R v MMK

[2006] NSWCCA 272

Reported Decision: 164 A Crim R 481

New South Wales

Court of Criminal Appeal

CITATION:	Regina v MMK [2006] NSWCCA 272
HEARING DATE(S):	28/08/2006
JUDGMENT DATE:	5 September 2006
JUDGMENT OF:	Spigelman CJ at 1; Whealy J at 1; Howie J at 1
DECISION:	The appeal is dismissed.
CATCHWORDS:	Criminal Law - Sentencing - Appeal - Crown appeal against sentence - whether fully concurrent sentence inadequate - relationship between s 3A of Crimes (Sentencing Procedure) Act and principle of totality - vulnerability under s 21A(2)(1) of Crimes (Sentencing Procedure) Act
LEGISLATION CITED:	Crimes Act 1900 - ss 61AJ, 66C(1) Crimes (Sentencing Procedure) Act 1999 - ss 3A, 21A(2)
CASES CITED:	R v Tadrosse [2005] NSWCCA 145 R v Ibrahimi [2005] NSWCCA 153 R v MA [2004] NSWCCA 92 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Johnson v The Queen (2004) 78 ALJR 616 R v Holder (1983) 3 NSWLR 245 R v Brown [1999] NSWCCA 323 R v Janceski (No. 2) [2005] NSWCCA 288 R v Gorman (2002) 137 A Crim R 326 R v Hammoud (2000) 118 A Crim R 66 Veen v The Queen (No. 2) (1988) 164 CLR 465 Makarian v The Queen (2005) 79 ALJR 1048
PARTIES:	Regina v MMK
FILE NUMBER(S):	CCA 2006/906
COUNSEL:	R. Cogswell SC with J. Caldwell - Crown A. Haesler SC - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2003/149
LOWER COURT JUDICIAL OFFICER:	Hidden J
LOWER COURT DATE OF DECISION:	05/04/2006

2006/906

SPIGELMAN CJ
WHEALY J
HOWIE J

TUESDAY 5 SEPTEMBER 2006

REGINA v MMK

Judgment

1 THE COURT: The Crown has appealed against the sentence imposed upon the respondent by Justice Hidden following a plea of guilty to an offence of having intercourse with a child between the age of 10 and 16 years contrary to s 66C(1) of the Crimes Act 1900. This is an offence for which the maximum penalty prescribed is imprisonment for 8 years. In addition the respondent asked the Judge to take into account on a Form 1 two offences being an aggravated indecent assault and a common assault. As a result in 5 April 2006 his Honour sentenced the respondent to a fixed term of imprisonment of 1 year to commence on 5 April 2006 and to expire on 4 April 2007.

2 At the time he was sentenced by Hidden J the respondent was serving a term of imprisonment imposed upon him by Sully J on 22 April 2004 for nine counts of aggravated sexual assault in company contrary to s 61AJ of the Crimes Act. The respondent was subject to a sentence amounting to a total term of 22 years with a non-parole period of 13 years. The respondent was eligible to be considered for parole on 31 July 2015.

3 It should be apparent that the sentence imposed upon the respondent by Hidden J was totally concurrent with, and subsumed within, that imposed by Sully J. The Crown argues that, although the length of the sentence imposed upon the respondent was appropriate, it was an error for his Honour to make the sentence totally concurrent with the sentences then being served and resulted in a sentence that was manifestly inadequate. In particular the Crown submitted that Hidden J erred in the following ways:

(i) in placing too much weight on the subjective circumstances of the respondent;

(ii) in failing to take into account the respondent’s prior convictions recorded by Sully J for the purpose of determining whether the respondent was deserving of lenient treatment even though the convictions were for offences that took place later in time; and

(iii) in rejecting the Crown’s submission that the vulnerability of the victim was an aggravating factor that should be taken into account pursuant to s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 .

4 The facts upon which the respondent was to be sentenced were included in a statement placed before Hidden J by the parties. The victim of the offence on the indictment shall be referred to as CH. The complainant in respect of the offences on the Form 1 shall be referred to as MSM. Hidden J stated the facts of the offence on the indictment as follows:

“The offence involving CH is the offender’s act of consensual sexual intercourse with her to which I have already referred in dealing with MSK. As I have said, she was thirteen years old at the time. The offender himself was fifteen. As at the date of the offence, 14 July 2002, they had known each other for about eight months. They had been out together on a few occasions and she felt that she could trust him.

I referred earlier to another young lady from Fairfield who was with the group at the Ashfield house on that occasion. At one stage MAK and that young lady left the lounge room. The other young men were speaking about what the two of them were doing, and the offender said to CH, “They’re rooting.” About thirty minutes later the other young lady returned to the lounge room, and CH observed that she appeared to be fine. The offender asked CH if she wanted to go to a bedroom. She agreed, and they did so. There, they kissed and had penile/vaginal intercourse, to which she consented.

As they were getting dressed afterwards, MAK entered the room and told the offender that the other young lady wanted to be taken home. The offender asked CH if she wanted to go with them, but she said that she would stay until MAK returned………”

5 The Judge stated the facts of the matters on the Form 1 as follows:

“The offences on the Form 1, as I have said, were committed much earlier, on 24 November 2001. On this occasion also the offender was fifteen years old. That evening, MSM, then fourteen years old, and a young lady friend of hers met two of the offender’s brothers at Ashfield Railway Station. Both young women had known the offender and some of his brothers for about six months. They were driven to the Ashfield house, alcohol being purchased on the way.

At the house MSM began to drink an alcoholic beverage, when she received a call on her mobile phone. As a result of that call, she left the house and met some other friends at a location nearby. She returned to the home, apparently in the company of some of those friends. During the evening, she observed that the lady friend to whom I first referred was drinking and that the brothers were encouraging her to drink more.

At one stage, she and others at the house went into a bedroom. She lay on a bed, fully dressed. The offender got onto the bed and began to hug her. He tried to pull her on top of him. She asked him to stop, but he tried to kiss her on a number of occasions. She rolled away from him, whereupon he placed his hand under her top and squeezed her breast. This gave rise to the charge of indecent assault. She pushed him away and abused him verbally. He then smacked her on the bottom, before getting off the bed.

Later, MSM wanted to leave, but was concerned about a friend of hers (not identified in the statement of facts) remaining at the house. She expressed that concern to one of the offender’s brothers, who abused her. The offender said, “Look at the hassle you caused”. He then slapped her across the face, making her cry. This gave rise to the charge of common assault. Another person at the house intervened. As MSM and her companion left the house, the offender was heard to say, “If I ever see you dirty scrags you better not walk the streets of Ashfield again. Watch your backs.”

The incident in the bedroom had been videotaped by another person who was at the house. Police found that videotape in the course of a search of the house conducted in the investigation of the offences dealt with by Sully J.”

6 The respondent was 19 years of age at the time he was sentenced by Hidden J. There was in evidence before his Honour a psychological report that had been before Sully J in the earlier sentencing proceedings and a current report from a counsellor in the Sexual Offender Programme run by the Department of Juvenile Justice. Of the respondent’s subjective features Hidden J stated:

“What emerges from that material is that, while the offender’s family was well off and respected in their community in Pakistan, there was conflict within the home. The effect of his account also was that his father was a stern disciplinarian. He saw arguments between his father and his older brothers in which there was physical aggression, and on at least one of those occasions a gun was produced. He also reported lawlessness, including gunfire, in the streets of the village, and having witnessed a violent incident in which a number of people were shot. Despite all this, he progressed well at school in his home country.

He came to Australia with some of his siblings when he was only thirteen years old. For virtually the whole of the time from then until his arrest in August 2002, he was under the supervision of his brother, MAK, but without parental control. He attended school here, and had commenced study in year eleven at the time he was taken into custody. His school reports were favourable at first, but over time his behaviour and academic performance deteriorated. He acknowledged to [the counsellor] that he engaged in truancy because of his lifestyle at the time. In the absence of his parents and appropriate guidance from his older brothers, he was drinking alcohol and associating with an undesirable peer group.

He was reported to have engaged in inappropriate sexual behaviour, in a variety of ways, while at school. Generally, he appears to have been sexually active with a number of girls around his age. About six months prior to his arrest he formed a more stable relationship with a young lady, which has endured. Nevertheless, he continued to have what [the counsellor] described as ‘casual sexual encounters’”……

7 There was material before his Honour that indicated that the respondent was progressing well in the detention centre in which he was serving his sentence, he was pursuing his education and had undergone a number of courses. He was following his religion and had vowed to abstain from alcohol. The respondent had been a willing participant in the assessment by the counsellor and she thought that he might benefit from inclusion in the Sexual Offender Programme “in order to develop insight into the social, cognitive, emotional and behavioural precursors to his offending.”

8 During the course of the hearing before us the Crown Advocate abandoned his complaint concerning the failure of the Judge to take into account that the victim was vulnerable as a matter of aggravation under s 21A(2)(l). He acknowledged the correctness of this Court’s decision in R v Tadrosse [2005] NSWCCA 145 and conceded that it was incompatible with his argument that Hidden J should have found as an aggravating factor, independent of a consideration of the circumstances of the offending, that CH was in the home of the respondent when the offence occurred and that she was in a relationship of trust with him because of his assertions of love for her. That concession was well founded. However, we would note, in light of the submissions initially made in writing by the Crown, that there is nothing inconsistent with the statement of general principle contained in Tadrosse as to the operation of s 21A(1)(l) and the decision of this Court in R v Ibrahimi [2005] NSWCCCA 153 that recognised persons travelling alone at night in public transport as being especially vulnerable within the terms of that provision. There was nothing in the present case that engaged that section.

9 There may be more merit in the Crown’s argument that his Honour erred in stating that the respondent was “entitled to the benefit of a clear criminal record at the time of these offences” in light of the offences for which he was convicted by Sully J even though those offences occurred after the offence for which he was being sentenced by Hidden J. However, it is unnecessary to determine that matter in order to dispose of the present appeal because, even if his Honour was technically in error in that regard, it could have had little, or no, impact upon his Honour’s decision to make the sentence fully concurrent with the sentences imposed by Sully J.

10 The Crown’s principal submission was to the effect that, because the sentence was to be served totally concurrent with that imposed by Sully J, the sentence was no penalty at all and therefore failed to comply with the purposes of punishment set out in s 3A of the Crimes (Sentencing Procedure) Act. In particular it was submitted that the sentence did not denounce the respondent’s conduct, nor did it have sufficient regard to the harm to the victims nor adequately punish the respondent for his criminal behaviour. That argument may have a superficial attraction but it fails to acknowledge that the purposes of punishment have to be promoted within the limits of over-arching fundamental principles of sentencing derived from the common law. After all s 3A is largely a codification and elaboration of the purposes of punishment derived from the common law and which can be found enunciated in judgments of this and other appellate Courts long before the section was introduced: see R v MA [2004] NSWCCA 92.

11 One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616.

12 In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260)

"... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. ..."

13 In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.

14 There will be cases, of which, in Hidden J’s opinion, this was one, where the criminality of offences committed by an offender is so great and the punishment imposed for those sentences is justifiably so harsh in order to reflect that criminality that there is little, or no, room for a further penalty to be imposed upon the offender to achieve an appropriate purpose of punishment in the circumstances of the particular case. In the present case those circumstances included the relatively low criminality involved in the offence on the indictment having regard to the relationship between the applicant and the complainant, the age differential between them and the fact that intercourse was consensual. It was also a highly relevant matter than any further actual punishment could not take effect until the expiration of the non-parole period fixed by Sully J some 15 years after the offences were committed.

15 It is acknowledged that in the present case the complainants in the offence on the indictment and the matter on the Form 1 may feel aggrieved that the applicant does not appear to have been punished in any real sense for his criminal conduct toward them. Further, members of the community, without an understanding of all the facts and the well-established sentencing principles to be applied, might also be concerned that the result appears to inadequately express public attitudes to the offence and the offender. But the different purposes of punishment will sometimes pull in different directions. Not one of them can be considered in isolation. The justifiable limitations placed upon the promotion of those sometimes competing purposes cannot be disregarded in an appropriate case in order to address public or private desires for retribution notwithstanding the importance of that factor in the determination of appropriate punishment.

16 As was stated in the joint judgment of Mason CJ, Brennan Dawson and Toohey JJ in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, (footnotes omitted):

“…….sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

17 In the present case Hidden J stated:

“In what has been a difficult sentencing exercise generally, the sentence of this offender has required particularly careful consideration. In all the circumstances, I think that it is appropriate that he be dealt with according to law. Given the substantial sentence he is now undergoing, no purpose would be served by dealing with him otherwise. I have also concluded that his criminality should be marked by a short custodial sentence.

I have considered carefully whether that sentence should be accumulated, wholly or partly, upon the non-parole period which he is now serving. That was the Crown prosecutor’s submission. I have decided that it should not. As matters stand, he will remain in Juvenile Justice detention until he turns twenty-one in 2007, when he will be removed to an adult prison. He will then have no prospect of release until 2015, when he is twenty-nine. In all the circumstances, I think it appropriate that the sentence I pass should be concurrent with his present term, and should be served in a Juvenile Justice centre. I have regard to his plea of guilty, but I do not think it necessary to specify as a discount the measure of leniency it has earned him.”

18 In light of the seriousness of the offences for which the respondent was sentenced by Sully J and the length of the sentences imposed upon him in order to promote the purposes of punishment in relation to those crimes, it was well within the discretion of Hidden J to determine that the principle of totality required him to order that the sentence for the offence before him be served completely concurrently with the sentences imposed by Sully J so as not to increase the period to be served by the respondent before he might be released to parole in 2015.

19 In their joint judgment in Makarian v The Queen (2005) 79 ALJR 1048, Gleeson CJ, Gummow, Hayne and Callinan JJ stated at [27]:

Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

20 There is no basis shown by the Crown for this Court to review the discretion of Hidden J. The appeal is dismissed.

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