R v CJP - [2004] NSWCCA 188

No judgment structure available for this case.

CITATION: R v CJP [2004] NSWCCA 188 revised - 25/06/2004

HEARING DATE(S): 26/05/2004

JUDGMENT DATE:
16 June 2004

JUDGMENT OF: Hulme J at 1; Simpson J at 2; Howie J at 3

DECISION: 1. The application for leave to appeal is refused; 2. The Crown appeal is allowed; 3. The sentences imposed in respect of counts 3, 4 and 5 are quashed; 4. In respect of charge 5 the respondent is sentenced to imprisonment for a period of 5 1/2 years with a non-parole period of 4 years both such periods to commence on 28 November 2002. The non-parole period will expire on 27 November 2006; 5. In respect of charge 4 the respondent is sentenced to imprisonment for a period of 6 years with a non-parole period of 4 1/2 years both such periods to commence on 28 November 2003. The non-parole period will expire on 27 May 2008; 6. In respect of charge 3 the responent is sentenced to imprisonment for a period of 9 years with a non-parole period of 5 1/2 years both such periods to commence on 28 November 2005. The non-parole period will expire on 27 May 2011.

CATCHWORDS: Criminal Law and Procedure - Crown appeal against sentence - child sexual assault offences - failure to cumulate some sentences - exceptionally serious offences - delay in appeal and unsatisfactory history of proceedings - insufficient to justify court not intervening.

LEGISLATION CITED: Justices Act 1902 - s 51A (now repealed)
Crimes Act 1900 - ss 61J, 61N(1), 66C(1)

CASES CITED: R v CJP [2003] NSWCCA 187
R v Wong and Leung [2002] NSWCCA 169
R v Henry (1999) 46 NSWLR 436
R v SY [2003] NSWCCA 291
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
R v Gilmore (1979) 1 A Crim R 416
R v MM (2002) 135 A Crim R 431
R v Wall [2002] NSWCCA 42
Johnson v The Queen (2004) 205 ALR 346
R v Hayes [2004] NSWCCA 156
R v Blanco (1999) 106 A Crim R 303
R v Way [2004] NSWCCA 131
R v Fidow [2004] NSWCCA 172
Dinsdale v The Queen (2000) 202 CLR 32

PARTIES :
Regina v CJP

FILE NUMBER(S): CCA 60021/04

COUNSEL: D. Woodburne - Crown
H. Dhanji - Respondent

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3265

LOWER COURT
JUDICIAL OFFICER : Sides DCJ

60021/04

HULME J
SIMPSON J
HOWIE J
WEDNESDAY 16 JUNE 2004

R v CJP

Judgment

1 HULME J: I agree with the orders proposed by Howie J and with his Honour’s reasons.

2 SIMPSON J: I agree with Howie J

3 HOWIE J: In this matter both the offender and Crown are dissatisfied with sentences imposed by Judge Sides QC in the Campbelltown District Court on 10 December 2003. Although there is an application for leave to appeal against the severity of the sentence, I think it is more appropriate, given the way the matter proceeded before the Court, to refer throughout this judgment to the offender as the respondent. Judge Sides sentenced the respondent for a number of child sexual assault offences to an overall sentence of imprisonment for 11 years with a non-parole period of 7 years. The sentences commenced on 28 November 2000 and the respondent is eligible for parole on 10 December 2010.

4 The sentencing proceedings for the offences before the Court have an unfortunate history. On 21 July 2003 the respondent was before this Court in answer to a Crown appeal against sentences purportedly imposed upon him by Acting Judge Moore. The sentences related to the very same offences as are subject to the present proceedings. The respondent first pleaded guilty to these matters in the Local Court on 29 May 2002. On 4 December 2002 Moore ADCJ purportedly sentenced the respondent to imprisonment to an overall sentence of 9 years with a non-parole period of 6 years. Those sentences dated from 28 November 2000 and the respondent was to be eligible to be released to parole on 27 November 2006. The Crown then appealed against the asserted leniency of those sentences. Without determining the Crown appeal, this Court quashed the sentences because of a number of technical errors in the sentences, not the least being that his Honour had failed to give reasons at the time of sentencing the respondent and his two co-offenders. See R v CJP [2003] NSWCCA 187.

5 As a result of the quashing of the sentences the proceedings were re-commenced before Judge Sides, who, as should be apparent, imposed a heavier sentence upon the respondent than did Moore ADCJ.

6 The respondent contends that Judge Sides erred in failing to have any, or sufficient regard to the sentences purportedly imposed upon him by Acting Judge Moore. It was submitted that, by reason of that failure, the sentencing discretion exercised by Judge Sides miscarried and that this Court should re-exercise the discretion taking into account the sentences that Acting Judge Moore had intended to impose. In effect the Court was asked to reimpose the sentences that Moore ADCJ had determined were appropriate but that he had failed to effectively pass upon the respondent.

7 The Crown contends that the sentences imposed by Judge Sides are still manifestly inadequate. It is also asserted that his Honour made a number of errors in determining the sentences such that his discretion miscarried. These errors included, what the Crown alleges was, double counting when taking into account the delay and “triple jeopardy” arising from the history of the sentencing proceedings summarised above.

8 As has already been noted, the respondent initially pleaded guilty in the Local Court. He was committed for sentence to the District Court under 51A of the Justices Act (now repealed). The respondent asked Acting Judge Moore to take into account a number of matters, of a similar nature to the offences for which he was to be sentenced, on a Form 1. He made the same request of Judge Sides. The respondent, therefore, was to be sentenced for five offences for which he had been committed for sentence and was to have taken into account, in relation to the third committal charge, five offences on a Form 1.

9 The first offence for which the respondent was committed for sentence was an offence of having sexual intercourse with a child aged between 10 and 16 years. That offence occurred between 17 October 2000 and 27 October 2000 and was committed against a complainant, ELP, who was, at the time of the commission of the offence, aged 13. That offence was contrary to s 66C(1) of the Crimes Act and carried a maximum penalty of imprisonment for 8 years.

10 The second committal charge was in the same terms as the first charge on the committal document and involved the same complainant.

11 The third committal charge alleged that between 14 November 2000 and 15 November 2000 the respondent had sexual intercourse with ELP without her consent and knowing that she was not consenting to sexual intercourse, in circumstances of aggravation, being that she was under the age of 16 years, she being aged 13. This is an offence contrary to s 61J of the Crimes Act and carries a maximum penalty of imprisonment for 20 years.

12 The fourth committal charge was in the same terms as charge 3 and was committed against ELP.

13 The fifth charge alleged that between 14 November 2000 and 15 November 2000 the respondent had sexual intercourse with GS without his consent and knowing that he was not consenting to the sexual intercourse in circumstances of aggravation being that at the time of the offence GS was under the age of 16 years, being then aged 13 years. This is also an offence contrary to s 61J.

14 In respect of the third committal charge the respondent asked his Honour to take into account five matters each being a sexual assault offence and were as follows:

(a) That on or about 14 November 2000 he incited GS who was then aged 13 to perform an act of indecency towards him. This is an offence contrary to s 61N(1) of the Crimes Act .

(b) That on or about 14 November 2000 had sexual intercourse with SD without her consent in circumstances of aggravation being that she was under the age of 16 years, being 10 years.

(c) That on or about 15 November 2000 he attempted to have homosexual intercourse with GS, he being 10 to 18 years, namely 13 years. This is an offence contrary to s 78L.

(d) That between 1 January 2000 and 15 November 2000 he had sexual intercourse with GS without his consent and in circumstances of aggravation namely that he was under the age of 16 years, he being 13 years.

15 On 10 December 2003 Judge Sides imposed the following sentences:

Charges 1 & 2 imprisonment for 3 years 8 months with a non-parole period of 2 years to commence on 28 November 2000.

Charge 3 imprisonment for 9 years with a non-parole period of 5 years to commence on 28 November 2002.

Charge 4 imprisonment for 6 years with a non-parole period of 3 years to commence on 28 November 2002.

16 The charges and the offences on the Form 1 all arose from a relationship in which the respondent was involved with two female co-offenders, who will be referred to as CAD and MES. The complainant ELP was the daughter of the respondent’s former wife. The complainant GS was the son of MES. The complainant SD was the daughter of CAD. The children each regarded the respondent as a father or stepfather. At the time of the commission of the offences the respondent was aged between 43 and 44.

17 At the relevant time the respondent was living with MES in a de-facto relationship that had existed for about 6 years. There were two children in that household, GS, the 13-year old son of MES, and a daughter of the respondent and CAD aged 2. Living nearby was CAD. She had been involved in a relationship with the respondent and had three children to him aged 7 and 3 and a very young baby.

18 In October 2000 ELP, the 13-year old daughter of the respondent’s former wife, came to live with him and MES. ELP regarded the respondent as her father. She had left her mother’s home as a result of difficulties she was experiencing at school and in her relationship with her mother.

19 The first offence chronologically was number 4 on the Form 1. It involved the respondent inciting GS to have sexual intercourse with his mother while the respondent watched them.

20 The next offence was number 5 on the Form 1. The respondent incited GS to have intercourse with CAD while the respondent was present and watching. The respondent told GS not to tell anyone or he would “bash him”.

21 In respect of these two offences his Honour found that there were two circumstances of aggravation namely the age of GS and the breach of trust involved as the respondent was in the position of stepfather to the child. Judge Sides also found that the respondent was the instigator of the offences and had engineered the circumstances in which the offences could be committed.

22 The next offence was the first charge for which the respondent had been committed for sentence. The child ELP was taken by MES into a room where the respondent was lying on a bed, naked apart from a towel around his waist. The child was told to remove her clothes and to lie on the bed. The respondent then had vaginal intercourse with her. The child was crying during this assault. When she asked whether he was finished, he said that he had not come and continued. It was her first sexual experience and MES stood beside the bed throughout intercourse, holding her hand.

23 The second offence on the committal document occurred later that same evening, although MES was not present. The respondent performed anal intercourse upon ELP.

24 The next offence was the first matter on the form 1 and occurred on or about 14 November 2000. This offence occurred at the home of CAD although she was not present. The respondent telephoned MES and asked her to bring ELP to the house where the respondent was with GS, SD and a third child. In the presence of SD, who was then aged 10, the respondent told GS to remove his clothes and to masturbate the respondent.

25 The next offence was the third matter on the form 1 and occurred on about 15 November 2000. The respondent attempted to insert his penis into the anus of GS who resisted him and the respondent was unable to complete the act.

26 The next offence occurred about the same time and was the third charge on the committal document. This involved the respondent having penile intercourse with ELP during which he ejaculated inside her. The complainant told police she was screaming and asked him to stop but he refused and slapped her face on one occasion.

27 The next offence was charge four on the committal document and occurred immediately after charge three. The respondent rolled ELP on to her stomach and inserted his penis into her anus. Judge Sides held that both this and the previous offence had been aggravated by both the age of the child and that she was under the respondent’s authority.

28 The next offence was the fifth charge on the committal document and occurred at about the same time as the previous two offences. The respondent forced GS to perform fellatio on him by holding his head over his penis. This act occurred in the presence of the children SD and ELP.

29 The last offence occurred on or about 14 November and was the second matter on the Form 1. In the presence of both ELP and GS the respondent placed his finger in the vagina of SD, who was then aged 10 years. The respondent told SD to push his finger into her vagina. Judge Sides found that this offence was aggravated by the age of the child and the position of trust in which the respondent held the child.

30 The offending came to an end when the children made complaint to school authorities in October and November 2000.

31 The respondent at the time of sentence before Judge Sides was aged 47. He has a criminal record for matters in the Children’s Court. He also has a number of convictions for offences of dishonesty and driving matters in both NSW and the Northern Territory as an adult. He has served short gaol sentences although many years ago. The respondent’s antecedents do not really impact upon the appropriate sentence to be imposed for his sexual conduct against the children.

The sentencing proceedings

32 The respondent gave evidence before both Acting Judge Moore and Judge Sides. A transcript of his evidence in the earlier proceedings was tendered in the latter. Before Moore ADCJ the respondent gave evidence that he himself had been a victim of sexual abuse, although he had not told a psychiatrist preparing a report for those proceedings about this assertion. He said that this was because he had not been asked about it. He said that he had been abused when he was aged 8 years by an adult male who fondled his genitals. He asserted that he had also been subject to further abuse when in a boys’ home and while a prisoner in the Northern Territory.

33 He said that he accepted responsibility for his offending, that he was ashamed of what he had done and that he deserved whatever sentence the judge determined to impose upon him. In cross-examination he said that he felt sorry for what he had done immediately after the first offence committed against ELD, but continued to offend.

34 In evidence before Judge Sides the respondent said that the lodging of the appeal by the Crown in respect of the sentences imposed by Acting Judge Moore had affected his classification and resulted in harsher conditions than might otherwise have been the case. He was housed in protection but was hoping eventually to enter into a sexual offender’s course.

35 A psychiatric report by Dr Carne was tendered. It contained allegations of physical abuse by his father but made no mention of sexual abuse by any person. The respondent left school at 14 and travelled interstate with his father who was looking for work. After the death of one of his six children in 1991, the respondent had become depressed and turned to alcohol abuse. He had not worked since 1998. Dr Carne formed the view that the respondent was remorseful, had insight into his criminal behaviour, and was seeking assistance in relation to his abuse of alcohol. He thought that his behaviour was the direct result of decreased inhibition as a result of intoxication.

36 In sentencing the respondent Judge Sides stated that the head sentence and the non-parole period “ha[d] been modified to reflect the delay and the triple jeopardy”. This was a reference to the fact that the respondent had been sentenced by Moore ADCJ, subjected to a Crown appeal, and then resentenced by his Honour. Judge Sides cited in this regard R v Wong and Leung [2002] NSWCCA 169. That was a case where this Court was resentencing the respondents for a second time after a successful Crown appeal, and then a successful appeal by the respondents to the High Court. They were thus being sentenced for the third time and the Court considered this “triple jeopardy” to be a relevant factor. The Crown has asserted that Judge Sides gave too much weight to this factor and I shall return to it shortly.

37 His Honour took into account the report of Dr Carne and, in particular that the respondent may have been “abusing liquor as a form of self-medication for grief and depression”. His Honour thought that this might have entitled the respondent to some leniency and referred to R v Henry (1999) 46 NSWLR 436 in this regard. His Honour’s misconception about what Wood CJ at CL said about intoxication in Henry was the basis of a Crown appeal in R v SY [2003] NSWCCA 291. Whealy J, with whom the other members of the Court agreed, pointed out that there was nothing in the judgment in Henry that suggested that the taking of drugs as “self-medication” was a mitigating factor.

38 The Crown does not take the point in the present case, no doubt because his Honour determined that the respondent’s consumption of alcohol could not be a mitigating factor in the circumstances of the present case. His Honour correctly, with respect, recognised that the respondent had conceded in evidence that he knew that what he had done to ELD was wrong immediately after committing the first offence against her and yet he continued to consume alcohol and re-offend in that way.

39 His Honour noted that the respondent was in protective custody and that as a result imprisonment was more burdensome than might otherwise have been the case. His Honour sentenced the respondent on the basis that he would serve the balance of his sentence in protection but that situation may be ameliorated to some extent if, and when, he participates in a sexual offenders course.

40 Judges Sides took into account as a mark of contrition that the respondent had volunteered to give evidence against one of his co-offenders but that offer had not been taken up by the Crown.

41 His Honour noted that the offences against ELD had occurred shortly after she had come to live with the respondent and at a time when he child was particularly vulnerable because of her difficulties at school and in her relationship with her mother. He also referred to the significant injuries suffered by ELD as a result of the respondent’s forceful penetration of her.

42 His Honour found that the respondent’s pleas of guilty were made at the earliest opportunity, that he was contrite and that the victims had been saved the anxiety of giving evidence. He allowed a discount of 25 per cent.

43 In referring to the matters on the Form 1 his Honour is quoted in the sentencing remarks as saying (my underlining):

rehabilitation

44 It seems to me that this remark makes no sense unless the word “rehabilitation” is read as “retribution”. If the remark is considered with that correction, it makes perfect sense and is in accord with what was said by this Court about the effect of Form 1 matters in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No1 of 2002 (2002) 56 NSWLR 146 where at [42] Spigelman CJ stated:

45 At the conclusion of his sentencing remarks, Judge Sides emphasised the need for both general and specific deterrence. He noted that he was not sentencing on the basis that each of the charges was an isolated incident. He assessed the respondent’s prospects of rehabilitation as “average”.

46 The respondent’s dissatisfaction with the sentence imposed by Judge Sides is, in effect, that his Honour increased the sentence imposed by Acting Judge Moore in circumstances where the sentences had been set aside on the basis of a technicality by this Court without any consideration of the merits of the Crown appeal against those sentences. It was submitted that the respondent had a justifiable sense of grievance with the outcome of the sentencing proceedings because the sentences imposed by Moore ADCJ had been quashed through no fault of the respondent.

47 In support of this argument the respondent relied upon the practice or convention that attends upon sentencing after a re-trial following a successful appeal against conviction. In such a case the practice is that the offender should not ordinarily receive a lengthier sentence or non-parole period than that imposed following the first trial. This practice was identified in R v Gilmore (1979) 1 A Crim R 416 at 419. It has most recently been the subject of consideration in R v MM (2002) 135 A Crim R 431. These cases emphasise, as do others, the discretion that resides in the second court to increase the original sentence where that court believes that the circumstances call for such a result.

48 The policy considerations that support this practice are, firstly, that an offender should not be deterred from pursuing a justified appeal by the fear of an increased sentence after retrial and, secondly, that there should not be a perception, even though unjustified, that the offender is being punished for succeeding in having the original conviction overturned on appeal. I have difficulty in seeing how either of those considerations supports an adoption of the practice in the circumstances of the present case.

49 MM was a case where the applicant had been convicted on retrial of fewer offences than on the first trial, yet received the same overall sentence. I expressed the view that it was not appropriate to apply the practice outside the factual situation in which it had developed and where specific policy considerations justifying its adoption had no relevance. The other members of the Court were prepared to act on the basis that the practice did apply but that there were good reasons for the sentencing judge to depart from it.

50 I appreciate that the applicant may feel aggrieved that his sentences were increased without this Court determining whether the length of the overall sentence imposed by Acting Judge Moore was inadequate, but that is no reason itself, in my view, for determining that the discretion of Judge Sides must have miscarried. His Honour was clearly aware of the history of the matter and the sentences imposed by Acting Judge Moore, but he determined, for lengthy and considered reasons that he gave, what he thought the appropriate sentence should be. It is not necessarily indicative of error that his assessment of the appropriate sentence differed from that determined by Acting Judge Moore. Not all grievances, whether justified or not, can be redressed within a system of justice that recognises that individual judges have independent sentencing discretions.

51 In any event, as the respondent’s counsel accepted at the hearing before this Court, the respondent’s complaints may evaporate if the Crown appeal is resolved against him. I move then to consider the Crown appeal.

52 The Crown contends that the sentence was manifestly inadequate and that his Honour’s exercise of the sentencing discretion was flawed by specific errors manifest in his sentencing remarks. One specific error raised related to what his Honour said about the use to be made of the Form 1 matters. I have already dealt with that complaint, and in my view it has no substance when the remarks are corrected to remove what appears to be a slip by his Honour or a typographical error.

53 The Crown complains that his Honour failed to structure the sentences to reflect appropriately the criminality that was before him. In particular it is submitted that his Honour should have imposed at least partially cumulative sentences for the committal charges numbers 4 and 5 as the criminality in charge 3 and the Form 1 matters could not embrace the criminality involved in the last two charges.

54 The third charge related to the sexual assault upon ELP by forced sexual intercourse. It was an offence under s 61J(1) and carried a maximum penalty of 20 years. His Honour, taking into account the Form 1 matters, imposed a sentence of 9 years with a non-parole period of 5 years. That sentence commenced at the expiration of the non-parole period for the first charge, being 27 November 2002.

55 The fourth charge was the anal intercourse of ELP that followed a short time after the intercourse in the third charge. His Honour imposed a sentence that was concurrent with the third charge. The fifth charge related to the forced act of fellatio by GS upon the applicant. Both of these offences carried a maximum penalty of 20 years imprisonment. While the fourth charge was related to the third in that the complainant was the same, the fifth was a separate act of serious criminality against a different complainant and one not the subject of any of the other committal charges.

56 One of the difficulties in the present matter was the fact that the Form 1 included offences against three different complainants, one of whom was GS. It also included the very serious offence of digital penetration on SD a child aged 10 who was not the subject of a charge. I have considerable doubt that this was an appropriate method of proceeding and it was one very likely to lead a sentencing judge into error.

57 In any event, I accept the Crown submission that the sentence imposed for charge 3 and the Form 1 matters could not appropriately comprehend the criminality involved in charge 5 involving, as it did, a 13 year old boy being forced to fellate the applicant in front of ELD while the applicant was in a position of authority over both children. If his Honour was correct, as I believe he was, in holding that an appropriate sentence to impose for the fifth charge was imprisonment for 5½ years, how could an act of criminality warranting such a sentence be encompassed within a sentence that reflected the serious criminal activity involved in count 3 and having regard to the matters on the form 1, including as they did the offence involving SD?

58 My immediate impression was that the overall sentence imposed was manifestly inadequate to reflect the objective seriousness of the offences before the Court, and that impression is borne out by a more detailed examination of the structure of the sentences and the criminality involved in each of the offences for which sentence was passed. The failure to cumulate appropriately resulted in an overall sentence that is so far short of what was necessary to punish the respondent that this Court should intervene notwithstanding the principles which govern Crown appeals and are conveniently set out in the judgment of Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]. The necessary adjustment of the sentences can in no way be described as “tinkering” notwithstanding the length of the sentences involved.

59 I do not understand anything said in Johnson v The Queen (2004) 205 ALR 346 to suggest that a sentencing judge can impose concurrent sentences where to do so would fail to reflect the totality of the criminality involved in the offences for which sentence is being imposed, or to permit a sentencing judge to inflate the sentence for one offence to encompass the criminality of another. See also R v Hayes [2004] NSWCCA 156 per Levine J at [28]. In any event an effective sentence of 9 years imprisonment does not in my view sufficiently reflect the seriousness of the offences involved in charges 3,4 and 5 and the matters on the form 1, and a head sentence of 11 years fails to a very marked degree to denounce the conduct of the respondent and to provide sufficient retribution for his abuse of these children.

60 I appreciate that to a very significant degree a determination that a sentence is manifestly inadequate is a personal reaction to the sentence imposed as against the objective and subjective facts. The same may be said of a finding that a sentence is manifestly excessive. Of course the consequences of the two findings are so different, at least as they impact upon the offender, that the court must approach the former finding with considerable circumspection and temper the personal reaction to the sentence with due regard to the discretion that resides in the sentencing judge and the limitations on this Court to intervene on behalf of the Crown.

61 I have refrained from using epithets to describe the conduct of the respondent in order to maintain judicial equanimity. However, the offending was of a most serious nature and the circumstances in which the offences were committed are replete with aggravating features. These may not be quite the worst type of offences of their nature but they are not far from it. Concern or sympathy for the respondent by reason of the history of the sentencing proceedings can go only so far in ameliorating the punishment that such offences deserve and that the community expects.

62 Considerations such as “triple jeopardy’ and the uncertainty and frustration felt by the respondent must not be disregarded but they have to be weighed against the seriousness of the offences and the public interest in appropriate punishment being imposed on offenders notwithstanding their personal circumstances. Double jeopardy, or even triple jeopardy, is not a concept that is to be considered in a vacuum. The uncertainty or disappointment experienced by the respondent as a result of the Crown appeal and the failure of Acting Judge Moore to impose the sentence he intended cannot be compared with that of an offender who, for example, does not know whether he will be required to serve a gaol sentence pending the outcome of a Crown appeal or one who has the expectation of an early release date frustrated by a failure of the sentencing judge properly to exercise the sentencing discretion at first instance.

63 In the present case I am not persuaded that the effect upon the respondent of the failure of the judicial system to punish him appropriately is such that it should operate significantly in his favour or should relieve a court from doing its duty to protect the public. Nor should it dissuade this Court from intervening when it is confronted by a sentence that so far falls short of what was required. To the extent that his Honour may have imposed this sentence as a result of overly taking into account triple jeopardy and delay in the finalisation of the sentencing proceedings, he erred.

64 In coming to this view I take into account that Judge Sides was mistaken in believing that the offences, or some of them, were committed while the respondent was on bail for a traffic offence. The Crown concedes that the respondent had failed to appear in respect of a Court Attendance Notice and therefore was not subject to any undertaking as to future conduct, as would be the case had he been arrested and released on bail. However, in the circumstances of this particular matter and having regard to the nature of the offence for which he was to attend court, I do not believe that as a factor of aggravation it would have been a matter of any significant moment. In any event, the sentence is so inadequate that his Honour’s discretion miscarried in some other more fundamental way.

65 I accept that the present offences were not part of an ongoing abuse of a child over many years, but that consideration does not avail the respondent. The offences were committed in circumstances that discovery was unlikely given the complicity of the two other adults who might have offered protection to the children. There is little doubt that the conduct would have continued had not ELD had the fortitude to bring the matter to the attention of school authorities. Judge Sides did not treat these as isolated instances and the offences commenced against ELD shortly after she arrived at the premises in circumstances where the respondent knew that she was having trouble in her relationship with her mother and at school. There is no doubt that the respondent used his influence over the two women to obtain their assistance, and that is a matter of particular aggravation. The commission of the offences so blatantly in front of other children is an aggravating feature that I have not encountered before.

66 The delay in these matters being finalised is a relevant consideration but again it is a matter that has to be considered in context. The effects of delay referred to in R v Blanco (1999) 106 A Crim R 303 were not significant in the present case. I have already referred to the uncertainty in which the respondent was left by reason of the history of the sentencing proceedings, but he must have been certain that he was to serve a lengthy sentence before he had any prospect of release to parole or otherwise. His demonstrated rehabilitation during the period was not a matter that loomed large, and the offences could in no way be regarded as stale.

67 The respondent’s protective status was a relevant matter but as was recognised in R v Way [2004] NSWCCA 131 at [178] the sentences imposed for offences of this kind have involved in them an element of leniency because of the conditions in which offenders find themselves because of the reaction of other prisoners to their crimes. Again it is a matter that is added into the mix of the various objective and subjective factors and the relevant purposes of punishment that resolve themselves into an appropriate sentence. There was material placed before this Court as to his current prison status and the effect that any increase in his sentence might have upon his custodial position.

68 This Court has been referred to a number of decisions of this Court on the basis that they indicate a range of sentencing for such offences. They have limited value because of the varying factors involved in what is an exercise of discretion and their limited number. Simply having regard to the number of children involved or the nature of the sexual acts committed cannot determine the seriousness of the offences before the Court or those in other cases, upon which reliance is placed on behalf of the applicant. I doubt that sentences thought to be appropriate in 1993 are necessarily a sound guide to sentencing in 2003 in light of the increasing awareness and concern about such offences in the intervening period. In any event I consider that the criminality of the respondent was considerably greater than those of the applicants in the decisions to which the Court was referred. For example, I do not consider offences by a schoolteacher, as serious as they might be, to be the equivalent, or anything like it, of offences as grave as these committed by a person in the position of a father or stepfather.

69 There are offences that, because of the manner in which they are committed and the circumstances surrounding them, simply stand out from the usual run of offences of their kind and for that reason call for punishment of a particularly severe nature. The sentences imposed for such matters may fall outside the range that might otherwise be considered as applicable, simply because the offences fall outside the normal range of offending. These were in my opinion offences of that nature. They were such that the applicant deserves to be treated as an example to others in the community and there is nothing in the material relating to his personal circumstances, that was placed before the sentencing judge or this Court that, to my mind, indicates that such an approach is inappropriate.

70 The applicant had the benefit of a finding of special circumstances by Judge Sides. I do not believe that finding was justified in that there was nothing that indicated that the applicant should have the benefit of earlier parole eligibility than would be the case if the statutory proportion applied. There was a significant degree of double counting by reason of his Honour taking into account matters of mitigation to reduce the overall sentence and then using them again to find special circumstances without explaining why those matters should further reduce the minimum period that the respondent was required to serve in custody. See R v Fidow [2004] NSWCCA 172 at [18] and Way at [178].

71 This is not to suggest that matters relevant to the determination of the term of the sentence are not also relevant to the determination of the non-parole period but due regard must be had to the fact that the legislation requires the finding of special circumstances and that is, in my view, something more than the existence of factors that merely mitigate the sentence as a whole and have already been used for that purpose.

72 As was pointed out in Fidow a finding of special circumstances is now such a common event in sentencing that the currency has been devalued. After referring to statistical information which shows that 84.77 per cent of prisoner had a ratio of non-parole period to full term of 66.7 per cent or less, the Chief Justice stated:

Simpson

73 The respondent will have available to him sex offender programmes and it could safely be assumed that, unless he takes advantage of those courses and can persuade the Parole Board that he can safely be returned into the community, he will not be released to parole. If he does complete the programmes and his rehabilitation is advanced to the stage that he is released to parole, I find it difficult to believe that he would require supervision for a period of four years to ensure that his rehabilitation is confirmed. The statutory ratio would have resulted in a non-parole period of 8 years 3 months and a parole period of 2 years 9 months, a period that was more than adequate for the respondent’s rehabilitation.

74 In my opinion this was an instance of the all too frequent occurrence of a court finding special circumstances simply as a way of ameliorating the statutory presumption of the proper ratio between the minimum period of incarceration and the term of the sentence without any other reason to justify such a departure. That is in my view a significant error in the exercise of the sentencing discretion and a failure of a court to comply with the manifest will of Parliament.

75 In any event a non-parole period of 7 years is in my view grossly inadequate as representing the minimum period of punishment the respondent should serve upon whatever basis it is assessed. If I ask myself the question posed by two members of the High Court in Dinsdale v The Queen (2000) 202 CLR 32 at [22], “is the sentence manifestly wrong?”, the answer is a resounding, “Yes”. The Crown appeal should be allowed.

76 There are no discretionary matters that in my view would warrant the Court staying its hand. The delay in the Crown lodging the appeal is a relevant matter but has to be seen in context and, as I have already noted, I do not believe that uncertainty of the respondent as to his punishment has the same impact in this case as it might have in cases where the sentence the subject of the appeal is considerably less and where the resolution of the appeal has an almost immediate impact upon the respondent, either by a return to custody or the frustration of a release date which is relatively close at hand. The consequential effect upon the conditions of his custody by the existence of a Crown appeal and by a lengthening of the eligibility date for release to parole are unfortunate but insufficient to require or justify this Court in staying its hand having regard to the seriousness of the offending and the inadequacy of the sentence imposed.

77 It is customary where the Crown succeeds on an appeal for the Court to impose a sentence at the lower end of the range that was available to the sentencing judge. I am prepared to follow that practice notwithstanding some doubts as to whether it should be adopted as an inviolable rule for the exercise of this Court’s discretion following a successful Crown appeal. In the circumstances of this case, having regard to the history of the matter, it is appropriate to adopt that course in any event. The overall sentence takes into account the plea of guilty and the 25 per cent discount that his Honour determined was appropriate.

78 There are no special circumstances justifying a departure from the statutory ratio as regard to the overall sentence term and the overall non-parole period. The parole period resulting form the statutory ratio is sufficient for the respondent’s needs by way of supervision and rehabilitation and I do not believe there is any other reason to reduce the non-parole period. I find special circumstances in respect of charge 3 in order to preserve the statutory ratio between the overall term and the non-parole period because that sentence is being made partially cumulative.

79 I am satisfied that, considered individually, none of the sentences imposed by Judge Sides are too high. The total sentence to be imposed on the respondent will be limited by the principle of totality. In this situation, as a matter of discretion, it is unnecessary to consider whether any of the head sentences should be increased. In light of my view that the appropriate effective sentence can be achieved by changes to the sentences imposed in respect of counts 3, 4 and 5, again as a matter of discretion, I find it unnecessary to interfere with the erroneous non-parole periods fixed in respect of counts 1 and 2.

80 In light of the 25 per cent discount allowed to the respondent for pleading guilty, the overall term of the sentence should be imprisonment for 14 years and the non-parole period should be 10 years and 6 months dating from 28 November 2000. The respondent will become eligible to be released to parole on 27 May 2011.

81 By reason of the Crown appeal being allowed, the respondent’s application for leave to appeal should be refused.

82 I propose the following orders:-

1. That the application for leave to appeal be refused.
2. That the Crown appeal be allowed.
3. That the sentences imposed in respect of counts 3, 4 and 5 be quashed.
4. In respect of charge 5 the respondent be sentenced to imprisonment for a period of 5½ years with a non-parole period of 4 years both such periods to commence on 28 November 2002. The non-parole period will expire on 27 November 2006.
5. In respect of charge 4 the respondent be sentenced to imprisonment for a period of 6 years with a non-parole period of 4½ years both such periods to commence on 28 November 2003. The non-parole period will expire on 27 May 2008.
6. In respect of charge 3 the respondent be sentenced to imprisonment for a period of 9 years with a non-parole period of 6½ years both such periods to commence on 28 November 2004. The non-parole period will expire on 27 May 2011.
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IN THE COURT OF
CRIMINAL APPEAL
60021/04

HULME J
SIMPSON J
HOWIE J

FRIDAY 25 JUNE 2004
R v CJP
JUDGMENT

1. THE COURT: After judgment was handed down in this matter it was brought to the Court's attention that the sentence as specified in paragraph 82 and the overall sentence as described in paragraph 80 are inconsistent. It was the Court's intention that the sentence should be as stated in paragraph 80. Therefore some corrections need to be made to the order in paragraph 82. The sixth order made should read:

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Last Modified: 06/28/2004

Citations

R v CJP [2004] NSWCCA 188

Most Recent Citation

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Re Abbott and Australian Prudential Regulation Authority [2008] AATA 641

Cases Cited

16

Statutory Material Cited

2

R v CJP [2003] NSWCCA 187

R v Nelson Tak Fat Wong and Jackie Kai Chu Leung [2002] NSWCCA 169

R v SY [2003] NSWCCA 291

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CITATION:	R v CJP [2004] NSWCCA 188 revised - 25/06/2004
HEARING DATE(S):	26/05/2004
JUDGMENT DATE:	16 June 2004
JUDGMENT OF:	Hulme J at 1; Simpson J at 2; Howie J at 3
DECISION:	1. The application for leave to appeal is refused; 2. The Crown appeal is allowed; 3. The sentences imposed in respect of counts 3, 4 and 5 are quashed; 4. In respect of charge 5 the respondent is sentenced to imprisonment for a period of 5 1/2 years with a non-parole period of 4 years both such periods to commence on 28 November 2002. The non-parole period will expire on 27 November 2006; 5. In respect of charge 4 the respondent is sentenced to imprisonment for a period of 6 years with a non-parole period of 4 1/2 years both such periods to commence on 28 November 2003. The non-parole period will expire on 27 May 2008; 6. In respect of charge 3 the responent is sentenced to imprisonment for a period of 9 years with a non-parole period of 5 1/2 years both such periods to commence on 28 November 2005. The non-parole period will expire on 27 May 2011.
CATCHWORDS:	Criminal Law and Procedure - Crown appeal against sentence - child sexual assault offences - failure to cumulate some sentences - exceptionally serious offences - delay in appeal and unsatisfactory history of proceedings - insufficient to justify court not intervening.
LEGISLATION CITED:	Justices Act 1902 - s 51A (now repealed) Crimes Act 1900 - ss 61J, 61N(1), 66C(1)
CASES CITED:	R v CJP [2003] NSWCCA 187 R v Wong and Leung [2002] NSWCCA 169 R v Henry (1999) 46 NSWLR 436 R v SY [2003] NSWCCA 291 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 R v Gilmore (1979) 1 A Crim R 416 R v MM (2002) 135 A Crim R 431 R v Wall [2002] NSWCCA 42 Johnson v The Queen (2004) 205 ALR 346 R v Hayes [2004] NSWCCA 156 R v Blanco (1999) 106 A Crim R 303 R v Way [2004] NSWCCA 131 R v Fidow [2004] NSWCCA 172 Dinsdale v The Queen (2000) 202 CLR 32
PARTIES :	Regina v CJP
FILE NUMBER(S):	CCA 60021/04
COUNSEL:	D. Woodburne - Crown H. Dhanji - Respondent
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/3265
LOWER COURT JUDICIAL OFFICER :	Sides DCJ