R v Falls

[2004] NSWCCA 335

CITATION:	Regina v Michael Arthur Falls [2004] NSWCCA 335
HEARING DATE(S):	11 May 2004
JUDGMENT DATE:	1 October 2004
JUDGMENT OF:	Dunford J at 1; Adams J at 8; Howie J at 28
DECISION:	Leave to appeal granted - appeal upheld - applicant re-sentenced
CATCHWORDS:	Criminal Law - Sentencing - detain for advantage - sexual advantage - plea of guilty - statement of agreed facts tendered by consent - applicant gives evidence at variance to agreed facts - not cross-examined thereon - judge sentences on basis of agreed facts - whether erroneous - sentence otherwise excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	GAS and SJK v The Queen [2004] HCA 22 R v Barri [2004] NSWCCA 221 R v Blanchard (NSWCCA, 10 September 1991, unreported) R v Harkin (1989) 38 A Crim R 296 R v Newell [2004] NSWCCA 183 R v O'Neill (1979) 2 NSWLR 582 R v Palu (2002) 134 A Crim R 174
PARTIES :	Regina v Michael Arthur Falls
FILE NUMBER(S):	CCA 60032/04
COUNSEL:	B Knox SC - Crown R Burgess - Applicant
SOLICITORS:	S Kavanagh - Crown Legal Aid Commission - Applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1240
LOWER COURT JUDICIAL OFFICER :	Blanch CJDC

- 22 -

60032/04

DUNFORD J
ADAMS J
HOWIE J

FRIDAY 1 OCTOBER 2004

REGINA v MICHAEL ARTHUR FALLS

Judgment

1 DUNFORD J: In this case I have had the opportunity of reading in draft form the judgment of Adams J where the facts are fully set out, and also that of Howie J.

2 I agree that leave to appeal should be granted, the appeal upheld and the applicant re-sentenced as proposed by Howie J, and I also agree substantially with his Honour’s reasons for such orders.

3 In particular, I agree with Howie J that the sentencing proceedings were unsatisfactory because of the tender by the Crown in addition to the Statement of Agreed Facts, of other materials, some of which were contradictory of such Agreed Facts (e.g. the applicant’s interviews with police). These problems were compounded by the applicant then giving evidence in which he sought to minimize his criminality, ultimately claiming that he merely wished to “have a conversation” with the complainant. He was not asked, and did not say, what he wished to have a conversation about.

4 In his evidence (at T 4), on prompting by his counsel, he accepted that he had a sexual intent or interest in his attempting to detain the victim, and he should then have been asked by his counsel, or by the Crown Prosecutor in cross-examination, what was his sexual intent or interest; or the sexual advantage referred to in the charge should have been identified. As the matter was not further explored, I consider that the plea and the Agreed Statement of Facts should be understood as meaning that the applicant attempted to detain the complainant for some form of sexual advantage not amounting to sexual intercourse. In the same vein, when he said he only wanted to have a conversation with the complainant, he should have asked the subject matter of the proposed conversation to see how, if at all, it could give rise to a “sexual advantage”.

5 I agree with Howie J that by setting out in his Remarks on Sentence the facts virtually in accordance with the Agreed Statement of Facts, the learned sentencing judge indicated that he was sentencing the applicant on the basis of those facts and disregarding the evidence of the applicant in so far as it was inconsistent with, or additional to, those Agreed Facts, and implicitly rejecting the propositions that his only purpose was to have a conversation with her and that he withdrew from the attempt for any reason other than that the complainant screamed and ran away.

6 His Honour was entitled to take this approach, and I see no error in his so doing. It was for the sentencing judge to find the facts for the purposes of sentencing from the material before him including the Agreed Statement of Facts: GAS and SJK v The Queen [2004] HCA 22 at [30]-[31]. If an accused pleads guilty on the basis of an Agreed Statement of Facts, I do not see how he can complain if the judge sentences him on the basis of such Agreed Statement, and this Court should proceed on the same basis.

7 I agree that the sentence was excessive, and agree with Howie J that the head sentence should be 6 years for the reasons given by him. I also agree that there are no circumstances in this case which are sufficiently special to call for a variation in the standard ratio between the head sentence and the non-parole period, and the non-parole period should therefore be one of 4 ½ years.

8 ADAMS J: The applicant pleaded guilty in the District Court to one count of attempting on 23 August 2002 to detain one XY without her consent with the intention of obtaining an advantage, namely a sexual advantage.

9 On 8 April 2003, the charge having come on for trial, the applicant pleaded guilty and the hearing adjourned to 6 June 2003 for a pre-sentence report to be obtained and otherwise to prepare the case for sentence. On 6 June 2003 an agreed set of facts was tendered, together with a pre-sentence report, the applicant’s criminal record and other documents. The applicant gave evidence. He was sentenced to a term of eight years imprisonment with a non-parole period of six years, commencing 28 August 2002, the day of his arrest. It is from this sentence that the applicant seeks to appeal.

10 The facts may be briefly summarised. On the afternoon of 23 August 2003, the offender, then 33 years of age, was on his way home from work. He came across XY, a young girl of twelve years of age, who was walking home from school, and started to follow her. XY noticed this and quickened her pace. The offender did likewise. At one point he came up beside XY but they were near to a householder doing some gardening and the offender dropped back for a short distance. The offender then came up to XY, placed his hand on the side of her neck, pressing with his fingers (but not with his thumb) and attempted to guide her towards the driveway of a block of units. (The victim described it as “not really pushing…it was as it he was trying to force me up [there] without like physically pushing, he was just, had my neck, and was just trying to steer me up there…”) He said, ”Don’t do anything stupid, come with me, I want to show you something.” XY said, “No, no.” He repeated his words. XY then screamed, the applicant “jumped away”, XY started walking away, the applicant repeated his request and the two then ran away from each other. The words, “Don’t do anything stupid” carry an implicit, though unspecified threat, as it seems to me, but the words, “I want to show you something” are ambiguous: they could, of course, be a reference to some sort of sexual conduct or, more likely words designed to pique the victim’s curiosity and induce the victim to go with him. The behaviour of the victim certainly indicates that she was frightened. Four days later, on 28 August 2002, the offender was arrested.

11 This matter is complicated by the applicant’s evidence and the way in which it was dealt with by the Crown prosecutor. The statement of agreed facts says no more about the “sexual advantage” admitted by the plea than that the “Crown is unable to prove beyond reasonable doubt that the prisoner formed any intention to engage in sexual intercourse with” the victim. Indeed, the Crown did not submit that the evidence supported an inference that the applicant intended at any point to sexually interfere in some way with XY. It is, I think, common ground that this stance correctly reflected the state of the evidence.

12 In his evidence at the sentence proceeding the applicant testified that he “had no intentions of hurting this girl or sexually assaulting her.” He said, “I was just there to have a conversation with her.” He was asked, “What made you, as best you can say in that moment, what made you run away when the girl cried out?” He answered, “I knew it was wrong at the time, what I was doing, and I wasn’t there to hurt her, and I didn’t want to hurt her or have any sexual gratification with her.” This theme was repeated in the pre-sentence report, which records the applicant as having stated that “the only reason he approached the victim was to have a conversation with her and he denied any sexual intent.”

13 The applicant’s statements that he did not intend to hurt or sexually assault the victim are entirely consistent with his plea and the Prosecutor did not cross-examine him about them. In the result, they are not controversial. However, the statement denying the intention to “have any sexual gratification with her” is problematical, since it suggests that the applicant was seeking to qualify or withdraw from his plea. I do not consider that it should be interpreted in this way. Certainly, the applicant’s counsel did not do so, since there was and has been no application to withdraw the plea. Given the context, I would conclude that the applicant was insisting that he had no intention of doing any particular sexual act involving the victim. In his submissions, Mr Webb, the applicant’s counsel referred to the “inchoate nature of the offence” except for what might be called, “the guiding hand” which (as I understand it) was the substance of the attempt. He then made what he called “a strong submission” that “in the moment of re-enacting the issue or fantasy, he’s pulled back and has not taken the disastrous course for the victim as has previously occurred.” This was a reference, clearly enough, to the applicant’s previous offence of aggravated sexual intercourse without consent committed by him in September 1994. The victim of that offence was a twelve-year-old girl whom he had followed on her way home from where she had been dropped by her school bus and whom he had threatened with a heavy chain. His sentence of four years with an additional term of two and a half years (imposed in April 1996) was increased on a successful Crown appeal to the Court of Criminal Appeal to a minimum term of six years with an additional term of three years. (I interpolate that, although the applicant had been eligible to be released on parole on 6 April 2001, he was in fact not granted parole until 26 March 2002. The applicant’s parole was then revoked on 12 September 2002, so that he was in custody as at the date of sentence, serving the balance of parole, which expired on 6 April 2004. The learned sentencing judge was of the view, I take it, that in substance parole was revoked for reasons that encompassed the conduct at present in issue and accordingly ordered that the applicant’s present sentence should commence on the day of his arrest.)

14 The applicant also gave evidence as follows –

“Q Do you understand that sexual assault and more specifically molestation of children leaves very deep scars on their life? Do you understand that Mr Falls?
A. I do, I do.
Q. How do you feel about that? Does that make a different to the way you feel and think now.
A. No and before, yes it has. It’s one of the reasons why I didn’t follow through with my past – with this victim now, that I didn’t take anything any further because I knew what harm it was (sic) on my past victim and I didn’t want that victim to go through the same thing. In the CUBIT programme I learned about the values of a person and how to respect them and with this victim I had a slight lapse and I know how to fix it and I’m going to do everything in me power this time to make sure that I fix that problem …”

He was not cross-examined about his assessment of his behaviour as “a slight lapse”.

15 Mr Webb submitted that the learned sentencing judge should accept the applicant’s evidence as truthful, in particular that the Court would accept that “he held back in that crucial moment” and that subjective features “such as his mother dying, the relationship with his de facto wife breaking down… [and] very significant features that a court might take into account [in the sense that] your Honour can see how he’s gone off the edge, in no way mitigating the seriousness of the matter”. Counsel for the Crown cross-examined the applicant but not as to his intentions and, accordingly, was not in a position to (and did not) submit that his evidence about this matter ought not to be accepted. It must follow that the Crown was content that the applicant should be sentenced on the basis that he had no intention to sexually interfere with the victim. The admissions of the applicant that “I knew it was wrong at the time, what I was doing” and “I didn’t take anything any further because I knew what harm it was (sic) on my past victim and I didn’t want that victim to go through the same thing” acknowledge wrongdoing and a consideration and rejection, at some point, of the possibility of some kind of sexual conduct that involved physical interference. The wrongdoing admitted was, I think, his approaching, touching and attempting to induce the girl to go with him and having at some point an idea of sexual conduct which remained vague and, most likely, undecided.

16 To summarise, I think that the only way in which the evidence can properly be understood, when taken as a whole, is that the applicant had an idea connected with sexual notions of some kind, probably inchoate but included an intention to have a conversation with her about sexual matters, which led him first to follow and then to induce XY to leave the footpath and enter the driveway of the block of units and that he desisted from doing anything more when she screamed. Whether he would have desisted had she merely declined to obey his demand is unknown, though he repeated his implicit threat after she said, “No, no” the first time. In the result, however, it is not possible to draw an inference against the applicant beyond reasonable doubt that he would have continued to the point of sexual assault. One difficulty with drawing an inference adverse to the applicant on this question, certainly beyond reasonable doubt, is his categorical assertion, implicitly accepted by the Crown, that his only purpose was to have a conversation with XY. I consider that it is reasonable to accept that this was the applicant’s only crystallised intention. That he also had in mind at the relevant time some sexual behaviour of an undecided and uncertain kind is inescapable having regard especially to his own admission about “wrongdoing” but the evidence does not permit a determination beyond reasonable doubt that the applicant had intended to sexually interfere with XY. The Crown Prosecutor accepted, as it seems to me, that the attempted detention alleged in the indictment was the unsuccessful momentary physical guiding of the victim against her will to the driveway of the nearby block of units, which did not in the event occur because the victim did not comply.

17 The learned sentencing judge did not refer to the applicant’s reasons for attempting to detain the victim. His Honour’s only reference to the matter is in the following terms –

“The psychologist who gave evidence, Dr Lemmings, is confident that he is well motivated to go into … [the Custody Based Intensive Treatment programme for sex offenders] and, of course, that programme may do him some good…I cannot in his favour come to the conclusion that he is definitely going to be cured but neither to his detriment can I come to the conclusion that he is beyond redemption. That leaves me to assess the sentence on the basis that while on parole for a serious sexual offence he has committed another serious sexual offence, perhaps not of the same gravity as the one for which he was on parole but he was on parole, he did know of the problem that he had and nonetheless this offence has occurred.”

18 As I see it, and I say this with unfeigned respect for the learned judge, there are two problems with his Honour’s characterisation of the crime. The first is that the applicant was being sentenced for an attempt: the indictment did not allege a completed offence of any kind, let alone a sexual offence, no doubt because the victim did not say that she had actually been guided by the applicant: her statement to the police went no further than saying that he had “tried” to do so. Secondly, the element of sexual gratification, as admitted and, for that matter, proved was prospective and, at all events, could not be treated as involving an assault. The mere fact that, in discussing the applicant’s rehabilitation, it was assumed that he had, indeed, offended again by committing a sexual offence was not evidence that could be used to contradict the uncontroverted evidence of the applicant. Even though the applicant’s activity was sexually motivated, I would not describe what he did as a sexual offence – which, I think, must demonstrate an objective or overt sexual act – but this may be a semantic distinction of little moment. More important is my respectful disagreement with the learned sentencing judge that what the applicant actually did amounted to a “serious sexual offence”. It is self evident that sexual offences vary in seriousness, depending mainly on the age and situation of the victim and what is done to his or her person. But in this case no sexual act actually occurred; indeed, there was no attempt to commit a sexual act. A sexual act of some kind might have been intended but the evidence did not permit the inference that it might have been a sexual assault. Accepting that the applicant’s attempt amounted to a sexual offence in the sense that it was motivated by thoughts of sexual gratification, I do not think that it should have been regarded for the purposes of sentencing as amounting to a “serious sexual offence”, almost as grave as that for which he had earlier been convicted and so serious as to warrant a starting point of ten years imprisonment.

19 The maximum term of imprisonment for the offence in question is fourteen years: s 86(1) of the Crimes Act 1900. By virtue of s 344A, the maximum penalty available to be imposed for an attempt is that available for the substantive offence. However, it will be rarely the case that an attempt will be punished as severely as the completed offence. There are two main reasons for this: the first is that the criminal law has always regarded the actual consequences of criminality as a significant marker of the extent of retribution that should be reflected in the sentence; secondly, an attempt may be committed despite a change of mind once the attempt is embarked on. This distinction needs to be recognised else, once an attempt is undertaken, there would be no reason to desist from committing the crime to avoid more severe punishment. Of course, in many cases the attempt is unsuccessful for reasons entirely outside the offender’s control and this last consideration is therefore immaterial. Here, no detention occurred because the victim did not comply with the applicant’s direction. But there is no proper basis for rejecting the applicant’s evidence that he had himself decided to desist, having regard to the way in which the case was litigated by the prosecution, even though it is clear that his fleeing was triggered by the victim’s scream. That is to say, the evidence does not disclose and, at all events the applicant denied, that he would have proceeded further had the victim not screamed. In this Court, the Crown submitted no more than that the attempt was terminated as much because of the screams and actions of the victim to escape as any “attempt [sic] by the applicant to desist”. This seems to me to be a reasonable conclusion on the evidence. He claimed to the Probation and Parole Officer that he came across the victim by chance. The Crown did not cross-examine him to suggest otherwise and there was no other evidence on the point: he was not asked how he came to be there. The Crown not having taken issue with this claim (especially as there was substantial scope for cross-examination testing its veracity), the applicant should be dealt with on the basis that his offence was in large part, if not entirely, impulsive – opportunistic rather than planned.

20 The learned sentencing judge made no reference to the intention or state of mind of the applicant or to his evidence about it. It is therefore unknown whether that evidence was accepted or rejected. The applicant’s evidence was self-serving. So far as his statement about wanting a conversation was concerned, it seemed unlikely. Had he been cross-examined about it, it may be that he would have disbelieved. On the other hand, his further explanations may have made the evidence more credible. He lost this latter opportunity because the prosecutor did not cross-examine him. I am far from suggesting that it was the duty of the prosecutor to do so: that depended on the case which the Crown wished to make. In the end, however, having regard to the approach of the Crown prosecutor, it would have been unfair to reject the applicant’s evidence unless it contradicted otherwise proved facts, or was internally contradictory or patently absurd. It seems to me that the applicant’s intentions were very relevant in determining the extent of his culpability.

21 Because the applicant’s late plea avoided the necessity for XY to give evidence and, it may well have been, his previous victim also, the learned sentencing judge reduced the sentence he otherwise would have imposed from ten years’ to eight years’ imprisonment (ie a discount of twenty per cent). However, the starting point of ten years adopted by the learned sentencing judge, in my respectful view, was manifestly more harsh than the objective seriousness of the crime warranted. I am fortified in this view by comparison with the sentence of nine years with a minimum term of six years imposed on this applicant by the Court of Criminal Appeal in respect of the offence of aggravated sexual intercourse without consent (an offence which carries a maximum term of imprisonment of twenty years), where the circumstances were very much more serious than the present offence. It follows, in the circumstances, that the applicant has demonstrated error.

22 Since the statement of facts (adopted by the learned sentencing judge) does not advert to the question of the applicant’s intention it is an inadequate factual basis for making a satisfactory assessment of the applicant’s intentions. The evidence before the sentencing court must be considered, including that of the applicant. There is no evidentiary basis for rejecting his evidence and, for the reasons that I have already mentioned it would be contrary to important principles of fairness to do so. However, it must be evaluated in light of the evidence as a whole. In my view it discloses the picture that I have summarised earlier in this judgment.

23 I do not suggest, of course, that the applicant’s offence was trivial. It is clear that the fact that the offence was committed in respect of a young girl and occurred whilst the applicant was on parole are significant aggravating features. It is also obvious that the applicant’s behaviour coupled with the intention, even if momentary, both to detain the victim and to involve her in some sexual conduct, however slight and even if it amounted to no more than conversation as he claimed, justified a sentence which, if it were to satisfy the need for personal deterrence and the protection of the public, could not be a light one. Of course, the applicant’s previous offence of aggravated sexual assault gives rise to the suspicion that he may have had it mind to commit a similar offence. But this is necessarily speculative and, in principle, could not provide a basis upon which to sentence the applicant. As I have already said, there was no basis for inferring that the applicant had in mind any particular form of sexual conduct, still less that it involved any sexual interference with the victim. Another important consideration in this case is that, all persons, especially children, using public places are entitled to do so free from any interference of any kind. Conduct that involves coercive physical contact, however slight, and gives rise to apprehension of untoward intimacy, must be regarded seriously and deterred by adequate punishment. Certainly, the victim in this case had been very frightened (and reasonably so) by the applicant’s conduct.

24 There is no material in the evidence that sheds any light on the applicant’s background, since (as the learned sentencing judge noted) the pre-sentence report of the Probation and Parole Service focuses on his conduct whilst in custody and during his brief release. The applicant’s criminal history commences with minor charges in 1990 (when he was twenty years old) for which he was fined. In 1992 he was convicted of assault and sentenced to six months’ imprisonment. Later that year the appellant was convicted of an offence described in the record as “sexual assault under 16 years”, which I take to be an offence under s61D as it then stood (carrying a maximum term of 10 years’ imprisonment) but, because he was given a two year recognizance, I infer that this was a trivial offence. In 1994 and 1995 the applicant was convicted of a number of offences involving theft and breaking and entering for which Community Service, one month’s and six months’ imprisonment was imposed. In 1996 the applicant was convicted on two counts of breaking, entering and stealing, for which he was sentenced to two concurrent sentences of twelve months. On the same occasion he was convicted of and sentenced for the aggravated sexual assault to which I have already referred. For obvious reasons, the sexual assaults are the most troubling aspects of this history.

25 Following the applicant’s return to prison on his arrest for the present offence, he was placed, as a sex offender, in the strict protection wing of the gaol. Because of his frequent inter-gaol transfers due to Court appearances and for compassionate reasons, he has not had an opportunity to enrol in custodial programmes or to receive on-going counselling to address he offending behaviour. He had completed during his prior incarceration, the ten months Custody Based Intensive Treatment Programme (CUBIT) and had been assessed as having made “steady progress”. After release, he had also attended, with some explicable omissions, the Community Maintenance Program for Sex Offenders. He disclosed to the Probation and Parole Officer that he used cannabis daily and was affected at the time of the offence. Dr Lemmings, a clinical and forensic psychologist, gave evidence in the sentence proceedings. In substance, his evidence was that, because the applicant did not appear to have an anti-social personality disorder, he would benefit from undertaking a comprehensive treatment programme, such as CUBIT and thus his potential for rehabilitation was promising. It is reasonable, I think, to infer that such a programme will be available to him in due course. Dr Lemmings also expressed the opinion that cannabis use can have a disinhibiting effect but this evidence does not, it seems to me, assist the applicant.

26 The applicant expressed remorse for his offence. It is difficult to assess its genuineness, of course, but he was not cross-examined to suggest that it was not. This aspect was not mentioned by the learned sentencing judge. In this Court, the Crown Prosecutor did not suggest that the applicant’s evidence in this respect should be disbelieved.

27 Taking all objective and subjective considerations into account, I consider that the appropriate starting point is six years’ imprisonment. For the same reasons as the learned sentencing judge, I would allow a discount of the order of twenty per cent for utilitarian reasons, resulting in a head sentence of four years and nine months commencing on 28 August 2002. As appears above, the applicant was released on parole on 26 March 2002 after having served seven years of the nine years’ sentence which had commenced on 6 April 1995 but which was itself accumulated on earlier sentences, with the result that he had been in prison since 7 October 1994 before release. The present offence was committed five months after that date. It seems to me that this history constitutes special circumstances justifying a departure from the statutory calculus specified in s 44 of the Crimes (Sentencing Procedure) Act 1999. Accordingly, I would impose a non-parole period of three years. The applicant would therefore be eligible for release on parole, if the Parole Board thought it appropriate, on 27 August 2005.

28 HOWIE J: I have had the considerable advantage of reading in draft the judgment of Adams J. As his Honour has fully set out the facts and circumstances of the offence committed by the applicant and the course of the proceedings before Blanch DCJ, it is unnecessary for me to do likewise.

29 The sentencing proceedings were, in my respectful opinion, unsatisfactory, mainly because of the stance taken by the Crown, which was one of almost abstention from participation in the proceedings. Such cross-examination as there was of the applicant was avuncular in nature, coaxing from the applicant his future intentions of reform. The statement of facts was apparently the result of a plea agreement containing, as it did, the somewhat curious concession that the Crown “was unable to prove beyond reasonable doubt that the prisoner formed an intention to engage in sexual intercourse with [the complainant]”. That was, with respect, a statement of the obvious. The agreed statement of facts was supplemented by witness statements from the police brief, including an interview with the complainant, without any apparent consideration by the parties of what use was to be made of them. See R v Palu (2002) 134 A Crim R 174 and R v Barri [2004] NSWCCA 221.

30 The only contribution of the Crown Prosecutor to submissions on sentence was an acknowledgment that the applicant had relieved the complainant of giving evidence and “that’s some credit to the prisoner, although I suppose at the same time, he was at the time of this offence, undergoing then a sexual offender’s program”. This submission was made at the outset of the proceedings and before the applicant gave evidence. The Crown Prosecutor made no submissions on sentence thereafter, although, in his defence, he was not called upon to do so.

31 The applicant’s evidence was in my view an attempt to retreat from the admission, inherent in his plea of guilty to the charge on the indictment, that he had a sexual interest in the child and this was why he attempted to detain her. He denied any such interest in the complainant when interviewed by the Probation Officer and initially in evidence when confronted with that fact by his own counsel. He had maintained in his interviews with the police that his contact with her was accidental. He denied to the Probation Officer that he was following the child, although this was a pattern of his earlier offending.

32 The applicant’s evidence that he did not intend to hurt the complainant or sexually assault her was unchallenged. With respect, I agree with Adams J that such a statement is not inconsistent with his plea, the agreed statement of facts or the statements in the brief of evidence. Clearly the sentencing judge could not have dealt with the applicant on the basis that he did intend to sexually assault the complainant, in the broad sense of that term, if he had succeeded in detaining her. His Honour could not have come to such a finding beyond reasonable doubt. Therefore, the failure of the Crown to challenge that statement is, in my view, of no significance.

33 But the applicant’s evidence that he simply wished to have a conversation with the complainant did not, in my opinion, have to be accepted by the sentencing judge. Nor in my view did his Honour have to sentence the applicant on the basis of his assertion that he withdrew from his conduct toward the complainant because of his sudden realisation of the consequences of what he was doing. I do not believe that a sentencing court is bound to accept evidence of any witness, the offender included, simply because the Crown does not deign to test the assertions made by the witness in cross-examination or to address the sentencing judge to the contrary of submissions made on the basis of the evidence given by the witness.

34 In my opinion, the failure of the Crown to cross-examine the offender on a particular aspect of his or her evidence or to make submissions to the sentencing judge about that evidence does not mean that the sentencer is bound to accept the evidence. I do not believe that the tribunal of fact can be restricted by the conduct of the parties in that way: certainly not in sentencing proceedings which do not have the same formality or rigidity in procedure as, say, a criminal trial. It is for the tribunal of fact to weigh the evidence of the offender and determine whether to accept it to the required standard: R v O’Neill (1979) 2 NSWLR 582 at 597. That is so even where the Crown does not call witnesses but relies upon depositions or formal statements: R v Blanchard (NSWCCA, 10 September 1991, unreported). It seems to me that it must be so where there is tendered what purports to be an agreed statement of facts.

35 The touchstone in the finding of facts by a sentencer is, of course, fairness to both parties. I see nothing unfair to an offender in the refusal of a sentencer to act upon his or her evidence, even if the evidence is undisputed by the Crown, at least where the offender has the onus of proof because it is a matter of extenuation or mitigation. Fairness may require that the sentencer indicate that he or she is not prepared to act upon the evidence in order to permit counsel to address on it or to lead further evidence to support it. Fairness may also mean that the Crown cannot seek to challenge the finding of the sentencer, for example on a Crown appeal, where that finding was not disputed at the hearing.

36 But in my view this Court is not required on an appeal by an offender to infer that the sentencing court dealt with the offender in accordance with his or her evidence or to hold that the judge should have done so, even where the Crown did not dispute the evidence at the sentencing hearing. Further, this Court is not, in the absence of any finding of fact made by the sentencing judge, required to act upon the evidence of the applicant or a witness in the hearing before the sentencing court, only because the evidence is uncontradicted or unchallenged by the Crown. The evidence may be rejected by the sentencing judge or by this Court simply because it is inherently unbelievable or because, it being a matter of mitigation, the applicant has not discharged the onus even on the balance of probabilities.

37 Where, as here, there is an agreed statement of facts placed before the sentencing judge, and there is also material either inconsistent with, or in amplification of, some aspect of the facts in that statement, the sentencing judge should not act upon that material without having brought it to the attention of the parties during the course of submissions so that the parties can deal with it. If the judge determines to sentence the offender on a factual basis other than in accordance with the agreed statement of facts, clearly the judge should refer to that matter during the course of the remarks on sentence. But if the sentencing judge determines to sentence the offender on the basis of the agreed facts, ignoring the material inconsistent with, or in amplification of those facts, then in my view there is no requirement for the judge to refer to the other material either during submissions or in the course of the remarks. Neither party can complain if the sentencing judge acts upon their formal agreement as to what are the relevant facts.

38 In the present case, during the course of his remarks Blanch DCJ recited the factual basis upon which he was sentencing the applicant in terms that were almost identical with the agreed statement of facts without venturing outside them either by reference to the applicant’s testimony or the statement of the complainant that was in evidence before him. His Honour did not indicate either his acceptance of, or rejection of, the assertions of the applicant that he was simply wishing to speak with the complainant and that he had withdrawn from his attempt to detain her voluntarily and independently of any action by the complainant. In my view, his Honour was not required to come to any view about those two assertions because he had apparently determined to sentence on the basis of the agreed statement of facts. I believe he was entitled to do so even if it meant ignoring the other evidence before him, regardless of whether it favoured the accused or not and whether or not it was challenged or disputed.

39 I have previously in Palu, above, expressed my views about the unsatisfactory situation where the Crown tenders material that either supplements or contradicts the agreed statement of facts. Greg James J expressed similar concerns in Barri. I also believe it to be unsatisfactory for an offender to give evidence as to the facts and circumstances of the offence where the Crown, with the consent of the defence, has tendered what purports to be an agreed statement of facts. Either the document tendered is an agreed factual basis upon which the court is to sentence the offender or it is not. If there is some area of the facts not covered in the statement and that is in dispute, then this should be made clear to the sentencing judge and the matter determined appropriately by evidence and submissions.

40 In any event, in the present case I would not be prepared to sentence the applicant on any basis other than is expressed or implied by the agreed statement of facts. I do not accept that the applicant merely wanted to speak to the child, even if this was to be his source of sexual gratification. If this were so, it was unnecessary for him to seek to lure her into a driveway of a block of units or to move back from her side when he and the child came close to a member of the public gardening near where they were walking. Nor do I accept that the applicant voluntarily desisted in his attempt to detain the child from feelings of remorse for his past offence or of compassion for her. The simple fact is that she screamed and ran away after he persisted in attempting to lure her into the driveway following her initial refusal. The applicant no doubt thought it was advisable, when the child screamed, to put as much distance as he could between her and him by running in the opposite direction.

41 It is clear to me that the applicant was attempting in his evidence, as he had done with the Probation Officer, to minimise his criminality even to the point of retreating from the basis of the plea. Whether his evidence may have technically traversed the plea, does not seem to me to be of any great significance as there has never been any attempt by his legal representatives to have the plea withdrawn. But in such a situation it was open to his Honour simply to ignore the applicant’s evidence in so far as it dealt with the facts in a manner inconsistent, or apparently inconsistent, with the plea and sentence him according to the agreed statement of facts. As I have already indicated, this appears to have been the course adopted by Justice Blanch and I do not believe he erred in doing so.

42 The charge to which the applicant pleaded guilty did not require the court to determine what it was that the applicant might have done to the child in order to obtain his sexual gratification had he succeeded in detaining her. It may be the case, as Adams J finds, that the applicant had not determined what he was going to do once he had detained the child except that it was to be for his sexual gratification. However, as I sought to explain in R v Newell [2004] NSWCCA 183, the gravamen of the offence under s 86 is the unlawful detaining of the person and there are many factors, other than the purpose of the detention, that can be relevant to an assessment of the seriousness of a particular instance of the offence. In the present case I do not believe that there was any error in his Honour’s finding of facts or how he described the nature of the offence committed by the applicant.

43 Although the apparent rejection of the applicant’s explanation as to his intention to merely have a conversation meant that there was no evidence as to how it was that he intended to obtain sexual gratification by detaining the complainant it did not follow, in my opinion, that there was an insufficient evidentiary basis upon which the judge was to sentence the applicant. Blanch DCJ had to sentence the applicant without finding any aggravating or mitigating factors arising from the applicant’s intention in attempting to detain the child. But there was no dispute that the detention was to involve taking the child out of the scrutiny of members of the public and that was, in my view, both inconsistent with the applicant’s claims about his intention and a matter relevant to an assessment of the criminality of his conduct.

44 It was unsatisfactory for the Crown not to have cross-examined the applicant on aspects of his evidence touching the offence that were not encompassed in the statement of agreed facts. In some cases it would be unfair for the sentencing judge to reject evidence of the offender in those circumstances particularly where the offender had not been given the opportunity to explain an account that otherwise might be treated as unlikely or implausible. But I do not believe that this was such a case having regard to the two particular facts under consideration and the nature of the evidence given by the applicant in general.

45 Adams J finds error in the following statement of the sentencing judge:

. That leaves me to assess the sentence on the basis that while on parole for a serious sexual offence he has committed another serious sexual offence, perhaps not of the same gravity as the one for which he was on parole but he was on parole, he did know of the problem that he had and nonetheless this offence has occurred.

His Honour’s disapproval of this passage is principally to be found in the sentencing judge referring to the applicant’s conduct as amounting to a “serious sexual offence”. With respect I cannot join in this criticism: in my view, what the applicant did amounted to a serious offence and it was one of a sexual nature. It was a serious offence because it involved the interference by a stranger with a twelve-year-old child on her way home from school and his actions were for a sexual purpose. It may be that the starting sentence chosen by his Honour as being appropriate for this particular example of a serious sexual offence was excessive, but that is a different issue from whether his Honour erred by misdescribing the nature of the offence committed by the applicant.

46 The fact that the applicant was charged with an attempt did not mean, in my view, that the offence committed was not a serious one simply because it was not as serious as if he had succeeded in detaining her for however short a period of time. The applicant did not succeed in actually detaining the child, because, on the sentencing judge’s finding, she screamed and ran away from him. I accept that the offence was mitigated in that the child was not in fact detained, particularly having regard to the method used by the applicant in his attempt to detain her and his minimal physical contact with the child. On the other hand the applicant persisted in the attempt notwithstanding her initial refusal. There was an obvious threat in his statement to her, “Don’t do anything stupid” and the child was clearly terrified as a result of the encounter with the applicant.

47 Based upon only the material in the agreed statement of facts, I see no error in his Honour describing what the applicant did as a “serious sexual offence” simply because there may have been no overt or objective activity of a sexual nature. It is the intention to obtain sexual gratification that makes the offence a sexual one: R v Harkin (1989) 38 A Crim R 296. It does not, in my view, matter whether the conduct of the applicant amounted to a sexual assault, in the general meaning attributed to those words, or not.

48 Although, contrary to the view reached by Adams J, I do not believe that there is any patent error revealed in the sentencing remarks, I do agree with him that the starting sentence of 10 years imprisonment was manifestly excessive and disproportionate to the actual criminality of the applicant’s conduct. The maximum penalty for the offence was imprisonment for 14 years. I do not believe that the criminality of the applicant, that is according to what he did rather than what he might have done, warranted a sentence of over 70 per cent of the maximum penalty for the completed offence. I cannot escape the conclusion that there was an impermissible element of preventive detention in his Honour’s sentence: a disproportionately harsh term of imprisonment was imposed for the protection of the public.

49 Adams J has set out in detail the subjective factors relevant to the sentencing of the applicant and the various, and somewhat conflicting, factors that arose in sentencing him, bearing in mind that he was on parole for a sexual offence against a young child at the time of the commission of the subject offence. I agree that the sentence should be reduced but in my view the starting sentence should be one of 7½ years rather than the 6 years selected by Adams J. I come to this view notwithstanding that the applicant may be required to serve his sentence on strict protection. With a discount of 20 per cent the sentence is reduced to 6 years. That in my opinion should be the term of the sentence.

50 I do not believe that there are special circumstances. The fact that the applicant offended again only 5 months into his parole period after having served a total period of incarceration of almost 9 years does not in my respectful opinion justify a finding of special circumstances, in light of the fact that he had been involved in sex-offender programmes both before his release and at the time of the commission of the offence. His attendance at the latter programme was not exemplary. He admitted to continued cannabis use on release despite his attendance for drug and alcohol counselling.

51 Contrary to submissions made on the applicant’s behalf, I do not believe that the situation is analogous to a finding of special circumstances where there is an accumulation of sentences. In such a circumstance, special circumstances are usually found in respect of the accumulated sentence in order to preserve the statutory ratio. The fact that the applicant once again finds himself in protection is not itself sufficient to give rise to a finding of special circumstances in this case. The evidence as to the applicant’s prospects for reform was not such that it favoured his rehabilitation over personal and general deterrence.

52 In my opinion the minimum period that the applicant should serve before being released to parole is one of 4½ years. Therefore I propose that leave be granted and the appeal be allowed. The sentence imposed by Blanch DCJ should be quashed and in lieu the applicant be sentenced to imprisonment for 6 years to date from 28 August 2002. There should be a non-parole period specified of 4 years 6 months to expire on 27 February 2007, the date upon which the applicant is eligible to be released to parole.

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Last Modified: 10/05/2004