O'Connell v R

[2016] NSWCCA 43

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	O’Connell v R [2016] NSWCCA 43
Hearing dates:	19 February 2016
Decision date:	18 March 2016
Before:	Hoeben CJ at CL at [1] Adams J at [2] Fullerton J at [3]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence - sexual assaults of two children - production of child abuse material – whether sentencing judge erred in failing to give practical effect to his finding of special circumstances
Legislation Cited:	Crimes Act 1900 (NSW), s 61M(2), s 91G(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:	CM v R [2013] NSWCCA 341 Kentwell v R (No 2) [2013] NSWCCA 96
Category:	Principal judgment
Parties:	Shane Scott O’Connell (Applicant) The Crown (Respondent)
Representation:	Counsel: L Brasch (Applicant) N Adams (Crown)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/238322013/103870
Publication restriction:	Non-publication order re victims and victims’ families
Decision under appeal	Court or tribunal: District Court Date of Decision: 12 May 2014 Before: Maiden SC DCJ File Number(s): 2013/23832 2013/103870

Judgment

1. HOEBEN CJ at CL: I agree with Fullerton J.

2. ADAMS J: I agree with Fullerton J.

3. FULLERTON J: The applicant seeks leave to appeal a sentence imposed by Maiden DCJ on 12 May 2014 following his pleas of guilty to multiple charges involving sexual assaults of two children in separate incidents between 2010 and 2013 contrary to s 61M(2) of the Crimes Act 1900 (NSW) and his use of both children, also in separate incidents, for the production of child abuse material and for pornographic purposes contrary to s 91G(1)(a) of the Crimes Act.

4. The applicant also invited the sentencing judge to take into account on sentence further offences against s 91 of the Crimes Act in two Forms 1.

5. The applicable maximum penalties for each of the counts on the indictment ranged from 10 to 14 years. In respect of the two counts of aggravated indecent assault on the two children (aged respectively 9 and 12 years) under s 61M(2), a standard non-parole period of 8 years applies.

6. After allowing a discount of 25 per cent for the pleas of guilty, separate sentences were imposed on each of the five counts on the indictment, with the offences on the Forms 1 taken into account on counts 2 and 5 as follows:

The offences involving the child TM aged 9 years

1. Aggravated indecent assault on a person under 16 years contrary to s 61M(2) of the Crimes Act.

2 Using a child under 14 years for pornographic purposes contrary to s 91G(1) of the Crimes Act (since amended).

Concurrent sentences of 3 years 9 months imprisonment with a non-parole period of 2 years 9 months and 21 days.

The offences involving the child KT aged 12 years

3. Aggravated indecent assault on a person under 16 years contrary to s 61M(2) of the Crimes Act.

4. Using a child under 14 years of age for the production of child abuse material contrary to s 91G(l)(a) of the Crimes Act.

5. Producing child abuse material contrary to s 91H(2) of the Crimes Act.

Concurrent sentences of 4 years 6 months imprisonment with a non-parole period of 2 years 11 months and 19 days.

7. Although neither the Crown nor the applicant’s counsel addressed the sentencing judge on the issue of special circumstances, in respect of each of the individual sentences set out above the sentencing judge altered the statutory ratio between the non-parole period and the balance of term provided for in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to 66 per cent.

8. After orders were made for partial accumulation of the two concurrent sentences, a total effective sentence of 5 years 6 months imprisonment was imposed comprised of a non-parole period of 3 years 11 months and 19 days, representing between 72 and 73 per cent of the overall sentence.

The sole ground of appeal

9. The sole ground of appeal is that his Honour erred in failing to give practical effect to his finding of special circumstances when imposing the total effective sentence, and that on re-sentence this Court would find special circumstances and impose a total effective sentence to reflect that finding.

10. The Crown submitted that even accepting that his Honour appears to have intended that the finding of special circumstances should translate into the aggregate sentence (which, in the Crown’s submission, is by no means clear) and even accepting that this is a sentencing error requiring the applicant to be re-sentenced, this Court would come to the positive finding under s 6(3) of the Criminal Appeal Act 1912 (NSW) that no other sentence than that imposed by the sentencing judge as the total effective sentence was warranted at law.

11. In the Crown’s submission, the appeal should be dismissed because there was no principled basis upon which a finding of special circumstances could have been made by the sentencing judge and, although there is no Crown appeal against the inadequacy of the individual sentences where that finding was given effect to, this Court would not, in the exercise of its sentencing discretion, allow for an extended period of supervision on parole, there being nothing in the material before the sentencing judge or relied upon by the applicant on re-sentence which would justify a lowering of the effective non-parole period below the statutory ratio.

The proceedings on sentence

12. With the issue on the appeal being confined in that way, it is unnecessary to detail the course of the applicant’s offending against two young girls, each of whom were entrusted to his care by their parents being friends of his daughter, as set out in the agreed facts tendered on sentence. In summary, the assault of the younger victim involved the applicant placing his erect penis at her mons pubis. He then exposed her genitalia by lowering her pajamas where he photographed her genitals and one of her exposed buttocks. Three years later, the assault on the 12-year-old victim involved the applicant putting his mouth on the outside of her genitals and kissing her on the mouth. On a separate occasion, he had her dress in lingerie and then photographed her.

13. The sentencing judge found the objective seriousness of the offending across all offences ranged between high mid-range offending and offending at the high range. There is no challenge to that finding.

14. His Honour also had appropriate regard to victim impact statements from both young girls.

15. The applicant tendered a report from Dr Bruce Westmore, forensic psychiatrist, and a testimonial from Craig Terence Anderson, a long-standing friend, who said that the applicant has expressed remorse for his actions and is intent on “getting his life back on track”, which Mr Anderson expresses confidence the applicant will succeed in doing.

16. Insofar as the applicant’s personal history is concerned, Dr Westmore noted the applicant’s stable family life, his educational achievements and his work history. He was working as a supplier of medical products for 13 years before leaving that position two months prior to his examination in Dr Westmore’s rooms in the weeks preceding sentence.

17. Dr Westmore noted the applicant’s self-reported psychosocial history and concluded that he appeared to be adult-focused in his sexual interests but that he developed sexual thoughts, feelings and impulses towards under-aged girls, including pre-pubescent and probably teenage girls, after exposure to pornography on the internet.

18. Dr Westmore went on to observe:

His [offending] behaviour has not only incorporated actions and activities involving two underage victims, but there are also images and internet material consistent with this particular theme.

I note he is now aged 46 and if he did suffer from the condition, Paedophilia, then I would have expected an earlier expression of this sexual orientation/condition prior to him turning age 46.

There are clearly limits associated with a single cross-sectional interview, but [the applicant], in a spontaneous way, expressed quite a comprehensive understanding about why his actions were wrong and he also has insight into why his actions and are wrong and he also has insight into the damaging aspects of the offending behaviour. He continues to have ongoing support from his family of origin and he is, as noted, probably of above average intelligence. He does not have an Antisocial Personality Disorder.

[The applicant] was also able to say that he had wondered, before being apprehended, how he might seek assistance for the emerging and inappropriate thoughts, feelings and impulses to act in a sexual way towards underage girls. He said however he was in a dilemma because if he reported having those sorts of feelings or having acted in that way towards the victims, then there would be a need for the offending behaviour to be reported and clearly, at that stage, he did not want that to occur, because of the inevitable legal consequences.

I do think this man is going to be a very good candidate for a Sex Offenders’ Programme. I think he is well motivated to attend such a programme, he will be able to relate to the programme from a psychological perspective and I think he will participate well in the programme. While predicting future risks is always difficult and it should always be qualified by the mental health professional, if [the applicant] can successfully participate in and complete a Sex Offenders’ Programme, whether this be within a prison system or outside a prison system, then I think his risks of re-offending will be significantly reduced.

19. The applicant gave evidence on sentence that he was remorseful and acknowledged the repeated breaches of trust in his sexual abuse of the two young girls. He gave evidence that he knew he had a problem before he offended but did not know how to get help. On the other hand, he denied having sexualised feelings towards prepubescent girls and could offer no rational or logical reason for his offending. I note he reported to Dr Westmore that he had accessed internet sites depicting prepubescent girls before he committed the offences on indictment. It would seem this offending was the subject of the offences on the Forms 1. The applicant did admit the offending gave him a degree of sexual gratification but he denied planning the offences. That said, the applicant’s admitted conduct the subject of the charges under s 91G of the Crimes Act which involved him taking photographs of the genitalia of the girls when they were sleeping does not indicate impulsive or opportunistic offending.

20. The applicant also gave evidence that he was willing to undertake the sex offender program recommended by Dr Westmore and that he has the support of his parents and the offer of employment upon his release from custody.

The finding of special circumstances

21. The sentencing judge made reference to special circumstances in two passages in his sentencing reasons. Immediately after he referred to the discounts for the pleas of guilty he said he would find special circumstances, a finding which he said he would develop after considering the applicant’s subjective circumstances.

22. After referring to the applicant’s expressions of remorse as reported upon by Dr Westmore, and the applicant’s evidence of remorse, the sentencing judge said:

The offender gave evidence before this court and in respect of his repeated remorse to the Court and to the victims, it was apparent to the Court that he is a person who is intelligent and that he is a person who is prepared to seek assistance in the future regarding his dysfunctional behaviours. What the Court cannot be satisfied of is, however, that he fully understands the injury and hurt that he has caused to both victims and to the friends and family of those particular young women. In terms of the need for photographing and the need for the photographing to be done when the children were sleeping, his explanation to my mind was unsatisfactory. There is no evidence that the taking of the photographs was to be used at a later time or for any other commercial or other purpose but there is no reason for it and the Court cannot find other than that the photographs were there, that this in any way amplifies his offending behaviours but it certainly does highlight the need for him to have assistance probably much greater than he suspects or is prepared to acknowledge at this point of time.

The offender stated that his words in respect of remorse most certainly and that he was completely in breach of trust and, as I have said, expressed his acknowledgement of his actions to them. At that time, those words being said, the reaction of this particular judicial officer was that words are not enough and I will dismiss from these reasons and from my decision any personal feelings that I may have or reaction to the evidence that he gave. I do however find that he has expressed remorse and that at least he has started to rehabilitate himself by acknowledging the need for such assistance in the future, that is, that he will start upon the well-known course for sexual offenders administrated by the Corrective Services organisation. That being so, I am of the view that I will make a finding of special circumstances and that I will then recommend that he commence those course or courses that may be appropriate to him to that service.

23. His Honour’s reasons for finding special circumstances seem to be for the purposes of rehabilitation based exclusively on the applicant’s acknowledgment that he needs professional intervention to address his paraphilia in the future, and his willingness to participate in a sex offender program whist in custody as a first step in that process.

24. It is clear that the applicant’s willingness to access custody-based programs per se could not justify a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act since it operates to extend the period of supervision on parole. The Crown also emphasised there was no evidence led on sentence as to how or why the applicant's participation in a community-based treatment program on his release requires any extension of the period under supervision, and nothing in the remarks on sentence to suggest that his Honour considered that question. It follows, in the Crown’s submission, that the applicant has received the benefit of a finding of special circumstances in the structure of the individual sentences to which he was not entitled and, even if his Honour might have intended that after partial accumulation the ratio of the effective non-parole period to the total effective term should also be adjusted, this Court would not make that adjustment.

25. I note that there is nothing in the sentencing remarks or in his Honour’s dialogue with the parties in the process of his Honour fixing the ratios between the non-parole period and the balance of term in the individual sentences, including in the calculus that he appeared to employ after withdrawing to his chambers, that gives any insight into whether he turned his mind to whether his finding of special circumstances should also be reflected in the total effective sentence. It may be that the ultimate adjustment in the total effective sentence, by a measure of between 72 and 73 per cent was what his Honour intended. However, if that were the case it would be reasonable to expect he would have said so.

26. In CM v R [2013] NSWCCA 341 the Court considered a ground of appeal the same as this one. R A Hulme J said:

[39] A finding of special circumstances does not compel a variation in the non-parole period. But if no variation is made, a judge is expected to give reasons as to why the finding is not being reflected in the ultimate term: Saad v R [2007] NSWCCA 98 at [33]-[36]; Heron v R [2006] NSWCCA 215 at [31]-[32]. This Court may also intervene where the result of accumulation of multiple sentences is to remove the effect of a finding of special circumstances: Stoeski v R [2008] NSWCCA 230 at [25]; Cicekdag v R [2007] NSWCCA 218 at [47]-[49].

[40] Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflect in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. A recent example of the former may be found in Houri v R [2013] NSWCCA 279; see also Phipps v R [2008] NSWCCA 178; and Stoeski. Examples of both varieties of the latter can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40]. Appeals asserting such error are not uncommon, and as Howie AJ remarked in Maglis v R [2010] NSWCCA 247 at [24], their success will often "depend upon what can be gleaned of the Judge's intention from the sentencing remarks".

27. Despite the fact that the parties had made no submissions on the issue of special circumstances at all, and despite the absence of any clearly articulated reasons for the finding of special circumstances that was made or whether it should translate into the effective sentences after the individual sentences were partially accumulated, I am prepared to accept that his Honour did intend that there should be the same adjustment in the statutory ratio, and that his failure to make allowance for it must have been through oversight or miscalculation or both.

28. That being the case, the applicant has made out a sentencing error that requires this Court to apply s 6(3) of the Criminal Appeal Act.

29. Since the appeal is limited to the question whether the sentencing judge erred in failing to adjust the non-parole period in accordance with his conclusion that special circumstances warranted such an adjustment pursuant to s 44 of the Crimes (Sentencing Procedure) Act, it is not necessary for this Court to consider whether the non-parole period and the additional term, taken together, were affected by an error of law. The only question for this Court was the propriety of the proportion of the sentence constituted by the non-parole period. Accordingly, it is necessary for this Court, in accordance with the principles in Kentwell v R (No 2) [2013] NSWCCA 96, to independently consider the application of s 44 of the Crimes (Sentencing Procedure) Act to the applicant’s sentence and, in substance, if a lesser non-parole period should have been imposed, quash the sentence and pass the appropriately adjusted sentence.

The evidence on re-sentence

30. The applicant swore an affidavit which was read on sentence. In it he confirmed his willingness to enrol in the custody-based intensive treatment sex offender program (CUBIT) but said that he was told he was not a suitable candidate because he had been assessed at a low risk of reoffending. He also detailed two occasions when, as a young boy, he was indecently assaulted by members of the clergy at a Catholic college which he appears to suggest may explain his offending against the two young girls. He said he has written to the Royal Commission into Institutional Responses to Child Sexual Abuse about the assault and has been interviewed. He restated his remorse and apologies for the harm he has caused his victims.

31. Having considered the material upon which the applicant relies on re-sentence, I am not persuaded that this Court should intervene and reduce the minimum time the applicant is to serve in custody by extending the time he will be under supervision on parole, even if only by the margin of five months the applicant proposes. That is, I am unable to come to the positive finding that some other sentence is warranted in law under s 6(3) of the Criminal Appeal Act.

32. In my view, the evidence at the sentencing hearing, as supplemented by the evidence of re-sentence upon which the applicant relies in this Court, does not allow for a finding of special circumstances - a finding of fact that in the first instance has to be resolved in the applicant’s favour if this Court is to intervene and allow for a further adjustment in the statutory ratio. I note it is not suggested by the applicant’s counsel that the order for partial accumulation of one year should attract a finding of special circumstances, and neither could it have been when the measure of accumulation was so modest for two distinct courses of very serious offending separated by three years. Neither is it suggested that there is any other basis the finding other than the applicant’s continued preparedness to seek treatment.

30. Although the sentencing judge found that treatment would facilitate the applicant’s rehabilitation, and implemented the finding of special circumstances in the adjustments he made to the statutory ratios in the individual sentences for that reason, it is not a finding by which this Court is bound. For my part, I can find nothing in the evidence, or anything put by way of submission, addressing why the applicant’s continued willingness to seek treatment in the community will better enhance his prospects of rehabilitation as to which he appears to have made good progress in prison, incidentally leading to the inference that no extended period under supervision would be needed at the expiry of the non-parole period.

31. I do not accept that that what appears to be his positive progress in the process of his rehabilitation to date, including taking education courses and attending church and maintaining his relationship with family and friends, in combination with what he reports as his low risk of his reoffending and the unavailability of a custody-based program for that reason, qualifies as a special circumstance for the purposes of s 44 of the Crimes (Sentencing Procedure) Act.

32. Even if a finding of special circumstances were available, I am not satisfied that that any further adjustment of the statutory ratio in the total effective sentence from between 72 per cent to 66 per cent, the effect of which would be to reduce the effective non-parole period by five months, would be justified in this case (the discretionary question). Even where special circumstances exist, a sentencing court is not obliged to alter the ratio of the non-parole period to the head sentence. The question for the sentencing court is whether a longer period of supervision in the community should be allowed. In this case I am not persuaded it should be.

Orders

36. Accordingly, I would propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 18 March 2016