ME v The Queen

[2019] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	ME v R [2019] NSWCCA 91
Hearing dates:	5 April 2019
Date of orders:	10 May 2019
Decision date:	10 May 2019
Before:	Macfarlan JA at [1] R A Hulme J at [2] Davies J at [3]
Decision:	(1) Grant leave to appeal.  (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to five aggravated sexual offences committed against his biological daughter – further sexual offences taken into account on a Form 1 – whether the sentencing judge erred in fixing the indicative sentence for one offence resulting in the sentencing discretion miscarrying – where the sentencing judge wrongly described one of the offences when identifying its indicative sentence in the Remarks on Sentence – where a reading of the Remarks as a whole indicated that the sentencing judge correctly understood the applicable legislative guideposts for sentencing the relevant offence – indicative sentence reflected the sentencing judge’s finding of objective seriousness – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) s 66C
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	ME (Applicant) Crown (Respondent)
Representation:	Counsel: Dr A Hughes (Applicant) K Jeffreys (Respondent)   Solicitors: T & S Law Firm (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/313510
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v ME [2017] NSWDC 308 Date of Decision: 27 October 2017 Before: Berman SC DCJ File Number(s): 2016/313510

Judgment

1. MACFARLAN JA:   I agree with Davies J.

2. R A HULME J:   I agree with Davies J.

3. DAVIES J:   The applicant pleaded guilty in the Newcastle Local Court to the following offences:

Sequences 1, 10 and 11: Sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation, namely, that the complainant was under the authority of the applicant. The maximum penalty for this offence is 20 years’ imprisonment. There is a standard non-parole period of nine years. The offence was contrary to s 66C(2) Crimes Act 1900 (NSW).

Sequence 8: Inciting a person under the age of 16 years to commit an act of indecency in circumstances of aggravation, namely, that the complainant was under the authority of the applicant. The maximum penalty for this offence is five years’ imprisonment. There is no standard non-parole period for this offence. The offence was contrary to s 610(1) of the Crimes Act (now repealed).

Sequence 13: Sexual intercourse with a child above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely, that the complainant was under the authority of the applicant. The maximum penalty for this offence is 12 years’ imprisonment. There is a standard non-parole period of five years. The offence was contrary to s 66C(4) of the Crimes Act.

4. The applicant was committed for sentence to the District Court. He came before Judge Berman SC, and asked that his Honour take into account five further offences on a Form 1, attached to sequence 1. Those offences were as follows:

1.   Aggravated sexual intercourse with a child aged between 10 and 14 years;

2.   Aggravated indecent assault;

3.   Aggravated incite act of indecency;

4.   Aggravated sexual intercourse with a child aged between 10 and 14 years; and

5.   Aggravated sexual intercourse with a child aged between 14 and 16 years.

5. His Honour imposed an aggregate sentence of 18 years’ imprisonment commencing 20 October 2016 and expiring on 19 October 2034 with a non-parole period of 13 years and six months expiring on 19 April 2030.

6. The indicative sentences were as follows:

Sequence 1, taking into account the Form 1 offences - eight years with a non-parole period of six years;

Sequence 8 – three years;

Sequence 10 – six years with a non-parole period of four years;

Sequence 11 – seven years with a non-parole period of five years and six months; and

Sequence 13 – eight years and six months with a non-parole period of six years.

7. The applicant now seeks leave to appeal from the sentence imposed on one ground only as follows:

The sentencing judge patently erred with respect to the indicative sentence for sequence 13 resulting in the sentencing discretion miscarrying.

Facts

8. The applicant was sentenced on the basis of agreed facts which can be summarised as follows.

9. The complainant was born in 1999. The applicant is her biological father born in 1951. The complainant lived with her mother in the Philippines where she was born, and subsequently in Australia until she was seven years old. It was only at that time that an aunt helped her track down the applicant. Sometime afterwards, the applicant moved into the granny flat where the complainant was living with her mother. They all slept in the same bed. The complainant said that the applicant would show her pornography websites on a laptop computer when they were home alone.

10. In about 2008 the complainant’s mother returned to live in the Philippines, and the complainant thereafter lived with the applicant as her sole custodian. At that time the applicant would ask the complainant to touch his penis and masturbate him. She was aged about eight or nine years when this first occurred. It became a regular activity.

11. When the complainant was aged 11 the applicant began to offer her money for sex. He first started to touch her under her clothes and on one occasion he inserted his fingers into her vagina. Immediately afterwards he put his penis inside her vagina which caused her pain. He did not use a condom.

12. After this time a system developed whereby the applicant would pay the complainant $50 to have sex with him. This arrangement continued from the time the complainant was aged 11 until she was aged 15 years. They frequently had sexual intercourse. After the first such occasion the applicant began to use a condom but then later ceased this practice.

13. At various times other sexual acts, including cunnilingus and anal penetration, were engaged in by the applicant. The applicant told the complainant even before she started high school that she must not tell anybody about the sexual activity.

14. In about 2010 the complainant's mother returned from the Philippines and began living in an adjoining granny flat. However, the applicant and the complainant continued to sleep together.

15. When the complainant was aged 15 she fell pregnant as a result of the sexual intercourse with the applicant. They both tried to find ways to bring about a miscarriage, but none of those attempts were successful until she attended an abortion clinic at Mt Druitt and was given medication to induce a termination. That procedure caused her considerable pain and discomfort for several weeks. As a result of the pregnancy, the applicant ceased having sexual intercourse with the complainant.

16. In 2015, the complainant told three friends about the sexual abuse. In September 2016 she suffered a psychotic episode. She was admitted to John Hunter hospital and told a psychologist about the sexual abuse.

17. The applicant was charged by police on 20 October 2016.

18. The applicant participated in an ERISP and made full admissions to the allegations. He also gave the police details of other offences committed against the complainant. Four of the offences on the Form 1 were offences he disclosed at that time.

Subjective features

19. The applicant did not give evidence at the sentence proceedings. However, he expressly instructed his counsel to concede all matters of aggravation that had an impact upon the offending. He instructed his counsel to say that he did not want any excuses to be made before the Court and he did not seek to minimise his assaults.

20. The sentencing judge had a lengthy report from Dr Katie Seidler. That report disclosed the difficulties the applicant had during his childhood particularly because of the breakup of his parents’ marriage when he was young. That appears to have given rise to a number of problems for the applicant that led Dr Seidler to consider differential diagnoses of Schizotypal Personality Disorder and an Autism Spectrum Disorder. Dr Seidler said that the applicant presented with “serious, entrenched, pervasive and debilitating intimacy and relationship deficits, which had their foundation in his difficult early life”. Dr Seidler thought that these deficits contributed to his offending.

21. She assessed his risk of future offending as moderate, but only in the circumstance that he was able to develop a relationship with a vulnerable victim in which he felt a measure of care, such that he would have opportunities to distort and sexualise the relationship. His risk of offending against someone unknown to him was far lower and was in the low range.

22. The applicant had one prior offence of carnal knowledge of a girl between the age of ten and 16 years which occurred in 1979. At the time he was aged 28 years. For that offence he was given a three year recognisance.

Ground of appeal: The sentencing judge patently erred with respect to the indicative sentence for sequence 13 resulting in the sentencing discretion miscarrying.

23. The applicant submitted that his Honour mischaracterised the offence in sequence 13 because he said this:

The last offence approaches the most serious form of offending covered by the offence of aggravated sexual intercourse with a child between the ages of ten and 14.

In fact, sequence 13 was an offence of aggravated sexual intercourse with a child between the ages of 14 and 16 years.

24. The applicant pointed to the indicative sentence of 8.5 years for sequence 13. On the basis that a 25% discount had been given for the early plea, the notional starting point for the offence was 11 years and four months against a maximum penalty of 12 years.

25. The applicant submitted that the indicative sentence did not reflect the finding of objective seriousness made in relation to this sequence. The indicative sentence was only eight months less than the maximum penalty, which was a sentence reserved for cases falling within the worst case range and not one approaching the most serious form of the offence. The applicant submitted that the assessment of the seriousness of the offending was somewhat hindered by the paucity of detail in relation to the offending. However, the victim was aged 15 at the time of the offence and was, therefore, towards the upper end of the age limit.

26. The Crown submitted that it was highly unlikely that his Honour proceeded on an incorrect basis with respect to sequence 13. The Crown submitted that the more likely explanation for the discrepancy was that there was either a typographical error or a slip of the tongue during the delivery of the reasons on sentence.

27. The Crown said that his Honour never asserted that the maximum penalty for sequence 13 was 20 years. Rather, he correctly set out the relevant maximum penalties and standard non-parole periods.

28. The Crown also submitted that, had his Honour been mistaken about the applicable legislative guideposts for sequence 13, a much lengthier indicative non-parole period and additional term would have been expected to reflect his Honour's finding that the offence "approaches the most serious form of offending" covered by the offence.

29. The Crown pointed to the aggravating factors pertaining to each of the offences and to the further aggravating features involving sequence 13 where the risk of pregnancy materialised and the complainant was forced to endure a termination that caused her great pain.

Consideration

30. In his Remarks on Sentence, the sentencing judge said this at [21]:

All of these offences are well into the upper range of objective seriousness. The last offence approaches the most serious form of offending covered by the offence of aggravated sexual intercourse with a child between the ages of ten and 14.                  (emphasis added)

31. The last offence (sequence 13) was an offence of sexual intercourse with a child above the age of 14 years and under the age of 16 years in circumstances of aggravation. His Honour has, therefore, wrongly described that offence. The issue raised by the ground of appeal is whether, when fixing the indicative sentence for sequence 13, his Honour wrongly considered that the offence was one of aggravated sexual intercourse with a child between the ages of ten and 14, and in that way had regard to the wrong maximum penalty. The offence of aggravated sexual intercourse with a child aged between ten and 14 years is 20 years’ imprisonment with a standard non-parole period of nine years: s 66C(2) Crimes Act 1900 (NSW). The offence of aggravated sexual intercourse with a child above the age of 14 years and under the age of 16 years is a maximum penalty of 12 years’ imprisonment with a standard non-parole period of five years: s 66C(4) Crimes Act.

32. Having described the offence as one that “approaches the most serious form of offending covered by the offence of aggravated sexual intercourse”, his Honour indicated a sentence of eight years and six months with a non-parole period of six years. His Honour had discounted the indicative sentence by 25% for the applicant’s early plea. When that discount is factored in, the notional starting point for the indicative sentence was 11 years and four months.

33. In my opinion, the sentencing discretion did not miscarry. A reading of the Remarks on Sentence as a whole indicates that his Honour was well aware that sequence 13 involved a child between the ages of 14 and 16 years and that the maximum penalty for that offence was 12 years’ imprisonment with a standard non-parole period of five years. In that regard, his Honour said at the outset of his Remarks at [2]-[3]:

[2]   …And he has pleaded guilty to an aggravated sexual intercourse offence with a person between the ages of 14 and 16 years. The maximum penalty for that offence is 12 years with a standard non-parole period of five years.

[3]   The circumstances of that last offence are most serious indeed, especially when the consequences for the victim of that offence are taken into account.                  (emphasis added)

34. His Honour also said at [14]:

The sexual abuse of his daughter stopped when she was aged 15 in a most disturbing way. She fell pregnant to the offender. Together they began to research ways to induce a miscarriage, but these were not successful. Ultimately, after several weeks had passed, her pregnancy was terminated. The act of intercourse which caused that pregnancy is another act of aggravated sexual intercourse with a person between the ages of 14 and 16 on this occasion.

35. It is clear, therefore, that his Honour knew that the ‘last offence’ was the offence committed when the complainant was 15 years old.

36. Further, in circumstances where his Honour considered that the offence in sequence 13 approached the most serious form of offending covered by that offence, it would be surprising indeed if his Honour identified a notional starting point for the indicative sentence of 11 years and four months in circumstances where his Honour believed that the maximum penalty for such an offence was 20 years with a standard non-parole period of nine years.

37. The indicative sentence is entirely consonant with his Honour’s assessment of the offence against s 66C(4) as approaching the most serious form of offending covered by that offence. Had his Honour considered that it was an example of the worst form of offending for that offence, his Honour would have been justified in imposing the maximum penalty or using the maximum penalty as a notional starting point before any discounts, as the applicant conceded. It cannot be said, in those circumstances, that the indicative sentence is not a reflection of his Honour’s assessment of the offence as one committed contrary to s 66C(4).

38. In my opinion, his Honour’s reference at [21] of his Remarks was a slip of the tongue and was not an indication that his Honour sentenced for an offence contrary to s 66C(2). I would reject the ground of appeal.

Conclusion

39. In my opinion the following orders should be made:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

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Decision last updated: 10 May 2019