KJH v Regina

[2006] NSWCCA 189

CITATION:	KJH v. REGINA [2006] NSWCCA 189
HEARING DATE(S):	Tuesday 30 May 2006
JUDGMENT DATE:	22 June 2006
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 5; Hall J at 6
DECISION:	(1) Appeal allowed. (2) The sentenced imposed by the District Court on 27 July 2005 be quashed. (3) That the applicant be re-sentenced on the following basis: (a) on Count 1, he is sentenced to a fixed term of imprisonment of nine months to commence on 16 September 2004 and to expire on 15 June 2005; (b) on Count 2, he is sentenced to a fixed term of imprisonment of three years to commence on 16 September 2004 and to expire on 15 September 2007; (c) on Count 3, he is sentenced to a fixed term of imprisonment of 18 months to commence on 16 September 2005 and to expire on 15 March 2007; (d) on Count 4, he is sentenced to imprisonment for eight years to commence on 16 September 2006 and to expire on 15 September 2014. There will be a non-parole period of four years to expire on 15 September 2010; (e) on Count 5, he is sentenced to a fixed term of imprisonment of two years to commence on 16 September 2006 and to expire on 15 September 2008; (f) on Counts 7 and 8, in each case he is sentenced to fixed terms of imprisonment of two years to commence on 16 September 2007 and to expire on 15 September 2009. (4) The applicant will be eligible for release on parole on 15 September 2010.
CATCHWORDS:	Appeal against sentence – not guilty pleas to eight counts of sexual misconduct with his natural daughter contrary to ss.61O(2), 66A and 61M(2) of the Crimes Act 1900 – whether trial judge erred in determining the maximum penalty applicable under s.66A – whether mis-statement by trial judge, subsequently explicitly corrected, indicates that the judge has fallen into error and applied the wrong maximum penalty – a mis-statement in the remarks on sentence, while regrettable, provides no reason to doubt the express statement made by the trial judge as to the maximum penalty he in fact had in mind at the time of determining the sentence – whether sentence was manifestly excessive – not all offences under s.66A involve an abuse of trust – sentence imposed in relation to Count 4 was manifestly excessive – whilst Count 4 was objectively more serious than Count 2, it was not at a level that could be said to warrant a sentence of approximately three times that imposed in respect of Count 2
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Muldoon (CCA, unreported 13 December 1990) R v Eagles (CCA, unreported 16 December 1993) JCW [2000] NSWCCA 209 TAB [2002] NSWCCA
PARTIES:	KJH v. REGINA
FILE NUMBER(S):	CCA No. 2006/404
COUNSEL:	Crown: P.M. Miller App: C. Davenport, SC.
SOLICITORS:	Crown: S. Kavanagh App: S. O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0425
LOWER COURT JUDICIAL OFFICER:	Coolahan, DCJ.
LOWER COURT DATE OF DECISION:	27 July 2005

2006/404

McCLELLAN, CJ. at CL.
JAMES, J.
HALL, J.

THURSDAY 22 JUNE 2006

KJH v. REGINA

Judgment

1 McCLELLAN, CJ at CL: I have had the benefit of reading the judgment of Hall J in draft. As his Honour identifies error has occurred in the sentence imposed on count 4. That sentence was excessive and requires reduction.

2 To my mind it is arguable that error has also occurred in the sentence imposed in relation to count 2. Apart from the degree of force there is little to distinguish count 2 from count 4. The explanation for these problems is likely to be a misapplication or failure to apply the principles in R v Pearce (1998) 194 CLR 610. If a greater sentence had been imposed for count 2 the overall sentence may not have been significantly reduced, or reduced at all.

3 However, there is no Crown appeal and, in my opinion, although this Court is required to re-sentence this Court should confine its consideration to the appropriate sentence for count 4.

4 I agree in the orders proposed by Hall J.

5 JAMES, J: I agree with Hall, J.

6 HALL. J: The applicant seeks leave to appeal against the sentence imposed on him in the Newcastle District Court on 27 July 2005.

7 He appeared for trial on 9 September 2004. On that date, he pleaded not guilty to an indictment containing eight counts of sexual misconduct with his natural daughter between 1 April 2002 and 10 April 2003.

8 On 16 September 2004, the jury returned verdicts of guilty on Counts 1 to 5 inclusive and Counts 7 and 8 and a verdict of not guilty in respect of Count 6.

9 The applicant was convicted of the following offences:-

Counts 1 and 8: Incite an act of indecency with a person under 10 years contrary to s.61O(2), Crimes Act 1900.
Counts 2 and 4: Sexual intercourse with a person under 10 years contrary to s.66A, Crimes Act 1900.
Counts 3 and 5: Aggravated indecent assault contrary to s.61M(2), Crimes Act 1900.
Count 7: Commit act of indecency towards a person under 10 years contrary to s.61O(2), Crimes Act 1900.

10 As at 16 September 2004, the applicant had not spent any time in custody but following the return of the verdicts he was remanded in custody, initially until 12 November 2004 and then until the date of sentence, 27 July 2005.

11 The sentence imposed upon the applicant on that date was as follows:-

Count 1: Imprisonment for a fixed term of nine months to commence on 16 September 2004 and to expire on 15 June 2005.
Count 2: Imprisonment for a fixed term of three years to commence on 16 September 2004 and to expire on 15 September 2007
Count 3: Imprisonment for a fixed term of 18 months to commence on 16 September 2005 and to expire on 15 March 2007.
Count 4: Imprisonment for 10 years to commence on 16 September 2006 and to expire on 15 September 2016. Non-parole period of six years to expire on 15 September 2012.
Count 5 : Imprisonment for a fixed term of two years to commence on 16 September 2006 and to expire on 15 September 2008.
Counts 7 and 8: Imprisonment for a fixed term of two years to commence on 16 September 2007 and to expire on 15 September 2009.

12 The overall term of the sentence was thus 12 years with a non-parole period of eight years.

Background matters

13 The applicant was born on 16 October 1964 and was aged 40 at the time of sentence. He had had two marriages, the second of which was in 1991. There are two children of that marriage, a son born in 1992 and the victim born in 1994. The marriage broke down in 1997.

14 At the time of the commission of the offences, the applicant lived in a unit at Hamilton and had regular access to the complainant (whose date of birth was 17 April 1994) and to her elder brother.

15 The applicant had a minor criminal history and had never previously served a term of imprisonment. He had left school in Year 9 and was in constant employment thereafter and continued to work full time until the time of his trial.

Facts relating to the offences

16 The relevant facts relating to each of the counts upon which the jury returned a verdict of guilty are accurately summarised in the Crown’s written submissions (paragraphs 5 to 11) and they are accordingly reproduced here:-

“5. … As to Count 1 (which occurred between 1 April 2002 and 31 December 2002) the complainant was at the applicant’s house on her own. The complainant was watching television when the applicant called her to his bedroom. The applicant said, ‘Do you want me to lick you”’ The complainant said ‘no’ and went into the spare bedroom. He followed her in and said ‘Doesn’t it feel good?’ to which she replied ‘No it hurts’. The applicant then asked her to lick him to which she replied ‘No’. The complainant understood by this that he wanted her to lick what she described as his doodle or penis.
6. As to Count 2, this is alleged to have occurred on the same evening and just after Count 1. The applicant approached the complainant while she was watching television. He pulled down her pants and underpants and held her down. He bent or crouched down and began licking inside her vagina with his tongue. The complainant said that her vagina was sore and it hurt. She said that she kept trying to push the offender off and tried to move away. She told him to get off and said ‘no’ but he continued. He eventually stopped and walked into the kitchen.
7. As to Count 3 (which occurred between 1 April 2002 and 31 December 2002), the complainant said that she was staying with the applicant at Hamilton on her own and was asleep in his bed one night. The applicant woke her up by rolling her over onto her stomach, lifting her pyjama top and licking her on the back. He then pulled down her pyjama bottoms and underpants and continued licking her on the buttocks and then on her anus. He then licked her on the back of the thighs and down to her ankles. The complainant said that she kicked out backwards at the offender which caused him to roll off her.
8. As to Count 4 (which occurred between 1 December 2002 and 14 April 2003), the complainant and her friend were staying over the weekend at the applicant’s home in Hamilton. During this weekend the girls were watching television together when the applicant called the complainant upstairs. She told her friend to stay there. The complainant went upstairs and found the applicant in the bedroom. He threw her on her back on his bed, pulled down her underpants, pushed her legs apart and commenced licking the inside and outside of her vagina. She told him to stop and struggled to roll over to get away but the applicant restrained her on the bed.
9. As to Count 5, the offence occurred on the same occasion. After licking her vagina, the applicant pulled up her shirt and began licking the complainant around her nipples and chest area. The complainant continued to struggle to get away and eventually managed to get free. She ran out of the room and downstairs to her friend.
10. As to Count 7 (which occurred between 1 February 2003 and 10 April 2003), the complainant was in a hammock downstairs positioned outside the back door when the applicant called her inside to the lounge room. When she came inside she saw the applicant lying naked on the couch masturbating his erect penis. Whilst the complainant was present, the applicant was rubbing his penis up and down with his hand. He then ejaculated.
11. As to Count 8, this occurred on the same occasion. The complainant said that after he ejaculated, the applicant asked her to come and lick him on the penis. He said ‘Lick me here, lick it like a banana’. The complainant did not comply and went outside.”

Grounds of appeal

17 In the notice of grounds of appeal dated 15 February 2006, two grounds are identified:-

(a) His Honour erred in determining the maximum penalty applicable to two of the counts.

(b) The sentence was manifestly excessive.

His Honour erred in determining the maximum penalty applicable to two of the counts

18 In the remarks on sentence, reference was made to each of the counts upon which the applicant was convicted including Counts 2 and 4 for which it was stated that the maximum penalty for each offence was 25 years imprisonment when, in fact, the maximum penalty for each offence was 20 years. A reading of the remarks on sentence that commences with an incorrect statement as to the maximum penalty in relation to both offences, could give rise to a conclusion that, in determining sentence, the sentencing judge had in mind in formulating the sentences that the maximum penalties in relation to the s.66A offences were 25 years.

19 Both during and at the conclusion of the remarks on sentence, the Crown Prosecutor raised a question as to the applicable maximum penalty for Counts 2 and 4. In the remarks on sentence (at 4.4) the Crown Prosecutor first raised the issue, pointing out that the maximum penalty for Count 2 should have been stated as 20 years, not 25 years as had been earlier stated.

20 At 8.5 of the remarks on sentence, his Honour stated that he could not be satisfied beyond reasonable doubt that Counts 4 and 5 had taken place after the introduction of standard non-parole periods by the relevant amending legislation. Accordingly, the applicant had to be sentenced for those matters as if the standard non-parole periods were not in existence as at the time of the commission of those offences.

21 At the conclusion of the remarks on sentence, the Crown Prosecutor (at 14.5) raised the question in relation to the standard non-parole period referable to Count 4 and to the increase in penalty from 20 to 25 years. The remarks records his Honour stating:-

“I’m sorry, I should have made it clear. I sentenced on the basis that the maximum penalty for Counts 2 and 4 was 20 years.”

22 In light of this specific statement by way of clarification, the Crown has submitted that there was no error committed by the sentencing judge in regard to the maximum penalty applicable.

23 The submission on behalf of the applicant was that whilst it was conceded that the incorrect reference to the maximum penalty was pointed out to his Honour after sentence had been pronounced, it was contended that his Honour had fallen into error and applied the wrong maximum penalty.

24 Whilst there was a mis-statement in the remarks on sentence as to the maximum penalty for each of Counts 2 and 4, as to the applicable maximum penalty for each offence being 20 years and not 25 years and, whilst a mis-statement of this kind is regrettable, there is no reason to doubt the express statement made by the sentencing judge as to the maximum penalty he had in mind at the time of determining the sentence for that count.

The sentence was manifestly excessive

25 The essential submission made on behalf of the applicant by Ms. Davenport, SC. was that there was a disconformity between the sentences imposed (sentences which it was submitted were at the top of the scale of offences committed under s.66A) and the relevant findings made by the sentencing judge.

26 In paragraph [5] of the applicant’s written submissions it is stated:-

“His Honour made a number of findings that were favourable to the applicant. Firstly, his Honour found that the activity involved under s.66A (being cunnilingus) fell towards the lower end of the scale of seriousness for activity within the relevant section. Secondly, that the applicant had shown genuine contrition and remorse by admitting in evidence during the sentencing proceedings that he had abused his daughter. Thirdly, his Honour found that the applicant had good prospects of rehabilitation.”

27 In oral submissions, Ms. Davenport relied upon these matters together with the absence of physical injury or damage in support of the contention that the sentences in relation to the s.66A offences were at the highest within the mid-range of the type of offences in question and not at the top of the range. Senior counsel also relied upon statistics of the Judicial Commission for offences under s.66A before 1 February 2003 which were attached to her written submissions. I will refer to these shortly.

28 It is plain from the remarks on sentence that the sentencing judge correctly identified Counts 2 and 4 as the most serious counts and that those offences involved gross breaches of trust. However, the Crown submitted that his Honour either disregarded or gave little weight to the question of the abuse of trust. In this respect, reference was made to the provisions of s.21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999; see the decisions of this Court in other cases involving the issue of a gross abuse of position of trust in respect of an offender’s natural children: Regina v. Muldoon (CCA, unreported 13 December 1990) per Hunt, J. (as he then was); Regina v. Eagles (CCA, unreported 16 December 1993) and Regina v. JCW [2000] NSWCCA 209. The Crown also referred to the observations in Regina v. TAB [2002] NSWCCA 274 wherein Levine, J. at 115 held that the objective gravity of the offences to be extremely serious where an offender is in a position of trust and control over the victim. In this respect, the Crown referred to his Honour’s remarks at p.11 wherein the following observations were made:-

“There are a number of aggravating features which attach to these offences but most of them, it seems to me, are contemplated by the actual offence itself. The fact that the victim, for instance, was vulnerable is something that is contemplated by the offence. The fact that the offences involved a gross abuse of trust, is normally associated with offences of this type and those are some of the factors which go to make up the reasons why the legislature treats this type of offence so seriously.”

29 The Crown submits that this passage, in particular, displays error. It submitted that it was the age of the victim that was reflected in the penalty fixed for such offences. I agree. Not all offences under s.66A of the Crimes Act 1900 involve an abuse of trust. By s.21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, “the offender abused a position of trust or authority in relation to the victim”, the abuses of trust by the applicant were aggravating circumstances that had to be taken into account in these proceedings. However, that said, I do not consider that any significant error in that respect could be said to have had any bearing upon the sentences determined as his Honour was plainly mindful of the fact of the gross breaches of trust and clearly took them into account.

30 In this case, the matters emphasised by the Crown were the objective gravity of the offences, the length of time over which they were committed and the relationship between father and daughter. It also emphasised the importance of general deterrence in such cases.

31 The Crown, in my opinion, is correct in submitting that the fact that the complainant was aged seven or eight years at the time of the offences, the fact that the applicant was in the position of both trust and control over the victim, that the applicant persisted despite the fact that the complainant had struggled and told him to stop were, subject to the matters referred to below, matters that provided a sound foundation for the sentences imposed.

32 However, there are three matters, which I consider, notwithstanding the gravity of the offences and the specific matters to which I have referred above, suggest error (the first and second are related matters). These are:-

(a) The marked disparity in the sentences for Counts 2 and 4.

(b) The evidence and findings made in relation to those two offences.

(c) The relevant statistics for offences under s.66A maintained by the Judicial Commission.

(a) The disparity in the sentences imposed with respect to Counts 2 and 4 .

33 Both those counts, as earlier indicated, were under s.66A of the Crimes Act. The nature of the sexual intercourse in each count (cunnilingus) was similar, although on the facts there was a greater degree of physical force applied in relation to Count 4. On Count 2, a fixed term of three years was imposed. On Count 4, a period of 10 years imprisonment (six years non-parole) was imposed. Whilst the degree of force applied by the applicant in relation to Count 4 was greater, as I have stated, there is no basis, in my opinion, upon which the difference in the degree of force involved could justify an overall sentence of approximately three times the sentence for Count 4 over Count 2.

(b) The evidence and findings made in relation to the offences under s.66A

34 The relevant factual matters giving rise to the two offences under s.66A and the particular aggravating factors based thereon have been set out and referred to above. Senior counsel for the applicant, in particular, relied upon the finding that the activity involved under s.66A in each case (being cunnilingus) fell towards the lower end of the scale of seriousness for activity within the relevant section.

35 The definition of sexual intercourse in s.61H of the Crimes Act 1900 relevant to the offences under s.66A embraces a range of sexual connection and other activity. It is inherent in the broad definition in s.61H that some forms of sexual intercourse as defined, depending upon the particular facts and circumstances of each case, will tend to be more objectively serious than others. The legislative scheme for offences under s.66A, accordingly, constitutes the background to sentencing determination on the evidence and the findings in the particular case.

36 Reference to the evidence and the findings in these proceedings in that context, together with the determination of the sentencing judge in relation to Count 2, in my opinion, supports the proposition that the sentence imposed in respect of Count 4 manifests excess and disproportion in light of all of such matters.

(c) The relevant Judicial Commission statistics for offences under s.66A

37 In relation to the statistics concerning sentences for offences under s.66A of the Crimes Act 1900 provided by the Judicial Commission of New South Wales, it was submitted on behalf of the applicant, as earlier noted, that the sentence was at the top of the scale of offences committed under s.66A and did not conform to the findings. The Crown correctly observed that one lacks the detail of the offences included in the statistics. Whilst I accept the Crown’s submission that his Honour’s finding in this respect refers to cunnilingus generally compared to other types of sexual intercourse rather than a finding which reflected his Honour’s assessment of the particular facts of this case, I consider that the statistics in relation to offences under s.66A, to which the Court has been referred, are of some, though limited, use in this appeal.

38 The Crown has observed that the statistics provided for offences under s.66A in relation to pleas of guilty for the full term include only 16 cases and the non-parole period include only 14 cases. On this basis, the statistics indicate that, for offences committed under s.66A before 1 February 2003, only four percent of sentences were for 10 years or more and only 11% of non-parole periods were for six years or more. In relation to pleas of not guilty a total sentence of 10 years is the highest ever imposed, and six years (imposed upon seven percent of offenders) was also the highest imposed.

39 I am of the opinion that the sentence imposed for Count 4 is manifestly excessive. I am of the opinion that the sentence imposed should be set aside and the applicant re-sentenced on the same basis as determined by the District Court except that the sentence on Count 4 should be reduced upon the basis that, whilst Count 4 was more serious than Count 2, it was not at a level that could be said to warrant a sentence of approximately three times that imposed in respect of Count 2. I would reduce the sentence imposed with respect to Count 4 so that both the non-parole period and parole periods are respectively reduced by two years. On that basis, the overall sentence will be a term of imprisonment of 10 years with a non-parole period of six years in lieu of the overall sentence imposed by the District Court of 12 years with a non-parole period of eight years.

40 The evidence before the sentencing judge indicated that the applicant’s prospects of rehabilitation were considered to be good. On that basis, I consider it is appropriate for a finding of special circumstances to be made and I make a finding to that effect.

41 The orders which I propose are:-

(a) Appeal allowed.

(b) The sentenced imposed by the District Court on 27 July 2006 be quashed.

(c) That the applicant be re-sentenced on the following basis:-

(i) On Count 1, he is sentenced to a fixed term of imprisonment of nine months to commence on 16 September 2004 and to expire on 15 June 2005.
(ii) On Count 2, he is sentenced to a fixed term of imprisonment of three years to commence on 16 September 2004 and to expire on 15 September 2007.
(iii) On Count 3, he is sentenced to a fixed term of imprisonment of 18 months to commence on 16 September 2005 and to expire on 15 March 2007.
(iv) On Count 4, he is sentenced to imprisonment for eight years to commence on 16 September 2006 and to expire on 15 September 2014. There will be a non-parole period of four years to expire on 15 September 2010.
(v) On Count 5, he is sentenced to a fixed term of imprisonment of two years to commence on 16 September 2006 and to expire on 15 September 2008.
(vi) On Counts 7 and 8, in each case he is sentenced to fixed terms of imprisonment of two years to commence on 16 September 2007 and to expire on 15 September 2009.

(d) The applicant will be eligible for release on parole on 15 September 2010.

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