O'Brien v R

[2013] NSWCCA 197

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	O'Brien v R [2013] NSWCCA 197
Hearing dates:	22 August 2013
Decision date:	22 August 2013
Before:	Hidden J at [1]; Latham J at [2]; Adamson J at [3]
Decision:	(1) Leave to appeal refused.
Catchwords:	CRIMINAL LAW- sentencing-sexual intercourse with child between 14 and 16 years- no conflation of consideration of appropriateness of imprisonment and suspension of sentence-sentence not manifestly excessive
Legislation Cited:	- Crimes Act 1900, s 66C, s 66C(3) - Crimes (Sentencing Procedure) Act 1999, s 5, s 12, s 12(1)(a), s 21A(5A)
Cases Cited:	- Gommesen v R [2012] NSWCCA 226 - Lowndes v The Queen [1999] HCA 29; 195 CLR 665 - Postiglione v R [1997] HCA 26; 189 CLR 295 - R v Zamagias [2002] NSWCCA 17 - Warner (AKA Jeremy Pachenko) v R [2013] NSWCCA 10
Category:	Principal judgment
Parties:	Shannon James O'Brien (Applicant) Regina (Respondent)
Representation:	Counsel: GD Wendler and W Chan (Applicant) S Herbert (Respondent) Solicitors: Van Houten Law (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/355896
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2013-02-21 00:00:00 Before: Colefax SC DCJ File Number(s): 2011/355896

Judgment

1. HIDDEN J: I agree with Adamson J.

1. LATHAM J: I agree with Adamson J.

1. ADAMSON J: The applicant seeks leave to appeal from the sentence passed on him in the District Court of New South Wales by his Honour Judge Colefax on the following two grounds:

(1)   The Court erred by finding that:

". . No other sentence is possible. . . no sentence other than a period of imprisonment is appropriate. . . "

and thereby elided the two step process mandated by s 5 of the Crimes (Sentencing Procedure) Act 1999 (the Act).

(2)   In all the circumstance the sentence was manifestly excessive.

1. At the conclusion of the hearing of the application for leave on 22 August 2013, the Court ordered that leave be refused. My reasons for refusing leave are set out below.

Introduction

1. On 19 February 2013 the applicant was arraigned on an indictment which charged him with four counts of unlawful sexual intercourse with a child of 14 years contrary to s 66C(3) of the Crimes Act 1900 between 20 January 2011 and 1 June 2011. The trial was listed to commence on 18 February 2013. The applicant pleaded guilty on 19 February 2013 and was sentenced on 21 February 2013. The applicant asked his Honour to take account of a Form 1 offence when imposing a sentence for the fourth count.

1. The maximum penalty for an offence under s66C of the Crimes Act is imprisonment for 10 years. There is no standard non-parole period.

1. The sentencing judge, after applying a discount of 10% for the plea of guilty, imposed an aggregate sentence of three years and seven months with a non-parole period of two years and two months to commence from the date of sentence, 21 February 2013.

1. The sentences that would have been imposed for each of the four counts, but for the aggregate sentence and the discount were as follows:

Count 1: Fixed term of imprisonment of nine months.

Count 2: Fixed term of imprisonment of three months.

Counts 3: Head sentence of three years to be served concurrently with Counts 1 and 2

Count 4 (Form 1 taken into account on count 4): Sentence of three years which would have been partially accumulated on the sentences for counts 1, 2 and 3.

1. The total effective sentence, prior to application of discount of 10% for the plea, would have been four years' imprisonment.

Summary of facts

1. The outline of facts that follows is largely drawn from the Remarks on Sentence of Colefax DCJ which in turn is derived from the agreed statement of facts.

1. As at the time of the offending conduct, the applicant was about 23 or 24 years old and the victim was 14. She first met the applicant through her grandparents when she was about nine or ten. The applicant frequently visited the victim's grandparents' home in Elsmore and sometimes took the victim and other members of her family spotlighting to rural proeprties.

1. In late January 2011 the victim moved from her father's home in Wollongong to live with her mother who lived in Elsmore, a small town where her grandparents and the appellant lived. By this time the applicant had been married for about four years and had two young children.

Form 1 offence

1. In about February 2011 the victim was alone in her mother's house, lying on a mattress watching television in the lounge room. The applicant, who had been mowing grass on the property, came in and lay down beside the victim. He began rubbing her leg and stomach and asked her if she would have sexual intercourse with him. Initially she thought he was joking but when she realised that he was serious she removed his hand from her leg. He began rubbing her leg again and ran his hand up her leg, first touching the outside of her underpants and then placing his hand inside her underpants. He inserted his finger into her vagina. She pushed his hand away. This is the matter on the Form 1, which was taken into account on the sentence for Count 4.

1. In the early months of 2011 the victim's mother was required to work at Collarenebri and was away from home frequently. During her absences, the victim stayed with her grandparents. After the Form 1 incident, the applicant approached the victim's mother and grandparents and sought their permission to take the victim spotlighting. The victim wanted to go and her grandfather agreed.

Count 1

1. One evening in early 2011 at about 7.30pm the applicant collected the victim from her grandparents' house and drove to a property nearby which was owned by one of the offender's friends. On the way, the applicant placed his hand on the victim's leg and moved it upwards. When it reached her upper right thigh, the victim moved it but he resumed rubbing her leg and rubbed her vagina on the outside of her clothing. When they arrived at the property, the applicant tried to place his hand inside the victim's underpants. He ceased after a few minutes and they went spotlighting as planned.

1. After they had finished spotlighting, the applicant stopped the vehicle and turned off the engine. He was in the driver's seat and the victim was in the passenger seat. From this position he placed his hand on the victim's leg and told her that she was beautiful and had a really nice body. He also told her that any man would be lucky to be with her. He used his hand to touch her leg by rubbing it up and down her thigh and touched her vagina on the outside of her clothing. She told him that she was not comfortable having sexual intercourse. He responded:

"Well, we can wait until you're comfortable to do it. I can wait for as long as it takes."

1. They continued to talk. The applicant got out of the driver's seat and walked around to the passenger's side. He opened the passenger's side door, leaned over the victim, unfastened her belt and pulled down her pants and underwear below her knees. He positioned her so that she was lying across the passenger's seat with her head on the driver's seat and her legs extending out of the passenger's door. The applicant placed his fingers inside the victim's vagina and moved them in and out. This is the first count on the indictment.

Count 2

1. The applicant then performed cunnilingus on the victim. She told him that she was uncomfortable with what he was doing. He said to her, "It just lubricates it." The victim asked: "Lubricates it for what?" to which he responded, "We're going to have sex." This is the second count on the indictment.

Count 3

1. The applicant used his free hand to remove his own shorts and completely remove the victim's pants. He lay down on her and placed his penis inside her vagina and had sexual intercourse with her. He was not wearing a condom. He ejaculated inside her. After a short time he removed his penis from the victim's vagina, wrapped a towel around his penis and told her that he had finished. They dressed and returned to the victim's grandparents' property. The act of sexual intercourse is the third count on the indictment.

Count 4

1. Some time later the applicant asked the victim's grandfather if he could take her out spotlighting. Two or three months after the incident in count 3, the applicant collected the victim from her grandparents' house and drove her to another friend's place. On the way, the applicant placed his hand on the victim's leg and rubbed it.

1. After spotlighting for some time the applicant resumed rubbing the victim's leg while he was driving and she was in the passenger's seat. He placed his left hand on her right leg close to her vagina and left it there for a while. Later, he stopped the vehicle and asked the applicant about having sexual intercourse. He got out of the car on the driver's side and walked around to the passenger's side, opened the door, and removed the victim's pants and lay on top of her. He was not wearing a condom. He placed his penis into her vagina and had sexual intercourse with her. He ejaculated inside her and then removed his penis and wiped it with a towel before putting his clothing back on. He drove the victim back to her grandparents' house. This act of sexual intercourse is the fourth count on the indictment.

1. During the period of time covered by the various counts on the indictment, the applicant and the victim were in touch by mobile phone. The contact included text messages. By about June 2011 the relationship between them had cooled. In August 2011 the victim's mother discovered text messages on the victim's phone and confronted her about them. The victim disclosed what had occurred and the matter was reported to the police.

The applicant's post-offence conduct and the timing of the plea

1. The applicant was arrested on 2 November 2011. He was granted bail and did not spend any time in custody until he was sentenced. He denied any improper conduct for a considerable period of time, including in an interview by police. It was not until the week prior to the date listed for the commencement of the trial that an indication was given to the Crown that there was to be a plea of guilty.

The victim impact statement

1. In her victim impact statement, the victim set out the severe emotional effects she suffered as a result of what happened to her, which became generally known because it occurred in a small town. She and her mother had to leave Elsmore which reduced their standard of living and led to a fracturing of the relationship between the victim and her mother, with whom she is presumably unable to live. The victim was bullied at school as a result of what was known by many to have occurred. She eventually had to leave school and, at the time of the sentence hearing, was trying to complete her Higher School Certificate through TAFE. She is wary of boys and finds it difficult to receive compliments, particularly about her personal appearance, because of the applicant's conduct towards her.

The applicant's personal circumstances

1. The applicant was, at the time of sentencing, 25 years old. He has no prior criminal history. He comes from a good family. He left school in Year 10, has worked hard and makes valuable contributions to the community by his involvement in the Rural Fire Service. He is married with two children. He voluntarily helps elderly people in the area by chopping wood for their fires.

1. The sentencing judge found that the plea of guilty reflected some remorse. His Honour also found the applicant's prospects for rehabilitation to be good.

Ground 1: whether the sentencing judge complied with s 5 of the Act

1. The applicant submitted that the sentencing judge conflated the reasons why no other sentence but imprisonment was appropriate with the reasons why the sentence should not be suspended.

1. In order to address this ground it is necessary to set out his Honour's consideration of the issue. His Honour said in the Remarks On Sentence:

"It has been submitted on behalf of both the Crown and Mr O'Brien that the sentences could be dealt with by way of a s 12 suspended sentence. There is an antecedent issue to resolve and that is whether any sentence other than a period of imprisonment is appropriate. In my view, no other sentence is possible. A young girl was exploited for the sexual gratification of a man considerably older than her, a married man with children, a man who knew the family well, a man who clearly planned to exploit this young girl. This was not a momentary aberration. This was a deliberate and calculated course of conduct. Notwithstanding that no violence was used, he clearly overbore the will of this girl- in part because of the long association he had with the family. No sentence other than a period of imprisonment is appropriate and I do not intend to suspend the sentence."

1. Section 5 of the Act relevantly provides:

Penalties of imprisonment

(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

. . .

(4) A sentence of imprisonment is not invalidated by a failure to comply with this section.

. . .

1. Section 12 of the Act relevantly provides:

Suspended sentences

(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:

(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, . . .

1. The process required by the Act is that consideration first be given to whether no penalty other than imprisonment is appropriate: s 5. The next question to be considered is the length of the sentence. If the sentence imposed is for a term of not more than two years a further question arises: whether the execution of the sentence ought be suspended pursuant to s 12(1)(a) of the Act. This sequence is apparent from the wording of the Act and has been confirmed by this Court in the authorities referred to in R v Zamagias [2002] NSWCCA 17 at [23]-[31] per Howie J, Hodgson JA and Levine J agreeing. Other sentencing options are available in respect of other offences but, for present purposes, these are the steps that were required for offences under s 66C of the Crimes Act.

1. In considering the applicant's submissions, it must be recognised that his Honour delivered judgment immediately following the hearing of evidence and submissions. This Court has said, on a number of occasions, that it is inappropriate to take an unduly pedantic approach to reasons contained in ex tempore judgments which are made immediately following the hearing of submissions on sentence (see for example Gommesen v R [2012] NSWCCA 226 per Garling J at [37] - [38], McClellan CJ at CL and McCallum J agreeing); see also Warner (AKA Jeremy Pachenko) v R [2013] NSWCCA 10 per S Campbell J at [33], Hoeben CJ at CL and Davies J agreeing).

1. In my view there is no substance in the first ground. His Honour properly referred to the question whether any sentence other than a period of imprisonment is appropriate as an "antecedent issue". This is ample to signify that his Honour considered it before deciding either the length of the sentence and whether it was open to him to suspend the sentence. Having determined the antecedent issue as required by s 5, his Honour imposed a term which removed suspension of the execution of the sentence as an option because the aggregate term exceeded two years. No error has been shown.

Ground 2: whether the sentence is manifestly excessive

1. It is a fundamental principle that the assessment of sentence is a matter for the primary sentencing judge. The sentence imposed is not to be interfered with unless it is shown to have been manifestly excessive or, in other words, one that was not open in all the circumstances. This Court is not permitted, absent such error, to substitute its own opinion for that of the sentencing judge: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].

1. The applicant accepted that the parties could not limit the Court's sentencing discretion. Nonetheless he submitted that it was relevant that the prosecutor supported a submission by the applicant's counsel that, in all the circumstances, the sentence ought be wholly suspended. By implication I take it that the applicant's submission was the Crown's concession that the sentence could be suspended amounted to a tacit acceptance that the aggregate sentence ought not exceed two years, since if a longer sentence was imposed, there would be no power to suspend its execution.

1. I do not consider that the applicant's argument that the sentence was manifestly excessive is fortified by reference to the Crown's submissions at the sentence hearing.

1. The Crown at the sentence hearing had an obligation to outline the options available to the sentencing judge. The Crown submitted relevantly:

"The statistics would suggest that while most cases have been dealt with by way of a sentence of imprisonment, certainly if your Honour is minded to do so, your Honour could impose a suspended sentence.

The Crown doesn't seek to inflame your Honour by pointing in any particular direction. It's entirely a matter for your Honour's discretion, how your Honour deals with the matter."

1. I do not regard what the Crown submitted in the sentence hearing as a concession that the sentence ought be suspended. It was, in my view, merely a statement that, as a matter of law, it was an available option, subject to the terms of s 12. In any event, as McHugh J said in Postiglione v R [1997] HCA 26; 189 CLR 295 at 310:

"Regardless of whether the Crown's concession was properly made [40], it is not entitled to automatic recognition or consequence. Courts must impose criminal sentences in accordance with their perception of what the public interest requires. The constitutional arrangements of this country or England do not accord the Crown any monopoly on knowing what the public interest requires."

[Footnotes omitted.]

1. The sentencing judge's assessment of the objective seriousness of the offences appears from the passage set out above. I am unable to detect any error in his Honour's approach or in the sentence imposed. The applicant's conduct was deliberate, premeditated and exploited the trust reposed in him not only by the victim herself, but also by the victim's mother and grandparents. He used his good character to gain access to the victim and to gain her trust. By failing to take any precautions he twice exposed her to the risk of pregnancy. The offences for which he was sentenced are serious offences.

1. If his Honour made any error in fixing the total term, it was to take into account the applicant's good character and lack of previous convictions as a mitigating factor in the applicant's favour, when s 21A(5A) of the Act arguably precluded its being taken into account in that way since his good character appears to have been of assistance to him in the commission of the offences. This provision was not raised at the sentence hearing. Accordingly I do not accept the applicant's submission that the sentencing judge must have been satisfied that it did not apply. However, as his Honour took into account these matters in the applicant's favour, it is not necessary to consider the provision further.

1. Accordingly ground 2 has not been made out.

Proposed orders

1. The order I propose is:

(1)   Leave to appeal refused.

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Decision last updated: 30 August 2013