PH v The King

[2023] NSWCCA 176

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

PH v R [2023] NSWCCA 176

Hearing dates:

3 May 2023

Date of orders:

14 July 2023

Decision date:

14 July 2023

Before:

Simpson AJA at [1]
Rothman J at [2]
Cavanagh J at [3]

Decision:

(1) Leave to appeal is granted.

(2) The appeal is allowed.

(3) The sentence imposed in the District Court is quashed.

(4) In lieu thereof, the applicant is sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years and 2 months.

Catchwords:

CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — sexual offending and breach of ADVOs — whether sentencing judge failed to take into account impact of COVID-19 pandemic on custodial imprisonment — where Crown concedes error on that point — whether sentencing judge erred in consideration of two aggravating factors said to be inherent in the criminality of the offence — appeal allowed on COVID-19 ground — applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic & Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Church v R [2012] NSWCCA 149

Jonson v R [2016] NSWCCA 286

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

McKinnon v R [2020] NSWCCA 106

PC v R [2022] NSWCCA 107

Category:

Principal judgment

Parties:

PH (Applicant)
Crown (Respondent)

Representation:

Counsel:
C McGorey (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for the NSW Director of Public Prosecutions (Respondent)

File Number(s):

2020/17855; 2020/57716; 2020/234862

Publication restriction:

An order pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW) prohibiting the publication of the name or any matter which could identify the identity of the victim.

An order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) suppressing the name of the applicant.

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

25 October 2021

Before:

N Williams DCJ

File Number(s):

2020/17855, 2020/57716, 2020/234862

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal from a sentence imposed on him in respect of one count of sexual intercourse with a child under the age of 10 contrary to s 66A(1) of the Crimes Act 1900 (NSW) and four counts of contravening an Apprehended Domestic Violence Order (“ADVO”) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The applicant pleaded guilty in the District Court to all counts.

At the time of the offending, the applicant was living with the victim’s mother, the victim and three other children. During the period 2016-2017, the victim often felt scared at night and was unable to sleep on her own. At one point, between 20 March 2016 and 31 January 2017, the applicant was sleeping with the victim in her bed. He moved his body over the top of her, pulled down her underwear and licked her vagina. The next day, the applicant told the victim not to tell anyone about what had happened or he would go to gaol.

Four years later, the victim told her mother about what had occurred, and the police were contacted. The applicant was charged and an ADVO was made against him.

During the period February to June 2020, the applicant contacted the victim’s mother on numerous occasions. On 16 February 2020, the applicant sent the victim’s mother two pictures of his erect penis by Snapchat as well as a video of him masturbating. Consequently, a further ADVO was made for the express protection of the victim’s mother.

On 6 and 7 June 2020, the applicant contacted the victim’s mother three times and spoke to her about the offending conduct, contrary to the second ADVO.

Upon sentencing the applicant, the sentencing judge allowed a discount of 25% based on the early pleas of guilty and imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years.

The applicant sought leave to appeal on three grounds, being:

1. the sentencing judge erred by failing to take into account the onerous impact of the COVID-19 pandemic on the conditions of imprisonment;

2. the sentencing judge erred in the application of the “commission in the home” and “breach of trust” factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1986 (NSW) (“CSP Act”)

3. the aggregate sentence imposed was manifestly excessive.

The Crown accepted error in respect of ground 1 but disputed error in respect of grounds 2 and 3.

The Court (per Cavanagh J, Simpson AJA and Rothman J agreeing) confirmed that the absence of a finding in the remarks on sentence as to the general impact of COVID-19 on prisoners meant that the Court was unable to ascertain whether or not the sentencing judge took account of that issue on sentence: at [53]-[55]. Error having been conceded, it was not necessary for the Court to consider grounds 2 and 3.

The Court granted leave to appeal and proceeded to resentence the applicant.

Resentencing

With respect to the sexual offending, the Court considered that it fell within the broad category of cases below the middle of the range: at [58].

The sexual offending involved a significant breach of trust and took place in the victim’s home. Whilst there may be some overlap between those factors, they are both aggravating factors to be taken into account having regard to subss 21A(2)(eb) and (k) of the CSP Act (see Jonson v R [2016] NSWCCA 286 per Bathurst CJ at [40]-[50], Beazley P, Hall, Bellew and N Adams JJ agreeing): at [61]-[64].

The ADVO offences fell more towards the lower end of the range. The offending did not involve any direct contact or threats: at [69].

The Court imposed an aggregate sentence of 7 years imprisonment with a non-parole period of 4 years and 2 months.

Judgment

1. SIMPSON AJA: I agree with Cavanagh J.

2. ROTHMAN J: I agree with Cavanagh J.

3. CAVANAGH J: The applicant seeks leave to appeal against the sentence imposed on him by Judge N Williams DCJ at the Dubbo District Court on 22 October 2021 (with an amendment to her Honour’s judgment made subsequently on 25 October 2021).

4. The applicant pleaded guilty to:

1. one count of sexual intercourse with a child under the age of 10 contrary to s 66A(1) of the Crimes Act 1900 (NSW); and

2. four counts of contravening an Apprehended Domestic Violence Order (“ADVO”) contrary to s 14(1) of the Crimes (Domestic & Personal Violence) Act 2007 (NSW). These charges were transferred to the District Court on two certificates pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (“Criminal Procedure Act”) as related offences.

5. The sexual offending was committed between 20 March 2016 and 31 January 2017. The offending involved the applicant’s stepdaughter, who was at the time 8 years of age. The applicant was 27 years old at the time.

6. The contravene ADVO offences were committed between 3 February and 7 June 2020. They related to electronic communications between the applicant and the victim’s mother.

7. The sexual offending carries a maximum penalty of life imprisonment with a 15-year standard non-parole period. The ADVO offending carries a maximum penalty of imprisonment for 2 years.

8. After allowing a discount of 25% based on a plea of guilty in accordance with s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”), the sentencing judge provided indicative sentences for each offence, as follows:

1. for the offence of sexual intercourse with a child under 10: 7 years and 9 months imprisonment with a non-parole period of 4 years and 9 months; and

2. for the contraventions of the ADVOs (being four separate offences): 6 months imprisonment each.

9. The sentencing judge imposed an aggregate sentence, after discount, of 8 years imprisonment with a non-parole period of 5 years.

10. The applicant seeks leave to appeal on three grounds, being:

1. the sentencing judge erred by failing to take into account the onerous impact of the COVID-19 pandemic on the conditions of imprisonment;

2. the sentencing judge erred in the application of the “commission in the home” and “breach of trust” factors in s 21A(2) of the CSP Act by:

1. failing to moderate weight given to those factors given they were inherent features or already informed the evaluation of the offence’s criminality; and/or

2. failing to give sufficient reasons for her Honour’s determination on this matter; and

3. the aggregate sentence imposed was manifestly excessive.

11. The Crown accepts error in respect of Ground 1 but disputes error in respect of Grounds 2 and 3. Further, the Crown says that no lesser sentence is warranted in law.

12. There were agreed facts on sentence. The sentencing judge sentenced the applicant based on those agreed facts.

Circumstances of offending

13. The applicant was the victim’s stepfather. At the time of the sexual offending, the applicant was living with the victim’s mother, the victim and three other children. The victim referred to the applicant as “Dad”.

14. In 2016, the family moved into a home at Dubbo. The victim had her own bedroom and her own bed. However, on occasion she became scared at night. She was unable to sleep on her own. She would get up and ask for someone to come and sleep with her. Either the victim’s mother, her sister or the applicant would sleep next to her.

15. Sometime between 20 March 2016 and 31 January 2017, the applicant was sleeping with the victim in her bed. He moved down the bed near her legs. He moved his body over the top of her and started pulling down her underwear. He pulled down her underpants and licked her vagina for a short time. The only thing the victim could recall is that the applicant said, “Just let me look at something”. The next day, the applicant told the victim not to tell anyone about what happened otherwise he would go to gaol. He told her that “We have to keep it a secret”. The victim was worried she would get into trouble if she told her mother what happened. On some occasions she had flashbacks about what happened.

16. On 18 January 2020, the victim was asleep in her bedroom. Her sister was next to her. She saw the applicant down on his hands and knees in her bedroom. The applicant was looking for the family’s cat which sometimes slept under the bed. This caught the victim off guard. She got up and went to the lounge room, taking a blanket with her. After 8.00am, she sent a message to the applicant on Facebook Messenger saying, “Why were you in my room?” She became upset as she had a flashback about what had happened to her.

17. The applicant went into the victim’s bedroom and offered her breakfast, saying that he had just been looking for the cat. The victim continued crying and then said to the applicant, “I remember what you did to me”. He put his hand on her shoulder and said “I’m sorry. I didn’t mean to, I’m sorry”. She said she wanted to tell her mother. The applicant asked her not to. The victim’s mother then came into the room. After some back and forth as to why she did not want to say anything, the victim said to her mother “When I had my old bed, Dad licked me down there. I keep trying to forget it, but I just keep remembering it.” The victim’s mother approached the applicant. His only response was, “I don’t know what to say”.

18. The police were contacted. The applicant was charged and ultimately pleaded guilty.

19. Following the charging of the applicant, an ADVO was made against him for the protection of the children in the family. It extended to the victim’s mother. The applicant was prohibited from:

• assaulting or threatening the victim’s mother; and

• stalking, harassing or intimidating her.

20. Despite the imposition of the ADVO, the applicant contacted the victim’s mother through various electronic means. On 3 February 2020, he sent a message via Snapchat saying “I’m going to kill myself, okay? Is this what you want?” In response, the victim’s mother contacted the applicant’s mother out of concern for his welfare.

21. On 14 February 2020, the applicant contacted the victim’s mother by Snapchat saying:

“Well, hate me, what the fuck can I do? I can’t do fucking nothing. I’m not allowed near them for three years. I can’t fucking sleep. I can’t do anything without feeling like the biggest price [sic] of shit in the world I’m better off dead then I’ll be gone for good.”

22. Then on 16 February 2020, the applicant sent the victim’s mother two pictures of his erect penis via Snapchat, which he said he would send to her friends. He also sent a video of himself masturbating.

23. It was an agreed fact that these images, taken in the context of the earlier messages, amounted to harassment and intimidatory conduct by the applicant towards the victim’s mother. This conduct is the subject of one charge and is a related offence pursuant to s 166 of the Criminal Procedure Act.

24. An ADVO was subsequently made for the express protection of the victim’s mother which prohibited the applicant from:

• assaulting, threatening, harassing, stalking or intimidating her;

• destroying or damaging her property; and

• approaching or contacting her unless through a lawyer.

25. Whilst the applicant was held on remand at a correctional centre, he registered the victim’s mother’s mobile telephone number on his gaol telephone account, falsely identifying her number as belonging to his brother. He attempted to contact her on 5 June 2020.

26. Then on 6 June 2020, he called her on her mobile phone. Their conversation included a discussion about these proceedings.

27. Then on 7 June 2020, the applicant called the victim’s mother and spoke to her for six minutes; again, he raised the subject of his offending.

28. An hour later, he called her to discuss the offending further. It is an agreed fact that on each occasion that the applicant called the victim’s mother, he breached the condition of the ADVO which prohibited him from contacting her.

The remarks on sentence

29. After setting out the agreed facts to which I have just referred, the sentencing judge referred to the victim impact statement which was read out on the victim’s behalf by her mother.

30. Her Honour then said that, having regard to general sentencing principles, she was satisfied that no sentence other than a term of imprisonment was appropriate. Her Honour then referred to the subjective features pertaining to the applicant, which included consideration of the psychological report of Dr Christopher Lennings, a letter from the applicant, a letter from the applicant’s mother and a letter from the applicant’s mother and sisters.

31. The applicant explained his conduct to Dr Lennings on the basis that he had been experiencing drug-induced psychosis at the time of the offending and that afterwards, he thought it might have been a dream. He said he sent pictures of his genitals to the victim’s mother out of jealousy and frustration.

32. The applicant also recalled a turbulent childhood with significant problems. He had witnessed violence in his household perpetrated by his father upon his mother. Similarly, that violence had continued with other partners of his mother. His mother had served time in prison. He left school in Year 10 and performed poorly at school, although he had maintained steady employment since leaving school. He referred to being legally blind in one eye and suffering from arthritis following an accident. He developed a dependence on painkillers to assist him. He had been a heavy abuser of alcohol until about eight years prior to the relevant offending.

33. He said that during the period of offending he was a heavy user of the drug ice.

34. The applicant reported to Dr Lennings that he had been a victim of sexual abuse when he was 13 years of age. He tended to repress those memories, albeit there were repeated occasions of sexual abuse.

35. The sentencing judge referred to Dr Lennings’ opinion that the applicant suffered a lack of insight and a low level of psychological sophistication. The applicant told Dr Lennings that he viewed sexual relationships with children as disgusting and abhorrent.

36. Dr Lennings considered that the offending was isolated in nature and did not represent any paedophilic interest by the applicant. Further, Dr Lennings suggested that the breach of the ADVOs stemmed from cognitive confusion and a lack of emotional tools to deal with what the applicant was going through.

37. The applicant relied upon a character reference from his mother and sister. He also provided a handwritten letter to the Court which the sentencing judge took into account.

38. The applicant gave evidence which was essentially consistent with what he had told Dr Lennings. It was put to him that he had told lies to the police, particularly relating to his denials of the offending. It was also put to him that he tried to shift the blame from himself to drug use and that he had made up the story about his sexual abuse as a child. The applicant rejected the proposition that he had invented the allegation of abuse to shift responsibility from himself.

39. The sentencing judge carried out an extensive review of the evidence and the submissions of the parties. Her Honour also had regard to some comparable cases whilst acknowledging that they were all unique.

40. Her Honour accepted that the fact that the offence was committed in the victim’s home was an aggravating feature pursuant to s 21A(2)(eb) of the CSP Act. Further, her Honour accepted that the applicant had breached a position of trust towards the victim, as he was her stepfather.

41. In terms of mitigating features, her Honour acknowledged the plea of guilty. She also found that the offending was not planned and that it was an opportunistic response in the situation the applicant found himself in, being in bed with the victim and alone in her room. Her Honour accepted that there was some evidence of remorse.

42. Her Honour considered that general and specific deterrence were relevant.

43. Having regard to the applicant’s traumatic background, her Honour accepted that there should be a reduction in the moral culpability of the applicant in accordance with the principles set out in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. Her Honour found special circumstances on the basis that the applicant would need to spend an extended period of time on parole to address his drug issues and to assist with his reintegration into the community.

44. As for rehabilitation, her Honour accepted that some of the applicant’s evidence was designed to deflect blame away from him. Further, her Honour noted that there were inconsistencies in the applicant’s account. She did not accept that he was acting in a dreamlike state at the time of the offending. The matters raised in the s 166 Certificate tended to militate against any positive prospects of rehabilitation. However, her Honour considered the applicant’s background and accepted that there were some positive prospects of rehabilitation.

45. Her Honour then turned to consider the applicant’s motivation for the offending. Her Honour found that the applicant had exaggerated the extent of his drug use in order to deflect blame and responsibility away from himself. She did not accept that the applicant was affected by his drug use at the time of the offending behaviour. Despite the applicant’s denials, her Honour accepted that the applicant’s motive was sexual gratification.

46. Her Honour found that the offending sat just below the mid-range of objective seriousness. Her Honour noted there was no force or violence used to facilitate the offending.

47. Her Honour also found that the ADVO offences fell below the mid-range.

Ground 1

48. The respondent accepts error in respect of Ground 1 in the sense submitted:

“The absence of any mention in the remarks on sentence of a finding as to the general impact of COVID-19 on prisoners, means that this Court is unable to ascertain from the remarks on sentence whether or not the sentencing judge took that issue into account on sentence”.

49. However, the respondent says that none of the other grounds of appeal have been made out and that no lesser sentence is warranted in law.

50. As the applicant submits, despite the respondent’s concession, it is necessary for this Court to be satisfied of error.

51. There is no doubt that the applicant raised the impact of COVID-19 in his submissions on sentence. Her Honour responded to that submission saying that she was very aware of the impact of COVID-19 and asked the respondent whether there were any further submissions relating to the increased onerous nature of custodial sentences during the pandemic. At that time, the respondent suggested that her Honour could take judicial notice of the fact that the pandemic has made life more onerous in custody and her Honour agreed to take judicial notice of that.

52. Of course, the mere fact that a specific matter is not mentioned in remarks on sentence is not of itself a ground to demonstrate error (Church v R [2012] NSWCCA 149 at [36] per Button J, McClellan CJ at CL and Price J agreeing).

53. However, in circumstances in which the applicant specifically raised the impact of COVID-19 restrictions on his experience in custody and the sentencing judge said she would take judicial notice of its impact but then did not mention the factor at all, the only available inference is that it was overlooked by her Honour.

54. There may be cases in which, on a fair reading of the remarks on sentence, this Court can safely conclude that the sentencing Court had regard to a relevant factor even though it was not necessarily expressly considered. However, this is not one of those cases. The onerous conditions imposed on a person in custody during the COVID-19 pandemic is a relevant factor in the determination of sentence (see, for example, McKinnon v R [2020] NSWCCA 106 at [32] per Payne JA, Beech-Jones J (as his Honour then was) and N Adams J agreeing).

55. I accept that error has been established in this respect.

56. It is not necessary to consider Grounds 2 and 3, although a consideration of the matters arising under Ground 2 may be relevant to the resentencing exercise.

Resentencing

57. As error has been established, it is necessary that the applicant be resentenced (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37). In the exercise of the sentencing discretion, it is necessary to consider the objective seriousness of the offending and the applicant’s subjective circumstances. An assessment of the objective seriousness is not intended to in any way diminish the significance of the offending or hurt to the victim. Rather, it is an assessment of where this matter may fit within the broad range of this class of offending.

58. I adopt the findings of the sentencing judge in respect of the objective seriousness of the sexual offending. This matter fits within the broad category of cases below the middle of the range.

59. I accept that the sexual offending was not planned or premeditated. It was a spontaneous action borne out of a desire for sexual gratification. There was no violence associated with the conduct, nor any threats or inducement, albeit the conduct was accompanied by a warning from the applicant to keep it a secret. This, of itself, weighs heavily on a young child.

60. Having said that, the offending involved a significant breach of trust. The applicant was the victim’s stepfather and she called him “Dad”. They lived together. He was in her bed because she needed company as she was scared at night. Instead of protecting her, he took the opportunity to abuse her.

61. Further, the offending took place in the victim’s home. This is another aggravating factor. Whilst I accept that there may be some overlap between those factors, they are both aggravating factors to be taken into account, having regard to subss 21A(2)(eb) and (k) of the CSP Act (see Jonson v R [2016] NSWCCA 286 per Bathurst CJ at [40]-[50], Beazley P, Hall, Bellew and N Adams JJ agreeing).

62. It is not to the point that this type of offending may normally occur in the home. It is an aggravating feature because a child’s home is a place where that child is entitled to feel safe and protected.

63. The conduct of the applicant caused the victim to feel unsafe. This is best demonstrated by the fact that the victim was alarmed when she saw the applicant under her bed looking for a cat several years after the offence occurred. This caused the victim to get out of bed and leave her room. She continued to have flashbacks. She could not get the incident out of her head.

64. Whilst it is important that offenders are not punished twice by way of overlapping aggravating factors (see PC v R [2022] NSWCCA 107 at [73] per Bell CJ, Kirk JA and Price J), I consider that there is a clear distinction in this case between the breach of trust and the fact that the offending took place in the victim’s home. It is important to give weight to both aggravating features, and I do so.

65. In the circumstances, despite the lack of planning, spontaneity and one-off nature of the offending, I adopt the sentencing judge’s findings in respect of objective seriousness.

66. The applicant has a strong subjective case. I accept that he is remorseful for his conduct.

67. Further, having regard to the applicant’s traumatic background, I accept that he is entitled to some reduction in the assessment of moral culpability in accordance with Bugmy v The Queen. However, that reduction may not be significant, particularly as (like the sentencing judge) I do not accept that the applicant was in a dreamlike state at the time of the offence. His conduct was borne out of the need for sexual gratification. Further, whilst he was a heavy user of ice, that offers no explanation or excuse for his conduct. His traumatic childhood provides a background to the offending but, other than that, he knew what he was doing and did so for sexual gratification.

68. I accept that the applicant has good prospects of rehabilitation. He has reconnected with his mother and has strong family support. Further, his criminal history is limited and of little relevance.

69. In terms of the ADVO offences, it seems to me that they fall more towards the lower end of the range. Plainly, the applicant was in breach of the ADVOs which were in place and, of course, he has accepted his guilt in that regard. The offending did not involve any direct conduct or threats. His communications over the phone with the victim’s mother appear to have been some attempt to explain himself. His Snapchat messaging was more serious. No explanation could be really offered for the sending of graphic material to the victim’s mother. The applicant says it was borne out of frustration but that provides no excuse. Having said that, the offending was in the lower end of the range for this type of offending.

70. I have regard to the affidavit of the applicant dated 15 February 2023, as well as the Corrective Services case notes. The applicant is currently 34 years of age. He has been in custody since 21 February 2020. During nearly the whole of that period, he has been subject to significant lockdowns as a result of COVID-19. He has spent periods locked in his cell, sometimes without the availability of a shower. He has spent periods locked down in maximum security. For most of the period, visitors have not been permitted. I accept that the applicant’s time in custody – from almost the time when he entered custody until 2023 – has been made more onerous as a result of COVID-19.

71. I adopt the findings of the sentencing judge with respect to deterrence. In my view, both general deterrence and specific deterrence are relevant, although the weight that I would give to the latter is limited, having regard to the applicant’s reduced moral culpability.

72. I also accept that special circumstances have been established. The applicant will need a longer period on parole to deal with his drug addiction and to reintegrate into the community.

73. The applicant is entitled to a 25% discount on account of the early plea of guilty.

74. Having regard to my findings on objective seriousness and the applicant’s subjective case, after discount, the indicative sentences I would impose are as follows:

1. for the s 66A(1) offending: 6 years and 6 months imprisonment; and

2. for the four separate contraventions of the ADVOs: 4 months imprisonment for the offending on 16 February 2020 and 3 months imprisonment for each of the offences on 6 and 7 June 2020.

75. It is appropriate that there be a period of concurrency. In the circumstances, the aggregate sentence I would impose would be imprisonment for 7 years.

76. Having regard to the finding of special circumstances, I set a non-parole period of 4 years and 2 months.

Orders

77. The orders I propose are:

1. leave to appeal is granted;

2. the appeal is allowed;

3. the sentence imposed in the District Court is quashed; and

4. in lieu thereof, the applicant is sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years and 2 months.

78. The applicant has been in custody since 21 February 2020. He will become eligible for parole on 20 April 2024. His sentence will expire on 20 February 2027.

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Decision last updated: 14 July 2023