R v DAJ

[2012] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v DAJ [2012] NSWCCA 143
Hearing dates:	10 April 2012
Decision date:	04 July 2012
Before:	McClellan CJ at CL at [1] Hidden J at [2] Hislop J at [30]
Decision:	Appeal allowed. Sentences of non-parole period of 18 months with a balance of term of 6 months on counts 1, 2, 5 and 6 confirmed. Sentences on counts 1 and 2 to date from 14.04.2010, but sentences on counts 5 and 6 to date from 14.10.2010. Sentence on count 4 quashed, respondent sentenced to non-parole period of 3 years, commencing 14.04.2011 and expiring 13.04.2014, balance of term of 18 months, commencing on 14.04.2014 and expiring on 13.10.2015. Sentence on count 3 quashed, respondent sentenced to non-parole period of 2 years and 9 months, commencing 14.10.2011 and expiring 13.07.2014, balance of term 2 years and 3 months, commencing 14.07.2014 and expiring 13.10.2016.
Catchwords:	CRIMINAL LAW - Crown appeal against sentence - four counts of aggravated indecent assault, two counts of aggravated sexual intercourse without consent - child victim - step-daughter of respondent - whether sentencing judge's assessment of objective gravity of the offences appropriate - whether sentences manifestly inadequate
Legislation Cited:	Bail Act 1978 Crimes Act 1900
Cases Cited:	Clinton v R [2009] NSWCCA 276 Silvano v R [2008] NSWCCA 118, 184 A Crim R 593 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen [2011] HCA 39, 244 CLR 120
Category:	Principal judgment
Parties:	Regina (Crown) DAJ (respondent)
Representation:	Counsel: M Cinque (Crown) G A Newton (respondent) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) B Sandland - Legal Aid Commission (respondent)
File Number(s):	2007/10973
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-04-20 00:00:00 Before: Lakatos SC DCJ File Number(s): 2007/10973

Judgment

1. McCLELLAN CJ at CL: I agree with Hidden J.

1. HIDDEN J: This is a Crown appeal against sentences imposed upon the respondent, DAJ, for a series of offences of sexual assault committed upon a child. He was found guilty of these offences after a trial in the District Court by judge alone. He was also sentenced for failing to appear, an offence under s 51(1) of the Bail Act 1978, but no appeal is brought against that sentence. As to the sexual offences he was found guilty of four counts of aggravated indecent assault, an offence under s 61M(1) of the Crimes Act 1900, carrying a maximum sentence of imprisonment for 7 years and a standard non-parole period of 5 years, and two counts of aggravated sexual intercourse without consent, an offence under s 61J(1) of the Crimes Act, carrying a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years.

1. The trial judge passed sentence for these offences in the escalating order of their gravity, as follows:

• Failing to appear, a fixed term of imprisonment for 6 months, dating from 15 October 2009;

• Counts 1 and 2 (aggravated indecent assault): concurrent terms of imprisonment for 2 years, with a non-parole period of 18 months, dating from 14 April 2010;

• Counts 5 and 6 (aggravated indecent assault): concurrent terms of imprisonment for 2 years, with a non-parole period of 18 months, dating from 14 July 2010;

• Count 3 (aggravated sexual intercourse without consent): imprisonment for 3 ½ years, with a non-parole period of 2 years and 3 months, dating from 14 October 2010;

• Count 4 (aggravated sexual intercourse without consent): imprisonment for 3 years, with a non-parole period of 2 years, also dating from 14 October 2010.

1. The aggregate sentence (including the fail to appear offence) was imprisonment for 4 ½ years, with an effective non-parole period of 3 years and 3 months, dating from 15 October 2009. It will be seen that the sentences for counts 1 and 2 were accumulated upon the sentence for failing to appear by 6 months, that the sentences for counts 5 and 6 were accumulated by a further 3 months, and the sentences on counts 3 and 4 by yet a further 3 months. The aggregate sentence for the sexual offences was imprisonment for 4 years, with a non-parole period of 2 years and 9 months, dating from 14 April 2010.

1. The victim of the offences was the daughter of a woman with whom the respondent was in a relationship. They occurred over a period of years, beginning some time in 2003 or 2004 and concluding in the first half of 2007, the first when she was 9 or 10 years old and the last when she was 13. The respondent was in his early 30s. The offences charged were part of a wider pattern of abuse. The trial judge announced his verdicts, after delivering lengthy reasons, on 16 January 2009. There was considerable delay before the respondent was sentenced, partly due to fact that he failed to answer his bail on 20 February 2009, the day to which the matter was adjourned for sentence proceedings, and was not apprehended until October of that year. It was this which gave rise to the charge of failing to appear.

Facts

1. In the remarks on sentence his Honour set out his findings of fact, also at some length. To understand the circumstances of the offences, and their gravity, it is appropriate to set out that part of the remarks:

"The background to these offences was that the prisoner met the complainant's mother SC, in late 1998. In March 1999, she and her four children moved to Sydney. In late 1999 [the] prisoner and she commenced to live together with the four children of the family. In October 2000 the prisoner, SC, and the children, moved from Sydney to a property at [property name suppressed - will refer to as Property W] on the central coast. It was at that location where the first two or three counts on the indictment were committed.

The background was that the prisoner was routinely working long hours in Sydney and commuting. In early 2001 the prisoner's wife [SC] became pregnant with their first child, who was born in October 2001. In February 2003 a second child, a daughter, was born into that relationship. In March 2004 the prisoner commenced to work in [location suppressed - will refer to as Rural area A] for the National Australia Bank and in April 2004 the family moved to a property called [property name suppressed - will refer to as Property R] at [Rural area A]. It was at that location that the offence comprising the fourth count occurred. In July 2004 the family company, comprising the prisoner and his then wife, purchased a rural property near the township of [township suppressed - will refer to as Township B]. It was at that location that the last two offences on the indictment occurred.

...

So far as count 1 [aggravated indecent assault] was concerned, the complainant said that she was in her own bed at [Property W] late at night. She said that the prisoner came in and started touching her stomach and upper thigh, and then touched her vagina. She thought that it was some months before the family left [Property W]. She woke up when she was touched. Thereafter she rolled over and tried to go back to sleep. She said that the accused touched her on the stomach gently, not doing her any harm, but that she was touched on the stomach and underneath her pyjamas. She was also touched on her vagina and stated in the interview that 'she had no clothes on underneath her pyjamas'. She described what occurred as the accused just rubbing over the top of her vagina. She said that she was scared. She did not know what to do because she understood that what happened was wrong.

I should interpolate to say that at the time this offence occurred, the victim IC was between nine and ten years of age. It was her evidence that the incident went on for about half an hour or maybe fifteen minutes. She attempted to push his hand away and rolled over. She pushed him away and rolled over and said that the prisoner attempted to roll her back again and attempted to repeat his actions. However, no further activity took place at that stage.

In relation to the second count [aggravated indecent assault] which occurred when the victim was ten years of age, she said this: That occurred at the premises at [Property W]. She said that at that stage she was sharing a bed with her younger sibling EC. The prisoner came into the room and she said just did the same thing, he felt all around her stomach and legs and then on her vagina again. She said that her younger sibling was then asleep. She said the offender came in and knelt beside the bed and just did the same thing, namely touched her stomach, legs and vagina, as well as her upper thigh. Again, she said she was touched underneath her clothing on her skin, and he, as he did previously, just attempted to rub it, referring to her vagina, with his hands and fingers. She said that she felt angry and was worried when this occurred. She tried to push him away and he just did it again. Once again, she considered that that incident took place in the space of fifteen or more minutes.

The third count [aggravated sexual intercourse without consent] occurred at [Property W] at a time when the [victim] was a little over ten years of age. She said that on this occasion the incident occurred in a room downstairs. She said that the prisoner just came down and she stated that, 'He licked his finger and put it in my vagina'. She said initially that he did not touch or do anything else, but ultimately said that he also rubbed her near her vagina and around her stomach and legs. She said that the prisoner pushed on something and it hurt. The victim pushed his hand away and he was 'like a bit more gentle'. Apparently he stopped doing what he started and did not try and push further. She said that for a period of time he continued to have his finger inside her vagina and it appeared to her to be a lengthy period of time. For reasons which I will explain, I do not put much store on her estimate of time, given that she was then about ten years of age, and given that I consider that the trauma which would have attended this event would most likely have clouded any accurate assessment by her of the precise length of time over which these matters occurred. She confirmed that he did in fact push his finger 'like right inside' and when it really hurt she pushed him away.

The fourth count, another count of aggravated sexual intercourse, occurred at [Rural area A]. The victim said that she was in a room with her sister EC and upstairs. She said that the prisoner came into the room and touched her on the same place, being a reference to her vagina, and said that she was touched around her legs and stomach. She stated that the prisoner touched her on both the inside and outside of her vagina, 'because I felt it'. She tried to push his hand away, she rolled over and went back to sleep. On this occasion she said she felt annoyed and she did not tell anybody what had happened.

She gave evidence in cross-examination that such events occurred on a number of occasions, once at [Property W] and once at [Property R], which is the premises at [Rural area A]. She also said that on one of these occasions the prisoner told her that he loved her. It was her evidence that the events comprising count 4 took place in the space of fifteen or thirty minutes. She confirmed that he penetrated her on this occasion, although not to the extent which occurred in count 3.

The fifth count [aggravated indecent assault] occurred at [Township B] between 2005 and 2007, and the victim said that she, by this stage, was boarding at a private school in [Rural area A], that she returned home on the weekends and on holidays, and on one such occasion she was watching television and/or videos when the offender came into the room. She described him as going a bit funny and attempting to kiss her. It was an open mouth kiss and the victim pulled away. She said that her mother had gone to bed and the prisoner attempted to touch her 'everywhere' on her upper body and on her 'boobs' as she described them, on her stomach and also attempted to touch her vagina. She said at this stage she would push him away. She stated that on most of the occasions that these things occurred he had been drinking and that he liked to drink 'like every night' she said.

The final count [aggravated indecent assault] took place between March 2007 and May 2007. She said that she was home from boarding school on that occasion. She and the prisoner would stay up late. She said that he would say to her, 'You can come and sleep with us', referring to he and the victim's mother. She said that she would jump into bed next to her mother and he would come in and try and do it again. On a particular weekend, the subject of count 6, she stated that the prisoner 'just touched me on the vagina'. She said this was when she got in next to her mother, and once again she stated that the touching was underneath her clothes on her bare skin.

She gave further evidence, which I permitted as context evidence, that on a number of occasions over the years between when these offences occurred he would often grab her hand and try and put it on his erect penis. I should say, as I did when handing down my reasons in January 2009, the context evidence does not make the objective seriousness of the six counts any more serious. It is impermissible to use that material as reflecting on the objective gravity of the six counts. What it does is put into context the fact that the events comprising the six counts did not happen in isolation but were part of a course of conduct. They reflect, therefore, on the objective seriousness of those individual matters as simply putting them into a context of not an isolated aberration, but something a little more than that.

I noted in the judgment of January 2009 that these acts, if they occurred and I found that they did, clearly involved a betrayal of trust, but were not accompanied by any force or violence. The victim said she was scared of the accused. I accept that statement of what her feelings were at the time."

1. In summary, then, the first two counts (aggravated indecent assault) involved touching the complainant's vagina and the area around it, the third and fourth counts (aggravated sexual intercourse without consent) involved digital penetration, the fifth count (aggravated indecent assault) involved kissing and attempting to touch the complainant's breasts and vagina, and the sixth count (aggravated indecent assault) involved touching her vagina. In each count the circumstance of aggravation was her age. There were other incidents of a similar kind, and on occasions he tried to put her hand on his erect penis.

Subjective case

1. The respondent is now 39 years old. Apart from a traffic matter of no present significance, he had no previous convictions. However, in 2007, after the sexual offences had come to an end, he was convicted in the Local Court of a number of charges of obtaining money by deception and received a 12 month suspended sentence.

1. There was extensive evidence on sentence, to which it is not necessary to refer in any detail. The respondent is well educated, had been in consistent and responsible employment, and had enjoyed a good reputation in the community. His relationship with SC broke down in 2007, at a time of financial stress because the [Township B] property had been affected by drought. He attempted suicide after the separation, a fact which he attributed to the breakdown of the relationship and financial difficulties but which his Honour saw as also caused by his sexual offences coming to light. In August 2008, he met his current partner. He continued that relationship after he absconded on bail, and they have a young child. At the time of sentence she was standing by him, a fact which his Honour respected.

1. Before his Honour were a number of psychological reports and a report of Dr Nielssen, forensic psychiatrist. Some of the reports were prepared for the proceedings relating to the charges of obtaining money by deception, concluding that the respondent had been through a major depressive episode at that time brought on by financial difficulties and the relationship breakdown. Dr Nielssen, who prepared a report for the present sentence proceedings, diagnosed him as suffering from major depression, noting that he was in protective custody and experiencing a high level of stress and depression. He had been assaulted while in custody, although it appears that this was unrelated to these offences.

1. His Honour found that the respondent's period in custody had "affected him greatly", and judged him to be "a person who has probably felt the sting of prison much more severely than many others." His Honour approached the question of rehabilitation with some caution but, given his experience of prison and his prior good standing in the community, was "inclined to accept" that he was unlikely to re-offend provided he undertook sex offender courses which should be available to him.

The appeal

1. The Crown prosecutor argued five grounds of appeal, challenging aspects of the sentencing judge's reasons but also asserting that, in any event, the sentences were manifestly inadequate. As I have decided that the ground of inadequacy is made out, it is unnecessary to decide the other more specific grounds. However, it is appropriate to consider them briefly because they raise matters relevant to re-sentence.

1. The first two grounds can be considered together. They are that his Honour erred in taking into account circumstances of hardship in respect of the respondent's custody in the absence of evidence supporting that finding, and by taking into account the prison assault as extra-curial punishment for his offences.

1. As to the first matter, his Honour noted the respondent's evidence that he was in protection, "being locked up for some eighteen hours a day." He later said, "... he is on protection and will by reason of that suffer harsher than usual conditions and I have taken that matter into account." The Crown prosecutor pointed to evidence that during the six hours that the respondent was allowed outside of his cell he had been able to undertake courses in anger and stress management and was on the waiting list for another course. She submitted that there was no evidence of what the usual custodial conditions were, and nothing to suggest that his conditions would deteriorate after sentence. She referred to authority that an offender must lead evidence to show that his or her conditions of imprisonment would be more onerous than normal: see, for example, Clinton v R [2009] NSWCCA 276 at [14] - [28].

1. The Crown prosecutor also argued that his Honour appeared to take into account the prison assault as a form of extra-curial punishment, even though there was no nexus between that assault and the respondent's offences. She referred to Silvano v R [2008] NSWCCA 118, 184 A Crim R 593, at [24] - [36]. However, there is force in the argument of counsel for the respondent, Mr Newton, that it is far from clear from his Honour's remarks that he was treating the evidence of the assault in that way. His Honour was dealing with a submission by counsel then appearing for the respondent that a number of matters amounted to extra-curial punishment, a submission which he appears to have approached with some reservation. It was immediately after that that he referred to the assault, but a fair reading of the remarks could convey that he was treating that as a discrete matter.

1. There appears to be more merit in the first ground. Mr Newton did not address directly the question of the respondent's protected status, but relied upon his Honour's general observation about the effect of prison upon him and the finding that he probably felt the sting of prison more than many others. In my view, that was an assessment open to his Honour and one to which the prison assault was relevant. That is how I would approach the evidence for the purpose of re-sentence. It is not necessary to express any concluded view about these two grounds.

1. Grounds 3 and 4 assert that his Honour erred in his assessment of the objective seriousness of the offences and that, in doing so, he was "inappropriately guided" by a Public Defenders' schedule of cases which had been supplied to him. His Honour said in his remarks that he had "carefully examined" that schedule of cases. The Crown prosecutor argued that the schedule was not a fair representation of the current pattern of sentence for the present offences. Here again, as Mr Newton submitted, what his Honour said about that schedule has to be read in context. His reference to it immediately preceded his assessment of the objective gravity of the respondent's offences, but it is by no means clear that he used it for that specific purpose.

1. However that may be, there is more substance in the Crown prosecutor's challenge to what his Honour had to say about objective gravity. He referred to a number of matters relevant to that assessment, including the age of the complainant at the time, the breach of trust by the respondent, whom she saw as her father, the period over which the offences were committed, the fact that they were not isolated incidents, and that they would "no doubt have a significant impact upon the victim in the future." That said, his Honour expressed no finding about the objective gravity of the aggravated indecent assaults (counts 1, 2, 5 and 6). As to the counts of aggravated sexual intercourse without consent, counts 3 and 4, he found count 3 more serious than count 4 because it was a relatively lengthy episode, causing the victim pain. Nevertheless, he concluded that count 3 was well below the mid-range of objective seriousness, in fact, at the lower end of the range.

1. I appreciate that the offence of sexual intercourse without consent embraces a wide variety of behaviour, and that this court recognises that the characterisation of the objective seriousness of any offence is a matter of judgment "classically within the role of the sentencing judge": Mulato v R [2006] NSWCCA 282, per Spigelman CJ at [37]. Nevertheless, his Honour's conclusion seems difficult to support, particularly given that the victim was only 9 or 10 years old at the time of counts 3 and 4, that the respondent stood in loco parentis to her, and that these were not isolated incidents. His Honour found that the offences were not accompanied by force, coercion or threats but, of course, the vulnerability of such a young victim is such that that is commonly the case.

1. No doubt, his Honour expressed an assessment of the objective gravity of those offences in the way he did because they attract a standard non-parole period. The respondent was sentenced before the High Court's decision in Muldrock v The Queen [2011] HCA 39, 244 CLR 120. In the light of that decision, an assessment of that kind was unnecessary. Nevertheless, his Honour made it and it conveys to me that he underestimated the gravity of those two offences. There is force in the Crown prosecutor's submission, also expressed in ground 4, that an erroneous assessment of the gravity of all the offences has led to an overall sentence which is manifestly inadequate.

1. Ground 5 is that his Honour erred in failing adequately to accumulate the sentences, providing another reason for the inadequacy of the overall sentence. Certainly, the accumulation of the sentences for the sexual assaults was minimal, but again there is no need to decide this ground or to examine the now familiar authorities on accumulation of sentence to which the Crown prosecutor referred us. As I am satisfied that the appeal must be allowed and the respondent re-sentenced, it would be for this court to exercise its own discretion in determining the measure of accumulation.

Re-sentence

1. I have referred to his Honour's guarded but basically favourable assessment of the respondent's prospects of rehabilitation. The genesis of the offences, his Honour found, was in the long hours the respondent was working, the considerable distance he had to travel to and from work, and his likely use of alcohol to excess. He described the offences as "opportunistic", and concluded that they were the product of stress and alcohol reducing his inhibitions. This does provide some explanation for the respondent's behaviour but, of course, it is no excuse for it.

1. On the question of re-sentence, a number of affidavits were read in this court. They establish the stress and anxiety which imprisonment continues to engender in the respondent. In February of this year, a close friend of his, to whom he had been a mentor, committed suicide in his cell. He is on a course of medication for his depressive illness. He has been undergoing a program directed to understanding sexual offending, and is willing to undertake any further program which becomes available to him.

1. His partner remains supportive of him, as do his parents and his sister. Regular contact with his partner and their child, who is now 2 years old, has been difficult because they reside in Brisbane. When he is released, he plans to join them in Brisbane and obtain employment there.

1. While taking those matters into account, the fact remains that justice demands a significant increase of the respondent's overall sentence. The orders I propose would increase the aggregate sentence for the sexual offences to imprisonment for 6 ½ years with a non-parole period of 4 years and 3 months. I would confirm the sentences on the aggravated indecent assault counts, but direct that the sentences on counts 5 and 6 commence 6 months after those on counts 1 and 2. I would increase the sentences on each of the counts of sexual intercourse without consent, counts 3 and 4. I would accumulate the sentence on count 4 by a further 6 months, and the sentence on count 3 (which I accept to be somewhat more serious) by yet a further 6 months. In setting the non-parole periods for counts 3 and 4, I would find special circumstances because of the accumulation of sentences.

1. Factoring in the 6 month sentence for failing to appear, the total sentence would be imprisonment for 7 years with a non-parole period of 4 years and 9 months. This would give the respondent the benefit of eligibility for a significant period of supervised liberty, subject to supervision and the sanction of parole.

1. On counts 1 and 2, I would confirm the sentences of imprisonment for 2 years, comprising a non-parole period of 18 months and a balance of term of 6 months, dating from 14 April 2010. On counts 5 and 6, I would also confirm the sentences of imprisonment for 2 years, comprising a non-parole period of 18 months and a balance of term of 6 months, but would direct those sentences to commence on 14 October 2010.

1. On count 4, I would quash the sentence passed in the District Court and re-sentence the respondent to imprisonment for 4 ½ years, comprising a non-parole period of 3 years, commencing on 14 April 2011 and expiring on 13 April 2014, and a balance of term of 18 months, commencing on 14 April 2014 and expiring on 13 October 2015. On count 3, I would sentence the respondent to imprisonment for 5 years, comprising a non-parole period of 2 years and 9 months, commencing on 14 October 2011 and expiring on 13 July 2014, and a balance of term of 2 years and 3 months, commencing on 14 July 2014 and expiring on 13 October 2016.

1. The respondent would be eligible for release on parole on 13 July 2014.

1. HISLOP J: I agree with Hidden J.

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Decision last updated: 15 August 2012