R v Lee
[2003] NSWCCA 63
•17 March 2003
CITATION: R v Lee [2003] NSWCCA 63 HEARING DATE(S): 17 March 2003 JUDGMENT DATE:
17 March 2003JUDGMENT OF: Wood CJ at CL at 23; Studdert J at 1 DECISION: Leave to appeal granted; appeal dismissed. LEGISLATION CITED: Crimes Act, s 61N(2) PARTIES :
Regina v John Andrew Lee FILE NUMBER(S): CCA 60012/03 COUNSEL: D.M. Howard (Crown)
In personSOLICITORS: S.E. O'Connor (Crown)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 01/21/3343 LOWER COURT
JUDICIAL OFFICER :Payne DCJ
60012/03
Monday 17 March 2003WOOD CJ at CL
STUDDERT J
1 STUDDERT J: The applicant, John Andrew Lee, pleaded guilty before her Honour Judge Payne to an offence of assault with act of indecency. The victim was a child, eight years of age. The maximum penalty for this category of offence under s 61N(2) of the Crimes Act is ten years imprisonment. The sentencing judge imposed a sentence of four years imprisonment and fixed a non-parole period of two years commencing on 2 August 2001 and expiring on 1 August 2003. The applicant now seeks leave to appeal against the sentence imposed.
2 The objective facts were recorded in a document tendered by the Crown without objection and marked Exhibit A. They are recorded in her Honour’s judgment and I set them out here:
- “Between 3.30pm and 4pm on Wednesday 18 July 2001, [the victim], a young child, eight years of age, was at home with her father in a unit at Lakemba. She decided to go out to the front of the units to wait for her mother to arrive home from work. She told her father where she was going. At the front of the units [the child] sat on the fence, next to the letterboxes. Whilst she was sitting there she saw a man parking a dark blue Toyota Corolla outside the block of units. He was alone in the car. This man was the applicant. [The child] had not seen him before. The applicant parked the car and got out, and went to the rear of the block of units where the victim lived. [The child] then went from the front of the block of units towards the rear, as she thought that possibly her mother would arrive from the rear entrance. At this point she saw the applicant and he said “hello.” [The child] then returned to the front of the units, near the letterboxes, to again wait for her mother. The applicant approached her and asked her for a photograph. She saw that he had a medium sized rectangular shaped camera with a red button. Initially [the child] thought the prisoner wanted her to take a photograph of him, so she went with him. Together they walked to another block of units a couple of doors down the street. The applicant led [the child] to the stairwell of a particular block and up to the landing on the second level. [The child] sat on the step. The applicant then asked her to stand up and showed her by actions how he wanted her to pose for the photographs, one with hands on the hip and the other in a standing pose. [The child] posed as requested and the applicant purported to take photos of her. The applicant then approached [the child] and undid the string tie of her pants. He then placed his hand inside her underpants and fondled her on the vagina, directly on the skin. [The child] then shouted and the applicant pulled his hand out. She ran away down the stairs and the applicant chased her. [The child] ran back towards a block of units. At that time her uncle had just arrived in his car. The prisoner immediately left the area.”
3 There is no need to review the circumstances in which the applicant came shortly thereafter to be apprehended.
4 The sentencing judge correctly described this offence as objectively serious. The sentencing judge was also asked to take into account an offence of aggravated indecent assault committed on 23 January 2001. This time the victim was a child under the age of sixteen, so the maximum penalty was one of imprisonment for seven years. The circumstances of this offence as provided to her Honour were that the applicant posed as a medical practitioner, gaining entry to the victim’s house whilst she was home alone. She asked the victim to remove her clothes and twice touched her side near the vicinity of her vagina with a cotton bud. He later left the house at the victim’s request and later still telephoned her, telling her not to inform her parents as she might go to a children’s prison because it was illegal for children to be home by themselves under the age of sixteen. That victim was aged ten or eleven, and again her Honour correctly described that offence as objectively serious.
5 The applicant was born on 9 September 1964. He is a baker by calling. Her Honour found that he pleaded guilty at an early time and her Honour concluded, in my view appropriately, that utilitarian considerations warranted a discount of twenty per cent. Her Honour also took into account that they were two young victims who were spared the ordeal of having to give evidence about what the applicant had done to them. Her Honour also found that the applicant was contrite and remorseful in respect of the commission of these crimes.
6 However, the applicant’s criminal history was unfavourable. He was on bail at the time of the commission of the offence charged concerning some other matter in respect of which he was later acquitted. Apart from being on bail, the applicant was subject to a suspended sentence at the time of the commission of the two offences. The applicant had been sentenced in Queensland, with the sentence running from 21 September 1999 to 20 September 2002. The terms of the sentence required him to be in custody for six months and then the balance of the sentence was suspended. The offences that attracted that sentence were two offences of indecent treatment of a child under the age of sixteen. Those offences arose out of the one incident that involved two children who the applicant approached in the vicinity of a shopping centre, taking photographs. The offences involved the exposure of the vagina of a twelve year old victim and the exposure by the applicant of his penis.
7 Her Honour correctly identified, as important considerations in the sentencing process her Honour was required to take, the protection of the community and deterrence. The child was lured from outside her home in broad daylight. The second offence on the schedule occurred when the victim was in her home and the applicant entered it, and into the events that there occurred.
8 At the time of sentence the applicant was thirty-seven years of age, and documentary material was introduced in the applicant’s case comprising a military history from 1990 to 1994, a psychologist’s report from Ms Robilliard and a psychiatric report from Dr Carne. There was also evidence of the difficult custodial sentence in which the applicant found himself at Parklea, alternating between protection and strict protection. The judge also found that the applicant had been sexually assaulted whilst in custody.
9 The applicant gave evidence on the sentencing procedure and expressed his abhorrence concerning his behaviour. The judge accepted this to be genuine and found the applicant had accepted responsibility for his behaviour.
10 In structuring the sentence imposed, her Honour found special circumstances, recognising the need for a considerable period on parole.
11 The applicant has represented himself before this Court. He has presented a number of documents to this Court, headed as follows:
(i) defence submissions on appeal on sentence;
(ii) application for leave to appeal against sentence;
(iii) life at present in grave danger;
(iv) psychologist’s report inaccurate;
(v) excessive sentence;
(vi) objection to Crown tendered evidence at sentence;
(vii) fresh evidence, medical;
(ix) extreme unfairness and bias by sentencing judge.(viii) incompetence of counsel;
12 The applicant has supplemented that material today by presenting a further medical report.
13 Nothing in the material the applicant presented for the Court’s consideration occasions me any disquiet about the sentence which was imposed.
14 The applicant has made allegations in these documents about incompetent representation, but a reading of the transcript of the proceedings before the sentencing judge does not invite a conclusion of such incompetence. The applicant asserts he was told he should agree with whatever the prosecutor asked when he gave his evidence in court, but it is to be observed that the applicant gave evidence under oath, and this Court should not readily conclude that he did not tell the truth. Nor should it conclude, certainly in the absence of evidence to establish the contrary, that the applicant’s counsel acted improperly.
15 The applicant made complaint today that his legal representative on sentence did not obtain the letter from Dr Hassan that the Court has today. That would have revealed that the applicant had taken Viagra and some other drug, and that he was having some psychiatric treatment, or was about to. A further complaint was made that the applicant’s solicitor did not ask questions about matters involving the scheduled offence. These omissions do not lead me to conclude that there was irresponsibility or incompetence in relation to the course taken by the applicant’s counsel.
16 Complaint is also made in the written material presented that the psychologist’s report should be viewed as null and void. This is because the applicant asserts he was not in a fit state to be interviewed when he was interviewed. I must say that is not conveyed in a reading of the reports. For instance, I note Ms Robilliard reported that when seen, the applicant co-operated fully throughout four hours of interview and testing. She went on to say that the applicant went into great detail to explain his family background. The report provided by this experienced psychologist records that conventional testing measures were utilised before the psychologist expressed her opinion. Dr Carne was able to prepare a detailed report which again contains nothing to indicate that the applicant was not in a fit state to be interviewed.
17 Turning to the complaint that evidence as to prior criminal history ought not to have been admitted into evidence, the evidence as to those earlier offences was certainly relevant and was certainly admissible.
18 Complaint is made about the victim impact statement and the applicant has complained that a statement should have been taken earlier than was. In any event, the statement revealed that the child who had been assaulted was still being left on her own at the home and was allowed to move about outside the home by herself. There is no basis however for concluding that the judge who sentenced the applicant gave undue weight to that victim impact statement.
19 The applicant has submitted that the sentence was excessive and has referred to some decisions in other cases. The sample of cases provided by the applicant is very narrow, and I accept the Crown’s submission that it does not provide any real assistance to this Court. As has been pointed out to the applicant during his submissions, each case has to be determined on its own particular facts and circumstances. In my opinion, the sentence that was here imposed was well within the bounds of her Honour’s sentencing discretion.
20 Then there is the complaint of extreme unfairness and bias by the sentencing judge. There is no support in what the applicant has written for the assertion that the sentencing judge was biased or unfair, and when one considers the sentencing remarks which are before this Court, it is apparent that her Honour carefully weighed the objective and subjective features of this case. Those carefully expressed remarks record no error of approach. If I understand correctly, it is the applicant’s contention that the judge must have become biased and unfair because of evidence introduced in a voir dire procedure concerning two other matters in relation to which the applicant had been charged and acquitted or discharged. However, there is absolutely nothing in her Honour’s remarks on sentence to indicate that the judge had taken any such irrelevant material into consideration.
21 There is a further document which has been introduced into evidence concerning assistance or intelligence gathering undertaken by the applicant for the New South Wales Police and the Corrective Services. In its form, the document provided would not permit this Court to make a useful evaluation of any such services, but in any event, this is not the appropriate time for this Court to consider such material. That material of assistance would, as it were, be “in the bank” as far as the applicant is concerned were he again to come before a court, but it does not bear upon the task that the Court presently has before it of determining whether or not there was error or miscarriage in the sentencing procedure before her Honour Judge Payne.
22 Having considered all the submissions, both oral and written that have been placed before this Court by the applicant, there has not been to my mind any error demonstrated in the sentencing process, nor any error in the sentence that was arrived at. I would propose that leave to appeal be granted but that the appeal be dismissed.
23 WOOD CJ AT CL: Yes, I agree, and the order of the Court will be as proposed. I would however propose that we should direct that the documents included under point 7 of the applicant’s submission and the summaries of intelligence gathered should be extracted from the files and placed in an envelope, sealed and kept with the Court papers. They will of course be available in due course to the Parole Board, but for the applicant’s security they should remain sealed and on the Court file, only to be released by order of a judge of this Court.
Last Modified: 03/24/2003
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