JJ v R

[2020] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

JJ v R [2020] NSWCCA 165

Hearing dates:

26 June 2020

Date of orders:

20 July 2020

Decision date:

20 July 2020

Before:

Hoeben CJ at CL; Fagan J; Cavanagh J

Decision:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – aggravated sexual intercourse without consent – whether sentence manifestly excessive – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Aloniu v R [2017] NSWCCA 74

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Enriquez v R [2012] NSWCCA 60

FB v R [2011] NSWCCA 217

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hili v The Queen; Jones v The Queen [2010] HCA 45

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Wright v R [2019] NSWCCA 134

Category:

Principal judgment

Parties:

JJ (applicant)
Regina (respondent)

Representation:

Counsel:
J Manuell SC (applicant)
D Patch (respondent)

Solicitors:
Legal Aid NSW (applicant)
Solicitor Director of Public Prosecutions (respondent)

File Number(s):

2017/272014

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

18 February 2019

Before:

Colefax SC DCJ

File Number(s):

2017/272014

Judgment

1. THE COURT: This is an application for leave to appeal against a sentence of imprisonment imposed by Judge Colefax SC in the District Court at Parramatta on 8 February 2019. In November 2018 the applicant was tried at Bega and found guilty by a jury on one count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW), the circumstance of aggravation being that the victim was a girl of under 16 years: s 61J(2)(d). The offence was committed in October or November 2016 when the victim was 14. The maximum penalty is 20 years and the standard non-parole period is 10 years. The sentence imposed by his Honour was 12 years imprisonment with a non-parole period of 9 years. The sole ground of appeal is that the sentence is manifestly excessive.

Objective circumstances of the offence

2. The facts found by his Honour are as follows. The victim was born in 2002. By 2010 her natural father had separated from her mother and at some later date the father moved to Western Australia. The victim’s mother commenced a relationship with the applicant in about 2010 when the victim was approximately eight years old. In about 2011 or 2012 the applicant’s mother gave birth to a daughter, “C”, of whom the applicant is the father. In about April 2014 the applicant and the victim’s mother, together with the victim and C, moved to a house in the Bega district. In October of that year the victim went to Western Australia to live with her natural father. She remained there for 12 months. By the time she returned to New South Wales in late 2015 the relationship between the applicant and the victim’s mother had broken down and the applicant had moved out of the home. He visited from time to time in order to maintain contact with his daughter, C, and sometimes stayed for dinner. However, the applicant had no interaction with the victim on these visits.

3. One weekend morning in October or November 2016 the victim’s mother went out, either to buy something or on a similar errand. The mother took C with her but left the victim at home alone, still in bed. Later in the morning the victim heard the family dog barking and went out through the front door in her pyjamas expecting to find that her mother had returned. Instead, the applicant was at the front of the house in an angry mood. He repeatedly asked the victim where her mother was. She was unable to say and, thinking that the applicant was about to leave, she turned to go back inside the house.

4. The applicant followed her and pushed her from behind, causing the victim to stumble. She recovered her balance against the front door. The applicant then seized her by the arm and pulled her along the hallway of the house, against the victim’s resistance. The applicant’s forceful pulling caused the victim to fall onto the hallway floor. He then dragged her the rest of the way to her bedroom, where he lifted her from under her arms onto the bed. The applicant placed her on her back with her legs hanging off the edge of the bed. She tried to scream but was in such fear as to be unable to make any sound.

5. The applicant held the victim by her upper arms to stop her from further resisting. Nevertheless she continued to try to move and get up but each time she did this the applicant punched her to the right shoulder. The applicant then held down both of the victim’s arms and, with a free hand, pulled down her pyjama pants and his lower clothing. At this time the victim was crying loudly and she tried to roll sideways to get off the bed. The applicant told her to “shut up”. He had penile-vaginal intercourse with her, not using a condom. This was painful for the victim and she cried even more. When she saw him smiling during the sexual act she shut her eyes.

6. When the applicant was finished he stood up, pulled up his trousers and went out of the room. Shortly afterwards he came back in to the room. The victim was sitting on the edge of the bed crying. The applicant placed both hands around victim’s neck and told her that if she informed her mother what had occurred he would kill her. The applicant then left the property. The victim took the applicant’s threat seriously and said nothing to her mother when she returned home. That evening the applicant was brazen enough to return to the home to visit C and he ate dinner with the victim’s mother. The victim ate in her own room.

7. As a result of the applicant’s threat the victim was too afraid to tell anyone what had occurred until 2017, when she formed a relationship with a young man with whom she felt sufficiently confident to retell the event. With his support the applicant informed her mother, then her grandmother and in due course the police. The applicant was arrested in September 2017. He was released on bail after one month and remained on bail until the jury’s verdict was returned.

8. His Honour assessed the objective seriousness of the offence as “mid-range for [an] offence of its kind” and noted that it was aggravated by having been committed in the victim’s own home, with accompanying violence and the threat of further violence.

Subjective circumstances of the applicant

9. The applicant was born in June 1982 and was 24 years old at the time of the offence. He was 26 when sentenced. The learned judge accepted that in his childhood the applicant had witnessed considerable violence at home, by his father against his mother, and that as a consequence he suffers from post-traumatic stress disorder, anxiety and depression. His Honour took into account the reports of two medical practitioners and a clinical psychologist that identified these disorders. It was accepted that lack of effective treatment for them over the years had contributed to the applicant having difficulties in his relationships with women, including the mother of the victim. His Honour also accepted that the applicant had in recent years self-medicated with illicit drugs and alcohol and that this had exacerbated his mental condition. However, his Honour found no causal connection between the applicant’s mental disorders and the commission of the offence.

10. The learned sentencing judge accepted that the applicant had been a hard worker all his life, in the hospitality industry and as a landscaper. The findings in this respect were in part based upon several very favourable references from people who had known him for periods of 25 years, 12 years, eight years and 16 months respectively. One of the referees was a former female partner who had been in a relationship with him for six years. All of these referees spoke of his honesty, integrity and work ethic. The applicant had prior convictions for destroying property, stalking and intimidating, driving with high blood alcohol levels and being in possession of goods suspected of being stolen. His Honour recognised that none of those offences was in any way comparable with that for which he was to be sentenced but noted that he could not be extended the leniency that a first offender might receive.

11. It was submitted by the Crown that the sexual assault had been inflicted in an attempt to punish the victim’s mother but his Honour could not be satisfied of this beyond reasonable doubt. Ultimately, his Honour was unable to identify any reason why the offence had been committed. There was no evidence of the applicant having attempted to groom the applicant over the period in which he had known her. The absence of explanation combined with lack of remorse left his Honour unable to make a favourable finding with respect to prospects of rehabilitation. He adopted a guarded view of those prospects.

12. The applicant’s absence of remorse was striking. Also, in the course of the sentence proceedings his mother gave evidence that neither she nor other members of the applicant’s family believed that the offence had been committed. It appeared that this family consensus may have reinforced the applicant’s persistent denial. Even during the course of delivery of his Honour’s remarks the applicant interjected to say:

It’s not just my family that don’t believe her, it’s her whole family as well.

13. His Honour did not find special circumstances that would justify varying the statutory ratio of the non-parole period. He concluded that the applicant’s prospects of rehabilitation would not be enhanced by a longer period on parole and he was not satisfied that the applicant’s psychological condition would make the experience of imprisonment harsher for him than it may be for others.

Consideration

14. The principles relating to a ground of manifest excess, as stated in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Hili v The Queen; Jones v The Queen [2010] HCA 45 and in many subsequent authorities, may be summarised as follows:

1   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3   it is not to the point that this Court might have exercised the sentencing discretion differently;

4   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

15. The applicant has sought to demonstrate manifest excessiveness by comparing his sentence with sentences imposed on other offenders charged under s 61J(1). He has sought to identify what are said to be markedly shorter terms in cases where the combination of objective seriousness and mitigating subjective features was materially indistinguishable from his own case. A sentence under appeal may reflect latent error of principle if it fails to achieve consistency with the treatment of like offenders. The High Court has repeatedly emphasised the importance of maintaining consistency in sentencing: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, Hili v The Queen; Jones v The Queen and Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. When a ground of manifest excess is advanced in this way, it is always a range rather than a particular length of sentence that is sought to be identified from amongst the decisions in comparable cases. That is because sentencing is inherently imprecise and because there is never an exact identity between cases.

16. It is an unhappy reflection of present-day social conditions in Australia that this Court has had to consider on many occasions sentences passed upon step-fathers who have had non-consensual sexual intercourse with their step-daughters of under 16 years. So far as may be gauged from the number of appeals to this Court, the offending of this nature appears to be not at all uncommon. For present purposes, that means that there are numerous prior decisions of this Court against which one may attempt to make a comparison of objective facts, offenders’ subjective circumstances and length of sentence imposed.

17. The applicant’s endeavour to demonstrate inconsistency with comparable cases has not succeeded. It would not be useful to undertake a point-by-point comparison of sentencing factors in the applicant’s case with those of the offenders in all of the cases he has cited as comparable. Some examples of the differentiating features of the comparator cases will suffice.

18. In Enriquez v R [2012] NSWCCA 60 a 39-year-old stepfather, who had been separated from the victim’s mother for a year, returned to the home in the middle of one night while the mother was working a night shift. He had forcible penile-vaginal intercourse with the 15-year-old victim. Differences from the present case include that the victim was one year older; the offender did not threaten her to maintain secrecy; he remained in the home until the next morning and later surrendered himself to police; compelling evidence of remorse was given; the sentencing judge found good prospects of rehabilitation; a plea of guilty was entered and 15% discount was allowed. Without the effect of the discount, the starting point sentence, for purposes of comparison with the present case, was 10 years with a non-parole period of 7 years. This took account of an offence, on a Form 1, of attempted aggravated sexual intercourse. That was an attempt by the offender to have penile-oral intercourse with the victim on the same night.

19. In Wright v R [2019] NSWCCA 134 the 31-year-old step-father had resided with the victim and her mother since the victim was five years old. When she was 15 he entered her bedroom early one morning, while she was half asleep, and had forcible sexual intercourse with her. This had been preceded by repeated sexual touching over a protracted period and consequently the offence was the culmination of a course of conduct. The offender’s relationship with the victim’s mother continued after the offence and up to the time of sentence. He was found guilty by a jury. The offender was convicted also of two indecent assaults committed a year later and sentenced to an aggregate term. The indicative sentence for the offence against s 61J(1) was 9 years with a non-parole period of 6 years and 6 months. The aggregate was not disturbed on a severity appeal. The basis of sentencing included that the offender’s behaviour was uncharacteristic; generally he had good relationships with women; what had occurred was in part explicable by his relationship with the victim’s mother having gone through a period of discord; there was a low risk of re-offending. While there was no finding of remorse, the offender in Wright v R did not maintain strident denial after conviction, as did the applicant in the present case.

20. In FB v R [2011] NSWCCA 217 the offender was not a step-father but a 40-year-old schoolteacher with whom the victim was temporarily residing due to conflict with her family. The victim was 14. The offence involved some violence and restraint and was perpetrated against the victim’s resistance. The offender was found guilty after a judge alone trial but nevertheless expressed profound remorse and was found to be at a moderate risk of reoffending. A sentence of 6 years and 6 months with a non-parole period of 4 years was appealed by the Crown as manifestly inadequate. It was set aside and a sentence of 10 years with a non-parole period of 6 years was substituted.

21. Aloniu v R [2017] NSWCCA 74 was the only other case referred to by the applicant in which the relevant offending was on a single occasion. The offender was 47 years old and was the uncle by marriage of the victim, who was aged 15. She resided in his home, also shared by his wife and children. The incident included digital penetration and oral intercourse that gave rise to two separate counts. He was sentenced on the basis that he was unlikely to reoffend and had good prospects of rehabilitation but had not shown remorse. He did not grasp the gravity of his conduct. The offender changed his plea belatedly and was allowed a 6% discount. The starting point indicative sentence for the count of penile-vaginal intercourse was 7 years and 5 months with a non-parole period of 4 years 8 months. Implicitly, but for the discount the aggregate sentence would have been 9 years 6 months with a non-parole period of 6 years 1 month.

22. Other cases referred to by the applicant involved offending on multiple occasions, mostly over extended periods when the respective victims were at varying ages. It is not possible to make meaningful comparison with those cases: the points of difference and the difficulties of unravelling individual comparable counts defeats the exercise.

23. A significant feature of the applicant’s case that has contributed to the undoubtedly stern sentence is the violence of the episode, involving punching and forceful restraint. The applicant’s actions were in the nature of an attack, a violation and a humiliation. This was perpetrated by an adult male against a 14-year-old child who was helpless and at his mercy. Another serious aspect is the threat that the applicant made of further violence, by which the victim was intimidated against confiding in her mother or any other person who could give support in the aftermath. Under that threat the victim was disabled from seeking the counselling and comfort that might have ameliorated the psychological damage she would inevitably have suffered from being so callously abused.

24. A third notable feature of the applicant’s case is his total failure to accept wrongdoing. As his Honour recognised, that attitude cast doubt over the applicant’s prospects of rehabilitation. It also denied the victim such healing as might have been drawn from acknowledgement and an apology.

25. The prevalence of aggravated sexual intercourse without consent by step-fathers against girls in their early teens requires that the consideration of general deterrence must be influential in fixing an appropriate sentence in such a case. The learned sentencing judge’s finding that this was a mid-range offence of its type has not been shown to be erroneous, on the objective facts. The standard non-parole period of 10 years as prescribed by Parliament is in those circumstances an important guide that his Honour was bound to heed. Upon all of these considerations it cannot be said that the sentence imposed was manifestly excessive. In particular, the mere fact that the sentence is higher than sentences imposed in some other cases has not demonstrated that the sentence is excessive, making due allowance for differing features of the comparator cases and recognising the latitude that is permitted to a first instance judge in exercising the sentencing discretion.

Orders

26. The orders of the Court will be:

1. Leave to appeal is granted.

2. The appeal is dismissed.

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Decision last updated: 20 July 2020