R v GWM
[2012] NSWCCA 240
•21 November 2012
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: R v GWM [2012] NSWCCA 240 Hearing dates: 16 October 2012 Decision date: 21 November 2012 Before: McClellan CJ at CL at [1]
Johnson J at [2]
Bellew J at [150]Decision: Crown appeal allowed.
Sentence imposed upon Respondent in the District Court on 26 April 2012 is quashed.
The Respondent is sentenced to imprisonment comprising a non-parole period of four years and 10 months, commencing on 2 September 2011 and expiring on 1 July 2016, with a balance of term of two years and eight months commencing on 2 July 2016 and expiring on 1 March 2019.
Confirm the recommendation to the Department of Corrective Services that whilst the Respondent is serving his sentence, and whilst he is subject to parole, he receive appropriate counselling and treatment for drug and alcohol addiction and also for any underlying psychological and psychiatric illnesses diagnosed in his case.
Catchwords: CRIMINAL LAW - sentence - Crown appeal - aggravated sexual assault - offender 27-year old uncle of 11-year old victim - penile/vaginal intercourse - intoxicated offender - whether error in assessment of objective gravity - whether error in approach to voluntary or self-induced intoxication on sentence - whether error in determination of non-parole period - whether sentence manifestly inadequate - relevance of voluntary or self-induced intoxication to sentence for sexual assault and other crimes of violence - approach to submission that conduct was out of character - "special circumstances" - combination of factors - need for reduction of non-parole period to be purposeful - patent and latent errors established - Respondent resentenced Legislation Cited: Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentence) Regulation 2008Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Corby v R [2010] NSWCCA 146
R v Speechley [2012] NSWCCA 130
R v Hamieh [2010] NSWCCA 189
Zreika v R [2012] NSWCCA 44
R v PGM [2008] NSWCCA 172
R v KNL [2005] NSWCCA 260; 154 A Crim R 268
R v Oloitoa [2007] NSWCCA 177
RR v R [2011] NSWCCA 235
Waters v R [2007] NSWCCA 219
R v Mitchell [2007] NSWCCA 296
BP v R [2010] NSWCCA 159; 201 A Crim R 279
R v Bourke [2010] NSWCCA 22; 199 A Crim R 38
Mendes v R [2012] NSWCCA 103
Director of Public Prosecutions v G [2002] VSCA 6
Hasan v R [2010] VSCA 352; 31 VR 28
R v Bradley (1980) 2 Cr App R (S) 12
R v Kaliti [2001] NSWCCA 268
R v Fidow [2004] NSWCCA 172
Collier v R [2012] NSWCCA 213
AM v R [2012] NSWCCA 203
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Hejazi v R [2009] NSWCCA 282
R v Ceissman [2004] NSWCCA 466
Maglis v R [2010] NSWCCA 247
Enriquez v R [2012] NSWCCA 60
R v FB [2011] NSWCCA 217
Hili v The Queen [2010] HCA 45; 242 CLR 520
R v Dodd (1991) 57 A Crim R 349
R v JW [2010] NSWCCA 49; 77 NSWLR 7
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1Texts Cited: --- Category: Principal judgment Parties: Regina (Appellant)
GWM (Respondent)Representation: Counsel:
Ms S Dowling (Appellant)
Ms JS Manuell SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Legal Aid NSW (Respondent)
File Number(s): 2011/283834 Publication restriction: The Respondent is referred to by letters as publication of his name may serve to identify the child victim (s.578A Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987) Decision under appeal
- Citation:
- ---
- Date of Decision:
- 2012-04-26 00:00:00
- Before:
- His Honour Judge Colefax SC
- File Number(s):
- 2011/283834
Judgment
McCLELLAN CJ at CL: I agree with Johnson J.
JOHNSON J: This is a Crown appeal under s.5D Criminal Appeal Act 1912 against sentence imposed upon the Respondent, GWM, at the Bathurst District Court on 26 April 2012 for an offence of aggravated sexual assault.
Following a plea of guilty, the Respondent was sentenced to imprisonment comprising a non-parole period of two years and eight months commencing on 2 September 2011 and concluding on 1 May 2014, with a balance of term of two years and seven months commencing on 2 May 2014 and expiring on 1 December 2016. The maximum penalty for an offence of aggravated sexual assault contrary to s.61J(1) Crimes Act 1900 is imprisonment for 20 years, and a standard non-parole period of 10 years is applicable to the offence.
Facts of Offence
A Statement of Agreed Facts was tendered in the District Court without objection.
The victim, TL, was born on 22 August 2000. She was 11 years and eight days' old at the time of the offence committed on 1 September 2011.
The victim lived with her mother and brother in Mudgee. The Respondent is the paternal uncle of the victim. The victim's mother had separated from the victim's father before she was born. Prior to May 2011, the victim had never met the Respondent.
In May 2011, the Respondent came to the victim's home and asked to stay with the family. The victim's mother, who had not seen the Respondent for some years, agreed and he moved into the spare room.
The Respondent was a heavy drinker and cannabis user and would regularly drink and smoke cannabis until he passed out.
At about 9.30 pm on the evening of 1 September 2011, the victim woke in her bed to find the Respondent tickling her under her arm. He said "I wanna show you something" and then pulled her pyjama pants down. The victim tried to push him off. The Respondent removed his pants and got on top of her.
The Respondent then put his penis in the victim's vagina, causing her pain. She told him to stop but he said "No, you're liking it". She told the Respondent she needed to go to the toilet and he stopped. The victim ran and told her mother that something had happened involving the Respondent. The victim slept the rest of the night in her mother's bed.
The following morning, the victim told her mother that the Respondent had put his penis "in her belly" and that "her belly was hurting". The victim's mother then comprehended fully what the Respondent had done. She reported the matter to police and the victim underwent a sexual assault examination at Dubbo Base Hospital.
The Respondent did not use a condom during the offence and he had ejaculated in the victim's vagina.
The victim received the morning-after pill to prevent pregnancy and antibiotics to prevent infection. Further blood tests were required to be undertaken 12 months after the offence to exclude the possibility of infection with HIV or other sexually transmitted diseases.
Semen was detected on two high vaginal swabs taken from the victim which yielded DNA with the same profile as the Respondent.
The Respondent was questioned by police the morning after the assault. He said he had no recollection of anything happening. He told police he had smoked a significant quantity of cannabis and had consumed an equally significant quantity of cask wine on the day of the offence.
The Respondent initially denied the allegations. However, in light of the DNA evidence, he accepted that he had committed the offence and pleaded guilty in the Local Court.
The Respondent was arrested and charged on 2 September 2011 and has remained in continuous custody since that time.
The Respondent's Subjective Circumstances
The Respondent was born in January 1984. He was 27 years' old at the time of the offence and 28 years' old at the time of sentence.
His criminal history contained a single entry, at Beenleigh Magistrates Court on 18 August 2003, for unlawful use of a motor vehicle for which he was placed on probation for 18 months with no conviction being recorded.
No presentence report or psychiatric or psychological report was tendered as part of the sentencing proceedings. A letter from the Respondent's mother was tendered which set out part of his life history. In addition, the Respondent gave evidence.
The sentencing Judge accepted the Respondent's evidence concerning his background. He is the fifth of six children and his early childhood was marked by significant domestic abuse by his father upon his mother. His parents separated when he was three years' old.
The Respondent maintained a close relationship with his father, notwithstanding his parents' separation. When the Respondent was 13 years of age, his father committed suicide. Following this, the sentencing Judge observed:
"That would have been a traumatic experience for anybody, and it was for this offender, and it was shortly after the funeral of his father that his life unravelled and which led him to commit the dreadful offence for which he is to be sentenced today."
His Honour accepted that the Respondent became involved in excessive drinking and the consumption of cannabis at a very young age, as well as the use of amphetamines. He was expelled from school. The Respondent had some employment but was unable to hold a job for very long. The Respondent sought counselling at the age of 17 years, but that did not have any significant effect.
In his evidence before the District Court, the Respondent said that he had left school in Year 10 and that, whilst he had worked during his early 20s, he had not had permanent employment for a period of four years before the offence. He said that this was due to his drug and alcohol problems which meant that he could not maintain steady employment.
The Sentencing Hearing and Remarks on Sentence
The Hearing
The sentencing hearing took place at the Bathurst District Court on 26 April 2012, with his Honour passing sentence in ex tempore remarks delivered later that day.
The Crown tendered a number of documents and the victim then commenced to read her victim impact statement from the closed-circuit television room located in the courthouse. That process took its toll upon the victim (then aged 11 years and eight months), and she broke down with her mother completing the reading of the statement.
The victim impact statement outlined the victim's distress as the offence was being committed and her feelings of confusion, guilt, discomfort and disgust at the subsequent examinations of her, the testing for disease and the delay in learning that there had been no disease transmitted. Associated with these features were a loss of confidence at sleeping in her own room, the detrimental impact of the offence upon her family and her mother, a need to change schools and a general feeling of anxiety and lack of trust and confidence arising from the offence.
As mentioned earlier, the Respondent gave evidence at the sentencing hearing. His evidence included his personal history, including his education and employment and his problems with alcohol and drugs. He gave evidence that he had suffered from epilepsy for 10 years. The Respondent said that he had been to counselling concerning his alcohol and drug problems, and had attempted to find help within the prison system with limited success given his status as a remand prisoner.
The Respondent said that he was well affected by alcohol at the time of the offence and had been using cannabis as well before then. He had no recollection of the offence. When confronted with the evidence, he accepted that the offence had occurred. He said that he was "appalled" and "disgusted" in himself for having done such a thing to a family member and he apologised to the victim. He was being held on protection at his own request.
Under cross-examination, the Crown asked the Respondent:
"Q. She was telling you to stop but you did these things and you said to her 'You're liking it' do you remember reading that?
A. Yes.
Q. Would you accept from what she has said that it's not a case where you were blind drunk walking in mumbling and stumbling you were in control of your movements and going against her expressed verbal and physical indications of resistance, that's right isn't it according to what [the victim] says, you weren't blind drunk, stumbling in, falling over were you?
A. I know I was blind drunk I was getting drunk all the time."
The Crown Prosecutor provided written submissions to the sentencing Judge contending, amongst other things, that the offence fell "in the mid range of offending", with reference being made to the principles in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The Crown submission concerning objective gravity noted that the offence was an isolated incident, the Respondent was the victim's uncle in a position of authority, the offence involved a breach of trust, the fact that the Respondent had proceeded with the sexual assault despite strong verbal and physical requests to desist, the fact that the victim was aged just over 11 years and that the offence involved penile vaginal intercourse.
During the course of oral submissions from the Crown, his Honour enquired:
"HIS HONOUR: What are the Crown submissions on the way in which the effects, combined effects of alcohol and cannabis work on the will of the offender? That's the first question. And what are the Crown submissions on the issue of special circumstances?
SHAW: Well in terms of the effect of alcohol, your Honour accepting the version of events of - because there is no other of the complainant as I suggested in cross-examination, the Crown submission is that he was [not] so affected that he wasn't capable of knowing clearly what he was doing, he may not have had a memory subsequently but there was conversation, there was deliberation in his movements and even an endeavour to convince [the] 11 year-old complainant that she'd like being abused by her uncle. Those are matters that really demonstrate the Crown submission that the effect of alcohol and drugs was disinhibiting rather than [placing] him in a position where he was close to having no ability to comprehend what he was doing.
In terms of special circumstances, there is clearly a need given that his drug and alcohol problems have not been addressed today for him to undergo supervision upon his release. It is his first time in custody and in fact his first time before the court according to the record."
Counsel for the Respondent then made oral submissions on sentence, including the submission that the Respondent "obviously has some significant problems in relation to drugs and alcohol". No submission was made that the Respondent's intoxication bore upon the objective gravity of the offence, nor was any challenge made to the Crown submission concerning the relevance of intoxication as set out in the preceding paragraph. The focus of attention in submissions was the Respondent's subjective circumstances, including his sad life, remorse, prior good character, his plea of guilty and good prospects of rehabilitation.
In response to the Crown submission concerning aggravating factors, defence counsel accepted that the offence constituted a breach of trust, but disagreed that the Respondent was in a position of authority, contending that there was no evidence to suggest that he was.
His Honour stood the matter down for sentence later in the day. In the meantime, a letter prepared by the Respondent's mother arrived at Court and was tendered by consent in the Respondent's case. The letter corroborated the Respondent's account concerning his unhappy family history.
The Remarks on Sentence
His Honour sentenced the Respondent by way of ex tempore remarks delivered that afternoon.
The remarks on sentence were succinct. Following a reference to the maximum penalty and standard non-parole period for the offence, his Honour recited the facts of the offence, before noting that the Respondent had no recollection of the offence itself.
His Honour said:
"Some cross examination of [the Respondent] was undertaken by the learned Crown Prosecutor today on the question of capacity and intent.
I am satisfied on the balance of probabilities that [the Respondent] not only has no memory of what occurred on that night, but that his long standing problems with alcohol and drugs - to which I shall soon return - were the immediate and effective cause of his criminal conduct.
There is absolutely no suggestion in any of the evidence that he has an interest, ie a sexual interest per se, in children."
Reference was made to the victim impact statement and the consequences of the offence upon the victim.
The sentencing Judge said with respect to the offence itself:
"It is important to bear in mind when considering the objective seriousness of this offence, that apart from the offence itself (and by use of the word 'apart' I do not intend to diminish the seriousness of it) there was no violence, threat of violence, physical abuse or other aggravating factors which one frequently sees inflicted upon victims of sexual assault."
His Honour then turned to the Respondent's subjective circumstances, referring to his background of physical and mental abuse and his excessive consumption of alcohol and cannabis from an early age.
His Honour observed that the Respondent had come to Mudgee where his alcohol and cannabis consumption continued. The sentencing Judge then said:
"I am satisfied on the balance of probabilities that the criminal conduct of [the Respondent] on this night is directly attributable to his long-term and untreated problems of alcohol and illicit drugs.
That consumption of those drugs and alcohol does not of course excuse in any way what was done but it provides the context in which this offence was committed."
Reference was made to the Respondent's limited criminal history and his expression of remorse for this offence. A 25% discount was allowed for the Respondent's plea of guilty. The Court found that the Respondent was genuinely remorseful and that this was an important factor in considering his prospects for rehabilitation.
The sentencing Judge referred to the need to punish wrongdoing and to set up an environment where the wrongdoer can be rehabilitated. His Honour found that the Respondent had "reasonable to good prospects of rehabilitation provided that he does receive effective counselling for his long term problem of drugs and alcohol and the underlying factors, psychological and psychiatric factors, which have led him to these addictions".
A finding of special circumstances was made upon the basis of the Respondent's good prospects of rehabilitation, his age, the fact that he would serve his sentence largely, if not exclusively, in isolation and because of his lack of criminal history.
The sentencing Judge observed that if the Respondent received treatment for his addiction, he was unlikely to reoffend and therefore, in his case, considerations of specific deterrence were not as prominent as might otherwise have been the case, but that general deterrence was "a very significant factor".
Having found special circumstances, his Honour imposed a non-parole period of two years and eight months, with a balance of term of two years and seven months. His Honour strongly recommended to the Department of Corrective Services that, whilst the Respondent was serving his sentence and when he was admitted to parole, he "receive appropriate counselling and treatment for drug and alcohol addiction and also for the underlying psychological and psychiatric illnesses from which he is likely to suffer".
Grounds of Appeal
The Crown relies upon the following grounds of appeal:
(a)Ground 1 - The learned sentencing Judge erred in failing to properly consider the objective seriousness of the offence.
(b)Ground 2 - The learned sentencing Judge erred in failing to properly consider the standard non-parole period.
(c)Ground 3 - The learned sentencing Judge erred in his Honour's approach to self-induced intoxication.
(d)Ground 4 - The learned sentencing Judge erred in that his Honour imposed a non-parole period that failed to reflect the criminality of the offending.
(e)Ground 5 - The sentence is manifestly inadequate.
Ground 1 - Failure to Properly Consider the Objective Seriousness of the Offence
Ground 2 - Failure to Properly Consider the Standard Non-Parole Period
These grounds of appeal may be considered together.
Submissions of the Parties
The Crown submitted that the sentencing Judge had failed to make an assessment of the objective seriousness of the offence and did not address the Crown submission on this issue or otherwise refer to factors which bore upon the objective seriousness of the offence, apart from observing an absence of violence towards the victim. It was submitted that the need to consider and assess the objective gravity of the offence, even since the decision in Muldrock v The Queen, had not been met in this case. The Crown submitted that this failure led in turn to the imposition of a sentence that failed to reflect the seriousness of the offence.
In support of the second ground, the Crown submitted that the sentencing Judge had mentioned the existence of a standard non-parole period for this offence at the commencement of the remarks on sentence, but that no later assessment was made to give effective meaning to the standard non-parole period in this case. Submissions advanced in support of the first ground were made in support of this related ground of appeal.
Ms Manuell SC, for the Respondent, submitted that the sentencing Judge had referred to the facts of the offence and had described it as "dreadful" and a "terrible thing". It was submitted that his Honour had conducted the sentencing hearing that day and had read the Agreed Statement of Facts for that purpose, together with the Crown written submissions. In this way, it was submitted that the sentencing Judge had before him all relevant matters so that it was clear that they had been taken into account on sentence.
It was submitted for the Respondent, as well, that his Honour had found a causal link between the offence and the Respondent's consumption of alcohol and drugs, and that this bore upon an assessment of objective seriousness or objective gravity in this case.
Ms Manuell SC emphasised that his Honour had proceeded to give ex tempore remarks on sentence at a busy circuit court, and that this consideration should be kept in mind when reading and considering the remarks on sentence: Corby v R [2010] NSWCCA 146 at [48]-[51]; R v Speechley [2012] NSWCCA 130 at [34].
Concerning the second ground, Ms Manuell SC emphasised the approach required in accordance with Muldrock v The Queen, and submitted that no error had been made by the sentencing Judge in this case as asserted in this ground.
Decision
The observations made in R v Speechley at [34]-[35] are pertinent to consideration of these grounds:
"34... it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).
35When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour's remarks on sentence, bearing in mind the features of an ex tempore decision."
In Corby v R at [51], it was said that this Court should take a practical approach in assessing remarks on sentence, with an emphasis upon substance (and the resulting sentence) and not just matters of form.
In R v Hamieh [2010] NSWCCA 189, the Court said at [29]-[33]:
"[29] ... The principal purpose of remarks on sentence is to provide an oral explanation to the offender, the victim(s) and persons in court at the time when sentence is being passed: R v Bottin [2005] NSWCCA 254 at [12]; Curtis v R [2007] NSWCCA 11 at [30]-[31]; R v Hersi [2010] NSWCCA 57 at [7].
[30] Remarks on sentence serve other purposes as well, including informing the community and an appellate court of the reason for imposition of the sentence: R v Duffy [1999] NSWCCA 321 at [11]; R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 394-395 [42]-[44]; R v JCE [2000] NSWCCA 498 ; 120 A Crim R 18 at 21 [19]; Thomas v R [2006] NSWCCA 313 at [16].
[31] In addition, various statutory provisions (such as the Crimes (Sentencing Procedure) Act, ss 45(2) and 54B(4)) require reasons to be given in specified areas. The giving of remarks on sentence has been rendered more complex, not only by such statutory requirements, but also by the greater complexity of sentencing principle generally, as the detailed judgments of this court attest.
[32] It is important to recognise, therefore, that there is a practical tension between the principles requiring oral reasons, delivered in plain English and with brevity (usually in a busy list) and the need for reasons to satisfy the requirements of the law in the particular case. Remarks on sentence are frequently delivered ex tempore and, as the Chief Justice has observed in R v McNaughton [2006] NSWCCA 242 ; 66 NSWLR 566, at [48] 577:
The conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed.
[33] Notwithstanding this tension, the obligation to give reasons remains. It is not a discretionary component of the sentencing process. ..."
Although R v Hamieh predated the decision of the High Court of Australia in Muldrock v The Queen, the general statements concerning the necessary content of remarks on sentence, and the approach to be taken in reading them, remain applicable.
Making all due allowance for the ex tempore nature of the remarks on sentence, I am nevertheless satisfied that there was not a proper consideration of the objective seriousness or objective gravity of the offence in this case.
The Crown had made a submission in the District Court, not challenged directly by defence counsel, that the offence fell in the mid-range of offending.
An assessment of objective gravity is an important part of the sentencing function with respect to all offences. In Zreika v R [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at [46]:
"The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999."
The sentencing Judge's recital of the facts, accompanied by passing reference to the "dreadful" nature of the offence, did not suffice in this case. The absence of additional acts of violence directed to the victim was not illuminating. It is clear that a dominant factor, in the mind of the sentencing Judge, was the Respondent's intoxication, an issue to which I will return in the context of the third ground of appeal.
The Crown submitted (correctly) that a number of features of this offence rendered it a serious example of aggravated sexual assault:
(a)the assault involved full penile penetration - penile penetration of a young child involves conduct of a graver order of criminality than other forms of sexual intercourse contemplated by s.61H Crimes Act 1900 : R v PGM [2008] NSWCCA 172 at [27]-[28];
(b)the tender age of the victim - she had turned 11 years of age only eight days before the offence. The victim was well below the age of 16 years, the chronological threshold for a s.61J offence of aggravated sexual assault: s.61J(2)(d); R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at 276 [42]-[43];
(c)the act of penetration hurt the victim: R v PGM at [27]-[28];
(d)the degradation of the victim was increased by the Respondent ejaculating inside her vagina (R v Oloitoa [2007] NSWCCA 177 at [42]-[43]), with this necessitating her taking the morning-after pill to avoid pregnancy and undergoing ongoing serology testing for HIV or other sexually transmitted diseases;
(e)the forceful nature of the assault, with the Respondent forcing himself onto the victim over her protestations;
(f)the degrading assertion by the Respondent to the victim "You're liking it";
(g)the offence involved a breach of trust as the Respondent was the victim's uncle: s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999;
(h)the offence occurred in the victim's home: s.21A(2)(b) Crimes (Sentencing Procedure) Act 1999.
Further, the statement that the offence was an isolated one was to be understood in the context of an immediate complaint by the victim to her mother, followed by the speedy arrest of the Respondent the next day: RR v R [2011] NSWCCA 235 at [148]. This does not mean that a sentencing court should approach the matter upon the basis that there was likely to be a repetition of the offending conduct if the Respondent had not been arrested. Rather, the point is that this was not a case where the offence occurred, and a significant time had passed before his arrest, so as to allow a positive submission to be made that this was a single offence not repeated, despite opportunities to do so, and was thus truly an isolated offence.
In the circumstances of this case, I am satisfied that the Crown has made good the first ground of appeal. There is an overlap between this and later grounds, so that an assessment of what flows from the success of this ground may be left until later in the judgment.
There is substantial overlap between the first and second grounds of appeal. The standard non-parole period was a legislative guidepost on sentence: Muldrock v The Queen at 132 [27].
I do not consider it necessary in this case to add to the jurisprudence concerning the approach to be taken to the standard non-parole period since the decision in Muldrock v TheQueen. Error has been established in accordance with the first ground of appeal. As will be seen, other grounds of appeal will also be upheld.
In these circumstances, it is not necessary to devote further attention to the second ground of appeal.
Ground 3 - Error in the Approach to Self-Induced Intoxication
Submissions of the Parties
The Crown noted that the findings made by the sentencing Judge with respect to intoxication, and a suggested causal link to the offence, were not advanced by the Respondent's counsel in the District Court. The Crown submitted that the approach of the Crown (and not disputed by defence counsel) in the District Court (see [32] above) reflected the correct approach to this issue, but that the sentencing Judge fell into error in making the findings which he did.
The Crown submitted that intoxication, whether by alcohol or drugs, may be mitigating in a limited way insofar as it indicates that an offence was impulsive, unplanned and that an offender's capacity to exercise judgment was impaired: Waters v R [2007] NSWCCA 219 at [38]; R v Mitchell [2007] NSWCCA 296 at [34]. It was submitted that the Respondent's intoxication may serve to explain how his judgment was affected (to some extent) to act in this way, but that this was a not uncommon scenario for sexual assault offences, and can provide limited assistance only to an offender on sentence: BP v R [2010] NSWCCA 159; 201 A Crim R 279 at 397 [79].
The Crown submitted that, in truth, the Respondent's intoxication should more appropriately be regarded as an aggravating feature. He chose to consume a large quantity of alcohol and cannabis and he had known for many years that he had problems with drugs and alcohol. It was submitted that such self-induced intoxication in a mature man increases, rather than decreases, his moral culpability for the predictable consequences of that choice: R v Bourke [2010] NSWCCA 22; 199 A Crim R 38 at 44 [28]; Mendes v R [2012] NSWCCA 103 at [83].
The Crown submitted that his Honour had erroneously regarded the Respondent's intoxication as a powerfully mitigating factor and that this contributed to the imposition of a manifestly inadequate sentence.
Ms Manuell SC submitted that it was open to the sentencing Judge to have regard to the Respondent's absence of criminal convictions (and in particular, offences of this type) despite his history of heavy abuse of alcohol and cannabis, and that this assisted the Respondent in a conclusion that the offence was "out of character". It was submitted that his Honour did not err in making the findings under challenge nor in approaching this issue as a mitigating factor in this case.
Decision
The present appeal concerns an aggravated sexual assault of an 11-year old girl by her 27-year old uncle. It is difficult to see how voluntary or self-induced intoxication could bear upon the gravity of the offence, except as a possible aggravating factor.
In Director of Public Prosecutions v G [2002] VSCA 6, Winneke P (Buchanan and Vincent JJA agreeing) observed, in the context of a sentence appeal for incest committed by an intoxicated offender upon a 14-year old victim, that the offender's conduct could not be "explained, excused or ameliorated by the fact that his lust had been provoked by the liquor which had disinhibited him" (at [10]). Winneke P observed that the offender had abused the trust and confidence reposed in him and that "parents - and those in loco parentis - who fail to exercise the restraint which the community expects of them, and who give into their own sexual gratification, must expect to be severely and appropriately punished" (at [10]).
These statements of Winneke P have particular resonance in a case such as this, where the young victim was assaulted sexually in her own bed by a supposedly trusted relative.
Even in circumstances of offending against adult victims, voluntary intoxication operates rarely (at best) to mitigate penalty. In Hasan v R [2010] VSCA 352; 31 VR 28, the Victorian Court of Appeal (Maxwell P, Redlich and Harper JJA) considered a sentence appeal for rape of an adult victim by an offender who stated that he was heavily intoxicated at the time and had no memory of the offence. The decision contains a most helpful review of authorities in the area of intoxication and offences of violence, including sexual assault. Their Honours said at 33-34 [20]-[22]:
"[20] It is notorious that intoxication of the offender is a common feature of violent offending in general, and of sexual violence in particular. Not infrequently, sentencing judges are faced with a submission that the offender's intoxication made him/her behave in a manner that was 'out of character' and that his/her moral culpability for the offending should be seen as lessened accordingly. As already indicated, that is the submission which was advanced on this appeal.
[21] In the circumstances, it is timely to review the state of the law regarding intoxication as a sentencing consideration. As will appear, courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender's culpability. An 'out of character' exception is acknowledged to exist, but it has almost never been applied. On the other hand, it is recognised that intoxication can be an aggravating factor where the offender is shown to have had foreknowledge of how he/she is likely to behave when affected by alcohol. No issue of that kind arises here.
[22] The starting point for most modern discussions of the subject is R v Bradley [(1980) 2 Cr App R (S) 12], where Lord Widgery CJ said:
'This Court finds nothing in the case to indicate that that sentence was other than entirely correct. It is said that he was in drink. So he was. But the day is long past when somebody can come along and say 'I know I have committed these offences, but I was full of drink.' If the drink is induced by himself, then there is no answer at all. It is said it is out of character. So it was. He has a clean character. He had no previous convictions at all. It was said that he is a good son to his mother and he has a number of other skills as a citizen.
The plain fact is that on this afternoon he behaved himself in such a manner as to make it absolutely imperative that some suitable condign punishment should be imposed upon him. That was done and the appeal is dismissed'."
Their Honours observed (at 34 [23]-[24]) that the dictum of Lord Widgery CJ in R v Bradley (1980) 2 Cr App R (S) 12 had been applied in decisions of different appellate courts in Australia.
Their Honours turned then (at 34 [25]ff) to cases which had considered the "out of character" exception concerning intoxication. Reference was made to New South Wales decisions (at 35 [26]-[27]):
"[26] The exception was likewise recognised by the New South Wales Court of Criminal Appeal in R v Coleman [(1990) 47 A Crim R 306], a case involving sexual violence. Speaking for the court, Hunt J said:
'The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character'.
[27]In [New South Wales], the existence of the exception was accepted in R v Fletcher-Jones [(1994) 75 A Crim R 381 at 387 ("Fletcher-Jones")] and in R v Gordon [(1994) 71 A Crim R 459 at 467]. But in neither case was the exception found to be applicable. In Fletcher-Jones [(1994) 75 A Crim R 381], the Court of Criminal Appeal (McInerney J) said [at 387]]:
'It has been pointed out by this Court on many occasions that whilst being affected by alcohol may explain why an offence occurred, it is not a licence to commit crimes, particularly in the nature of these [violent sexual] offences'.
More recent appellate decisions in Victoria have been to much the same effect. In three successive decisions - R v Walker [(unreported, Victorian Court of Appeal, 31 May 1996) ("Walker")], R v Laffey [[1998] 1 VR 155 at 162] and R v Groom [[1999] 2 VR 159 at 164, [22]-[23]] - the Court of Appeal acknowledged the existence of the 'out of character' exception but held that it did not apply to the case at hand."
After references to other Victorian cases, their Honours said at 36-37 [31]-[34]:
"[31]Nor - with the exception of Davis [Victorian Court of Criminal Appeal, 9 May 1980, unreported - where a 17-year old offender with no sexual experience committed rape when drunk 'on the spur of the moment'] - have attempts to rely on intoxication in mitigation of sexual offending found favour in this court. In R v Phillips [[2000] VSCA 225], the trial judge had found that the offender was drunk when he raped his victim. This court held that the judge had not erred in refusing to treat the intoxication as a mitigating circumstance. In Director of Public Prosecutions v G [[2002] VSCA 6], which concerned an offender's sexual abuse of his 14-year-old step-daughter while affected by liquor, Winneke P said:
Nor, in my view, is the [offender's] conduct to be explained, excused or ameliorated by the fact that his lust had been provoked by the liquor which had disinhibited him'.
"[32] Our research has identified only one other instance of the application of the 'out of character' exception. As will appear, the circumstances were atypical. In Stanford v R [[2007] NSWCCA 73] the New South Wales Court of Appeal (Rothman J, with whom McClellan CJ at CL and Hulme J agreed) said [at [56]-[57]]:
In this instance, the applicant became inebriated at his place with friends. He was consuming alcoholic drinks mixed by others and became uncharacteristically drunk to an extent that overwhelmed him. He went to bed and was awoken by the victims in search of Mr Davis. He then proceeded to prevent an assault on Mr Davis. The comment by his Honour the sentencing judge that the reaction to the disturbance and agitation by the victims was possibly affected by his inebriated state, is an inference with which it is difficult to cavil. The aberrant nature of the conduct supports the proposition that the applicant's overreaction was induced by the alcohol. The criminal conduct, however reprehensible, was an irrational response to the conduct of the victims, which irrationality was brought about by the effect of the alcohol. In those circumstances the intoxication is properly used as a mitigating factor.
Having come to that view, it cannot be stressed enough that the use of a firearm once intoxicated must be understood as conduct of the most serious and dangerous kind. The mitigation, in this case, does not derogate from that principle. The mitigation arises, not because the intoxication ameliorates the use of the weapon, but because the intoxication ameliorates what is otherwise an irrational reaction to the conduct of the victims, part of which reaction was the use of the weapon.
[33] Because the out of character exception has been so rarely applied, there has been almost no judicial exploration of the circumstances in which the exception might be applicable. It seems clear enough, however, that the circumstances must be quite exceptional before intoxication at the time of offending can mitigate the offender's moral culpability.
[34] On ordinary principles, the offender would bear the onus of showing that he/she did not know what effect alcohol would have on him/her. Given the widespread use of alcohol, and the fact that even a non-drinker would be well aware of its effects on a person who becomes intoxicated, this is doubtless a difficult burden to discharge. Moreover, an attempt to invoke the exception also carries with it the forensic risk that an investigation of the offender's drinking habits might lead to the conclusion that the state of intoxication was an aggravating rather than a mitigating circumstance."
The conclusions expressed by the Victorian Court of Appeal in R v Hasan represent the law to be applied on sentence in this State. Properly understood, the "out of character" concept is a narrow one. It has no application in the present case.
Intoxication was a common state for the Respondent. The fact that he had not previously committed an offence of this type, even though he was a heavy user of alcohol and cannabis, was as far as any available finding should have gone in this case. The disinhibiting effect of his alcohol and cannabis use was of no assistance to him (see the observations of Winneke P in Director of Public Prosecutions v G set out at [76] above).
The Respondent was able to exploit his proximity to his niece, for his own sexual gratification. He made his way to her bedroom, clearly with an intention to sexually abuse her. He was able to achieve an erection and ejaculate, at the same time suggesting to the victim that she was "liking it", despite her physical and verbal protests. His intoxication may have had a disinhibiting effect, but it did not impede his verbal and physical ability to sexually abuse his niece in a grave manner.
It was a generous finding to conclude that there was "absolutely no suggestion" that the Respondent had any sexual interest in children, given that he had committed this very offence against an 11-year old girl. There was no psychiatric evidence before the sentencing Judge, nor any evidence concerning the risk of him reoffending in this way.
A finding of a causal link between the Applicant's alcohol and cannabis abuse and the commission of this serious sexual assault offence was not open on the evidence before the sentencing Judge.
In reality, the most favourable finding available to the Respondent in the circumstances was that his intoxication was not an aggravating factor in this case.
The finding of substantial mitigation by the sentencing Judge was not supported by the evidence, and was not consistent with sentencing principles concerning the relevance of voluntary or self-induced intoxication on sentence.
This ground of appeal has been made good.
Ground 4 - Error in Imposing a Non-Parole Period that Failed to Reflect the Criminality of the Offending - The "Special Circumstances" Issue
Submissions of the Parties
Whilst accepting (as the Crown did at first instance) that a finding of "special circumstances" was appropriate in this case, the Crown submitted that there were both patent and latent errors in the discretionary determination undertaken by the sentencing Judge in the fixing of the non-parole period.
The Crown submitted that the sentencing Judge had erred in taking into account a number of matters to find special circumstances, and that this approach involved according disproportionate weight to the Respondent's subjective circumstances in setting a non-parole period that failed to reflect the seriousness of the offence.
The Crown accepted that the Respondent's prospects of rehabilitation warranted a finding of "special circumstances", however the extent of the departure from the statutory ratio was excessive, and resulted in a non-parole period that failed to reflect the seriousness of the offence and the purposes of sentencing.
Referring to the factors which gave rise to the finding of "special circumstances", the Crown submitted that the Respondent's age (28 years at the date of sentence) was not a factor which was pertinent. The Respondent was not a young offender and he was aware of his established problem of alcohol and cannabis abuse.
The Crown submitted that the finding that the Respondent would serve his sentence in isolation was erroneous.
Finally, the Crown noted that the Respondent's lack of criminal history, and the fact that it would be his first time in custody, were not circumstances which could be regarded as special, referring to decisions of this Court which have made this point, although noting other decisions of this Court had given effect to this factor as an available special circumstance.
Ms Manuell SC pointed to the Crown concession in the District Court (see [32] above) which accepted the relevance of the Respondent's need for supervision upon release given his alcohol and drug problems, and the fact that this was his first time in custody and his absence of prior criminal record.
Whilst acknowledging that the sentencing Judge had erred in finding that the Respondent would serve his sentence, or part of it, in isolation, it was submitted that other factors identified by the sentencing Judge gave rise to a strong foundation for a finding of "special circumstances" and a significant variation in the statutory ratio.
Ms Manuell SC pointed to a number of decisions of this Court which have accepted as "special circumstances" the fact that an offender had no prior criminal history and was entering custody for the first time, with particular reference being made to R v Kaliti [2001] NSWCCA 268.
It was submitted that it had not been demonstrated that the variation of the statutory ratio gave rise to a clearly inadequate non-parole period in this case.
Decision
The head sentence imposed by the sentencing Judge was 63 months with a non-parole period of 32 months. Accordingly, the non-parole period slightly exceeded 50% of the full term. This was a very significant variation of the statutory ratio under s.44 Crimes (Sentencing Procedure) Act 1999.
This Court has emphasised the discretionary nature of a finding of "special circumstances". However, the discretion is not unfettered. Clearly, there is a need to identify the relevant circumstances as being "special".
This Court has also made clear that factors taken into account for the purpose of fixing the full term of imprisonment are not to be double counted as "special circumstances" in favour of the offender in setting the non-parole period. This is not to say that factors considered for the purpose of setting the full term of imprisonment must be entirely disregarded when the time comes to set the non-parole period. Clearly, there is the prospect for some overlap between factors which operate in making these two associated decisions as part of the sentencing process.
Given the issues raised on this appeal, it is appropriate to refer to certain decisions of this Court which have touched on these questions. Although a judgment of a two-Judge Bench, the observations of Wood CJ at CL in R v Kaliti, at [10]-[13], are helpful:
"[10] In Kama [2000] NSWCCA 23, Spigelman CJ questioned whether the age and lack of antecedents of an offender and the fact that the sentence is one involving a first occasion of custody are, of themselves, special circumstances within the meaning of the legislation.
[11] I share that doubt, save to the extent that in an appropriate case, those circumstances may be reasons why, in conjunction with the remaining subjective circumstances, an assessment was justified that the applicant required a longer period than usual subject to a supervised release. Some care does need to be taken to avoid automatically elevating subjective circumstances of this kind, which are properly taken into account when fixing the term of the sentence, into special circumstances when consideration is given to s44(2) of the Act.
[12] Neither the age of the applicant, nor the fact of his prior clear record, or the absence of any previous custodial experience, point in that direction in this case, and I am not satisfied that they would here, themselves, constitute special circumstances.
[13] Where special help is needed to overcome an alcohol or drug problem, or where some form of psychiatric assistance is needed to deal with the underlying circumstances which generate those problems, and where that help cannot adequately be provided within the corrective system, or where it would require an extended period of release subject to supervision, then it may be accepted that special circumstances do exist."
The second member of the Bench, Howie J, agreed with Wood CJ at CL, with additional observations at [21]:
"I agree, but I simply want to add that in my view the finding of the personal circumstances which will permit a reduction in the non-parole period must be purposeful. The purpose to be achieved by a reduction of the non-parole period or a lengthening of the parole period must be something other than simply to relieve the offender of the burden of serving a minimum sentence of imprisonment as would be required by the operation of s44. In my view, there is no purpose for which the longer parole period or a lesser non-parole period would serve in this particular case, and, therefore, there are no special circumstances."
Statements of Spigelman CJ (Hulme and Adams JJ agreeing) in R v Fidow [2004] NSWCCA 172 are frequently cited in this context. The Chief Justice said at [18]-[20]:
"[18] In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s 44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the 'decision' to be that the statutory proportion of one-third be 'less'. 'Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.
[19] The flow of appeals on the issues of special circumstances to the court has not abated, notwithstanding the observations in Simpson at [73]:
As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non parole period is found to be manifestly inadequate or manifestly excessive.
[20] There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing 'special' about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament's intention that the statutory proportion apply unless 'special circumstances' exist that justify departure from it, is not being carried out."
After referring to sentencing research, the Chief Justice continued at [22]:
"This research makes it necessary for this Court to state the obvious. Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation."
More recently, McClellan CJ at CL (RA Hulme and Schmidt JJ agreeing) said in Collier v R [2012] NSWCCA 213 at [35]-[36]:
"35It was submitted to this Court that the applicant, being almost 50 years of age and facing her first time in custody with good prospects of rehabilitation, should have been given the benefit of a finding of special circumstances.
36Inherent in this submission appears to be a misunderstanding of the role of special circumstances when sentencing. A finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special."
The resolution of this ground of appeal in the present case involves an assessment of the circumstances of the Respondent advanced as being special, so as to give rise to a variation in the statutory ratio.
The Respondent has a long-standing problem with alcohol and cannabis abuse, about which not much had been done by him in the past to confront these difficulties and to rehabilitate himself. This very serious offence was committed by him at the age of 27 years, at a time when he was intoxicated. The Respondent recognises the gross nature of his offending and the need to take serious action to rehabilitate himself. The fact that these events have occurred when he is in his late 20s means that there is still significant time in his life to confront these problems. Beyond that, his age has little bearing on this question.
The fact that the Respondent has no prior history of offending, and in particular, sexual offending, means that this is, in reality, the first time that he is confronting his problems in the context of the criminal justice system. In this way, there is some interaction between the Respondent's prospects of rehabilitation, his age, his lack of criminal history and the fact that this is his first time in custody.
It is common ground that the sentencing Judge's finding that the Respondent's sentence would be served, in whole or in part, "in isolation" was erroneous in fact and was thus wrongly taken into account as a factor bearing upon "special circumstances".
However, the remaining factors identified by the sentencing Judge were capable of supporting a finding of "special circumstances" in this case. This was the Crown concession in the District Court.
It is the combination, or cumulative effect, of these factors in the Respondent's case which renders them "special". Taken separately, as the authorities referred to earlier have emphasised, the fact that an offender has no criminal history, and is entering custody for the first time, cannot be regarded as special. However, in this case, the Respondent is strongly motivated to take action with respect to features of his life which have interacted with his serious criminal offending, and which will require supervision in the community for an extended period upon release.
A finding of "special circumstances" is a statutory precondition to departure from the 75% ratio. However, as Howie J observed in R v Kaliti at [21] (see [104] above), the reduction of the non-parole period must be "purposeful". As Wood CJ at CL said in R v Kaliti (at [13]), where "special help" is needed or some specific assistance is needed which cannot be provided in a custodial setting or where it would require an extended period of supervision, then "special circumstances" may exist (see [103] above). What is clear, as Howie J observed in R v Kaliti, is that the purpose must be something other than simply to relieve the offender of the burden of serving a minimum sentence as required by s.44.
It may be seen, in this case, that a variation in the statutory ratio would be "purposeful". The Respondent needs specific assistance and this assistance will be purposeful when he is released into the community, where alcohol and cannabis use will be available to him and he will require supervision and assistance.
The effect of this conclusion, however, is only that some departure from the statutory ratio is warranted.
There is a further consideration which must be kept in mind in considering the length of a parole period to be set as part of the sentence. Unless an offender is within the narrow class of persons defined as "serious offenders" (and the Respondent is not), parole supervision will not extend beyond a period of three years after release on parole: Clause 228 Crimes (Administration of Sentence) Regulation 2008; AM v R [2012] NSWCCA 203 at [90]; Collier v R at [37]. As it happens, the Respondent's parole period on the present sentence is 31 months. However, upon resentencing, it will be necessary to keep in mind the maximum period of actual parole supervision available in determining the relationship between the non-parole period and the head sentence in his case.
As the decision of this Court in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 (at 718 [65]) makes clear, the adjustment of the statutory ratio, after considering factors relevant to the fettered sentencing discretion, must lead to the imposition of a non-parole period which constitutes the minimum period which the offender should spend in custody having regard to all objective and subjective circumstances, including the objective gravity of the offence and the need for general deterrence. The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36].
A finding of "special circumstances" was both open and appropriate in this case. However, I am satisfied that the extensive variation of the statutory ratio in this case (from 75% to just over 50%), taken with the quantum of the non-parole period itself (32 months), demonstrates that disproportionate weight has been given to the subjective circumstances of the Respondent: R v Ceissman [2004] NSWCCA 466 at [25].
The circumstances of this case which warranted variation of the s.44(2) ratio, although capable of supporting a finding of "special circumstances", were incapable of supporting a finding leading to the imposition of a non-parole period just over 50% of the head sentence. The non-parole period imposed, in my view, failed to reflect the seriousness of the offence and the need for general deterrence: Maglis v R [2010] NSWCCA 247 at [28].
I would uphold the fourth ground of appeal.
Ground 5 - The Sentence is Manifestly Inadequate
Submissions of the Parties
The Crown submitted that the errors identified in the grounds of appeal already considered serve to explain and demonstrate how a manifestly inadequate sentence came to be imposed in this case.
Whilst acknowledging the limitations of sentencing statistics, the Crown noted that sentences for s.61J offences committed between January 2004 and December 2010 involved 184 offenders. Of these, 78% received head sentences over five years (the Respondent received a head sentence of five years and three months) and 75% of offenders received a non-parole period of three years or more (the Respondent received a non-parole period of two years and eight months).
The Crown referred to the decision in Enriquez v R [2012] NSWCCA 60, where an offender appealed unsuccessfully against an overall sentence of eight years and six months' imprisonment with a non-parole period of six years. The offence involved a 15-year old victim. The offender had previously been in a relationship with the victim's mother, with the offence being committed in the victim's home at a time when the offender was intoxicated and with no memory of the offence. The offender was 39 years' old at the time of the offence. The offender was of prior good character. Garling J (McClellan CJ at CL and Davies J agreeing) noted (at [60]-[64]) that the objective seriousness of the criminality and the culpability of the offender, assumed principal importance in the exercise of the sentencing discretion. Notwithstanding the offender's good prospects of rehabilitation, a non-parole period of six years was justified.
The Crown referred, as well, to the decision in R v FB [2011] NSWCCA 217, where a substantial sentence was imposed upon an offender following trial.
The Crown submitted that the head sentence and non-parole period in this case were manifestly inadequate and that this Court should move to resentence the Respondent.
Ms Manuell SC submitted that an examination of sentencing statistics indicated that the sentence imposed upon the Respondent was not outside the range of sentence for such offences. By reference to statistics for the period January 2005 to December 2011, it was submitted that the total terms imposed in that period involved 55 offenders who had pleaded guilty with a median total sentence of six years' imprisonment and a median non-parole period of 42 months.
It was submitted for the Respondent that there were features of Enriquez v R which were distinguishable from the present case, and that R v FB was directly affected by the decision in Muldrock v The Queen so that it ought be placed to one side for present purposes.
Ms Manuell SC submitted that the sentence imposed in this case lay within the range of sentences available in the proper exercise of sentencing discretion in all the circumstances of the case.
Decision
A claim of manifest inadequacy requires the Crown to demonstrate that the sentence was unreasonable or plainly unjust: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58].
As this Court has said on many occasions, considerable caution should be exercised in the use of bare sentencing statistics in considering an appeal against sentence in a particular case. Likewise, the sentencing outcome in other specific cases is of very limited assistance, unless the offenders are related offenders for the purpose of application of the principles of parity and proportionality.
The particular features of the Respondent's offence which bear upon an assessment of its objective gravity were referred to earlier (at [64]). Of particular importance is the age of the victim, barely 11 years' old.
The victim in this case was asleep at home in her bed, entitled to the security which those circumstances ought provide to a child. The Respondent took advantage of the position of trust in which he had been placed by sexually assaulting his niece.
Full penile vaginal intercourse took place with the Respondent ejaculating in the victim. The victim manifested to the Respondent her lack of consent and her protest at these actions. Although the Respondent's intoxicated state may have blunted his reactions to an extent, he persisted in the course of conduct for his own sexual gratification, disregarding entirely the interests of his victim.
There was ample material before the sentencing Judge demonstrating the significant detrimental impact caused to the victim in this case, with those effects likely to be long standing in their adverse effects on her life.
Undue attention to the Respondent's subjective circumstances caused inadequate weight to be given to the objective circumstances of the case, resulting in the imposition of a sentence which was not reasonably proportionate to the gravity of the crime: R v Dodd (1991) 57 A Crim R 349 at 354.
In all the circumstances, I am satisfied that the sentence imposed upon the Respondent was manifestly inadequate.
I would uphold this ground of appeal.
Discretionary Considerations and Resentencing the Respondent
If the point was reached on the Crown appeal where the Court found error and was considering resentencing the Respondent, Ms Manuell SC submitted that the Court ought receive further evidence, in the form of an affidavit of the Respondent affirmed 4 October 2012, and an affidavit of the Respondent's solicitor affirmed on 4 October 2012. The affidavit of the Respondent outlined steps he had been taking in custody in an effort to obtain counselling and treatment. Annexed to the affidavit of the Respondent's solicitor are a report of Dr Peter Ashkar, consultant forensic psychologist, dated 24 September 2012 and a report of Dr Adam Martin, forensic psychiatrist, dated 16 January 2012, together with other documents relating to the Respondent's classification and placement in custody.
The report of Dr Martin was available to the Respondent's legal representatives at the time of his sentencing hearing in the District Court, although not deployed at that hearing. However, it may be relied upon by the Respondent on a Crown appeal to this Court against sentence, where the Court is considering the question of resentence.
The Report of Dr Martin appears to have been prepared largely for the purpose of an assessment as to fitness to be tried. Dr Martin did not find the Respondent to have current major cognitive problems and, on the basis of the information available to him, did not diagnose paraphilia such as paedophilia, although further review was suggested in this respect. In terms of future management, Dr Martin considered that the Respondent clearly required "assertive intervention regarding drug and alcohol misuse and further psychiatric and psychological review aimed at excluding paraphilia which might require psychiatric intervention".
The purpose of the report from Dr Ashkar was to assess the Respondent's conditions of custody after sentence and their psychological impact, and the conditions of the Respondent's custody since the lodgement of the Crown appeal and their psychological impact. Dr Ashkar concluded that the Respondent was experiencing significant symptoms of anxiety and depression because of the Crown appeal against his sentence. Dr Ashkar concluded that the Respondent was motivated to address his substance abuse and offending behaviour, and that he would benefit from timely access to treatment.
Evidence concerning the actual adverse impact of the pending Crown appeal upon the Respondent is relevant and admissible at the hearing of a Crown appeal: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 32 [141]; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 42-43 [174]-[178].
However, clear error has been demonstrated by the Crown, and there is no proper discretionary basis for this Court to decline to intervene and resentence the Respondent.
Having regard to the objective gravity of the Respondent's offence, the importance of general deterrence and the Respondent's subjective circumstances, and bearing in mind the statutory guideposts in the form of the maximum penalty and the standard non-parole period, I am satisfied that a head sentence of 10 years' imprisonment is appropriate before applying the 25% discount for the Respondent's plea of guilty. After discount, the head sentence will be one of seven years and six months.
The psychiatric and psychological evidence before this Court serves to fortify the conclusion that intervention is required to assist rehabilitative steps concerning the Respondent, and that this consideration supports a finding of "special circumstances" leading to a variation of the statutory ratio to provide for an extended period of parole supervision when the Respondent returns to the community.
If the s.44 statutory ratio remained in place, the non-parole period would be five years, seven months and two weeks. I would find special circumstances and fix a non-parole period of four years and 10 months in this case. In my view, no lesser non-parole period is appropriate having regard to relevant sentencing principles and, in particular, the objective gravity of the Respondent's crime.
It is appropriate to confirm the recommendation of the sentencing Judge concerning counselling and treatment for the Respondent both in custody and when admitted to parole.
Conclusion
I propose the following orders:
(a)Crown appeal allowed;
(b)sentence imposed upon the Respondent on 26 April 2012 in the District Court is quashed;
(c)for the offence under s.61J Crimes Act 1900, the Respondent is sentenced to imprisonment comprising a non-parole period of four years and 10 months, commencing on 2 September 2011 and expiring on 1 July 2016, with a balance of term of two years and eight months commencing on 2 July 2016 and expiring on 1 March 2019;
(d)confirm the recommendation to the Department of Corrective Services that whilst the Respondent is serving his sentence, and whilst he is subject to parole, he receive appropriate counselling and treatment for drug and alcohol addiction and also for any underlying psychological and psychiatric illnesses diagnosed in his case.
BELLEW J: I agree with Johnson J.
**********
Decision last updated: 21 November 2012
50
27
4