KB v The Queen
[2015] NSWCCA 220
•19 August 2015
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New South Wales |
Case Name: | KB v R |
Medium Neutral Citation: | [2015] NSWCCA 220 |
Hearing Date(s): | 13 July 2015 |
Date of Orders: | 19 August 2015 |
Decision Date: | 19 August 2015 |
Before: | Simpson JA at [1] |
Decision: | (1) Extend time within which to apply for leave to appeal against sentence up to and including the date on which such application was filed. |
Catchwords: | CRIMINAL LAW – appeal against sentence – comparable sentence decisions – sentencing judge having regard to comparables subsequently reconsidered |
Legislation Cited: | Crimes Act 1900 (NSW) |
Cases Cited: | Ingham v R [2011] NSWCCA 88 |
Category: | Principal judgment |
Parties: | KB (Appellant) |
Representation: | Counsel: |
File Number(s): | 2011/203554 & 2010/315903 |
Publication Restriction: | Non-publication order prohibiting publication or other disclosure of information tending to reveal identity of, or otherwise concerning, any party to, or witness in proceedings before the Court, or any person who is related to or otherwise associated with any party to or witness in proceedings before the Court until further order. |
Decision under appeal: | |
Court or Tribunal: | District Court of New South Wales |
Jurisdiction: | Criminal |
Date of Decision: | 27 September 2013 |
Before: | English DCJ |
File Number(s): | 2011/203554 & 2010/315903 |
JUDGMENT
SIMPSON JA: I agree with Fagan J.
BUTTON J: I agree with Fagan J.
FAGAN J: On 6 June 2013 the applicant for leave to appeal pleaded guilty before the District Court at Wagga to three charges of indecent assault on a child under 16 years (s 61M(2), Crimes Act 1900 (NSW)) and one charge of sexual intercourse with a child under 10 years (s 66A(1), Crimes Act). The offences occurred between January and April 2009. The victim was 8 years old, the offender 52.
The maximum penalty for each of the offences against s 61M(2) was 10 years. A standard non-parole period of 8 years was prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW). For the offence against s 66A(1) the maximum penalty was 25 years and the standard non-parole period was 15 years.
The sentence hearing took place before English DCJ on 17 September 2013 and sentence was handed down on 27 September 2013. Leave is now sought to appeal against the severity of the terms of imprisonment imposed. The application is out of time but evidence has been given to explain the delay and extension of time is not opposed by the Crown. I would propose that time be extended and leave be granted. I refer to the offender as the Appellant in the balance of these reasons.
At the time the offences were committed the Appellant was employed as a farmhand on a rural property. The complainant lived in a homestead on the property with her father (who farmed the property and employed the Appellant) and with her mother and sisters. One of the complainant’s sisters is approximately four years older than her.
Local Court charges concerning complainant’s sister
Prior to the sentence hearing in the District Court the Appellant had pleaded guilty to four charges of indecent assault against the complainant’s older sister (s 61M(2)) and one charge of breaching an apprehended violence order. These offences had occurred between 1 June 2009 and 30 November 2009. They were dealt with in the Local Court at Cootamundra on 19 August 2013.
The four offences contrary to s 61M(2) were perpetrated at the family property when the sister was 13 years old. They involved kissing her and touching her buttocks, chest and genitals. The Magistrate imposed non-parole periods of between 6 months and 12 months with the balances of the respective terms ranging between 3 months and 7 months. With some degree of accumulation, these sentences resulted in the Appellant commencing in custody on 19 August 2013 and not being eligible for release on parole until 18 December 2014 (16 months). The last date of expiry of the balance periods was 18 July 2015 (an additional 7 months).
The charges and sentences in the District Court
The offences that are the subject of the present application for leave to appeal were as follows (together with a short statement of the circumstances and the sentences her Honour imposed). Pleas of guilty to these counts were accepted by the Crown in full satisfaction of an indictment which also contained alternate counts.
Count 2 alleged an indecent assault on a person under 16 years (8 years) contrary to s 61M(2). Some time in March or April 2009 the complainant was sitting on the knee of the Appellant in the passenger seat of a utility motor vehicle. She was facing the front windscreen. The driver was the complainant’s father. Whilst the father was out of the vehicle at a gate the Appellant placed his hands inside the complainant’s clothing and rubbed her vagina with his fingers. Her Honour fixed a non-parole period of 3 years commencing 7 August 2014 and expiring 6 August 2017. That is, the sentence was made partly concurrent with the last-expiring non-parole period which had been fixed in the Local Court for the offences concerning the sister: there was a period of concurrency of 4 months and 11 days. The balance of the term was fixed at 3 years, for a total sentence of 6 years.
Count 4 was a further charge under s 61M(2). Between January and April 2009 an incident very similar to that in Count 2 occurred. When the father got out of the vehicle the Appellant placed his hands inside the complainant’s shorts, this time on the outside of her underwear. He moved his hands around until they were beneath the complainant’s buttocks. A non-parole period of 2 years was fixed, to commence 7 November 2014. Hence, there were three months of accumulation upon the sentence for Count 2 but still 1 month and 11 days of concurrency with the last-expiring of the non-parole periods set in the Local Court. The balance of the term was fixed at 3 years; the total sentence was therefore 5 years.
Count 5 was again laid under s 61M(2). Around April 2009, whilst the Appellant and the complainant were waiting near a pump shed for the complainant’s father to arrive, the Appellant placed his hands underneath the front of the complainant’s shirt and rubbed them up and down on her chest area approximately five times. When she tried to get off the bike the Appellant initially prevented her from doing so by pulling her down by her clothing. She struggled harder and he eventually let her go. Before the complainant’s father arrived on the scene the Appellant said to her “watch out” in what she described as “a really mean voice”. Not long afterwards, when the Appellant was with the complainant at some distance from the shed and out of view of the father, the Appellant once more placed his hands underneath the complainant’s shirt and rubbed them up and down her chest.
Her Honour fixed a non-parole period of 2 years commencing 7 February 2015. That is, there were another three months of accumulation upon the sentences for counts 2 and 4. The balance of the term was fixed at 3 years, for a total sentence of 5 years.
Count 7 was laid under s 66A(1), Crimes Act, a charge of sexual intercourse with a child under 10. At some time around April 2009 when the complainant was with the Appellant in the vicinity of the pump shed and her father was absent from the area, the Appellant told the complainant to lie down on the seat of a quad bike with her legs apart. He removed her underwear and his own lower clothing, stood with one leg on either side of the quad bike and lay on top of the complainant with his penis touching her vagina. There was partial penetration, he moved his body backwards and forwards and he ejaculated on her.
Her Honour fixed a non-parole period of 9 years commencing 7 May 2015 – a further accumulation of three months on the sentences for counts 2, 4 and 5. A balance term of 5 years was fixed so that the total sentence for this offence was 14 years.
The overall effect of the sentencing on all counts was a combined non-parole period of 9 years and 9 months and a total balance term of 5 years. As mentioned, the total was concurrent with the overall non-parole period of the Local Court sentences to the extent of four months and eleven days.
Together with the sentence proceedings the learned sentencing judge dealt with a severity appeal in respect of the Local Court sentences for the offences concerning the complainant’s older sister. This appeal was dismissed and the Local Court’s sentences were confirmed in all respects. No further challenge has been made regarding that aspect of the proceedings which were before her Honour.
Ground 1 – regard paid to sentence decisions subsequently invalidated
The Appellant makes no specific complaint about her Honour’s findings of fact or about the range of considerations taken into account or the weight given to them. The only specific complaint is that regard was paid to sentences for ss 61M(2) and 66A offences determined or upheld in this Court in RJA v R [2008] NSWCCA 137 and Ingham v R [2011] NSWCCA 88. Ground 1 is that “her Honour’s approach of taking into account as a guide [these] cases … has occasioned a miscarriage of justice”. The basis for the contention is that following the High Court’s decision in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 the sentences in each of those cases were reduced upon further review in this Court: RJA v R [2014] NSWCCA 89 and Ingham v R [2014] NSWCCA 123.
In the relevant passage of the remarks on sentence her Honour made the following statement:
“The Court of Criminal Appeal in the decision of R v Leslie [2013] NSWCCA 48 provided a useful review of sexual assault cases prosecuted under s 66A in addition to those prosecuted under s 66A(2). A perusal of some of the facts and penalties is instructive.”
Her Honour then set out in brief terms the facts and outcomes of several of the cases cited in R v Leslie (supra). One of those cases was RJA v R [2008] NSWCCA 137 in which the offender had been convicted of three offences contrary to s 66A in relation to his natural daughter aged 8 and 9 at the dates of the respective offences. The offender was separated from the child’s mother. The child was temporarily in his care under access arrangements during three separate periods in February, August and September 2004. The offences occurred during these three periods respectively, when the offender was aged 29 to 30 years. He was sentenced after a trial. He was otherwise of good character. During the period of offending s 66A was in the same terms as s 66A(1), as that subsection applied to the Appellant in early 2009, with the same 25 year maximum and 15 year standard non-parole period .
In the following table are set out the particulars of the offences considered in the two appeals to this Court entitled RJA v R, together with (a) the sentences determined by this Court in 2008, in the decision to which English DCJ had regard when her Honour sentenced the Appellant and (b) the results of the resentencing by this Court in 2014, pursuant to ss 78 and 79(1)(b), Crimes (Appeal and Review) Act 2001 (NSW) following the High Court’s decision in Muldrock v R (supra). In this table the sentences are expressed in the form “non-parole period + balance term”, in years unless otherwise indicated. The line labelled “Total effective” shows the overall sentence which resulted from partial accumulation.
| Count | Particulars | RJA [2008] | RJA [2014] |
| 1 | Penile penetration and ejaculation | 12 + 4 | 9 + 4 |
| 3 | Digital/vaginal intercourse | 6 + 8 | 4yrs 6m + 1yr 6m |
| 4 | Penile penetration | 10 + 4 | 7yrs 6m + 2yrs 6m |
| Total effective | 13 + 4 | 11 + 4 |
The second of the decisions to which her Honour had regard but in which re-sentencing subsequently took place in this Court was Ingham v R [2011] NSWCCA 88. There the offender was convicted after trial of eight offences contrary to s 66A(1), three concerning a 9 year old girl and five concerning an 8 year old girl. There was also a conviction for attempting to have sexual intercourse with one of the victims (s 66B) and there were two counts of aggravated indecent assault contrary to s 61M(2). When the offences were committed in October 2006 the maximum penalty under s 61M(2) was the same as it was at the time of the Appellant’s offences. However the standard non-parole period for s 61M(2) was then 5 years whereas it had been increased to 8 years by the time of the offences the subject of this appeal. In October 2006 s 66A was in the same terms as s 66A(1) at the time of the Appellant’s offences, with the same maximum penalty and standard non-parole period.
Ingham was a friend of the 9 year old’s mother, who was separated from her husband. He often stayed with the mother over weekends and he babysat the 9 year old girl and at times bathed her. The 8 year old victim was a friend of the 9 year old. All of the offences occurred over one weekend. The offender was 35 years old. The offences were planned and not isolated, there having been some sexual activity with the 9 year old girl on the weekend before. Each offence against each complainant was made more serious by the circumstance that it was committed in the presence of the other complainant. The offender had a prior conviction for sexual intercourse with a person under 10 years old, committed when the offender had been 18 years old. The Court accepted that the risk of reoffending was moderate.
Again the results of the two occasions upon which this Court considered the sentencing of Ingham can most readily be appreciated from a table. In what follows, the offences against the two complainants respectively are grouped. For the most part the sentences listed in relation to the 2011 consideration of the case were those which had been imposed at first instance, with adjustments in this Court only to the counts under s 61M(2) (where the sentencing judge had misapprehended the standard non parole period). Total effective sentences for the counts relating to each complainant are shown, together with an overall total effective result.
| Count | Particulars | Ingham [2011] | Ingham [2014] |
| 2 | s 66A – digital/vaginal penetration | 10 + 3 | 7yrs 6m + 2yrs 6m |
| 3 | s 61 M(2) – licking breasts | 5 + 1yr 8 m | 3 + 1 |
| 4 | s 66A – licking vagina | 15 + 5 | 7yrs 6m + 2yrs 6m |
| 5 | s 66A – penile penetration | 16 + 5yrs 4m | 9 + 4 |
| 6 | s 66B – attempted fellatio | 9 + 3 | 6 + 2yrs 6m |
| Total effective for offences against the 9 year old | 16 + 5yrs 4m | 9 + 4 | |
| 7 | s 66A – fellatio | 15 + 5 | 6 + 2 |
| 8 | s 61M(2) – sucking the child’s breast | 5 + 1yr 8m | 3 + 1 |
| 9 | s 66A – penile penetration | 16 + 5yrs 4m | 9 + 4 |
| 10 | s 66A – digital/vaginal intercourse | 10 + 3yrs 4m | 7yrs 6m + 2yrs 6m |
| 11 | s 66A – digital/vaginal intercourse | 10 + 3yrs 4m | 7yrs 6m + 2yrs 6m |
| 12 | s 66A – licking vagina | 15 + 5 | 7yrs 6m + 2yrs 6m |
| Total effective for offences against the 8 year old | 16 + 5yrs 4m | 10 + 2yrs 6m | |
| TOTAL EFFECTIVE OVERALL | 17 + 5yrs 4m | 13 + 4 |
In the 2011 decision this Court did not disturb the Sentencing Judge’s order that all offences concerning the 9 year old complainant be concurrent with each other and likewise that all offences concerning the 8 year old be concurrent, with 12 months accumulation between the two groups of sentences. Upon reconsideration in 2014 the effect of this Court’s orders was that there was some accumulation of sentences within those imposed for the offences against the 8 year old so that the non-parole periods collectively were one year longer than the single highest non-parole period imposed for any one offence. A further three years accumulation was provided for as between this group of sentences and those for the offences against the 9 year old. This led to an overall collective non-parole period of 13 years.
I consider that the Appellant’s first ground of appeal should be upheld. Her Honour took into account as considerations relevant to the exercise of her sentencing discretion the examples provided by the 2008 RJA decision and the 2011 Ingham decision, both of which have since been set aside.
Just as this Court had to re-sentence RJA and Ingham, after reconsidering its own earlier decisions regarding those offenders in accordance with the High Court’s correction in Muldrock, so her Honour’s decision must be reconsidered on the basis that it took account of the original uncorrected Court of Criminal Appeal decisions in those two cases. This Court must therefore re-exercise the sentencing discretion. It becomes unnecessary to decide the Appellant’s second and more general ground, namely, that the sentences imposed by English DCJ were manifestly excessive. However the arguments advanced in support of that ground are relevant to the resentencing exercise.
Resentencing – approach generally
For the purpose of resentencing in Ingham v R [2014] NSWCCA 123, Fullerton J (with whom Basten JA and RA Hulme J agreed) summarised the approach to be taken following Muldrock v R as follows, at [24]:
“[24] … 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]).”
At [40] her Honour adverted to the care required when having regard to sentences imposed in other seemingly similar cases. Having noted that both counsel had referred to a number of other decisions of this Court, her Honour continued as follows:
“[40] … 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.”
In the absence of any challenge to the accuracy or completeness of the factual circumstances taken into account by her Honour, I would approach the resentencing exercise in reliance upon the considerations summarised in the remarks on sentence, applying the above principles.
Relevant findings in the District Court
English DCJ found that there had been, as would be expected, very considerable and ongoing impact of the offences upon the complainant and her family. Findings were made that the offences involved abuse of the trust placed in the Appellant by the complainant’s family, as both an employee and a friend; the offences took place on the property which was the complainant’s home; the offences were of a predatory nature given the complainant’s very young age and the fact that the Appellant was 52 at the time; there was an implicit threat by the Appellant in his warning “watch out” in connection with Count 5 and the offences constituted a course of conduct of escalating seriousness with an element of planning. Her Honour found that the Appellant had undertaken a process of gaining confidence, over time, that the complainant would not report his actions.
The evidence before her Honour included a psychologist’s report which had been prepared on the basis of only the offences against the older sister. This report concluded that the risk of recidivism with respect to the Appellant was low. However her Honour was able to give the report only limited weight because the more serious offences which were the subject of the pleas of guilty before her had not been considered in the report. A need for caution about the level of risk of recidivism remains.
Her Honour took full account of the Appellant’s subjective circumstances. He was one of eight children. In childhood he had resided with his family in the same general area as the property on which he had been working when these offences were committed. He had done poorly at school. He had stuttered when young and had had difficulty communicating. He left school halfway through year 10. He was then unable to read but had learned since.
After leaving school he had worked in a wool store and later as a farmhand. He remained in employment on one property for approximately 20 years. The owner had been supportive of the Appellant, assisting him to learn to read and to obtain a driving licence. After the property owner died the Appellant had become withdrawn and had appeared to his sister to be depressed. The Appellant’s parents were deceased, his father after a long illness.
The Appellant had commenced employment with the complainant’s father in 2000. The two men had known each other for a long time, having attended the same high school although in different years. During the period in which the Appellant worked for the complainant’s father up until these offences came to light, he had been treated as a close and trusted family friend. He had been included in birthday celebrations and other family occasions. Her Honour took into account favourable character evidence including evidence from a disabled man in the locality who had received generous voluntary help from the Appellant.
Her Honour found that the Appellant had not demonstrated remorse or even insight. The pleas of guilty to the charges were entered late. In those circumstances her Honour regarded their utilitarian value as limited and allowed a 15% discount. The pleas of guilty were seen as the only indication of contrition.
It was accepted by the sentencing judge that the Appellant was suffering from depression, that he had been diagnosed with prostate cancer and that he had a significant hearing impediment. It was also found that the Appellant’s limited ability to interact with others would make his time in custody more onerous and that he would likely be placed under protection due to the nature of the crimes of which he was convicted. Her Honour considered that he would need significant help on his eventual release to parole and that a longer period of parole with monitoring would be required to reduce the likelihood of him reoffending – these were held to be special circumstances for the purpose of determining the relationship between the non-parole period and the balance term for each offence.
Additional subjective material on appeal
For the purpose of exercising the sentencing discretion afresh the Court is asked to take into account a report dated 3 July 2015 of Patrick Sheehan, forensic psychologist. The most material passages are in pars 13, 15 and 17 of the report, as follows:
“13 During the interview Mr [B] did speak about his offences but was unable to account for his behaviour. He said he knew it was wrong and did not think of himself as someone who could do such a thing. He could not understand how he overcame his better judgement in his behaviour towards the two victims. He strenuously denied any prior sexual interest in underage girls. His lack of insight suggests an impaired ability to engage in self critical analysis and thought (likely underpinned by low-level verbal intellectual skills, see paragraph 15 below).
15 …His verbal intellectual skills were ‘extremely low’ (1st percentile) and an area of personal weakness. Other aspects of his intellectual functioning involving attention and concentration (‘average’ at the 50th percentile), information processing speed (‘borderline’ at the 8th percentile) and non-verbal/visual intellectual skills (“average” at the 39th percentile) were normal…
17 The totality of information suggests that Mr [B] does not have an intellectual disability. His very low verbal intellectual skills are offset by average perceptual reasoning and working memory. His processing speed is slow but not to the level of impairment. Verbal engagement with Mr [B] may give the impression that he is more impaired than he really is. …in my opinion his verbal intellectual deficits may be relevant to his offending by contributing to reduced social engagement and social intelligence, a reduced ability to establish and maintain intimate sexual relationships in adulthood and a reduced ability to engage in self critical analysis and thought.”
Accepting this evidence at face value, it does not materially add to or alter the summary of the Appellant’s subjective characteristics given in her Honour’s remarks on sentence.
The Appellant was charged on 22 June 2011. He was in custody for twelve days before being granted conditional bail on 4 July 2011. He was committed for trial on 20 February 2012. He did not enter his pleas of guilty until 6 June 2012. Consistently with her Honour’s finding, a discount of 15% for the utilitarian value of his pleas is appropriate.
Conclusion on resentence
I take all of these matters into account, including this Court’s 2014 decisions in RJA and Ingham, making due allowance for the fact that those offenders were sentenced after trial whereas a 15% discount is appropriate for the Appellant’s early plea. The substituted sentences I propose would involve partial accumulation upon the terms imposed in the Local Court as well as partial accumulation between the periods of imprisonment which seem to me appropriate for each of the four counts under consideration on this appeal. The latter is necessary to recognise the series of independent assaults upon the complainant on distinct occasions over the relevant period. The orders I propose are:
(1)Extend time within which to apply for leave to appeal against sentence up to and including the date on which such application was filed.
(2)Grant leave to appeal.
(3)Allow the appeal.
(4)The sentences imposed in the District Court on 27 September 2013 are quashed.
(5)In lieu thereof the following sentences are imposed:
(a)Count 2 – a non-parole period of 3 years commencing 7 August 2014 and expiring 6 August 2017 and a balance term of 1 year 6 months expiring 6 February 2019.
(b)Count 4 – a non-parole period of 2 years commencing 7 November 2014 and expiring 6 November 2016 and a balance term of 1 year commencing 7 November 2016 and expiring 6 November 2017.
(c)Count 5 – a non-parole period of 2 years commencing 7 February 2015 and expiring 6 February 2017 and a balance term of 1 year commencing 7 February 2017 and expiring 6 February 2018.
(d)Count 7 – a non-parole period of 7 years 8 months commencing 7 May 2015 and expiring 6 January 2023 and a balance term of 3 years 4 months commencing 7 January 2023 and expiring at 6 May 2026.
(6)The Appellant will be eligible to be released to supervised parole at the expiration of the non-parole period fixed for Count 7.
This represents a total non-parole period of 8 years and 5 months from 7 August 2014 to 6 January 2023 and a total balance term of 3 years and 4 months from 7 January 2023 to 6 May 2026.
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