Mottram v R

[2009] NSWCCA 210

New South Wales
Court of Criminal Appeal

CITATION:	Mottram v Regina [2009] NSWCCA 210
HEARING DATE(S):	17 August 2009
JUDGMENT DATE:	25 August 2009
JUDGMENT OF:	Macfarlan JA at 1; Grove J at 2; Hoeben J at 3
DECISION:	Leave to appeal against sentence is granted. The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - sexual assaults occurring 20-30 years before sentences imposed - application of sentencing practices then current - whether non-parole period should be adjusted downwards to have regard to those practices - whether some other sentence warranted in law - (s6(3) Criminal Appeal Act 1912).
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Parole of Prisoners Act 1966 Probation and Parole Act 1983
CATEGORY:	Principal judgment
CASES CITED:	AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 Baxter v R [2007] NSWCCA 237 Bradbury v R [2008] NSWCCA 93 at [36] Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 CPW v R [2009] NSWCCA 105 Featherstone v R [2008] NSWCCA 71 GRD v R [2009] NSWCCA 149 MJL v R [2007] NSWCCA 261 Pearce v The Queen [1998] 194 CLR 610 at 624 PH v R [2009] NSWCCA 161 R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
PARTIES:	William Albert Mottram - Applicant Regina - Respondent Crown
FILE NUMBER(S):	CCA 2007/10507008
COUNSEL:	A Francis - Applicant D Arnott SC/S Dowling - Respondent Crown
SOLICITORS:	SE O'Connor, Solicitor for Legal Aid - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/10507
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	5 March 2008

2007/10507008

HOEBEN J

25 August 2009

William Albert MOTTRAM v REGINA

Judgment

1 MACFARLAN JA: I agree with Hoeben J.

2 GROVE J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
On 5 March 2008 the applicant was sentenced in respect of the following charges by Garling DCJ:

(1) Between 1972/3 assault with attempted carnal knowledge of KG being under the age of 10 years contrary to s 68 Crimes Act 1900 (maximum penalty imprisonment for 14 years).

(2) Between 1973/4 assault with attempted carnal knowledge of KG being under the age of 10 years contrary to s 68 Crimes Act 1900 (maximum penalty imprisonment for 14 years).

(3) Between 1974/5 indecent assault of KG being under the age of 16 years contrary to s 76 Crimes Act 1900 (maximum penalty imprisonment for 6 years).

(4) Between 1973/6 indecent assault of KG being under the age of 16 years contrary to s 76 Crimes Act 1900 (maximum penalty imprisonment for 6 years).

(5) Between 1980/1 indecent assault of HG being under the age of 16 years contrary to s 76 Crimes Act 1900 (maximum penalty imprisonment for 6 years).

(6) Between 1982/5 indecent assault of HG being under the age of 16 years contrary to s 61E(1) Crimes Act 1900 (maximum penalty imprisonment for 6 years).

4 His Honour passed the following sentences:

Offence (1) – 1972/3 assault with attempted carnal knowledge of KG, a term of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 3 months commencing 5 March 2008 and expiring 4 June 2011 with a balance of term of 2 years expiring 4 June 2013.

Offence (2) – 1973/4 assault with attempted carnal knowledge of KG, a term of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 3 months commencing 5 March 2008 and expiring 4 June 2011 with a balance of term of 2 years expiring 4 June 2013.

Offence (3) – 1974/5 indecent assault of KG, a term of imprisonment of 2 years with a non-parole period of 1 year and 6 months commencing 5 March 2008 and expiring 4 September 2009 with a balance of term of 6 months expiring 4 March 2010.

Offence (4) – 1973/6 indecent assault of KG, imprisonment for 2 years with a non-parole period of 1 year and 6 months commencing 5 March 2008 and expiring 4 September 2009 with a balance of term of 6 months expiring 4 March 2010.

Offence (5) – 1980/1 indecent assault of HG, imprisonment for 3 years with a non-parole period of 2 years commencing 5 March 2008 and expiring 4 March 2010 with a balance of term of 1 year expiring 4 March 2011.

Offence (6) – 1982/5 indecent assault of HG, a term of imprisonment of 3 years with a non-parole period of 2 years commencing 5 March 2008 and expiring 4 March 2010 with a balance of term of 1 year expiring 4 March 2011.

5 The overall sentence imposed on the applicant was imprisonment for 5 years and 3 months with a non-parole period of 3 years and 3 months. All sentences were made entirely concurrent commencing on the same day, 5 March 2008.

6 The applicant pleaded guilty to these offences. The applicant seeks leave to appeal from the severity of this sentence.

Factual background

7 The applicant is the uncle of the two victims who were the daughters of his sister. The first victim, K, was born in November 1966. The second, H, was born in July 1973. The offences occurred between 1972 and 1982 in the Shoalhaven area.

8 In relation to offence (1), in 1972/3 K was about six years old and the applicant was 19-20 years of age. The applicant used to visit K’s parents.

9 On one occasion the applicant removed K’s bikini bottom and took off his trousers. Having placed saliva on his penis, he lay over the top of K and put his penis in between the lips of her vagina. He moved his penis, which was erect, up and down. He pressed very hard in an attempt to get his penis into K’s vagina without success. It hurt her. The applicant did this for a period of time before kneeling. He then commenced to masturbate and ejaculated onto the ground while K lay in between his legs. He afterwards told K to keep it a secret. He said “Don’t tell anybody”.

10 In relation to offence (2), in 1973/4 when K was aged between seven and eight, the applicant took her eeling in a creek near the house during the day. He then proceeded to act in the same way as recounted in respect of offence (1).

11 In relation to offence (3), between January 1974 and December 1975 when K was aged between eight and nine, the applicant took her and her younger brother fox hunting. They walked through the paddocks from the house into a hay barn. The applicant rubbed saliva on the tip of his penis, rubbed his penis up and down K’s vaginal area before masturbating and ejaculating. He then told her younger brother, who was aged six or seven years, to lie on top of his sister and move his bottom up and down. At the time the younger brother was naked from the waist down. Afterwards the applicant told the children not to say anything to their mother or father and gave them money.

12 In relation to offence (4), between January 1973 and 31 December 1976 when K was aged between seven and ten years of age, she went to her grandparents where the applicant was staying. When she was in the applicant’s room he showed her a number of pornographic magazines. While K was lying on the bed, the applicant rubbed saliva onto his penis before rubbing his penis up and down her vaginal area.

13 These offences represent a course of conduct that continued until K was aged thirteen or fourteen. After most incidents, the applicant told K “Now don’t forget, this is our secret”. The applicant also told her that if anything was asked she was to say that her father does it to her. The appellant said that her mother knew what he was doing to her. The applicant used to give K chocolates to encourage the friendship.

14 In relation to offence (5), the second victim, H, was the younger sister of K. Between 1980 and 1981 while H was aged between seven and eight she went to visit her grandparents. She and her cousins were playing hide and seek. She hid in the applicant’s bedroom. The applicant told H to lie on his bed at which time he pushed H’s underpants to one side and exposed his penis. The applicant rubbed his penis against the opening of H’s vagina and upwards towards her clitoral region. There was no penetration or ejaculation. H then left the room.

15 In relation to offence (6), between 1 January 1982 and 31 December 1985 when H was aged between nine and twelve, she went to visit her grandparents. The applicant entered her bedroom as she was about to go to bed. He offered H $20 if he could touch her. The applicant reached under the bedcovers and fondled H’s vaginal region with his hand for a short time. He then left the room.

16 In 2001 H flew to Broken Hill and confronted the applicant. The applicant said:

“Like I told your sister, if you want me to go to gaol I know what I have done and it was wrong. I am wrong, I am guilty.”

He then said he was in an unhappy marriage and that there were reasons why he did what he did.

17 In February 2006 he was driving with his sister and others in Broken Hill. His sister said:

“Why did you touch my girls?” He said “I’ll tell you the truth, it’s a pay back on G. G used to touch me.”

G was the father of the two victims. In March 2007 the applicant again said “The reason I did what I did was because it happened to me. I was raped”.

18 In July 2007 listening devices were approved and various conversations were recorded. Again the applicant admitted what he had done. He was asked why he did it so many times and he replied “for sexual needs”. He said that he did it in revenge for being abused by G when he was fourteen years old. It should be noted that there was no evidence supporting the allegations about G made by the applicant.

19 The applicant was subsequently arrested and pleaded guilty to the charges.

Remarks on sentence

20 The applicant did not give evidence in the sentence proceedings. His Honour noted that the applicant had spent 15 days in custody and said that he would take that into account when sentencing him. His Honour found that the applicant had pleaded guilty at the first available opportunity and was accordingly entitled to a 25 percent discount for the utilitarian value of his plea.

21 At the time of sentencing, the applicant was 54 years of age and had only a minor criminal record. The applicant was 19 - 20 years of age when he first offended and was aged about 32 at the time of his last offence. There was as a result an extensive delay between the offences and the complaints.

22 His Honour stressed the seriousness of these offences and observed that had the applicant committed these offences in recent years, he would have been facing a maximum penalty of imprisonment for 25 years. However, his Honour accepted that he was required to sentence the applicant as though he was passing sentence for these offences in the 1970’s and 1980’s.

23 His Honour pointed out that no statistics were placed before him to indicate what sentencing practices were during the 1970’s and 1980’s for offences of this kind. Accordingly, in determining what sentences were appropriate his Honour took into account the maximum penalty for the offences and those other matters which he would normally take into account when sentencing, i.e. the objective factors relating to the offences and subjective matters relating to the applicant. This approach was consistent with R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534.

24 Although his Honour acknowledged the substantial delay which had occurred between the commission of the offences and sentencing, he determined to give that little weight. This was because it was the applicant who had largely contributed to the delay by telling the victims that they were not to say anything. Being young children, the victims complied with that direction.

25 Subjectively, his Honour noted that the applicant had children of his own and for a number of years had apparently been a good father. He had managed to raise his children despite financial hardship. His Honour took into account that there had been some expressions of remorse. His Honour took into account as a matter of aggravation the position of trust which the applicant held as uncle of the victims.

26 His Honour assessed the offences as objectively serious since as a 19-20 year old the applicant would have known that his actions towards the victims would cause serious problems for them in later life. Nevertheless, he continued offending primarily for motives of sexual pleasure and revenge. His Honour treated the revenge motivation as an aggravating factor in that the appellant sought to injure somebody else by committing offences against innocent young victims.

27 His Honour rejected the submission that the applicant be given a suspended sentence. His Honour regarded the offences as so serious that only a custodial sentence would be appropriate.

28 His Honour found special circumstances in favour of the applicant. His reasons were the applicant’s age, that he had not served a term of imprisonment before and that serving a term of imprisonment for these types of offences would result in him having to go into protective custody.

29 In his final remarks before passing sentence, his Honour said:

“The two most serious charges are obviously charges (1) and (2). They carry the highest penalty. If I were sentencing him today I would be sentencing him to much greater terms of imprisonment than I am going to, I am restricted by the maximum penalty available at the time.”

30 His Honour’s start point for the head sentence was 7 years, which he reduced by 25 percent, to allow for the discount to which the applicant was entitled as a result of his early plea of guilty.

Appeal

31 The applicant relied upon one ground of appeal:

“The non-parole period is manifestly excessive when regard is had to sentencing practice at the time of the offences.”

32 The applicant submitted that at the time when the offences were committed, the statutory regimes in relation to parole were the Parole of Prisoners Act 1966 and the Probation and Parole Act 1983. In neither of those Acts was there any statutory ratio prescribed between the head sentence and the non-parole period. It was only when the Sentencing Act 1989 was passed that a statutory proportion was prescribed.

33 The applicant submitted that this Court in AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 at [36] – [39], and Bradburyv R [2008] NSWCCA 93 at [36] had accepted that non-parole periods imposed under the Parole of Prisoners Act 1966 were customarily between one-third and one-half of the head sentence and that this practice ought be recognised when sentencing offenders whose offences occurred during the currency of that Act. It was common ground that the non-parole period imposed on the applicant in relation to the two most serious offences was 62 percent of the overall head sentence. In that regard his Honour had found special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 and had varied the statutory ratio.

34 The applicant accepted that in the sentence proceedings, his Honour had not been referred to recent authority in this Court relating to the relevant statutory regime at the time and in particular, his Honour had not been referred to AJB v R.

35 The applicant relied upon the following extract from the judgment of Howie J in AJB where his Honour said:

“37 It seems to me that this Court should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant. It can do so on the basis that special circumstances under s 44 are to be found in the fact that there was a different sentencing practice in relation to fixing a non-parole period in 1982 which did not require a finding of special circumstances in order to avoid a statutory relationship between the non-parole period and the balance of the term. In Tatana v R [2006] NSWCCA 398 it was held that special circumstances could be found in order to overcome unfair disparity between co-offenders that would arise from “a too literal application of conventional sentencing principles and the requirements of s 44”. It is consistent with that approach to find special circumstances in the present case in order to avoid unfairness that would arise by reason of the delay in the prosecution of the current charges as a result of a change in the law in relation to the determination of the appropriate non-parole period.”

36 The applicant submitted that this approach had been followed by this Court in a number of recent decisions: CPW v R [2009] NSWCCA 105; GRD v R [2009] NSWCCA 149 and PH v R [2009] NSWCCA 161. The applicant did not submit that the head sentence was excessive or that it should be reduced. The applicant’s submission related solely to the ratio between the non-parole period and the head sentence. He submitted that in accordance with authority, that ratio should be between one-third and one-half of the head sentence. In this case that would produce a range for the non-parole period of between 1 year and 9 months and 2 years and 7 months.

37 In further support of his submission, the applicant submitted that the non-parole period should be adjusted downwards because the principle of general deterrence in the circumstances of this case where the offences had occurred many years before, would have “little application in the light of the delay and the applicant’s reform”.

Consideration

38 I do not accept the proposition that general deterrence has little application to the facts of this matter. In AJB the applicant had no criminal record, there was evidence from psychiatrists that he was suffering from chronic symptoms of depression at the time of the offending and when his offending was brought to light, he had sought treatment and was regarded by the doctors as completely reformed. In those circumstances, it was not appropriate to make an example of him to others.

39 In PH v R, where this issue was discussed by Howie J, the applicant was 73 years of age at the time he was sentenced and had serious health issues. Even in that circumstance general deterrence had some part to play. Howie J, with whom Grove and Hulme JJ agreed, said at [32]:

“In AJB I indicated that, at least in relation to that applicant, general deterrence was of less significance than it might otherwise be because of the period between the offending and the imposition of sentence and because of his reform over that period. I believe that this will generally be the case where, as in both AJB and the present case, a considerable period of time has passed between the offending and the sentencing and where over that period there have been no further offences. This is not to imply that general deterrence is of no significance in such cases. Potential offenders should understand that the Courts will treat these types of offences harshly notwithstanding that extensive delay occurs before the offender is punished. But, as was recognized in Holyoak , the need for general deterrence must be considered in light of the effect of the sentence of imprisonment upon the offender and the implication of that sentence upon his prospects for release.”

40 It seems to me that apart from the fact of delay, the applicant in these proceedings lacks the matters to which Howie J referred in PH v R and that general deterrence does have a part to play in the sentencing process. This is particularly so where the period of the applicant’s offending spans some 10 to 13 years and involved two victims. Moreover, the reasons put forward for his offending, being a combination of sexual needs and revenge by proxy, support the proposition that general deterrence remained important in this case.

41 The primary proposition put forward on behalf of the applicant is undoubtedly correct. It has now been accepted by this Court in a number of cases that in relation to offences which occurred during 1970’s and 1980’s, with the absence of any statutory restriction on the length of a non-parole period, a sentencing practice had arisen of setting the non-parole periods at somewhere between one third and one half of the term of the sentence (MJL v R [2007] NSWCCA 261; Featherstone v R [2008] NSWCCA 71; CPW v R [2009] NSWCCA 105; GRD v R [2009] NSWCCA 149 and PH v R [2009] NSWCCA 161). All these cases have referred with approval to the passages in AJB v R relied upon by the applicant.

42 It is clear that a matter which his Honour should have taken into account when sentencing the applicant for these offences which occurred between 1972 and 1985 was this practice. That practice should have been reflected in the sentences which he passed. In saying that, I do not wish to be critical of his Honour since neither the relevant cases nor this practice was brought to his attention.

43 This, however, does not end the matter. It is not simply a process of adjusting the sentences passed by his Honour to reflect that practice. Other considerations need to be kept in mind.

44 During the course of argument, the Court pointed out that in a number of respects the sentences passed by his Honour significantly favoured the applicant.

45 There was a clear failure on the part of his Honour to apply Pearce v The Queen [1998] 194 CLR 610 at 624 where McHugh, Hayne and Callinan JJ said:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

46 In Cahyadi v R (2007) 168 A Crim R 41 Howie J restated the factors informing considerations of concurrency and cumulation as follows:

“(27) In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: Can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

47 In his remarks on sentence, his Honour provided no reason why all six sentences were to be served concurrently. On the facts of this case it is difficult to see any rational justification for such an approach. On the contrary, the seriousness of the conduct in offences (1) and (2) and their separation in point of time demanded some level of cumulation. Similarly, the involvement of a separate victim in offences (5) and (6) also required some cumulation.

48 The approach adopted by his Honour significantly favoured the applicant and involved considerable leniency.

49 In response to those matters, the applicant submitted that this leniency would be off set by the application of the principle of totality. I have difficulty in understanding this submission. Implicit in it is the proposition that by partially accumulating some of the sentences, the end result would in some fashion be excessive or unfair. I do not agree. A proper application of the principles of proportionality and totality to the offending conduct in this case, even allowing for the lower maximum sentences applying during the 1970’s and 1980’s, would have inevitably resulted in sentences greater than those passed by his Honour.

50 The question before the Court is whether it should intervene to adjust his Honour’s sentences to reduce the non-parole period so as to reflect the sentencing practice in the 1970’s and 1980’s in circumstances where the sentence actually passed already significantly favours the applicant. In my opinion, the Court should not so intervene.

51 Section 6(3) of the Criminal Appeal Act 1912 provides:

“(3) On an appeal under s 5(1) against a sentence, the Court, if it is of the opinion that some other sentence whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal.”

52 Assistance is provided in the interpretation of that section by R v Simpson (2001) 53 NSWLR 704:

“[79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: “If it is of the opinion that error has occurred in the sentencing process”. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that “some other sentence … is warranted in law and should have been passed”. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to “quash the sentence and pass such other sentence in substitution therefore” is not satisfied.”

53 Further elucidation of s 6(3) is provided in Baxter v R [2007] NSWCCA 237 where Spigelman CJ said:

“[17] The words “warranted in law” in s6(3) do not refer only to the situation in which a sentence actually passed was outside the permissible range. That would focus attention only on the time of the original sentence and the reasoning process of the sentencing judge. For the reasons I have identified above, the dual reference to the present tense reinforces the express reference to the “opinion” of the Court of Criminal Appeal to emphasise that it is the appellate court that is making a judgment as to whether or not the sentence actually passed was “warranted in law”. The subsection is not directed to answering the question as to whether or not the particular sentence was warranted in law from the perspective of the original sentencing judge alone.

[18] In these circumstances the phrase “warranted in law” should be understood as a reference to the entire body of legal rules that inform the exercise of a sentencing discretion, i.e. both statutory requirements and sentencing principles developed at common law.

[19] The import of par [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides.”

Conclusion

54 Applying those principles, I am not satisfied that some lesser sentence is warranted in law and should have been passed by his Honour.

55 The orders which I propose are as follows:

(1) Leave to appeal against sentence is granted.

(2) The appeal is dismissed.

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