R v Davies - [2005] NSWCCA 384

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Davies [2005] NSWCCA 384

FILE NUMBER(S):
2005/894

HEARING DATE(S): 05/10/2005

JUDGMENT DATE: 10/11/2005

PARTIES:
Andrew Lucas Davies - Applicant
Regina - Respondent

JUDGMENT OF: McClellan CJ at CL Grove J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0427

LOWER COURT JUDICIAL OFFICER: Gibson QC ADCJ

COUNSEL:
Mr R Button SC - Applicant
Mr P Miller - Respondent

SOLICITORS:
SE O'Connor (Legal Aid Commission of NSW) - Applicant
S Kavanagh (Director of Public Prosecutions)- Respondent

CATCHWORDS:
Sentencing
Crimes Act s 66A
Statistics
Sentence outside range.

LEGISLATION CITED:
Crimes Act 1900 - s 66A
Crimes (Sentencing Procedure) Act 1999

DECISION:
1. Leave to appeal granted
2. Appeal upheld
3. Sentence quashed and, in lieu thereof, the applicant is sentenced to imprisonment for 7 years commencing on 13 September 2004 and expiring on 12 September 2011 with a non-parole period of 5 years 3 months commencing on 13 September 2004 and expiring on 12 December 2009.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2005/894
McCLELLAN CJ at CL
GROVE J
HISLOP J
10 November 2005

R v DAVIES

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
GROVE J: I agree with Hislop J.
HISLOP J:
Introduction
The applicant, who was born on 8 October 1980, pleaded guilty to the offence of sexual intercourse with a child under the age of 10 years, namely 7 years of age, contrary to the Crimes Act 1900 s 66A. The offence consisted of the applicant inserting his penis into the mouth of the child and ejaculating. It occurred between 31 December 2002 and 31 January 2003. The maximum penalty for the offence at the time of its occurrence was 20 years imprisonment.
On 1 October 2004, the applicant was sentenced for that offence in the District Court to imprisonment for a total period of 10 years, commencing on 13 September 2004, with a non-parole period of 7 ½ years.
In sentencing the applicant, the sentencing judge took into account on a Form 1 under the Crimes (Sentencing Procedure) Act 1999 a charge of aggravated indecent assault upon the child. The Form 1 described the offence in the following terms, “It is alleged that the accused placed his finger near the anus of the victim…a 7 year old child”. The fact sheet stated the assault occurred when the applicant removed the child’s pants and used his finger to rub some Vaseline on her anus. This offence also occurred during the period 31 December 2002 to 31 January 2003, but at a different time to the principal offence. Counsel for the applicant did not dispute the contents of the fact sheet.
The applicant has sought leave to appeal against sentence on the ground the sentence is manifestly excessive.
The sentencing judge’s findings
The sentencing judge found the offence was objectively very serious. It involved a gross breach of trust as the applicant was living with the child and her mother in a domestic situation and he was in a position of authority over the child. The offence was ranked by his Honour well above mid range, though below the worst type of offence. His Honour stated the offence did not attract the odium of penile penetration of the vagina or anus. His Honour was unable to say whether the emotional damage to the child, if any, was or was not substantial, but he stated he would be surprised if there was not some emotional damage done, although there was not any physical damage occasioned.
The applicant did not give evidence, but a report from a psychologist, Dr Lennings, was tendered on his behalf. Based upon that report, his Honour accepted that the applicant’s life had been disjointed at times whilst he was young because of frequent moves by his family. However he completed high school, obtained the School Certificate, had subsequently undertaken training courses and had generally been in employment since leaving school. There was no suggestion of any sexual problems during his young days up to the time of the offences complained of, nor was there any history of abuse or neglect in his childhood. The mother of the victim subsequently married him. His Honour observed that there was, “not one piece of information that is of assistance in trying to understand why these incidents took place”.
His Honour took into account that the applicant had no prior convictions and that he would serve his sentence “in some sort of segregation”. He allowed a discount of around 30% for the utilitarian value of the plea, its indication of remorse and that it relieved the child of the considerable trauma of giving evidence in the criminal proceedings.
His Honour did not find special circumstances because he did not know what the applicant’s prospects of rehabilitation were, as he was unaware of what caused the offence, and any time for assistance when he returned to society would be covered by his parole period.
The submissions
The applicant does not seek to establish any specific error. He accepts a custodial sentence was inevitable and does not deny the matter on Form 1 deserved reflection to some degree in the overall sentence. His submission is simply that the sentence is manifestly excessive, being so far outside the range of sentences imposed at first instance and by this Court as to manifest error.
The applicant seeks to support his submission on three bases, namely:
a) that general and specific statistics from the Judicial Commission of NSW in relation to offences under the Crimes Act 1900 s 66A show that the sentence is at the very top of the range, and that whilst grave, the matter did not deserve such a position on the spectrum of sentences.
b) That a summary of decisions of this Court relating to Crimes Act 1900 s 66A offences shows that the sentence in this case was outside the range endorsed by the Court even when the Form 1 offence is factored in.
c) The sentencing judge adopted a starting point head sentence of over 14 years. That simply was too long a sentence to reflect the objective and subjective features of the matter, absent all aspects of the plea of guilty.
The Crown submits that whilst the sentence imposed is severe, it was open to the sentencing judge to find the offence was above the mid range of seriousness and to impose a sentence which reflected the community disgust with the sexual abuse of children, particularly in circumstances where there was a breach of trust and there was no expression of remorse by the applicant or explanation for his behaviour. In short, the severe sentence imposed by his Honour was justified.
Discussion
The Judicial Commission statistics placed before this Court by the applicant show that where the s 66A offence occurred before 1 February 2003 82% of the offenders (128 in number) were imprisoned, 5% of those imprisoned received a head sentence of 10 years or more, 4% received a non-parole period greater than 6 years and, where there was one or more matters taken into account on the Form 1, all offenders (9) were imprisoned, 11% received a sentence greater than 8 years, and 14% (of 7 offenders) received a non-parole period greater than 5 years.
These statistics establish that the sentence imposed on the applicant is at the top of the range, but the small sample of offenders in respect of whom a Form 1 matter (or matters) was taken into account and the absence of detail renders the statistics otherwise of little assistance.
The applicant also relied upon a summary of sentences imposed by this Court on appeal in s 66A matters. The Crown did not challenge that summary or seek to contradict it.
There was only one case in that summary where the sentence exceeded that imposed upon the applicant. That was in the matter of R v Smith (NSWCCA 24 November 2003) where the sentence imposed was a total of 11 years with a non parole period of 8 years.
In Smith the offender had pleaded guilty to three counts under s 66A and two counts of aggravated indecent assault. Each of the s 66A counts involved the offender placing his penis in the mouth of a child under 10 and ejaculating. The offender was sentenced to 7 years imprisonment with a non parole period of 4 years for each of these offences. The accumulation of sentence for all offences resulted in an overall sentence of 11 years imprisonment with a non parole period of 8 years.
Other sentences included in the summary range from imprisonment for 8 years to imprisonment for 2 years with some offences dealt with by a bond. A number of the sentences involved offenders with emotional and intellectual handicaps, alcohol problems, dysfunctional childhoods and the like. Some sentences followed a plea of guilty others not. A number of the sentences were for multiple offences, some involved continuing molestation over a lengthy period and on occasions more than one victim was involved. These variables prevent any direct comparison with the present case.
Insofar as the cases in the summary reveal any broad pattern of sentencing it can be observed the sentence imposed on the applicant is high by comparison to other cases and significantly exceeded the sentence imposed for the individual s 66A offences in Smith. This material, in my opinion, lends significant support to the applicant’s submissions.
As McHugh J observed in Everett v R (1994) 181 CLR 295 at 306:
Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them… – see also R v Visconti (1982) 2 NSWLR 104 at 108, R v Holder (1983) 3 NSWLR 245.
As there is no single correct sentence (Markarian v The Queen [2005] HCA 25) it is necessary for the appeal court to evaluate the permissible range of sentence in the light of all the admissible considerations affecting the case in hand, and drawing upon its own accumulated knowledge and experience: R v Holder [1983] 3 NSWLR 245 at 254 in order to determine if the sentence imposed is so excessive as to manifest error.
In evaluating the sentence the Court may have regard to statistics such as those provided by the Judicial Commission of New South Wales and to similar cases in determining sentence patterns and the appropriate sentencing range – R v Bloomfield (1998) 44 NSWLR 734 at 739 though caution must be exercised in the use of such material as the sentence depends on the facts of each case and bare statistics tell a Judge very little which is useful – Wong v R (2001) 207 CLR 584 at 605.
Conclusion
The principal offence was undoubtedly very serious and merits a substantial term of imprisonment. It is also appropriate to reflect the Form 1 offence in the sentence. However, having had regard to all relevant considerations, including the statistics and the applicant’s summary of cases, I have concluded that the sentence imposed in this case is outside the range of sentence reasonably open to such a degree as to manifest error and require the intervention of this Court.
The applicant has submitted that a finding of special circumstances should be made particularly by reason of the applicant’s youth, that he had no prior convictions, that he is being held on protection, that there is a lack of access to appropriate counselling and the effect on his life of his actions. However these matters have been taken into account in assessing the sentence as have the additional affidavits of the parties which were tendered on appeal. I agree with the sentencing Judge that any time for assistance when the applicant returns to society would be covered by the statutory parole period. Accordingly I do not find special circumstances.

In my opinion the sentence which was warranted in law and should have been passed is a sentence of imprisonment for 7 years commencing on 13 September 2004 and expiring on 12 September 2011 with a non-parole period of 5 years 3 months commencing on 13 September 2004 and expiring on 12 December 2009.
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal upheld.
3. Sentence quashed and, in lieu thereof, the applicant is sentenced to imprisonment for 7 years commencing on 13 September 2004 and expiring on 12 September 2011 with a non-parole period of 5 years 3 months commencing on 13 September 2004 and expiring on 12 December 2009.

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LAST UPDATED: 10/11/2005