Ingham v R
[2014] NSWCCA 123
•10 July 2014
Court of Criminal Appeal
New South Wales
Case Title: Ingham v R Medium Neutral Citation: [2014] NSWCCA 123 Hearing Date(s): 5/05/2014 Decision Date: 10 July 2014 Before: Basten JA at [1];
Fullerton J at [2];
R A Hulme J at [48]Decision: Allow the appeal.
The sentences imposed in the District Court on 19 September 2008 are quashed.
In lieu, the following sentences are imposed:
For count 3 (an offence contrary to s 61M(2) of the Crimes Act committed against CBS) a non-parole period of 3 years to commence on 20 October 2006 and to expire on 19 October 2009, with an additional term of 1 year to commence on 20 October 2009 and to expire on 19 October 2010.
For count 8 (an offence contrary to s 61M(2) of the Crimes Act committed against JAW) a non-parole period of 3 years to commence on 20 October 2006 and to expire on 19 October 2009, with an additional term of 1 year to commence on 20 October 2009 and to expire on 19 October 2010.
For count 9 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 9 years to commence on 20 October 2006 and to expire on 19 October 2015, with an additional term of 4 years to commence on 20 October 2015 and to expire on 19 October 2019.
For count 10 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019.
For count 11 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019.
For count 12 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019.
For count 7 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 6 years to commence on 20 October 2010 and to expire on 19 October 2016, with an additional term of 2 years to commence on 20 October 2016 and to expire on 19 October 2018.
For count 5 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 9 years to commence on 20 October 2010 and to expire on 19 October 2019, with an additional term of 4 years to commence on 20 October 2019 and to expire on 19 October 2023.
For count 2 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 7 years and 6 months to commence on 20 April 2012 and to expire on 19 October 2019, with an additional term of 2 years and 6 months to commence on 20 October 2019 and to expire on 19 April 2022.
For count 4 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 7 years and 6 months to commence on 20 April 2012 and to expire on 19 October 2019, with an additional term of 2 years and 6 months to commence on 20 October 2019 and to expire on 19 April 2022.
For count 6 (an offence contrary to s 66B of the Crimes Act committed against CBS) a non-parole period of 6 years to commence on 20 October 2013 and to expire on 19 October 2019, with an additional term of 2 years to commence on 20 October 2019 and to expire on 19 October 2021.
The total effective term of imprisonment is 17 years commencing on 20 October 2006 and comprised of a non-parole period of 13 years expiring on 19 October 2019 and a balance of term of 4 years expiring on 19 October 2023.
The earliest date the applicant will be eligible for release is 19 October 2019.
Catchwords: CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - sexual assault against a child under the age of 10 - multiple counts - multiple victims - statutory ratio between non-parole period and balance of term - whether lesser sentence warranted at law - relevance of post offence conduct and custodial conditions - re-sentence Legislation Cited: Crimes Act 1900 (NSW)
Crimes Amendment (Sexual Offences) Act 2003 (NSW)
Criminal Appeal Act 1912 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)Cases Cited: Ali v R [2014] NSWCCA 45
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Carlton v R [2014] NSWCCA 14
Doe v R [2013] NSW CCA 248
EK v R [2010] NSWCCA 199; 79 NSWLR 740, 208 A Crim R 157
Filippou v R [2013] NSWCCA 92
Grant v R [2014] NSWCCA 67
Ingham v R [2011] NSWCCA 88
Jones v R [2012] NSWCCA 262
Montero v R [2013] NSWCCA 214
Muldrock v R [2011] HCA 39, (2011) 244 CLR 120
R v Burke [2002] NSWCCA 353
R v Douar [2005] NSWCCA 455; 159 A Crim R 154
R v Gavel [2014] NSWCCA 56
R v Nguyen [2013] NSWCCA 195
R v PGM [2008] NSWCCA 172; 187 A Crim R 152
R v Smith [2011] NSWCCA 163
R v Way [2004] NSWCCA 131; 60 NSWLR 168
RJA v R [2008] NSWCCA 137; 185 A Crim R 178
RJA v R [2014] NSWCCA 89
RLS v R [2012] NSWCCA 236
Simpson v R [2014] NSWCCA 23
ZZ v R [2013] NSWCCA 83Category: Principal judgment Parties: Heath Jarrett Ingham (Appellant)
The Crown (Respondent)Representation - Counsel: Counsel:
I McLachlan (Appellant)
R Herps (Crown)- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)File Number(s): 2007/12182 Decision Under Appeal - Court / Tribunal: District Court - Before: Geraghty DCJ - Date of Decision: 19 September 2008 - Court File Number(s): DC 2007/21/1104
JUDGMENT
BASTEN JA: I agree with Fullerton J.
FULLERTON J: In April 2008 the appellant was convicted after trial of eleven offences committed against two children, CBS aged 9 and JAW aged 8. All offences were committed over the course of a weekend in October 2006 at CBS's home.
Eight of the eleven counts on the indictment alleged sexual intercourse with a person under 10 years of age contrary to s 66A(1) of the Crimes Act 1900 (NSW) (three committed against CBS and five against JAW); one count alleged an attempt to have sexual intercourse with CBS contrary to s 66B of the Crimes Act; and two counts alleged aggravated indecent assault contrary to s 61M(2) of the Crimes Act, one count each against CBS and JAW.
At the time of the offending the maximum penalty for offences contrary to s 66A(1) was 25 years imprisonment to which a standard non-parole period of 15 years applies: Crimes Amendment (Sexual Offences) Act 2003 (NSW). The maximum penalty for each of the two offences contrary to s 61M(2) was 10 years imprisonment with a standard non-parole period of 5 years. The maximum penalty for the offence against s 66B is 25 years imprisonment. No standard non-parole period attaches to that offence.
In September 2008 the appellant was sentenced to imprisonment for an effective term of 22 years and 4 months comprised of an effective non-parole period of 17 years and a balance of term of 5 years and 4 months.
The effective non-parole period was the inevitable result of ten of the eleven offences attracting a standard non-parole period (and eight of those a standard non-parole period of 15 years) and where the sentencing judge concluded that because there was nothing in the appellant's subjective circumstances mitigating the objective seriousness of mid range offending or offending above the mid range (a finding he made in respect of six offences) he was effectively obliged to impose the standard non-parole period. When sentencing his Honour said:
"As the law stands, because I have decided some of these offences are above the mid range, and some are at the mid range, and because Ingham did not plead guilty, I have in the circumstances very limited room to exercise any discretion to determine the length of the non-parole period. I must exercise the little discretion I have to decide a total sentence, by balancing periods of concurrence and periods of accumulation."
His Honour found three of the eight offences in breach of s 66A of the Crimes Act in the mid range (one offence involving cunnilingus of CBS and two offences of cunnilingus and fellatio involving JAW) and two offences in breach of s 66A(1) above the mid range (each involving penile penetration of one of the children). For the three s 66A(1) offences in the mid range non-parole periods equivalent to the standard non-parole period of 15 years were imposed in each case with a balance of term of 5 years. A non-parole period of 16 years was imposed on the two counts above the mid range in both cases with a balance of term of 5 years and 4 months. The remaining three s 66A(1) offences, each involving digital penetration of both children, were found to be below the mid range in respect of which non-parole periods of 10 years were imposed with a balance of term of 3 years and 4 months. For each of these sentences the balance of term was fixed in accordance with the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
For the offence of attempted sexual intercourse contrary to s 66B for which no standard non-parole period applied, a non-parole period of 9 years with a balance of term of 3 years was imposed. The fixed terms of 8 years for the two offences against s 61M(2) of the Crimes Act were quashed on appeal and non-parole periods and additional terms were fixed in accordance with the statutory ratio.
The sentences for the five offences involving CBS were ordered to be served concurrently and the sentences for the six offences involving JAW were also to be served concurrently with each other. There was an order for accumulation of 12 months between the sentences referable to CBS and those referable to JAW. Since each child was the victim of one count of sexual intercourse assessed by his Honour as above the mid range and attracting a non-parole period of 16 years and a balance of term of 5 years and 4 months in each case, the order for accumulation of 12 months resulted in an effective non-parole period of 17 years against which a balance of term of 5 years and 4 months was fixed. This exceeded the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act.
The sentencing judge wrongly attributed a standard non-parole period of 8 years to the two s 61M(2) offences. This was the subject of one of the nine grounds upon which leave to appeal against sentence was sought in 2010 (Ingham v R [2011] NSWCCA 88). An appeal against conviction was dismissed. Error in the attribution of the standard non-parole period for the two s 61M(2) offences was conceded by the Crown with the sentences on both counts quashed and the appellant re-sentenced on those counts. There was no adjustment to the overall sentence on re-sentence as the substituted sentences on the two s 61M(2) counts were wholly subsumed by the undisturbed sentences on all other counts.
Error in the approach of the sentencing judge to a number of aggravating factors was also identified, although not attracting the intervention of the Court. One of these concerned the fact that the offences were committed in CBS's home. The Court held that since he was an invited guest this did not amount to aggravation for the purposes of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act adopting the reasoning in EK v R [2010] NSWCCA 199; 79 NSWLR 740, 208 A Crim R 157 at [79] per RA Hulme J (McClellan CJ at CL and Simpson J agreeing). I note that more recently in Montero v R [2013] NSWCCA 214, RA Hulme J observed at [54] that even though the aggravating factor is limited to cases where an intruder has broken into the victim's home, where an assault involves, as it did here, violation of the expectation of safety and security in the home, the offence is more serious.
Other grounds upon which the application for leave to appeal against sentence was advanced were dismissed including what was said to be error in the sentencing judge's assessment of the objective gravity of the offences attracting a standard non-parole period by reference to a "mid range offence" rather than an offence "in the middle of the range".
In dismissing the ground of appeal that challenged the individual sentences and the aggregate sentence as excessive McClellan CJ at CL (with whom James and Davies JJ agreed) said:
"[126] ... The sentences which were imposed by the sentencing judge are largely a result of the legislated standard non-parole periods for the particular offences and his Honour's findings in relation to the objective seriousness of each offence. The legislative regime has the inevitable consequence that the overall sentence would be severe. It is not for a sentencing judge or this Court to do other than sentence in accordance with the regime provided by the Parliament.
[127] The applicant submitted that the sentences imposed upon the applicant were severe. A table of "comparable" cases was provided and it was submitted that by reference to those decisions it could be demonstrated that the sentences passed upon the applicant were manifestly excessive.
[128] The applicant emphasised the decision in SGJ v R; KU v R [2008] NSWCCA 258. It was submitted that the circumstances of the offences in that case were much worse than the present, involving as it did a greater number of offences, against 7 victims ranging in age from 5 to 10 years. In SGJ, some of the victims were contacted by advertising child minding services. The offences occurred over many months, were committed in company with a co-offender and were used to create a permanent photographic record in respect of 5 of the 7 victims. On appeal, the aggregate sentence of 22 years, consisting of a non-parole period of 15 years, and an additional term of 7 years was confirmed in the case of SGJ. However, in relation to KU, her sentence was reduced to include a non-parole period of 13 years with an additional term of 7 years.
[129] To my mind, the decision in SGJ and KU is not of great assistance. There are a number of differences between those two cases and the current case. Both SGJ and KU pleaded guilty to many of the counts. The present applicant pleaded not guilty. Both SGJ and KU had no history of committing offences of a sexual nature. The present applicant has a previous conviction for sexual assault upon a child under 10 in 1999. Furthermore, SGJ had a history of psychiatric illness associated with drug taking. The same is not true of the applicant, although I acknowledge that the applicant was diagnosed as having an avoidant personality disorder with some schizoid and self-defeating characteristics. Both SGJ and KU were remorseful for their actions. The same cannot be said for the applicant. In any event, the sentence imposed on SGJ of 22 years was the same as that imposed on the applicant although SGJ received a discount for his plea.
[130] In the result I have not found those decisions to be of particular utility in the sentencing of the offender. Each case has its own distinctive circumstances. The appropriate sentences for the appellant will reflect findings as to the circumstances of the offences, the appellant's subjective matters and the penalty regime provided by the Parliament.
[131] It is important to appreciate his Honour was required to sentence the appellant in accordance with the relevant provisions of the Crimes (Sentencing Procedure) Act 1999. Having determined that an offence was in the middle of the range of objective seriousness in accordance with s 54A(2) his Honour was required by s 54B(2) to set the standard non-parole period as the non-parole period for the offence unless he determined that there were reasons for setting a different period. The sentencing judge determined that there were no reasons for setting a different non-parole period which contributed significantly to the sentence ultimately imposed."
The facts
At [7]-[11] and [13]-[18] McClellan CJ at CL sets out a convenient summary of the facts:
"[7] CBS's mother was separated from her husband. She regularly played tenpin bowls on Friday nights. The applicant was a friend of CBS's mother and had won her confidence. He often stayed the weekend with CBS's family, from Friday night until Sunday evening. He would entertain the children and (particularly on Friday nights) babysit them.
[8] CBS developed an infatuation for the applicant. Sometimes she slept in the same bed as him, and although her mother initially tried to discourage this, the sleeping arrangement was allowed to continue. At times the applicant bathed CBS and wrapped her in a towel.
[9] CBS and JAW were friends and spent a lot of time together. Evidence was led by the Crown as to sexual offences having been committed by the applicant against CBS and JAW on the preceding weekend to the offences of which the applicant was convicted.
[10] The offences were allegedly committed in CBS's bedroom during the night of 13 October 2006, a Friday. It was JAW's eighth birthday and she slept over at CBS's house. The applicant was babysitting while CBS's mother was at the tenpin bowling alley. Throughout the course of that night and the morning of 14 October, the two girls and the applicant watched television and slept in various places, moving from CBS's bedroom to the lounge room and back again.
[11] At times there were other adults present. JAW's aunt was there for a time, and at some stage CBS's mother and her partner came home from the tenpin bowling alley and went to the bedroom of CBS's mother.
[12] ...
[13] JAW's aunt, LKW, gave evidence that she received a complaint from both JAW and CBS regarding sexual activity by the applicant towards them. JAW also made complaint to her uncle, DW.
[14] JAW was interviewed on 17 October 2006 and again on 6 November 2006. She gave an account of the events and stated that she had seen the applicant use a condom on his penis when committing offences on CBS. She saw the applicant get this item from his bag. She gave a description of the item and its wrapper consistent with that of a condom. She later saw the applicant dispose of the condom.
[15] CBS was interviewed on 18 October 2006 and again on 31 October 2006. She gave an account of events including that the applicant had obtained five condoms from his bag and used three of them on her during the evening and two on JAW the following morning. She saw "white stuff" in the condoms after they had been used.
[16] On 17 October 2006 police searched the premises and found two empty condom wrappers and five condoms in a recycling bin at CBS's home. These were taken for DNA testing.
[17] Police arrested the applicant on 20 October 2006 and he was interviewed. He denied the allegations and denied that he had been in possession of condoms at CBS's residence. The applicant provided a sample of his DNA to investigators.
[18] The condoms were tested. Semen was detected on four of the five condoms. DNA consistent with the profile of the applicant's DNA was found inside four of the five condoms. DNA consistent with the DNA profile of CBS was found on the outside of three of the condoms."
At [12] of his Honour's judgment the facts referable to the individual offences were extracted from the appellant's outline of submissions with which the Crown agreed. To that summary of facts I have added the sentencing judge's findings as to the objective seriousness of each count and the sentences imposed by him (except counts 3 and 8 which were the subject of re-sentence):
"...
Count 2: CBS woke to find the applicant sitting on his knees at the end of her bed as she was lying on her side facing the wall. He pulled her pants down to her knees and digitally penetrated her by putting fingers inside her vagina. [This was the first s 66A offence involving CBS. It was an act of digital penetration and was assessed as below the midrange. It attracted a non-parole period of 10 years and a balance of term of 3 years and 4 months.]
Count 3: The applicant had been lying on top of CBS, who was lying on her back. He pulled up her pyjamas, pulled her bra up and, using his tongue, began to lick her breasts. [This was the indecent assault involving CBS. On re-sentence it attracted a non-parole period of 5 years and a balance of term of 1 year and 8 months. That sentence expired on 19 June 2013.]
Count 4: The applicant had oral sexual intercourse with CBS by using his tongue to lick her vagina. [This was the second s 66A offence involving CBS. It was found to be offending in the midrange. It attracted a non-parole period of 15 years and a balance of term of 5 years.]
Count 5: The applicant pulled down CBS's pants as well as his own. Either he or CBS applied a condom to his penis, and he lay on top of CBS [put his penis into her vagina] and was "humping and jumping" on her, as described by JAW. [This was the third s 66A offence involving CBS. It was found to be offending above the midrange. It attracted a non-parole period of 16 years and a balance of term of 5 years and 4 months.]
Count 6: The applicant attempted sexual intercourse by way of fellatio, but he was unable to insert his penis into CBS's mouth because she refused to open her mouth. [This was the only charge under s 66B. It attracted a non-parole period of 9 years and a balance of term of 3 years.]
Count 7: The applicant was in CBS's bedroom with JAW and CBS, JAW was lying on her back on the bed. The applicant pulled his pants down, got on top of her, put his penis in her mouth and moved up and down with his penis. [This was the first s 66A offence involving JAW. It was found to be offending in the midrange. It attracted a non-parole period of 15 years and a balance of term of 5 years.]
Count 8: JAW was on the bed in CBS's room, lying on her back. The applicant was lying next to her, between JAW and CBS. He pulled up JAW's top and sucked her breast. [This was the indecent assault involving JAW. On re-sentence it attracted a non-parole period of 5 years and a balance of term of 1 year and 8 months. That sentence expired on 19 June 2014. ]
Count 9: JAW was lying on her bed on her back. The applicant pulled her pants down, lay on top of her, and put his penis inside her vagina, moving up and down. JAW felt pain at the time because he was "pushing it in". [This was the second s 66A offence involving JAW. It was found to be offending above the midrange. It attracted a non-parole period of 16 years and a balance of term of 5 years and 4 months.]
Count 10: JAW was lying on her back. The applicant was lying next to her. He pulled her pants and underpants down and inserted his fingers into her vagina, moving his finger around and causing soreness to her vagina. Both JAW and CBS, trying to pull the applicant off JAW, kicked him off the bed. JAW attempted to scream but the applicant put his hand over her mouth. [This was the third s 66A offence involving JAW. It was found to be offending below the midrange. It attracted a non-parole period of 10 years and a balance of term of 3 years and 4 months.]
Count 11: JAW and CBS were in CBS's bed when the applicant entered the room. He pulled JAW's pants down and put his fingers in her vagina. She tried to push his hand away but he insisted. [Same as count 10.]
Count 12: JAW was lying on the bed. The applicant held onto her legs and licked her on the outside of the vagina, moving his tongue around. [This was the fifth s 66A offence involving JAW. It was found to be offending in the midrange. It attracted a non-parole period of 15 years and a balance of term of 5 years.]"
The factors the sentencing judge took into account in the assessment of the objective seriousness of the individual offences and the appellant's subjective circumstances were are also extracted as follows:
"[91] The sentencing judge said:
"Firstly, I consider the overall narrative of what occurred on 13 and 14 October 2006 and all the surrounding circumstances which relate to each of the individual offences. I consider, for example, the background of the relationship between the offender and CBS's family, between the offender and CBS, as well as the background of the relationship which developed between the offender and JAW arising out of her relationship with CBS.
I consider the sexual activities involving CBS on the weekend before, so that these offences, in my estimation, were not isolated incidents, not spur of the moment offences when the offender was suddenly overcome with sexual fantasy and drive.
I take into consideration the position of trust enjoyed by Ingham vis--vis the CBS's family and both victims. He abused his position of trust. He ingratiated himself with a family, and with the children by entertaining them, by babysitting them, by showering presents on them, and then abusing that trust.
I consider the degree of ...planning for the offence. The offender had had no sexual partner for two years, as appears from exhibit 1, a report from W John Taylor dated 31 July 2008, and yet he had condoms in his overnight bag.
I consider the fact that all of the offences were committed in the presence of the other complainant, who on each occasion was under the age of eighteen years, and observed by each as her friend was being assaulted. I take account of the fact that the offences were committed in the home of one of the victims, which is also an aggravating factor; and that the offences were committed for the offender's own sexual gratification.
The indecent assaults were carried out in the context of an intention to perform penile penetration, cunnilingus, digital penetration and fellatio. The overall sexual activity involved all those activities, as well as the application of a condom to at least one of the victims, and multiple acts over a period of two days. I consider that overall context when coming to a decision as to the objective seriousness of each offence, and where each one is positioned on a spectrum either side of a medium range offence. There was an element of force involved in at least one of the offences, where the offender placed his hand over the mouth of JAW to prevent detection, but there was no threat to ensure silence or nondisclosure.
I consider also the two different victims. CBS was nine years and three months; JAW was just eight years old. The difference in age makes some difference in my assessment, since one girl was one year and three months younger than the other. It seems to me that the offences committed on JAW were somewhat more serious (because of the age at least) than those on CBS (though it is difficult to determine how much more) and in considering this factor, I am encouraged by the decision in R v AJP (2004) 150 A Crim R 574, and RJA [2008] NSWCCA 137.
I also consider that neither victim seems to have suffered serious physical damage. JAW presented no medical evidence on physical damage; CBS's medical evidence was of some redness - though I do note, young and all as the girls were at the time, there are victim impact statements in which CBS states, inter alia that when Heath was doing -
"Those things to me, I thought I was not a person. I felt embarrassed and ashamed. I couldn't tell anyone because I thought I would get into trouble".
She said that she was very angry because Heath told her to do those things and what to do, and did not care about her..."
"In coming to some assessment of the objective seriousness and the place of each offence in relation to the mid range offence, I also take into account that there is no evidence as to how long each offence lasted; no evidence of any full penile penetration, only limited entry into the genital region. There is evidence however, of the nature of the sexual act, which can also be important since in general terms at least, penile penetration is considered more serious than digital; and in general terms, full penile penetration more serious than the fellatio or cunnilingus, but only in general terms, so that circumstances of course vary ...".
Subjective features
His Honour summarised the appellant's subjective circumstances, drawn from the report of Mr Taylor, a clinical forensic psychologist, as follows:
"Exhibit 1 is a report dated 31 July 2008, of a clinical forensic psychologist W John Taylor. According to the report, the offender was born in 1971 and is therefore thirty-seven years of age. He is single, never married, and has never had any significant relationship. His last casual relationship was with a girl when he was twenty-one. He is described by Mr Taylor as rather quiet. Ingham told him that even today he finds it hard to make friends and that, while he was at school he was frequently the victim of bullying. He moved around a good deal as his stepfather was in the army, and attended nine different schools. In primary school he had some learning difficulties due to dyslexia.
Since leaving school and since the age of eighteen, the offender has worked as a labourer in a mill, for two weeks; as a shelf stacker at supermarkets; a trolley collector; as a trainee at a long day care centre at Wollongong for six months, (which, I must say causes a cold shiver in my heart); at the Barnardo's Homes for twelve months in the area of vocational care; and then for five years, at the Auburn Council as a garbage collector. His physical health has always been quite good, according to the report. He was never the victim of any sexual abuse. He has never enjoyed a lasting sexual relationship, and his only sexual experience has been through masturbation. He denied that he was ever attracted to under-age girls, and denied fantasies with regard to young girls or boys. He does not use illegal drugs. He does not drink to excess, or gamble. He was first convicted of shoplifting at nineteen, and then in July 1999, of two counts of sexual intercourse with a person under ten. These are not his first offences.
When speaking to Mr Taylor, he continued to maintain his innocence, both with regard to the earlier two offences in 1999, and now. The doctor diagnosed an avoidant personality disorder, with some schizoid and self-defeating characteristics in his personality adjustment, "The nature of his criminal offending behaviour also diagnoses him with paedophilia."
Mr Taylor records that Ingham perceives himself as socially inept, inadequate and inferior. His internalised representations are composed of readily reactivated intense and conflict ridden memories of problematic earlier social relations. He has limited avenues for experiencing or recalling gratification, and few mechanisms to channel his needs, bind his impulses, resolve conflicts or defeat external factors. The results of testing did not show that he was experiencing "significant symptoms of anxiety or depression". There was no significant anger pathology. He is, it seems to me on the report, in all ways just an ordinary person, rather quiet, withdrawn and without problems, except this particular problem associated with these offences.
Ingham experiences, according to Mr Taylor, a considerable degree of social anxiety and distrust. He has quite strong needs for approval, acceptance and support. He is unable to establish appropriate relationships through which his needs can be met.
Mr Taylor concluded that the results of his examination indicated that Ingham has a moderate risk of recidivism. He presented as a person of about average intellectual ability. He had a close relationship with his mother and his stepfather, since his natural father died of cancer when he was less than a year old."
With respect to other considerations his Honour said:
"... It cannot be said that this offender is unlikely to reoffend. Mr Taylor identifies a moderate risk of recidivism. Since these are his second offences, and since he is unable to confront his problem, it seems to me that one cannot confidently say he is unlikely to reoffend."
Muldrock error
Following the decision in Muldrock v R [2011] HCA 39, (2011) 244 CLR 120 the appellant sought an enquiry into his sentence under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW). The Attorney General conceded that referral under s 78(1) was warranted.
On 19 December 2013 Latham J granted the application and referred the matter to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). Her Honour was satisfied that the sentencing judge's prescriptive approach to the imposition of the standard non-parole period where the offence under consideration was in or above the mid range was contrary to the principled approach identified by the High Court in Muldrock. She was also satisfied that referral was warranted because the Court of Criminal Appeal, relying upon the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168, had rejected the ground of appeal against sentence that challenged the sentencing judge's approach to the standard non-parole period where the offence under consideration was in or above the mid range, the approach since disapproved of by the High Court.
The sole ground of appeal is in the following terms:
"The sentencing judge erred in his consideration of the respective standard non-parole periods in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120."
The Crown conceded Muldrock error. That being the case the question is whether, in undertaking the re-sentencing exercise for each of the ten offences the subject of a standard non-parole period, the imposition of a lesser sentence is warranted at law as provided for in s 6(3) of the Criminal Appeal Act.
There was no challenge to the assessment of any of the offences relative to an offence in the middle of the range of objective seriousness, or any of the sentencing judge's related findings of fact bearing upon the nature and duration of the sexual assaults committed against each of the children. As RA Hulme J observed in Carlton v R [2014] NSWCCA 14, an assessment of objective seriousness referable to mid range offending does not run counter to Muldrock. The question is whether in undertaking the re-sentencing exercise enlivened by a finding of Muldrock error, the imposition of a lesser sentence is warranted at law. That exercise requires that all relevant statutory requirements and sentencing principles be taken into account to inform the positive opinion provided for in the section referable to the facts found by the sentencing judge that are unaffected by the Muldrock error (see Baxter v R [2007] NSWCCA 237; 173 A Crim R 284; see also RLS v R [2012] NSWCCA 236 at [98]; and ZZ v R [2013] NSWCCA 83 at [97]).
The approach to sentence mandated in Muldrock requires a synthesis of all factors bearing upon an appropriate sentence for each of the ten counts on the indictment to which a standard non-parole period attaches, including the objective gravity of that offending and the impact of any aggravating factors; the appellant's subjective circumstances and the legislative guidance offered by the maximum penalties and the standard non-parole periods, without the latter being prescriptive or exerting undue influence in the determination of an appropriate sentence. The standard non-parole period is not to be used as a starting point for a mid range offence after conviction; neither is it to have determinative significance (Muldrock at [31]). It may, however, be a more significant factor where an offence is in the mid range (or above) of objective seriousness and where there is little operating in the offender's favour (see Filippou v R [2013] NSWCCA 92 at [116]; R v Nguyen [2013] NSWCCA 195 at [63]).
The extent to which there needs to be an order for partial accumulation of some or all of the individual sentences will also need to be considered to ensure the total effective sentence reflects the criminality across all offences.
In determining whether another sentence is warranted at law, consideration must be given to the evidence relied upon by the appellant as it relates to his custodial conditions since he was sentenced in October 2008 and his conduct as a prisoner since that time. In R v Douar [2005] NSWCCA 455; 159 A Crim R 154 at [123] Johnson J considered the admissibility of evidence of this kind for the purposes of s 6(3) adopting the principled approach to that question in R v Burke [2002] NSWCCA 353 at [82]-[92].
The relevance of evidence of post-offence conduct in cases where a Muldrock error has been conceded or established will vary from case to case. In Ali v R [2014] NSWCCA 45 the appellant accepted criminal responsibility and expressed remorse for the offending hitherto denied over many years, made efforts to obtain psychological help to provide insight to his offending, including completing eleven of fourteen sessions in the CUBIT preparatory program before he was advised by the Legal Aid Commission that his sentence was being reviewed following the High Court decision in Muldrock. Taken together these factors led the Court to conclude that a lesser sentence was warranted in law. In Grant v R [2014] NSWCCA 67 the appellant's deteriorating health whilst serving the sentence under review also attracted the intervention of the Court.
The appellant relied upon an affidavit affirmed on 27 March 2014 in which he set out his custodial history including his current classification status as an A2 inmate at Goulburn Gaol where he has been a prisoner since May 2009.
He was on "non-association protection", at his own request, for a few months when first taken into custody in October 2006 after being assaulted in police cells by another prisoner who was aware of the fact that he had been charged with child sex offences. Between 2007 and 2009 he was on "limited association" protection.
On sentence in 2008 the sentencing judge was asked to take into account (it would appear in support of a finding of special circumstances) that the appellant would serve his sentence "on protection" and be denied work, educational courses and recreational opportunities. His Honour declined to make that finding in the absence of any evidence that the appellant's custody would prove more onerous, observing that child sex offenders were, to his understanding, housed in "special gaols" and afforded access to "courses and treatment".
Since May 2009 the appellant has been on what he described as "normal protection", having been assured of his safety within the Special Management Area Placement which is specifically designed for the management of offenders who are serving sentences for sexual offending involving children. In a letter annexed to an affidavit sworn by the Crown's instructing solicitor and read by the Crown on the appeal, Mr Bolger, the General Manager of the Goulburn Correctional Centre, confirmed that the appellant will be managed under that arrangement for the duration of his sentence, having the same scheduled access to all programs and services as are shared among the various groups of inmates at Goulburn. Mr Bolger also confirmed the appellant's evidence that he has not been the subject of any breaches of prison discipline since his incarceration and that he has been employed as a librarian at the Goulburn Correctional Centre since December 2012.
The appellant gave evidence that he has worked industriously and with initiative in this position. He also expresses a willingness to undertake a therapeutic program for sex offenders and has spoken with staff about the Sex Offenders' Preparatory program and CUBIT which he has been given to understand will not be available to him until he is within the last few years of his non-parole period. Mr Bolger confirms that the program is offered to offenders within two years of their earliest release date and that the appellant has been given a referral package to complete a preparatory course prior to CUBIT. The appellant also indicates a willingness to participate in the "Managing Emotions" course which has been recommended to him.
In my view, despite the insights the appellant's evidence offers as to how his sentence has been served to date, neither evidence of his proven compliance with prison discipline nor the fact that he was on non-association protection for a relatively short period in 2006/2007, limited association protection for about two years, and thereafter "normal protection", justifies interference with the sentences imposed by the sentencing judge. In addition, and despite the appellant's willingness to participate in programs specifically designed for the rehabilitation of sex offenders, what remains significant is that he does not express remorse nor accept responsibility for his past offending (the position he took on sentence), both factors which diminish the weight to be afforded any suggested improvement in his prospects of rehabilitation because of the programs offered in prison. There was no evidence updating the appellant's risk of reoffending.
In my view, whether any lesser effective sentence is warranted will be dictated in this case by focusing on whether the sentences for all or any of the eight s 66A offences can be sustained. Were the sentences imposed for those offences undisturbed, and were the orders for accumulation and concurrency across all offences maintained, any re-sentence on the remaining two s 61M(2) offences would have no effect on the appellant's effective non-parole period, the non-parole periods imposed for both offences having since expired. On the other hand, if a lesser sentence is warranted for any or all of the eight s 66A offences, a restructuring of the commencement dates of all sentences (even in respect of the offences where the non-parole period has expired) is unavoidable.
The Crown submitted that despite Muldrock error, after appropriate consideration is given to both the maximum penalty of 25 years and the standard non-parole period of 15 years for each of the eight s 66A offences as legislative guideposts, and where the objective seriousness of each count is unmitigated by anything in the appellant's subjective circumstances or the evidence led on appeal, no lesser effective sentence would result.
The Crown also submitted that the appellant has the benefit of a considerable amelioration of the impact of the sentences imposed by a modest accumulation of 12 months. The Crown submitted that given that the sexual offending involved multiple assaults of two young children over the course of a weekend, an order for partial accumulation of each of the individual sentences for the s 66A offences is the appropriate sentencing structure and not the very modest accumulation ordered by the sentencing judge. The Crown submitted that even if some adjustment to the individual sentences might be warranted in recognition of the overly prescriptive approach of the sentencing judge to the standard non-parole periods, once the sentencing order is restructured, no lesser effective sentence will result.
I accept that even on re-sentence a lengthy effective sentence is inevitable in order to reflect the fact that, amongst other features of objective seriousness, CBS was apparently groomed over some months and where the assaults of both children were planned with JAW's birthday party sleepover affording him that opportunity. Although the offending on the indictment extended over a period of days and not over weeks, months or years, it was not isolated and opportunistic offending (see Jones v R [2012] NSWCCA 262 at [96]). It was also offending in violation of the children's legitimate expectation that CBS's home was a place of safety and refuge.
The length of the effective sentence must also reinforce the need for the criminal law to protect children from sexual exploitation and sexual violation and for appropriate recognition to be given to the standard non-parole period and maximum penalty the parliament has provided for sexual intercourse with a child under 10 years. It is now well established that sexual offending against children has profound and deleterious effects for many years. As this Court recognised in R v Gavel [2014] NSWCCA 56 at [110] the absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm they are subjected to when they are forced to engage in sexual activity.
As noted, there is nothing in the appellant's personal circumstances to mitigate the weight to be given on sentence to the objective seriousness of his offending. He was not a person who was able to rely on good character given his criminal record for offending of the same kind as the offences for which he stood trial (cf RJA v R [2014] NSWCCA 89).
Both counsel referred to cases in this Court where sentences for multiple breaches of s 66A(1) have been the subject of review either by way of an application for leave to appeal sentence brought by an offender or a Crown appeal against inadequacy. While there are some common features in each of the cases referred, no two cases are parallel and few are relevantly comparable. The facts and circumstances of each case vary depending on the age of the child, the duration and extent of the sexual assaults, and the extent to which the conduct involves a breach of trust in addition to that which is inherent in the sexual abuse of a child under 10 by an adult. The utility of drawing any conclusions as to an appropriate penalty range was further limited because many cases were decided when the principles in R v Way were the applicable law (see RJA v R [2008] NSWCCA 137; 185 A Crim R 178; and R v Smith [2011] NSWCCA 163 where many of the cases to that date were summarised by RS Hulme J). It is also necessary that sentences imposed after the maximum penalty for s 66A was increased in 2009 are disregarded despite the fact that the standard non-parole period remained at 15 years.
I accept that there is no hierarchy of seriousness for a breach of s 66A(1) with penile penetration at the apex. Other means and mechanisms by which the offence can be committed may, in a particular case, be equally if not more objectively serious. I also accept, as was most recently restated in Simpson v R [2014] NSWCCA 23 at [33]-[34] citing Doe v R [2013] NSW CCA 248 at [54] that there is no authority in this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than other forms of forced sexual intercourse. In Doe at [54] it was stated that:
"... Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness."
Although both Simpson and Doe were concerned with sexual intercourse without consent involving adult victims, in Gavel, where breaches of s 66A were under review on a Crown appeal, Doe and Simpson were cited with equal application (at [97]).
In this case, although I regard the two counts of penile penetration as objectively more serious than those involving fellatio, cunnilingus and digital penetration by reason of what appears to be more prolonged assaults, and where a condom was used and ejaculation occurred, were I not constrained by the findings of the sentencing judge that the offending constituted by those two counts was above mid range (a finding confirmed as free from manifest error on the previous appeal with the proviso that, on the sentencing judge's limited findings, replicated in [15] above, the offending exceeded mid range by a modest degree: see Ingham v R [2011] NSWCCA 88 at [119]), I would not have been persuaded that the two counts of penile penetration warranted a finding of objective seriousness above the mid range. On the facts as they emerge from the sentencing reasons, I find little to distinguish between the five s 66A offences involving penetration of the vagina of either child in terms of the extent of penetration or the duration of the assaults. That said, the sentences I propose for the two counts of penile penetration of both children (counts 5 and 9) will reflect the findings of the sentencing judge as will the sentences for the penetrative assaults the subject of counts 4, 7 and 12 (respectively the counts involving cunnilingus and fellatio committed against both children) and the assaults the subject of counts 2, 10 and 11 (respectively the counts involving digital penetration).
I also take into account that JAW was younger than CBS, having turned 8 on the weekend of the offending, CBS being aged 9 years and 3 months at that time, and that the offences are more serious, by a degree, for that reason (see R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [36]). What is also significant is that each of the assaults constituted by each of the eleven counts was committed in the presence of both children by an offender with a previous criminal record for similar offending.
I am persuaded that despite the objective seriousness of the offending, unmitigated by anything in the appellant's subjective circumstances, a lesser sentence for each of the ten counts to which a standard non-parole period applies is warranted because of the determinative significance given to the standard non-parole period by the sentencing judge. The one count (count 6) to which no standard non-parole period attaches has been adjusted to ensure relativity with the other sentences. After an order for a partial accumulation of some of the sentences a lesser aggregate sentence will result.
I have made a limited finding of special circumstances in relation to counts 5 and 9, in consequence of the partial accumulation of some of the individual sentences.
Orders
I propose the following orders:
(1)Allow the appeal.
(2)The sentences imposed in the District Court on 19 September 2008 are quashed.
(3)In lieu, the following sentences are imposed:
For count 3 (an offence contrary to s 61M(2) of the Crimes Act committed against CBS) a non-parole period of 3 years to commence on 20 October 2006 and to expire on 19 October 2009, with an additional term of 1 year to commence on 20 October 2009 and to expire on 19 October 2010.
For count 8 (an offence contrary to s 61M(2) of the Crimes Act committed against JAW) a non-parole period of 3 years to commence on 20 October 2006 and to expire on 19 October 2009, with an additional term of 1 year to commence on 20 October 2009 and to expire on 19 October 2010.
(I note that the total terms of the sentences for counts 3 and 8 have expired.)
For count 9 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 9 years to commence on 20 October 2006 and to expire on 19 October 2015, with an additional term of 4 years to commence on 20 October 2015 and to expire on 19 October 2019.
For count 10 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019.
For count 11 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019.
For count 12 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019.
For count 7 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 6 years to commence on 20 October 2010 and to expire on 19 October 2016, with an additional term of 2 years to commence on 20 October 2016 and to expire on 19 October 2018.
For count 5 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 9 years to commence on 20 October 2010 and to expire on 19 October 2019, with an additional term of 4 years to commence on 20 October 2019 and to expire on 19 October 2023.
For count 2 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 7 years and 6 months to commence on 20 April 2012 and to expire on 19 October 2019, with an additional term of 2 years and 6 months to commence on 20 October 2019 and to expire on 19 April 2022.
For count 4 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 7 years and 6 months to commence on 20 April 2012 and to expire on 19 October 2019, with an additional term of 2 years and 6 months to commence on 20 October 2019 and to expire on 19 April 2022.
For count 6 (an offence contrary to s 66B of the Crimes Act committed against CBS) a non-parole period of 6 years to commence on 20 October 2013 and to expire on 19 October 2019, with an additional term of 2 years to commence on 20 October 2019 and to expire on 19 October 2021.
The total effective term of imprisonment is 17 years commencing on 20 October 2006 and comprised of a non-parole period of 13 years expiring on 19 October 2019 and a balance of term of 4 years expiring on 19 October 2023.
The earliest date the applicant will be eligible for release is 19 October 2019.
R A HULME J: I agree with Fullerton J.
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