Ivimy v R

[2008] NSWCCA 25

New South Wales
Court of Criminal Appeal

CITATION:	Ivimy v R [2008] NSWCCA 25 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 November 2007
JUDGMENT DATE:	19 February 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hall J at 2; Price J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal Law - sentencing - aggravated indecent assault - circumstances of aggravation not pleaded - no double counting - sentences not manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 s 61M, s 61M(1), s 61M(2), s 61M3(c), s 61L Crimes (Sentencing Procedure) Act 1999, s 21A(2), s 21A(2)(k),
CATEGORY:	Principal judgment
CASES CITED:	Dougan v R (2006) 160 A Crim R 135 Ibbs v The Queen (1987) 163 CLR 447 R v King (2004) 150 A Crim R 409 R v McNamara [2005] NSWCCA 195 R v McNaughton (2006) 66 NSWLR 566 R v Way (2004) 60 NSWLR 168 R v Westerman [2004] NSWCCA 161 R v Wickham [2004] NSWCCA 193 Regina v AD [2005] NSWCCA 208 Regina v Pearson [2005] NSWCCA 116 R v Skaf [2005] NSWCCA 297
PARTIES:	James Percy Ivimy Regina
FILE NUMBER(S):	CCA 2006/5197
COUNSEL:	M Dennis (Applicant) P Ingram (Respondent)
SOLICITORS:	M Schneider Legal Aid (Applicant) S Kavanagh Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/0325
LOWER COURT JUDICIAL OFFICER:	Bennett SC DCJ
LOWER COURT DATE OF DECISION:	25 October 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v James Percy Ivimy

IN THE COURT OF
CRIMINAL APPEAL

2006/5197
McCLELLAN CJ at CL

HALL J
PRICE J

19 February 2008
James Percy IVIMY v R

JUDGMENT

1 McCLELLAN CJ at CL: I agree with Price J.

2 HALL J: I agree with Price J.

3 PRICE J: James Percy Ivimy seeks leave to appeal against the sentences imposed upon him in the District Court at Parramatta on 25 October 2006. The applicant had pleaded guilty in the District Court on 15 May 2006 to an indictment which contained 13 counts namely eight counts contrary to s 61M(2) of the Crimes Act 1900, four counts contrary to s 61M(1) of the Crimes Act and one count contrary to s 61L of the Crimes Act. The Judge imposed a total aggregate sentence of 11 years commencing on 28 July 2006 and expiring on 27 July 2017 with an effective aggregate non-parole period of eight years and three months commencing on 28 July 2006 and expiring on 27 October 2014.

The offences

4 A statement of facts was tendered by the Crown. The facts were agreed with the exception of a number of passages which were not pressed. The facts may be conveniently summarised as follows:

The victim of all of the offences was born on 1 October 1984. She is the second of four children. When her father was admitted to hospital suffering from cancer, he befriended the applicant and introduced him to his wife and children. The victim’s father died on 6 March 1992. A few days after the death, the applicant began visiting the victim’s mother and subsequently entered into a de facto relationship with her. The victim was seven years old at the time.

In mid 1992 the applicant introduced the victim to David Dunlop (Dunlop) a co-offender in counts 3 and 4. They were friends from when they had been in prison together. From 1992 to 2002 the applicant would often visit Dunlop at his flat and had his own set of keys to the premises.

Counts 1 and 2

5 On a date between 1 May 1992 and 2 October 1992, the victim went with the applicant to Dunlop’s flat. She was then seven years old. After she had gone to bed, the applicant woke her up and told her to remove her underwear. She was under the bed sheet. The applicant was on top of the bed sheet and started rubbing his penis and groin against her (count 1). The applicant took the victim’s hand and placed it on his penis (count 2). The victim took her hand away and said “no” as she did so. The applicant threatened to leave her at the premises if she did not comply. He told her not to tell her mother what he had done.

Counts 3, 4 and 5

6 Between 1 May 1992 and 2 October 1992, the victim and the applicant were at Dunlop’s flat. She was seven years old. During the evening he told her to go to the spare room. She did so and was sitting on the bed when the applicant and Dunlop entered and stood in front of the bed on either side of her. They both touched her chest through her shirt and the outside of the underwear over her vagina (count 3). The applicant removed all of the victim’s clothing and lay on top of her on the bed moving his hips. He rubbed his penis against her genital area for a long time. The victim felt the applicant’s penis harden as he did so (count 4). Dunlop was present and watched. The applicant stopped and told the victim to put her underwear back on. The three returned to the lounge room where they watched television together. Some time later the applicant sent the child to bed. Later that evening the applicant got into bed with the child and started rubbing his penis against her bottom, waking her. After a few minutes he stopped and went to sleep (count 5). Dunlop was not present at the time of this offence.

Count 6

7 Between 30 September 1992 and 2 October 1993 when the victim was eight years old she was alone in the bathroom of her home, taking a shower. The applicant entered the bathroom and touched the child on the outside of her vagina.

Counts 7 and 8

8 Between 30 September 1993 and 2 October 1994 when the victim was nine years old, the applicant took her to Dunlop’s unit. He used blankets to cover the windows of the lounge room and the bedroom where they slept. The applicant took the victim to the spare bedroom and said “Don’t put your underwear on, you don’t have to wear clothes to bed cause you will be warm enough.” He rubbed his hands over her breasts (count 7). The applicant told the child to remove her clothes, he then knelt in front of her and rubbed his penis against and around the outside of her vagina. She felt it harden as he did so (count 8).

Counts 9, 10 and 11

9 Between 1 December 1996 and 28 February 1997 when the victim was 12 years old, the applicant took the victim and her younger brother to Narrabri. They stayed in a cabin with the applicant and the victim sharing a double bed whilst the brother slept in a bunk. There was a curtain between the beds. On each of the three nights the applicant rubbed his penis against the victim around the outside of the child’s genitalia for some time. She felt his penis harden on each occasion. When he had finished, the applicant wiped both himself and the victim’s genital area with a face washer (counts 9, 10 and 11).

Count 12

10 Between 30 September 1999 and 2 October 2000, when the victim was 15 years old, she was showering in the bathroom at her home when the applicant entered. He used one of his hands to rub her breast and the other to rub the outside of her vagina. He said to her, “I love you, you are so important to me.”

Count 13

11 On 16 August 2002 the applicant asked the victim to go to Dunlop’s flat the next day. She agreed as when she had refused on previous occasions the applicant had become angry. The victim was 17 years old. When they arrived at Dunlop’s flat at about 6.30pm the next day, the applicant used blankets to cover windows in the lounge room and the bedroom where they slept. They watched television and then returned to bed. The victim wore pyjama shorts and a top with underpants beneath. During the evening the applicant entered the victim’s bedroom wearing his underwear. He touched her breasts underneath her pyjama top and her genitalia inside of her underpants. She could feel his penis against her leg.

Subjective circumstances

12 The applicant did not give evidence at the sentencing hearing. Evidence of his subjective circumstances was put before the Judge by way of a report dated 30 July 2006 from Katie Siedler, a psychologist, and Dr John Hillman, a general practitioner, dated 7 August 2006.

13 The applicant was born on 23 March 1942 and was 64 years old at the time of sentence. Abandoned by his mother when he was six months old, he was raised by his paternal grandmother until he was aged ten. His father then took him to live itinerantly for some months before squatting in a National Park until he was removed into the care of Community Services. Placed in an institution for young boys, the applicant claims that he was the victim of repeated sexual abuse at the hands of Marist brothers. He ran away at about 13 years of age to live with an aunt. He left that home to wander the country, in the course of which he said, when in his mid-teens he was sexually assaulted by an older male. He moved to Victoria where he said he was further sexually assaulted by an older male for whom he worked. Ms Siedler opined that the disturbed and dysfunctional upbringing would have left the applicant as a very vulnerable individual psychologically prone to emotional and interpersonal problems. He did not attend high school. His only education since primary school was a basic motor maintenance course undertaken whilst in gaol. He had been receiving a disability pension due to poor coronary health. He has a history of ischaemic heart disease and underwent angiograms in 2000 and 2006. The Judge noted the applicant’s non-symptomatic pleurisy, occasional asthma and carpal tunnel syndrome. He receives medication for cardio-vascular management and control of cholesterol levels, asthma, and gastric reflux. The psychologist assessed the applicant as appearing to be a quite disturbed person psychologically. It was likely that he was functioning at a very low level intellectually, possibly in the borderline range. He was assessed by the psychologist to pose a moderate risk of sexual re-offence.

Prior criminal history

14 The Judge summarised the applicant’s criminal history as follows:

“On 8 August 1984, in respect of a charge of indecent assault upon a female 12 years of age, he was sentenced to 12 months penal servitude and a concurrent period of three months penal servitude for an offence of carnal knowledge. A non-probation period of six months was specified and his need for psychiatric treatment noted. On 13 June 1986, in respect of a charge of carnal knowledge of a child under the age of ten years, he was sentenced to imprisonment for nine years with a non parole period of five years from 10 March 1986 and concluding on 9 March 1991. The sentence appears so in the antecedents included in the Exhibit A, however there is also included a letter from the Department of Corrective Services advising that in respect of that sentence, upon a redetermination with remissions under the transitional provisions of the Sentencing Act 1989, that sentence commencing on 10 March 1986 and nominally expiring on 9 March 1995 (the overall sentence) was to expire on 4 February 1992.

There are also offences of dishonesty appearing on the offender’s record from New South Wales but these occurred in 1961 and 1962 and are of little, if any, significance. He has also a record of criminal antecedents in Victoria which include the entries against his name in New South Wales for sexual offences. His only offence in Victoria was larceny during 1972. I put that matter to one side also.” (ROS p13-14)
Grounds of Appeal

15 The notice of appeal identifies 16 grounds. Grounds 1 to 8 and 10 and 11 have been abandoned.

16 Grounds 12 to 15 concern counts 9 to 12 on the indictment. Counts 9 to 11 were each expressed in the indictment as follows: that [the applicant]

“Between 1 December 1996 and 28 February 1997 at Narrabri in the State of New South Wales did assault [the victim] and at the time of such assault did commit an act of indecency upon [the victim], a child then under the age of 16 years, namely, 12 years.”

17 Count 12 is as follows: that [the applicant]

“Between 30 September 1999 and 2 October 2000 at Hebersham in the State of New South Wales, did assault [the victim] and at the time of such assault did commit an act of indecency upon [the victim], a child under the age of 16 years, namely 15 years.”

18 Counts 9 to 12 are offences contrary to s 61M(1) and 61M(3)(b) of the Crimes Act. The maximum penalty for such an offence is seven years imprisonment.

19 Ground 9 of the appeal claims that the sentence with respect to count 6 is manifestly excessive.

20 Count 6 is as follows: that [the applicant]

“Between 30 September 1992 and 2 October 1993 at Hebersham in the State of New South Wales did assault [the victim] and at the time of such assault did commit an act of indecency upon [the victim], a child under the age of 10 years, namely 8 years.”

21 Count 6 is an offence contrary to s 61M(2) of the Crimes Act. The maximum penalty for such an offence is 10 years imprisonment. The Judge sentenced the applicant on this count to a term of imprisonment of eight years to commence on 28 July 2008 and expire on 27 July 2016. A non-parole period of six years was set to commence from the date of the sentence and to expire on 27 July 2014.

22 Ground 16 of the appeal claims that the sentence with respect to count 12 is manifestly excessive. A sentence was imposed of six years imprisonment to commence on 28 July 2011 and to expire on 27 July 2017. A non-parole period of three years and 3 months was set to commence from the date of the sentence and to expire on 27 October 2014.

Dealing with the appeal

Grounds 12 to 15

23 The applicant contends that the Judge erred by finding as a matter of aggravation pursuant to s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (Crimes (SP) Act) that the applicant was in a position of trust with regard to the victim. It is not in dispute that the applicant was in a de facto relationship with the victim’s mother and was in a position of trust in relation to the victim who was in effect his stepdaughter. Section 61M(3)(c) of the Crimes Act the applicant points out specifically refers to the victim being under the authority of the offender (whether generally or at the time of the commission of the offence) and is, the applicant submits, an essential element of an offence contrary to s 61M(1). The applicant contends that the position of trust was a product of his position of authority which was conferred upon him by virtue of his relationship with the victim’s mother. It follows, the applicant argues, that the Judge has taken as an aggravating factor an element integral to the offence in breach of the principle expressed in R v Way (2004) 60 NSWLR 168 at [106] and R v Wickham [2004] NSWCCA 193 at [22].

24 Section 21A(2) of the Crimes (SP) Act relevantly provides:

“ the aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(k) the offender abused a position of trust or authority in relation to the victim,

The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”

25 Factors which are elements of an offence are not to be taken into account as aggravating factors: R v Way (2004) 60 NSWLR 168 at [106] and double counting is prohibited: R v Wickham [2004] NSWCCA 193 at [22]-[23].

26 Section 61M of the Crimes Act is as follows:

“Aggravated indecent assault
61M (1) Any person who assaults another person in circumstances of
aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.
(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years.
(3) In this section, circumstances of aggravation means circumstances in which:
(a) the alleged offender is in the company of another person or persons; or

(c) the alleged victim is ( whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or

(d) the alleged victim has a serious physical disability; or
(e) the alleged victim has a serious intellectual disability.”

27 Subsection 3 of s 61M provides for five circumstances of aggravation for the purpose of s 61M(1) only one of which is required to be pleaded and proved: see Regina v Pearson [2005] NSWCCA 116 at [26]. The sole circumstances of aggravation pleaded in the indictment for each of counts 9 to 12 was that provided by s 61M(3)(b), namely that the alleged victim is under the age of 16 years. As that circumstance of aggravation was pleaded, it was an essential element of these offences.

28 The circumstance of aggravation provided by s 61M(3)(c), namely that the alleged victim is under the authority of the alleged offender was not pleaded in the indictment and it was not an essential element of these offences. The Judge was entitled, if not required, to take into account as an aggravating factor under s 21A(2)(k) of the Crimes (SP) Act that the applicant was in a position of trust in relation to the victim: see Regina v AD [2005] NSWCCA 208 at [22] and there was no error by his Honour.

29 The next point argued for the applicant is that his Honour erred when he said (ROS at p28):

“C ounts nine, ten and eleven, attract application of the same aggravating factors to which I have referred including the age of the child at the time…”

And (ROS at p29):

“ Count 12, is an offence committed when the offender was alone. Otherwise, the same aggravating factors apply, but I exclude age as an aggravating factor…”

30 The references by the Judge to the “same aggravating factors” without further explanation, the applicant contends, suggests error of the kind identified in R v McNamara [2005] NSWCCA 195 and Dougan v R (2006) 160 A Crim R 135 in which cases this Court emphasised the need for a Judge to explain how an aggravating factor was being used on sentence.

31 The necessity to relate factors under s 21A of the Crimes (SP) Act to the circumstances of the offence is well established: see also R v King (2004) 150 A Crim R 409.

32 The Judge was faced with a difficult sentencing exercise which involved multiple offences. In a carefully considered judgment, his Honour found that the applicant had moved into the family home and had entered into a de facto relationship with the victim’s mother. In relation to counts one and two, the sentencing Judge noted ss 21A(2)(k) and (n) of the Crimes (SP) Act and found (ROS at 27):

“…that the offender was in a position of trust with regard to this child who was vulnerable because of her very young age. Those are matters of aggravation.”

33 His Honour clearly explained how the factors of aggravation were being used. It was unnecessary for the explanation to be repeated for each count and by stating that the “same aggravating factors” applied he identified the factors he had taken into account.

34 In my opinion, his Honour’s approach does not disclose error and grounds 12 to 15 of the appeal have not been established.

Grounds 9 and 16

35 As the applicant contends that the sentences imposed with respect to counts six and 12 are manifestly excessive, it is convenient to deal with these grounds together.

36 The Judge allowed a discount of 10 per cent for the utilitarian value of the applicant’s plea.

37 The notional starting point of the sentence for count 6 when a discount of 10 per cent for that plea is applied is about 8 years and 11 months. The maximum penalty for count 6 is imprisonment for 10 years.

38 The notional starting point of the sentence for count 12 when a discount of 10 per cent for the plea is applied is about 6 years 8 months. The maximum penalty for count 12 is imprisonment for seven years.

39 These sentences, the applicant submits, are disproportionate to the gravity of the particular offences. A comparison of the undiscounted starting points as against the maximum penalties leads to the view, the applicant contends, that the sentences are consistent with sentences that should be imposed for an offence that is very much at the higher end of the range of objective seriousness for an offence of the type charged and the objective facts of the offences do not fall into that category.

40 The imposition of the maximum penalty for an offence is reserved for a case which can be properly characterised as falling within the worst category of offence for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451 – 452; R v Way (2004) 60 NSWLR 168 at [51]; R v Westerman [2004] NSWCCA 161 [13]-[15]. The notional starting points to which I have referred are appropriate, in my view, only for a case which can be properly characterised as being within or close to the worst category of an offence contrary to s 61M(2) (count 6) or s 61M(1) (count 12).

41 The facts of count 6 involve the applicant entering the bathroom whilst the victim was taking a shower and touching her on the outside of the vagina. She was then eight years old. The facts of count 12 also involve the applicant entering the bathroom whilst the victim was showering. On this occasion he used one of his hands to rub her breast and the other to rub the outside of her vagina. She was then 15 years old.

42 The touching in such circumstances outside of the victim’s vagina places the applicant’s criminality to my mind close to a worst class of case. As was said in R v Skaf [2005] NSWCCA 297 at [54] it is inappropriate to define the requirements of the category of a worst class of case nor is it necessary for a case to so qualify that the conclusion be reached that it would be impossible to conceive of a worse case.

43 The applicant argues that the Judge afforded too much weight to the applicant’s prior criminal record.

44 His Honour considered the applicant’s prior history of similar offending and remarked (ROS at 25):

“…Moreover the recidivism demonstrated in the present offences, considered in the light of the observations of the psychologist regarding the risk of re-offending, require careful consideration and application of the passage from Veen v The Queen (No 2), to which the Crown has referred me in tis submissions.

The antecedent criminal history of this offender must be taken into account in determining the sentences to be imposed but it cannot be given such weight as to lead to the imposition of sentences which overall would be disproportionate to the gravity of the misconduct with which he is charged. However it does demonstrate that this series of offences is not an uncharacteristic aberration and it does demonstrate a continuing attitude of the rejection of acceptable standards with regard to children. In the circumstances of this case, retribution, deterrence and protection of this society indicate that significant penalties are warranted.”

45 He had earlier said (ROS at p23):

“The antecedents of the offender are of significance and require the application of the passage in Veen v the Queen (No 2) (1988) 165 CLR 464 at pages 477 and 478, see also R v McNaughton [2006] NSWCCA 242.”

46 The judge was plainly mindful that the applicant’s record of prior similar offending could not be taken into account in the assessment of the objective seriousness of the offences as to do so would infringe the principle of proportionality. His Honour was entitled to have regard to the applicant’s history of criminal offending to give more weight to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist: R v McNaughton (2006) 66 NSWLR 566.

47 In explaining of the individual sentences to be imposed his Honour said:

“ I should add another comment with regard to these sentences when looking at the offences individually, and with specific reference to the increasing age of the complainant as time passed which impacts upon the extent to which her age at the time could be seen to be an aggravating factor.
Counterbalancing that of course is the proposition that the offending has continued over a significant period of time as part of a systematic course of conduct, and although the extent to which age of the child might diminish [has] an aggravating factor over the time, the moral culpability involved in the continuing offending must have an impact upon the sentences that are to be imposed in respect of the subsequent offences.” (ROS at 33)

48 The Judge had earlier found (ROS at 24) that once the applicant became a member of the household, he engaged upon a systematic course of conduct in pursuit of his own sexual gratification at the expense of the victim who was then seven years old. Count 6 was the third discrete episode of the applicant’s sexual offending towards the victim whereas count 12 was committed when she was 15 years old.

49 In fixing appropriate sentences for counts six and 12, the applicant’s prior sexual offending against the victim was not to be ignored. There was no error by his Honour in affording more weight to retribution, deterrence and the protection of society.

50 I detect no error in his Honour’s approach to the sentencing task. I am not persuaded that the sentences imposed for counts six and 12 are manifestly excessive. Grounds nine and 16 of the appeal fail.

51 I propose that leave to appeal be granted, but the appeal be dismissed.

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06/06/2008 - Typographical error - Paragraph(s) Paragraph 23 3rd line "he applicant" now reads "the applicant"