R v King

[2009] NSWCCA 117

New South Wales
Court of Criminal Appeal

CITATION:	R v Ronald KING [2009] NSWCCA 117 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	08/04/2009
JUDGMENT DATE:	23 April 2009
JUDGMENT OF:	McClellan CJatCL at 1; Grove J at 1; Howie J at 1
DECISION:	1. The appeal is allowed. 2. The sentence imposed in the District Court is quashed. 3. Taking into account the matters on the Form 1 the respondent is sentenced to a term of imprisonment comprising a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months. The sentence is to date from 28 November 2007. The respondent is eligible for release to parole on 27 May 2012.
CATCHWORDS:	Criminal Law - Crown appeal - Sexual intercourse with child under 10 years - respondent digitally penetrated 4-year old girl - suspended sentence imposed - whether manifestly inadequate - significance of denunciation in sentencing - whether offence low in scale of offending - whether admission by respondent to police warranted "Ellis discount" - significance of matters on Form 1 - whether discretionary reasons to dismiss appeal.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 - ss 3A(f), 21A(3)(g) Crimes Act 1900 - s 66A
CATEGORY:	Principal judgment
CASES CITED:	R v MacDonald (NSWCCA, unreported, 12 December 1995) MLP v R [2006] NSWCCA 271; 164 A Crim R 93 Mencarious v R [2008] NSWCCA 237 R v Johnson [2004] NSWCCA 140 R v Hibbert [2009] NSWCCA 20 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v MJR (2002) 54 NSWLR 368 R v Borkowski [2009] NSWCCA 102 R v Ellis (1986) 6 NSWLR 603 S v R [2008] NSWCCA 186 R v Zamagias [2002] NSWCCA 17
PARTIES:	Regina v Ronald King
FILE NUMBER(S):	CCA 2008/18041
COUNSEL:	N Noman - Crown A Haesler SC with R Burgess - Applicant
SOLICITORS:	S Kavanagh - Crown J McKenzie - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11/1404
LOWER COURT JUDICIAL OFFICER:	Geraghty DCJ
LOWER COURT DATE OF DECISION:	05/02/2009

2008/18041

McCLELLAN CJ at CL
GROVE J
HOWIE J

THURSDAY 23 APRIL 2009

R V Ronald KING

Judgment

Introduction

1 THE COURT: In R v MacDonald (NSWCCA, unreported, 12 December 1995) this Court stressed the importance of the sentence imposed upon an offender fulfilling all the purposes of punishment including the denunciatory purpose of sentencing. That is the purpose of punishment expressly stated in s 3A(f) of the Crimes (Sentencing Procedure) Act 1999. MacDonald was a decision dealing with a case of homicide but the principle for which it stands applies to sentencing for all serious offences. Society is entitled to have the sentence imposed denounce the criminal conduct of the offender and, if the sentence does not do so, there has been an error in the exercise of the sentencing discretion. The sentence imposed upon the respondent falls far short of appropriately denouncing his crime. This is only one of the errors committed by the sentencing Judge in the present case, but it is the most serious.

2 The respondent was sentenced for an offence contrary to s 66A of the Crimes Act being an offence of having sexual intercourse with a child under the age of 10 years. He also asked the sentencing judge (Geraghty DCJ) to take into account three offences on a Form 1. These were an act of indecency, a stealing from a dwelling and an attempt to take a motor vehicle. The maximum penalty prescribed for the s 66A offence is imprisonment for 25 years and there is an applicable standard non-parole period of 15 years.

3 The Judge sentenced the respondent to imprisonment for 2 years and suspended the sentence upon the respondent entering into a bond for a period of 2 years.

4 The Crown has appealed against the sentence alleging that it is manifestly inadequate. The respondent was sentenced on 6 February 2009. The Crown filed a Notice of Appeal on 3 March 2009 and it was served personally upon the respondent the next day.

5 The Crown has filed lengthy written submissions setting out a number of asserted errors made by the sentencing Judge as a result of which the Crown contends his sentencing exercise miscarried. However, ultimately the Crown is required to satisfy the Court that the sentence is manifestly inadequate.

6 The burden of determining this matter has been greatly relieved by concessions sensibly made by senior counsel appearing for the respondent, Mr Haesler SC. He has conceded that there were two substantial errors made by the Judge. The first is that his Honour erred in applying, what the Judge referred to as, the “Ellis discount” whereby he reduced what his Honour thought was the otherwise appropriate sentence by 25 per cent. The second concession is that the Judge was in error in suspending the sentence imposed. The effect of these concessions is that the sentence must be manifestly inadequate.

7 Further Mr Haesler SC accepted that it was open to this Court, in the exercise of its discretion, to intervene and re-sentence the respondent. It was conceded that, if the Court did uphold the Crown appeal, it would impose a sentence of full-time custody requiring the respondent to be returned to custody. After hearing the appeal and before reserving its decision, the Court indicated to Mr Haesler that the respondent should be present when judgment is delivered and he should expect to be returned to custody.

The facts

8 On 22 November 2007 the complainant, a girl of the age of 4 years, was staying overnight at the home of her grandmother. There were a number of other children staying at the premises including the complainant’s stepsisters, aged 12 and 14, and her sister, aged 3. All the residents of the house were in bed by 10.30pm. The complainant was in the front bedroom which she was sharing with another child. However, they had separate beds. There were lights on in the kitchen and a bathroom at the rear of the house.

9 The respondent entered the house through the rear door by opening the bottom half of it. He entered the bedroom in which the complainant was asleep. He turned off the night-light and removed his pants and underpants. He then removed the complainant’s pyjama pants and panties. The complainant woke and told him to go away. The respondent penetrated the child’s vagina with his finger. This conduct gave rise to the offence for which the respondent was to be sentenced. He masturbated while leaning over the child, ejaculating onto the bedclothes. This conduct gave rise to the act of indecency offence on the Form 1. He then left the room leaving behind his underpants.

10 He went into the kitchen and took a bottle of juice from the refrigerator and a can of drink from the bench. He took a number of sets of keys from a rack in the hallway. He walked to a car parked on the property and consumed the can of drink. He tried to enter the car with the sets of keys that he had taken but without success. He tried to use a pair of scissors but they broke. He then smashed the side window with a paver. He entered the vehicle and took off his singlet. Apparently he was unable to start the motor vehicle and left it with the door open. This conduct gave rise to the two dishonesty offences on the Form 1.

11 As soon as the respondent left, the complainant ran to the bedroom where her stepsisters were sleeping. She said that a man was in her bedroom, he had “licked my fanny” and wet her bed. At first her stepsisters did not believe her but later they saw the backdoor open. The complainant slept with them until morning.

12 The next day the complainant’s grandmother noticed the back door was open, saw keys on the grass outside with the can of drink and bottle of juice. She also saw the smashed window of the car. She then rang police. The complainant’s stepsisters told her what had happened the previous night. Police found the respondent’s palm print on a window of the car. DNA evidence ultimately identified the involvement of the respondent in the offence.

13 The complainant was taken to Grafton Hospital and then to Brisbane. She was examined by a paediatrician who observed “an area of increased erythema to the right of the hymen which was consistent with trauma”. This injury was consistent with symptoms of pain on urination and tenderness on examination. The trauma would have involved penetration through the labia but she could not tell whether there had been penetration of the hymen. The complainant was interviewed on 24 November and told police that the man “licked my fanny” and he “put his bits on me”. When asked what he used to lick her fanny she said “his finger” and “his hand”. She also told him that he “wet the bed……with his bits”.

14 The respondent was arrested on 28 November 2007. On two occasions while being conveyed in a police vehicle he asked to speak to one of the officers. The vehicle was stopped and the conversations tape-recorded. At one point in the trip he said to the officer, “….I didn’t rape that little girl, I just stuck my finger inside her”. He then asked for the vehicle to be stopped again and said:

I did not rape her but, I did go there and I did molest her but, I was leaning over and masturbating and then I was looking for the keys for the car, and I was trying to start the car. And then I fucked off and I left my shirt and shit there and then I went to my uncle’s. Then I slept in the car and that’s the dead set truth. That’s how I can remember the night.

15 He made other admissions and at one stage was asked how he was feeling. He replied:

Shittin’ just shittin’. Doing years, thinking 34, 30, 36, I’ll be getting out probably. I’m fucked just for doing that.

16 Police later conducted a formal interview during which the respondent adopted the conversations in the vehicle that had been recorded and made further admissions. At one stage he said:

I didn’t rape her. I was like more just masturbatin’ myself and playing with that slut………

Subjective matters

17 The applicant was aged 23 at the time of the offences. He is of the Aboriginal race. He has a criminal record that commenced in 1999 when he appeared in the Childrens Court for offences of break, enter and steal and malicious damage. Since then there have been repeated appearances in the Childrens Court and later in the Local Court for offences of dishonesty, principally for the theft of motor vehicles or for break, enter and steal offences. In 2003 he was given the benefit of a suspended sentence for taking a conveyance without the consent of the owner. In 2005 he was given a full-time custodial sentence for malicious damage and a break and enter. He breached parole when released under that sentence and spent about 8 months in custody serving the balance of his parole. In August 2007 he was before the Local Court for driving having never been licensed and drive with high range PCA. On each of those two offences he received a suspended sentence. He committed the offence, for which he is now before the Court, in November 2007 while both of those suspended sentences were current.

18 There was a pre-sentence report before the Judge. It noted that the respondent had been using alcohol and cannabis since Year 7 and was doing so daily at the time of the offences. He often consumed alcohol until he blacked out. The report indicates that twice in 2005 the respondent had been asked to leave rehabilitation courses because of his drug usage. His parole was revoked in 2006 for further offending.

19 The respondent normally resides with his parents and they attempt to support him, as does his extended family. The respondent reported a good relationship with his parents. He has never held paid employment although he completed a Horticulture and Chainsaw Course at TAFE. The respondent’s mother stated to the author of the report that his behaviour since the age of 14 had been of concern to her and her husband but they had been unable to control him even with professional help.

20 He was asked about his attitude to the offending and he said that he was “the scum of the earth” and that his behaviour was “disgusting”. He maintained that he would not have committed the offence had he been sober. He was assessed as unsuitable for community service or periodic detention. However he needed a high level of intervention by the Probation Service in areas including “Anger Issues” and “Alcohol and Other Drug Abuse”.

21 There was a report from a psychiatrist, Dr Westmore. The respondent reported to him that he had been drinking alcohol since the age of 14 and that he would drink anything he could get. He acknowledged that he had a problem with alcohol. He had used cannabis as a teenager and since had consumed other drugs including ecstasy and amphetamines. He had left school at the age of 10 and taught himself to read and write in prison. He denied any thoughts of sexual conduct with children. Dr Westmore concluded:

……..he is a young man with multiple problems of an intellectual, social and psychological type. He has medical problems of drug and alcohol abuse and, if his risks of reoffending are going to be reduced in any significant way, he will need to enter into sobriety. For that to occur he will require considerable support both while in custody and particularly on his release. He will need to attend a long term, community based drug and alcohol rehabilitation program.

22 There was a letter from an Aboriginal Elder who had known the respondent since he was a child as his sister was the respondent’s grandmother. He had found the respondent a good worker except when he consumed alcohol and drugs and became “a different person”. He indicated the support that the respondent has from his family and extended family.

23 The respondent gave evidence. When asked how he felt about the offence on the child, he said:

I feel absolutely ashamed of myself, embarrassed. I’m terribly sorry for what happened, I can’t imagine what that little girl’s going through at the moment. I’m just afraid and scared for what happened and ashamed and I’m very sorry.

He explained that he was on protection and could not have contact visits with his parents. He was usually in his cell for 23 hours a day.

24 His mother also gave evidence. She explained the effect of alcohol on the respondent and referred to his binge drinking until he had no more money. He would often ring her up at all hours of the day asking her to come and pick him up from wherever he had been drinking. Asked how the respondent felt about what he had done, she said:

Oh so ashamed, so hurt, so upset, he cries but we can do nothing the big glass……….it took a long time for him to even put his head up and talk to us through the glass…. because of his shame.

The “big glass” was a reference to the fact that the respondent did not have contact visits with his parents because of his protected status.

25 The respondent had been in custody since his arrest on 28 November 2007, and, as has already been noted, was on protection. The sentence imposed upon the respondent had to take into account the time he had served.

The grounds of appeal

26 As it must do so on a Crown appeal, the Crown asserts that the sentence is manifestly inadequate. In effect the submission is that the sentence imposed does not reflect the criminality of the respondent’s conduct and could not act as a deterrent to others who are minded to sexually assault young children. In particular the Crown relies upon both the maximum penalty prescribed and statements made by this Court on many occasions as to the seriousness of this type of conduct and the necessity that it be visited with condign punishment.

27 We have at the very outset of this judgment indicated our view that the sentence imposed failed to appropriately denounce the respondent’s conduct. In effect that is because a sentence of two years, even had it not been suspended, did not manifest the seriousness of what the respondent did and could not reflect the community’s legitimate sense of outrage at this gross violation of a four year old child sleeping in her grandmother’s house by an intruder in that house.

28 It does not matter that the respondent may have already in effect served a sentence of more than 14 months. In MacDonald the respondent had served 17 months in custody on remand, but this Court held that an order deferring sentence upon him, even in light of the time he had served in custody, was manifestly inadequate because a bond was an inappropriate response to the offence committed. Although, unlike the respondent in MacDonald, the respondent here was subject to a sentence that on its face also failed to reflect the seriousness of the respondent’s conduct. The suspension of the sentence simply increased the inappropriateness of the Judge’s response to the respondent’s criminality.

29 However, the Crown relies upon a number of what it asserts to be specific errors in the Judge’s exercise of discretion. It is unnecessary, because of the concessions made upon the respondent’s behalf, to deal with all the matters raised by the Crown. However, there is a significant dispute about whether the Judge’s assessment of the seriousness of the criminality of the respondent’s conduct was correct or at least should be allowed to remain. It is important to resolve this issue notwithstanding the concessions made by Mr Haesler because it is crucial to the sentence the Court is to impose on resentencing.

Objective seriousness of the offending

30 The Crown contends that the Judge erred in his assessment of the objective seriousness of the offence and his approach to the standard non-parole period. The Judge was aware that there was a standard non-parole period and that, while it did not strictly apply because the respondent had pleaded guilty, it remained as a “signpost”.

31 One of the difficulties in this matter is that the Judge did not approach the task of determining the relevance of the standard non-parole period in the way that decisions of this Court have required. There is a staged approach that the Judge failed to follow. That approach was set out in MLP v R [2006] NSWCCA 271; 164 A Crim R 93 at [33] and approved in Mencarious v R [2008] NSWCCA 237. The Judge was first to assess the objective seriousness of the offence, then to consider those matters in s 21A that either aggravated or mitigated the offending. The Judge next should have considered the matters on the Form 1 and the affect that they would have upon the assessment of the appropriate sentence for the offence. Then, having reached that stage and having determined the appropriate sentence with regard to the standard non-parole period, the Judge was to apply the discount for the plea of guilty. Depending upon the result, the Judge should ultimately have determined how the discounted sentence was to be served and, if necessary, what the appropriate non-parole period should be.

32 There are grounds of complaint by the Crown alleging the Judge’s failure to take into account the matters on the Form 1 and an alleged failure by the Judge to determine the sentence before deciding how it was to be served. But because of the manner in which the Judge went about his task, it is difficult to extract the relevant portion of the sentencing remarks and consider them in isolation. For example, there is a reference to at least one Form 1 matter when the Judge was assessing the objective seriousness of the sexual intercourse offence. The seriousness of the principal offence should be determined without regard to the matters being taken into account on the Form 1. However by reason of the concessions made, it is unnecessary to consider whether the Judge erred in the manner in which he determined to suspend the sentence.

33 The Judge, in assessing the criminality of the respondent, took into account the following matters: that the complainant was aged 4 and the respondent was aged 23; that it was digital penetration for a “very brief time”; there was no persuasion or threat involved since the child was asleep; there was no evidence of any major damage; the respondent was not in a position of trust but the offence occurred in a house; and there was no planning or pre-meditation since the offender was seriously affected by alcohol. His Honour concluded that the s 66A offence:

…………….seems to me to be well below the mid range of seriousness and towards the lower end of the scale for the reasons I have given.

34 The Crown submits that the Judge was in error in his assessment of the seriousness of the offending. Notwithstanding the earnest submissions made on behalf of the respondent to the contrary, we believe that the Judge’s determination of the seriousness of the s 66A offence was a gross underestimation. This Court has indicated that a determination of the objective seriousness of an offence is a finding of fact and generally there will be no interference with that finding unless it was clearly not open to the Judge to make it: R v Johnson [2004] NSWCCA 140. We are of the opinion that it was not open for the Judge to find that the offence was “towards the lower end of the scale” of offences falling within s 66A.

35 The Crown contends that the Judge must have placed too much weight on the fact that this was digital penetration, relying upon what was said by his Honour during the course of submissions. It is unnecessary to enter into a debate about the significance in sentencing of different types of penetration that fall within the concept of sexual intercourse: see R v Hibbert [2009] NSWCCA 20. The simple fact is that the respondent inserted his finger into the child’s vagina for however brief a period of time so as to cause her a physical injury with pain at least of a transient nature. He did so notwithstanding that the child awoke and told him to stop.

36 The respondent argues that it was open for his Honour to find that digital penetration was less serious than penile penetration and this was a very significant fact in the assessment of the degree of criminality. But it has been made clear that it is not a case of simply considering the nature of the penetration in isolation as being ranked in some form of hierarchy: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575. What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is. The simple fact is that had the intercourse in this case been penile penetration it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case the seriousness of the offence may have been above mid range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range.

37 What then were the matters that the Judge considered reduced the objective seriousness of the offence to the “lower end of the scale”? It could not be the age of the child. She was so far short of 10 years that this was a highly aggravating feature. As was the fact that she was in her grandmother’s house. These two facts alone seem to deny that the offence could fall into the low range of criminality.

38 The Judge noted that the respondent was not in a position of trust, but the absence of that aggravating feature was offset to a significant degree by the aggravating feature of the respondent being a person who had broken into the house as a burglar. He had no right to be in the house, let alone be in the presence of the child, and then to sexually assault her.

39 Although the Judge seemed to view it as a matter of mitigation that the act of intercourse lasted a “very brief time”, we do not consider that this is a matter of any great weight in this case. The penetration was long enough and deep enough to result in injury and pain to the child. That was the significant aspect of the act of penetration not the length of time over which it occurred.

40 The fact that the Judge had no evidence of prolonged damage to the child is of no mitigating value. He assumed there was some residual damage remaining, but only of a fairly transitory nature, “because the victim was unable to go to sleep and then continued to shake even though she was asleep”. That is a reference to the effects upon the child on the night of the attack. His Honour noted that he had no evidence before him of “major damage”. But, with respect, we do not understand what evidence he might have expected in respect of a four-year old child.

41 No one could know at the date of sentencing what emotional or psychological harm might have been occasioned to the child in the long term. The early complaint makes it obvious that the child knew that the conduct was wrong and that she found it distressing. It is significant that the act was committed by a stranger. It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender. It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious. It was the appreciation of the likelihood of harm resulting that Mason P saw as changing the community attitude to sexual assaults against young children: see R v MJR (2002) 54 NSWLR 368 at [57].

42 The Judge noted that it was a significant matter that the respondent remained in the presence of the child for sufficient time to masturbate over her and the bed. That of course was a matter on the Form 1 and that act of indecency could not be taken into account on an objective evaluation of the act of intercourse. But it was a matter of some seriousness that should have had a significant influence upon the final sentence imposed for the sexual intercourse offence.

43 The Judge took into account that there was no planning in the offence. Certainly the respondent was not a sexual predator, but planning or pre-meditation is not a factor that has any great significance in the evaluation of child sexual assault offences. They are usually opportunistic. But the offence was not an instantaneous reaction to seeing the child. The respondent took off his pants and underpants and removed the complainant’s pyjama pants and panties before sexually abusing her.

44 However there were offences on the Form 1 that had to be taken into account in the final determination of the sentence, and one of those was planned; the attempt to steal the vehicle. The respondent was in the house, in order to steal car-keys to take the motor vehicle parked at the premises. Although that was not a relevant matter in determining the seriousness of the sexual intercourse offence, it was relevant in determining the ultimate sentence to be imposed for that offence. The Judge never considered the impact of the Form 1 matters in assessing the appropriate sentence to be imposed for the sexual assault offence. We will return shortly to the significance of the presence of this motor vehicle offence and that of stealing in a dwelling on the Form 1.

45 The Judge took into account that the respondent had no prior record of such offending. That was true so far as sexual offences was concerned. But the respondent’s record generally was relevant and could not mitigate the offence. The sexual assault offence was committed during the course of an unlawful entry to the house in order to steal property. His record was clearly relevant to that aspect of the offending. The Judge never took into account the respondent’s criminal record except to find that “he is a young person without any prior convictions for such offences”. That was true so far as the offence was a sexual one. But, with respect, it misrepresented the seriousness of the respondent’s record and its impact upon sentencing for the sexual assault offence by reason of the presence of the Form 1 matters.

46 None of the matters we have mentioned either singularly or in combination could lead to a conclusion that the offence was low in the range of seriousness. To the contrary in combination they indicate that the sentence was significantly above that point. However, it seems that his Honour appreciated this fact. Having referred to the various circumstances of the offending that we have discussed, the Judge stated:

It is unimaginable what he did and a serious assault on a vulnerable person of the community. The community looks down on such offences with horror but nonetheless being a moment of unexplained and drunken madness it seems to me to be well below the mid range of seriousness and towards the lower end of the scale for the reasons that I have given.

47 This paragraph reveals a substantial error in the Judge’s assessment of the seriousness of the offending. Although his Honour found that the offence was “unimaginable” and was a “serious assault on a vulnerable person” and one that the “community looks down on…with horror”, he found it was at the lower end in criminality because “it was a moment of unexplained and drunken madness”. It is clear that the Judge gave substantial weight to the respondent’s intoxication as reducing the seriousness of his conduct. In light of the respondent’s history of alcohol abuse and the commission of crimes while intoxicated, there was no mitigation in the fact that he was intoxicated. It may explain what was out of character conduct so far as the sexual assault was concerned but it did not excuse it. By reason of his record and his failed chances at rehabilitation, his intoxication was aggravating so far as his entering the house in order to steal property was concerned.

48 The Judge’s assessment of the seriousness of the offence as being toward the lower end of the scale was unreasonable and cannot be allowed to stand. The offence was only slightly below mid range in seriousness.

The “Ellis discount”

49 As was noted in the introduction, Senior Counsel for the respondent conceded that the Judge erred in respect of discounting the sentence by 25 per cent for what the Judge found to be the respondent’s “disclosure of unknown guilt”. Notwithstanding the concession it is necessary to refer to the matter briefly.

50 As has been noted in the facts, the respondent made admissions to the police that he had penetrated the complainant with a finger and had masturbated over her. These admissions came because the respondent wanted to make it clear to the arresting police that he had not raped the complainant.

51 It was the Judge who, during the course of the sentencing hearing, raised the question whether the respondent was entitled to an “Ellis discount”. This use of this term is a misnomer as there is no such discount: see R v Borkowski [2009] NSWCCA 102. There is, however, a matter of mitigation that arises where an offender has revealed to investigating authorities unknown criminal conduct and it may, depending upon the circumstances, result in significant leniency: R v Ellis (1986) 6 NSWLR 603.

52 The Judge thought that the respondent’s admissions were so crucial that the prosecution could not have succeeded at trial on a charge under s 66A because of the age of the child. His Honour found that, apart from the admissions, the prosecution only had evidence sufficient to charge an indecency offence arising from the respondent masturbating in the bedroom. There was no basis for this finding. There was ample evidence to prove an offence under s 66A. There was early complaint that an intruder had touched her on the vagina. That complaint would have been admissible as to its truth. There was evidence to prove that the respondent was in the bedroom from the presence of his DNA. There was evidence of the injury to the child that was consistent with her being penetrated and consistent with her complaint that her vagina had been touched however she described the touching. In our opinion, rather than there being no evidence of sexual intercourse committed by the respondent, the circumstantial case was overwhelming.

53 But even had the Judge been correct in his assessment of the significance of the respondent’s admissions, that was not a finding that engaged the principle arising from the decision of Ellis: it was not the disclosure of otherwise unknown guilt. Nor does such a mitigating factor, even when it validly arises, justify the reduction of a sentence by a quantifiable discount: S v R [2008] NSWCCA 186; Borkowski, at [33] - [34].

54 Mr Haesler, while acknowledging that the approach taken by his Honour was erroneous, submitted that the admissions made by the respondent were of significance in the assessment of his remorse, as was the fact that the complainant and child witnesses were spared the necessity of giving evidence. That submission is valid but there was ample evidence of the respondent’s remorse for the sexual assault offence. That remorse was merely one of a number of factors to be considered in the synthesis leading to the determination of that sentence. We are of the opinion that his Honour gave far too much weight to that matter in his finding of mitigating factors to justify the sentence he imposed.

The effect of the Form 1 matters

55 The Crown argues that the matters on the Form 1 are not reflected in the sentence imposed. This is really a particular of the general complaint that the sentence is manifestly inadequate. However, the matters on the Form 1 had a significance that appears to have been overlooked by his Honour but is of relevance in determining the sentence to be imposed by this Court in resentencing the respondent.

56 Although the respondent was not being sentenced for the matters on the Form 1, they were of course relevant to the ultimate sentence to be imposed for the s 66A offence. The act of indecency was taken into account by his Honour when assessing the seriousness of that offence and that was technically an error. However, it was a serious matter that would have a significant effect upon the sentence to be imposed for the sexual intercourse.

57 But it was also of importance that the other two matters on the Form 1 were offences of dishonesty, one being the attempt to take the motor vehicle and the other a stealing from a dwelling. They were of course offences overshadowed in their seriousness by the sexual intercourse offence. But the presence of those offences meant that the Judge was at least misleading himself in stating that the respondent “was a young person without any prior convictions for such offences”. The respondent had multiple convictions for dishonesty offences including taking motor vehicles and stealing property from houses. His criminal history could not be disregarded simply because the Judge was sentencing him for sexual intercourse of a child. The prior record was relevant to the impact that those offences on the Form 1 should have on the sentence to be imposed for the sexual assault offence.

58 The Judge does not make reference to the significance of the respondent’s serious criminal record anywhere in his sentencing remarks, either as indicating that he could not expect leniency or, more significantly, that it was an aggravating feature having regard to the matters on the Form 1. The incident giving rise to the charges against the respondent was merely another instance of the respondent’s disregard of the property rights of members of the public both in relation to their homes and their motor vehicles. Rather than the lack of similar offending being used as a mitigating factor, as his Honour viewed it, the respondent’s criminal record was a matter that indicated specific deterrence was a highly relevant consideration in relation to his propensity of entering homes and stealing property when drunk.

59 But the failure of the Judge to have appropriate regard to the respondent’s criminal record also affected the Judge’s assessment of whether the respondent was likely to re-offend. The Judge stated:

As to his likelihood of re-offence, in view of his profound shame and reaction and because this was, it seems to me, a moment of drunken madness, disgusting as it all was, that there is little likelihood of him reoffending.

60 It is clear that the Judge gave no weight at all in this finding to the matters on the Form 1 or the fact that the principal offence was committed during the course of entering a home for the purpose of stealing. The mitigating factor in s 21A(3)(g) is not limited to a likelihood of re-offending in the particular way in which the person offended on the occasion for which he is being sentenced. It is re-offending in general. The overwhelming likelihood was that the respondent would continue to re-offend. He had been given opportunities in the past and refused to accept the restrictions of rehabilitation or parole. Efforts by his parents and professionals to address his drinking and hence his offending had proved fruitless. His Honour’s finding flew in the face of the psychiatrist’s assessment of the likelihood of the respondent’s further offending without treatment.

The Judge’s reasons for suspending the sentence

61 The Crown submitted that the Judge formed the view that a suspended sentence was warranted before having determined what the appropriate sentence should have been: see R v Zamagias [2002] NSWCCA 17. Although in light of the respondent’s concessions it is unnecessary to consider this complaint in detail, it has substance. The only reason the Judge gave for suspending the sentence was the fact that the respondent had already spent over 14 months in custody. Clearly that fact alone could not justify taking the course he did. But there are other findings of the Judge that should be considered in light of this Court’s need to re-sentence the respondent.

62 The Judge found that the respondent had “considerable mitigating factors”. Apart from the fact that the respondent had been serving his period on remand in protection, we cannot identify any matter of significant mitigation in his background or personal circumstances. His parents were loving, caring and supportive, and he had a considerable extended family from whom he could have obtained assistance. There are many persons of all races in the community who are not so fortunate. The respondent could no longer rely significantly upon youth, he was 24 at the date of sentencing, especially having regard to his record of offending. As we have noted, the respondent had been given ample opportunities to reform including being given two suspended sentences shortly before the current offence was committed. He had flouted them all.

63 One of the matters the Judge took into account as a matter of mitigation was the respondent’s stated intention of becoming involved in the CUBIT programme. However, that is a sex offender’s course conducted in prison. As the Judge had decided to impose a non-custodial sentence, the intention of the respondent to participate in that course was irrelevant.

The sentence is manifestly inadequate

64 It is unnecessary to deal any further with the Crown’s specific complaints. We have sufficiently indicated our view of the relevant sentencing considerations that should have been applied by the Judge and that this Court must take into account in re-sentencing the respondent. The sentence that was imposed was manifestly inadequate and to a very substantial degree. This is chiefly because the Judge was in error in his assessment of the seriousness of the sexual intercourse offence. But he also had insufficient regard to the matters on the Form 1 both as they impacted upon the sentence to be imposed for the sexual assault offence and in the manner in which they reflected upon other aspects of the sentencing of the respondent that we have discussed above. There was insufficient regard paid to the fact that the respondent was subject to suspended sentences at the time of the offending and the impact of that fact and his earlier parole violation on his prospects of rehabilitation.

The Court’s discretion to intervene

65 Because of the manner in which Mr Haesler argued his client’s case and the concessions he made, it has been unnecessary to refer to the principles that this Court applies in considering a Crown appeal against sentence. As we have already noted, the respondent’s counsel accepted that it was open to this Court to uphold the appeal and re-sentence the respondent. However, he relied upon a significant amount of material placed before this Court relevant to the sentence that this Court should now impose upon the respondent. We should note, however, that we do not accept Mr Haesler’s submission that the seriousness of the respondent’s offences fell well below mid range, if not at a low range. It is because the sentence imposed falls so far short of what was required, that we have formed the view that the Crown appeal must be allowed and the respondent re-sentenced to a very significant minimum term of custody.

66 The first of the material placed before the Court on behalf of the respondent was an affidavit by him. A significant part of it concerned the conditions of his custody prior to being sentenced by the Judge. He was threatened by other prisoners and verbally abused even while he was on protection because of the nature of the offence he committed. As a result he was placed into stricter security known as “non-association protection”. This resulted in him spending 23 hours of the day in his cell. He has been moved between various prisons and his form of custody changed as a result. It was at Grafton where he was physically assaulted receiving a laceration that required 5 sutures. Again he was placed into non-association protection. We accept that for some time of his sentence he will spend it in harsher conditions than other child sex offenders.

67 After his release following sentencing by the Judge the respondent became for all intents and purposes housebound in his family’s home because of his fear of personal attack by members of the public as a result of media coverage given to the sentence imposed and criticism of it. Examples of the response to the sentence in the written media have been placed before the Court.

68 The affidavit contains the following paragraph:

Before I was sentenced I was expecting to spend more time in custody. I had prepared myself for the worst. I had brought many appliances like a rice cooker and a jug and a television to make my gaol easier. I was shocked and surprised and happy when I got the suspended sentences because I knew I was going home. At the same time I was in no rush because I was scared about public reaction. When the Crown appealed my head dropped. Not knowing what is going to happen, and not knowing if I will go back to gaol, have stopped me from everything. I can’t make plan(s) for the future and can’t even leave the house because I’m too embarrassed. Both me and my family are living in limbo.

69 This is an example of the effect upon an offender of a court imposing a sentence that is manifestly inadequate. It has been recognised by this Court that such a sentence does the offender no favour. In this case the effect upon him was severe if not cruel. Public outrage at the sentence was turned upon the offender such that he understandably feared physical punishment at the hands of vigilantes. Had a sentence that appropriately denounced his conduct been imposed upon him, he would have been spared further public humiliation and anger. He could have simply got on with serving his sentence as he had been prepared to do. The respondent has always been realistic about the gravity of his offending and the sentence that he expected to be imposed upon him. As has already been noted, he said to police shortly after his arrest, when asked how he felt about what he had done:

Shittin’ just shittin’. Doing years, thinking 34, 30, 36, I’ll be getting out probably. I’m fucked just for doing that.

70 However, notwithstanding the matters raised in the affidavit, and with real sympathy for the position of the respondent due to the manifestly inadequate sentence imposed upon him that neither he nor his legal representative encouraged or expected, a sentence of some severity must be imposed. The term of imprisonment that ought to have been passed upon the respondent by the Judge after a 25 per cent discount should have been in the vicinity of 9 years. As there were no special circumstances warranting a reduction in the minimum period of custody, the non-parole period should have been 6 years and 9 months. Such a sentence would have shown due regard to the standard non-parole period notwithstanding that it was a sentence imposed after a plea.

71 However, taking into account the disappointment of the respondent, a degree of extra-curial punishment and the fact that this is a Crown appeal, the Court will impose a sentence of significantly less severity than should have been imposed by the Judge. The sentence will be backdated to the date of the respondent’s arrest notwithstanding that he spent a short time at liberty as a result of the sentence imposed upon him. He will receive the benefit of a finding of special circumstances because this is a Crown appeal and in a last effort to help him to turn his life around.

72 The Court makes the following orders:

1. The appeal is allowed.

2. The sentence imposed in the District Court is quashed.

3. Taking into account the matters on the Form 1 the respondent is sentenced to a term of imprisonment comprising a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months. The sentence is to date from 28 November 2007. The respondent is eligible for release to parole on 27 May 2012.
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