MPB v R
[2013] NSWCCA 213
•19 September 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: MPB v R [2013] NSWCCA 213 Hearing dates: 25/06/2013 Decision date: 19 September 2013 Jurisdiction: Criminal Before: Basten JA at [1];
R A Hulme J at [38];
Garling J at [39];Decision: (1) Grant leave to appeal.
(2) Set aside each of the sentences imposed by Delaney DCJ on 31 May 2012
(3) In lieu of those sentences, the applicant is to be sentenced as follows:
Count 1: A fixed term of imprisonment of 6 months, commencing on 18 January 2011 and finishing on 17 July 2011.
Count 2: A fixed term of imprisonment of 6 months, commencing on 18 January 2011 and finishing on 17 July 2011.
Count 3: A fixed term of imprisonment of 9 months, commencing on 18 April 2011 and finishing on 17 January 2012.
Count 4: A fixed term of imprisonment of 9 months, commencing on 18 April 2011 and finishing on 17 January 2012.
Count 5: A fixed term of imprisonment of 2 years, commencing on 18 October 2011 and finishing on 17 October 2013.
Count 6: A fixed term of imprisonment of 2 years and 6 months, commencing on 18 October 2011 and finishing on 17 April 2014.
Count 7: A total term of imprisonment of 6 years and 6 months, commencing on 18 October 2011 with a non-parole period of 3 years 6 months.
The first date upon which the applicant will become eligible to be released on parole is 17 April 2015.
Catchwords: CRIMINAL LAW - leave to appeal against sentence - old child sex offences - whether sentences were manifestly excessive having regard to sentencing patterns at time of offence - sentence on standards at the time of commission of offence - whether established pattern of sentencing for child sexual assault offences in 1970's - long delay between commission of offence and conviction - whether regard was had to the spectrum of criminality encompassed by the offences in sentence - whether error in application of discount for guilty pleas - whether error in concurrent sentences to reflect the totality of criminality of offences. Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Amendment) Act 1950 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Crimes Act 1900 (NSW)
Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Interpretation Act 1987 (NSW)
Parole of Prisoners Act 1966 (NSW)
Prisons Regulations 1968 (NSW)
Probation and Parole Act 1983 (NSW)
Sentencing Act 1989 (NSW)Cases Cited: AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32
BP v R; R v BP [2010] NSWCCA 303
Byrne v Garrisson [1965] VR 523
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Featherstone v R [2008] NSWCCA 71; (2008) 183 A Crim R 540
Franklin v R [2013] NSWCCA 122
GRD v R [2009] NSWCCA 149
Herron v McGregor (1986) 6 NSWLR 246
Longman v The Queen (1989) 168 CLR 79
Magnuson v R [2013] NSWCCA 50
MJL v R [2007] NSWCCA 261
Nelson v R [2007] NSWCCA 221
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Baxter (NSWCCA, unreported, 25 May 1994)
R v Ellis (1986) 6 NSWLR 603
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Jarrold [2010] NSWCCA 69
R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340
R v Mark O'Sullivan (NSWCCA, unreported, 22 October 1989)
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497
R v Morton [1986] VR 863
R v PLV [2001] NSWCCA 282; 51 NSWLR 736
R v Shore (1992) 66 A Crim R 37
R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Windle [2012] NSWCCA 222
Radenkovic v The Queen [1990] HCA 54; 170 CLR 623
Rosenstrauss v R [2012] NSWCCA 25
Ryan v R [2001] HCA 21; (2001) 206 CLR 267
Samuels v Songaila (1977) 16 SASR 397
The Queen v Paivinen [1985] HCA 39; 158 CLR 489
The Queen v Watt [1988] HCA 58; 165 CLR 474
Vuni v R [2006] NSWCCA 171Category: Principal judgment Parties: MPB (Applicant)
The Crown (Respondent)Representation: Counsel:
G Bashir (Applicant)
T Smith (Crown)
Solicitors:
Legal Aid Indictable Appeals (Applicant)
Director of Public Prosecutions (Crown)
File Number(s): 2011/17181 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2012-06-25 00:00:00
- Before:
- Delaney DCJ
Judgment
BASTEN JA: The applicant is now 73 years of age. He pleaded guilty to seven counts of sexual assault, the victims being his daughter (in respect of counts 1-4) and his grand-daughter (in respect of counts 5-7). He is not identified by name because to do so would allow the ready identification of the victims who were under 16 years of age at the time of the offences.
The applicant was sentenced at Campbelltown District Court on 31 May 2012, almost 40 years after the offences which constituted counts 1 and 2. The case therefore raises in stark form the difficult issues which attend the imposition of a sentence for an offence which occurred several decades ago. For reasons which will be explained, the proper approach to such matters has not been systematically and coherently addressed by the Court in past cases and, for that reason alone, there should be a grant of leave to appeal.
The matters also give rise to a second issue, namely the scope and nature of an appeal against sentence under s 5(1) of the Criminal Appeal Act 1912 (NSW). In particular, the parties sought to place material before this Court which was not before the sentencing judge, in effect inviting this Court to re-sentence on the basis of more extensive information as to past sentencing practices in respect of relevant offences. The correct approach to such material has not been dealt with on a consistent basis in the past and provides a further reason for a grant of leave to appeal. In the event, it is not necessary to address this issue because the further information was not of a kind that is relevant to the sentencing exercise.
Old offences - past "sentencing patterns and practices"
In a case in which the law had changed between the date when an offender was originally sentenced and the time at which he came up for re-sentencing following a successful appeal, the High Court has held that "considerations of justice and equity ordinarily require that the convicted person be re-sentenced according to the law as it stood at the time when he was initially sentenced": Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 at 632 (Mason CJ and McHugh J). In R v Shore (1992) 66 A Crim R 37, that principle was extended to the benefit of an offender who had been arrested in August 1974, absconded whilst on bail and re-arrested in November 1990, to be extradited to Australia. In this Court, Badgery-Parker J (Mahoney JA and Hunt CJ at CL agreeing) said that a sentence should be imposed "appropriate not only to then applicable statutory maxima but also to then appropriate sentencing patterns": at p 42.
The circumstances of these cases were far removed from that which arises in the present case, namely a lengthy delay in the victim reporting the offences to police. An early case of that kind was R v PLV [2001] NSWCCA 282; 51 NSWLR 736. The offender was the brother of the victim; there was a lapse of more than 20 years from the time of the offending to the time of complaint. Spigelman CJ (Simpson J agreeing) rejected a submission that the sentence imposed should have been no "harsher" than that which would have been imposed had the offender been convicted 20 years earlier: at [94].
Smart AJ took a somewhat different approach:
"[105] Even though the judge was imposing a sentence in May 2000 he was required to assess the applicant's criminality as at the date of the commission of the offence in 1974. That means taking into account the applicant's subjective features as at that date. ...
[106] While I would not regard it as decisive I would take into account the sentence which would have been imposed for the offence in 1974 or 1975. The weight to be attached to that factor, if any, will depend upon the circumstances including the mitigating factors which emerge. This is of some importance where legislation governing the offence has been repealed. ...
[110] In the present case the judge's approach to sentence was correct in that he assessed the applicant's criminality at the time of the offence and then took into account the applicant's subjective features existing at 1974 and today."
The Court in PLV had not been referred to the earlier decision, R v Shore, in which a different approach had been adopted. When the apparent disparity in approach was identified, a five judge bench was constituted: see R v MJR [2002] NSWCCA 129; 54 NSWLR 368. The principal judgment in MJR was given by Spigelman CJ, with whom Grove and Sully JJ and Newman AJ agreed, reluctantly disavowing the approach adopted in PLV, in favour of that taken in Shore: at [71] (Grove J) and [103] (Sully J, with whom Newman AJ agreed). Mason P dissented, preferring the approach adopted in PLV and seeing no reason not to adopt it. Apart from his acceptance of the prior authority, the Chief Justice placed some weight upon the statutory provision that increases in penalty would only apply to offences committed after the commencement of the provision, while reductions in penalty would extend to offences committed before the commencement of the provision: Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 19. After referring to the Victorian decision of R v Morton [1986] VR 863, he continued:
"[22] ...in that case, the court applied a new statutory provision which required the court to take into account a plea of guilty when fixing a sentence, which applied in circumstances in which the pre-existing sentencing practice of the court would not have given credit for the plea.
[23] Although phrased in the language of statutory interpretation and the application of the presumption against retrospectivity, as was appropriate to the issues before the courts, the approach reflected in these decisions may be equally appropriate for the consideration of the effect of a change in sentencing practice by the courts."
After further consideration of authority, including the principle adopted in Radenkovic, Spigelman CJ concluded at [31]:
"Similarly, I am now satisfied, after assessing the above authorities, that it is, "out of keeping" with the provisions of s19 of the Crimes (Sentencing Procedure) Act 1999, for this Court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender. Accordingly, the view I expressed in R v PLV was incorrect."
The language of "sentencing practice" and "sentencing pattern" has acquired a currency of its own: see AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32 at [31] (Howie J distinguishing "sentencing practices" from "executive practices" with respect to remission); and at [39] (referring to fixing of non-parole periods); Rosenstrauss v R [2012] NSWCCA 25 at [7]-[9] (in my judgment) and Magnuson v R [2013] NSWCCA 50 at [84]-[88] (Button J, McClellan CJ at CL and Bellew J agreeing). This language is, however, imprecise and covers a range of considerations and a range of sources. Thus, with respect to sources, the statements would appear to cover:
(a) statutory provisions;
(b) general law principles and underlying policies, and
(c) practices (that is, application of principles) as revealed by outcomes.
With respect to the subject matter covered, this would include:
(a) prescribed penalties (including maxima);
(b) methods of proceeding (including the fixing of non-parole periods);
(c) factors to be taken into account, and
(d) facts as found.
Where there is a statutory provision in place, the question will, inevitably, be one of statutory interpretation. So far as maximum penalties are concerned, that factor, at least for the period since the commencement of the Sentencing Procedure Act, will be governed by s 19, to which reference has been made and which gave statutory effect to the general law principle based on a presumption against adverse effects operating retrospectively, as explained in Samuels v Songaila (1977) 16 SASR 397. Further, it is uncontroversial that a person may be charged in accordance with the substantive law in force at the time of the offending, even if later repealed: Interpretation Act 1987 (NSW), s 30(1); Byrne v Garrisson [1965] VR 523 (Gowans J).
It follows that the sentencing judge must sentence according to the penalties available at the time of the offending, taking into account the range of conduct covered by the offence. The latter point is a matter of some importance in cases involving sexual assaults, such as the present. Section 76 of the Crimes Act 1900 (NSW), as in force in 1972, covered a far greater range of offending than any present equivalent provision. Accordingly, it is necessary to identify the most serious kinds of offence in order to determine where, on the range of available penalties, the applicant's offences fall. If the old provision covered conduct significantly more serious than that to which the offender has pleaded, the maximum penalty will be less relevant as a guide than would otherwise be the case.
What has not been fully considered to date, is the potential operation of other statutory provisions. Thus, in AJB and in Rosenstrauss, it was accepted that, in order to give effect to "sentencing practices" at the time of the offences, it would be appropriate to set a non-parole period of less than half the head sentence. Similarly, in Magnusson, it appears to have been assumed that s 21A of the Sentencing Procedure Act was to be applied in sentencing for offences which pre-dated the commencement of the Act. These assumptions depend upon the operation of the Sentencing Procedure Act, subject to the operation of the transitional provisions in Schedule 2 of the Act.
In relation to facts, Smart AJ in PLV appeared to assume that the sentencing judge should take account of factual circumstances both at the date of offending and at the date of sentencing. In practice, however, that approach is fraught with difficulty. In PLV, there was no evidence of subsequent offending: thus, at the time of sentencing, it could readily be accepted that personal deterrence was a factor of very little weight. Whether that could have been said at the time of the offence for which the applicant had been convicted was, as Smart AJ expressly noted, almost impossible to know. In the present case, the point is live and of significance: when sentencing the applicant for the first offences, should the sentencing judge have limited his consideration to the facts known shortly after the offending, or should he have taken into account the history of subsequent offending?
There is also the difficulty, adverted to by Spigelman CJ in MJR, of identifying how general law principles were to be identified and their application assessed at a distant point in time. On the one hand, it may be expected that general principles will not have changed greatly. One example of change, however, is the attitude towards pleas of guilty. Thus, some recent cases have referred to R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 as identifying the discount for a plea of guilty, although it post-dated the conduct in question by decades.
At a more abstract level, Spigelman CJ stated in MJR at [26] that "a change in sentencing practice would require the Court to take into account the new practice even when sentencing for an offence that occurred many years before, e.g., an increased emphasis on general deterrence because of prevalence". When and in what circumstances that might be so was not addressed.
Attitudes towards offences and practices, as reflected in the application of general principles, can often be sought only in isolated reported authorities, statistics and the memory of the judge. All of these sources are suspect in different ways. Although in PLV Smart AJ (in dissent) accepted that reliance on memory, if available, was appropriate (at [107]-[108]), it would be anathema to the consistent application of legal principle if one offender were to obtain the benefit of a judge's experience and recollection that earlier sentences were more lenient, whereas another offender would not because another judge had no such experience or recollection.
There is a further difficulty, illustrated by the present case. To the extent that material is available which conveys in objectively assessable terms the practices and patterns of sentencing in prior times, it is often difficult to obtain and not readily available to solicitors and counsel appearing at first instance. One result is that the material is only made available in this Court, a matter which will be addressed below. The lack of readily available material is itself a factor which militates against requiring (or permitting) an overly sophisticated analysis of past practices.
The appropriate resolution of these difficulties is to give primary attention to the range of penalties available (usually a maximum term of imprisonment) and the conduct to which such penalties applied at the date of the offence, in order to assess objectively where, on a broad scale, such offending was likely to fall. These are matters to be determined by reference to the statutory provisions.
Non-parole periods
In relation to non-parole periods, the first step must be to identify the statutory provision under which a non-parole period is to be fixed. A formal system of recommendations for "parole" was first provided in this State by the Crimes (Amendment) Act 1950 (NSW), which established a Parole Board to give advice to the Minister as to prisoners who should be given a "written license to be at large": Crimes Act, s 464A. The first provision for specifying a "non-parole period" is to be found in the Parole of Prisoners Act 1966 (NSW) ("the 1966 Act"), s 4(2). That legislation remained in force until repealed by the Probation and Parole Act 1983 (NSW) ("the 1983 Act"). Accordingly, it was the 1966 Act which was in force at the time when the applicant committed his first offences.
The power of the new Board (created under the 1983 Act) to release a prisoner on parole extended to periods specified under earlier legislation and deemed to be "non-parole periods" by the savings and transitional provisions: the 1983 Act, Schedule 3, cll 2(1), 4 and 5. The 1983 Act empowered a court to specify a non-parole period when sentencing an offender on or after the date of commencement of that Act, namely 27 February 1984, irrespective of when the person had been convicted and, therefore, when the offence was committed. That Act and the Regulation made under it were repealed by the Sentencing Act 1989 (NSW) ("the 1989 Act"), s 56. Thereafter, an offender sentenced to imprisonment was sentenced to a "minimum term" and an "additional term": s 5(1). For the first time, a relationship was presumptively established, so that the additional term "must not exceed one-third of the minimum term, unless the Court decides there are special circumstances": the 1989 Act, s 5(2).
Various supplementary procedural steps were required, which have continued, despite other changes in the statutory regime, to the present time. For example, when fixing a minimum term, the court was required to "specify the day on which the term commences or commenced and the day on which the prisoner will be eligible to be released from prison or on parole": the 1989 Act, s 8(1). The Act provided that the minimum and additional terms must not exceed the maximum period of imprisonment available for the offence, nor be less than the minimum period: the 1989 Act, s 10. Prisoners could, thereafter, only be released on parole "in accordance with" the 1989 Act: s 14(1). A prisoner was only eligible for release on parole if serving a sentence of imprisonment that had "a minimum term" and had served that term: s 14(2). It was clear from the savings and transitional provisions that the new sentencing provisions applied to persons sentenced after the commencement of the relevant Part: Schedule 2, cl 8. Existing sentences were "translated" into sentences consisting of a "minimum term" and "an additional term": Schedule 2, cl 5. It would have been inconsistent with the scheme of the 1989 Act for an offender to be sentenced in accordance with repealed legislation, after the commencement of the 1989 Act.
It will be necessary to return in due course to the major change in the operation of the parole system effected by the 1989 Act, which was characterised as "truth-in-sentencing" and involved the abolition of remissions. First, it is necessary to note the repeal of the 1989 Act by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), which gave effect to the Sentencing Procedure Act. Thereafter, the language of "minimum term" and "additional term" was abandoned, and, pursuant to the new legislative scheme, the court was required "firstly, to set the term of the sentence" and, "secondly, to set a non-parole period for the sentence": s 44(1). The relationship between the non-parole period and the term of the sentence was maintained but expressed so that the "non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less": s 44(2). There was, therefore, no change in the standard proportionate relationship of the non-parole period and the term of the sentence. From the commencement of the 1999 legislation, parole was granted pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW).
The savings, transitional and other provisions in Schedule 2 of the Sentencing Procedure Act, stated that a "minimum term" fixed under the 1989 Act was taken to be a "non-parole period" determined under the Sentencing Procedure Act: Schedule 2, cl 19.
Before leaving the legislative history in relation to sentencing, it is necessary to identify the consequences of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) ("the 2002 Amendment Act"). That Act had three consequences presently relevant: first, it inserted a new s 3A in the Sentencing Procedure Act identifying the "purposes of sentencing". Secondly, it replaced s 21A dealing with "aggravating, mitigating and other factors in sentencing". Thirdly, it replaced s 44, so that that section now requires the court first to set a non-parole period and then to fix the "balance of the term of the sentence". The transitional provisions in relation to the new s 44 provide that the amendments "do not apply to offences committed before the commencement of the amendments": Schedule 2, Part 7, cl 45(1). (There are exceptions to this principle, but they do not include s 44.) The reason for this provision is by no means clear: the new s 44 would not appear to be adverse to the interests of offenders in such a way as to render retrospective effect inappropriate. Further, the change can have no relevant consequence with respect to an offence committed before the 1989 Act, or at least the 1983 Act. Nevertheless, the result appears to be that it is the repealed s 44 which must be applied in the present case.
Effect of remissions
It is now necessary to return to the real issue with respect to the fixing of a non-parole period. As explained in Rosenstrauss, by reference to the history given in R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340, the fixing of non-parole periods prior to the 1989 Act was heavily influenced by the remission system provided by the Prisons Regulations 1968 (NSW). A first offender was entitled to "ordinary" remission of one-third of the sentence period, which, together with "earned" and "special" remissions, could lead to a reduction of almost half the sentence. (Offenders who had been subject to earlier periods of imprisonment for three months or more were entitled to "ordinary" remission of one-quarter of the sentence.) The result was that, at least for first offenders, an effective non-parole period was usually in the range of one-third to one-half of the sentence, so as to allow a period of supervised release.
From 1984, pursuant to the Probation and Parole Regulation 1984, remissions also applied to the non-parole period, so that proportionate reductions occurred to both the non-parole period and the head sentence. Thereafter, a non-parole period could be fixed without the need to make allowance for the likely reduction in the head sentence by way of remissions. (The position was later complicated by the conferral on the sentencing judge of a power to order that a period of imprisonment not be subject to some or any remissions which would have the effect of reducing the term of the non-parole period: 1983 Act, s 21A.) The proper course for a sentencing judge to take before there was power to interfere with the operation of the remission system was discussed in numerous cases, including, in the High Court, Power v The Queen [1974] HCA 26; 131 CLR 623 and The Queen v Paivinen [1985] HCA 39; 158 CLR 489. In a later case, dealing with s 21A, The Queen v Watt [1988] HCA 58; 165 CLR 474, Brennan J described the position of the sentencing judge absent such a power in the following terms, at 483-484:
"As the sentencing judge was powerless to prevent a reduction in the non-parole period by remissions and constrained to ignore the possibility or likelihood of the reduction, the specification of a non-parole period became a solemn charade. The sentencing judge, true to the direction given in Power, continued to specify a non-parole period which represented his view of the minimum period of detention which the crime called for, but the legislation denied practical effect to the order made."
If there were a cause for concern that sentencing judges would increase sentences to avoid the anticipated effect of remissions, once remissions were removed, there was cause for concern that there would be a countervailing reduction in sentences. This Court, consistently with the view it had taken that remissions should be ignored, held that it would be incorrect, after their abolition, to seek to restore their effect by reducing a sentence: Maclay at 120 and 125. Significantly for present purposes, in Maclay the offender relied on the unfairness caused by giving retrospective effect to the abolition of remissions. The Court summarised the argument and its response in the following passage at 126-127:
"The offences were committed in late 1986 and early 1987. If the appellant had been sentenced by Newton DCJ prior to 25 September 1989 he would have had a non-parole period of 15 months. The transitional provisions of the 1989 Act would have resulted in a minimum term approximately equal to 15 months less anticipated remissions. It was a matter of chance, or at least no fault of the appellant, that he had not been sentenced prior to 25 September 1989. Therefore, so the argument runs, leaving entirely to one side any more general principles relating to the new Act, in this particular case fairness required the approach suggested. ... The first difficulty with the argument is that it appears to create, between the general run of cases which will fall to be dealt with under the new legislation, and the particular cases covered by the transitional provisions of that legislation, an intermediate category of indeterminate extent. The Legislature has defined the cases to which the transitional provisions apply. The present is not such a case. Furthermore, it is extremely difficult to give practical content to the consideration of 'fairness' called in aid in support of the argument."
The Court admitted the possibility of exceptions to the rejection of that submission, but the example given was of a co-offender sentenced under the old system where principles of parity might require regard to be had to any reduction on account of remissions, so as to reduce the sentence of the offender sentenced after the legislation came into effect.
Maclay's case is authority for the proposition that offenders sentenced after the commencement of the 1989 Act, but for offences which had been committed prior to that date, were not to be sentenced so as to achieve equality with earlier periods of imprisonment. The purpose of the 1989 Act was to abandon the "solemn charade" of earlier years and to establish a new system of sentencing. It would be a curious exercise in statutory construction, and the application of precedent, if courts in 2013 were required in some way to reconstruct the likely sentencing practices which pre-dated the 1989 Act.
The legislative regime set out above is inconsistent with the proposition that a court sentencing after the commencement of the Sentencing Procedure Act has power to fix a non-parole period (however described) under any earlier legislation. Further, the legislative regime is inconsistent with a sentencing court now having power to disregard the statutory presumption as to the relationship between the non-parole period and the term of the sentence. On the other hand, no doubt a court exercising powers under current legislation would be entitled to treat the fact that the offending occurred many years ago, under a different regime, as a form of "special circumstances" which might warrant departure from the statutory proportion: cf AJB at [37] (Howie J, Adams and Price JJ agreeing) and MJL v R [2007] NSWCCA 261 at [27] (Hidden J, Campbell JA agreeing) and [42] (Smart AJ). It should not do so, however, to replicate perceived "patterns of sentencing" which pre-dated the 1989 Act.
Relevant facts
There remains the question of the relevant facts on which a sentence should be based. So far as old offences are concerned, it is obviously necessary to have regard to the circumstances of the offending and other aggravating and mitigating circumstances, personal to the offender and the specific offence, which would have been known to a sentencing judge before whom the offender would have come soon after the offences were committed. It is not necessary, however, to have regard to aspects of sentencing policy or social attitudes other than those revealed by the definition of the offending conduct and the range of penalties available at the time, as discussed above.
So far as subsequent conduct is to be taken into account, questions of deterrence and assessment of remorse and the likelihood of rehabilitation (and indeed whether rehabilitation has already occurred) must be assessed at the time of sentencing. Where an offender has led a subsequently blameless life, there is no reason why he or she should not obtain credit for that fact, even though it might not have been foreseen at the time of the original offending. In the case of an offender with subsequent offences, it would be artificial to sentence in temporal segments, that is, sentencing for each offence as though the subsequent offending had not occurred.
Conclusions as to principles
It follows that the correct approach to the fixing of the sentence involves the following steps:
(a) determine the facts as now available to the court;
(b) have regard to the maximum penalty in force at the time of the offending, as a guide to the range of punishment then available;
(c) identify where, within the range of offending conduct covered by the offence charged, the offence under consideration falls;
(d) fix the term of the sentence or sentences;
(d) determine whether special circumstances require that the relationship prescribed by s 44 be varied, and
(e) fix a non-parole period in accordance with s 44 of the Sentencing Procedure Act (as in force prior to the 2002 Amendment Act).
In accordance with that approach, it is neither necessary nor appropriate to have regard to the actual patterns or practices of sentencing which are now believed to have operated at the time of the offending, whether based on acceptable statistical evidence, cases or memory.
It follows that, the submission before this Court of additional material, including statistical and analytical material from 1981, should be rejected. On that basis, it is unnecessary to consider whether it would have been within the proper role of this Court to take such material into account for the purpose of re-sentencing the applicant, on the basis of material which was not before the sentencing judge, though that may be doubted.
Application of principles
On the facts of the present case, I agree with orders proposed by Garling J and, subject to the foregoing analysis, with his reasons.
R A HULME J: I agree with the reasoning of Garling J and with the orders he proposes.
GARLING J: On 31 May 2012, the applicant was sentenced to imprisonment for a total period of 5 years and 6 months without parole, with a balance of term of a further 3 years.
The total period of imprisonment resulted from the sentences which were imposed consequent upon a plea of guilty by the applicant to 7 counts on the indictment which was presented.
Set out below in tabular form, are the counts which he faced, together with the details of the terms of imprisonment which were imposed:
CT NO.
OFFENCE & YEAR
OFFENCE CREATING PROVISION / MAX PENALTY
HEAD SENTENCE / NPP
DATES
1
1972
Indecent assault female under 16 years
s. 76* / 5yr
* Crimes Act 1900 (NSW)
Fixed Term / 12 months
18 Jan 2011 - 17 Jan 2012
2
1972
Indecent assault female under 16 years
s. 76 / 5yr
Fixed Term / 12 months
18 Jan 2011- 17 Jan 2012
3
1977 - 1979
Indecent assault female under 16 years
s. 76 / 6yr**
**Increased in 1974
Fixed Term / 18 months
18 Jul 2011 - 17 Jan 2013
4
1977 - 1979
Indecent assault female under 16 years
s. 76 / 6yr
Fixed Term / 18 months
18 Jul 2011 - 17 Jan 203
5
Nov. 1997 - Aug. 2000
Indecent assault child under 10 years
s. 61M(2) / 10yr
Fixed Term / 2 years
18 Jan 2012 - 17 Jan 2014
6
Nov. 1997 - Aug. 2000
Indecent assault child under 10 years
s. 61M(2) / 10yr
Fixed Term / 2 ½ years
18 Jan 2012 - 17 Jul 2014
7
Nov. 1997 - Aug. 2000
Attempted sexual intercourse child under 10 years
s. 66B / 20yr
6 ½ years / 3 ½ years
18 Jan 2013 - 19 Jul 2019
On 22 April 2013, the applicant lodged a notice of Application for Leave to Appeal against the severity of his sentences.
Facts
A Statement of Agreed Facts was tendered to the sentencing judge. A brief summary of these facts is set out below.
There are some matters of general application. The applicant was born in May 1940 and accordingly, at the time of the sentence which was imposed, he was 72 years old. As a result of events in 2011, when he was working as a bus driver, the victims of his offending provided statements to the police.
On 18 January 2011, the applicant was arrested by police. Whilst at the Liverpool Police Station, he took part in an electronically recorded interview during which he made a number of admissions.
After he was charged, he was remanded in custody and has remained in custody ever since.
A brief summary of the facts of each individual count is necessary. As will be apparent, Counts 1 to 4 describe the applicant's conduct in which the victim was his daughter. Counts 5 to 7 describe the applicant's conduct in which the victim was his grand-daughter.
Count 1
In 1972, the applicant, with his wife and children, was living at their home in Picton. In the latter part of 1972, the applicant told his daughter to follow him into his bedroom at the family house. Once inside the bedroom, the applicant lay down on the bed and told his daughter to stand beside the bed. At that time, his daughter, who was seven years old, was naked. She was told by the applicant to play with his penis. The applicant took his daughter's hand, placed it on his penis and began to move her hand up and down his penis, whereupon it became erect.
This conduct constituted the offence in Count 1.
Count 2
At the same time, and in the same circumstances, after the conduct which constituted Count 1, the applicant told his daughter to suck his penis like a lollipop. He then placed his hand on the back of her head and moved her head down towards his penis.
His daughter resisted slightly, and before any contact with his penis was made, the applicant stopped what he was doing.
This conduct constituted Count 2.
Count 3
The events covered by Count 3 occurred during the summer holidays when the applicant's daughter was about 12 years of age, in the period between December 1977 and February 1979. She had accompanied her father to the Central Coast where they were to stay at the house of her aunt and uncle.
Whilst at the aunt and uncle's place, the applicant and his daughter stayed in a caravan on the property. There was only one bed in the caravan. Whilst his daughter was asleep in bed one morning, the applicant pushed up against her back, whilst she was lying on her side, and then proceeded to fondle both of her breasts on the outside of her clothing.
This constituted the events in Count 3.
Count 4
At the same time, and in the same circumstances, shortly after the events in Count 3, the applicant moved his hand down towards his daughter's waist, pulling her in more closely to his body and pushing his penis against her buttocks. He then moved his hands from where they had been, fondling her breasts on the outside of her clothing, to her groin area and began rubbing her vagina from outside her clothing. The applicant's daughter pulled away.
Although Counts 3 and 4 occurred at the same time and in the same circumstances, they were separated by about five years from the events in Counts 1 and 2, which occurred at the same time and in the same circumstances.
Count 5
In the period between 30 November 1997 and 11 August 2000, on a number of occasions, the applicant's grand-daughter travelled from her residence in Canberra to stay with the applicant in a caravan at the rear of his brother's premises at Ingleburn. During one of the summer holidays, during that period, the applicant's grand-daughter was asleep in the caravan on one evening, when the applicant returned to the caravan. The applicant's grand-daughter was awoken when the applicant got into bed with her. The applicant hugged her normally at first and then slid his hand up under her shirt onto her bare skin, and commenced touching her breasts.
Count 6
This occurred at the same time as, but shortly after, the events in Count 5. The applicant moved his hand down to his grand-daughter's groin region, placing his hand on her vagina. His grand-daughter did not have any underwear on at the time and the applicant touched her vagina directly and continued to do so for about five minutes.
Count 7
Immediately after the actions in the previous two counts, whilst he was in bed with his grand-daughter, the applicant pushed her legs apart and placed his penis at the entrance of her vagina.
His grand-daughter said that it hurt, and the applicant ceased the activity and did nothing further. He then stood up and left the caravan.
No penetration actually occurred.
At the time of the conduct in Counts 5, 6 and 7, it was agreed that the applicant's grand-daughter was under the age of 10.
Evidence on Sentence
The applicant gave evidence at the sentencing hearing. In the course of the evidence, the applicant proffered an apology to the whole of his family including in particular his daughter and grand-daughter, who were the victims of his conduct. He gave evidence that he was in protective custody. He said he was unable to work in prison because no work was available to prisoners in that area of the jail. He said that, except for one occasion for the purpose of signing some formal documents, he had not been visited whilst in jail by his family, and that he had given his former wife, to whom he was married at the time he was arrested, all of his property and belongings.
He said that he was generally not in particularly good health, but that he was keen to return to adherence to the faith of the Jehovah's Witnesses.
In addition to a Pre-Sentence Report, the sentencing judge also had available to him a report of Dr Stephen Allnutt of 23 March 2012. That report encapsulated a clinical evaluation which Dr Allnut had undertaken with respect to the applicant.
Dr Allnut's detailed report failed to identify any explanation for the offences to which the applicant had pleaded. Dr Allnut identified that at the time of his contact with the applicant, the applicant was suffering from symptoms consistent with an adjustment disorder, with anxious mood, which would not constitute a major psychiatric condition. He attributed that adjustment disorder to the circumstances of the applicant being in custody, and having entered a plea of guilty to the various counts on the indictment. He summarised the applicant's position in this way:
"Overall in relation to the offences he is currently charged with, he presents as an individual who would be regarded as causing relatively low concern for further sexual recidivism predominantly because his offending has been of an incestuous nature and incest offenders as a group ...[manifest the] lowest risk of future sexual recidivism compared to other sex offender groups ..."
Dr Allnut did not think that the rediscovery of the applicant's religious faith would have any impact upon his risk of sexual recidivism.
Remarks on Sentence
Having recounted the applicant's subjective circumstances, the sentencing judge summarised the facts underlying each of the counts on the indictment. He noted, and took into account, the fact that the applicant volunteered to the police when he was interviewed that his grand-daughter was under the age of 10 at the time of the offence. She had informed police that she thought she was "about 11 years old". The fact that his grand-daughter was below the age of 10 meant that the applicant could be charged with more serious offences.
The sentencing judge noted, as was the fact, that the applicant had entered a plea of guilty to all of the offences at the earliest opportunity. This early plea entitled the applicant to a discount of 25 per cent in accordance with the guideline judgment of R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. This was conceded by the Crown.
His Honour noted that the first four offences were committed in the 1970s, and noted that he was obliged to sentence the applicant consistently with the law as it stood at that time, and the approach which was adopted by sentencing Courts at that time.
His Honour found that he was satisfied that the applicant was remorseful for the hurt, distress and damage which he had caused to his daughter and grand-daughter, and that it was unlikely that he would offend again.
His Honour found that the applicant's health problems were of significance, and would impact upon him adversely during his time in custody. His Honour found special circumstances.
His Honour noted that, in particular, the age of the applicant's daughter and grand-daughter at the time of the offences were "potent factors" in the sentencing process, and further, that the "breach of trust" was also a relevant factor to take into account.
He accepted the submission made by the Crown that
"recognition needs to be given to the fact that children in a family situation are virtually helpless against sexual attacks by a male parent and the children have the right to be protected from sexual molestation within the family."
His Honour found, in accordance with the Crown's submissions, that the conduct in Count 7 was the most serious, and that all of the offences were distressing to the victims.
Notice of Appeal
On 22 April 2013, the applicant filed a notice of his Application for Leave to Appeal. To that notice he attached the following grounds:
"1. The sentences imposed on Counts 1-4 which were committed in the 1970s were manifestly excessive, having regard to sentencing patterns that existed at the time of the offences.
2. The sentence imposed on Count 7 was manifestly excessive by virtue of either:
(a) the length of the sentence failing to reflect a considerable degree of leniency by virtue of his admission; or
(b) the partial accumulation of the Count 7 sentence on the sentences imposed for Counts 5 and 6; or
(c) both of the above."
Ground 1: Manifest Excess Having Regard to Sentencing Patterns at Time of Offence
In R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368, Spigelman CJ, with whom Grove and Sully JJ, and Newman AJ agreed, held at [31] that it was appropriate for a Court to take into account:
"... the sentencing practice as at the date of commission of an offence when sentencing practice has moved adversely to an offender."
MJR approved an earlier decision of this Court in R v Shore (1992) 66 A Crim R 37, in which Badgery-Parker J, with whom Mahoney JA and Hunt CJ at CL agreed, approved as correct the trial judge's expressed approach to his task which was as follows, namely, that as far as possible, the sentencing judge should:
"... seek to impose upon the offender a sentence appropriate not only to then applicable statutory maxima, but also to then appropriate sentencing patterns."
The principle in Shore, as approved in MJR, has been regularly applied by this Court since the decision was delivered.
The most recent example of this is the decision of this Court in Magnuson v R [2013] NSWCCA 50. However, application of the principle has been difficult: see Whealy J in R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [23], Smart AJ in R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [107] and Sully J in MJR at [104].
The difficulty arises because the sentencing court is being asked to reflect sentencing patterns or practices from earlier times, in a sentence being imposed at a much later time. In order so to do, the court must have a clear picture of what those earlier sentencing patterns and practices were. And, that picture must be as comprehensive as is possible.
In some circumstances, it will be possible for the relevant sentencing pattern to be capable of being readily discerned. As cases such as Shore, Featherstone v R [2008] NSWCCA 71; (2008) 183 A Crim R 540, PWB v R [2011] NSWCCA 84; 216 A Crim R 365, and Magnuson show, a comprehensive identification of similar cases, or else references to readily available statistical databases may assist in establishing earlier sentencing patterns. But, as experience shows, such sources need to be considered with some care because of inherent difficulties with them. For example, are the cited cases truly representative of those decided over the period, or else how is it that the statistical tables or analyses provided take into account, and identify, the wide variations in objective criminality and subjective circumstances. Statistical tables of sentencing outcomes are always to be treated with care.
However, if a sentencing pattern is readily, and reliably discernable, then such material ought be put before the sentencing court for it to be taken into account. Ordinarily, it is not to be thought that a sentencing court will know, without assistance, what earlier sentencing patterns were. Much less is it to be ordinarily thought to be appropriate that material of this kind is not put before a sentencing judge and then is deployed on an appeal to this Court.
Whether or not such a sentencing pattern can be reliably discerned, other historical matters relevant to sentencing practice can be identified, and ought be considered as part of the sentencing process. One such historical matter is the then existing statutory regimes under which a person would have been sentenced, including whether the legislation provided for, or else sentencing practices reflected, non-parole periods of a specific length or ratio to the overall sentence: see AJB v The Queen [2007] NSWCCA 51 169 A Crim R 32 at [36]-[38] per Howie J, Adams and Price JJ agreeing; MJL v R [2007] NSWCCA 261 at [27] per Hidden J, Campbell JA agreeing, at [43]-[48] per Smart AJ, Rosenstrauss v R [2012] NSWCCA 25 at [16] per Basten JA.
However, in ascertaining any legislative provisions which may impact upon sentencing practices, the court does not engage in understanding the impact, if any, of executive practices on sentence. A ready example was the, now discontinued, executive practice of granting remissions to prisoners with respect to their head sentence: see AJB at [31]. Even if this practice was not truly an executive one, the operation of the remission system ought not be reflected in sentences which are imposed now: Rosenstrauss at [10]-[12] per Basten JA, R S Hulme and Schmidt JJ agreeing.
The guide which is entirely objective and is easily ascertainable, and therefore which is likely to be of most use to a sentencing court, when attempting to impose sentences which accord with an earlier practice or pattern, is the maximum penalty fixed by the law for the offence charged, together with the range of criminality encompassed by the offence charged. By having regard to these features, a sentencing judge will be able to readily assess where the particular offence charged falls along the spectrum of conduct encapsulated in the offence, and accordingly how the particular offence ought be viewed against the maximum penalty fixed by the legislation.
As Howie J said in Moon at [70]:
"The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender, for the particular crime committed. Even after taking into account the subjective features of the offender, and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the seriousness of the offence: Dodd (1991) 57 A Crim R 349, and be proportional to the criminality involved in the offence committed: Veen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence."
Finally, reference should be made to the fact that in some cases, judicial recollection has formed a basis for, or else has provided a confirmation of, the existence of a sentencing practice or pattern: see Bell JA in Featherstone at [45], R S Hulme J in PWB at [68] and Button J in Magnuson at [127]-[129].
However, the use of judicial recollection is apt to be unreliable and can be inequitable in its application. It is apt to be unreliable because it arises out of the experience of a particular judge which may not reflect a sufficiently broad base or depth of experience to allow the formation of a view as to a broad-based sentencing practice. As well, the greater the passage of time, then the less reliable a recollection becomes. As McHugh JA said, albeit in a different context, "memories fade": Herron v McGregor (1986) 6 NSWLR 246 at 254E. His Honour's remarks in Longman v The Queen (1989) 168 CLR 79 at 107, about the fallibility of human recollection and the greater margin for error as the time period increases, are applicable in principle here.
As well, there is an inequity in relying on judicial recollection, because whether the particular judge allocated to conduct the sentencing hearing has such a recollection or not, is purely a matter of chance. The longer the time period between when the events occurred and the time at which the sentence is being imposed, the greater the prospect is that the allocated judge will not have any recollection of earlier sentencing patterns or procedures. In such a case, an applicant may be disadvantaged when compared with a case in which the judge claims to have such a recollection.
As well, the use of judicial recollection can, if it is to be the principal basis for the establishment of a sentencing pattern, lead to procedural injustice. How is it that one challenges the judge's stated judicial recollection? What if it is wrong or if it differs from another judge's recollection? Does a party to the sentencing process in front of that particular judge lead material to point out that other judges have different recollections? If so, in what form should that be led? None of these steps provide a particularly attractive reason for the use of judicial recollection. There is no great benefit to be gained from the use of such judicial recollection, and seemingly significant prejudice may arise from its use. Very great care must be taken in cases in which such recollections are accessed.
This Court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1 to 4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]-[156]. This is factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
Against this background of discussion of principle, it is necessary to see what the sentencing judge did in this case. His Honour was referred to the principles to which I have drawn attention, at least in the broad. His Honour was not provided with any table of cases, or other research material which would have enabled him to establish the existing sentencing patterns.
He did, however, have his attention drawn to the approach taken by Howie J in Moon, which involved considering the primacy of the maximum sentence imposed for the offence and the range of conduct which fell within the offence as it then stood.
Counts 1 to 4 on the indictment charged offences under s 76 of the Crimes Act 1900, which as it then stood, was the offence of indecent assault against a child under the age of 16 years. It was repealed in 1981. At the time of the offences in Counts 1 and 2, the maximum penalty was 5 years. At the time of the offences in Counts 3 and 4, the maximum penalty had been increased to 6 years.
The offence of indecent assault, contrary to s 76, included within it many offences which today fall to be categorised as sexual assault under current legislation. Prohibited conduct, involving penetration and including fellatio and cunnilingus, were included within the offence under s 76. There was then a much broader range of conduct susceptible to charges under this section: see BP at [158] per Fullerton J; Nelson v R [2007] NSWCCA 221 at [17] per Latham J.
Although not the subject of Ground 1, it is convenient here to describe Counts 5, 6 and 7. Counts 5 and 6 charged offences against s 61M(2) of the Crimes Act, which carried a maximum penalty of 10 years imprisonment. An offence against s 61M(2) deals with conduct by way of indecent assault which is aggravated by the fact that the victim was under the age of 16 years. It does not include sexual assault by way of sexual intercourse as that term is defined in s 61H of the Crimes Act. The range of conduct capable of being charged under this section is not as broad as under s 76. Count 7 charged an offence against s 66B of the Crimes Act of attempted sexual intercourse with a child under the age of 10 years. It carried a maximum penalty of 20 years.
In respect of each offence, the sentencing judge allowed a discount of 25 per cent to reflect the applicant's early pleas of guilty. He was well entitled to do this.
The sentencing judge described each of the offences in Counts 1 and 2 as "extremely serious" but made no attempt to relate the conduct to the spectrum of conduct which was covered by s 76.
In determining the sentence, the judge imposed a fixed term of 12 months. In so doing, the judge indicated that it was his intention to impose a non-parole period of 12 months, with a balance of term of 12 months, that is, a total sentence of 2 years. He thought, in light of the other sentences which were being imposed at the same time, it was more expedient to impose a fixed term of imprisonment equivalent to the non-parole period. No complaint is made about the use of a fixed term. In the complex of sentences which the judge was dealing with, this was an appropriate way to proceed.
In order to consider whether the sentence imposed was excessive, it is appropriate to first consider the notional point at which the sentencing judge started. The effective undiscounted sentence imposed on the applicant for each of Counts 1 and 2, which were wholly concurrent, was 2 years 8 months. This is the commencing point for the consideration of the ultimate sentence imposed. This starting point was over half of the maximum sentence available. The applicant submitted that this was, in the result, manifestly excessive and that, in accordance with the sentencing practice at the time, the applicant was unlikely to have received custodial sentences at all, let alone those of the length imposed.
The Crown accepts that for cases of indecent assault, the sentencing practice of the 1970's did not mandate a custodial sentence in every case, but submitted that for indecent assault cases "... ordinarily a custodial sentence would be appropriate ...": see Hunt CJ at CL in R v Baxter (NSWCCA, unreported, 25 May 1994) and also R v Mark O'Sullivan (NSWCCA, unreported, 22 October 1989).
The Crown also accepts that the offences in Counts 1 and 2 were not the most serious of their kind since they did not involve penetration. However, the Crown submits that they were nevertheless serious because they involved a victim who was only 7 years old, and the offences being committed by a father upon his daughter amounted to a breach of trust of the highest order.
This Court held in Magnuson that the pattern of sentencing which existed in the 1970's and 1980's for sexual offences against children was such that the sentences were shorter than those which would be imposed now, for equivalent offending conduct.
I am prepared to accept, as did the sentencing judge, that the offences were serious because of the extent of the breach of trust involved, but what was required of the sentencing judge was that he should have made an assessment of where the offences fell on the spectrum of conduct encompassed by an offence against s 76 of the Crimes Act. This he failed to do. Having regard to that range, I am not satisfied that these offences fell above the mid-point of the range. On the contrary, the criminality fell well below that mid-point and could not justify the sentences which was imposed for Counts 1 and 2.
I am satisfied that the sentences for Counts 1 and 2 were manifestly excessive when viewed in the context of the sentencing practice of the time. It needs to be emphasised that this conclusion does not reflect, nor is it intended to reflect, current sentencing practices.
The sentencing judge imposed the sentences on Counts 3 and 4 in a similar way to Counts 1 and 2. His Honour described the conduct as serious, but again made no assessment of where the conduct lay along the spectrum of conduct encompassed by the offence of aggravated indecent assault under s 76.
He also imposed a fixed term of 18 months on each Count. In so doing, he indicated that each fixed term was equal to the term which he would have imposed by way of a non-parole period, and that he would have imposed a balance of term of a further 18 months.
The starting point for this sentence, prior to the reduction for the plea of guilty, was therefore a total of 4 years. This represents an undiscounted sentence of two-thirds of the maximum then available of 6 years.
The applicant submits that the sentences imposed were, for reasons essentially similar to those put with respect to Counts 1 and 2, manifestly excessive having regard to the sentencing practices at the time.
The Crown submits that the sentences imposed "whilst firm", were within the discretionary range, particularly having regard to the fact that the conduct was the second separate occasion upon which an indecent assault had been perpetrated by the applicant upon his daughter. The Crown submits that, although the victim was older than at the time of the indecent assaults in Counts 1 and 2, she was nevertheless still quite young and well below the age of 16 which was proscribed by the section.
Having regard to the spectrum of criminality which was encompassed by the offence charged, the objective criminality of these offences was not above the mid-point of the range. I am satisfied that the criminality fell below that mid-point, and objectively, was at the lower end of the range.
In my view, the sentences for Counts 3 and 4 were manifestly excessive.
As between Counts 1 and 2 on the one hand and Counts 3 and 4 on the other, the applicant submits that the period of accumulation of 6 months was excessive, and there should not have been any accumulation. This submission is reflected in the submission that both sentences were manifestly excessive.
There are two difficulties with this submission about accumulation. The first is that the offences on Counts 1 and 2 and those on Counts 3 and 4 were separated by a period of more than 5 years, and were entirely separate instances of criminality. Unless the sentencing judge provided for some accumulation, he would have failed to reflect the totality of the criminality involved. The second difficulty is that the submission of the applicant's counsel to the sentencing judge accepted that there should be an accumulation as between Counts 1 and 2 on the one hand, and Counts 3 and 4 on the other, albeit he submitted that the accumulation should be " ... a matter of months, rather than years"
I would not be prepared to accept that there can be any legitimate complaint about the fact that the sentencing judge accumulated by a period of 6 months the sentences in respect of Counts 3 and 4 on the sentences imposed in respect of Counts 1 and 2. The accumulation meant that the applicant was serving an effective period of 6 months for Counts 1 and 2. There is nothing about accumulation of that order, in light of the sentences which were imposed, that is excessive. I would not be prepared to uphold the applicant's submissions with respect to this aspect of Ground 1.
Ground 2: Count 7 Sentence was Manifestly Excessive
It is convenient to consider Counts 5, 6 and 7 together because the events encompassed by these Counts were part of a course of events on a single day. They were closely proximate to each other in point of time. As well, these events occurred relatively recently, and the principles connected with sentencing for historical events are of less significance.
The notional commencing point, before any discount for the plea of guilty, for the sentence for Count 5, was 4 years 8 months. The maximum penalty for this offence, which was one contrary to s 61M(2) of the Crimes Act, was 10 years. Hence the penalty imposed was marginally below the mid-point of the maximum penalty.
The sentence for Count 6 prior to the discount for the plea of guilty, was a total sentence of 6 years in the context of a maximum penalty of 10 years.
The applicant accepts that while these sentences are high, it cannot be said that they are manifestly excessive. Accordingly, there is no specific appeal against the length of the sentences. But it is necessary to understand those sentences so as to provide the context against which the applicant's appeal in respect of the sentence on Count 7 is to be viewed.
As is obvious, Count 7, namely an offence of attempted sexual intercourse with a child under 10 years of age contrary to s 66B of the Crimes Act, is the most serious of the offences with which the applicant was charged, and to which he pleaded guilty. It carried a maximum penalty of 20 years. Prior to allowing the discount for the plea of guilty, the starting point of the applicant's sentence was a total sentence of 8 years and 8 months.
The applicant submits that this sentence was manifestly excessive because:
(a) it failed to give adequate effect to the voluntary admissions made by the applicant about the victim's age, which had the effect of disclosing an aggravating factor, namely that the victim was under 10 years old at the time of the offence, when that was contrary to the material disclosed to the police by the victim; and
(b) the sentencing judge erroneously accumulated the sentence by 12 months on the sentence for Counts 5 and 6.
There is no doubt, and the Crown accepts, that the voluntary disclosure of an aggravating element of an offence which was not previously known to police is a matter which must be taken into account by a sentencing judge "on the credit side of the sentencing process": see Ryan v R [2001] HCA 21; (2001) 206 CLR 267 at [15] per McHugh J, R v Ellis (1986) 6 NSWLR 603; R v Windle [2012] NSWCCA 222 at [36] per Basten JA.
The sentencing judge was referred to this feature with respect to Count 7 and said in his Remarks on Sentence that he would take it into account. He did not apply an identified discount for this volunteered element, but that is not erroneous because attempting, in these circumstances, to quantify a percentage discount "... is apt to lead to error in the exercise of the sentencing discretion": see Ryan at [17] per McHugh J.
The offence was, as his Honour recognised, a serious one. The victim, the applicant's grand-daughter, was younger than 10. She was staying with the applicant at the time and was in his care. She was defenceless and vulnerable. The offence involved a grave breach of trust and a deliberate exploitation of the familial relationship by the applicant. And the applicant was a man who, on 2 previous separate occasions, had indecently assaulted his own daughter. Thus, he did not come before the Court as a man of previous good character with respect to the offences in Counts 5, 6 and 7. Even allowing for all of the matters favourable to the applicant, including his volunteered assistance, and recognising that the applicant, a man of advanced years, will be spending his term of imprisonment in protective custody, about which there was some evidence before the sentencing judge, I am unable to accept that the sentence imposed was manifestly excessive.
For an applicant to succeed on this ground, he is required to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; [6] per Gleeson CJ and Hayne J. There is no one single correct sentence, as due allowance must be made for differing judicial opinions in an evaluative exercise, which opinions nevertheless are still in accordance with principle: Vuni v R [2006] NSWCCA 171 at [33] per Hoeben J (Tobias JA and James J agreeing). I accept that the sentence imposed for Count 7 falls at the high end of the appropriate range of sentences, but I am not persuaded that it falls outside the range of a permissible exercise of sentencing discretion.
However, this conclusion does not deal with the issue of the appropriateness of the period of accumulation imposed by the judge, and whether this means that the total effective sentence is manifestly excessive.
In respect of Counts 5, 6 and 7, the sentencing judge ordered that Counts 5 and 6 be wholly concurrent, and that there should be a period of accumulation of 12 months between those two Counts and the Count 7 offence.
It is to be recalled that the facts relating to these three Counts showed that all three offences occurred on the same day and at the same time following on from each other. The conduct charged under Count 7 formed the final act in a single course of conduct. The applicant's counsel submitted to the sentencing judge that the sentences on these three Counts should be made wholly concurrent because there was a single course of conduct.
The Crown's submissions to the sentencing judge drew attention to matters of principle with respect to concurrence and accumulation, and concluded in these terms:
"The Crown submits at the very least, the sentence penalty of imprisonment which is to be imposed should be partially accumulated between the three different incidents. Further, there should be greater accumulation between Counts 1-4 and 5-7 as these involve separate victims. This would ensure that the criminality against each victim and each incident is adequately addressed." (sic)
In oral submissions to the sentencing judge, the advocate for the Crown was specifically asked about the question of accumulation, and did not make any submission which differed from that which he had put in writing.
There is no general rule of law that determines whether a sentence must be concurrent in whole or in part, or else consecutive: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [47] per Howie J. The overarching principle was expressed by Howie J in R v Jarrold [2010] NSWCCA 69 at [56], where his Honour said that the question to be asked is whether the sentence for one offence encompasses the criminality of all of the offences.
Recently, in Franklin v R [2013] NSWCCA 122, Hoeben CJ at CL said:
"There is no rule that sentences for offences committed on the same day, or as part of the same criminal enterprise should be served concurrently. A sentence should not be 'concurrent' simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct: R v Jarrold, Howie J at [56]). The question to be asked is whether the criminality of the offence can be encompassed in the criminality of the other offence (Cahyadi v R). If not, the sentence should be at least partially cumulative, otherwise there is a risk that the sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the offences can be regarded as part of a single episode of criminality (Cahyadi v R at [27])."
The applicant submits to this Court that the sentencing judge intended that the sentences for Counts 5, 6 and 7 be served concurrently because they all formed part of the one act, but in the course of his Remarks on Sentence erroneously fixed the commencement date as 18 January 2013 (which meant that there was a period of accumulation of 12 months) rather than 18 January 2012 (which meant that the sentences with Counts 5 and 6 would be wholly concurrent).
The applicant ultimately submitted that by reason of the 12 month accumulation which was imposed, the effective sentence for the conduct encompassed in Counts 5, 6 and 7 was manifestly excessive and did not reflect properly the totality of the criminality involved.
The Crown submitted that the decision as to whether to partially accumulate multiple sentences is fundamentally an exercise within the discretion of the judge. The Crown drew attention to the statement of Simpson J in R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7] where her Honour said:
"There will be many cases in which sentencing judges may take differing views but neither could be said to be wrong."
The Crown accordingly submitted that the structuring of the sentences as between Counts 5, 6 and 7 with a period of accumulation was open to the sentencing judge, and was not erroneous.
Necessarily, a consideration of this ground of appeal is entirely dependent upon the particular facts, matters and circumstances of the offending. As the authorities, to which reference has been made, indicate, there is no general rule. The period of accumulation was one half of the sentence for Count 5 and a little under half of the sentence for Count 6.
Having regard to the particular facts, matters and circumstances in this case, I am satisfied that the applicant is correct in his submission that the effective sentence for Count 7, was by reason of the period of accumulation, manifestly excessive.
I do not think that the circumstances were such that it was, in light of the starting point of the sentence for Count 7, of 8 years 8 months, and 6 years 6 months after reduction for the early plea of guilty, inappropriate for the sentencing judge to make all three sentences entirely concurrent. In my opinion, the sentence imposed on Count 7 was adequate to encompass the criminality inherent in the entire incident. In other words, the events upon which Counts 5 and 6 are based add little, if anything, to the serious criminality involved in Count 7.
Hence, I am of the opinion that the applicant has succeeded in establishing that by reason of the accumulation of the sentence for Count 7 on the sentences for Counts 5 and 6, the effective sentence in respect of Count 7 was manifestly excessive.
Re-sentencing
In addition to the material that was before the sentencing judge, an affidavit of the applicant has been placed before this Court, to be taken into account if the Court was obliged to engage in re-sentencing the applicant.
This affidavit indicates that whilst he has been in custody, the applicant has been well behaved and has not committed any offences against jail discipline. The applicant remains on protection, and is in an area described as the "Special Area Management Protection". This is not as restrictive as his previous form of protective custody.
Although there are limited courses available by way of education, the applicant has undertaken a number of education courses successfully.
It is clear from this affidavit that the applicant does not have any contact with his family and is visited only occasionally by members of the local Kingdom Hall of the Jehovah's Witnesses.
The applicant's conduct represented significant breaches of trust, and as is apparent from previous remarks in these reasons, involving victims who were closely related to him, and who were vulnerable and defenceless.
Nevertheless, in re-sentencing the applicant, the Court is constrained, as a matter of principle, to impose sentences with respect to Counts 1 to 4 which reflect past sentencing practices.
It is demonstrable that were the applicant to commit these offences today, and be sentenced for them, he would receive far heavier penalties than those which the Court is lawfully entitled to impose with respect to offences from many years ago.
As the applicant is being re-sentenced under the current legislation, it is appropriate to consider whether there are special circumstances which would warrant the balance of the term being more than one-third of the non-parole period: s 44(2) Crimes (Sentencing Procedure) Act 1999.
I am satisfied that there are special circumstances in this matter which would warrant varying the ratio fixed by the legislation. This is the applicant's first period of imprisonment, which needs to be considered in the context of his age when taken into custody, and his need for an appropriate period of supervision in the community. As well, the historical practice of fixing a non-parole period of between one-third and one-half of an overall sentence, to which I referred in [93], is a matter, which combined with the circumstances just mentioned, constitutes special circumstances.
Taking into account all of the matters relating to the objective seriousness of the offences, and all of the subjective circumstances of the applicant, and adopting the same approach as the sentencing judge to the appropriate use of fixed term sentences, I would impose the following sentences.
On Count 1 - Offence of indecent assault of female, the applicant is sentenced to a fixed term of 6 months commencing on 18 January 2011.
On Count 2 - I would impose an identical sentence with respect to Count 1 and I would make the sentences on Counts 1 and 2 wholly concurrent.
On each of Counts 3 and 4 - I would impose a sentence of a fixed term of 9 months. The sentences on Counts 3 and 4 should be wholly concurrent.
The individual sentences on Counts 5, 6 and 7 as imposed by the sentencing judge are not to be shortened.
It is then a matter to determine, in light of the new sentence proposed, the appropriate periods of accumulation, in order to ensure that the whole of the criminality involved is appropriately punished. This approach reflects the need to have regard to the principle of totality, and to consider the entirety of the sentences, and the effective period of imprisonment which ought to be imposed in light of the whole of the criminality involved: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.
As between Counts 1 and 2 on the one hand, and Counts 3 and 4 on the other, in light of the sentences proposed, it is appropriate there should be a period of accumulation of three months. This would have the effect that the sentences on Counts 3 and 4 would commence on 18 April 2011.
The sentences on Counts 5 and 6 were accumulated by 6 months on Counts 3 and 4. There is no reason to disturb this period of accumulation. However, there will need to be an adjustment to reflect the earlier starting date of the sentences on Counts 3 and 4. As a consequence, the commencement date for the sentences on Counts 5 and 6 ought be 18 October 2011.
Count 7 should not be accumulated on Counts 5 and 6, so that the sentence on Count 7 should commence on 18 October 2011. The effect of this adjustment in sentences and commencement dates is that the applicant will serve an effective term which is 15 months shorter than that imposed by the sentencing judge.
Because of the provisions of Clause 45(1) of Part 7 of Schedule 2 of the Crimes (Sentencing Procedures) Act 1999, it is necessary to impose a sentence with respect to Count 7 which is in the manner required by the legislation which pre-existed the introduction of the present s 44 of the Crimes (Sentencing Procedure) Act, by the passage of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002.
Accordingly, the first date upon which he will be eligible for release is 17 April 2015 rather than 17 July 2016.
Orders
I propose the following orders:
(1) Grant leave to appeal.
(2) Set aside each of the sentences imposed by Delaney DCJ on 31 May 2012
(3) In lieu of those sentences, the applicant is to be sentenced as follows:
Count 1: A fixed term of imprisonment of 6 months, commencing on 18 January 2011 and finishing on 17 July 2011.
Count 2: A fixed term of imprisonment of 6 months, commencing on 18 January 2011 and finishing on 17 July 2011.
Count 3: A fixed term of imprisonment of 9 months, commencing on 18 April 2011 and finishing on 17 January 2012.
Count 4: A fixed term of imprisonment of 9 months, commencing on 18 April 2011 and finishing on 17 January 2012.
Count 5: A fixed term of imprisonment of 2 years, commencing on 18 October 2011 and finishing on 17 October 2013.
Count 6: A fixed term of imprisonment of 2 years and 6 months commencing on 18 October 2011 and finishing on 17 April 2014.
Count 7: A total term of imprisonment of 6 years and 6 months, commencing on 18 October 2011 with a non-parole period of 3 years 6 months.
The first date upon which the applicant will become eligible to be released on parole is 17 April 2015.
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Decision last updated: 19 September 2013
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