Perry v R - [2006] NSWCCA 351

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Perry v R [2006] NSWCCA 351

FILE NUMBER(S):
2006/884

HEARING DATE(S): 7 August 2006

DECISION DATE: 08/11/2006

PARTIES:
Stefon Perry
Regina

JUDGMENT OF: Spigelman CJ Howie J Rothman J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/2680

LOWER COURT JUDICIAL OFFICER: Newman AJ

COUNSEL:
A: P Strickland SC and A Horvath
R: L Lamprati SC

SOLICITORS:
A: S Calomeris (LAC)
R: S Kavanagh (ODPP)

CATCHWORDS:
CRIMINAL LAW – CRIMINAL APPEALS – SENTENCING APPEAL
aggravated indecent assualt
using statutory non-parole period as more than a guideline
using statutory non-parole period as starting point for calculation of sentences
misuse of standard non-parole period
objective seriousness
inappropriate reduction of discount for earliest plea of guilty based on other than utilitarian value of plea

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted
The sentence imposed on the applicant by his Honour Newman AJ on 28 April 2005 for the two offences of aggravated indecent assault contrary to s.61M(2) of the Crimes Act 1900, be quashed
Pursuant to the terms of s.7 of the Criminal Appeal Act 1912 the sentence imposed by his Honour Newman AJ on 28 April 2005 on the applicant for the count of murder, be varied in accordance with the following
The following sentences be imposed: i. For the offence of aggravated indecent assault (child under 10) contrary to s.61M(2) of the Crimes Act 1900 committed between 22 February 2004 and 23 February 2004 (Count 2), the applicant be sentenced to imprisonment for a non-parole period of three years and seven months commencing 23 February 2004 and expiring on 22 September 2007 with the remainder of term of one year and two months expiring on 22 November 2008
ii. For the offence of aggravated indecent assault (child under 10) contrary to s.61M(2) of the Crimes Act 1900 committed between 22 February 2004 and 23 February 2004 (Count 3), the applicant be sentenced to imprisonment for a non-parole period of three years and seven months commencing 23 February 2004 and expiring 22 September 2007 with the remainder of term of one year and two months expiring on 22 November 2008
iii. For the offence of murder contrary to s.18 of the Crimes Act 1900, committed between 22 February 2004 and 23 February 2004, the applicant be sentenced to imprisonment for a non-parole period of 18 years and five months commencing 23 June 2005 and expiring 22 November 2023 with the remainder of term of 5 years and 3 months expiring 22 February 2029.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/884
SPIGELMAN CJ
HOWIE J
ROTHMAN J
Wednesday 8 November 2006

STEFON PERRY v REGINA

Judgment

SPIGELMAN CJ: I agree with Rothman J.
HOWIE J: I agree with Rothman J.
ROTHMAN J: The applicant, Stefon Perry, pleaded guilty to three charges: the murder of Karen Newby on the night of 22 February - 23 February 2004; and two counts of aggravated indecent assault on the seven year old child of Karen Newby on the same evening contrary to s.61M(2) of the Crimes Act 1900. The first charge carries with it a maximum penalty of life imprisonment and each of the other charges carries a maximum sentence of 10 years’ imprisonment. His Honour Newman AJ sentenced the applicant in the following terms:
“For the crime of murder, the head sentence will be imprisonment for 25 years commencing on 23 February 2004 and expiring on 22 February 2029, with a non-parole period of 18 years and 9 months expiring on 22 November 2022. For the crimes of aggravated indecent assault, concurrent head sentences of 6 years commencing on 22 August 2020 and expiring on 21 August 2026, with concurrent non-parole periods of 4 years and 3 months commencing on 22 August 2020 and expiring on 21 November 2024, when the prisoner will be eligible for release on parole.”
The effective overall sentence imposed by his Honour was for a non-parole period of twenty years and nine months and an overall remainder of four years and three months. The manner of setting the sentence, which occurred on 28 April 2005, was contrary to the provisions of s.44 of the Crimes (Sentencing Procedure) Act 1999 (‘the Act’) and four grounds of appeal are raised by the applicant in relation to the offences of aggravated indecent assault. Those grounds are:

a             His Honour erred in using the standard non-parole period as a starting point for the determination of the sentences;
b             His Honour erred in finding that the applicant’s culpability for these crimes fell with in the mid-range of objective seriousness;
c             The sentences imposed were manifestly excessive; and
d             His Honour erred in discounting the sentence by 12½ percent for his pleas of guilty.

Facts

Agreed facts were tendered before Newman AJ and his Honour repeated those agreed facts in his remarks on sentence.
Because the agreed facts deal with the murder, the sentence for which is not the subject of appeal, it is unnecessary to deal in detail with the facts surrounding the murder, except to the extent that the circumstances of the two counts of assault with an act of indecency overlap with or impact upon the murder.
The applicant lived with the deceased and her then partner at the deceased’s house in Asquith for some time. The applicant moved out of the house in September 2002, approximately. One or two months later the deceased and her then partner separated and the partner moved out of the house. Just prior to Christmas 2002 a sexual relationship developed between the applicant and the deceased and the applicant moved back into the deceased’s house.
The relationship continued until 10 February 2004 (except for a short break of 3 days in January 2004) at which time the applicant moved into the house of a friend, approximately 200 metres from the deceased’s house.
On the morning of Sunday, 22 February 2004 the applicant called the deceased and asked to spend some time with her. After a couple of conversations relating to access to the children for the deceased’s former partner, arrangements were made whereby the applicant was invited into the deceased’s home that evening and they worked together on the computer. Two of the three children in the house were asleep. The older one, at some point during the evening, went into the study, gave both the deceased and the applicant a hug, went to her bedroom and went to sleep.
The deceased and the applicant talked for a number of hours thereafter until about 11.15 pm when they engaged in consensual sexual conduct. The circumstances of that sexual conduct are only marginally relevant. It is sufficient for present purposes to recite that the sexual conduct involved the use of sex toys. An argument developed and the applicant punched the deceased a number of times before strangling her. After murdering the deceased, the applicant placed a dildo into each of the deceased’s vagina and anus and smeared the deceased’s faeces over her face and into her mouth.
All three of the deceased’s children had been asleep during the murder. The applicant went into one child’s bedroom and woke her up. The applicant carried her (the complainant) to the lounge room and lay down on the floor next to her. The applicant removed his clothes and removed the complainant’s underpants. He went to the bathroom and returned with a bottle of Sorbolene cream, laid the complainant on a rug and pillows on the floor and rubbed her body and genital area with the cream. The applicant then masturbated and ejaculated. This latter process did not involve the complainant touching the applicant, but some ejaculate got on the complainant and was rubbed on her body.
Afterwards, the applicant carried the complainant back to her room and put her to bed. The applicant then left the premises.
On returning home, the applicant rang the police and told him that he had killed the deceased. After his arrest, the prisoner made a full confession and admitted, in relation to the complainant, that he had rubbed sorbolene cream on her front and back but denied interfering with her in any other way.
Section 44 of the Crimes (Sentencing Procedure) Act 1999
The applicant does not, independently, raise the question of a misapplication of s.44 of the Crimes (Sentencing Procedure) Act 1999. There is good reason for this. That a judge does not first set a non-parole period and then a balance of the term of a sentence, contrary to the provisions of s.44 of the Crimes (Sentencing Procedure) Act 1999, has been described as a technical error. While it is inconsistent with the provisions of s.44 for the judicial act of sentencing to be performed otherwise than in accordance with s.44, a failure to comply with that section will not of itself give rise to a lesser sentence: see Itaoui v R (2005) 158 A Crim R 233; R v Brown [2006] NSWCCA 249. As has been made clear on a number of occasions, s.44 controls the judicial act, not the process of reasoning leading to such an act: see R v Way (2004) 60 NSWLR 168; R v Moffitt (1990) 20 NSWLR 114. If the reasoning process is otherwise correct, and the sentence does not otherwise disclose error of a kind that should be corrected on appeal, a failure to set first the non-parole period will, if corrected, only give rise to the setting of the equivalent sentence in accordance with the Act. That is not to encourage anything other than compliance with the provisions of s.44 of the Act.
The other aspect of s.44 that affects an analysis of the sentences imposed by his Honour is the operation of s.44(2). That subsection prescribes a ratio between the remainder of the term and the non-parole period such that the remainder of the term cannot, without special circumstances, be more than one third of the non-parole period. In this case, his Honour fixed the statutory ratio of 3:1, precisely, in relation to the offence of murder. His Honour fixed a ratio in relation to the two offences of aggravated indecent assault which is, albeit only slightly, less than 3:1 and for which a finding of special circumstances would be needed. Of course, as has been made clear in a number of cases, where a sentence is made cumulative on another sentence, that, of itself, may amount to special circumstances in relation to the last sentence in order to preserve or implement the overall statutory relationship between the non-parole period and the balance of sentence: R v Simpson (1992) 61 A Crim R 58; R v Close (1992) 31 NSWLR 743; R v Swan [2005] NSWCCA 252. Therefore, I do not suggest that his Honour did not have good reason to find special circumstance in relation to the last sentence or sentences imposed. However, his Honour made no such finding and did not implement a ratio of 3:1 in fixing the last sentences.
Moreover, notwithstanding the fixing by his Honour of a 3:1 or close to 3:1 ratio for each offence, the overall sentence displays a ratio of almost 5:1. This ratio is not prohibited by the Act and does not require a finding of special circumstances. However, where a sentencing judge’s reasons disclose an intention to reflect a ratio no greater than the 3:1 prescribed by the Act, and no reasons are given for an overall sentence which does not reflect that ratio, an appeal court will generally consider this not to be a deliberate departure, but rather an understandable mistake of the effect of cumulative sentencing. In other words, where a judge, having fixed the 3:1 ratio for each individual offence, intends deliberately to depart from the ratio in the overall sentence, a statement to that effect should be made. Otherwise, it will be presumed that the adjustment to account for cumulative sentencing has accidentally been omitted and correction will be made: R v Swan, supra at [23], [24].
Ground 1: Misuse of Standard Non-Parole Period
His Honour in sentencing cited at length the judgment of her Honour Simpson J in R v AJP (2004) 150 A Crim R 575 on the use that might be made of the standard non-parole period. His Honour expresses the view that R v AJP, supra, makes clear “that a sentencing court must pay due regard to the specific non-parole period as a guide or benchmark.” He then, expressly, applied that reasoning process to the offence of murder. In relation to the other two offences, the passage that dealt with the standard non-parole period immediately followed the passage dealing with that issue in relation to the offence of murder. His Honour referred to the standard non-parole period of five years’ imprisonment, the finding that the applicant’s culpability for these two offences fell within the mid-range of objective seriousness and the plea of guilty. His Honour reduced the level of discount that he would apply because of the statements made by the applicant in the recorded police interview suggesting that the actions in relation to the complainant were therapeutic rather than criminal. This his Honour described as an “outrageous suggestion” and he decided not to apply the maximum discount of 25 percent. He reduced it to 12½ percent. I will deal later with the issue of the discount for the plea of guilty.
An application of a 12½ percent discount to a five year sentence results in four years and four and a half months. His Honour fixed a non-parole period of four years and three months. I reiterate that in so doing his Honour fixed a non-parole period more beneficial to the applicant than the standard ratio. In those circumstances, the setting of a non-parole period of four years and three months seems to have been fixed by an arithmetic application of a discount of 12 ½ percent to the standard non-parole period. In that way, it seems as if his Honour has used the standard non-parole period as more than a reference point, benchmark, sounding point or guidepost: R v AJP, supra, at [13]; R v Way, supra.
However, even if this ground be made out, the qualifications must be applied relating to the operation of s.6(3) of the Criminal Appeal Act 1912. If no lesser sentence is warranted, then the misapplication of the standard non-parole period may not result in a different sentence.
Ground 2: Objective Seriousness and Ground 3: Manifest Excess
These two grounds were dealt with together in submissions and are dealt with together in these reasons.
As previously stated, these grounds do not relate to the murder offence. Any aggravated indecent assault on a seven year old child is serious. Nevertheless, a sentencing judge is faced with the unenviable task of determining where within the range of offences caught by the provisions of the Crimes Act 1900 any particular offence fits. The objective gravity of the offences in question have a number of features. The High Court described some of the range of offences with which s.61M is concerned in Saraswati v The Queen (1991) 172 CLR 1, particularly in the judgment of McHugh J.
There are a number of provisions of the Crimes Act 1900 which deal with sexual offences. A number of those provisions deal with far more serious offences than s.61M of the Crimes Act 1900. Even within the provisions of s.61M there are offences which are far worse than the offences here committed.
I reiterate that every aggravated sexual assault is serious. Nevertheless, within the range of offences that fall within the description of aggravated sexual assault, the offence in question is not the most serious. There were a number of aggravating features. First, the applicant was in a position of trust towards the complainant. Second, because of the murder which immediately preceded these offences, the complainant was in a particularly vulnerable position. Nevertheless, no physical harm was caused to the complainant and the complainant was not required to perform any sexual act on or for the applicant.

I do not lose sight of the fact that, even though no immediate physical damage was occasioned and there will be no lasting physical injury, once the complainant is old enough to appreciate what has occurred, the complainant will almost inevitably manifest a psychological affect, perhaps for the remainder of her life. Such affect is a usual consequence manifested by most victims of sexual abuse and, therefore, does not, within the range of offences which are aggravated indecent assaults, determine the relative objective gravity of the conduct for the offence in question as against different conduct that would still be an offence under the same provision of the Crimes Act 1900.
As earlier stated, there were significant issues relating to the breach of trust associated with these offences. Sexual abuse within a family is more likely to receive condign punishment because of the necessary vulnerability of the victim and the need for general deterrence in circumstances where there are few, if any, other protections available.
It is no more than informative to examine the range of sentences that have been imposed for an offence under s.61M(2) since 1 February 2003. Of the 96 cases for which the Judicial Commission has gathered statistics, 45 percent of them receive no term of imprisonment. Of the 55 percent that received a term of imprisonment, the range of the total sentence was from six months to seven years with the mid-range of sentence being up to four years’ imprisonment. If one looks only at non-parole periods or fixed term, the mid-range of sentences imposed goes up to 30 months imprisonment. There is, however, no necessary correlation between the statistical mid-range of sentences imposed for convictions recorded and an appropriate sentence for an offence of mid-range culpability. It is possible, for example, that of the offences thus far recorded, all were for low range culpability. If the full-range of culpability is involved, then the courts may have been too lenient in sentencing. Statistics may be used in sentencing only with great caution: R v Bloomfield (1998) 44 NSWLR 734 at 738-9, per Spigelman CJ, and the proper guideposts are the maximum sentence and any standard non-parole period: R v Way, supra.
Unless it can be shown that there is a mistake of law, principle or fact, or a misapplication of law, principle or fact, or there has been manifest error, an appeal court ought not interfere with a sentencing judge’s adjudication of the objective culpability of an offence: R v Dang [2005] NSWCCA 430 at [22]; R v Mulato [2006] NSWCCA 282. While the Court may more readily interfere if no basis is given for the assessment, the Court will not interfere unless the characterisation of criminality was not open.
It seems, on balance, that the adjudication in this case, taking account of all of the factors, including those stated above, is not incorrect, and was open to his Honour.
Ground 4: Underestimation of Discount for Plea of Guilty
As already stated, the sentencing judge discounted the sentence by 12½ percent on account of the plea of guilty. It must be accepted that the applicant pleaded guilty at the earliest possible time. His Honour did not grant the maximum for reasons set out earlier but essentially because the applicant lied about the extent of the indecent assault when interrogated by the police and the suggestion in that interview was described by his Honour as “outrageous” and would “have a muting effect on his claim for contrition in this regard.”
Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to take into account the fact that the offender has pleaded guilty and the timing of that plea. Further it requires that if a court, on a plea of guilty, does not impose a lesser sentence than otherwise would be the case, the court must indicate reasons to the offender and make a record of them.
This Court in R v Thomson and Houlton (2000) 49 NSWLR 383 discussed the operation of s.22 of the Crimes (Sentencing Procedure) Act 1999 and the appropriate method of applying it. Chief Justice Spigelman (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) said:
“[3] It has long been the practice of this Court that a plea of guilty should attract a lower sentence than would otherwise be imposed. Three reasons are usually advanced to justify the practice. First, the plea is a manifestation of remorse or contrition. Secondly, the plea has a utilitarian value to the efficiency of the criminal justice system. Thirdly, in particular cases – especially sexual assault cases, crimes involving children and, often, elderly victims – there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence. …
[115] There is considerable force in the proposition that the combination of utilitarian elements with remorse and witness vulnerability involves the addition of incommensurable factors. The benefits to the criminal justice system as a whole, which flow from a plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or to the conduct of the offender. Such benefits flow from an act by the offender that is not directly related to any of the multifarious objectives designed to be served by the sentencing process: deterrence, rehabilitation, punishment etc. Rather, they are a collateral benefit for the efficiency and effectiveness of the criminal justice system as a whole, which require acknowledgement of some character by way of an incentive, so that the benefits will in fact be derived by the system. …
[160] The Court should adopt the following guidelines applicable to offences against State laws:
(i)A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii)Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant – contrition, witness vulnerability and utilitarian value – but particular encouragement is given to the quantification of the last-mentioned matter. …
(iii)The utilitarian value of the plea to the criminal justice system should generally be assessed in the range of 10 to 25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. …
(iv)In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.”

While in certain circumstance it may be appropriate for a plea of guilty not to lead to any discount, the general rule is that it will. In this case, the reduction of the discount to 12½ percent is a reduction which is unwarranted, at least to that extreme, and bespeaks a confusion between the utilitarian value for which the 10 to 25 percent discount is allowed and the remorse which is another factor in the sentencing process: Thomson and Houlton, supra.
Conclusion
The determination of an appropriate sentence is an exercise of discretion which involves the balancing of sometimes inconsistent goals and, like the exercise of any discretion, will be interfered with by an appellate court only on the basis of: the application of a wrong principle; the consideration of an extraneous or irrelevant matter; a refusal to take into account a relevant matter; or, a manifest error such that the decision is plainly unjust.
For the reasons set out earlier, the sentence imposed by his Honour should be quashed. It falls to the Court in those circumstances to re-sentence. I allow, for the very early plea of guilty, a discount of 25 percent to account for its utilitarian value. I do not consider that there are special circumstances requiring a longer period of rehabilitation after entering the community but I also do not consider that the overall sentence should have a ratio greater than 3:1. Because I am constrained to set a total sentence no longer than the sentence imposed below, I will reduce the remainder and the end result will be a ratio of 3.76:1.
I do not interfere with the assessment that the offences in question are mid-range in objective criminality.
In accordance with the principles adumbrated by the High Court in Veen (No.2) (1988) 164 CLR 465, I note that the applicant has a prior criminal history but not one which requires the Court to impose condign punishment to deter the offender in regard to these particular offences. I also bear in mind that, given that these offences are being imposed at the same time as the imposition of the sentence for murder that occurred on the same night, there must be the application of a degree of proportionality and totality.
In relation to totality, in circumstances such as these, it is both easier and more appropriate to deal with the most serious offence last. Notwithstanding that no appeal has been filed against the sentence for murder, the Court has the power, as it is to quash the two sentences under appeal, to quash or vary any other sentence passed at the trial: s.7 Criminal Appeal Act 1912. The Court also has power pursuant to the terms of s.59 of the Crimes (Sentencing Procedure) Act 1999 to vary the date of commencement of the murder charge, as the Court is to quash the sentences imposed on the two charges under appeal. Section 7 of the Criminal Appeal Act 1912 is a wider power which allows variation of the sentence. Section 59 of the Crimes (Sentencing Procedure) Act 1999 allows only variation of the commencement (and necessarily the expiry) of the murder sentence.
The application of the principles adumbrated by the High Court in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610, each of which was explained (and reconciled) in Johnson v The Queen (2004) 78 ALJR 616, allow some flexibility in approach. I will apply the orthodox approach. I will impose a separate sentence for each offence, taking into account the matters that affect that sentence. At the end of that process I will apply the totality principle by making the sentences either wholly or partially concurrent. I make it clear that the better practice is to sentence for the most serious offence last because it brings about a lesser distortion of the overall ratio and therefore a lesser need to vary the terms to make provision for totality.
I find, as did his Honour below, that the two sexual offences involve a continuation of the one act of sexual gratification and cannot be separated. Further, the Crown does not complain that such treatment by his Honour was inappropriate.

I propose to adjust the murder sentence to take account of the totality principle. I further adjust the sentence to ensure that the total sentence is not longer than that imposed by his Honour below.
I propose the following orders:

a Leave to appeal granted;
b The sentence imposed on the applicant by his Honour Newman AJ on 28 April 2005 for the two offences of aggravated indecent assault contrary to s.61M(2) of the Crimes Act 1900, be quashed;
c Pursuant to the terms of s.7 of the Criminal Appeal Act 1912 the sentence imposed by his Honour Newman AJ on 28 April 2005 on the applicant for the count of murder, be varied in accordance with the following;
d The following sentences be imposed:

For the offence of aggravated indecent assault (child under 10) contrary to s.61M(2) of the Crimes Act 1900 committed between 22 February 2004 and 23 February 2004 (Count 2), the applicant be sentenced to imprisonment for a non-parole period of three years and seven months commencing 23 February 2004 and expiring on 22 September 2007 with the remainder of term of one year and two months expiring on 22 November 2008;
For the offence of aggravated indecent assault (child under 10) contrary to s.61M(2) of the Crimes Act 1900 committed between 22 February 2004 and 23 February 2004 (Count 3), the applicant be sentenced to imprisonment for a non-parole period of three years and seven months commencing 23 February 2004 and expiring 22 September 2007 with the remainder of term of one year and two months expiring on 22 November 2008;
For the offence of murder contrary to s.18 of the Crimes Act 1900, committed between 22 February 2004 and 23 February 2004, the applicant be sentenced to imprisonment for a non-parole period of 18 years and five months commencing 23 June 2005 and expiring 22 November 2023 with the remainder of term of 5 years and 3 months expiring 22 February 2029.

**********

LAST UPDATED: 14/11/2006