Mayall v R

[2010] NSWCCA 37

New South Wales
Court of Criminal Appeal

CITATION:	Mayall, David Graham v R [2010] NSWCCA 37 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16/02/2010
JUDGMENT DATE:	4 March 2010
JUDGMENT OF:	James J at 1; Howie J at 2; Davies J at 54
DECISION:	Application for leave to appeal is granted but the appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - Sentence - Two counts of indecent assault of children under 10 - Error by judge in approach to standard non-parole period - whether any lesser sentence is warranted.
LEGISLATION CITED:	Crimes Act 1900 - s 61M(2)
CATEGORY:	Principal judgment
CASES CITED:	MLP v R [2006] NSWCCA 271; 164 A Crim R 93 R v Mills [2005] NSWCCA 175; 154 A Crim R 40 R v King [2009] NSWCCA 117
PARTIES:	David Graham Mayall v Regina
FILE NUMBER(S):	CCA 2008/12941
COUNSEL:	P A Leask - Crown L Wells - Applicant
SOLICITORS:	S Kavanagh - Crown S O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/12941
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	19/05/2009

2008/12941

JAMES J
HOWIE J
DAVIES J

THURSDAY 4 MARCH 2010

David Graham MAYALL v REGINA

Judgment

1 JAMES J: I agree with Howie J.

2 HOWIE J: The applicant pleaded guilty to two offences of indecent assault on a child under the age of 10 years. These were offences contrary to s 61M(2) of the Crimes Act 1900. The maximum penalty for an offence contrary to that section is imprisonment for 10 years. Curiously, having regard to the maximum penalty, there is a standard non-parole period of 8 years.

3 On 19 May 2009 Finnane DCJ sentenced the applicant to a total sentence of 7 years with a non-parole period of 4 years. That sentence dated from 19 May 2009 and the applicant is eligible to be released to parole on 18 May 2013.

4 There are four grounds of appeal filed as follows:

1. The sentencing judge erred by omitting to assess the objective seriousness of the offences.

2. The sentencing judge erred by failing to allow a discount for an early plea of guilty and to give reasons why such a discount should not be given.

3. The sentencing judge failed to determine, and find, that the applicant had good prospects of rehabilitation.

4. The sentences for these offences are manifestly excessive.

The facts

5 There was an agreed statement of facts tendered that had been signed by both the applicant and the prosecutor. They can be summarised as follows. The complainants were two girls, one was aged nine years and the other eight years. They resided with their mother in Cowra. The mother was a member of an Internet site used to chat with and meet people. She came into contact with the applicant through this site. The relationship commenced with the exchange of messages and progressed quickly to regular telephone calls. Two weeks after they had first come into contact the applicant travelled from Taree to Cowra to stay at the home of the mother.

6 On 2 May 2008 the applicant met up with the mother and they returned to her home. The sleeping arrangements in the house were that the mother and younger daughter slept in a queen-size bed. There was a single bed in the same room in which the elder daughter and her eight-year-old brother slept.

7 After sharing an evening meal with the family, the applicant showered and got into the bed in which the mother and younger daughter slept. About five minutes later that child got into the bed. The applicant touched her initially on the outside of her pyjamas but shortly moved his hand inside and touched and caressed her bottom. He then moved his hand to the front of the child and placed it inside her underpants. He touched her on the vagina for between five and ten minutes. The applicant told the child that it was “their secret” and she should not tell any other person.

8 Later the mother got into bed with the applicant and the child. Sometime later the other two children retired into the single bed and went to sleep.

9 The following day, Saturday 3 May, the applicant woke to find the mother and the elder daughter in bed with him. He tried to speak to the mother but she was unresponsive and he assumed she was asleep. The applicant began to touch the elder daughter on the bottom on the outside of her nightie. He then moved his hand under her underpants and continued to caress her bottom. He then touched her on the vagina area first on top of the underpants and then beneath them. This conduct lasted about five minutes.

10 Later that day the mother and her children went to a family gathering and the applicant remained in the house. They returned about 7pm that evening. At some stage, while they were all sitting in the lounge room, the elder daughter complained that the applicant, “touched my bottom and flower”, the latter being a term used by the child for her vagina. The applicant denied the allegation but the younger daughter immediately made the same complaint. The mother told the applicant to pack his bags and leave the house. As he was departing the house, two motor vehicles pulled up carrying a number of males who were related to the mother. These persons, after making a number of accusations against the applicant, assaulted him. Police were called and the applicant was taken to hospital where he remained overnight for observations. The next day he was arrested and admitted to the assaults upon the two complainants.

The subjective case

11 The applicant was born on 17 September 1977. He has no criminal record apart from an offence involving social security benefits for which he was dealt with in the Melbourne Magistrates Court in 2003. He was placed on a good behaviour bond and fined.

12 Because the applicant was living in Victoria at the time, a presentence report was prepared by a Community Corrections Officer in that State. The report indicated that the applicant was born in New South Wales and lived with his mother until he entered into a relationship with a girlfriend whom he later married. They eventually separated and the applicant has two children from that marriage. They live with their mother and he has minimal contact with them. He had a further relationship from which he had a child, a girl aged six at the time of the sentencing proceedings. That child lives with her mother.

13 The applicant entered into a third relationship and married again in 2007. He and his wife separated briefly and it was at this time that he made contact with the mother of the complainants. The applicant and his wife were reconciled by the time of the sentencing proceedings. He normally resides with his wife in a rented house in Victoria with her children aged 16 and 14.

14 The applicant had not been in employment for about three years prior to the offending and stated that he had been unable to gain employment after the offences because of the impact of the proceedings. The applicant has never used illicit drugs and only drinks alcohol on “special occasions”.

15 The officer, who wrote the report, formed the view that the applicant’s family and friends were in denial in respect of the offences. The applicant had expressed anger with the fact that the complainants had been in the bed. He had been unable to explain fully why the offences had occurred but said that it was because of his tiredness.

16 The report was not of any assistance to the applicant because of his conduct with the officer attempting to assess him. It contained the following:

……….When an appointment was being arranged with [the applicant] for the environmental scan, [the applicant] became aggressive screaming “judgement judgement”. [The applicant] was spoken the day prior to advise that such aggression and intimation [?] will not be tolerated and he needed to understand that he was being assessed for an order. When undertaking the assessment [the applicant] presented in a negative manner answering questions on behalf of his wife and asking why they had not investigated the victims for being in the bed. It was then asked if [the applicant] was willing to be sentenced to an order to which after deliberation with his wife decided he “might as well give it a go”.

17 Ultimately it was determined that the applicant was not suitable for any Community Based Disposition due to his “perceived lack of motivation or understanding of the impact of his offending”. The report went on,

……… it appears evident that [the applicant] has little if any victim empathy, and has no remorse for his actions (as confirmed by the lack of empathy, and his continued victim blaming).

18 There was also in evidence a report prepared by a psychologist and a Therapeutic Manager with the Sexual Offenders Programmes within the New South Wales Department of Corrective Services. The applicant had told the authors of this report that the offence was “out of character for me, I don’t know what came over me, I was tired, I hadn’t slept, I had been awake, I wasn’t thinking”. The authors concluded that the applicant demonstrated little victim insight and also lacked insight into the factors that may have contributed to his offences. The applicant was “unable to describe any strategies that could prevent him from reoffending”.

19 This report contained the following:

Although [the applicant] does not deny committing the offences, he appears to be minimising the extent of his responsibility and demonstrated little insight into his behaviour. [The applicant’s] feelings of isolation and rejection, intimacy deficits, hostility and deficits in emotional regulation all appear to be related to his offending behaviour………..

20 There was also in evidence a presentence report. The report contains the following under the heading “Attitude to the Offences”:

The offender could offer no explanation for his offending behaviour. He stated that he had met the victim’s mother on the Internet at a time when he was separated from his wife. He concurred with the police facts stating that they were accurate in every detail. He added that the children had not tried to stop him when he assaulted them. He also believed that the victims were awake when he assaulted them. He did not deny telling the first victim not to tell anybody what he had done.

When questioned repeatedly as to why he offended he maintained that he obtained no sexual gratification for his behaviour but could not verbalise why he had offended against the second victim the next morning.

21 The report contained the following summary:

………… He appears to be a person of low self-esteem who has had difficulty in maintaining long-term relationships with women. [The applicant’s] offences were opportunistic. It is of concern that he repeated his offending behaviour with the second child the next morning without any restraint. He seems to lack insight into the seriousness of his offending behaviour and was incapable of offering any explanation for his behaviour.

22 There was in evidence two reports from a psychologist whom the applicant had seen in Victoria. The psychologist reported that the applicant “has consistently evidenced: (a) deep shame, guilt, and remorse; (b) an inability to ‘explain’ why these events occurred”. The psychologist gave examples of quotes from the applicant that supported these findings. The psychologist gave possible reasons why the applicant could not explain the occurrence of these offences. One of these the psychologist thought was “unlikely but possible”. The psychologist indicated that he was prepared to counsel and treat the applicant.

23 The applicant gave evidence at the sentencing hearing. He was asked why he had committed the offences and he answered:

I have no excuses in what I have committed. I have no idea why they were done in the first place. I feel so bad for what I have done and there is not a day where I don’t think about how bad I have ruined everyone’s life including their lives, the children’s lives, the mother’s life, my life, my wife’s life, everyone’s life I have ruined.

24 In relation to the Victorian report he stated:

The thing is I was treated very unfairly. I was not really given a fair go in terms of - I was basically treated as though I did the wrong thing and I had to suffer the consequences which in fact I do have to suffer but I was not giving – not given an opportunity to state my case so to speak.

HIS HONOUR: Well what is the case that you didn’t have the opportunity to state?

A. Well your Honour I was - my wife and I were in the conference and we were – we were basically treated as second-class citizens. We - we – we have - I have done what I have done wrong yes I admit to that but it was just treated – I was very mistreated.

25 He was asked by the prosecutor about his suggestion in the Victorian report that the children should not have been in the bed and he replied:

Well I naturally would assume that would be a natural parent reaction. Why would you let your children in the same bed as a stranger is what gets me.

26 The applicant’s wife gave evidence. She stated that she was supporting the applicant even though she was surprised and shocked by the offences. She did not believe they were in his nature. She stated that, although she initially blamed the complainants, she did not do so at the time of giving evidence.

The sentencing remarks

27 The Judge sentenced the applicant on the mistaken belief, not corrected by either of the parties before him, that the relevant standard non-parole period was five years. In the course of his remarks, His Honour stated:

Statistics show that most sexual offenders who have committed this offence had been sentenced to prison the biggest majority of them for three years and some as long as six years. And the non-parole periods go from six years to more than five years on statistics. Though statistics do not of course tell the whole story. In recent times the courts have been adopting an ever tougher view about sentencing for this sort of offence where the legislature has recently increased the standard non-parole period to eight years so that for a middle range offence following a conviction at trial the person convicted would be eligible for eight-tenths of the maximum sentence. It can only be said that indicates an attitude of the Parliament that this sort of offence should be regarded as very serious

28 In respect of the standard non-parole provisions, his Honour said:

The standard non-parole period at the time apparently was five years, it is now eight years. That means if he had been convicted at trial that is what I would have had to first consider as the number one guidepost. I would have to consider imposing that unless there was something to show some good reason for not doing it. He has pleaded guilty, I am not obliged to impose a standard non-parole period. Nor am I obliged to consider imposing the maximum sentence. As this is his first offence, it would be most unusual to consider a maximum sentence. However I have to look at and give consideration to the standard non-parole period and I have to give consideration to the maximum sentence as two very important guideposts to sentencing.

29 The Judge imposed the same sentence for each offence being a term of 6 years with a non-parole period of three years. They were made accumulative by a period of 12 months, and hence the total sentence of 7 years with an overall non-parole period of 4 years was derived.

Ground 1

30 The complaint is that the Judge failed to determine the objective seriousness of the offences as he was required to do in accordance with the decisions of this Court concerned with the application of the standard non-parole provisions.

31 Unfortunately it must be said that the sentencing remarks are completely inadequate insofar as they indicate how his Honour determined the sentences he imposed. There is scant regard, if any, to the staged approach that has been held to be necessary where there is a standard non-parole period even after a plea of guilty: MLP v R [2006] NSWCCA 271; 164 A Crim R 93. Almost five years ago in R v Mills [2005] NSWCCA 175; 154 A Crim R 40 at [49] Wood CJ at CL said:

“… more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order”.

32 With respect, the passage of the sentencing remarks last quoted above is meaningless as to the process by which his Honour determined the appropriate sentence. Is does not contain a “clear identification of the relevant factors”. In particular the Judge fails to undertake any assessment of the objective seriousness of the offences or to indicate why he is departing from the standard non-parole period. This is another instance of a failure by a District Court Judge to attempt to carry out the process that this Court has mandated when dealing with an offence that carries a standard non-parole period. His Honour’s sentencing discretion clearly miscarried. This Court will have to consider whether any lesser sentence is warranted.

Ground 2

33 The complaint is that the Judge did not indicate whether or not the applicant was to receive any discount for the utilitarian value of his early pleas.

34 The answer to this contention is that his Honour said this just before imposing sentence:

“Taking into account all those matters including the plea of guilty and giving him the benefit of the maximum discount………

35 However, it was also submitted that, if his Honour did give the applicant the benefit of a discount of 25 percent, the starting point of 8 years was manifestly excessive as it placed the applicant’s offences in the “range of the worst 20 per cent of cases for offences of this kind”. As this Court will have to re-sentence the applicant, it will take into account a discount of 25 percent when determining whether any lesser sentence is warranted.

Ground 3

36 The complaint is that the Judge failed to determine that the applicant had good prospects of rehabilitation. It was submitted that such a finding “would have a real bearing on the actual sentence imposed”.

37 The Judge referred to the finding in the Victorian report that the applicant had a “low to moderate risk of re-offending”. The applicant points to a number of further matters that he contends ought to have led to a finding favourable to him on the issue of rehabilitation. This included a statement made by the applicant in evidence that he was prepared to undertake counselling, his lack of prior offending and his expressions of contrition and remorse.

38 As against these matters there was the continued attitude of the applicant that in some way the children were to blame, or at least the offending would not have occurred had they not been in the bed. Although the Victorian psychiatrist suggested that this was due to the applicant’s shame, there was ample evidence of his lack of insight into his conduct and a lack of empathy for the complainants. Further the Judge was entitled to take into account the “explanation” for the commission of the offences as being the result of tiredness and his statement that he was not sexually aroused. Although the Victorian psychiatrist posited what appear to be unconvincing reasons for the applicant’s “explanation”, it was open to the Judge to reject the applicant’s account and find that he was attempting to minimise his conduct. This somewhat lessened the applicant’s statements of contrition.

39 In resentencing the applicant I would not be prepared to find that he had good prospects of rehabilitation considering the whole of the history of what he has said about the offences and his attitude to them. In any event his prospects of rehabilitation depends upon his involvement in treatment programmes either in the community or in gaol. Without him having undertaken those programmes, I would not be able to form a view one way or the other about his likelihood of re-offending. This is particularly so in light of the fact that he committed the identical offence on two different children some hours apart.

40 But the sentencing Judge gave him the benefit of reducing the non-parole period well below the statutory relationship so that the effective non-parole period was 56 percent of the total term. He could not have come to that decision unless he gave the applicant the benefit of a finding of some prospects of rehabilitation.

41 This ground fails.

Ground 4

42 This ground need not be addressed because this Court is required to sentence the applicant itself in light of the failure of the Judge to exercise his discretion appropriately as was found under ground 1.

43 The applicant submits that the offences fell well below the mid range of seriousness for offences under this section. I do not agree. Touching a child on the outside of her vagina and under clothing for a significant period of time is a serious example of an offence under this section. True it is that matters of aggravation that could have made the offence more serious were absent, but had any of them been present the offence would probably have been high in the mid range of seriousness or above it. The absence of aggravating features does not mitigate the seriousness of the offence actually committed.

44 I do not accept that the offending was mitigated because the touching of the children was relatively brief. I do not understand that the effect upon the child depends upon the length of time of the abuse. In any event, neither of the offences could be called fleeting. In both cases the applicant progressed from touching the child on the bottom to moving around to the vaginal area. They were not momentary aberrations.

45 The suggestion that they occurred because he was tired, even if accepted, was hardly a mitigating factor. Nor is it a matter of mitigation that a child is sexually abused even though the abuser does not obtain any sexual satisfaction. It is the harm to the child that is the nub of the offence.

46 The sentences imposed were the same even though the first offence was against a child aged 8, being an age significantly less than the statutory age of 10 to which this offence applies. The offence on the younger child was more serious and should have carried a more severe penalty. The offences occurred in the children’s home by a person who was in effect a stranger and who had been trusted to stay with the family and to sleep in a bed where the child normally slept. Both of the offences occurred in the mother’s bed, a place where the complainants were entitled to feel safe.

47 It was suggested that the impact upon the victims “would fall at the lower end of severity for cases of this type”. That is a submission that should be rejected. The Court cannot make any decision about what might be the impact upon the children of such conduct. In R v King [2009] NSWCCA 117 this Court stated:

[41] No one could know at the date of sentencing what emotional or psychological harm might have been occasioned to the child in the long term. The early complaint makes it obvious that the child knew that the conduct was wrong and that she found it distressing. It is significant that the act was committed by a stranger. It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender. It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious. It was the appreciation of the likelihood of harm that Mason P saw as changing the community attitude to sexual assaults against young children: see R v MJR (2002) 54 NSWLR 368 at [57].

Those comments apply equally to this case.

48 In my opinion each of the offences was in the mid range of objective seriousness even if towards the lower end of that range in respect of the 9 year old child. This is not to suggest that a particular type of conduct will always fit into a particular range of offending. It will depend upon the circumstances in which the conduct occurred. It is impossible in my view, for example, to determine whether touching a child on his or her sexual organ is more or less serious than having the child touch the offender’s sexual organ. In King this Court held that it cannot be said that one particular type of sexual penetration is always less or more serious than another type of penetration.

49 The extra–curial punishment was of little significance given the seriousness of the offences and the relatively minor injuries inflicted upon the applicant.

50 The Judge referred to the sentencing statistics and we have had them placed before us. They are of little, or no relevance. There are few examples of cases where the standard non-parole period was 8 years. In any event the statistics have less relevance in cases where there is a standard non-parole period. Usually this Court has noted that the statistics show that apparently little regard is being had to the standard non-parole period.

51 We have been provided with an affidavit sworn by the applicant for the purpose of re-sentencing him. Although he has been placed on protective custody, the only effect seems to have been to limit his opportunity for courses and programmes. He has employment and is in a minimum security classification. He has the support of his parents and wife. He is still willing to undertake courses when he is in a position to do so.

52 There is nothing in the affidavit that would indicate any different sentence than that imposed by the Judge is appropriate. As I have already indicated he received a very favourable non-parole period in relation to the overall term of imprisonment. Although had I been sentencing as first instance, I would have made one sentence more severe than the other because of the difference in the ages of the children, I see no reason to resentence simply to achieve that result while leaving the overall sentence imposed the same. The sentence is a heavy one but that is due largely to the effect of the standard non-parole period on offences that were in the mid range of objective seriousness. Yet having regard to the standard non-parole period, a total non-parole period of 4 years for two offences of mid range seriousness is the least sentence that could possibly be imposed.

53 I propose that the Court orders that the application for leave is granted but the appeal dismissed.

I agree with Howie J.

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05/03/2010 - Edit error - Paragraph(s) Cover sheet