MLP v R

[2014] NSWCCA 183

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

MLP v R [2014] NSWCCA 183

Hearing dates:

11 August 2014

Decision date:

17 September 2014

Before:

Macfarlan JA at [1]
Adamson J at [2]
Bellew J at [3]

Decision:

The appeal is dismissed.

Catchwords:

CRIMINAL LAW - sentence - sexual assault upon a person under the age of 10 years - appellant sentenced to a non-parole period of 11 years and an additional term of 5 years, being a total term of 16 years - sentence found to have been infected by Muldrock error - matter referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 to determine whether some other sentence was warranted

CRIMINAL LAW - sentence - particular offences - sexual assault upon a person under the age of 10 years - victim of offending was the appellant's 9 year old daughter - offending occurred when appellant was exercising right of access - offending occurred in the immediate presence of the appellant's other two children

CRIMINAL LAW - sentence - particular offences - sexual assault upon a person under the age of 10 years - offending did not form part of a pattern of behaviour and was isolated - Necessity not to focus upon duration of offending when determining objective seriousness - Necessity to bear in mind long term psychological effects upon the victim

CRIMINAL LAW - Sentence - Use of sentencing statistics - Use of sentences imposed in other cases for comparative purposes - Necessity for care when conducting comparisons of sentences - Necessity to determine an appropriate sentence according to principle as opposed to numerical equivalence

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912

Cases Cited:

Ali v R [2010] NSWCCA 35
Alseedi v R [2009] NSWCCA 185
Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390
Barbaro v R; Zirilli v R [2014] HCA 2 (2014) 305 ALR 323
Baxter v R [2007] NSWCCA 237
BP v R [2010] NSWCCA 159
Hili v R; Jones v R [2010] HCA 45 (2010) 242 CLR 520;
Jolly v R [2013] NSWCCA 76
Jones v R [2012] NSWCCA 262
MLP v R [2006] NSWCCA 271 (2006) 164 A Crim R 93
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190
R v Gavel [2014] NSWCCA 56
R v Kier [2004] NSWCCA 106
R v L (NSWCCA unreported 17 June 1996)
R v MAK; R v MSK [2006] NSWCCA 381
R v Nguyen [2013] NSWCCA 195
RLS v R [2012] NSWCCA 236
RR v R [2011] NSWCCA 235
R v Wickham [2004] NSWCCA 193
R v Zerafa [2013] NSWCCA 222

Category:

Principal judgment

Parties:

MLP - Appellant
Regina - Crown / Respondent

Representation:

Counsel:
Ms R Burgess - Appellant
Ms V Lidyard - Crown / Respondent
Solicitors:
S E O'Connor, Legal Aid NSW - Appellant
S Kavanagh, Solicitor for Public Prosecutions

File Number(s):

2005/00004352

Publication restriction:

Nil

Judgment

1. MACFARLAN JA: I agree with Bellew J.

1. ADAMSON J: I agree with Bellew J.

1. BELLEW J: On 6 October 2005 MLP ("the appellant") appeared for sentence before his Honour Judge Garling in the District Court, having been convicted by a jury of an offence contrary to s. 66A of the Crimes Act 1900, namely that between 1 February 2003 and 1 July 2003, near Forster in the State of New South Wales, he did have sexual intercourse with a person then under the age of 10 years. The victim of the offending was the appellant's daughter who was then aged 9.

1. An offence contrary to s. 66A carries a maximum penalty of 25 years imprisonment. A standard non-parole period of 15 years imprisonment is prescribed.

1. The appellant was sentenced by Judge Garling to a non-parole period of 12 years imprisonment, with an additional term of 4 years, both to date from 12 May 2005.

1. The appellant subsequently sought leave to appeal to this Court against his sentence. Leave was granted and the appeal was allowed. The head sentence of 16 years imprisonment was confirmed but the non-parole period was reduced to 11 years: MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93. The appellant is presently eligible for parole on 11 May 2016.

1. The sentences determined by Judge Garling and by the Court of Criminal Appeal were imposed prior to the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. Following the decision in Muldrock, the appellant made an application pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001. The basis of that application was that both Judge Garling and the Court of Criminal Appeal had, contrary to the decision in Muldrock, engaged in a two-stage process of sentencing, and/or had given the standard non-parole period primary or determinative significance. Error on the part of the Court of Criminal Appeal was conceded by the Attorney-General on that application. Accordingly, the application was granted and the matter was referred to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912: Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390.

1. In the hearing before this Court the Crown, consistent with the position previously taken by the Attorney-General, accepted that error was established. In these circumstances, the sole issue to be determined by this Court is whether some other sentence is warranted in law: Criminal Appeal Act 1912 s. 6(3).

THE FACTS

1. The following is taken from the sentencing remarks of Judge Garling (commencing at ROS 2):

"(MLP) was the natural father of (the victim). She was born on 12 January 1994. She was aged nine years at the time of the commission of this offence. At the time of the commission of this offence the prisoner and his wife were separated. The prisoner had taken his three children .... on a camping trip in a Kombi van to an area near Forster. The children lived with their mother, but the prisoner had access visits from time to time. The prisoner and the children were preparing to go to bed. There was one large bed in the van. The prisoner gave his children a cuddle before they went to sleep. (The victim) was the last. The prisoner pulled down her pyjama pants and inserted his penis into her vagina. She said, and I accept: "His penis was hard, it hurt, he left it in me for about ten seconds". This occurred with the two other young children in the van. On 12 July 2003 (the victim) told her mother and subsequently the police were involved.

Dr Birkby, who examined (the victim) gave evidence. She said that the young girl's hymen had been torn. This would normally occur with first sexual intercourse and had been caused by an adult penis being inserted into (the victim's) vagina".

1. His Honour continued (at ROS 9):

"The prisoner was thirty-seven years of age at the time. His daughter was nine years of age. There was actual penile penetration to the extent that the hymen had been torn. The victim said that his penis was hard and it hurt. It was in her vagina for about 10 seconds. She was his daughter. He was her father. She had gone to him for an access visit and, for what could only be described as his own sexual gratification, he had sexual intercourse with this young girl. It happened at night. It happened in the van with two other children present. It happened, as I recall, in a fairly quiet area. He was not, he says, affected by alcohol. I do not know what effect I has had on this young girl, but I do know that it will have had some effect and perhaps a considerable effect".

ADDITIONAL EVIDENCE BEFORE THIS COURT

1. Counsel for the appellant read the following affidavits without objection:

(i)   the appellant of 17 June 2014;

(ii)   xxx (the appellant's sister) of 18 June 2014;

(iii)   xxx (the appellant's father) of 18 June 2014;

(iv)   Steven Eccleshall (the appellant's solicitor) of 4 July 2014.

1. I have referred to this evidence in more detail below.

SUBMISSIONS OF THE APPELLANT

1. Counsel for the appellant emphasised that in order to find that some other sentence was warranted it was not necessary for this Court to conclude that the applicant's sentence was manifestly excessive: Baxter v R [2007] NSWCCA 237 at [10]-[12] per Spigelman CJ. Counsel's fundamental submission was that when all relevant facts were taken into account, the sentence imposed was unduly harsh and unwarranted.

1. Counsel for the appellant turned firstly to the circumstances of the offending. Counsel emphasised, in particular, that the offending was isolated (and thus not representative of a pattern of behaviour) and of short duration. It was further submitted that such matters were relevant to an assessment of the appellant's moral culpability, but were not reflected in the sentence imposed, adequately or at all.

1. Secondly, counsel relied upon the affidavit evidence. It was submitted that such evidence established (inter alia) the following relevant circumstances:

(i)   the appellant had served the entirety of his sentence in protective custody;

(ii)   he remained at risk of assault;

(iii)   he had been generally well-behaved whilst in custody;

(iv)   had undertaken such rehabilitative programs as had been offered to him;

(v)   he had been employed; and

(vi)   he had a number of health issues including (in particular) Depression, Barmah Forest Virus and Hepatitis C (the last being a condition for which he underwent surgery in May 2013, and in respect of which he continued to suffer ongoing difficulties).

1. Counsel for the appellant also relied on the fact that in 2010 the appellant's mother died following complications from what was originally anticipated to be routine surgery. It was submitted that the affidavit evidence established that the appellant's father was now elderly, in poor health and adversely affected by his wife's death. It was submitted that all of these matters, in combination with the health issues of the appellant's siblings as set out in the affidavit material, combined to impact adversely upon the frequency of the appellant's contact with his family generally. It was submitted that such matters weighed heavily on the appellant, and rendered his conditions of custody more onerous.

1. It should be emphasised that counsel for the appellant did not submit that these matters resulted in exceptional hardship being visited upon the appellant's family as a consequence of his incarceration: R v Zerafa [2013] NSWCCA 222. Rather, the submission was that the effect of such matters upon the appellant himself was a relevant factor in determining whether or not some lesser sentence was warranted.

1. Finally, counsel for the appellant took the court to sentencing statistics, along with a number of sentences imposed in other cases of offending contrary to s. 66A. It was submitted that such statistics, and the outcomes of the cases to which the court was referred, demonstrated that the sentence imposed upon the appellant was unduly harsh and unwarranted.

SUBMISSIONS OF THE CROWN

1. The Crown submitted that the factors relied upon by the appellant did not support a conclusion that some other sentence was warranted. In terms of the offending itself, the Crown emphasised that the actions of the appellant constituted a serious breach of trust. The Crown also relied upon the fact that the offending involved full penile/vaginal penetration, albeit only for a short period.

1. The Crown also relied on the fact that the appellant continued to deny the offending. It was pointed out that in these circumstances he could not have the benefit of a finding that he had demonstrated contrition or remorse.

1. In terms of the affidavit evidence the Crown submitted, in effect, that the circumstances which had impacted upon the appellant's contact with his family were not substantially different to the situation faced by the majority of people in custody.

1. In terms of the appellant's reliance upon sentences imposed in other case, the Crown stressed the need for care to be taken in engaging when comparing the outcome of one case to another.

1. At the conclusion of oral argument the Crown was provided with an opportunity to refer the court to further authorities in response to those relied upon by the appellant. The Crown took that opportunity and referred the Court to sentences imposed in cases which, it was submitted, supported a conclusion that the sentence remained appropriate.

CONSIDERATION

1. In light of the circumstances in which the appellant's case has again come before this Court, it is appropriate to commence by referring to the principles applicable to sentencing for offences in respect of which a standard non-parole period is prescribed.

1. The approach to be adopted in such cases is set out in Muldrock (supra). The Court must reach a determination having regard to the range of applicable factors, both aggravating and mitigating, which bear upon the determination of an appropriate sentence. In particular, the Court must not engage in a process of sentencing which involves asking whether or not there are factors which warrant some departure from the standard non-parole period. The Court must also ensure that it does not give the standard non-parole period primary or determinative significance.

1. At the same time, it is important to recognise that the standard non-parole period, along with the maximum penalty, constitute the two legislative guide posts which are relevant to the determination of an appropriate sentence: R v Nguyen [2013] NSWCCA 195 at [62].

1. With these matters in mind, I turn firstly to consider the circumstances of the appellant's offending.

1. On any view, the offending was objectively serious. On the facts found by the sentencing judge the appellant forced his penis into the vagina of his daughter who was then only 9 years of age. The offending occurred in the immediate presence of the appellant's other children.

1. As the victim's father, the appellant was in a position of trust. The victim was entitled to feel safe in his presence. The appellant's actions betrayed that entitlement and his position of trust was seriously abused.

1. I accept that the duration of the offending was short. I also accept that this is a factor relevant to a determination of the objective seriousness of the offending. However in my view, the more important factor is that whatever its precise duration, the offending occurred over a sufficient period of time, and with sufficient force, to tear the victim's hymen.

1. Moreover, even accepting that the offending was limited to a short period of time, the resultant effect upon the victim is not similarly limited. The importance of taking into account the ongoing effect, upon a young victim, of offending such as this was recently emphasised by this Court (Leeming JA, Johnson and Hall JJ) in R v Gavel [2014] NSWCCA 56 at [110]-[112]:

"This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].

111. This factor no doubt contributes to the setting of the heaviest maximum penalty known to the criminal law for s.66A(2) offences, accompanied by a standard non-parole period of 15 years. It is important that sentences for s.66A(2) offences reflect this grave element implicit in the offence itself.

112. This is an important feature in the present case. Young child victims are especially vulnerable. It is important that sentences passed for s.66A(2) offences recognize the harm done to the victim of the crime: s.3A(g) Crimes (Sentencing Procedure) Act 1999."

1. In my view, those observations are apposite to the present case. Concentrating upon the duration of sexual offending has the capacity to minimise, if not ignore, the significance of the long term effect of such offending upon a young victim.

1. The appellant denied (and apparently continues to deny) the offending. That was, and remains, his right. It is not an aggravating factor, but it necessarily means that expression of contrition and remorse is not something that the appellant can have taken into account in his favour.

1. Counsel for the appellant properly pointed out that a failure to express remorse does not disentitle an offender to a finding that his prospects of rehabilitation are good: BP v R [2010] NSWCCA 159 at [84] per Johnson J (Hodgson JA and Rothman J agreeing), citing Alseedi v R [2009] NSWCCA 185 at [65] and Ali v R [2010] NSWCCA 35 at [48]. However, remorse remains a major factor in determining whether an offender is likely to re-offend. Its absence renders it difficult to reach such a determination: R v MAK; R v MSK [2006] NSWCCA 381 at [41].

1. In terms of the affidavit evidence which was relied upon, two particular observations should be made.

1. Firstly, ill health does not necessarily require that a sentence be mitigated from that which would otherwise be appropriate. One of the relevant factors in determining what, if any weight, should be given to that factor will be the seriousness of the offence. Another will be whether the medical condition existed at the time of the offence and whether it has deteriorated in the period between the offence and sentence: R v Wickham [2004] NSWCCA 193 per Howie J at [18] (Bell and Hislop JJ agreeing) citing R v Kier [2004] NSWCCA 106 and R v L (NSWCCA unreported 17 June 1996).

1. In the present case, the offending is obviously serious. Moreover, at least some of the appellant's health issues are of long standing, and pre-dated the offending. In particular, when giving evidence before Judge Garling in the sentencing proceedings in 2005, the appellant said (inter alia) that he had previously:

(i)   contracted Barmah Forest Virus;

(ii)   contracted hepatitis C in or about 1997; and

(iii)   been diagnosed with depression (for which he had been medicated since 1997).

1. Further, this is not a case in which the appellant has asserted that the treatment which has been administered to him in custody has somehow been inadequate. On the contrary, the medical records annexed to the affidavit of Mr Eccleshall tend to establish that the appellant has received appropriate medical treatment, including referral for specialist treatment when that has been considered necessary.

1. I accept that the circumstances surrounding his mother's death are necessarily the source of considerable anxiety for the appellant. I also accept that the age and health of his father, the location in which he resides, and the health issues of the appellant's siblings all combine to render it difficult for the applicant to have regular contact with his family. However it is not uncommon for those in the prison population to have elderly parents: Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190 at [51] per Latham J. Moreover, separation from family members is an inevitable consequence of incarceration.

1. That then brings me to consider the appellant's reliance upon sentencing statistics, along with a series of decisions in other cases of offending contrary to s. 66A, a combination of which was said to demonstrate that the sentence imposed was harsh and unwarranted. Before doing so, it is necessary to refer to a number of statements of principle.

1. Firstly, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49].

1. Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed. But the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41].

1. Thirdly, the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were.

1. Consistent with such statements of principle, this Court has emphasised the need to adopt a careful approach when asked to utilise statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another.

1. In the present case, counsel for the appellant took the court to sentencing statistics which, it was submitted, demonstrated the harshness of the sentence which had been imposed upon the appellant. It was pointed out, in particular, that only three other offenders charged with offending contrary to s. 66A had received a sentence greater than 14 years imprisonment. It was also pointed out that each of those cases involved multiple offending, compared with that of the appellant which involved an isolated instance.

1. Even if such conclusions are supported by the statistical material, they do not lead to the further conclusion that some other sentence is warranted in the present case. The sentence imposed upon the appellant might well be the highest imposed for a single instance of offending contrary to s. 66A. That does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76 at [75]. In my view, the statistical material put before the Court in the present case does not support a conclusion that some other sentence is warranted.

1. I have considered the cases to which the Court was referred in which sentences were imposed for similar offending and which were said to demonstrate the harshness of the sentence imposed upon the appellant. I am not persuaded that they support the conclusion that some other sentence is warranted, nor am I persuaded that they establish that the sentence imposed upon the appellant is at odds with some established sentencing range.

1. I do not propose to undertake an analysis of each and every case to which the Court was referred. I need only refer to two in order to demonstrate the difficulties which are prone to arise from comparative exercises of this kind.

1. In RR v R [2011] NSWCCA 235 the offender was convicted of one offence contrary to s. 66A and was sentenced to imprisonment for 12 years with a non parole period of 9 years. Once again, that sentence was substantially less than that imposed upon the appellant. The complainant in that case, who was 5 years old, had been playing with the offender's son. The offender forced his penis into the complainant's mouth. The offender was obviously supervising the complainant at the time but he was not her parent. Moreover, the offender was found to have borderline intellectual functioning and his prospects of rehabilitation were assessed as being reasonable. None of those factors apply in the case of the appellant.

1. In Jones v R [2012] NSWCCA 262 the offender was sentenced in respect of two offences contrary to s. 66A on the basis that they formed part of the one continuous act. The offender performed fellatio on a 12 year old boy, and then penetrated the boy's anus with his own penis. The sentence imposed upon the offender, one of 12 years imprisonment with a non-parole period of 8 years, was obviously substantially less than that imposed upon the appellant. Equally, the offender was not the victim's parent, he was only 20 years of age, and he had the benefit of a finding of good character. Again, none of those factors form part of the present case.

1. Although the offending in each of those cases was contrary to the same statutory provision as the appellant's offending, an examination of those two cases demonstrates that they were not really comparable at all. In fact, they were materially different from the appellant's case in several important respects. The presence of such differentiating factors explains, at least in part, why the sentence imposed in each case was less than that imposed upon the appellant. All of these considerations demonstrate why it is that sentencing is not, and can never be, directed towards achieving numerical equivalence.

1. There is no doubt that the sentence imposed upon the appellant was stern. However, having considered the submissions advanced on behalf of the appellant, I am not persuaded that some other sentence is warranted. In coming to that view, I have had regard to the two legislative guideposts to which I previously referred.

1. I propose the following order:

(1)   The appeal is dismissed.

**********

Amendments

22 September 2014 - Names of appellant's sister and father replaced with XXX.

Amended paragraphs: 11

Decision last updated: 22 September 2014