R v Dagwell

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Dagwell [2006] NSWCCA 98

FILE NUMBER(S):
2005/2187

HEARING DATE(S): 02/03/2006

DECISION DATE: 05/04/2006

PARTIES:
Regina v Colin Charles Dagwell

JUDGMENT OF: Beazley JA Adams J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0292

LOWER COURT JUDICIAL OFFICER: EllisDCJ

COUNSEL:
D. Arnott SC - Crown
S. Odgers SC - Respondent

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

CATCHWORDS:
Criminal Law - Sentence for child sexual assault offences - Crown appeal - sentences manifestly inadequate - respondent resentenced.

LEGISLATION CITED:
Crimes Act 1900 - ss 61M(1), 66C(1)
Crimes Sentencing Procedure Act 1999 - s 21A

DECISION:
Appeal allowed, sentences imposed are quashed. In lieu the respondent is sentenced as follows: Counts 1 and 2 - A non-parole period of 9 months to date from 31 August 2005 and to expire on 30 May 2006 with a balance of term of 3 months to commence on 31 May 2006. Count 3 - A non-parole period of 1 year 3 months to date from 31 August 2005 and to expire on 30 November 2006 with a balance of term of 9 months to commence from 1 December 2006. Count 4 - A non-parole period of 12 months to date from 31 May 2006 and to expire on 30 May 2007 with a balance of term of 9 months to commence on 31 May 2007. Counts 5, 6, 7, 9 - A non-parole period of 1 year and 8 months to date from 1 March 2006 and to expire on 31 October 2007 and a balance of term of 1 year and 2 months to commence on 1 November 2007. Count 8 - A non-parole period of 1 year and 11 months to date from 31 August 2006 and to expire on 30 June 2008 with a balance of term of 1 year and 5 months to commence on 1 July 2008.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2187
BEAZLEY JA
ADAMS J
HOWIE J
WEDNESDAY 5 APRIL 2006

REGINA v Colin Charles DAGWELL

Judgment

BEAZLEY JA: I agree with Howie J.
ADAMS J: I agree with Howie J.
HOWIE J: This is a Crown appeal against sentences imposed by Judge Ellis (the Judge) following upon the respondent pleading guilty to an indictment containing nine child sexual assault offences all committed against a single complainant, a female child aged 13 years. The Crown asserts that the sentences imposed were overall manifestly inadequate as failing to reflect the objective seriousness of the offences committed by the respondent. The respondent was sentenced on 9 September 2005 and the notice of appeal by the Crown was dated 3 November 2005.
The offences for which the respondent was to be sentenced can be considered in two groups. The first related to offences committed on 27 January 2004 and included the first three counts on the indictment. The first and third counts were offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act for which a maximum penalty of seven years imprisonment is prescribed and to which a standard non-parole period of five years applied. The third count alleged an offence of sexual intercourse with a child between the age of 10 and 14 years contrary to s 66C(1) of that Act for which a maximum penalty of imprisonment for 16 years is prescribed. The second group of offences occurred on 19 April 2004 and included six counts on the indictment. The fourth count on the indictment alleged an offence of aggravated indecent assault contrary to s 61M(1) and the fifth to ninth counts alleged offences of sexual intercourse with a child between the age of 10 and 14 years contrary to s 66C(1).
On 19 September 2005 the Judge sentenced the applicant to a total overall term of imprisonment for 21 months with a minimum period to be served of nine months. That minimum period is to expire on 29 May 2006, the date upon which the respondent is to be released to parole. The sentence was made up as follows:
Counts 1, 3: imprisonment for a fixed term of three months to date from 31 August 2005 and expiring on 30 November 2005;
Count 2:a non-parole period of six months imprisonment to date from 31 August 2005 and expiring on 27th February 2006 with a balance of term of imprisonment of 12 months to date from 28 February 2006;
Count 4:imprisonment for a fixed term of three months to date from 30 November 2005 and expiring on 28 February 2006;
Counts 5 - 9: a non-parole period of six months imprisonment to date from 30 November 2005 and expiring on 29 May 2006 with a balance of term of imprisonment for 12 months to date from 30 May 2006.
The facts
There was an agreed statement of facts placed before the court and can be summarised as follows. In December 2003 the complainant, who was aged 13, entered a chat room on an Internet site where she came into contact with the respondent who described himself as a male over 21. The respondent was in fact then aged 47. The complainant started communicating with the respondent by e-mail and in the chat room. Eventually the respondent and the complainant exchanged mobile telephone numbers. The respondent rang the complainant on a number of occasions and once suggested that they meet but she declined to do so. The complainant and the respondent discussed sexually explicit matters both on the phone and via the Internet once or twice a week.
On 27 January 2004 the complainant rang the offender and they agreed to meet at a park not far from her home in Putney. On arriving at the park the complainant entered the respondent’s motor vehicle. She then saw that he was much older than she had assumed but nonetheless they began hugging and kissing. While this was occurring, the respondent used his hands to touch both her breasts. He leant over and pulled up her clothing and sucked her left nipple. This act gave rise to the first count on the indictment, an aggravated indecent assault. He commenced touching her pubic area and she eventually pulled down her underpants and, with her consent, the respondent placed a finger into her vagina. This act gave rise to the second count on the indictment, sexual intercourse. After a short while she asked him to stop what he was doing and he complied with her request.
The respondent then moved his vehicle to another location in the park in order to obtain more privacy. They again started kissing and he touched her breasts. This act gave rise to the third count on the indictment, an aggravated indecent assault. Eventually the complainant indicated that she had to leave and the respondent dropped her off at a nearby street. They remained in contact via the Internet and over the telephone.
On 19 April 2004 the complainant telephoned the respondent and asked if they could meet. Later that day he drove to Putney and met the complainant. She entered the motor vehicle and they began to hug and kiss. She suggested that they go to his home and he agreed. After arriving there, they sat together on a couch in the lounge room and started cuddling. The respondent touched the complainant's vagina through her underpants and this act gave rise to the fourth count on the indictment, an aggravated indecent assault.
The complainant removed her underpants and the respondent digitally penetrated her vagina. He asked her whether she wanted him "to go down" on her and she agreed. The respondent then performed oral sex on her vagina. This act gave rise to the fifth count on the indictment, sexual intercourse. After a short time the complainant asked him to stop oral sex but to touch her on the vagina. He complied with the request. She then suggested that they have what she called "dry sex" involving the respondent lying on her and pressing his penis against her vagina but while still clothed. He agreed to this suggestion. The complainant then suggested that they have "dry anal sex" and this occurred. She next asked the respondent to "rim" her and he kissed and licked her bottom and anus. The respondent then placed his finger into her anus and this act gave rise to the sixth count on the indictment, sexual intercourse. The complainant asked him to stop and he did so. She then suggested that they go to his bedroom, which they did.
The complainant got on to the bed and began taking off her clothing. As she removed her skirt, the respondent again performed oral sex on her vagina, an act that gave rise to the seventh count on the indictment, sexual intercourse. He apologised for this act and they both again simulated sex on the bed. The respondent took off his pants and asked her if she wanted to have sexual intercourse. She declined but suggested they try anal intercourse and he agreed. He then obtained some lubricant and placed it on her anus before placing his penis into her. This act gave rise to the eighth count on the indictment, sexual intercourse. This act caused the complainant pain and she screamed. He removed his penis and apologised for the pain. He then put on his underwear. A short time later the respondent exposed his penis and the complainant fellated him until he ejaculated into her mouth. This act gave rise to the ninth count on the indictment, sexual intercourse. Shortly thereafter the complainant told the respondent she wished to go and he drove her home.
There was a victim impact statement by the complainant placed before the sentencing judge in which the complainant indicated that she had suffered physical harm (a tear to her anus), mental harm (in which she said that she "felt shaken" whenever she heard the word "rape" or the name "Colin”), emotional and psychological harm. She indicated that there had been attempts at self-harm since the commission of the offence.
Respondent’s subjective case
The respondent was aged 48 years at the time of sentence and was residing with his de-facto, he having separated from his wife who continued to live in the family home with their two children aged 13 and 10. The respondent had no prior criminal record but had been charged and dealt with for a number of driving matters since the commission of the offences and while he was on bail awaiting the determination of these charges. He had been unemployed since February 2004 because he was suffering from depression.
There was in evidence a presentence report that set out the respondent's background. Little of it was relevant apart from the fact that apparently at the age of 33 the respondent found out that he had been adopted and was so affected by this discovery that he was traumatised and needed counselling. There was a suggestion that at some period after this event the respondent had started to act in an inappropriate manner including fraternising with young girls, often whom he met through Internet chat rooms. Apparently it was this behaviour that led to the deterioration in the relationship between the respondent and his wife.
In relation to his attitude to the offences the report stated:
When questioned about his feelings in relation to the offences, [the respondent] claimed that he had allowed himself to fall into a fragile and vulnerable state due to the break up of his marriage. He stated that the offence sickens him and that he cannot believe he behaved like that. He expressed remorse and several times stated that he hoped the victim was not suffering in any way.
There was also in evidence a psychological report. The respondent told the psychologist that he had suffered from depression since 1987. He was treated for a period of about five years by a psychiatrist for this disorder. He said that he discontinued treatment but in 1997 had a severe episode of depression that lasted about eight weeks. He was treated by a different psychiatrist for about four years and was placed on medication to relieve his symptoms. In the beginning of 2005 he entered a private psychiatric hospital because of his depression and abuse of alcohol. He was a resident there for four weeks. He then had follow up consultations for 10 weeks. At the date of the report, September 2005, the respondent had finished that course of treatment and was looking for a new therapist.
The respondent gave the following account to the psychologist of the offences for which he was sentenced:
He stated that in December 2003 the victim,[ ], entered his chat room. He said that initially he thought that she was a late teenager and was interested in music and literature. He said that she was also interested in "Gothic subculture". He said that when he met her he was surprised to find out that she was so young.
He stated that he began to suspect in early 2004 that she was not a late teenager because she began to talk more about school and that previously he thought that she was referring to TAFE. He said also her comments about the nature of her musical interest made him suspicious. He said that she claims that she had told him of her age early on in their chat room conversations and he now accepts this.
He said that he had agreed to meet her as she seemed to be very upset. He said that when they met she initiated the sexual activity. In relation to this he said "I don't know what was going on in my head at the time". He then said that when he first met her she looked older and that her voice was quite mature. He said that she seemed very assured of herself.
He said that he agreed to meet with her the second time because she wanted to talk about family matters and was also embarrassed at how they had behaved previously. He said that he picked her up and that she had then put pressure on him for sexual activity. In relation to this he said "I was just stupid - I just don't believe that I let something like that happen".
He said that he was very depressed at the time but doesn't know how this may have contributed to his behaviour. However he said "but when I'm depressed I can only see a narrow range of emotions". He feels that his depression may have made him more vulnerable as he said that he had his "ego stroked by her".
He said that after the second meeting "I realised her view of me was largely out of proportion. I had already made a decision that the relationship would have to be put aside". He said that now "it makes me feel a bit sick and if I could go back and change it I would. I'm so upset with myself that I let myself do anything at all. I have always valued my work with my kids. I was a youth worker at my church for a number of years". He also stated that he had been involved in sporting activities with his children and had not felt vulnerable. However he said that he had been very isolated at that time of his life. He said that he had been able to go to work until the last week of February but that even at work he had isolated himself. He said that by the time of the second meeting he was unemployed and did not leave home very often.
In that part of his report under the heading "Opinions" the psychologist stated:
On the basis of information available at the time of preparing this report I am of the opinion that [the respondent’s] offending behaviour occurred because of his depressive illness and his faulty decision making and impaired judgment which accompanied his disorder.
He is presently assessed as having a low likelihood of recidivism in general, and a low likelihood of sexual recidivism. These opinions are based on actuarial analyses and other methods used during the assessment. The only significant risk factor which was revealed is that of major mental illness. However if [the respondent] is able to remain in appropriate psychiatric treatment he is not likely to engage in further offending behaviour.
Because of [the respondent’s] emotional disturbance any prison sentence imposed by the court will be very difficult for him to serve. It is very likely that his depression would deepen and could become even more intractable. If the court were to consider a sentence other than a custodial sentence then it would be recommended that he receives a long period of supervision with a condition being that he continues under psychiatric treatment. It would appear to be essential for his rehabilitation that he receives ongoing treatment for as long as is considered to be necessary.
There was a letter from a counsellor who had been involved with the respondent on a therapeutic basis since February 2004 in relation to depression management. There was also in evidence a letter from his estranged wife as to his relationship with his children and from the respondent's de-facto.
Sentencing remarks
In his sentencing remarks the Judge described offences contrary to s 61M and s 66C as "very serious criminal offences" and referred to the maximum penalties and the standard non-parole period. However he held:
In relation to the standard non-parole period, the Court notes that pleas of guilty were entered in this matter. The Court has reached the conclusion that the criminality involved is in the low to mid range for offences of this type. The Court notes that the standard non-parole period only applies after trial but that it nevertheless provides another goal (sic) post for the guidance of Courts when a trial is avoided by a plea of guilty.
After referring to R v Way (2004) 60 NSWLR 160 amongst other cases, the Judge said:
The Court assesses the goal (sic) posts in light of the assessed criminality of each offence, the favourable subjective features of the offender and any discount entitlements and such things as plea of guilty. The non-parole period I propose to fix will reflect my assessment that the criminality is not within the moderate average or middle range but rather in the low to mid range and my assessment of the many favourable subjective factors.
In relation to the facts of the offences, the Judge said:
In this case there was a significant age difference he being aged 47 years and she 13 years. She in fact did consent to the activity. There were two separate occasions. The degree of exploitation of the youth of the victim is significant and the relationship commenced by reason of the offender's participation in a chat room on the net.
The judge determined that the discount on the order of 20 per cent was appropriate having regard to the plea of guilty and the expressed contrition. The Judge acknowledged that the plea of guilty saved the complainant from giving evidence and it was for that reason that the discount of that proportion had been allowed notwithstanding the late plea.
The Judge noted that the respondent had a depressive illness and that it appeared to be a significant illness but that he was no longer subject to the conflicts that were taking place within his home before he separated from his wife. He referred to the fact that the respondent was in a stable relationship, had attended counselling both as an inpatient and an outpatient and that he recognised the need to continue both therapy and medication. The Judge noted that the respondent was now not alone but had a support network of friends, his partner and the church.
The Judge observed that prior to the offences the respondent was a person of good character and he accepted that these incidents took place at a time "when he was at a low ebb". He held that there were no aggravating factors under s 21A of the Crimes Sentencing Procedure Act 1999 and, in particular, that although the complainant suffered some harm, it was "inappropriate to aggravate the harm in this case as is required by s21A by concluding that there was substantial harm". The judge was not prepared to conclude that there was a mitigating factor that the offences were not planned. However he stated:
Nevertheless on the second occasion there having been sexual activity on the first, it is difficult to see that the offender would have been oblivious to that as a reasonable possibility. He certainly showed no restraint on the second occasion and indicated no disinclination to participate.
The Judge concluded that it was necessary to partly cumulate the sentences to reflect the fact that there were two separate and discrete series of incidents. He found special circumstances “by reason of his mental health issues, and his need for ongoing psychological treatment, the fact that this will be his first time in custody and that it is likely that the sentence will be served in protection”.
Crown submissions

The Crown submitted that a number of features of the Judge’s process of reasoning stood out in the sentencing remarks. It was argued that the Judge gave prominence to the complainant's active consent to the offences and that "this is the core to understanding the low level of sentences imposed". The Crown criticised the Judge for taking a "global approach to an assessment of the objective seriousness of the various offences without differentiating where the particular offence lay on the scale of seriousness". It was suggested that his Honour was inconsistent in finding that there was at least an increase in the moral culpability of the respondent in relation to the second series of offences and yet he imposed the same penalty as for the first series of offences. The Crown submitted that the Judge was also inconsistent in his finding that the degree of exploitation of the complainant's youth was "significant" and yet the level of sentences did not accord with this finding. The Crown referred to a "notable absence" of any reference to general deterrence.
Although the Crown relied upon one ground of appeal, being that the sentences were manifestly inadequate, it identified a number of ways in which it asserted that such a result might have come about. Firstly, it submitted that the Judge failed to properly assess the objective seriousness of the offences, in particular, by taking into account the complainant's "active encouragement of the respondent". The Crown referred to the decision of this Court in R v SG [2003] NSWCCA 220 where Wood CJ at CL at [21] accepted that the fact that the complainant consented might render the objective circumstances of the offence “somewhat less serious” depending on the age of the offender and the victim. The Crown argued that, given the disparity in the ages and level of maturity between the victim and the respondent in the present case, no mitigation arose from the complainant’s consent and encouragement of the respondent.
The Crown points to the disparity between the standard non-parole period for the s 61M(1) offences of 5 years and the sentence of 3 months imposed by his Honour and contends that the Judge paid lip service to the requirement that the standard non-parole period remain as a guide post to the ultimate sentence. This is particularly so, argues the Crown, when the Judge described the criminality of the respondent as falling between the “low to mid range” of offending. It was submitted that a sentence of a fixed term of 3 months for the indecent assault offences completely fails to reflect the objective circumstances of the offences or the relevance of the standard non-parole period.
The Crown complains that the Judge considered the seriousness of the offences in a “global way” without paying attention to each individual offence and analysing its seriousness as is required by Pearce v The Queen (1998) 194 CLR 610. In particular the Crown argues that the sentence for the second series of offences is identical to that for the first series of offences, yet the Judge acknowledged that the second series of offences carried a greater degree of moral and criminal culpability on the basis that the respondent must have at least seen the possibility of sexual activity occurring.
The Crown also submitted that the Judge must have given too much weight to the respondent’s prior good character particularly having regard to the fact that the offences were calculated. Similarly the Crown contends that the Judge paid too much regard to the respondent’s prospects of rehabilitation notwithstanding that the psychologist reported that the respondent had little insight into his offending. Further the Crown argued that the Judge erred in taking into account that the respondent would serve his sentence “in harsher circumstances” having regard to the fact that this is a common element in sentencing an offender for child sexual assault offences and is taken into account in the range of sentences imposed for such offences: R v Durocher-Yvon (2003) 58 NSWLR 581.
Respondent’s reply
The respondent reminded the Court of the rarity of Crown appeals and the limits placed upon the Court’s discretion to interfere particularly where the ground relied upon by the Crown is that the sentence is manifestly inadequate: see R v Wall [2002] NSWCCA 42 and R v Baker [2000] NSWCCA 85. It was submitted that the sentences imposed were not outside the range available to the Judge in the exercise of his discretion. The Crown had conceded and the Judge accepted that the seriousness of the offences were in the “low to mid range”.
Much weight is placed by the respondent upon his mental condition as an answer to the Crown’s complaint that the Judge failed to have any regard to the importance of general deterrence when sentencing the respondent. In particular it was argued that as the psychologist had found that the offences were caused by the respondent’s depressive illness, then the principles in cases such as R v Scognamiglio (1991) 56 A Crim R 81 and R v Israil [2002] NSWCCA 255 apply. The mental condition of the respondent was said to impact upon his criminal culpability for the offences and permitted the Judge to give less weight to general deterrence.
In answer to the matters raised by the Crown it was submitted that the Judge was entitled to give weight to the very active role taken by the complainant particularly in light of the respondent’s mental condition. It was noted that the complainant had been the person who had initiated and directed the sexual activity. Emphasis was placed upon the fact that the respondent was not a paedophile and that treatment of his mental condition would ensure his rehabilitation.
Determination of appeal
In my opinion the Crown submissions should be accepted and the sentence is manifestly inadequate to a very significant degree. In light of the difference in the ages between the respondent and the complainant there was little mitigation in the fact that the complainant was consenting and encouraging the respondent. Had the complainant not been consenting, the criminality would have been aggravated for that reason. As the Judge noted, the culpability of the respondent for the second series of offences was increased above that for the first series. The offences committed on 19 April were more serious in themselves and the respondent must have known of at least the possibility of further sexual activity with the complainant. I would be prepared to find beyond reasonable doubt that the respondent knew that sexual activity would be the result of the meeting with the complainant and he went to meet her for that purpose. The respondent had ample time to reflect on his conduct on 27 January and cease the relationship. The sentences for the second series of offences fail to reflect the Judge’s finding as to the increased culpability for those offences or the level of the respondent’s criminality.
The Judge was not prepared to mitigate the offences on the basis that they were not part of planned criminal activity. The Judge accepted that the meetings with the complainant were planned and that the relationship arose from the respondent’s activity on the Internet site. At that time the respondent knew the complainant’s age and he was disguising his. It is clear that by the time of the first meeting the respondent was involved in an inappropriate relationship with the child from which he must have been obtaining sexual gratification. The respondent discussed with the complainant “sexually explicit matters” on the telephone and via the Internet in what the complainant referred to as “phone sex or cyber sex”. There may be an argument as to whether the respondent was “grooming” the child, as that term is used in relation to paedophilia, but this was not a case where a vulnerable man found himself suddenly and by chance in the company of a promiscuous child.
The sentences imposed generally do not reflect the Judge’s expressed opinion that offences of this type are very serious or that the offending was in the low to mid range. If the sexual intercourse offences were below the middle range of offending, they were not very far below, given their nature, the age of the complainant and the disparity between her level of maturity and that of the respondent. The Judge found that the degree of exploitation of the youth of the victim was “significant”, which in my view is an underestimation at least so far as the second group of offences are concerned. The fact that there was no long term history of offending is relevant but not decisive to a determination of where in the range of offending covered by s 61M(1) and s 66C(1) these particular offences came: R v AJP (2004) 150 A Crim R 575 at [20].
One of the difficulties in sentencing the respondent having regard to the standard non-parole period specified for the s 61M(1) offences is the somewhat curious and inconsistent approach of the legislature in that regard. As has been pointed out the standard non-parole period for an aggravated indecent assault is imprisonment for 5 years yet the maximum penalty prescribed is 7 years. However the maximum penalty for each of the sexual intercourse offences was 13 years with no standard non-parole period. Yet clearly the sexual intercourse offences were more serious than the indecent assault offences, the latter being somewhere towards the lower end of the scale of seriousness for those offences.
The Judge accepted that the respondent was suffering from depression at the time of offending. He made no finding as to the causal relationship between the illness and the offending. I would question the competence of the psychologist to give the opinions he did so far as they suggest that the respondent was suffering from a major psychiatric illness and do not accept his findings where they have not been accepted by the Judge. Their reliability so far as the respondent’s mental history was concerned was highly dubious given that they were based exclusively on what he was told by the respondent. The presentence report indicates that at best the respondent is an unreliable historian in relation to his treatment for his depression. But in my opinion, even if it is accepted that the applicant’s mental state had some role to play in the offending, I do not believe that it could be a factor justifying the extraordinary leniency of the sentences imposed, especially for the second group of offences given the circumstances in which they occurred.
Deterrence is one of the principal purposes of punishment. This was emphasised in R v Radich [1954] NZLR 86 where the Court said at 87:
one of the main purposes of punishment is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment.
This Court has consistently applied this principle, particularly in cases of child sexual assault: see generally R v AEM Snr [2002] NSWCCA 58 and cases discussed therein. The offences of which the respondent has been convicted and the method of procurement of the supposed consent of the complainant are both serious and insidious. Users of Internet chat rooms should be well aware that crimes committed in such circumstances are treated with great concern by the criminal justice system and will be dealt with severely. Children must be protected from themselves and from those who prey on their vulnerability by gaining access to them through means such as that used by the respondent. The only way that this policy can be achieved is by the courts imposing condign punishment upon those convicted of such offences in the hope that others who minded to act in the same way might fear the consequences if they are caught.
On a true analysis of the evidence of the psychologist the respondent’s mental condition does not in my opinion give rise to the principles expounded in those cases dealing with serious mental conditions that permit a court to give less weight to general deterrence. There is no reliable evidence that the respondent suffered from a severe psychiatric condition at any time let alone at the time of the offending. The fact that he was depressed and receiving medication and counselling does not itself suggest that he had an illness of the kind and severity that general deterrence should be disregarded let alone limited in its importance. Very many people in the community suffer depression, often as a reaction to domestic problems, for which they need counselling and medication without committing criminal offences. This is not to minimise the effect that such a condition can have on the ability of a person to function to their true worth and potential. But it is quite another thing to suggest that such an illness should explain, let alone mitigate to a very significant degree, criminal conduct of the nature of which the respondent indulged with this young child. The offending has to be viewed in the context of the whole of their relationship including the sexual content of their conversations before the meetings, a matter not mentioned by the psychologist.
Counsel for the respondent sought to rely upon the decision of the Court in R v Montesinos (2002) 135 A Crim R 417 as giving support to his submission as to the seriousness of the respondent’s mental condition and the effect it should have on the sentences to be imposed for these offences. However, in my opinion that case highlights the fact that the mental disorder of the respondent was not of the severity that significant regard should be had to it as reducing his culpability or the importance of general deterrence. The depression in that case was described as being “so profound that [the respondent] lurches along the edge of psychosis”. The illness in that case was described as “Major Depression”, which I understand to be a severe psychiatric condition. The respondent in that case was also described as being “in urgent need of effective psychiatric treatment and is a significant risk of suicide”.
If the Judge thought that the applicant’s mental condition was of such severity that he was prepared to limit the importance of general deterrence, he should expressly have made such a finding and indicated in a general way to what degree he was prepared to mitigate the punishment for that reason. General deterrence is such an important factor in sentencing for this type of offence because frequently the child will be consenting to the conduct and the aim of the offences is to protect children from themselves and those prepared to take advantage of their vulnerability. I am not prepared to accept that the Judge recognised the importance of general deterrence but dismissed or discounted it because of the respondent’s mental condition when he never expressly addressed that issue at all.
In any event whatever mitigating effect the respondent’s mental state might have had to the first series of offending, I do not give it the same weight in respect of the second series of offences. The Judge recognised that the respondent’s culpability was increased in respect of the offences occurring on the second occasion, yet this is not apparent in the sentences imposed. Further, although the Judge purported to apply the principle arising from the decision in Pearce, I fail to see how the sentence for any one of the sexual intercourse offences in the second series could reflect the criminality for all the offending on that occasion. As serious as the act of anal intercourse was, an appropriate penalty for that offence could not in my opinion reflect the totality of the criminality of the other acts of sexual intercourse.
In my opinion the sentences were manifestly inadequate to the degree requiring the intervention of this Court notwithstanding the restraint to be exercised by this Court in relation to Crown appeals particularly where the Crown cannot point to any specific error in the exercise of discretion: see R v Wall [2002] NSWCCA 42 and R v Baker [2000] NSWCCA 85. It is one of those relatively rare cases where simply to recite the facts and then the sentences imposed manifests the unreasonableness of the sentences notwithstanding a consideration of the respondent’s subjective circumstances.
The discretion of this Court to intervene notwithstanding a finding that the sentences were manifestly inadequate is raised by a consideration of the subjective matters of the respondent and the fact that he was looking forward to being released in May of this year. The Court has received an affidavit of the respondent as to matters that have occurred since sentence. Although the respondent has been on protection, there is nothing to indicate that his imprisonment is unduly harsh such that this Court should stay its hand. Rather it tends to undermine the Judge’s finding that it was relevant to a finding of special circumstances that the respondent would serve his period in custody in more difficult circumstances by reason of being on protection. In any event the onerous conditions of custody for child sexual offenders is reflected in the range of penalties imposed for those offences.
The sentences I propose are still lenient and significantly less than the respondent should have been given at first instance. This is not only in recognition of this being a Crown appeal but also because the respondent was expecting release to parole within a very short time of the hearing of the appeal. The sentences are bases upon a discount of 20 per cent and a finding of special circumstances for the reasons given by the Judge other than the fact that the respondent may serve his sentence on protection. In effect the overall sentence represents a minimum period in custody of 3 years and 6 months and a total term of 5 years less the discount for the plea.
The orders I propose are:Appeal allowed. Sentences imposed upon the respondent by Judge Ellis are quashed. In lieu the respondent is sentenced as follows:Counts 1 and 2A non-parole period of 9 months to date from 31 August 2005 and to expire on 30 May 2006 with a balance of term of 3 months to commence on 31 May 2006.Count 3A non-parole period of 1 year and 3 months to date from 31 August 2005 and to expire on 30 November 2006, with a balance of term of 9 months to commence from 1 December 2006.Count 4A non-parole period of 12 months to date from 31 May 2006 and to expire on 30 May 2007, with a balance of term of 9 months to commence on 31 May 2007.Counts 5,6,7,9A non-parole period of 1 year and 8 months to date from 1 March 2006 and to expire on 30 November 2007 and a balance of term of 1 year and 2 months to commence on 1 December 2007. Count 8 A non-parole period of 1 year and 11 months to date from 31 August 2006 and to expire on 30 July 2008 with a balance of term of 1 year and 5 months to commence on 31 July 2008.

24 August 2006

50. THE COURT: Since judgment in this matter was published it has been brought to the Court's attention that there is an inconsistency between the sentences imposed for counts 5 to 9 inclusive and the dates upon which the sentences are to commence or to expire. It was the intention of the Court that the sentences imposed were those as pronounced but the dates specified need to be corrected. The sentences for counts 5, 6, 7 and 9 should read:

A non-parole period of 1 year and 8 months to date from 1 March 2006 and to expire on 31 October 2007 and a balance of term of 1 year and 2 months to commence on 1 November 2007.

The sentence for count 8 should read:

A non-parole period of 1 year and 11 months to date from 31 August 2006 and to expire on 30 June 2008 with a balance of term of 1 year and 5 months to commence on 1 July 2008.

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LAST UPDATED: 24/08/2006

[2006] NSWCCA 98

5 April 2006