Nelson v R

[2007] NSWCCA 221

New South Wales
Court of Criminal Appeal

CITATION:	Nelson v Regina [2007] NSWCCA 221
HEARING DATE(S):	11 July 2007
JUDGMENT DATE:	25 July 2007
JUDGMENT OF:	Tobias JA at 1; Latham J at 2; Mathews AJ at 21
DECISION:	1. Leave to appeal granted; 2. Appeal allowed; 3. The sentence imposed by Hosking SC DCJ on 30 March 2007 is quashed; 4. In lieu, a sentence of four months imprisonment is imposed to date from 30 March 2007, expiring 29 July 2007, at which time the applicant is entitled to be released.
CATCHWORDS:	Sentence appeal - sentencing on the basis that other offences committed - no evidence of other offences - offence committed 35 years ago - range of conduct proscribed by s 76 Crimes Act 1900 not taken into account - offence not in mid-range.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Moon (2000) 117 A Crim R 497 R v MJR (2002) 54 NSWLR 368 AJB v Regina [2007] NSWCCA 51
PARTIES:	Applicant - David George NELSON Regina - Crown
FILE NUMBER(S):	CCA 2007/1368
COUNSEL:	Applicant - Mr P Boulton SC Crown - Ms J Girdham
SOLICITORS:	Applicant - S O'Connor Crown - S Kavanagh (Solicitor of Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0628
LOWER COURT JUDICIAL OFFICER:	Hosking SC DCJ
LOWER COURT DATE OF DECISION:	30 March 2007

2007/1368

TOBIAS JA
LATHAM J
MATHEWS AJ

25 JULY 2007

DAVID GEORGE NELSON v REGINA

Judgment

1 TOBIAS JA : I agree with Latham J.

2 LATHAM J : The applicant, David George Nelson, seeks leave to appeal against a sentence imposed on 30 March 2007 by Hosking SC DCJ in respect of one count of Indecent Assault Female, pursuant to the now-repealed section 76 of the Crimes Act 1900. The offence, having been committed in 1972, carried a maximum penalty of three years imprisonment.

3 The applicant received a sentence of 14 months, of which 8 months was the non-parole period, commencing on 30 March 2007, expiring 29 November 2007.

4 The applicant pleaded guilty to the offence on 27 November 2006. His Honour accepted that the plea attracted “a substantial discount” for its utilitarian value. For reasons which will become clear, the discount was in fact 22%, although his Honour did not numerically quantify it. No issue is taken with this aspect of the sentencing proceedings. The applicant’s substantive complaints are that his Honour sentenced on the basis that the applicant had committed other offences against the complainant, in the absence of an evidentiary foundation for that approach (Ground 1), and that his Honour erred in characterising the offence as mid-range in terms of its objective gravity (Ground 3). Ground 2 complains that disproportionate weight was given to considerations of general deterrence. Ground 4 asserts that the sentence is manifestly excessive.

5 The sentencing judge recited the agreed facts in full in the course of his remarks on sentence. It is sufficient for the purposes of this appeal to state that the complainant was a resident in a Baptist children’s home from the age of one until she turned 17. Between the ages of one and five, the complainant was cared for by an employee, Lenore Holmes, who developed a strong emotional bond with her. That relationship continued after Ms Holmes left that institution, and following Ms Holmes marriage to the applicant in about 1968. The complainant’s natural mother died in July 1971. The complainant was baptised in November of that year, in the presence of the applicant and his wife, and was invited to spend the Christmas holidays with them.

6 It is at this point that the agreed facts assume some significance, in view of Ground 1 of the appeal.

Over the course of the Christmas holidays the accused and the complainant commenced a sexual relationship. That relationship continued on a regular basis.
Not longer prior to the Easter break in 1972 the complainant began to feel guilty about her relationship with the accused because it was adulterous and against her Christian teachings.
By arrangement with the children's home the complainant again stayed with Lenore and the accused in the Easter holidays in 1972.
On the first night at their home the accused approached the complainant in her bedroom and asked her to have sex with him. She refused, saying, "It's wrong. Its adultery and I'm not going to do it any more". However the accused kissed her on the lips, neck and breast and touched her on her breasts and pushed his hand down her pyjamas and touched her around the outside of her vagina as she tried to push him away. She then threatened to call for help and he left the room. The accused did not approach her again during her stay, although he told her that he and Lenore were considering adopting her, but would not be able to, should she tell any one of what had happened.
The complainant returned to the home following the Easter stay and soon after made a detailed disclosure to a religious minister … at the children's home, which internally investigated the matter. At that initial investigation the accused denied any wrongdoing. At the time of the indecent assault the complainant was 16 years of age.
(Bold not in original)

Ground 1

7 An appreciation of this ground depends upon a consideration of the agreed facts set out above, together with certain exchanges between the bench and the applicant’s legal representative, as follows :-

Shridhar : … Your Honour takes into account in my respectful submission the age of both parties at the time. It is a matter that where he was 31 years of age at the time of the offence and she had just turned 16. It's a matter where your Honour looks at the incident itself. And it’s my submission your Honour looks at it in view of a relationship that was existing sexually between the two of them. Moral obligations aside to his wife, he is not to be punished for that today . But there was a relationship between the two. …… There is no suggestion that this was a situation where it occurred out of the blue or in isolation. There was an intimate relationship between the two and putting it fairly in my submission to your Honour he tried to go further on this occasion and she said no. He didn't accept no and tried to persuade her by his further advancements upon her, hence the assault and the indecency that is connected with it. …………………………My submission to your Honour is this, objectively it would fall below the middle range. ……. because of the relationship that existed between the two, the actual contact and then essentially it almost immediately stops and no further contact. ………………….. It was not predatory behaviour but it was certainly one where he had not-----
His Honour : It wasn't predatorial ?
Shridar : No.
His Honour : I've got to say it looks pretty predatorial to me ….
……………………………………………………………………….
His Honour : I don't care what a psychologist says, that's his opinion. My opinion was that it was clearly predatory behaviour. A 31 year old man in the position of this child's father, sexually assaulting her is in my view clearly sexually predatory behaviour and anyone who says otherwise I disagree with.
……………………………………………………………………..
His Honour : ……. I have to sentence your client for one count of assault with an act of indecency…… I'm not sentencing your client for anything else. I recognize that. I have a one-page document of agreed facts which are not absolutely binding on me. There are authorities about this. It is clear to me from [the complainant’s] statement that this was not an isolated instance .
Shridar : True.
His Honour : That much is clear. So I have to sentence your client for one serious incident of indecent assault which was not an isolated instance, by a 31-year-old man in a position of trust against a 16-year-old girl under his roof, under his care. ……..
I must say I would have thought in those circumstances, particularly as it was not an isolated instance that it does call for a custodial sentence. Whether that sentence should actually be served is another matter but I don't know that a section 9 bond adequately deals with that kind of situation …………………………………………………………………………………….
Shridhar : It is clear that the lack of isolated incident also refers to a mutual sexual relationship. So consent.
His Honour : But you can't have a mutual sexual relationship with a child. You can't have a consensual, mutual sexual relationship with a child.
Shridar : If the person is over 16 years of age your Honour that's a matter that should bear in my submission in your Honour’s sentencing. I know your Honour is referring to the issue of trust but in my submission that has to have some play in regards to it. ……….. I hear what your Honour is saying in regards to, well, one has to look at the age of the child and the age of him as an adult. But my submission is your Honour needs to be wary as to where you place that as regards to that ongoing relationship.
[His Honour then referred to the first two sentences of the penultimate paragraph set out at [6] above. Following further submissions from both the Crown representative and the applicant’s representative, his Honour took a short adjournment. On returning, his Honour indicated that he proposed to impose a custodial sentence "essentially because, as I will explain in a moment, this was not an isolated offence ." ] (bold not in original)

8 This exchange is echoed in his Honour's remarks on sentence. His Honour determined that the indecent assault was a matter of "significant seriousness and in my assessment approached somewhere around the mid range of seriousness for an offence of that kind". His Honour went on to say that he was :-

sentencing the offender not for a series of sexual misconduct against this young girl as she was then, but a single instance referred to in the indictment. Having said that, it is plain however, even from the statement of agreed facts (which does not bind me) quite apart from [the complainant’s] victim impact statement that this was not an isolated instance.
The fact was that at the relevant time the complainant was resident under the offender’s roof. She was a vulnerable young girl and he was a man about 31 years of age. This offence should be regarded most seriously. I regard it most seriously. People in the community must understand that young children are not sexual playthings. The fact is in the experience of judges of this court and elsewhere that these kinds of sexual offences against young children are depressingly common. Accordingly, there is a need in my view to impose a sentence which reflects considerations of general deterrence. (ROS p 4)
In my assessment had this been an isolated instance it would probably have merited a custodial sentence but as an isolated instance perhaps would have justified the suspension of that sentence under section 12 of the Crime (Sentencing Procedure) Act. That was one of the courses that Mr Shridhar urged upon me today. However, having considered that submission carefully, in my view, I cannot accede to that submission because of the fact that this, as I have said, was not an isolated instance, combined with the fact that this was a very vulnerable young girl and there was an element of breach of trust in the commission of this serious offence. In my view there must be a period of full-time custody. (bold not in original)
(ROS p 5)

9 Notwithstanding his Honour’s references to other “instances” of sexual conduct in the context of a relationship of trust, the tenor of these remarks, when interpreted in the light of the sentencing judge’s responses to the submissions made by the applicant’s representative, strongly suggest that his Honour was referring to other sexual offences committed by the applicant upon the complainant. In fact, his Honour uses the term “offence”, when referring to conduct other than that charged, just prior to sentencing the applicant and again in the context of sexual offences against children generally, which by inference had been committed by the applicant.

10 The difficulty in this approach to the assessment of the applicant’s criminality is that there was no evidence before his Honour of the complainant’s date of birth, or her age as at December 1971, when the sexual relationship between herself and the applicant commenced. There was nothing to contradict the submission that the sexual relationship between them was consensual, up until the complainant decided that it was “adulterous” and she rebuffed the applicant’s advances. There was nothing in the Victim Impact Statement that justified the conclusion that other offences had been committed. The only mention of the complainant’s age was by the applicant’s representative when he indicated in the course of submissions that the complainant “had just turned 16” at Easter 1972.

11 It is unfortunate that the matter was not clarified by the Crown, so as to prevent his Honour from falling into error in this regard. The most that the Crown contributed to the discussion on this topic appears at pp 15-16 of the transcript of 30 March 2007, where the Crown comments that “if there were charges available against [the applicant] before the complainant turned 16 they would not be able to be charged due to the fact that s 78 operated at that time. It is now repealed [and] the Crown would not be able to proceed with those charges in any event” because they were statute-barred.

12 I am satisfied that Ground 1 of the appeal has been made out. It does not however follow that his Honour should not have imposed a custodial sentence. The offence represented a gross breach of trust in particularly poignant circumstances. The complainant regarded the applicant’s wife as the mother she had always wanted. The complainant longed to be part of the applicant’s family. Not only did the applicant prey upon the complainant’s natural affections towards him as her potential father, but his conduct towards her put an end to any prospect of an adoption. When, despite the applicant’s threats, the complainant reported his behaviour, the applicant denied any wrong-doing and the complainant was branded as a liar.

13 The sentencing judge was entitled to take the view that a bond or a suspended sentence failed to reflect the objective gravity of the offence. It is noteworthy that his Honour did not confine his reasons for imposing a custodial sentence to the “representative” nature of the offence. He also relied upon the vulnerability of the complainant and the breach of trust inherent in the offence.

14 Ground 2 is related to Ground 1, in so far as the applicant takes issue with the sentencing judge’s characterisation of the offence as typical of those committed “against young children”, and for that reason requiring a sentence that reflected the principle of general deterrence. It is conceded that general deterrence was an appropriate consideration, but it is contended that his Honour placed disproportionate weight upon it because of the erroneous findings he made.

15 In my view, this ground also has substance, but because of the conclusions I have reached in relation to Grounds 3 and 4, it is unnecessary to canvass this ground further.

Grounds 3 and 4

16 His Honour’s express finding that the offence fell in the mid-range of objective seriousness for offences of that kind is borne out by the sentence of 14 months, representing a 22% discount of half the available maximum penalty. The applicant’s written submissions on this ground focussed upon the asserted error in undertaking the mathematical exercise of halving the maximum penalty, in order to arrive at the “mid-range”. Whilst I agree that such an approach potentially fails to synthesise the many factors that bear upon the sentencing discretion, there is a much more fundamental basis for intervention by this Court, which was developed in the course of the oral submissions.

17 In the absence of evidence of the sentencing practices prevailing in 1972 for offences under s 76, his Honour was to be guided by the maximum penalty, as an expression of the legislature’s view of the gravity of such offences at that time, and by the nature of the conduct proscribed by the offence : R v Moon (2000) 117 A Crim R 497 at 511 ; R v MJR (2002) 54 NSWLR 368 ; AJB v Regina [2007] NSWCCA 51. His Honour did not have regard to the latter consideration, namely, that offences under s 76 in 1972 were not confined to non-consensual touching of the breasts and external genitalia of a female over the age of 16 years. There was no extended definition of “sexual intercourse” that allowed for acts such as fellatio, cunnilingus or anal intercourse to be charged as “rape”. Sexual assaults other than penile/vaginal intercourse came under the umbrella of “indecent assault”. A very broad range of very serious conduct by male offenders against female victims could not be prosecuted under any other provision of the Crimes Act 1900 as it then stood.

18 When account is taken of this factor, it cannot be correct to describe the applicant’s offence as one falling within the mid-range of objective gravity for offences under s 76. It must, in my view, be seen as falling within the lower end of the range of offences covered by that provision, although it nonetheless merited a custodial sentence because of the circumstances under which it was committed. It follows that the sentence is manifestly excessive. I would uphold Grounds 3 and 4.

19 Turning to the question of re-sentencing, the applicant is now 67 years of age. He is estranged from his wife and his three sons, but has the support of a current partner with whom he does not live. He was assessed by a psychologist as low-risk in terms of re-offending, and gave evidence below consistent with genuine remorse. The utilitarian value of his plea of guilty, in circumstances where the Crown relied upon the unsupported evidence of a complainant concerning events occurring 35 years ago, was considerable. He would have come before the courts in 1972 as a person of good character. Taking all of these matters into account, I regard a fixed term of four months imprisonment as an appropriate sentence.

20 The orders I propose are :-

1. Leave to appeal granted.

2. Appeal allowed.

3. The sentence imposed by Hosking SC DCJ on 30 March 2007 is quashed.

4. In lieu, a sentence of four months imprisonment is imposed to date from 30 March 2007, expiring 29 July 2007, at which time the applicant is entitled to be released.

21 MATHEWS AJ : I agree with Latham J.

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