Jah v R

[2006] NSWCCA 250

CITATION:

JAH v REGINA [2006] NSWCCA 250

HEARING DATE(S):

31 January 2006

 
JUDGMENT DATE: 

17 August 2006

JUDGMENT OF:

Sully J at 1; Adams J at 2

DECISION:

(i) in respect of count 1, grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court and substitute in lieu thereof a fixed term of nine months’ imprisonment commencing 24 March 2004 and expiring on 23 December 2004; (ii) in respect of count 2, grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court and substitute in lieu thereof a non parole period of five years, commencing on 24 December 2004 and ending on 23 December 2009 and a balance of term of two years and six month commencing on 24 December 2009 and ending on 23 June 2012; and; (iii) in respect of count 3, grant leave to appeal, dismiss the appeal; (iv) the earliest date upon which the appellant is entitled to be released on parole is 23 December 2009.

CATCHWORDS:

Sentence appeal - no question of law raised

LEGISLATION CITED:

Crimes Act 1900 ss 61M(1) & (2), 66A, 66C(1)
Crimes (Sentencing Procedure) Act 1999 s 21A
Criminal Appeal Act 1999 s 6(3)

CASES CITED:

Pearce v The Queen (1998) 194 CLR 610
R v AGR (unreported, NSWCCA 24 July 1998)
R v De Simoni (1981) 147 CLR 383
R v Ellis (1986) 6 NSWLR 603
R v McNamara [2005] NSWCCA 195
R v Newham [2005] NSWCCA 325
R v Pearson [2005] NSWCCA 116
R v Shankley [2003] NSWCCA 253
R v Tadrosse [2005] NSWCCA 145
R v Walter [2005] NSWCCA 109
Veen v The Queen (No 2) (1998) 164 CLR 465

PARTIES:

JAH (Applicant)

v

Regina (Respondent)

FILE NUMBER(S):

CCA 2005/1946

COUNSEL:

Ms G Bashir (Applicant)
Ms J R Dwyer (Crown)

SOLICITORS:

S J O'Connor (Applicant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/0351
LOWER COURT JUDICIAL OFFICER:	Coolahan DCJ
LOWER COURT DATE OF DECISION:	17 December 2004

2005/1946

SULLY J
ADAMS J

17 AUGUST 2006

REGINA v J A H

Judgment

1 SULLY J: I agree with Adams J.

2 ADAMS J: On 18 November 2004 the applicant pleaded guilty in the District Court to the following offences –

(1) Indecent assault on a child under 10 committed between 31 October 1999 and 1 January 2000, when the victim was about 9 years of age;
(2) Sexual intercourse with a child under the age of 10 years between 1 January 2000 and 23 November 2000, when the victim was 9 years of age; and
(3) Sexual intercourse with a child between the ages of 10 and 16 years between 9 November 2002 and 31 May 2003 when the victim was 11 or 12 years of age.

3 The applicant asked the Court to take into account on a Form 1 in relation to the second count an offence of aggravated indecent assault upon a victim then aged eleven years.

4 The victim in each case was the applicant’s natural daughter (AH). The applicable provisions of the Crimes Act 1900 are, respectively, s 61M(2), carrying a maximum penalty of ten years’ imprisonment, s 66A, carrying a maximum penalty of twenty years’ imprisonment, and s 66C(1) carrying a maximum penalty of eight years’ imprisonment; the Form 1 offence arose under s 61M(1) carrying a maximum penalty of seven years’ imprisonment.

5 The applicant was arrested on 24 March 2004, from which date he has been in custody, and pleaded guilty to all charges in the Local Court on 11 August 2004. It is undisputed that for all practical purposes the applicant’s pleas of guilty were entered at the first available opportunity. The applicant was sentenced as follows –

Count 1: a fixed term of eighteen months’ imprisonment to date from 24 March 2004 and expire on 23 September 2005;
Count 2: (taking into account the matter on the Form 1): ten years with a non-parole period of seven years commencing 24 March 2005; and
Count 3: a fixed term of three years commencing 24 March 2006.

6 It will be seen that the applicant’s sentence on count 2 commenced twelve months after the sentence in respect of count 1 whilst the sentence on count 3 commenced twelve months after the sentence on count 2 commenced. Overall, the applicant was eligible for release on parole on 23 March 2012 after serving eight years, whilst the sentence expired on 23 March 2015.

7 The applicant submits that the learned sentencing judge erred in a number of respects with the consequence that the sentences were manifestly excessive.

The Facts

8 These were not in dispute. The following account is largely taken from the learned sentencing judge’s reasons for sentence. The applicant was thirty years of age as at the date of sentence, at which time AH was thirteen years of age. The applicant and AH’s mother had commenced a relationship in 1990 but, after the victim was conceived and before she was born, they separated. The applicant had nothing to do with AH until late 1996 when her mother arranged for them to meet. During 1997 AH and her mother spent most weekends with the applicant. In early 1998 AH’s mother and the applicant recommenced their relationship and were married in November 1998. AH, her mother and the applicant then lived together as a family. AH was eight years old.

9 The offence to which count 1 applies occurred one evening when AH was sleeping with the applicant and her mother. AH was wearing underpants and pyjamas. Whilst she was asleep the applicant removed her pyjama pants and started to touch her in the area of the vagina on the outside of her underpants. AH rolled over to face the applicant. He said, “Sorry” and stopped. Both went to sleep. The events in count 2 occurred about a month later. AH was sleeping in her bedroom when the applicant came in and lay on her bed with her. He pulled down her pyjama pants and underpants, got on top of her and had penile/vaginal intercourse. When he finished he pulled up his pants and left. AH said that the area of her vagina was very painful but she thought that if she went to sleep the pain would go away. Following this occasion, the applicant had penile/vaginal intercourse with AH about once a month. In 2000, when AH entered year 5, the applicant started to perform cunnilingus on AH, who would occasionally perform fellatio on him. The applicant told AH not to tell anyone about what was happening.

10 In respect of the offence to which the Form 1 refers, AH, her mother and the applicant were at home watching television in the lounge room, when, using a pretext, the applicant procured AH’s mother to leave the room. The applicant then started to kiss AH on the mouth, put her on her back and moved to a position on top of her. Whilst kissing AH he moved his hands under her shirt and bra and started to feel her breast. At this point, AH’s mother returned to the lounge room and saw what was happening. The applicant stopped what he was doing. AH’s mother, not knowing what to do, left the room. The applicant remained in the home for the next day or so until AH’s mother spoke to a nurse about the incident who reported the matter to the Department of Community Services. Officers from the Department came to the home and spoke to the applicant who admitted inappropriately kissing AH but denied any other contact. AH also denied the incident to DOCS, explaining later to the police that she did this because she was feeling loyal to the applicant and he had told her not to tell anyone about what he was doing. The applicant was obliged to leave the home and an apprehended violence order was taken out prohibiting him from residing there. However, the applicant approached AH at her school bus stop asking her to arrange for him to see other children.

11 The circumstances in count 3 arose after the applicant’s exclusion from the family home. He travelled there one night and woke AH up by throwing rocks against the bedroom window. AH let the applicant in and they went into her bedroom. The applicant then had penile/vaginal intercourse with AH, leaving when this was finished.

12 AH did not complain about the applicant’s misconduct until June or July 2003. The applicant was interviewed by police in early November 2003 and ultimately arrested and interviewed again in March 2004. He told police that he did not have a clear recollection of the individual incidents but admitted the truth of specific allegations and acknowledged that the victim’s account of what happened would have been true. He was unable to offer any explanation for his behaviour but stated that he knew that what he was doing was wrong.

13 In her interview with police in May 2004, AH said that the applicant’s behaviour had wrecked her childhood. She said that the acts of intercourse hurt her and she dreaded it but that she trusted her father.

Subjective circumstances

14 The applicant’s background was tragic. He was born in September 1974 so that he was thirty years of age as at the date of sentence. He was twenty-six years old when the offences on AH commenced. The applicant never knew his natural father who had left his mother by the time he was two years of age. When he was six or seven years old his mother entered into a de facto relationship with a man who physically, emotionally and sexually abused the applicant. He was beaten, thrown around the room, pulled by the hair, kicked and made to stand holding bricks over his head overnight for punishment. He and his older sister were locked out of the house overnight. He told the police that what he had done to AH had been done to him for years from the age of six or seven. His sister was also sexually abused at about this age. The applicant said that eventually his stepfather was charged with abusing his sister, convicted and sent to prison. The applicant said that in this environment he and his sister “became more sort of close” and had started touching each other and engaging in sexual activity from when they were aged six or seven. From about the age of ten the applicant and his sister were taken from their home by the Department of Community Services. He was disowned by his mother and became a State ward. He went into a group home for some weeks and then to a foster home for two years. However, the applicant said that his foster mother was a very violent woman and eventually DOCS intervened and sent him away to a refuge. This was the first of many refuges into which the applicant was placed by DOCS. He left school in year 8. He was living at a pub in Maitland when he was fifteen and started to use cannabis, amphetamines and heroin. He met AH’s mother at a refuge. The relationship with AH’s mother commenced when he was fifteen years of age and she almost a year older. Leaving DOCS’ care at the age of sixteen, he went to live with his grandfather. He described his grandfather as “an excellent man” who looked after him and never hurt him.

15 The initial brief relationship between the applicant and AH’s mother was violent and the applicant drank heavily. AH’s mother fell pregnant and they broke up. The applicant was sixteen years of age when AH was born. In 1996, AH’s mother wished to re-establish contact for the sake of AH who wanted to know her father. The applicant was then undertaking rehabilitation, giving up drugs and alcohol and studying commercial cookery. As I have mentioned, he and AH’s mother married in 1998, and in 1999 his second daughter was born and his grandfather died. The death of his grandfather was especially distressing and the applicant resumed using alcohol, cannabis and more serious drugs, spending a substantial portion of his small inheritance on alcohol and drugs. It was at this time he commenced improper contact with AH. He said that he was intoxicated “all the time” and, during 2002 and 2003, felt seriously depressed.

16 The applicant had not received any counselling or treatment in respect of his own sexual or physical abuse in early childhood and it may readily be accepted that these experiences had a significant effect upon his psychological wellbeing.

17 It is fair to observe that the applicant did not seek to excuse or justify his conduct, acknowledging in unqualified language its grave wrongfulness. The learned sentencing judge said as to the applicant’s evidence –

“I must say that the offender gave his evidence in a straightforward way. In no way did not attempt to minimise the seriousness of his actions. I think that he probably does have some real insight into the serious harm he has undoubtedly caused the victim and to the gross and horrific nature of his crimes.”

18 Also tendered on behalf of the applicant were letters from a prison officer and the chaplaincy at Long Bay Correctional Centre commending him for his conduct.

19 The applicant had a relatively minor criminal record of no real significance in the present context except that he had been convicted in January 1995 of indecent assault for which he was sentenced to community service. None of the circumstances of that offence were placed before the Court but the outcome does not suggest a serious offence of its kind.

The appeal

20 Ground 1: The sentencing judge erred in his application of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 in a manner such that lesser sentences are warranted in law: House v The King (1936) 55 CLR 499 at 504-505; s 6(3) of the Criminal Appeal Act 1912.

21 In dealing with the matters required to be taken into account under s 21A of the Crimes (Sentencing Procedure) Act 1999, his Honour made the general observation that he had taken them into account, mentioning, however, the following particular matters: the applicant’s prior convictions including the conviction for indecent assault; the substantial injury and emotional harm caused by the offences; that his Honour “could not imagine a grosser breach of trust”; the victim was vulnerable; the offences involved a series of criminal acts; and, “some degree of planning or organisation must have been involved, particular in relation to those offences committed after the Form 1 offence and including the Form 1 offence in 2002”. So far as the charges were concerned, only one offence covered the period following the Form 1 offence. The reference to “offences” suggests that his Honour was indeed sentencing the applicant for his course of conduct. If so, this is an error. The commission of the further offences has the consequence that the appellant should not be sentenced on the basis that the small number of particular offences reflected the extent of his culpability in the sense of reducing their criminality as being isolated or aberrant instances, but he cannot be sentenced for charges that were not brought and to which he did not plead.

22 His Honour also mentioned the applicant’s having shown remorse and the utilitarian benefit of his pleas of guilty. His Honour found himself unable to say that the applicant had good prospects of rehabilitation but accepted that he had insight into his offending behaviour and a resolve to rehabilitate himself.

23 The applicant submits that by not differentiating between the differing offences when finding aggravating factors to be present, the learned sentencing judge was in error. In R v Tadrosse [2005] NSWCCA 145 at [22] – [23], Howie J (Grove and Hall JJ agreeing) observed that to do so is “not a principled approach and is one that could lead to error, particular in the case of aggravating factors that will often be very specific”. The Crown prosecutor conceded in this Court that his Honour’s approach might establish error.

24 The applicant also submitted that listing the aggravating features without explaining why they were found to be present or referring to the factual basis for them was an error, citing R v Walter [2005] NSWCCA 109 at [32] per Johnson J (Giles JA and Hoeben J agreeing), Tadrosse at [21]; R v McNamara [2005] NSWCCA 195 per Hall J (Simpson and Buddin JJ agreeing) at [32], see also [37]. Nor was there an explanation as to how the prior criminal offence of indecent assault was found to be aggravating although the applicant concedes that the effect of this conviction may have been to “indicate a more severe sentence is warranted for the reasons identified in R v Shankley [2003] NSWCCA 253 by Howie J at [31], applying the principle in Veen v The Queen (No 2) (1998) 164 CLR 465”.

25 More troubling is the reference by his Honour to the vulnerability of the victim (s 21A(2)(l)) as an aggravating factor. The applicant submits that the vulnerability of the victim is reflected in the element of the offences under s 61M(2) and s 66A that the victim must be “under the age of ten years”. The extent of vulnerability of the victim has always been a relevant feature of the objective circumstances that should be taken into account on sentence. However, the age of AH at the time of the offences was not so significantly under the age of ten years as to justify the additional punishment of the applicant by identifying her age as an aggravating factor of the offence. That feature is already taken into account as a necessary element of the crime and cannot be regarded as an additional aggravating factor. Of course, had AH been significantly younger than ten years, that would have made the offences more grave within the range of offences covered by the relevant sections, the seriousness of which is marked at all events by the maximum penalties. In relation to Count 3, the age of the victim was an element, namely she was between the age of ten and sixteen.

26 It is submitted, accordingly, that the finding by the learned sentencing judge that an aggravating feature of the offences was that the victim was vulnerable was in breach, not only of general principle, but of the concluding words of s 21A(2), namely that “the Court is not to have additional regard to any such factor in sentencing if it is an element of the offence”. It seems to me that this complaint is made good: R v Pearson [2005] NSWCCA 116.

27 Another element of the victim’s vulnerability was that she was in the applicant’s home and he was her father lawfully having care and custody of her. Count 3 was a charge under s 66C(1), which carried a maximum term of imprisonment of eight years. The applicant had not been charged with an offence under s 66C(2), a specific element of which is that the victim was under the authority of the offender at the time of the offence. The latter offence carries a maximum penalty of ten years’ imprisonment. Accordingly, taking into account the additional element of this count was an error: R v De Simoni (1981) 147 CLR 383. It seems to me that this limitation also applied to his Honour’s otherwise correct observation concerning the applicant’s gross breach of trust: cf R v Newham [2005] NSWCCA 325.

28 It is, in substance, conceded by the Crown prosecutor in this Court that the approach by the learned sentencing judge to these matters established error but it was contended that they were “somewhat technical…having no practical significance in the determination of the overall sentence in respect of most of the factors mentioned by him” (adopting the language of Howie J in Tadrosse at [22]). Insofar as this submission rests on the argument that the additional maximum penalty of two years applicable to an offence under s 66C(2) as distinct from the offence under s 66C(1) is “minimal”, I do not agree.

29 It seems to me that these distinctions are imperative to be borne in mind for the reasons given in Pearce v The Queen (1998) 194 CLR 610, requiring as a matter of fundamental principle the separate consideration of each offence for which an offender is being sentenced before moving to questions of totality.

30 A similar difficulty is presented by his Honour’s identification of the fact that the offence involved a series of criminal acts. In Tadrosse, Howie J said –

“[28] His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) ‘the offence involved multiple victims or a series of criminal acts’. Clearly there were multiple offences before the Court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect, it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a serious of criminal acts disclosed by the offences before the Court.

[29] Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contained a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s25 of the Drug Misuse and Trafficking Act . Of course there are offences that have, as an element of the offence, multiple acts of criminality, such as an offence of an ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act or an offence of persistent sexual abuse of a child under s 66EA of the Crimes Act . When sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a mater of aggravation that which is an element of the offence charged.”

31 In the present context, one of the difficulties of taking into account the fact that there were a series of offences and having regard to the fact that the second count was a representative count is that the applicant should not be sentenced as though he was convicted of an offence under s 66EA. As I have mentioned, the fact that the second count was a representative charge provided a context for its commission and, of course, disentitled the applicant to leniency upon the basis that the offence was an isolated one. Those considerations were relevant in sentencing the applicant for that representative charge. But, that having been done, there was no proper basis for increasing the sentence further simply because of the articulation in s 21A(2)(m) of the aggravating feature comprising the multiplicity of offences. However the argument is put, the consideration of fundamental importance is that there should be no double counting.

32 The applicant complains that the learned sentencing judge did not specify the manner in which the offences were aggravated by the s 21A(2)(m) feature. I think it was desirable that the learned sentencing judge should have stated precisely how he took this factor into account. However, I am not prepared to conclude that his Honour doubly punished the applicant. There was a proper basis for giving some limited application to s 21A(2)(m) and I do not accept that, in doing so, his Honour fell into the error contended for on the applicant’s behalf.

33 The applicant also takes issue with the learned sentencing judge’s finding that “to some extent some degree of planning or organisation must have been involved”. The applicant in this regard relies upon the evidence that the applicant was “out of control” and that the offence in Count 1 and the Form 1 offence were most likely spontaneous. It seems to me that there is no evidence justifying the conclusion in respect of Count 1 that it was other than spontaneous. Certainly, no element of planning was involved. However, the applicant’s taking advantage of his wife’s absence (procured by him) from the lounge room when he committed the Form 1 offence justified, I think, the highly qualified description of this feature given by the learned sentencing judge. So far as count 3 is concerned, it is clear that some element of planning was involved, as it was not spontaneous. In respect of the first count, therefore, I think this complaint is made good.

34 As I have mentioned, the Crown in this Court conceded that the learned sentencing Judge may have erred in respect of the third count but submitted that the objective seriousness of the offences, in particular that in count 2, required the imposition of a sentence of at least the period determined by His Honour so that, notwithstanding any identified errors, the sentences imposed were within his Honour’s discretion and no lesser sentence is warranted: s 6(3) Criminal Appeal Act 1999. I will return to this submission after considering the other grounds of appeal.

Ground 2: The learned sentencing Judge failed to reflect his findings in mitigation of sentence, namely the early plea of guilty and the significant remorse of the applicant in the sentences imposed.

35 The learned sentencing Judge referred to these matters as follows –

“Mr Booth’s principle submission revolved around the offender’s pleas of guilty entered, as they were, the first available opportunity; to his co-operation with police; to his expressions of remorse; and to the insight that he now appears to be displaying in relation to his actions. Mr Booth said that by the entry of his pleas that the offender saved the victim the ordeal of giving evidence. In my view, these are all valid submissions.”

36 Following the learned sentencing Judge’s discussion of the objective seriousness of the offences and the aggravating features as listed in s 21A(2), his Honour added –

“As against that, the offender has shown remorse and, of course, I take into account his pleas of guilty which, in my view, should attract the maximum discount of 25 per cent. I say this because I agree with the submission of Mr Booth that by the entry of these pleas the offender has saved the victim the ordeal of giving evidence.”

37 On the applicant’s behalf it is submitted that the admissions which came to comprise the Form 1 matter, made to the DOCS’ officers attending the home some days after the offence, would have justified a discount in accordance with R v Ellis (1986) 6 NSWLR 603 had this matter been a subject of a separate sentence. Accepting that this is so does not seem to me to make very much of a difference since it was taken into account in relation to the second count. Since that count was representative at all events, it seems clear that the Form 1 offence’s contribution to the sentence in respect of that count was relatively modest.

38 It is also submitted that on the applicant’s behalf that, in substance, the evidence upon which the conviction and sentence on count 1 was based came from the applicant’s account, since AH in her interview said little more than it was a fleeting and possibly mistaken touching. The effect of the accumulation of the sentence on Count 2 upon the sentence for count 1 is the applicant’s serving a full year for this single offence. It is submitted, in substance, that the sentence for Count 1 was manifestly excessive having regard both to the extent to which the applicant’s own admission brought about the charge but also having regard to the relatively minor character of the assault. I am of the view that this submission is made out.

39 The applicant submits also that it is material to give significant weight to the applicant’s pleas of guilty and his admissions as demonstrating remorse, having regard especially to the significant forensic unreliability of the victim’s accounts of misconduct. In particular, she initially denied any offending behaviour to her mother and DOCS and stated in her interview with police that she sometimes imagined things that “aren’t really true”. The extent of the applicant‘s remorse, it is submitted (and I think rightly) is shown by the fact that the applicant made full admissions to the police at the outset.

40 It is submitted on the applicant’s behalf that the length of the sentences, particularly those in respect of Counts 1 and 2, did not appropriately reflect the significance of the applicant’s plea and the nature of his admissions.

41 The Crown submits that the learned sentencing judge expressly referred to the applicant’s remorse, his admissions and his pleas of guilty. It is submitted that the sentences themselves do not demonstrate a failure by his Honour to give appropriate weight to these mitigating features.

42 In my view there is no basis for concluding that his Honour omitted to consider the mitigating features identified on the applicant’s behalf, to which I have referred above. I will move to a consideration of the argument concerning the excessive harshness of the sentence when I have dealt with the remaining count.

Ground 3: The learned sentencing Judge failed to take into account properly, if at all, “compelling” circumstances of the applicant’s case in determining appropriate sentences for the offences.

43 It is conceded on the applicant’s behalf that the learned sentencing Judge referred to the subjective circumstances of the applicant’s childhood and upbringing in accepting the submission of the applicant’s legal representatives that these were “compelling” and “might provide some explanation as to why the offences were committed”. The Crown had accepted below that “there’s no doubt that this offender has, by the evidence, had a difficult time”.

44 In R v AGR (unreported, NSWCCA 24 July 1998) James J (Mason P and Grove J agreeing) reviewed the authorities dealing with the possible relevance, in sentencing a child sexual assault offender, of evidence that the offender himself had suffered sexual abuse as a child. His Honour concluded –

“In my opinion, if it is established that a child sexual assault offender was himself sexually abused as a child and that that history of sexual abuse has contributed to the offender’s own criminality, that is a matter which can be taken into account by a sentencing Judge as a factor in mitigation of penalty as reducing the offender’s moral culpability of his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will subject to a wide discretion of the sentencing Judge. Evidence that a child sexual assault offender was himself sexually abused as a child can also be relevant to the offender’s rehabilitation…however, in holding that that was the only way in which it was open to him to take into account the evidence that the applicant had himself been sexually abused as a child, I consider that His Honour was in error.”

45 I have already referred to the horrific evidence of the applicant’s childhood. It was not seriously in dispute and, in this Court, no submission was made by the Crown that what the applicant said should not be accepted as true. There is a clear, though common sense, link between the sexual and physical abuse of the applicant when he was a child, his placement into a physically violent foster home and then a succession of refuges, ultimately abusing alcohol and other drugs while still under DOCS’ care. He never received any counselling for the abuse he had been subjected to as a child. This was plainly the responsibility of DOCS, which stood in the position with regard to the applicant of in loco parentis. It is fair to conclude that the stresses occasioned by the death of his grandfather and the birth of his second daughter had significantly contributed to the applicant’s resorting to alcohol abuse. There was also evidence of depression. It was not submitted below and it is not submitted in this Court that these features were insignificant in the context of the appropriate sentencing of the applicant. The question is whether, giving them their proper weight, the sentences are shown to be manifestly excessive.

46 It is submitted on the applicant’s behalf that the learned sentencing Judge did not give these circumstances the significance which they warranted. His Honour said –

“Mr Booth, learned counsel for the offender, submitted that his subjective circumstances, particularly surrounding his childhood and upbringing, were compelling, but more or less agreed that these paled in comparison to the gross nature of his offending. He said that the background, however, may provide some explanation for why the offences were committed.”

47 The learned trial judge did not thereafter refer to this matter. I would infer from his Honour’s apparent adoption of the concession he understood to be made by the applicant’s counsel that he did not regard these matters of being of any real significance. In my respectful view, however, these matters were of considerable significance and should have been taken into account in mitigating the sentences otherwise appropriately to be imposed.

48 The applicant also gave evidence that he had been in custody on limited association whilst in prison with the consequence that he has one hour of exercise a day and restricted opportunities for education and other programs. He said that he had been subject of serious acts of violence whilst in custody and that more had been threatened. On the other hand, he had been seeing the psychiatrist on a regular basis for the purpose of being assessed for the CUBIT program.

49 The fact that the applicant had been subject to violence in the prison because of the nature of his offences (as I think it should be inferred) was a material factor to take into account on sentence although the evidence of its extent did not justify any significant degree of mitigation. It is clear that the applicant will serve his sentence in strict protection.

50 Complaint is also made of the judge’s effective failure to vary the statutory ratio of the sentences where the special circumstances were manifest and should have resulted in a variation.

51 The learned sentencing judge referred to the applicant’s custodial situation including the acts of violence he had been subjected. There is no basis for supposing that his Honour did not take this into account in fixing the sentences which he imposed. Indeed, in dealing with special circumstances. His Honour said –

“I think that there should be a finding of special circumstances based upon the nature of the offender’s custody and the fact that this will be his first time in custody but I agree with [the Crown prosecutor] that this should not result in any significant departure from what would otherwise be the appropriate ratio.”

52 The overall effective term of imprisonment to which the applicant was sentenced was eleven years with a non-parole period of eight years. Applying the statutory ratio of 75 per cent to the eleven-year term would have resulted in a non-parole period of eight years and three months. Accordingly, it is evident that his Honour reduced the non-parole period by three months. It appears that his Honour was of the view that no lesser non-parole period than eight years could be imposed on the applicant, even having regard to the presence of special circumstances that might otherwise have justified a reduction in this term. In my respectful view, this conclusion was not justified. Accepting that an overall term of eleven years appropriately reflected the totality of the applicant’s criminality (as to which, see below), the factors mentioned by the learned sentencing judge in relation to special circumstances and also the mitigation arising from the applicant’s appalling childhood circumstances would have justified a significantly greater variation of the statutory ratio without reducing the sentence to the extent that it could be said to be inappropriately lenient. I do not see that the three months allowance made under this head adequately reflects the special circumstances in this case.

53 It seems to me that the appropriate way to approach the complaints made concerning the contended for errors made by the sentencing Judge is to consider them in the context of each offence.

Count 1- Aggravated Indecent Assault between 31 October 1991 and 1 January 2000.

54 I have already briefly described the facts of this case. It is clear from the complainant’s description of this episode that it was over very quickly. The complainant was sharing the bed of the applicant and his wife at the time. She said several times that the applicant “started touching me and then he stopped”. The maximum penalty for this offence under s 61(2) is ten years’ imprisonment. Having regard to the fact that the assault was momentary and apparently impulsive, that the applicant did not attempt to remove the complainant’s panties, that there was no forceful action and he both admitted the offence and pleaded guilty at the earliest opportunity, I consider that the sentence of a fixed term of eighteen months was excessive, implying a starting point of two years. In my view, the applicant has made good the contention that the sentence for this offence was excessive. Furthermore, if his Honour took into account (a matter as to which the generality of his language leaves uncertain) the vulnerability of the complainant and “some degree of planning or organisation”, these were aggravating features which were not able to be taken into account, as to the first because it was already implicit in the offence charged and as to the second because there was no evidentiary basis for such a conclusion.

55 It seems to me that a lesser sentence is warranted in law and should have been imposed. It follows that the applicant must be re-sentenced for this offence. Tendered on the appeal on the usual conditions is an affidavit of the applicant stating that he has been on strict protection for the entire period of his custody to date, his life has been threatened, and he is allowed out of his cell only six hours a day and has limited access to other facilities; he says that he is on the CUBIT program. He has re-established a relationship with his mother since being in gaol which, without setting out the details, suggests he will have support for his efforts to rehabilitate himself. The applicant restates his remorse and shame about his offences in language consistent with that which was expressed during the sentence proceedings and which his Honour accepted as truthful.

56 It is not disputed by the Crown, rightly as it seems to me, that an allowance of 25 percent for a utilitarian discount should be made. I propose that the sentence should be quashed and in lieu thereof a fixed term of nine months’ imprisonment should be imposed commencing 24 March 2004 and expiring on 23 December 2004.

Count 2 and taking into account the Form 1 matter: intercourse with a child under 10 years (s 66A).

57 The maximum term of imprisonment for this offence is twenty years. It is a very serious crime. The objective circumstances are also serious, though falling far short of the worst case. The applicant is the victim’s father and took advantage of his position of trust and authority to commit the offence. It involved full penile/vaginal penetration. It was not an isolated instance and a further offence, though very much less serious and carrying a markedly less maximum term is to be taken into account. (I wish to make it clear that mentioning these aggravating features is designed to place the offence in the range of seriousness implied by the maximum term and the character of the crimes themselves and avoid the potential for double counting.) In respect of the Form 1 offence, it is necessary to bear in mind (as I have already mentioned) that the applicant was charged under s 66C(1) and not s 66C(2), the latter providing as an aggravating circumstance that the complainant is under the authority of the offender. Even so, the offence is rendered more serious to my mind because AH was still only eleven or twelve years of age at the time. The offence was brief, it involved kissing and touching of the complainant’s breasts. It was by no means trivial and it was not an isolated act of sexual interference. Its commission required some increase to the otherwise appropriate sentence for the offence with which it was being taken into consideration.

58 Allowing a twenty-five per cent discount implies that the learned sentencing judge selected a starting point of just under thirteen years and six months. The Judicial Commission statistics suggest that this sentence is exceptionally heavy, exceeding for most variables all except one case in a not inconsiderable sample. Of course, this is not to be confused with the discretionary range available to a sentencing judge. Even so, to my mind the sentence was manifestly excessive, having regard to the objective seriousness of the offence and the applicant’s subjective circumstances, including especially the background of appalling abuse to which I have referred.

59 In my view an appropriate starting point for this offence (taking into account the Form 1 offence) having regard to the objective and subjective features to which I have referred is ten years’ imprisonment. A utilitarian discount in the order of twenty five per cent is appropriate, having regard not only to the timeliness of the plea but the early admission of the offences, which meant that the victim knew from an early stage that her complaints were not denied and she would not have to give evidence. This results in a sentence of seven years six months’ imprisonment. Having regard to the fact that this is a representative charge completely distinct from the offence comprising the first count, I think it would be inappropriately lenient to make any part of it concurrent with the sentence proposed for that count. Accordingly, the overall sentence should commence on 24 December 2004 and end on 23 June 2012. As to the non-parole period, the fact that this sentence is accumulated on the sentence imposed on the first count is a special circumstance requiring adjustment in the statutory ratio. To reduce the non-parole period further would be, to my mind, to impose an inappropriately lenient sentence. Accordingly (rounding down slightly) I propose a non-parole period of five years, commencing 24 December 2004 and ending 23 December 2009.

Count 3: intercourse with a person over the age of 10 years and under the age of 16 years (s 66C(1))

60 The sentence imposed for this offence was a fixed term of three years imprisonment. Taking into account the utilitarian discount, this implies a starting point of four years. The maximum term of imprisonment is seven years. I have already mentioned the error of double counting involved in the learned sentencing judge’s disposition of this charge. At the same time, this was not an isolated case and the child was very much at the lower end of the relevant age range. This was a calculated act of sexual manipulation callously indifferent to the welfare of the victim. In my view, no lesser sentence than that which was imposed is warranted in law. It seems to me also that an inappropriate degree of leniency was extended to the applicant by ordering this sentence to be wholly concurrent with the sentence passed in respect of the second charge. Accordingly, I would give leave to appeal in respect of this sentence but dismiss the appeal.

Proposed orders

I would propose the following orders –

(i) in respect of count 1, grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court and substitute in lieu thereof a fixed term of nine months’ imprisonment commencing 24 March 2004 and expiring on 23 December 2004;
(ii) in respect of count 2, grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court and substitute in lieu thereof a non parole period of five years, commencing on 24 December 2004 and ending on 23 December 2009 and a balance of term of two years and six month commencing on 24 December 2009 and ending on 23 June 2012; and

(iii) in respect of count 3, grant leave to appeal, dismiss the appeal.

(iv) the earliest date upon which the appellant is entitled to be released on parole is 23 December 2009.

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