R v Leighton

[2016] NSWCCA 215

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Leighton [2016] NSWCCA 215
Hearing dates:	30 September 2016
Date of orders:	07 October 2016
Decision date:	07 October 2016
Before:	Hoeben CJ at CL at [1] Harrison J at [52] Campbell J at [53]
Decision:	Crown appeal dismissed.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – offender convicted after trial of five historical indecent assault offences – three victims being young women aged between 10 and 12 – offender was a dentist who touched victims while they were affected by nitrous oxide gas – offender elderly and suffering significant ill health – application of sentencing practices prevalent at time of offending – whether sentence manifestly inadequate – Crown appeal dismissed.
Legislation Cited:	Crimes Act 1900 – ss 6, 61E, 76 Crimes (Sentencing Act) Procedure Act 1999 – s 3A Criminal Appeal Act 1912 – s 5D
Cases Cited:	CMB v Attorney General for New South Wales [2014] HCA 9; 89 ALJR 407 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Harris v R [2015] NSWCCA 81 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 MPB v R [2013] NSWCCA 213; 243 A Crim R 576 Makarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v R [1988] HCA 70; 166 CLR 59 Nguyen v The Queen [2016] HCA 17; 90 ALRJ 595 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Dinsdale [2000] HCA 54; 202 CLR 321 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Wong v The Queen [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	Regina – Appellant Crown Rodger Leighton - Respondent
Representation:	Counsel: V Lydiard – Appellant Crown L Fernandez - Respondent   Solicitors: Solicitor for Public Prosecutions – Appellant Crown SE O’Connor - Respondent
File Number(s):	2012/282749
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 10 June 2016 Before: Craigie SC DCJ File Number(s): 2012/282749

Judgment

1. HOEBEN CJ at CL:

Proceedings

The Director of Public Prosecutions (the appellant) appeals under s 5D of the Criminal Appeal Act 1912 against the sentences imposed upon the respondent on 10 June 2016 by Craigie SC DCJ in the District Court of New South Wales after the respondent had been convicted by a jury of five counts of indecent assault.

2. The offences for which the respondent was sentenced were:

Counts 1, 2 and 3 – Indecent assault of a person under the age of 16 years contrary to s 76 of the Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years (victim RC).

Count 4 – Indecent assault of a person under the age of 16 years contrary to s 76 of the Crimes Act 1900 for which the maximum penalty is imprisonment for 6 years (victim CP).

Count 6 – Indecent assault upon a person under the age of 16 years contrary to s 61E of the Crimes Act 1900 for which the maximum penalty is imprisonment for 6 years (victim AM).

3. The individual sentences imposed by his Honour were:

Count 1 – Imprisonment with a non-parole period of 6 months commencing 26 November 2015 and expiring 25 May 2016, with a balance of term of 6 months expiring 25 November 2016.

Count 2 – Imprisonment with a non-parole period of 7 months 15 days commencing 11 November 2015 and expiring 26 June 2016 with a balance of term of 7 months 15 days expiring 10 February 2017.

Count 3 – Imprisonment with a non-parole period of 7 months 15 days commencing 27 March 2016 and expiring 26 June 2016 with a balance of term of 7 months and 15 days expiring 26 June 2017.

Count 4 – A fixed term of imprisonment of 9 months commencing 12 December 2015 and expiring 11 September 2016.

Count 6 – A fixed term of imprisonment of 9 months commencing 11 March 2016 and expiring December 2016.

4. The effect of those sentences was imprisonment with a non-parole period of 1 year and 1 month commencing 11 November 2015 and expiring 10 December 2016 with a balance of term of 6 months and 16 days expiring on 26 June 2017.

5. The Appellant relies upon the following grounds of appeal.

Ground 1 – His Honour erred in imposing a sentence for Count 4 which was manifestly inadequate.

Ground 2 – His Honour erred in failing to partially accumulate Count 4 on the other sentences.

Ground 3 – His Honour erred in failing to have proper regard to the principle of totality.

Ground 4 – The sentence imposed is manifestly inadequate.

6. Initially the appellant relied upon a single ground of manifest inadequacy in relation to which a Notice of Appeal was served upon the respondent on 16 July 2016. The further grounds of appeal were filed on 29 August 2016.

Factual background

7. At all relevant times the respondent practised as a dentist. The victims of the offences were three children aged between 10 and 12. Other alleged victims gave evidence in relation to tendency. All had been patients of the respondent as children in his dental practice. The offences were committed at various times during the course of dental treatment of the victims. All the offences involved the administration of nitrous oxide (laughing gas) by the appellant to the victims.

8. Counts 1, 2 and 3 were offences committed against RC who was aged 12 when the three offences were committed against her on separate occasions between 1 January and 31 December 1973.

9. The offence in Count 1 occurred when RC, as a 12 year old high school student, had been sent to the respondent by her parents for an assessment of her dental health. She subsequently returned on three further occasions for treatment. On the first of those occasions, the respondent administered nitrous oxide gas via a mask. Once RC was sedated, the respondent commenced to fondle her breasts. He also rubbed her vagina on the outside of her underwear and while molesting her in this manner, rubbed his groin against her shoulder.

10. The offence in Count 2 was committed when RC again attended the respondent’s practice. Nitrous oxide was administered. While RC was under the effect of the gas, the respondent fondled her breasts and rubbed her vagina with his hand on the outside of her underwear, also rubbing his groin on her shoulder.

11. The offence in Count 3 occurred on the occasion of RC’s last appointment with the respondent when he fondled her breasts and rubbed her vagina on the outside of her underwear. He also rubbed his groin against her shoulder. Nitrous oxide was used on this occasion.

12. The respondent at the time of these offences was aged between 36 and 37.

13. The offence in Count 4 was an indecent assault committed upon CP between 1 January and 31 December 1975. CP was then aged 10. As a consequence of statutory amendments, which came into effect from 2 August 1974, the maximum penalty for the offence had increased from five years to six years.

14. Nitrous oxide was administered to CP. She had a protective plastic cape placed over the school uniform she was wearing and her hands were placed either side of her body. At a point when the dental nurse had left the room and CP was still under the effects of the gas, the respondent put his hands under the cape and inserted his fingers in her underwear. He commenced to rub the outside of her vagina bringing about skin on skin contact with his hand. At the time of this offence, the respondent was aged between 38 and 39.

15. The offence in Count 6 related to an incident which occurred between 1980 and 1984. The age of AM over that period when she was a patient of the respondent was between 7 and 12. When she was having her baby teeth removed and while she was under the effect of nitrous oxide administered by the respondent, he touched her clothing in the area of the vulva for 10 to 30 seconds pressing down firmly upon that part of her body.

16. Because the age of a victim is a potential matter of aggravation, his Honour dealt with Count 6 on the basis that the victim was not younger than 12 years at the time of the offending.

Sentence proceedings

17. His Honour noted that the matter had proceeded to trial and verdict and that accordingly the respondent was not entitled to any discount for a plea of guilty.

18. Because of the tendency evidence and because no submission was made to the contrary, his Honour found that the respondent’s offending could not be regarded as isolated incidents. His Honour noted a concession on behalf of the respondent that there should be some accumulation in relation to the individual sentences.

19. His Honour characterised the objective seriousness of the offending as:

“I find that although there is a variation as to the nature of the acts committed against the young patients who were the victims in this instance each of the offences constituted in its own right a gross and disgraceful breach of trust both at the time that the offences were committed and in the present climate of greater public awareness of such matters. Any reasonable person would both repudiate the offender’s conduct and expect an appropriately severe and denunciatory sentence to be imposed.” (Sentence judgment 6.6)

20. His Honour noted that the respondent had had the benefit of decades of delay before the offences came to light which enabled him to continue undisturbed with his own life and left his victims with a legacy of confusion, distress and shame. In that regard, his Honour also noted that the respondent was to be sentenced in accordance with the sentencing practices at the time of the offending and not those that currently prevail which are substantially more severe.

21. His Honour specifically referred to the feelings of shame which were described by some of the victims and their confusion at what had happened to them and why. His Honour took into account that the harm done in such instances was inherently serious and that the continuing effect on victims of such offending should not be understated. His Honour referred to the gross breach of trust which arose from the respondent’s role as a professional and the access which this gave him to young female victims. His Honour referred to the inherently vulnerable position of the victims because of their age, their reclined position in a dentist’s chair, and because of the administration of the nitrous oxide gas. His Honour concluded that the moral culpability of this offending was high and required strong denunciation.

22. His Honour took into account that it was well settled by appellate authority that historical offences of this kind required that an offender be sentenced in accordance with the law and sentencing practices applicable at the time when the offences were committed. His Honour specifically referred to R v MJR [2002] NSWCCA 129; 54 NSWLR 368 and MPB v R [2013] NSWCCA 213; 243 A Crim R 576. The effect of those decisions was that sentencing outcomes for offences committed during this period would often produce non-parole periods of between 35% and 50% of the head sentence and that the sentences themselves were much lower than those currently imposed. His Honour accepted that he had to take these matters into account when sentencing on this occasion.

23. His Honour concluded:

“Although sentencing practices may well have changed, it is nonetheless also the case that the offender’s conduct, even giving effect to the sentencing approaches at the time he offended, as I am required to do, remains such as to call for fulltime sentences of imprisonment.” (Sentence judgment 14.1)

24. In relation to the respondent’s subjective case, his Honour was not prepared to find that he had expressed any remorse or contrition for his offending. His Honour gave little weight to the respondent’s previous good character and past reputation, given the nature of the offending and the fact that it was the respondent’s professional status that operated to prevent the offending come to light.

25. His Honour took into account that the respondent was a person of advanced age at the time of sentencing, having been born in July 1936, i.e. he was shortly to turn 80. The respondent’s health was not good. He had obvious mobility problems and required the aid of a stick in order to walk and steady himself. His Honour described his appearance as that of a frail and vulnerable older man. This was particularly so after the respondent was taken into custody on 11 November 2015 after the jury verdict. His Honour observed that since that time the respondent had appeared increasingly frail and had experienced a very considerable loss of weight.

26. The respondent was a diabetic and was suffering a mild neurocognitive disorder, possibly indicative of an early age related neurodegenerative condition. It was against that background that his Honour concluded that the respondent’s age and health issues were matters relevant on sentence, primarily on the basis that imprisonment would be more onerous for a person of that age with those conditions.

27. His Honour noted that hardship to the respondent’s wife would arise as a result of him being sent to prison. The respondent and his wife had been married for 53 years and she suffered from Parkinson’s disease. Until his imprisonment the respondent had been her carer. His Honour noted that Parkinson’s disease involved progressive cerebral palsy. His Honour was not satisfied that this hardship amounted to exceptional circumstances so as to justify a reduction in sentence for that reason.

28. His Honour was prepared, however, to take that hardship into account, i.e. the respondent’s separation from his wife in the particular circumstances of their stage in life, as one of the circumstances which would make imprisonment more onerous for him. His Honour found that the respondent’s medical condition and the likely negative attitudes of other prisoners were matters of inherent hardship for him, which together with his age, would make imprisonment more difficult.

29. His Honour disregarded the delay in sentencing as a mitigating factor. His Honour did so because the delay was merely a consequence of the nature of the offending and because shame and embarrassment had dissuaded and discouraged the victims from reporting the offences. His Honour found that the delay had favoured the respondent in that he had the benefit of being able to live for a considerable period of time a normal, professional and personal life.

30. His Honour set out his conclusions as follows:

“In summary I find these to be each appalling offences. However the restrictions upon the Court imposed by the proper application legal principle will have the result of sentences likely to disappoint those now used to sentencing patterns far removed from those that applied in less enlightened and informed times. …

Although the sentences that I am constrained to impose will fall well short of what would be imposed but for the restraint that the law requires of me in imposing punishment reflective of earlier times. Those sentences will, in my view, remain as something that will sit heavily on an older and humiliated offender in ill health and unfortunately mindful also of the consequences of his imprisonment for others.” (Sentence judgment 21.1)

31. By reference to s 3A of the Crimes (Sentencing Act) Procedure Act 1999 his Honour had regard to the fact that the imposition of a custodial sentence so late in the respondent’s life would have a significant deterrent effect. There was no requirement for specific deterrence given the respondent’s age and ill health. There was considerable disgrace associated with the findings of guilt in the proceedings so as to in part render the respondent accountable for his actions. A custodial sentence would have the effect of denouncing in a public way the respondent’s offending. His Honour took into account the harm done to the victims and the public interest in an adequate sentence being imposed.

THE APPEAL

Ground 1 – His Honour erred in imposing a sentence for Count 4 which was manifestly inadequate.

Ground 2 – His Honour erred in failing to partially accumulate Count 4 on the other sentences.

Ground 3 – His Honour erred in failing to have proper regard to the principle of totality.

32. The Appellant dealt with these three grounds of appeal together.

33. The Appellant submitted that the offending in Count 4 was particularly serious, even without regard to the victim’s age and the gross breach of trust involved in the respondent’s conduct. This was because there was skin to skin contact in the area of victim’s vagina. The Appellant submitted that despite his Honour referring to these matters, the sentence for Count 4 was manifestly inadequate and it was totally subsumed in the sentences for the other offences. The Appellant submitted that his Honour erred in imposing a sentence in respect of Count 4 which was inadequate and in failing to accumulate that sentence in any way on the sentences for the other counts.

Ground 4 – The sentence imposed is manifestly inadequate.

34. The Appellant acknowledged that the respondent’s advanced age and the application of sentencing practices at the time were important factors. It submitted that despite these matters, the objective seriousness of each of the offences was grave. It submitted that the victims’ powerlessness went beyond their age and the respondent’s profession and extended to their physical inability to resist the sedative effects of the nitrous oxide.

35. The Appellant submitted that the respondent was sentenced for five offences involving three complainants and offending behaviour which took place over 11 years. Each of those offences was objectively seriousness and involved a high level of moral culpability. It submitted that even though the maximum penalties were modest, i.e. ranging from five to six years, had they been properly taken into account the respondent would have received a longer total sentence.

36. The Appellant accepted that if the Court found error had occurred, and that manifest inadequacy was established, it was still necessary for the Crown to negate the residual discretion of the Court not to re-sentence (CMB v Attorney General for New South Wales [2014] HCA 9; 89 ALJR 407 at [36]). In that regard, the Crown submitted that this matter was one in which the Court should intervene because the sentences were so inadequate as to amount to “an affront to the administration of justice” and were inconsistent with the community’s expectation of appropriate sentencing.

Consideration

37. The Appellant’s basic complaint is that the sentence is manifestly inadequate. The additional grounds, in effect, particularise why the Appellant submits that such a finding should be made.

38. A claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (R v Dinsdale [2000] HCA 54; 202 CLR 321 at 325; Makarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58]).

39. A claim of manifest inadequacy is a conclusion and does not depend upon the establishment of specific error (R v Dinsdale at [6]). In Harris v R [2015] NSWCCA 81, Adamson J (with whom Basten JA and R A Hulme J agreed) observed that where there is in substance only one ground of appeal, manifest inadequacy, identification of specific error is not required. Her Honour also noted that nonetheless identification of specific error may assist to explain why a sentence is manifestly inadequate.

40. The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having a duty of sentencing convicted persons. Crown appeals “do not extend to the general correction of errors made by sentencing judges” (Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [36]; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70]).

37. The Appellant does not in terms challenge his Honour’s finding as to the objective seriousness of the offending and the moral culpability of the respondent. It does not challenge that his Honour had to apply sentencing practices prevalent at the time of the offending. It does not challenge his Honour’s findings as to the applicant’s ill health and its effect, together with age, on him. It does not challenge his Honour’s finding that the respondent’s time in prison will be more onerous for him. What the Appellant essentially submits is that the sentence ultimately imposed does not properly reflect those findings.

38. His Honour was confronted with a difficult sentencing exercise. For the reasons identified by his Honour, involving breach of trust and the vulnerability of the victims, the moral culpability of the respondent was high. While not minimising in any way the effect of the offending on the victims, the offences themselves were in the lower range of such offending. Except for one instance, they involved contact only with the clothing of the victim. While this was undoubtedly a confronting episode with potentially harmful consequences for the victims, it is objectively at a much lower level of offending than most of the indecent assault offences which come before this Court.

39. The other matters which his Honour was obliged to take into account favoured the respondent. As his Honour set out in some detail, sentencing practices at the time of the offending were significantly more lenient than they are now. This is demonstrated by the comparatively modest maximum sentences for these offences. His Honour was also obliged to take into account the important aspects of the respondent’s subjective case, i.e. his advanced age and significant ill health and the effect that this would have on him under prison conditions.

40. What his Honour had to do was to reconcile those conflicting considerations in order to formulate an appropriate sentence. This involved the process helpfully described by Gleeson CJ in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75] where his Honour said:

“75   … there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.”

45. Observations to similar effect were made by the plurality (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Mill v R [1988] HCA 70; 166 CLR 59 at 63 where their Honours said:

“8   … "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.”

46. It is well established that questions of accumulation are, subject to the application of established principle, discretionary. There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [47]; R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52].

47. Most recently in Nguyen v The Queen [2016] HCA 17; 90 ALJR 595 at [37] Bell and Keane JJ said:

“37   Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The Sentencing Act does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary. The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant's offending behaviour. …”

48. In the same case at [64] Gageler, Nettle and Gordon JJ said:

“64   Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence[81] while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.”

49. A specific complaint by the Appellant was that the sentence imposed in relation to Count 4 was subsumed by the sentence imposed in relation to Counts 1, 2, 3 and 6. That submission is not made out when one looks at the order in which his Honour pronounced the sentences. In doing so, his Honour imposed a sentence for Count 4 which was partially cumulative on the sentence for Count 1, which was itself partially cumulative on the sentence for Count 2. The sentence imposed for Count 4 was a fixed sentence of 9 months and (along with the sentence for Count 6) was the longest of all the non-parole periods imposed. The sentence for Count 4 commenced after the sentences for Count 1 and Count 2 and extended beyond the expiry dates of the non-parole periods for these offences. The sentence for Count 4 commenced before the sentences for Count 3 and Count 6 and expired before the respective non-parole periods expired for those counts. Accordingly, the sentence for Count 4 when looked at in context, did not demonstrate the inadequacy asserted by the Appellant.

50. Taking into account the findings made by his Honour and the sentencing principles which he had to apply (and which in a number of respects conflicted) and having regard to the authoritative statement of principle set out above, I am not persuaded that the Appellant has made out its grounds of appeal and in particular, that the sentence imposed was manifestly inadequate. Even if it were, this is a very fact specific case and does not give rise to matters of principle which would provide guidance for lower courts in sentencing matters.

51. The order which I propose in this matter is that the Crown appeal be dismissed.

52. HARRISON J: I agree with Hoeben CJ at CL.

53. CAMPBELL J: I agree with Hoeben CJ at CL.

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Amendments

17 August 2018 - publication restriction removed - judgment published

Decision last updated: 17 August 2018