PH v The Queen

[2017] NSWCCA 79

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	PH v R [2017] NSWCCA 79
Hearing dates:	14 November 2016
Date of orders:	28 April 2017
Decision date:	28 April 2017
Before:	Meagher JA at [1]; Rothman J at [11]; Button J at [67]
Decision:	Leave to appeal refused.
Catchwords:	APPEAL – criminal law – applicant sexually assaulted his three daughters – earlier convictions in relation to daughters of previous relationship – applicant did not give evidence on sentence – sentencing judge doubted history given to psychiatrists – applicant put on notice as to doubt – reliance on infelicitous comment in ex tempore judgment – reliance on manner in which sentencing judge declined to make firm findings on applicant’s history – no ground has merit
Legislation Cited:	Crimes Act 1900 (NSW), ss 61J(1), 61M(2)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 R v Niketic [2002] NSWCCA 425 R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category:	Principal judgment
Parties:	PH (Applicant) Crown (Respondent)
Representation:	Counsel: T Quiter (Applicant) E Balodis (Respondent)   Solicitors: Legal Aid (NSW) (Applicant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/60911
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 12 November 2015 Before: Syme DCJ File Number(s): 2014/60911

Judgment

1. MEAGHER JA: I agree with Rothman J that this application for leave to appeal against sentence should be refused. I also agree with Button J’s additional comments in relation to proposed ground 3 and make the following further observations in relation to proposed grounds 1 and 2.

2. These grounds complain that the sentencing judge did not make findings as to, and take into account as a mitigating factor, the applicant’s having been subjected to sexual abuse within his own family from when he was very young.

3. The applicant did not give evidence at the sentencing hearing and, in support of his submission that this matter should be taken into account, relied on a psychological assessment report prepared for the purpose of sentencing. Specifically, it was submitted that the fact of that sexual abuse provided an explanation which was relevant to an assessment of his moral culpability for the offending for which he was being sentenced. In the psychologist’s opinion that abuse “likely distorted his idea and understanding of sex and family relationships, increasing his risk of engaging in child sexual abuse”.

4. In addressing this submission, the sentencing judge expressed concern as to the applicant’s “lack of honesty in his self-report to his psychologist” (ROS p 9). The applicant had not reported to the psychologist the earlier offences with which he had been charged in 1994 concerning his daughter and step-daughters from an earlier relationship. In addition the psychologist separately commented in her report (para 20) that she “questioned whether [PH] was distorting and/or exaggerating his adolescent sexual experiences”. As the sentencing judge also notes (ROS p 9), during the course of the sentencing hearing and when this submission was made, the fact of the applicant’s not having given evidence was raised with his counsel, clearly with reference to there being a concern as to his honesty and reliability in giving his history to the psychologist.

5. Ultimately the sentencing judge did not make findings as to whether that sexual abuse had occurred as reported. Instead her Honour dealt with the applicant’s submission that it reduced his moral culpability on the assumption that the abuse had been as reported to the psychologist.

6. Her Honour noted that PH had also reported to the psychologist that after the commission of the offences with which he was charged in 1994, he “contacted the police and told them that he had prior charges for sexual offending and [that he] was seeking support in managing with his daughters” (Report, para 41). The sentencing judge concluded, the relevant offences having occurred after the 1994 offences and after this acknowledgment by the applicant that he appreciated what he might subsequently do would be seriously wrong, that:

… the weight that I might give any connection between sexual offences upon him when he was a very young child would be not significant considering the seriousness of these offences (ROS p 11).

7. The sentencing judge then proceeded to explain her assessment of the applicant’s moral culpability:

The offender’s moral culpability for the commission of these offences is therefore in my view high. The psychologist observes that the offender gave what he considered to be an explanation for the commission of these offences against his children. He told the psychologist that his motives for offending were not based on his need for sexual gratification but that he sexually abused his elder daughter on a regular basis in order, he said and I quote, “To protect her from the harm she may have had by engaging in sex with boys her own age”. The statement to the psychologist that he believed he was keeping his daughter virtuous by his sexual assaults upon her is perhaps evidence of his disordered or distorted thinking but also evidence of a significant abuse of power against this child and the other children. The psychologist confirms that the offender was well aware that his contact with his children was wrong and inappropriate. [PH] reported to the psychologist that he considered his conduct to be, “Hideous, disgusting and disgraceful”. Whether [PH] genuinely believed this to be the case or not the Court certainly concurs with the sentiments so expressed.

8. The sentencing judge’s immediately following remarks are extracted by Rothman J at [40].

9. In the way the sentencing judge dealt with the applicant’s submissions it was not necessary to make a finding as to the extent of any sexual abuse to which he was subject. Her Honour considered the potential significance of those events as reported in assessing his moral culpability and addressed the argument made on behalf of the applicant.

10. Accordingly, ground 2 is not made out and the absence of any finding, which is the foundation for ground 1, assumed no significance in the way the sentencing judge dealt with the applicant’s argument.

11. ROTHMAN J: On 12 November 2015, the District Court sentenced the Applicant, PH, to an aggregate non-parole period of 14 years’ imprisonment, commencing on 25 February 2014 and concluding on 24 February 2028, with an aggregate additional term of 4 years and 9 months to commence on 25 February 2028 and to expire on 24 November 2032. The Applicant seeks leave to appeal, and if leave be granted, appeals the sentence imposed.

12. The Applicant was charged with eight offences, being:

Sequences 6, 7, 8, 9, 3 and 4: Six counts of aggravated sexual assault (contrary to s 61J(1) of the Crimes Act 1900), for which the maximum penalty is 20 years’ imprisonment and there is prescribed a standard non-parole period of 10 years’ imprisonment;

Sequence 11 and Sequence 10: Two counts of aggravated indecent assault (contrary to s 61M(2) of the Crimes Act), for which the maximum penalty is 10 years’ imprisonment and there is prescribed a standard non-parole period of 8 years’ imprisonment.

13. The Applicant pleaded guilty to each of the offences on 3 December 2014 at the Local Court and maintained that guilty plea and was sentenced accordingly. The offences were committed against the Applicant’s three daughters when they were between about 12 or 13 and 16 years of age and the circumstances of aggravation were the fact that the daughters were under the authority of the Applicant at the time of the offences. Each sexual assault offence involves sexual intercourse with the complainants without their consent and knowing that they were not consenting.

14. The sentence occurred on the basis of an agreed set of facts tendered by the Crown. The relationship between the Applicant and the victims is the reason that the identity of the Applicant is suppressed, as it would identify the victims.

Facts

15. It is unnecessary to detail the facts except in broad outline. The sequences have been recounted in the order above because that is the chronological order of the sequences in each set of charges. Sequence 6 occurred in September 2012 during the course of relocating from Queensland to New South Wales. The eldest daughter travelled with the Applicant interstate and on a particular night in September 2012, they stayed overnight in a caravan park in Coffs Harbour. While inside the caravan park, the Applicant “gave [the Victim] a look” (Statement of Agreed Facts), which the Victim took to mean the Applicant was going to have sex with her. Sexual intercourse had taken place between the Applicant and this daughter on prior occasions. The assault was penile/vaginal intercourse with his eldest daughter.

16. Sequence 7 was a representative count, the Applicant agreeing that he would have sexual intercourse with his eldest daughter on a regular basis. The eldest daughter did not want to have sexual intercourse with the Applicant.

17. At the premises, whilst living with the Victim’s grandmother, the Applicant had penile/vaginal intercourse with his eldest daughter while touching her breasts and nipples and kissing her. The Victim, notwithstanding her youth and the position of authority of the Applicant, expressed to the Applicant that she did not want to engage in the conduct.

18. The next occasion which is the subject of a charge was also penile/vaginal intercourse with the eldest daughter. That occurred in the laundry of the premises (Sequence 8).

19. On other occasions, the Applicant would take his eldest daughter out in his car. On one such occasion in or around December 2013, the Applicant drove to a secluded car park; the daughter alighted the car to look at the beach; the Applicant remarked that he wanted to “play”; and the daughter said she did not want to. Notwithstanding that expression of lack of consent, the Applicant took the eldest daughter down a trail; put his singlet on the ground; directed the daughter to kneel down; and engaged in penile/vaginal intercourse. At some stage, the Applicant turned the eldest daughter around and engaged in penile/vaginal intercourse in the missionary position. At the conclusion of this conduct, the daughter said, angrily, to the Applicant: “Why can’t we just be father and daughter?” (Sequence 9).

20. After moving to the house in which Sequence 7, 8 and 9 occurred, the second daughter (Victim 2) was absent from school on numerous occasions. On one such occasion, Victim 2 was at home with the Applicant. The Applicant’s mother, being the Victim’s grandmother, was at home. Victim 2 was sitting on a mattress playing PlayStation. She heard a noise and turned around to see the Applicant.

21. The Applicant threw two pillows onto the mattress. Victim 2 said she did not want to. Victim 2 became scared. The Applicant told Victim 2 to lay on the mattress. Victim 2 hesitated, sat on the corner of the mattress curled into a ball, and again told the Applicant she did not want to.

22. The Applicant told her it would be all right and then had penile/vaginal intercourse with her. At this stage Victim 2 was aged 14 or 15 years (Sequence 4).

23. On 14 February 2014, Victim 2 was at home from school. The other two daughters were at school and the grandmother had gone shopping. Victim 2 was playing PlayStation, when the Applicant came up behind her and touched her cleavage and vaginal area (Sequence 11 – indecent assault).

24. The offender then asked Victim 2 to go in to his bedroom. She did. There was then penile/vaginal intercourse on the bed (Sequence 3 – aggravated sexual intercourse).

25. The youngest daughter, Victim 3, bought herself a new white two-piece swimming costume during the summer of 2013. The Applicant, on the pretence of checking whether the bottom part had a lining, placed his thumb inside the bikini bottoms, touching the top of her genitalia. Victim 3 pulled away to which the Applicant remarked that he needed to have a look. Victim 3 replied that she would take them off and show him and then went to her room, took the costume off and showed the Applicant the lining. (The touching is Sequence 10.)

26. The school at which each of the Victims attended conducted a program for students on domestic violence and sexual assault. Victim 2 became distressed and was taken to the office of the Aboriginal Education Officer, who spent the afternoon with her and who said that she thought that Victim 2 would be ready to talk about what was wrong the next day.

27. The next day Victim 2 went to see the Officer and accused her father of the offences against her. The Aboriginal Education Officer went to speak with Victim 3, who told of the events in relation to her.

28. In an unrelated matter, Victim 1 telephoned the Aboriginal Education Officer and the Aboriginal Education Officer met her outside, had a conversation with her and disclosed to her what had happened to Victims 2 and 3. Victim 1 reacted in the following comment:

“The fucking bastard, I thought he would never touch the others.”

29. A report was made to the Department of Family and Community Services, who notified the Police.

30. The proceedings on sentence occurred on 12 November 2015 and her Honour sentenced immediately.

Grounds of Appeal

31. The Applicant seeks to raise three grounds of appeal, in the following terms:

1. The learned sentencing judge failed to undertake a fact-finding process about the Applicant’s difficult upbringing;

2. The learned sentencing judge failed to take into account the Applicant’s difficult upbringing;

3. The learned sentencing judge misapprehended the facts.

32. In each case the facts to which reference is made are the subjective circumstances relating to the Applicant as told to a psychologist. The Applicant did not give evidence to verify the history given by the psychologist, notwithstanding the psychologist’s questioning as to whether the Applicant “was distorting and/or exaggerating his” experiences.

Subjective Circumstances

33. According to the Applicant, recounted by the psychologist, the Applicant had and has no significant social difficulties (Psychological Assessment Report at [18], Appeal Book at 44), but has little insight into his social functioning. He was the youngest of three children and, on the version told to the psychologist, was physically and sexually abused by his father and by his paternal uncle (the details of which he could not recall) from the age of seven until his mid-adolescence.

34. According to the Applicant, his middle sister also sexually abused him, forcing him to engage in sexual intercourse from the age of eight or nine years. According to the Applicant, she also began bringing her friends around to the family home to have sex with him. This, it was said, continued for a number of years.

35. The Applicant did not suggest to the psychologist that he consented to this sexual abuse, but it is clear that he also did not report any abuse to anyone at the time and, as a consequence, the authorities did not become involved.

36. After the Applicant said he was kicked out of home, because of his father’s jealousy concerning the relationship between the Applicant and his mother, he lived with sex workers, according to the report to the psychologist, who “apparently offered him and a number of other homeless boys accommodation and food” (Psychological Assessment Report at [13], Appeal Book at 43).

37. Notwithstanding the Applicant’s depiction of his father having kicked him out of home, the Applicant returned to live with his parents and continued to live there until he was 17.

38. The Applicant had earlier sexually abused both his daughter and step-daughter in a previous relationship, as a consequence of which, he and his then partner separated, he was convicted of the offences and was imprisoned for the offences.

39. There can be no doubt, whatever be the history of the Applicant, that in relation to the offences for which he was sentenced and to which this application relates, he was “well aware his conduct was wrong and inappropriate” (Psychological Assessment Report at [42], Appeal Book at 48).

40. In relation to this report, only some extracts of which have been recited above, the learned sentencing judge remarked:

“In considering [the Applicant’s] subjective circumstances and his background I note that his background is reported to be as set out to the psychologist. If it is taken to be accurate then it would show that [the Applicant] is the youngest of three children. It shows and he reports that he had an unhappy relationship with his father who reportedly physically and sexually abused him but that he had a good relationship with his mother. He told the psychologist that he was abused by his father and uncle sexually and physically from a young age and also by his sister from a young age. He said that at 15 years of age he was put into a boys’ home in relation to some stealing matters. He was reportedly a poor student at school and he was expelled from school at a relatively early age and that he worked as a labourer and in other menial positions throughout his life. He was illiterate until he taught himself how to read and write as an adult. He reportedly was employed for some of his life but found himself on government benefits for most of his life. He has self-reported significant alcohol abuse issues and some other substance abuse issues throughout his life. He was unemployed at the time of his arrest although he has reported that he has done some employment courses while in custody and he has received no in custody misconduct charges.” (Remarks on Sentence at 12, Appeal Book at 22).

41. The sentencing judge considered some aspects of regret but did not consider that the Applicant’s remorse, as reported to the psychologist, was the kind of remorse to which the Act referred and, in particular, that his version of “remorse” was coupled with a “completely distorted array of thinking and justification for his behaviour” (Remarks on Sentence at 13, Appeal Book at 23). The sentencing judge found he had very limited insight into the serious nature of the offences.

42. The sentencing judge allowed a 25% discount for the utilitarian value of his plea, but, given the strength of the Crown case, did not consider that the plea of guilty was evidence of remorse.

43. The sentencing judge referred to the additional significance of specific deterrence, given the lack of insight and the past conduct to similar effect and the effect of past sentences (Remarks on Sentence at 12, 13, Appeal Book at 22 – 23).

Applicant’s Submissions and Consideration

44. The gravamen of the Applicant’s Submissions is the apparent scepticism with which the sentencing judge treated the Applicant’s background and the failure of the sentencing judge to make findings of fact as to that background. The sentencing judge said:

“According to the psychologist’s report [the Applicant’s] background of dysfunctional family and sexual abuse is connected to his current offending. It is noted that this offender did not give evidence in the current proceedings and I have already referred to my concern as to his lack of honesty in his self-report to his psychologist. This fact was pointed out to his counsel and the difficulties that might arise for the Court as a result of his lack of evidence and it was referred to during the course of the sentencing proceeding.

The offender did not give evidence after these issues were raised.” (Remarks on Sentence at 9, Appeal Book at 19)

45. The learned sentencing judge then repeated the conclusions of the psychologist based upon the history given to her and the comment, already recited above, that the Applicant may have been distorting or exaggerating his adolescent sexual experiences.

45. The sentencing judge had, during the course of the proceedings, drawn the Applicant’s attention (through his counsel) to the lack of evidence from the Applicant and to the lack of independent evidence corroborating the history given to the psychologist. The sentencing judge also drew to the attention of counsel for the Applicant that the Applicant was well aware, prior to the commission of the offences, that what he was about to do was wrong, and seriously so. Evidence was before the Sentencing Court inconsistent with his early childhood and adolescent sexual history, to the effect that he was not unaware of a normal relationship between father and child nor that the conduct and acts he was perpetrating on his own children was part of such a “normal relationship”.

46. The learned sentencing judge continued, in her analysis, in the following way:

“In any event the fact that this was a second set of sexual assaults committed against members of his family after the 1994 offences and the fact that the offences occurred against three of his biological children over a long period of time and the fact that such serious offences occurred, the weight that I might give any connection between sexual offences upon him when he was a very young child would be not significant considering the seriousness of these offences.” (Remarks on Sentence at 11, Appeal Book at 21).

48. The Applicant, in his application for leave and, if leave be granted, on the appeal, submits that her Honour failed to make findings as to whether the sexual abuse occurred and discounted the sexual abuse as a child on account of the previous offending.

49. The Applicant’s counsel submits that it is a requirement on a sentencing judge to make factual conclusions about an offender’s personal circumstances: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1].

50. Next, the Applicant refers to the comments in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] – [44] in which the plurality refers to the experience of an environment surrounded by alcohol abuse and violence compromising the person’s capacity to mature and to learn from experience remaining relevant, notwithstanding that the person has a long history of offending. As a consequence of the fact that profound childhood deprivation does not diminish with the passage of time and repeated offending, it is right to give ‘full weight’ to the deprived background in every sentencing decision.

51. The plurality of the High Court in Bugmy go on to say that:

“However, this is not to suggest, as the appellant's submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” [Footnotes omitted]

52. In the course of the sentencing proceedings, counsel for the Applicant conceded that there was “not a hard and fast rule”. At Appeal Book, p 65 (Transcript 12 November 2015, p 7), the following exchange occurs:

“[Counsel for the Applicant]: There is material before the Court to indicate that he was the victim in his early years of prior sexual abuse. There’s authority which indicate that that can be taken into account in terms of reducing my client’s moral culpability. It is not a hard and fast rule –

HER HONOUR: I don’t have to make a finding that there is a connection or correlation between the two.

[Counsel for the Applicant]: Yes.

HER HONOUR: And I note what the psychologist says but I also note that your client has remained in the dock.”

53. This Court has for a significant period expressed the view that a sentencing judge is entitled to be sceptical of comments made by an Applicant to psychiatrists or psychologists which, while admissible, may be treated with considerable caution when there is no evidence given by the Applicant: see R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58] (per Smart J), at [79] (per Spigelman CJ) (with each of whom Simpson J agreed on this issue: see [80]); R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381; R v Niketic [2002] NSWCCA 425.

54. In this sentencing proceeding, the sentencing judge drew attention to the scepticism with which some of the history was treated by the psychologist and to the fact that in the proceedings the material was not the subject of evidence from the Applicant.

55. The comments of the High Court in Bugmy as to the continuing nature of deprivation are not in issue and were not in issue before the sentencing judge. On the contrary, the sentencing judge, assuming the history had been proved, took the view that the Applicant was well aware that his conduct was wrong. Nevertheless, the Applicant was not prepared to swear to the truth of the history and his subjective circumstances, including his prior offending, and, when taken together with the seriousness of the offences, it gave rise to significant issues associated with specific deterrence and protection of the community.

56. The sentencing judge was entitled, in the circumstances of the proceedings before her, to express her scepticism of the accuracy and truth of the history given to the psychologist and not supported by the Applicant in evidence before the Court, and to express the view, even if the history were true, given the need for specific deterrence, the seriousness of the crime and the need for protection of the community, that the background would have little weight in the sentencing exercise.

57. The foregoing renders that which is pressed in relation to the first and second grounds of appeal as unarguable or not arising.

58. As to the third ground of appeal, that the learned sentencing judge misapprehended the facts, this alleged error concerns her Honour’s alleged findings about whether the Applicant ejaculated on each occasion in which penile/vaginal penetration occurred.

59. Her Honour’s remarks on sentence accurately recite or summarise the agreed facts. In an ex tempore judgment, and in summary form, her Honour utilised different terminology for various offences in some of which, the Applicant argues, her Honour was in error by implying that there was ejaculation either during the course of penile penetration or at the end of it. That fact is, according to the submission, to the disadvantage of the Applicant and was not proved, for each such occasion, beyond reasonable doubt.

60. The comments of her Honour in relation to ejaculation “on each occasion of the charged offences” was correct in relation to sequences 6, 7, 8 and 9. Sequences 3 and 4 relate to Victim 2, whereas Sequences 6, 7, 8 and 9 relate to the eldest daughter, Victim 1.

61. In relation to sequence 4 there is no evidence, one way or the other, as to whether ejaculation occurred during the penile/vaginal intercourse. The evidence is that the Applicant, after the intercourse, got up and went to have a shower.

62. In relation to sequence 3, again there is no evidence, one way or the other, as to whether ejaculation occurred during the penile/vaginal intercourse (or immediately after), but there is evidence that no contraceptive protection was utilised.

63. The complaint is that some of the terms or words used by her Honour in the ex tempore judgment are contradictory. While recounting the facts accurately, her Honour referred to ejaculation “on each of the offences”.

64. An examination of the indicative sentences does not reveal that the fact of ejaculation could have had any effect on the sentence imposed and could not possibly have had an effect on the aggregate sentence imposed.

65. In my view the third ground of appeal is an attempt to take advantage of a minor infelicitous comment in the course of an ex tempore judgment and does not properly arise.

66. For the foregoing reasons, I propose that the Court deny leave to appeal. I propose that the Court makes the following order:

1. Leave to appeal refused.

67. BUTTON J: I agree with the order proposed by Rothman J, and the reasons for it. I also agree with the additional remarks of Meagher JA.

68. With regard to proposed ground 3, I would only add that no submission was made at first instance that her Honour could not be satisfied beyond reasonable doubt that the applicant ejaculated inside the victims, on the occasions on which he did not ejaculate outside their bodies.

69. Furthermore, I consider that one can readily conclude to the criminal standard that a person who was prepared to offend so deplorably against his own daughters was also prepared to run the risk, on occasion, of impregnating them.

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Decision last updated: 06 April 2018