LJG v Regina - [2006] NSWCCA 216

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: LJG v. REGINA [2006] NSWCCA 216

FILE NUMBER(S):
2006/796

HEARING DATE(S): Thursday 20 July 2006

DECISION DATE: 20/07/2006
EX TEMPORE DATE: 20/07/2006

PARTIES:
LJG v.
REGINA

JUDGMENT OF: McClellan CJ at CL Hulme J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0184

LOWER COURT JUDICIAL OFFICER: Donovan, DCJ.

COUNSEL:
Crown: P. Barrett
App: T. Golding

SOLICITORS:
Crown: S. Kavanagh
App: K. Wells

CATCHWORDS:
CRIMINAL LAW – SENTENCING – application for leave to appeal against sentence – whether error in the standard non-parole period – whether any lesser sentence is warranted in law pursuant to s.3 of the Criminal Appeal Act 1912 (NSW) – error in the approach taken to the application of the standard non-parole period – sentence not excessive – significance of error in the application of the standard non-parole period not such as to move the Court to form the statutorily required positive opinion that some other sentence is warranted in law.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Crimes Act 1900

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 2006/796
McCLELLAN, CJ. at CL.
HULME, J.
HALL, J.
THURSDAY 20 JULY 2006

LJG v. REGINA

Judgment

McCLELLAN, CJ. at CL: The Court is in a position to give judgment straight away and I will ask Justice Hall to deliver the first judgment.
HALL, J: The applicant, by notice of application for leave to appeal dated 31 March 2006, seeks leave to appeal against the sentence that was imposed upon him by the District Court sitting at Newcastle (his Honour Judge Donovan QC) on 20 September 2005, for one count of aggravated indecent assault upon a child under the age of 10 years. The maximum penalty for that offence is imprisonment for 10 years and the offence has a standard non-parole period of five years imprisonment for a conviction following trial.
The applicant pleaded guilty to the offence to which I have referred in the Toronto Children's Court on 27 June 2005 and was committed for sentence.
He was sentenced on 20 September 2005, as I have said, in respect of an offence that took place at 4.00 pm on 20 June 2003, involving a female child aged seven years. He was sentenced to a non-parole period of one year and nine months with an additional period of two years, making a total term of three years and nine months. The sentence was backdated to the date of the applicant's arrest, namely, 29 April 2005.
The sentencing judge directed that the applicant serve the sentence as a juvenile offender and to be subject to supervision by the Probation and Parole Service upon his release to parole.
At the sentencing hearing, an agreed statement of facts was tendered and was marked Exhibit B. The facts stated by the sentencing judge are set out at pages 1 to 3 of the remarks on sentence. There is a recital in summary form of the facts in the Crown’s written submissions as follows:-
"4.An agreed statement of facts was tendered as exhibit B on sentence. At around 4 p.m. on Friday, 20 June 2003, the victim, B, who was seven years old, was taking her dog for a walk through a quarry near her home with her friend, D. The applicant called out to them, asking if they could help him find a bag. They walked back up to the top of the quarry and talked with the applicant, who showed them some papers and asked which of the two girls was K’s sister (it transpired that he overheard them talking about K). The victim said she was K’s sister. The applicant said there were more papers in the bush and asked the victim to help him get the papers. He asked the victim’s friend D to stay and look after the dog and his push bike.
5.Once in the bush and out of D’s sight, the applicant pushed the victim to the ground. She got up and attempted to run but he caught her by the shirt and pushed her to the ground again. He sat on her while she was facing down. He unzipped his pants and pulled the victim’s pants and underwear halfway down around her legs. He then lay on top of her. She felt his penis on her bottom and felt him moving up and down. She tried to call out to D but the applicant put his hand across her mouth. By this stage the victim had difficulty breathing.
6.The victim offered to go and get her brother, K. The applicant told her that K had hurt him. She then told him she was not K’s sister. Shortly afterwards, the applicant stood up and allowed the victim to leave. She pulled up her underpants and pants and ran home. She made an immediate complaint to her mother.
7.The victim's mother was at home when she heard the girls scream. She saw her daughter enter the front door in a hysterical state, crying and screaming. The victim made a complaint to her mother in terms of the above facts.
8.Police investigations revealed the presence of semen was on the victim's underpants. Following further DNA investigations by police, and a delay in which the applicant did not comply with a court order to provide a buccal swab, which led to a warrant for his arrest, a Certificate of Analysis was provided by the Division of Analytical Laboratories; the applicant’s DNA profile was the same as the profile of the semen on the underpants and a profile of that sort was expected to occur in less than one in 10 billion people."
The applicant relied initially upon filed grounds of appeal. Mr. Golding of counsel, who appeared today on behalf of the applicant, indicated that he pressed only grounds one and five, though he relied upon the submissions he had made in writing in relation to several issues raised, which were addressed under Ground 2 in his written submissions.
Ground one was framed in terms of the following:-
“While correctly not applying the standard non-parole period, the learned sentencing judge correctly used the standard non-parole period as a benchmark adjusting it mathematically to fit the present case. This use of the standard non-parole period resulted in an excessive non-parole period and an excessive sentence overall.”
The standard non-parole period as provided by s.54D of the Crimes (Sentencing Procedure) Act 1999 is five years. In the remarks on sentence, his Honour stated in the transcript of 20 September 2005:-
"I think I've got to look at the standard non-parole period, take the 25% which brings it down to, I think, three years and nine months, and then take off a substantial amount more."
The submission on behalf of the applicant was that his Honour effectively created a "straitjacket" for himself by adopting the approach of starting his consideration as to the length of sentence at the standard non-parole period. Such an approach, it was said, is not supported by the judgment of this court in Regina v Way (2004) 60 NSWLR 168.
Mr. Golding, in his oral submissions today, contended that his Honour effectively fettered his discretion in taking an arithmetic approach, firstly, by fixing the standard non-parole period in a way which did not comply with Way (supra) and certainly in arithmetically adjusting down allowing for discounts in this way. Mr. Golding contended the discretion miscarried and his Honour treated the guideline as an arithmetic starting point rather than as a guide.
The Crown has conceded that his Honour erred in respect of the application of the standard non-parole period in that his Honour commenced with the standard five year non-parole period, then reduced it by 25% for the plea to three years and nine months, and then considered a further reduction for the subjective features. The Crown, in this respect, cited Way (supra) paragraph [131].
The Crown has submitted that it was the order in which his Honour approached the exercise that constituted the error, whilst not conceding that any lesser sentence was warranted in law as a result. The Crown referred in this respect to what this Court said in Way (supra) at paragraphs [122] to [124] and [130] to [131]. I will return to the question of the significance of the error later in this judgment.
In the applicant’s written submissions, emphasis is given to one of the purposes expressed in the Crimes (Sentencing Procedure) Act 1999 in s.3A(d), that is, to promote the rehabilitation of the offender. It was submitted that, apart from directing that the sentence be served as a juvenile offender, the promotion of the applicant’s rehabilitation did not appear to be a factor that his Honour fully considered.
It was contended that a non-parole period of 21 months did not sufficiently take into account the facts reflected in the evidence of the psychologist, Barbara Aldrich, and, in that respect, her observations as to the applicant's good prospects of rehabilitation (see her report of 7 September 2005 at p.2.2).
It was contended that, in the written submissions and here today, his Honour did not consider effectively what were deemed the good prospects of rehabilitation within the context of the applicant's age at the time of the commission of the offence, as required by s.21A(3)(d) and as a particularly important factor when sentencing a young offender, reference being made to this Court's decision in Regina v GDP (1991) 53 A Crim R 112.
It was submitted that his Honour did not take into account the proposition that had been advanced by the psychologist that the applicant "is unlikely to re-offend". Reliance in this respect was placed on Ms. Aldrich's report at p.5.1. In terms of his Honour’s overall approach, including his approach to subjective matters, the sentencing judge set out at some length and discussed the report of Ms. Aldrich.
His Honour expressly accepted her opinion that, by reason of the control that the applicant had exercised over his drug and alcohol abuse problems prior to his second arrest, he accepted Ms. Aldrich's opinion and his Honour stated:-
"… I think that there is, if not good then certainly reasonable to good prospects for rehabilitation and I think that his steps to control his drug use, although influenced by his de facto, Naomi, nevertheless it is a very positive factor in his favour …"
It is of some importance in this matter in assessing the grounds relied upon, or indeed as the Crown has observed in its submissions, to bring into account his Honour's observation as to the applicant's degree of intoxication at the time of his offence. His Honour stated at page 6:-
"... I have to say that I am not convinced that he was in a state of extreme intoxication on those drugs, although I accept that he was affected by them. I say that because of the way in which he went about separating the victim from her friend, which shows a reasonable degree of mental capacity at that time. I also have no doubt that he knew what he was doing was wrong.”
His Honour plainly was not prepared to accept everything Ms. Aldrich had said and I consider his approach in that regard was a balanced one and he provided adequate reasons for his assessment of Ms. Aldrich's opinion.
In terms of evaluating both the objective and other factors, it is relevant to have regard to other evidence that was before his Honour on this and other issues, including the report of Christine Bishop, Sex Offender Programme, Frank Baxter Juvenile Justice Centre, as well as Ms. Aldrich's report and the applicant's evidence as well as that of his de facto wife given on 29 September 2005.
It is to be noted that Ms. Bishop records in her report the following:-
“.. (the applicant) admitted the Police Facts and acknowledged his responsibility for the offence, showing what appeared to be genuine regret for his behaviour and the injury he had occasioned to his victim and her family. While admitting to his fault, he sought to explain his behaviour by stating that he had been intoxicated at the time of the offence and had been ‘feeling sexually frustrated’. He was unable to explain his choice of such a young victim except to say that he had been oblivious to the fact that his victim was a child, due to state of intoxication. (The applicant’s) victim was unknown to him at the time of the offence…”
On page 5 of the same report, the applicant provided a further explanation, explaining why he had committed the offence, including that he had "wanted to get close to a girl" and had not had sex for some time prior to the offence. He also told the counsellor that immediately before the offence, he had been feeling very depressed and lonely.
In terms of future risk of offending, Ms. Bishop's opinion is not as positive as that of Ms. Aldrich. Ms. Bishop stated at page 6 of her report:-
“... (The applicant’s) apparent inability when intoxicated to distinguish between an adult woman and a child is highly suggestive of future risk of the re-offending as is his choice of a victim so much younger and smaller than himself and his use of force to achieve his ends."
Ms. Bishop went on to explain the factors that may mitigate against recidivism, including his current positive and age appropriate relationship and his desire to build a future with his partner and to support her and their child. His Honour did have regard to those factors.
I consider that a reading of his Honour's reasons indicates that his Honour had regard to the offender's age, which was 16 years and seven months at the date of the offence, that the applicant was still 19 years of age at the date of sentence, that he had not committed a like offence or any other sex offence, and additional matters, including expressions of his sincere remorse in evidence, his relationship, the fact that he was deprived of the opportunity of seeing his child initially, when the child was born and for some time thereafter, that he had not previously had a custodial sentence, the fact that earlier in his life his father suddenly died when the applicant was aged 11 years, and that that in turn produced dysfunction in the family.
Reliance was also placed on the fact that the offender lived in a particularly under-privileged Aboriginal neighbourhood of Toronto. A reading of the remarks on sentence reveals that his Honour was fully aware of and had regard to all the relevant subjective factors he was required to consider.
A second principal ground of the application is said to be that the sentence was manifestly excessive. Many of the matters to which I have already referred are relevant to the assessment of this ground. I accept the Crown's submission that the real question in this application is whether, given his Honour's approach to the standard non-parole period, whether any "lesser sentence is warranted in law" pursuant to s.3 of the Criminal Appeal Act 1912.
The remarks on sentence to which I have referred adverted in considerable detail to both the subjective and the objective factors his Honour was required to take into account. The objective factors included the choice of victim being much younger and smaller than the applicant and his use of force. His Honour said:-
"These are powerful factors in my view which must influence any sentencing decision that I make."
Next, the conclusion arrived at by his Honour that he was not convinced the applicant was in a state of extreme intoxication by reason of his ingesting drugs and that he had no doubt the applicant knew what he was doing was wrong. His Honour adverted to the way in which the applicant separated the victim from her friends, showing a considerable degree of mental capacity at the time.
The subjective factors I have already referred to were not expressly considered and I accept the Crown's submission that whether a lesser sentence is warranted in law, the court is assisted by the detail one finds in the remarks on sentence, and that his Honour has explained and justified the departure from the standard non-parole period in accordance with the approach discussed in Regina v. Tory [2006] NSWCCA 18 at 42 (per Latham, J. with whom Hunt, AJA. agreed).
In oral submissions today, reference was made to sentencing statistics produced by the Judicial Commission of New South Wales. The statistics include 13 cases, but only nine of those cases provide details in respect of non-parole periods, nine consecutive terms where a plea of guilty was entered for an offence under s.61M(2) of the Crimes Act.
Mr Golding submitted that the statistics shown include the sentence imposed upon the applicant and he relied upon the fact that the sentence would indicate that the non-parole period for this offence, in cases such as the present, are in the higher end of the range, the 22% group of cases in which a non-parole period of 36 months was fixed, and in the 11% of cases for the term of the sentence.
He relied upon the observations of McHugh, J. in Markarian v. The Queen (2005) 215 ALR 213 at [79] where his Honour there adverted to the source of information available in the form of sentencing statistics. However, in that case the number of cases was greater than the sample in the statistics to which I have referred and I do not consider that there is any issue raised by his Honour in that case that would warrant the statistics in the present to indicate that the sentence was excessive.
In relation to the ground of manifestly excessive and in determining whether this Court should intervene in relation to the sentence which imposed a non-parole period of one year and nine months with a parole period of two years, this Court is to be guided by the observations of the Chief Justice in Regina v. Simpson (2001) 53 NSWLR 704 wherein the Chief Justice observed:-
“Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘if it is of the opinion that error has occurred in the sentencing process.’ That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that ‘some other sentence … is warranted in law and should have been passed’. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefor’ is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s.6(3) further requires the identification of the area in the requisite sense."
In evaluating the submissions that have been made as to whether the sentence was manifestly excessive, it is relevant to have regard in particular to the facts: firstly, the victim was aged seven years; secondly, there was a degree of manipulation or calculation in the commission of the offence by the applicant; thirdly, the offence was committed whilst the applicant was subject to conditional liberty; and fourthly, that an offence of the kind in question does require, in my opinion, that particular regard be given in sentencing for both general and specific deterrence.
I do not consider that the sentence imposed was excessive and the applicant did have the benefit of the sentencing judge's finding that the sentence ought to be served at a juvenile detention centre which has permitted him to undergo courses to assist with rehabilitation
I am of the opinion that no lesser sentence is warranted in law and that, notwithstanding the error in the standard non-parole period, this Court should grant leave to appeal but dismiss the appeal.
McCLELLAN, CJ. at CL: I agree with Justice Hall.
HULME, J: As do I.
McCLELLAN, CJ. at CL: The order of the Court will be the orders proposed by Justice Hall.

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LAST UPDATED: 14/09/2006