R v Gavel
[2014] NSWCCA 56
•15 April 2014
Court of Criminal Appeal
New South Wales
Case Title: R v Gavel Medium Neutral Citation: [2014] NSWCCA 56 Hearing Date(s): 2 December 2013 Decision Date: 15 April 2014 Before: Leeming JA at [1];
Johnson J at [1];
Hall J at [1]Decision: 1. Crown appeal allowed.
2. Aggregate sentence imposed at the Parramatta District Court on 4 April 2013 is quashed.
3. In its place, the Respondent is sentenced to an aggregate term of imprisonment comprising a non-parole period of nine years and six months commencing on 14 March 2013 and expiring on 13 September 2022, with a balance of term of four years and six months commencing on 14 September 2022 and expiring on 13 March 2027.
Catchwords: CRIMINAL LAW - sentence - Crown appeal - aggravated sexual intercourse under s.66A(2) Crimes Act 1900 (three counts) - aggravated indecent assault under s.61M(2) Crimes Act 1900 - possess child abuse material under s.91H(2) Crimes Act 1900 - offender 33-year old friend of family of eight-year old victim - offender showed pornographic videos on laptop to victim before commission of offences - digital intercourse and cunnilingus - offences committed over four-month period while offender minding victim and residing in victim's home - substantial quantity of child pornography on offender's laptop and hard drives - no prior criminal history - pleas of guilty - aggregate sentence imposed - head sentence of eight years with non-parole period of five years and four months - Crown asserts sentence manifestly inadequate - significance of increased maximum penalty for s.66A(2) offences - planning and organisation by offender - offender groomed victim in preparation for sexual activity by displaying pornographic videos - exploitation of vulnerable victim by person in authority - importance of harm to child victim - sentence manifestly inadequate - offender resentenced - aggregate sentence comprising head sentence of 14 years with non-parole period of nine years and six months Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Amendment (Sexual Offences) Act 2008
Criminal Appeal Act 1912
Criminal Procedure Act 1989Cases Cited: Abbas v R [2013] NSWCCA 115
Clarkson v R [2011] VSCA 157; 32 VR 361
Dinsdale v The Queen [2000] HCA 54; 202 CLR 231
Doe v R [2013] NSWCCA 248
Essex v R [2013] NSWCCA 11
GN v R [2012] NSWCCA 96
Green v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Ibbs v The Queen [1987] HCA 46; 163 CLR 447
Jolly v R [2013] NSWCCA 76
Jones v R [2012] NSWCCA 262
JRM v R [2012] NSWCCA 112
Kertai v R [2013] NSWCCA 252
Leslie v R [2013] NSWCCA 48; 227 A Crim R 133
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
PK v R [2012] NSWCCA 280
RJT v R [2012] NSWCCA 280
RR v R [2011] NSWCCA 235; 216 A Crim R 489
R v CMB [2014] NSWCCA 5
R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
R v G [2008] UKHL 37; [2009] 1 AC 92
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Hinchliffe [2013] NSWCCA 327
R v Jurisic (1998) 45 NSWLR 209
R v JW [2010] NSWCCA 49; 77 NSWLR 7
R v Li [2010] NSWCCA 125; 202 A Crim R 195
R v MA [2004] NSWCCA 92; 145 A Crim R 434
R v Rae [2013] NSWCCA 9
R v Smith [2007] NSWCCA 100
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Simpson v R [2014] NSWCCA 23
Stewart v R [2012] NSWCCA 183
SW v R [2013] NSWCCA 255Texts Cited: Report of NSW Sentencing Council, "Penalties Relating to Sexual Assault Offences in New South Wales" Category: Principal judgment Parties: Regina (Appellant)
Nathan Bradley Gavel (Respondent)Representation - Counsel: Counsel:
Ms HM Wilson SC (Appellant)
Mr JS Stratton SC; Ms AP Healey (Respondent)- Solicitors: Solicitors:
Solicitor for Public Prosecutions (Appellant)
Legal Aid NSW (Respondent)File Number(s): 2012/115808; 2012/268252 Decision Under Appeal - Before: Huggett DCJ - Date of Decision: 04 April 2013 - Citation: --- - Court File Number(s): 2012/115808; 2012/268252 Publication Restriction: ---
JUDGMENT
THE COURT: The Director of Public Prosecutions, pursuant to s.5D(1) Criminal Appeal Act 1912, appeals against an aggregate sentence imposed upon the Respondent on 4 April 2013 by the District Court (her Honour Judge Huggett).
The Deputy Director of Public Prosecutions lodged an appeal on 29 April 2013, the Notice being dated 26 April 2013. The Respondent was served with the Notice of Appeal on 29 April 2013.
The single ground of appeal relied upon by the Crown is that the aggregate sentence imposed upon the Respondent was manifestly inadequate. It is that sentence which is open to challenge on the Crown appeal: R v Rae [2013] NSWCCA 9 at [32].
The Respondent was charged with five offences, details of which are set out below. A further six offences on two Form 1 documents were taken into account on sentence pursuant to s.33 Crimes (Sentencing Procedure) Act 1999.
The sentencing Judge imposed an aggregate sentence pursuant to s.53A Crimes (Sentencing Procedure) Act 1999, with a non-parole period of five years and four months' imprisonment commencing on 14 March 2013 and expiring on 13 July 2018, the total term being one of eight years' imprisonment expiring on 13 March 2021.
Individual Sentences Indicated
The individual indicated sentences for the purpose of s.53A(2)(b) Crimes (Sentencing Procedure) Act 1999 were as follows:
Count Offence Maximum Penalty and Standard Non-Parole Period (SNNP) Individual Sentence Indicated and Non-Parole Period (NPP) 1
Seq. 9
Aggravated Indecent Assault (Child Under 16)
s.61M(2) Crimes Act 1900
10 years'
imprisonmentSNPP 8 years
18 months' imprisonment, NPP 13 months 2
Seq. 2
Aggravated Sexual Intercourse (Child Under 10)
s.66A(2) Crimes Act 1900 Form 1 with 4 offences
Life imprisonment
SNPP 15 years
5 years' imprisonment,
NPP 3 years and 8 months
3
Seq. 5
Aggravated Sexual Intercourse (Child Under 10)
s.66A(2) Crimes Act 1900
Life imprisonment
SNPP 15 years
3 years and 6 months' imprisonment,
NPP 2 years and 6 months
4
Seq. 6
Aggravated Sexual Intercourse (Child Under 10)
s.66A(2) Crimes Act 1900
Life imprisonment
SNPP 15 years
4 years and 3 months' imprisonment, NPP 3 years 5
Seq. 1
Possess Child Abuse Material
s.91H(2) Crimes Act 1900 Form 1 with 2 offences
10 years' imprisonment
No SNNP
14 months' imprisonment, NPP 10 months
In relation to Count 2, the sentencing Judge was asked to take into account three offences of aggravated indecent assault on a child under 16 years, and one offence of incite a child under 10 years to an act of indecency.
In relation to Count 5, the sentencing Judge was asked to also take into account two further offences of possess child abuse material.
The Offences
Section 61M(2) provides:
"Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years."
(Maximum penalty: 10 years' imprisonment)
Section 66A(2) Crimes Act 1900 provides:
"Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence."
(Maximum penalty: imprisonment for life)
Section 66A(3) specifies the "circumstances of aggravation".
The circumstance of aggravation pleaded was that specified in s.66A(3)(d), namely:
"The alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender."
Section 91H(2) Crimes Act 1900 specifies:
"A person who produces, disseminates or possesses child abuse material is guilty of an offence."
Section 91H specifies the maximum penalty as imprisonment for 10 years.
Facts of the Offences
The offences contained in Counts 1 to 4 were committed between December 2011 and April 2012. They all relate to the one victim who was then aged eight years.
What follows is drawn from the Statement of Facts tendered at the sentencing hearing.
The Respondent is the former husband of the victim's stepmother. Despite the fact that he was divorced, he was on good terms with his former wife. She had remarried and was living in suburban Sydney with her husband, the victim and the four-year old son of her present marriage.
The Respondent, then aged 33 years, worked as a civilian computer administrator in the Australian Army, where he had been employed for some seven years. Between 2010 and 2012, he was stationed at Singleton.
The Respondent would come and stay in Sydney with the victim's family on most weekends. He would often baby sit the victim and her younger brother and stay overnight at their home. Prior to April 2012, the Respondent left his employment with the Australian Army. He commenced to live full time in the victim's family home on 2 April 2012.
One or two weeks after Christmas 2011, the Respondent was looking after the victim and her brother at their home. The parents were out. The victim was sitting on her bunk bed. The Respondent produced a video on his laptop computer. The video depicted a male and two females engaged in a sexual act.
Count 1 - Aggravated Indecent Assault
In early January 2012, the Respondent was looking after the victim and her brother at their home. He played a video for the victim on his laptop showing two males engaged in a sex act. The victim was sitting on her bunk bed. The Respondent removed her underwear and rubbed his fingers on the outside of the victim's vagina as she watched the video. The victim said that this felt "weird and funny". This conduct constituted Count 1.
On 23 March 2012, the Respondent was looking after the victim prior to her attending a friend's birthday party. Her parents and brother were out at the shops. The Respondent walked into the victim's bedroom and produced a video on his laptop computer. The video depicted two females in a sexual act. The victim's parents returned home and the Respondent turned off the video.
Count 2 - Aggravated Sexual Intercourse
During a weekend afternoon in March 2012, the Respondent was looking after the victim whilst her parents were out. The Respondent fixed the victim's iPod and said to her, "Do you want to watch some rude videos?". The victim replied, "Whatever". The victim was again seated on her bunk bed and the Respondent produced a video on his laptop computer. The video depicted a naked male and female in a sexual act.
The Respondent stood at the side of the bed and grabbed the victim's legs and pulled her towards him, so that her legs were hanging off the bed. The Respondent stood between the victim's legs and removed her underwear. The Respondent licked the inside of the victim's vagina with his tongue whilst the video played in the background. He continued licking for a couple of minutes. The victim said that this felt really "weird". This incident constituted Count 2.
Form 1 Offence 1 - Aggravated Indecent Assault
The Respondent stopped licking the victim's vagina and proceeded to rub her vagina on the outside, using two fingers for a few minutes. The victim's brother called out to the Respondent, at which point he stopped. The victim said, "Are you finished?" and the Respondent replied, "Yes" and left the room. This constituted the first matter on the Form 1 for Count 2.
One day in the following weeks, the Respondent was looking after the victim and her brother at the family home. During the morning, the victim was playing pretend sword fighting with her brother. At lunchtime, her parents went out. The victim was in the bedroom sitting at her desk, when the Respondent approached her and said, "Do you want to watch some videos?". The victim said, "OK". The Respondent produced a video which depicted two naked males in a sexual act. The Respondent was not present in the room whilst the victim watched the video.
Count 3 - Aggravated Sexual Intercourse; Form 1 Offence 2 - Aggravated Indecent Assault
In late March 2012, the Respondent was looking after the victim and her brother at the family home. The victim was in her bedroom and the Respondent produced a video on his laptop depicting a male and a female in a sexual act. These persons were naked from the waist down. The victim told the Respondent when the video finished. At this time, the victim was lying on her bed, wearing a t-shirt, shorts and underwear. The Respondent proceeded to rub the victim on her vagina on the outside of her clothes. This constituted the second matter on the Form 1.
During the same incident, the Respondent said to the victim, "I'm gonna do it on the inside". He then placed his hand inside the victim's underwear and inserted two fingers into her vagina and rubbed for about 10 minutes. The Respondent then stopped and left the room and the victim walked into the lounge room, where her brother was watching television. These actions constituted Count 3.
Count 4 - Aggravated Sexual Intercourse
About two months after Christmas 2011, the Respondent took the victim to the shops whilst the other members of the family were at home watching television. The Respondent bought a lolly in the shape of a pen which dispensed a flavoured gel. The Respondent and the victim returned to the family home and went into the victim's bedroom. The Respondent closed the door behind them and took off the victim's clothes. The Respondent opened the lolly and squeezed the gel onto the victim's vagina. He proceeded to lick the gel off the inside of the lips of her vagina. That conduct constituted Count 4.
Form 1 Offence 3 - Aggravated Indecent Assault
Some time between Christmas 2011 and Easter 2012, the Respondent was again at the family home with the victim. Her parents and brother were out at the shops. The victim was in her room watching television. The Respondent approached the victim and showed her a "purple rubbery thing that looked like a penis" (clearly a dildo). He placed the dildo on the victim's vagina whilst it vibrated for a short period of time. The victim said, "I don't want to do it anymore" and left the bedroom to watch television. This constituted the third matter on the Form 1.
Form 1 Offence 4 - Incite Act of Indecency (Person Under 10 Years)
Just before Easter 2012, the Respondent was at the family home with the victim and her brother. Their parents were out. The victim was watching television and the Respondent called her into her room. The Respondent and victim sat on her bed and the Respondent put on a video. The Respondent took off the victim's clothes, leaving her in only a singlet. The Respondent turned on a blue-coloured massager, which vibrated. He handed it to the victim and told her how to use it. He said, "You can use it now". The victim placed the massager on her vagina as instructed. The Respondent left the room and returned a short while later and the victim said, "I'm finished". The victim left the room to play with her brother. This conduct constituted the fourth matter on the Form 1.
Photographs of the Victim and Other Children
The victim told police of an occasion when the Respondent took her and her brother to the Royal National Park. The victim stated that they went swimming naked and the Respondent took photographs of them. The victim also referred to an occasion when she was in the bath with her brother and two other male children, aged four and two years. On this occasion, the Respondent was minding the children. The Respondent took photographs of the children whilst they were naked in the bath.
When police seized the Respondent's laptop computer, these photographs were located on it.
The Victim Complains
On 9 April 2012, the victim and her family and the Respondent were at a relative's house for an Easter celebration lunch. The victim told her 11-year old cousin that the Respondent had shown her pornographic videos, and had bought her a gel pen and licked the gel off her vagina. The victim showed her cousin some adult videos which she was able to access and put on her cousin's iPod.
Later, the victim told her cousin that the Respondent wished to talk to her in the bathroom. The cousin reluctantly went into the bathroom with the Respondent alone. He seemed very angry and accused the cousin of telling or showing the victim inappropriate things, which the cousin denied doing. The Respondent then said, "Nobody's gonna believe you anyway". The cousin was concerned about what she had been told by the victim and she told her mother about it the next day.
On 11 April 2012, the cousin's mother told the victim's stepmother about the disclosures which had been made. The stepmother then spoke to the victim alone and the victim told her what the Respondent had been doing to her and showing to her. That same afternoon, the police were informed and the victim was spoken to by police.
Seizure of Material by Police and Arrest of Respondent
In the late afternoon of 11 April 2012, police officers attended the family home and seized numerous electronic data storage devices belonging to the Respondent which he was keeping at the victim's home. That same night, police contacted the Respondent and asked him to attend the police station.
Later that evening, police were conducting surveillance outside the family home, when they observed the Respondent driving slowly towards the house in a vehicle with the headlights off. Police approached him and served a provisional apprehended violence order on him. Police then searched the Respondent and his vehicle and seized a number of electronic devices believed to contain child abuse material.
Following investigations undertaken by police, the Respondent was arrested on 12 June 2012 and charged with sexual offences against the victim.
Count 5 - Possess Child Abuse Material
The Respondent's Acer laptop was examined and found to contain 41 photographs, five videos and one document which constituted child abuse material. The material included images of children engaged in sexual activity and some material involving animals and a child.
Ranked on the Child Exploitation Tracking System ("CETS"), where the least serious child abuse material is ranked at one, and the most serious is ranked at five, the bulk of the material was ranked at one, with four photographs and five videos ranked at four, and one photograph and one document ranked at five. The photographs, videos and document found on the Respondent's Acer laptop constituted the offence in Count 5.
This laptop also contained numerous photographs of the victim.
Form 1 Offence 1 - Posses Child Abuse Material
A hard drive belonging to the Respondent was examined and contained 40,852 photographic images of which 8,173 were reviewed, a random sample taken for the purpose of s.289B Criminal Procedure Act 1989. Of these, 39 were found to constitute child abuse material. The device also contained 2,412 video files of which 988 were reviewed, and of these, five were found to contain child abuse material.
Of this material, 36 of the 39 photographs were ranked at Scale 1 on the CETS scale, with two on Scale 2 and one on Scale 4. All five videos were ranked at Scale 5 on the CETS scale. These matters gave rise to the first offence contained in the Form 1 taken into account on sentence for Count 5.
Form 1 Offence 2 - Possess Child Abuse Material
A further hard drive belonging to the Respondent was analysed and was found to contain 15,452 images of which 5,989 were reviewed. Of these, 97 were found to constitute child abuse material.
Of the 97 photographs, 10 were ranked at Scale 1, four at Scale 2, seven at Scale 3, 68 at Scale 4 and eight at Scale 5 on the CETS scale. These matters gave rise to the second offence taken into account on the Form 1 attaching to Count 5.
The Respondent's Subjective Circumstances
The Respondent had no prior criminal history.
A report of Dr Richard Furst, psychiatrist, dated 8 March 2013 was tendered in the defence case together with a report of Ms Caroline Hare, psychologist, dated 13 March 2013. There was evidence that the Respondent was suffering from a major depressive illness, but the sentencing Judge did not accept that there was a causal connection between his mental functioning and his offending (ROS14-15).
The Respondent entered pleas of guilty to the offences at the earliest opportunity in the Local Court. The sentencing Judge allowed a discount of 25% for his early pleas.
The sentencing Judge accepted that the Respondent was remorseful for his offending (ROS21).
Her Honour also found the risk of the Respondent re-offending was low provided he undertook a custody-based sex offender programme as proposed by Dr Furst (ROS21).
Crown Submissions
The Crown submitted that the sentence imposed by her Honour was too low to adequately reflect the circumstances of the offences, particularly when regard is had to the maximum penalties specified for the offences, and the applicable standard non-parole periods.
The Crown did not point to any specific error, other than the error which, it was submitted, was manifest in the sentence imposed.
Reliance was placed upon observations of Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; 202 CLR 231 at 325-326 [6], that manifest inadequacy of sentence, like manifest excess, is a conclusion, and does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge. Their Honours further observed that manifest inadequacy or excess of sentence frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
The Crown submitted that, in its context, each offence was of itself a very serious crime. That was said to be reflected in the maximum penalty for the individual offences, being 10 years for the s.61M(2) offences, life imprisonment for the s.66A(2) offences, 10 years for the child abuse material offences, and seven years for the s.61O(2) offence contained on the first of the Form 1 documents.
The Crown emphasised that Counts 1-4 (and three of the four offences taken into account against Count 2) carried significant standard nonparole periods of eight years and 15 years respectively.
The Crown further observed that, allowing for the discount granted to recognise the pleas of guilty, the starting point for the aggregate sentence was one of 10 years and eight months' imprisonment. The Crown's submission was that the sentence imposed was an entirely inadequate penalty to address the overall criminality involved in the five offences, taking into account the additional six crimes dealt with by way of Form 1 under s.33 Crimes (Sentencing Procedure) Act 1999.
In essence, the Crown submitted that the sentence imposed did not adequately reflect the gravity of the offences and did not encompass the need for denunciation and deterrence, particularly general deterrence. A non-parole period of five years and four months, it was submitted, fell far short of achieving those outcomes.
The Crown emphasised that this was particularly stark in relation to Counts 2, 3 and 4, being the offences involving sexual intercourse (cunnilingus and digital penetration) with the eight-year old victim in circumstances where the Respondent was in a position of authority over her.
The Crown further emphasised the maximum penalty of life imprisonment and the prescribed standard non-parole period in respect of the offences under s.66A(2) Crimes Act 1900.
The Crown noted the three indicated sentences in respect of offences under s.66A(2) determined by the sentencing Judge were respectively:
(a) five years' imprisonment with a non-parole period of three years and eight months;
(b) three years and six months' imprisonment with a non-parole period of two years and six months; and
(c) four years and three months' imprisonment with a non-parole period of three years.
It was submitted that having regard to the maximum penalty for the offences, and the standard non-parole periods, it was difficult to see how sentences as low as these could adequately address the very grave crimes committed by the Respondent, or act as a deterrent to others.
Finally, the Crown observed that the aggravated form of s.66A is a relatively new offence, having taken effect on 1 January 2009 pursuant to the Crimes Amendment (Sexual Offences) Act 2008. The new s.66A(2), it was observed, not only took a new form but it also carried a new and much heavier maximum penalty, an increase from 25 years' imprisonment to imprisonment for life.
It was submitted by the Crown that it is the duty of the courts to recognise and reflect the increased penalty, and the intention of the community inherent in the increased maximum penalty to see increased sentences imposed by the courts.
Although the Crown properly acknowledged the limitations that apply to a comparison between decided cases, a number of sentencing decisions of this Court were referred to and summarised in the Crown's submissions. These were GN v R [2012] NSWCCA 96; JRM v R [2012] NSWCCA 112; PK v R [2012] NSWCCA 280; RJT v R [2012] NSWCCA 280; Leslie v R [2013] NSWCCA 48; 227 A Crim R 133; Essex v R [2013] NSWCCA 11 and Jolly v R [2013] NSWCCA 76. Reference was made, as well, during the hearing to Kertai v R [2013] NSWCCA 252.
The Crown contended that, viewed against those cases which involved offences under s.66A(2), the aggregate sentence imposed in the present case must be seen as extraordinarily low. The aggregate sentence was intended to reflect all of the Respondent's crimes and not just one or more of the s.66A(2) offences, and accordingly, the Crown submitted, it must be concluded that the aggregate sentence was so low as to be indicative of error.
The overall circumstances of the crimes, it was contended, required the imposition of a more substantial sentence, both to punish the Respondent and to deter others from committing similar offences.
Respondent's Submissions
Mr Stratton SC and Ms Healey, for the Respondent, noted that the Crown made no complaint about the sentencing Judge's assessment in her characterisation of the relevant objective and subjective factors.
It was further submitted that there were a number of features of the present case which took it well away from the more serious end of the scale of objective gravity. Firstly, the acts of sexual penetration were limited to cunnilingus and digital penetration. In particular, there were no acts of penile/vaginal penetration. Secondly, the Respondent remained clothed throughout the incidents, and the Respondent did not ask the victim to touch his penis. It was submitted that these features operated in the Respondent's favour, bearing in mind statements of the High Court in Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 451-452.
The Respondent's submissions further observed that the victim was not far from the age of 10 years, when charges for s.66A(2) offences could no longer be laid. During the time when the offences took place, the victim was at least eight-and-a-half years old at all relevant times.
Thirdly, it was submitted that all the offences took place over a relatively narrow period of time.
Fourthly, there was no suggestion that the counts charged were representative counts.
Fifthly, there was no evidence of threats, force or physical coercion being involved in the offences, or of threats afterwards to obtain the victim's silence.
The written submissions for the Respondent contained an analysis of the cases referred to by the Crown.
Particular attention was given to the judgment of this Court in JRM v R. It was submitted that comparison between that case and the present case supported a conclusion that the sentence imposed upon the Respondent was not manifestly inadequate.
Determination of Appeal
By asserting manifest inadequacy, the Crown alleges that the result embodied in the sentencing Judge's orders was unreasonable or plainly unjust. The Crown submitted that it was to be inferred from the result that there was a failure properly to exercise the discretion which the law reposes in the sentencing court: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]. The Crown contends that this Court should conclude that the total effective sentence imposed at first instance was "manifestly too short": Dinsdale v The Queen at 325 [6].
To make good this ground, this Court must conclude that there must have been some misapplication of principle, even though where and how that occurred is not apparent from the remarks on sentence: Hili v The Queen at 539 [59]. The error asserted is that falling within the final category in House v The King [1936] HCA 40; 55 CLR 499 at 505.
What reveals manifest inadequacy of sentence is consideration of all of the matters that are relevant to fixing the sentence: Hili v The Queen at 539 [60].
We are satisfied that there is a very substantial disconnect between the Respondent's offences, taking into account all relevant factors including his subjective circumstances, and the sentences imposed at first instance. In our view, that substantial disconnect is of such a scale that the total effective sentence imposed at first instance was manifestly too short.
A number of features, taken cumulatively, lead to this conclusion.
A Mixture of Offences, Maximum Penalties and Standard Non-Parole Periods
The Respondent stood to be sentenced for five serious offences. Counts 2, 3 and 4 (offences of aggravated sexual intercourse with a child under 10 contrary to s.66A(2) Crimes Act 1900) were each punishable by a maximum penalty of life imprisonment, with a standard non-parole period of 15 years.
Count 1 (aggravated indecent assault on a child under 16 years contrary to s.61M(2) Crimes Act 1900) was punishable by a maximum penalty of 10 years' imprisonment, with a standard non-parole period of eight years.
Count 5 (possession of child abuse material contrary to s.91H(2) Crimes Act 1900) was punishable by a maximum penalty of 10 years' imprisonment.
In addition, the Respondent asked the sentencing court to take into account, by way of the Form 1 procedure, six further offences.
In sentencing the Respondent on Count 2, the Respondent requested that the sentencing Judge take into account three further offences of aggravated indecent assault contrary to s.61M(2), and an offence of inciting a child under the age of 10 years to an act of indecency contrary to s.61O(2) Crimes Act 1900. In sentencing the Respondent on Count 5, the sentencing Judge was asked to take into account two further offences of possession of child abuse material contrary to s.91H(2).
It was necessary that the sentences referable to Counts 2 and 5 reflect the additional offences to be taken into account, in accordance with the principles in Abbas v R [2013] NSWCCA 115.
The maximum penalties and standard non-parole periods are important legislative guideposts for the purpose of sentence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27]. This is particularly so with respect to the three s.66A(2) offences, each of which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
A further feature is relevant to the s.66A(2) offences. As a result of statutory amendments in 2009, the maximum penalty for this offence was increased from 25 years' imprisonment to life imprisonment.
The fixing of a maximum penalty of life imprisonment for an offence under s.66A(2) was done "in recognition of the heinousness of committing such an aggravated offence against a child under the age of 10 years" (second reading speech of the Attorney General for the Crimes Amendment (Sexual Offences) Bill 2008, Hansard, Legislative Council, 26 November 2008). In the course of the second reading speech, the Attorney General stated that the sentence increase contained in s.66A(2) was recommended in the 2008 Report of the NSW Sentencing Council entitled "Penalties Relating to Sexual Assault Offences in New South Wales".
It is well established that the increase by the legislature in the maximum penalty for conduct proscribed by s.66A(2) must be reflected in the sentences which trial courts impose: R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; Muldrock v The Queen at 133 [31]; Leslie at 144-145 [79].
As Beech-Jones J observed with respect to s.66A(2) in GN v R at [86], "a maximum term of life imprisonment is the most emphatic statement of the seriousness of the offence that the legislature may make". McCallum J noted in PK v R at [4] that "aggravated sexual intercourse with a child under ten is among the most serious of criminal offences in this State".
Similar considerations apply to s.91H(2), where the legislature increased the maximum penalty in 2009 from five to 10 years' imprisonment, in accordance with a further recommendation of the NSW Sentencing Council. In recommending this course, the NSW Sentencing Council observed that an increase in the maximum penalty for possession offences to 10 years' imprisonment would serve to emphasise the need for denunciation and general deterrence noted in the authorities: Report of NSW Sentencing Council, "Penalties Relating to Sexual Assault Offences in New South Wales", 2008, Volume 1, paragraph 4.41 (citing R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 44 [65]-[66] and other cases). This aspect bears upon sentencing for Count 5 and the two s.91H(2) offences to be taken into account on sentence for that count.
The Respondent's Course of Criminal Conduct
The Respondent's offences were committed over a not insignificant period of time between about December 2011 and April 2012.
Some basic facts should be noted. The Respondent was 33 years of age and the victim was eight years of age. The Respondent was an intelligent man who had held a responsible position employed as a civilian computer administrator in the Australian Army for some seven years. He was on good terms with his former wife and her husband, who permitted him to live in their home. The Respondent was trusted by the victim (who called him "uncle") and her four-year old brother.
Whilst occupying this trusted position, the Respondent committed these offences against the victim. She was "under the authority" of the Respondent, the relevant circumstance of aggravation for the purposes of s.66A(2) and (3)(d).
It is important to keep in mind the calculated and changing conduct of the Respondent towards the young victim. It involved showing pornographic material to her on a laptop computer for the purpose of preparing her for sexual activity, a type of especially perverse cultivation or seduction. This occurred on several occasions. The physical sexual assaults committed against the victim took various forms. The three s.66A(2) offences involved two incidents of cunnilingus and one of digital penetration. A dildo and vibrator were used by the Respondent in the latter part of the offending period.
It was appropriate for the sentencing Judge to have regard to the form of sexual intercourse which occurred in this case in considering the s.66A(2) offences. There was no act of penile intercourse on the part of the Respondent. There was digital penetration and cunnilingus (on two occasions). It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].
The entirety of the facts and circumstances of the present case demonstrate a range of acts of sexual intercourse involving different forms of penetration and touching committed against an eight-year old girl by a 33-year old man, whom she trusted as if he was a member of the family. These were offences of significant objective seriousness.
The appropriate inference is that the Respondent's course of offending conduct only came to an end as a result of the victim's complaint on 9 April 2012, followed by the intervention by the police on 11 April 2012.
This was not an isolated incident, nor a course of conduct which came to an end as a result of the Respondent desisting voluntarily from further offences. The fact that the offences persisted for a number of months only is of little assistance to the Respondent. This was not an opportunistic offence committed because of circumstances which suddenly presented themselves to the Respondent: RR v R [2011] NSWCCA 235; 216 A Crim R 489 at 519 [148]; Jones v R [2012] NSWCCA 262 at [96]. There was a process of grooming the victim, with the offending conduct taking on different forms. The gravity of the Respondent's offending conduct entailed the deliberate exploitation of both the trust and vulnerability of an eight-year old child.
As a result of the Respondent's arrest, police located the child abuse material relevant to the s.91H(2) offence, and the two further matters to be taken into account on sentence for that offence. The child abuse material involved a substantial number of images of child pornography, with some items involving animals. Thus, the Respondent was a consumer of child abuse material who directly abused a child victim himself.
In the course of its 2008 Report, the NSW Sentencing Council referred to increasing community concern in relation to the sexualisation of children generally and the availability of child pornography, and the extent to which this material may encourage offenders "who find the material normalising, to move on to direct abuse of children themselves" (Report, paragraphs 4.1, 4.9). The Respondent appears to fall into this category.
Of further concern were other photographs located on the Respondent's computer. There were numerous naked photographs of the victim, her younger brother and two other young children. The Respondent had taken photographs of the children swimming and in the bath.
Harm to the Victim
The sentencing Judge referred to the victim impact statement, noting that it was "an eloquent and insightful testimony to the serious psychological consequences that these offences have had upon [the victim]" (ROS23). Her Honour then stated that, without seeking in any way to trivialise or minimise the effect of the offences upon the victim, "this is not a matter where the harm is a matter of aggravation" (ROS23).
In so concluding, the sentencing Judge was addressing the statutory aggravating factor in s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999 as to whether the injury, emotional harm, loss or damage caused by the offence is substantial.
This Court has stated that sentencing Judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences and that, as a result, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm: Stewart v R [2012] NSWCCA 183 at [61].
In the area of sex offences committed against young children, s.66A(2) provides for a very substantial penalty. It may be taken that a factor which contributes to the setting of this penalty (and the standard non-parole period) is the expectation that substantial harm will result to a young child victim of sex offences.
The victim impact statement in this case pointed to many of the adverse psychological consequences affecting an eight-year old girl who had been subjected to a course of sexual abuse by a trusted person over a period of months.
The exposure of an eight-year old girl to images and conduct of the type described earlier over a period of months must inevitably have a significant and long-term effect upon her. The victim impact statement made clear that a once "bubbly, outgoing and fun loving eight-year old girl" had become confused and apprehensive in home and school settings, with friends and others. By the time the victim impact statement was prepared on 8 March 2013, extensive psychological support had been undertaken, with the victim continuing to manifest anxiety, confusion, mistrust, shame, anger and guilt.
This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].
This factor no doubt contributes to the setting of the heaviest maximum penalty known to the criminal law for s.66A(2) offences, accompanied by a standard non-parole period of 15 years. It is important that sentences for s.66A(2) offences reflect this grave element implicit in the offence itself.
This is an important feature in the present case. Young child victims are especially vulnerable. It is important that sentences passed for s.66A(2) offences recognise the harm done to the victim of the crime: s.3A(g) Crimes (Sentencing Procedure) Act 1999.
Other Sentencing Decisions
Reference to other sentencing decisions for offences under s.66A(2) provides limited assistance in this case.
Firstly, there are not many cases, as yet, where persons have been sentenced for s.66A(2) offences since the maximum penalty was increased in 2009. We do not think there is a sufficient number of s.66A(2) sentencing cases to allow a "range" to be identified: cf R v Li [2010] NSWCCA 125; 202 A Crim R 195 at 204 [40].
One thing that should be clear is that the level of sentences imposed for s.66A(2) offences should increase by comparison with their pre-2009 equivalents, given the increase in maximum penalty.
Secondly, other cases referred to in submissions to this Court are significantly different from this case.
The Respondent's offences involved multi-faceted criminal activity. A factor present in this case, and not present in any other s.66A(2) case, is the repeated displaying of pornographic movies to the eight-year old victim to prepare her for the Respondent's intended sexual offences. Not only does this aspect magnify the Respondent's crimes by demonstrating a level of planning and organisation, it involves the introduction of a further corrupting influence brought to bear against the eight-year old girl as a prequel to the physical acts which followed. This aspect exacerbates the Respondent's offences in a significant respect. Further, as mentioned earlier, the Respondent's offences involved a course of conduct over a period of months directed to the young victim in her own home.
We do not consider that other sentencing decisions establish a range of sentences for this offence which may be deployed in any meaningful way to assist the Respondent in this case. This is not a case where the Crown's claim of manifest inadequacy falls to be tested by an examination of sentences imposed in cases most closely comparable to it: Hili v The Queen at 539-540 [62]. That said, to the extent that other sentencing decisions assist at all, and bearing in mind the differences between those cases and the Respondent's offences, other s.66A(2) sentencing decisions provide support for the Crown submission of manifest inadequacy in this case.
Manifest Inadequacy is Demonstrated
The Respondent's offences involved an interrelationship between the use and possession of child abuse material (and other pornographic material displayed to the victim) and the commission of sexual offences against a child.
The approach of the sentencing Judge in utilising an aggregate sentence focused upon the total sentence to be imposed for all the Respondent's offences. For the reasons explained in this judgment, we are well satisfied that the individual indicated sentences imposed, and the total sentence and non-parole period are manifestly inadequate.
In reaching this conclusion, we have had regard to the Respondent's subjective circumstances, including his absence of prior convictions. As the sentencing Judge found, there was no suggestion that the Respondent's mental functioning affected his ability to control his actions or to appreciate that they were wrong.
The sentencing Judge found that the likelihood of the Respondent reoffending in the future was low, provided he participated in a sex offender programme identified by Dr Furst, psychiatrist, in the report tendered on sentence. Given the nature, duration and circumstances of the Respondent's offending behaviour, this conclusion was a generous one. A guarded approach to the Respondent's risk of reoffending is warranted. It should be expected that this aspect will be addressed by way of custodial programmes available for child sex offenders.
The Residual Discretion and Resentencing
If error was demonstrated, affidavits of the Respondent and his solicitor, Vanessa Carmody-Smith, were read on the appeal. The Crown read an affidavit of Jennifer Ramsey sworn 27 November 2013. The affidavits pointed to the Respondent's wish to undertake a custodial sex offender programme and indicated that, although he had been referred for assessment, that had not been undertaken at the time of the hearing in this Court. The Respondent's affidavit addressed, as well, a level of stress resulting from notification to him that the Crown had appealed against sentence in this matter.
In determining a Crown appeal under s.5D Criminal Appeal Act 1912, this Court has a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen [2011] HCA 49; 244 CLR 462 at 465-466 [1]-[2]. This discretion may be exercised for reasons other than double jeopardy: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 24-25 [92], [95], [33], [150].
The onus lies upon the Respondent to establish that the discretion ought be exercised in his favour: R v Smith [2007] NSWCCA 100 at [60]; R v CMB at [110]. We are not persuaded that there is any discretionary basis established for this Court to decline to intervene and resentence the Respondent. The sentencing process at first instance led to the imposition of sentences which were manifestly too low.
The interests of justice require the imposition of appropriate sentences for these serious crimes: R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at 587 [79]; R v Hinchliffe [2013] NSWCCA 327 at [294]. The Respondent's offences are patently serious and there is a corresponding propriety in imposing a sentence upon him that reflects this: R v CMB at [109].
Like the sentencing Judge, we are content to proceed by way of aggregate sentencing under s.53A Crimes (Sentencing Procedure) Act 1999. It is necessary to identify the non-parole period for the offences which carry a standard non-parole period: s.54B(4) Crimes (Sentencing Procedure) Act 1999.
The sentencing Judge found that each of the sexual offences represented a serious form of the offence with Counts 1 and 3 falling "below the middle of the range for such offences" and Counts 2 and 4 being "slightly more serious forms of such offences" (ROS18). Her Honour found that Count 5 fell "below the middle of the range for such offences" (ROS20). These findings were not challenged in this Court.
We have had regard to the objective gravity of the offences, the relevant maximum penalties and standard non-parole periods, the Respondent's subjective circumstances and the need for specific and general deterrence.
After allowing for the 25% discount for his pleas of guilty (with some rounding), we consider that the following sentences are appropriate:
(a) Count 1 - the s.61M(2) offence - imprisonment for a period of three years, with a non-parole period of two years and three months;
(b) Count 2 - the first s.66A(2) offence (taking into account the relevant Form 1 offences) - imprisonment for a period of 10 years, with a non-parole period of seven years and six months;
(c) Count 3 - the second s.66A(2) offence - imprisonment for a period of eight years, with a non-parole period of six years;
(d) Count 4 - the third s.66A(2) offence - imprisonment for a period of eight years, with a non-parole period of six years;
(e) Count 5 - the s.91H(2) offence (taking into account the relevant Form 1 offences) - imprisonment for a period of four years, with a non-parole period of three years.
It is necessary to consider issues of concurrency, accumulation and totality, for the purpose of identifying an appropriate aggregate sentence. The total effective sentence should reflect the Respondent's total criminality. The effective non-parole period must reflect the minimum period which the law requires the Respondent to spend in custody, having regard to all the purposes of sentencing: R v MA [2004] NSWCCA 92; 145 A Crim R 434 at 440 [33].
We are satisfied that a measure of accumulation is appropriate in the circumstances of this case. The offences were committed over a period of months and involved different offences committed against the same victim. There is, as well, the child abuse material offence to be factored into an assessment of the Respondent's total criminality.
The sentencing Judge made a finding of special circumstances. It was not submitted in this Court that such a finding should not be made by this Court if the Respondent was to be resentenced. The sentences to be imposed will involve the Respondent spending a substantial period in custody. It is in the public interest that there be a significant period of conditional liberty on parole, to assist the Respondent to readjust to life in the community in a manner which, at the same time, serves to protect the public.
In our view, the aggregate sentence should comprise a head sentence of 14 years' imprisonment with a non-parole period of nine years and six months, with both periods to date from 14 March 2013 when the Respondent went into custody.
We make the following orders:
(a) Crown appeal allowed;
(b) aggregate sentence imposed at the Parramatta District Court on 4 April 2013 is quashed;
(c) in its place, the Respondent is sentenced to an aggregate term of imprisonment comprising a non-parole period of nine years and six months commencing on 14 March 2013 and expiring on 13 September 2022, with a balance of term of four years and six months commencing on 14 September 2022 and expiring on 13 March 2027.
The earliest date upon which the Respondent will be eligible for release on parole is 13 September 2022.
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