Lozanovski v R

[2006] NSWCCA 143

CITATION:	Lozanovski v R [2006] NSWCCA 143
HEARING DATE(S):	26 April 2006
JUDGMENT DATE:	5 May 2006
JUDGMENT OF:	McColl JA at 1; Adams J at 2; Latham J at 3
DECISION:	Leave to appeal granted and appeal allowed; Count under s 61L - 12 months imprisonment to date from 10 February 2004 expiring 9 February 2005; Count 1 on Indictment 6 months imprisonment to date from 10 February 2005 expiring 9 August 2005; Count 2 on Indictment - 3 years imprisonment to date from 10 February 2005 expiring 9 February 2008 with a non parole period 2 years to date from 10 February 2005 expiring 9 February 2007; Count 3 on Indictment - 12 months imprisonment to date from 10 February 2006 expiring 9 February 2007; Count 4 on Indictment - 3 years 6 months imprisonment to date from 10 February 2006 expiring 9 August 2009 with a non parole period of 2 years to date from 10 February 2006 expiring 9 February 2008; Counts 5, 6 and 7 on Indictment - On each imprisonment for 18 months to date from 10 February 2007 expiring on 9 August 2008 with a non parole period of 12 months to date from 10 February 2007 expiring 9 February 2008; Count 8 on Indictment - 2 years and 6 months imprisonment to date from 10 February 2007 expiring 9 August 2009 with a non parole period of 12 months to date from 10 February 2007 expiring 9 February 2008; Applicant is eligible for release to parole on 10 February 2008.
CATCHWORDS:	Sentence - applicant entitled to finding of prior good character - accumulation - manifest excess.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Gent [2005] NSWCCA 370 Ryan v The Queen (2001) 206 CLR 267 R v Kennedy [2001] NSWCCA 527 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Ibbs v The Queen (1987) 163 CLR 447 R v Moon (2000) 117 A Crim R 497 R v MJR (2002) 54 NSWLR 368 R v MJR [2002] NSWCCA 129 R v Slack [2000] NSWCCA 128 R v V (1998) 99 A Crim R 297 R v Thompson (unreported) NSWCCA 18 June 1996 R v Skinner (1993) 72 A Crim R 151 R v Dent (unreported) NSWCCA 14 March 1991
PARTIES:	Vidan Victor LOZANOVSKI (applicant) REGINA (Respondent)
FILE NUMBER(S):	CCA 2005/2487
COUNSEL:	J Stratton SC (Applicant) Ms J Dwyer (Crown)
SOLICITORS:	S O'Connor (Applicant) S Kavanagh (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0442
LOWER COURT JUDICIAL OFFICER:	Acting Judge JX Gibson QC
LOWER COURT DATE OF DECISION:	02/25/2005

- 1 -

2005/2487

McCOLL JA
ADAMS J
LATHAM J

5 May 2006 (AMENDED VERSION)

VIDAN VICTOR LOZANOVSKI v REGINA

JUDGMENT

1 McCOLL J: I agree with Latham J

2 ADAMS J: I agree with Latham J

3 LATHAM J: The applicant seeks leave to appeal against sentences imposed by his Honour Acting Judge JX Gibson QC on 25 February 2005 following the applicant's conviction at trial on eight counts relating to the sexual assault of the applicant's niece. In addition, the applicant was sentenced on a separate indictment in respect of one count of indecent assault to which he had pleaded guilty at the commencement of the trial.

4 The offences and the sentences imposed in respect of each of them are as follows: --

Indictment 1
Indecent Assault (s61L) – fixed term of 12 months’ imprisonment (maximum penalty 5 years).

Indictment 2
Count 1 ; Indecent assault of a child under the age of 16 years (section 61E) -- fixed term of 6 months’ imprisonment (maximum penalty 6 years).

Count 2 ; Sexual intercourse without consent with a child under the age of 16 years (section 61D) -- 3 years’ imprisonment with a non parole period of 2 years (maximum penalty 10 years).

Count 3 ; Indecent assault of a child under the age of 16 years (section 61E) -- fixed term of 12 months’ imprisonment (maximum penalty 6 years).

Count 4 ; Sexual intercourse without consent with a child under the age of 16 years (section 61D) -- 3 years 6 months’ imprisonment with a non parole period of 2 years (maximum penalty 10 years).

Count 5 ; Detain for advantage (section 90A) -- fixed term of 18 months’ imprisonment (maximum penalty 14 years).

Counts 6 and 7 ; Indecent assault (section 61E) – on each, fixed term of 18 months’ imprisonment (maximum penalty 4 years).

Count 8 ; Sexual intercourse without consent (section 61D) -- 3 years 6 months’ imprisonment with a non parole period of 1 year (maximum penalty 8 years).

5 In relation to Count 8, his Honour erroneously nominated the maximum penalty as 7 years in the course of his remarks on sentence. This was not a point taken on the appeal, although it assumes some relevance on the question of manifest excess. As a result of the partial accumulation of these sentences, the applicant received an aggregate non parole period of 6 years, with an aggregate head sentence of 8 years and 6 months.

Facts

6 The complainant and the applicant had frequent contact with each other in the course of family functions and visits to the complainant’s home in between 1982 and 1989. Counts 1 and 2 related to an incident in 1982 at the house of the complainant's grandparents. The applicant kissed the complainant and inserted his finger into her vagina, causing her pain. The complainant was 9 years old. Counts 3 and 4 related to an incident in 1983 at the applicant's home when the applicant fondled the complainant's breasts and inserted his fingers into her vagina. The applicant was 10 years of age. Counts 5, 6, 7 and 8 occurred at the complainant's home at about the time of her 16th birthday. The applicant had followed the victim into the toilet and locked the door, detaining her there. He kissed her, fondled her breasts and inserted his fingers into her vagina. The complainant gave evidence of other occasions when this kind of conduct occurred but was unable to provide any further detail. The count to which the applicant pleaded guilty related to an incident in 1996 when the complainant was a married woman aged 22 years. The applicant came to the complainant's house in the absence of her husband and fondled her breasts under her clothing.

7 The applicant gave no evidence in the course of the trial or on the sentencing proceedings. He had no prior convictions and was 56 years of age at the time of sentence. The only evidence tendered on his behalf on sentence was a medical report prepared by the prison medical officer whilst the applicant was on remand. The contents of that report were of no significance to the question of sentence.

Grounds of Appeal

8 The first ground of appeal relates to the failure by his Honour to treat the applicant as a person of good character, thus depriving the applicant of any leniency on that account. In view of the fact that the Crown has conceded this ground, some brief reference to the remarks on sentence and to the application of relevant principles is sufficient to deal with this ground.

9 At page 4 of the remarks on sentence his Honour said: --

He has no prior convictions. …….. I do not in the light of the findings by the jury regard him as a person of good character. This conduct of which they convicted him, having occurred over a significant period of time, … was a grave breach of trust towards his young niece ….. I take into consideration those matters appropriate to the Sentencing Act s. 21A.

10 This Court recently reviewed the principles in relation to a finding of good character and the weight to be attached to it, according to the type of offence under consideration, in R v Gent [2005] NSWCCA 370. The applicable law was usefully summarised by Johnson J., with whom McClellan C. J. at C. L. and Adams J. agreed. The departure point is the decision of the High Court in Ryan v The Queen (2001) 206 CLR at 267. At 275 Justice McHugh said: --

It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced . Because that is so, many sentencing judges refer to the offender’s ‘previous’ or ‘otherwise’ good character. …. Second, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes . The weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances. (emphasis added)

11 It is clear from his Honour's remarks set out above, that the offences for which the applicant was being sentenced were the basis of his Honour's finding that the applicant was not a person of good character. Thus, his Honour fell into error. The applicant was entitled to a finding of good character, even if, in the circumstances of the case, that factor was of reduced significance where the applicant had engaged in "a pattern of repeat offending over a significant period of time.” (see R v Kennedy [2000] NSWCCA 527, per Howie J.)

12 I note in passing that his Honour's reference to s. 21A of the Crimes (Sentencing Procedure) Act 1999 is in entirely general terms. Section 21A(3)(e) and (f) are those mitigating factors corresponding to the common law principles summarised by McHugh J in Ryan and explored by the High Court in Melbourne v The Queen (1999) 198 CLR 1 ; [1999] HCA 32. Section 21A(3)(e) speaks of the absence of any record of previous convictions, and (f) refers to the fact that “the offender was a person of good character”, that is, prior to the commission of the offence. Given his Honour's express finding in relation to the absence of good character, it may be concluded that s 21A(3)(f) was disregarded by his Honour, or wrongly construed.

13 Error has been established. However, success on this ground alone does not, in my view, warrant the intervention of this Court. The weight to be attached to prior good character was so negligible in the circumstances of this case that it would have made little practical difference to the assessment of an appropriate sentence. The question whether the sentence was an appropriate one is raised by the applicant’s second ground of appeal. The applicant submits that the sentences imposed for the offences relating to sexual intercourse and the aggregate sentence are manifestly excessive.

14 The principal contention is that the sentences for the offences relating to digital penetration of the complainant’s vagina are individually excessive, when regard is had to the applicable maximum penalties, and to the inclusion of a wide range of sexual activity that qualifies as “sexual intercourse” for the purposes of the offence. Reliance is placed upon the judgment of the High Court in Ibbs v The Queen (1987) 163 CLR 447, wherein the following appears (at 452) : --

The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.

15 The offences relating to the digital penetration of the complainant occurred in 1982, 1983 and 1989. There was no discussion in the course of the proceedings, nor was any material produced to his Honour, relating to the pattern of sentencing for like offences had the offences come before the court shortly after their commission. Whilst both the applicant’s senior counsel and the Crown took this Court to particular instances of sentencing for an act of digital penetration in the period relevant to the instant offences, those examples were insufficient to establish any meaningful range. In the absence of that material and, in particular, in the absence of acceptable statistical material, the approach described by Howie J. in R v Moon (2000) 117 A Crim R 497 at 511, approved by this Court in R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 by Sully J. is apposite :-

The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: …. and be proportional to the criminality involved in the offence committed: … Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will, by approaching the sentencing task in this way, effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.

16 Relevantly, this court in MJR declined to interfere with the terms of two sentences, each of four years fixed term, relating to two counts of digital penetration committed in 1983 and 1985 respectively. A maximum penalty of 10 years imprisonment applied in each case. Both offences related to the same complainant, the daughter of the offender, and the sentences were imposed in 2001, following pleas of guilty and in the face of powerful subjective features. The appeal was primarily successful in respect of a sentence imposed for an act of digital penetration committed in 1987 against the same complainant, where 10 additional offences of a like nature were to be taken into account on a Form One.

17 The applicant's counsel relied on MJR and on this Court's decision in R v Slack [2000] NSWCCA 128. In the latter case, an appeal against the severity of sentences imposed for aggravated sexual intercourse without consent (digital penetration) following verdicts of guilty at trial in 2003 was successful in an altogether different context. The offences were committed in 2000 and the applicable maximum penalty was 20 years imprisonment. Both offences were committed on the same date against the same complainant, an 11 year old friend of the offender’s daughter. By majority, concurrent sentences of 3 years’ imprisonment with a non parole period of 18 months were substituted for concurrent sentences of 5 years imprisonment, with a non parole period of 3 years. As in the instant case, the offender in Slack had no prior convictions. The case is of little assistance given the isolated nature of the offending.

18 None of the following cases to which the Court was referred by the Crown during the hearing of the appeal are of any assistance in determining whether the individual sentences for the s 61D offences committed by the applicant were manifestly excessive. In R v V (1998) 99 A Crim R 297, R v Thompson (unreported) NSWCCA 18 June 1996 and R v Skinner (1993) 72 A Crim R 151, the reasons of the Court do not allow any conclusion to be drawn as to the individual sentences for the offences involving digital penetration at first instance. All three decisions principally turned upon questions of totality of criminality, where the sexual assaults were committed against more than one complainant and included acts of vaginal and anal intercourse.

19 This Court's decision in R v Dent (unreported) NSWCCA 14 March 1991 is of some limited assistance. The offender had been sentenced at first instance after a plea of guilty to wholly concurrent terms of imprisonment amounting to 3 years in respect of 10 offences committed against the offender’s stepson over a period of five years in the early 1980s. Four of those offences related to the digital penetration of the boy’s anus and were charged under section 61D, carrying a maximum penalty of 10 years’ imprisonment. The remainder were offences of indecent assault male. Following a Crown appeal, this Court increased the sentences imposed in respect of the sexual intercourse offences to terms of four years imprisonment, comprising a minimum term of three years and an additional term of one year. The Court confirmed the concurrency of all sentences, resulting in a head sentence of four years imprisonment.

20 Returning then to a consideration of the sentences imposed by his Honour in respect of the section 61D offences, in the light of the approach outlined in Moon above, the sentences imposed on counts 2 and 4 represent approximately one third of the maximum penalty in each case. Even taking into account the applicant's strong subjective circumstances, including his prior good character (deserving of minimal weight), I would not regard the sentences imposed in respect of those counts to be outside the appropriate range available to his Honour. The objective features of the offence were grave, there was a complete absence of contrition and condign punishment was called for. However, it is clear that the sentence imposed in respect of count 8 cannot stand, particularly when regard is had to the maximum penalty that his Honour had in mind. A sentence which must have been considered by his Honour to be half the maximum penalty strikes me as manifestly excessive for an act of digital penetration that must take its place at the lower end of the hierarchy, according to the range of sexual activity encompassed by the offence. Such a sentence also represents approximately 44% of the correct maximum penalty. In my view, a sentence of 2 years and 6 months is appropriate to the circumstances relating to count 8.

21 The sentencing judge accumulated the offences the subject of the trial wholly upon the 12 months imposed for the offence to which the applicant pleaded guilty. The sentences for counts 3 and 4 (wholly concurrent) were accumulated by two years upon the sentences imposed for counts 1 and 2 (wholly concurrent) and the sentences imposed for counts 5, 6 and 7 (wholly concurrent) were accumulated by one year upon the sentences imposed for counts 3 and 4. The sentence imposed for count 8 was accumulated by a further one year upon the sentences imposed for counts 5, 6 and 7. Thus, an aggregate sentence of 8 years 6 months with an aggregate non parole period of 6 years was considered by his Honour to represent the totality of the applicant's criminality.

22 There is considerable force in the submission that the aggregate sentence imposed was manifestly excessive. Some brief reference to the circumstances surrounding the commission of the offences in Thompson and Skinner demonstrates that an aggregate sentence of 8 years and 10 years respectively was considered appropriate for a range of sexual offences committed against more than one complainant, including instances of sexual intercourse of a much more objectively serious nature than the offences committed by the applicant. In Thompson, the offences were committed against the three stepchildren of the offender and included anal rape, digital penetration and an assault occasioning actual bodily harm which resulted in the child suffering a broken leg. In Skinner, the offences were committed against the offender's daughter and three stepdaughters and included penile penetration of very young children, resulting in the pregnancy of one of them at the age of 14. The 4 counts on indictment to which the offender, Skinner, pleaded guilty were supplemented by a further 12 offences on a Form 2 document. Dent is perhaps the closest contemporaneous decision to the facts of the instant case, although some account must be taken of the fact that it was a Crown appeal.

23 I am persuaded that his Honour erred to the extent that the degree of accumulation resulted in the imposition of an aggregate head sentence beyond the range appropriate to the totality of the applicant's criminality. Some degree of accumulation was called for, but in my view an aggregate sentence in the order of five years six months reflects the objective criminality represented by the commission of these offences. No exception could be taken to the finding of special circumstances based upon a degree of accumulation. However, the period of time that the applicant will spend in custody before becoming eligible for release to parole must also reflect the objective gravity of the offences.

24 Accordingly I propose that the sentence imposed in respect of count 8 be quashed and that a sentence of 2 years and 6 months is imposed in lieu. I would confirm the head sentences imposed in respect of all remaining counts. I propose that the sentences for the offences the subject of the trial be accumulated by 12 months upon the sentence for the offence to which the applicant pleaded guilty. The sentences for counts 1 and 2 should be wholly concurrent. The sentences in respect of counts 3 and 4 should be wholly concurrent, but accumulated by one year upon the sentences for the offences imposed in respect of counts 1 and 2. The sentences in respect of counts 5, 6, 7 and 8 ought to be wholly concurrent, but accumulated by one year upon the sentences imposed in respect of counts 3 and 4. I propose the following orders :-

1. Leave to appeal is granted and the appeal allowed.

2. In respect of the count under s 61L to which the applicant pleaded guilty (Indictment 1), a sentence of 12 months imprisonment is imposed to date from 10 February 2004, expiring 9 February 2005.

3. On the offences the subject of the trial (Indictment 2), the applicant is sentenced as follows :-

Count 1 : 6 months’ imprisonment, to date from 10 February 2005, expiring 9 August 2005.

Count 2 : 3 years’ imprisonment, to date from 10 February 2005, expiring 9 February 2008, with a non parole period of 2 years to date from 10 February 2005, expiring 9 February 2007.

Count 3 : 12 months’ imprisonment to date from 10 February 2006, expiring 9 February 2007.

Count 4 : 3 years 6 months’ imprisonment to date from 10 February 2006, expiring 9 August 2009, with a non parole period of 2 years to date from 10 February 2006, expiring 9 February 2008.

Counts 5, 6 and 7 : On each, imprisonment for 18 months, to date from 10 February 2007, expiring 9 August 2008, with a non parole period of 12 moths to date from 10 February 2007, expiring on 9 February 2008.

Count 8 : 2 years and 6 months’ imprisonment, to date from 10 February 2007, expiring 9 August 2009, with a non parole period of 12 months, to date from 10 February 2007, expiring 9 February 2008.

The applicant is eligible for release to parole on 10 February 2008.

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