when considering a sentence at this time. Usually a non parole period to parole period ratio was between 50% - 70%.” (ROS 2.9 – 3.2)

29. Her Honour took into account R v MJR [2002] NSWCCA 129; 54 NSWLR 368 and MPB v R [2013] NSWCCA 213; 234 A Crim R 576 as providing guidance for sentencing in circumstances where in the case of old offending, sentencing practices had changed and sentences had increased. Her Honour noted that although she had been provided with sentencing statistics relating to offences which had taken place in the 1960’s and 1970’s, these were of only limited value because they said nothing about the objective and subjective circumstances of each case. Nevertheless, her Honour accepted as a matter of principle that when sentencing for these matters she needed to follow sentencing practices which were current at the time when the offences occurred.

30. When considering the objective seriousness of the offending, her Honour noted that there were four complainants and that the offending had taken place over 17 years. Her Honour had regard to the fact that the victims were young children. Her Honour considered that even though each case had to be dealt with on its own facts, and on its own particular circumstances, issues such as the number of victims, the duration of the offences and the extent of the sexual invasion were all relevant. Because there were a number of features of the offending common to all or most of the offences, her Honour dealt with questions such as the objective seriousness of the offending in a global way.

31. By reference to the victim impact statements, her Honour found that the offending had caused considerable emotional harm to the victims. It was clear from those statements that each of the victims had suffered anguish and terror at the time of the offending. Her Honour noted that some of the victims continued to experience psychological difficulties up to the present time.

32. Her Honour found that while some of the offences were not planned but were opportunistic, there were elements of premeditation in that the applicant took the victims to rooms in the house which were out of the way and in the case of GB, used a pretext to persuade her to enter his home.

33. Her Honour took into account the age of the victims at the time of the offending. For the offence against s 81, there was no gradation of age so that the lower the age, the more serious the criminality. In the case of the offences under s 76, the upper age limit was 16 and in this case the age of the children ranged between 3 years and 8 years. Her Honour regarded that as also representing a significant aggravating feature.

34. In the case of the victims CC, LB and RB her Honour found that the familial relationship gave rise to a breach of trust. Her Honour said:

“19   It is an obvious aggravating feature if the offender was in a position of trust and violated that trust by sexually assaulting the child. The position is worse when the offender is a family member such as the offender. When the children attended at the home occupied by himself and his parents, extended family had the right to expect that their children would be in a safe place and trust was extended on that basis.

20   For the very young complainant CC (sequences 1- 3 ), she was taken to the home by her own mother who obviously trusted the offender.

21    The other children LB and RB were taken to the home by their parents and visited nearly every weekend as it was the home of the grandparents. The breach of trust in that family situation is a serious one. The nature of the trust, and the closeness of the family relationship meant that these children had no one to complain to, thus making them more helpless and the offending as a whole generally more serious.

22   It was submitted that there are worse examples of a breach of trust, and that is true, but this observation is of little assistance as the court is required to look at the entire circumstances of the offending.” (ROS 5.9 – 6.5)

35. When sentencing the applicant for the offences against those victims, her Honour found “breach of trust” as a particular aggravating feature.

36. The physical acts of the offending covered a wide spectrum. Her Honour observed that the penetration of female genitalia was always regarded as a serious form of indecent assault which was further aggravated when ejaculation occurred. This was because of the confronting nature of ejaculation to a young child. Her Honour regarded skin to skin contact with the applicant’s penis as significantly more serious than that which involved touching on the outside of clothing.

37. While her Honour was prepared to accept that until the occurrence of the first offence the applicant was a person of good character, that benefit was lost thereafter. This was particularly so after the 1968 conviction.

35. The applicant gave evidence in the sentence proceedings. Her Honour was prepared to accept that he did feel genuine remorse and noted his evidence that he was now a different person to the person who had offended against the complainants when they were children. This acceptance was qualified by her Honour’s observation that:

“31   … Until he undergoes proper counselling and a full forensic risk assessment, the only observation I can make is that he appears to be ready to accept his responsibility and he is prepared to accept the consequences of his past behaviour. His plea of guilt is an acceptance of responsibility.” (ROS 8.9 – 9.1)

39. In relation to prospects of rehabilitation and risks of re-offending, her Honour rejected the assessment in the psychologist’s report of Ms Howell which was tendered on behalf of the applicant. The basis of her rejection was that the conclusions in the report depended upon the accuracy of the history which she had received. By reference to other material, her Honour was not satisfied that the facts on which the psychologist’s opinion depended were correct.

40. While her Honour noted that the applicant had not committed any further offences of this kind for approximately 40 years, and that during this time there had been opportunities for him to do so, she gave that factor only limited weight. Her Honour expressed her conclusion as follows:

“36   … His insight into the causes of his offending and the consequences are limited. This is not unusual for an offender in his position. He has never been confronted with his conduct in a therapeutic setting. That is not his fault. His lack of insight would not enable him to acknowledge the necessity of it.

37   I note and observe that in 1968 he also told a psychiatric consultant that he did not regard himself as abnormal or in need of psychiatric treatment but thereafter proceeded to offend on numerous occasions. Until Mr Henderson is challenged with respect to his past behaviour this court could not make a finding that he is rehabilitated and at a very low risk of re offending.

38   My observation is that Mr Henderson’s risk of re-offending is certainly reduced by his family and social support and by his advanced age however the fact that he has never really acknowledged the distorted nature of his sexual offending against children and confronted that and perhaps undergone some of the appropriate counselling that is offered to people who do sexually offend against children then his risk of reoffending must to some extent be an unknown quantity.” (ROS 11.2 - .7)

41. Before setting out her aggregate sentence and the indicative sentences, her Honour noted that she had to take into account the totality of the offending and the context of the individual charges. She noted that she was required to strike a balance between ensuring that the criminality of each offence was reflected in the sentence imposed and that the principle of totality was also observed. Because there were multiple victims, there had to be a proper level of accumulation.

Ground 1: Her Honour erred in her application of the sentencing principles of the time in a number of material respects.

42. Before embarking on a consideration of the grounds of appeal, it needs to be remembered that there is no appeal from “indicative sentences” that are indicated in the course of imposing an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. The application for leave to appeal must be in respect of a sentence, which is a sentence actually imposed, being the aggregate sentence not an indicative sentence which by definition has not been imposed.

43. However, as Nykolyn v R [2012] NSWCCA 219 made clear, in some cases the indicative sentences can make clear that error has occurred in the reasoning process leading towards the imposition of the aggregate sentence. Where that occurs, the appropriateness of the aggregate sentence imposed arises for consideration. This is one of those cases.

44. The applicant submitted that her Honour was provided with, but did not refer to, a document entitled “Sentences Imposed for Indecent Assaults Committed in the 1960s and 70s” which did include information about the objective offending and subjective circumstances of offenders. He submitted that that document, together with the statistical information, provided a discernible sentencing pattern as required by Dousha v R [2008] NSWCCA 263 and R v MJR.

45. The applicant submitted that her Honour failed to have regard to the sentencing practice at the time regarding the relationship between the head sentence and the non-parole period. The applicant submitted that her Honour’s finding that the ratio between a non-parole period and the parole period at the time of between 50% and 70% was in error. He submitted that the correct ratio was between 35% and 50% of the head sentence.

Consideration

46. The applicant’s submission should be accepted. Two relatively recent decisions have considered this issue in considerable detail. Those decisions are Magnuson v R [2013] NSWCCA 50 and MPB v R to which her Honour was specifically referred. In Magnuson Button J (with whom McClellan CJ at CL and Bellew J agreed) accepted the following propositions:

“84   It is true that, for over a decade, it has been clear that a sentencing judge dealing with very old offences must take into account the sentencing patterns that existed at the time of the offences: see R v MJR [2002] NSWCCA 129; 54 NSWLR 368.

85   If such a pattern is unable to be discerned, the judge should commence the sentencing process in the usual way; that is, by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence: see Moon v R [2000] NSWCCA 534; 117 A Crim R 497 at [66] - [71] per Howie J (with whom Fitzgerald JA agreed).

86   Even if a sentencing judge does take an established sentencing pattern into account, a failure adequately to reflect the principle and the relevant sentencing pattern may cause the sentence to be manifestly excessive, or otherwise erroneous: see RWB v R [2008] NSWCCA 93; 184 A Crim R 453 at [24] - [26].

87   If sentencing for offences committed at a time when the statutory ratio did not exist, sentencing judges should sentence in accordance with that fact: see AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [36] - [37] and Rosenstrauss v R [2012] NSWCCA 25 at [16].

88   Having said that, a court sentencing today with regard to old offences with regard to which a different sentencing pattern can be discerned must nevertheless bear in mind that, since 1974, it has been established that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice: Power v The Queen (1974) 131 CLR 623, referred to in AJB v R and many subsequent cases dealing with the principle under discussion.

89   Finally, in appeals to this Court, reduction has not been automatic, even if it is determined that the sentencing judge failed to advert to the principle: see, for example, Mottram v R [2009] NSWCCA 210 and RLS v R [2012] NSWCCA 236.

90   Applying those principles to this case, I consider that a sentencing pattern with regard to sexual offences committed against children in the late 1970s and early 1980s can be established. That is founded upon five factors. The first is the statistics that were before her Honour and this Court relating to disposition of offences in 1976 and 1978. The second is summaries of cases. Some were provided by the parties to her Honour. Others are contained in other decisions of this Court dealing with this question. The third is the general increase in sentences that has occurred across the board in New South Wales over the past quarter century. The fourth is the upward movement in maximum penalties with regard to the crimes of the applicant between the period under consideration and today. The fifth is judicial memory. I shall deal with each of those factors in turn.”

47. In MPB v R Garling J with whom R A Hulme J agreed said:

“87   The guide which is entirely objective and is easily ascertainable and therefore which is likely to be of most use to a sentencing court when attempting to impose sentences which accord with an earlier practice or pattern, is the maximum penalty fixed by the law for the offence charged, together with the range of criminality encompassed by the offence charged. By having regard to these features a sentencing judge will be able to readily assess where the particular offence charged falls along the spectrum of conduct encapsulated in the offence and accordingly how the particular offence ought be viewed against the maximum penalty fixed by the legislation.

…

93   This Court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1 to 4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154 ]- [156]. This is factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

…

96 Counts 1 to 4 on the indictment charged offences under s 76 of the Crimes Act 1900, which as it then stood, was the offence of indecent assault against a child under the age of 16 years. It was repealed in 1981. At the time of the offences in Counts 1 and 2, the maximum penalty was 5 years. At the time of the offences in Counts 3 and 4, the maximum penalty had been increased to 6 years.

97 The offence of indecent assault, contrary to s 76, included within it many offences which today fall to be categorised as sexual assault under current legislation. Prohibited conduct, involving penetration and including fellatio and cunnilingus, were included within the offence under s 76. There was then a much broader range of conduct susceptible to charges under this section: see BP at [158] per Fullerton J; Nelson v R [2007] NSWCCA 221 at [17] per Latham J.

…

106 I am prepared to accept, as did the sentencing judge, that the offences were serious because of the extent of the breach of trust involved, but what was required of the sentencing judge was that he should have made an assessment of where the offences fell on the spectrum of conduct encompassed by an offence against s 76 of the Crimes Act. This he failed to do. Having regard to that range, I am not satisfied that these offences fell above the mid-point of the range. On the contrary, the criminality fell well below that mid-point and could not justify the sentences which was imposed for Counts 1 and 2.”

48. Applying those principles and without detailed reference to each of the indicative sentences, it is quite apparent that the head sentence in most cases was considerably above that which would be appropriate if the approach recommended in Magnuson v R and by Garling J in MPB v R were followed. The fact that that error is clearly apparent in relation to the indicative sentences must place in question the aggregate sentence actually imposed.

Ground 2: Her Honour failed to take into account the utilitarian value of the plea of guilty.

49. The applicant submitted that her Honour’s approach to applying the discount for the early plea of guilty was wrong. He submitted that while an offender ought not be sentenced more harshly than would have occurred had the sentencing been in accordance with sentencing practice at the time of the offending, courts do not apply the procedural rules then in effect. He submitted that a court should apply the procedural rules in effect at the time when sentence was imposed, i.e. the Crimes (Sentencing Procedure) Act 1999. He submitted that compliance with that requirement would require that a 25% discount be applied.

Consideration

50. Because the sentence under consideration is an aggregate sentence, there is no requirement that the 25% discount for an early plea of guilty be applied to the aggregate sentence. It represents the sentence which has been imposed after taking into account the considerations leading to the formulation of the indicative sentences. Accordingly, the 25% discount is to be applied to the indicative sentences.

51. When that is done to the indicative sentences in this case, it is readily apparent that in some cases the head sentence exceeded the maximum penalty available or was otherwise very close to the maximum sentence. It follows that there is a strong inference that her Honour erroneously thought that applying sentencing practices which were in place at the time of the offending meant that she should not apply a 25% discount for an early plea of guilty. It follows that none of the indicative sentences had that discount built into them. This was an error and provides another reason why it will in due course be necessary to reconsider the aggregate sentence.

Ground 3: Her Honour erred in finding that the applicant was in a position of trust in respect of all offending or alternatively, offending on sequences 1 – 7 inclusive.

52. The applicant submitted that for the purposes of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 it could not be said that he had “abused a position of trust or authority in relation to the victim”. He submitted that although her Honour had not in terms referred to s 21A(2)(k), her Honour’s assertion that he was “in a position of trust” and her Honour’s finding that his conduct involved a serious breach of trust, must mean that her Honour had the section in mind.

53. The applicant submitted that the fact that his niece, nephew and second cousin may have trusted him as a family member, or that their parents trusted him, so as to enable him to be physically close to them in private did not provide a basis for a finding of a position of trust in the sense envisaged by the section. The applicant relied upon the observation of Howie J (with whom McClellan CJ and Hislop J agreed) in Karl Suleman v R [2009] NSWCCA 70 at [22]:

“22   This aggravating factor is not made out simply because the victim trusted the offender for some reason or other. … The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to “a position of trust”. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. …”

That statement of principle was recently approved in Peiris v R [2014] NSWCCA 58 (Leeming JA, Button J and RS Hulme AJ).

54. The applicant submitted that by reference to the agreed facts, at no time was he left in charge of his niece, nephew and second cousin. The parents or grandparents were always present in the house and he undertook no duty of supervision. Rather, the children were left to play and sleep in the house where he resided at a time when the parents or grandparents were also in the house. He submitted that there was no special relationship as contemplated by the authorities on this section.

55. The applicant submitted that the qualified concession by his counsel in the sentencing proceedings (T.31.49, T.32.1 - .7 and T.33.29 - .34) did not amount to a concession that s 21A(2)(k) applied. It went no further than a concession that as an older person and as a member of the family there was “some breach of trust” in his dealings with his niece, nephew and second cousin.

Consideration

56. This ground of appeal has been made out. There was no proper basis for her Honour finding a breach of trust as provided for by s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 if that is in fact what her Honour did. This was not the sort of relationship envisaged by the section and by the authorities which have applied it. Even giving the section an extended meaning, such as where the person in authority was a babysitter or a taxi driver, there was no abuse of a position of trust or authority in the circumstances of this case. What occurred was that the applicant took advantage of the familial relationship and his age to gain access to his victims.

57. If her Honour did not intend to have regard to s 21A(2)(k) then the circumstance of aggravation to which she referred goes no further than a restatement of the essential factual background, i.e. a person in his late twenties and early thirties taking sexual advantage of young children.

Ground 4: Her Honour erred in failing to take into account or alternatively, gave insufficient weight to the applicant’s lack of offending since 1975 in making findings as to rehabilitation and the risk of re-offending.

Ground 5: Her Honour erred in finding without evidence that the applicant was not unlikely to re-offend.

58. The applicant accepted that it was open to her Honour to reject the opinion of the psychologist, Ms Howell, which was favourable to him on this issue, on the basis that her opinion was based on an incorrect statement of the facts. The applicant nevertheless submitted that that was not the end of the matter. He submitted that her Honour’s finding involved a rejection of the reasons given by him for his offending approximately 40 years before, but did not address the issue of whether he was likely to re-offend in the future. The applicant submitted that on that issue her Honour had failed to make proper allowance for the fact that he had not offended for approximately 40 years despite having had the opportunity to do so with other young children with whom he had come in contact.

59. The applicant submitted that there was no evidence before her Honour as to there being an increased risk of him re-offending after such a long period of time because he had not really acknowledged the distorted nature of his offending. The applicant submitted that there was no evidence before her Honour as to there being an increased risk of him re-offending after such a long period of time because he had not undertaken “appropriate counselling”.

Consideration

60. This ground of appeal has been made out. There was no evidence before her Honour to justify her Honour’s conclusions as set out at [40] hereof. These are not the sort of matters of which a court can take judicial notice. They will differ from case to case and will depend on expert opinion applied to the particular facts of the case.

61. In this matter the applicant’s actions over the last 40 years are of considerable probative value on this issue. He is now aged 75 and has not re-offended, despite the opportunity to do so, for approximately 40 years. Since the applicant will have to be re-sentenced, it is open to this Court to have regard to his affidavit of 24 September 2015. That affidavit is indicative of considerable remorse. It is not without significance that the applicant is supported by and regularly visited by his children and step-daughter. He has applied to be assessed for a sex offenders course and has indicated a willingness to do any course that is recommended to him. In the circumstances, I am satisfied that the applicant’s prospects of rehabilitation and not re-offending, are good.

Ground 6: The sentence was manifestly excessive.

62. Given the findings in relation to the other grounds of appeal, it is not necessary to further consider this ground.

Conclusion

63. The errors to which reference has been made, while primarily focused on the indicative sentences rather than the aggregate sentence, must give rise to considerable doubts about the appropriateness of those indicative sentences. Because of those doubts, the aggregate sentence which was based upon the indicative sentences, must be regarded as problematic.

64. As was said by the plurality (French CJ, Hayne, Bell and Keane JJ) in Kentwell v The Queen [2014] HCA 37; 252 CLR 601:

“42   … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration , the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …”

65. In the circumstances of this case I am satisfied that error has occurred and that the applicant will have to be re-sentenced. Pursuant to s 5(1)(c) of the Criminal Appeal Act, 1912, leave is required and should be granted. I propose the following indicative sentences:

Count 1 (attaching the two Form 1 offences) – Imprisonment for 18 months.

Count 2 – Imprisonment for 2 years.

Count 3 – Imprisonment for 18 months.

Count 4 – Imprisonment for 2 years.

Count 5 – Imprisonment for 2 years.

Count 6 – Imprisonment for 18 months.

Count 7 – Imprisonment for 12 months.

Count 8 – Imprisonment for 18 months.

Count 9 – Imprisonment for 2 years.

66. The fact of some degree of accumulation and that the sentence to be imposed reflects an earlier sentencing regime, constitute special circumstances.

67. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal

3. Quash the sentences imposed by Judge Syme on 13 November 2014.

4. Sentence the Applicant to an aggregate sentence including a non-parole period of 3 years commencing on 16 October 2014 together with a balance of term of 2 years commencing on 16 October 2017.

5. Record as the date upon which it appears to the Court that the Applicant should be released to parole 16 October 2017.

6. Imprisonment for 5 years commencing 16 October 2014 and expiring on 15 October 2019 with a non-parole period of 3 years expiring 15 October 2017.

68. RS HULME AJ: In this matter I have had the advantage of reading the Reasons for Judgment of Hoeben CJ at CL. I agree with his Honour that leave to appeal should be granted and the appeal allowed, the sentence imposed by Judge Syme quashed and a sentence of imprisonment for 5 years imposed. I agree also with his Honour’s Reasons for coming to those conclusions.

69. However I am unable to agree with the indicative sentences referred to by his Honour or with the non-parole period of the sentence which his Honour proposes should be imposed by this Court.

70. In that connection, I will take the liberty of repeating what was said in MPB v R [2013] NSWCCA 213; 234 A Crim R 576 at [97] and [106]:

The offence of indecent assault, contrary to s 76, included within it many offences which today fall to be categorised as sexual assault under current legislation. Prohibited conduct, involving penetration and including fellatio and cunnilingus, were included within the offence under s 76. There was then a much broader range of conduct susceptible to charges under this section: see BP v R [2010] NSWCCA 303 at [158] per Fullerton J; Nelson v R [2007] NSWCCA 221 at [17] per Latham J.

I am prepared to accept, as did the sentencing judge, that the offences were serious because of the extent of the breach of trust involved, but what was required of the sentencing judge was that he should have made an assessment of where the offences fell on the spectrum of conduct encompassed by an offence against s 76 of the Crimes Act. This he failed to do. Having regard to that range, I am not satisfied that these offences fell above the mid-point of the range. On the contrary, the criminality fell well below that mid-point and could not justify the sentences which was imposed for Counts 1 and 2.

71. In that case, after accepting that the sentencing standards in the late 1970s could be ascertained, the sentences imposed by this Court for four offences of indecent assault by the conduct summarised below were:

72. Placing the victim’s hand on a penis and moving it up and down – a fixed term of imprisonment of 6 months.

73. Telling the victim to suck the offender’s penis “like a lollypop”, placing his hand on the back of her head and moving her head towards his penis (but stopping when the movement was resisted) – a fixed term of imprisonment of 6 months.

74. Lying behind the victim and fondling her breasts outside her clothing – a fixed term of imprisonment of 9 months.

75. Lying behind the victim and pushing his penis against her buttocks and rubbing her vagina outside her clothing – a fixed term of imprisonment of 9 months.

76. The commencing dates of the four sentences were structured so as to make an effective fixed term of 12 months. The complainant was the offender’s daughter. The first and second offences occurred on one occasion in 1972. The third and fourth offences occurred on another in the years 1977 – 1979 by which time the maximum penalty had been increased to 6 years imprisonment. MPB was also sentenced in respect of later offences but these are of no present relevance.

77. In Bradbery v R [2008] NSWCCA 93 this Court allowed an appeal against sentence and re-sentenced the offender in respect of 4 counts of indecently assaulting his daughter, then aged between 8 and 12 years, on four occasions between 1 January 1970 and 27 April 1975. The first and third offences were constituted by the offender touching the outside of the complainant’s vagina. The second involved him placing the complainant’s hands on his penis and testicles and forcing her to rub them. The fourth offence was cunnilingus while masturbating.

78. The sentences imposed by this Court were fixed terms of 6 months on each of the first three charges, accumulated so as to make an effective term of 8 months and in the case of the fourth charge imprisonment for 16 months including a non-parole period of 4 months. The total effective sentence was of imprisonment for 2 years including a non-parole period of 1 year.

79. In both Bradbery v R and MPB v R the offender had pleaded guilty. If fixed terms of 6 months (or when the maximum penalty was higher, 9 months) were within an appropriate sentencing range for the touching or rubbing of vaginas or penises in those cases, the indicative sentences for similar conduct by the Applicant may well be the same and certainly should not be very substantially higher. And although the Applicant’s breach of trust was an aggravating factor, it was less than the breach of a father’s duty to his daughter as occurred in each of MPB v R and Bradbery v R.

80. Consideration of the gravity of a number of the Applicant’s offences when compared with the statutory maximum penalty of 5 years and the range of conduct contemplated by the terms of s 76 of the Crimes Act as it then was leads to the same conclusion. As was the assessment in MPB v R, in my view most of the Applicant’s conduct fell well below the midpoint of seriousness of the conduct falling within s 76 and, when allowance is made for the Applicant’s plea, the indicative sentences for that conduct should be low on the scale. It must not be forgotten that any period in prison is a substantial punishment. The fact that offences 2 and 3 occurred on one occasion, that offences 8 and 9 did also and that the offences taken into account occurred at more or less the same time as offences 1 and 2, given the nature of them, tends to lessen the demand for accumulation consequent on those offences.

81. It is also relevant to bear in mind that, as the decision in Magnuson v R [2013] NSWCCA 50 at [92]-[95] records, many and perhaps most offenders convicted of indecent assault prior to 1981 received non-custodial sentences. Given that the details of the offences reflected in the statistics referred to in that case are not apparent, that circumstance cannot be taken too far and in any event I would not regard non-custodial sentences as appropriate for the Applicant’s more serious offences. However, judged by the sentencing standards operating at the time of his offending, had the Applicant’s less serious offences stood alone non-custodial sentences for them may well have been imposed.

82. I accept that the Applicant’s ejaculation on the occasion of two of his offences increased the seriousness of those two. More significant is the fact that a further two of the offences involved digital penetration of girls of, or not much above, the age of 7. I would not characterise those offences as low on the scale of offences falling within the statutory provision. Furthermore there were four victims, a factor which also argues for more rather than less accumulation.

83. Weight must also be given to the Applicant’s rehabilitation – a finding which her Honour should have made. Not only was there the absence of any evidence of offending since 1978 but evidence that the Applicant had not offended against them was given by the Applicant’s step-daughter and own son and daughter who had all been young children while parented by him. A family friend whose children had also had regular contact with the Applicant also attested to those children being adamant that the Applicant had done nothing improper to them. None of this evidence was challenged.

84. Two of the five purposes for which criminal punishment is imposed are rehabilitation of an offender and deterrence of him from re-offending - see Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 so rehabilitation prior to sentencing argues significantly in favour of a lighter sentence than otherwise might be appropriate. – see Wright v R [2008] NSWCCA 91 at [14].

85. In R v Todd [1982] 2 NSWLR 517 at 519 Street CJ, in a passage subsequently endorsed by the High Court in Mill v The Queen [1988] HCA 70;166 CLR 59 observed:

Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measurement of understanding and flexibility of approach – passage of time between offence and sentenced, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

86. Also relevant are remarks of Howie J, with whom Fitzgerald JA agreed, in Moon v R [2000] NSWCCA 534; 117 A Crim R 497 at [81]:

In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court.

87. The passage was accepted in AJB v The Queen [2007] NSWCCA 51; 169 A Crim R at 30.

88. It remains to apply these various considerations in addition to other general sentencing principles to the circumstances of this case. In my view they lead to the following indicative sentences for the counts listed:-

(i)   Rubbing penis outside underpants and ejaculating –    8 months

(ii)   Rubbing penis against vagina –             6 months

(iii)   Forcing victim to touch penis –             6 months

(iv)   Rubbing penis against vagina and ejaculating –    8 months

(v)   Digital penetration –                18 months

(vi)   Touching boy’s penis –                4 months

(vii)   Touching boy’s penis outside clothes –          3 months

(viii)   Digital penetration –                2 years

(ix)   Touching genital area –                6 months

89. The additional offences taken into account in determining the sentence for count 1 were of touching a vagina at the same time as offences (1) and (2).

90. Of course the principle of totality and the fact that the hardship of a prison sentence is not simply proportional to its length mean that these periods should not simply be added together. Thus I agree with Hoeben CJ at CL that an aggregate sentence of 5 years imprisonment is appropriate.

91. At the time of the Applicant’s offending the non-parole periods imposed were usually of the order of one-third to one-half of the head sentence - MPB v R at [93]. In the circumstances of this case, and in particular the Applicant’s rehabilitation and remarks in some of the earlier cases that I have quoted, I regard it as appropriate to adopt the top of this range but not go beyond it. Accordingly, I would impose a non-parole period of 2 years 6 months. The sentencing practice at the time of the Applicant’s offending constitutes special circumstances justifying a departure from the ratio set forth in s 44 of the Crimes (Sentencing Procedure) Act.

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Decision last updated: 02 March 2017