R v Myers - [2002] NSWCCA 162

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Myers [2002] NSWCCA 162

FILE NUMBER(S):
60602/01

HEARING DATE(S): 07/05/02

JUDGMENT DATE: 07/05/2002

PARTIES:
Regina (Resp)
Christopher David Myers (App)

JUDGMENT OF: Kirby J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/41/0160

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:
P G Ingram (Crown/Resp)
P M Winch (App)

SOLICITORS:
S E O'Connor (Crown/Resp)
D J Humphreys (App)

CATCHWORDS:
Criminal Practice & Procedure
Appeal against severity of sentence
Sexual offences
Whether sentence excessive
Structure of sentence as required by R v Pearce

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60602/01
KIRBY J
SMART AJ
Tuesday 7 May 2002

REGINA v Christopher David MYERS

Judgment

KIRBY J: Christopher David Myers (the applicant) seeks leave to appeal against the severity of the sentence imposed by Garling DCJ on 24 August 2001.
Mr Myers pleaded guilty to 11 sexual offences involving under age males. The sentence was partly cumulative and partly concurrent. It was structured in a way that I will shortly describe. The term, in total, was for 8 years imprisonment, with a non-parole period of 5 years.
Background
The offences took place between 1995 and 5 December 1999. Four of the victims were brothers. The remaining victim was a friend of the youngest brother. The ages of the victims, at the time of each offence, varied between 11 years and 18 years. To preserve the anonymity of the victims I will refer to them by an initial.
Mr Myers met one brother (T) in 1993. By this means he got to know the family. He then formed a relationship with T's mother. In 1996, he moved in with the family. He became, in effect, a step-father to four of the victims.
The oldest brother (P) was born in 1979. The youngest (B) was born in December 1984. There were two brothers in between, T (1980) and K (1981). The friend of the youngest brother (S) was born in February 1985.
The Offences
The charges were grouped, according to victim. The first three counts related to one of the brothers, T, the second oldest (born 1980). The first offence occurred when T was 14 or 15. Both he and the applicant were staying in a flat belonging to the applicant's father. T was provided with alcohol by the applicant. During the night, the applicant called T to his bedroom. He was in bed, undressed, holding his penis. The applicant was then a man aged about 31. He asked T to join him in bed. T felt obliged to do so. The applicant then touched T's penis. He inserted his finger in T's anus. They then masturbated each other to ejaculation.
The charge was brought under s66C(1) of the Crimes Act 1900 (the Act). The maximum penalty under the section is 8 years. His Honour imposed a fixed term of imprisonment of 3 years, commencing on 22 May 2001. He declined to fix a non-parole period.
The second charge involved an incident which took place a short time after the first. At the same flat, each masturbated the other. T was then 14 or 15 years old. The offence charged was that of aggravated indecent assault (s61M(1) of the Act). The maximum penalty for that offence was 7 years. His Honour imposed a fixed term of 2 years. It was a concurrent sentence, commencing on the same date as count 1 (22 August 2001). No non-parole period was fixed.
The third charge concerned an offence under s78Q(1) of the Act. It alleged an act of gross indecency involving T and another brother, K. It took place at the applicant's work place, a factory. At the request of the applicant, T and K masturbated themselves in front of a video camera, which the applicant operated, the image appearing on a television screen.
The facts agreed acknowledged that these were not isolated incidents. The statement of facts included the following (substituting initials for the name which appeared):
"Sexual contact between the accused and (T) involving masturbation took place on other occasions between the period of 1995 until towards the end of 1999. This activity took place at various houses at which the family resided and at the Rydalmere factory."
The maximum penalty under s78Q(1) was 2 years. His Honour imposed a fixed term of 1 year, concurrent, that is commencing on 22 August 2001. For the same reasons, his Honour declined to fix a non-parole period.
The next two charges related to the third brother, K, born in 1981. Count 4 alleged that, between November 1995 and July 1996, K was at the flat. Mr Myers took the victim to dinner at McDonalds. They went by car. Together they entered the garage at the premises. K got in the car. Soon after he did so, Mr Myers touched his penis. He then removed K's pants. He placed two fingers in K's anus. The applicant then masturbated himself and placed his penis against K. K was, at the time, 13 or 14 years old.
The charge in count 4 was of sexual intercourse with a child between the ages of 10 and 16 (s66C(1) of the Act). The maximum penalty was 8 years. His Honour imposed a fixed term of 3 years, concurrent with the term imposed in earlier counts. No non-parole period was fixed.
The fifth count was based upon the same incident as count 3. However, it related to the victim, K. It charged that, in May 1998, at a time when K was 16 years and his brother 17 years, the applicant induced the two brothers to masturbate in front of a video, the image being transmitted onto a screen. The charge was under s78Q(1) of the Act. The maximum penalty was 2 years. His Honour imposed a fixed term of 1 year, commencing on 22 August 2001, so that it was concurrent with terms previously imposed.
The sixth and seventh counts concerned the oldest brother, P. P, at the time of each incident, was 18 years old. Both counts charged indecent assault of P (s61L). Count six alleged that, in March 1998, P went to work for a few days with the applicant at a factory. The work involved staying overnight in the factory. P had a shower in the toilet block, using a makeshift shower connection. The applicant entered the block and showered next to P. In the course of doing so, he touched P's penis. The maximum penalty under the section is 5 years. His Honour imposed a fixed term of 2 years imprisonment, concurrent with the terms previously imposed. No non-parole period was set.
The seventh count involved an incident between April and October 1998. In the course of paying money to P, the applicant placed his hand and the money down P's trousers, touching his penis. His Honour imposed a fixed term of 2 years commencing on 22 August 2001.
The eighth and ninth counts concerned the youngest brother, B. The eighth count was the most serious. It occurred in 1996 at a time when Mr Myers had formed a relationship with B's mother. He had moved into the family home. He was, therefore, in a position of authority in relation to B. During a period that B's mother was absent from the house, and he was tucking B into bed, he pulled B's pants down. He touched him on the penis and then sucked his penis.
The maximum penalty for sexual intercourse with a child aged between 10 and 16 years is 8 years (s61C(1)). Where it occurs, as here, in circumstances where the perpetrator is also in a position of authority, the maximum penalty is increased to 10 years. His Honour imposed a term of 5 years. He made the term cumulative upon the longest of the fixed terms which he had imposed, that is, the terms of 3 years imposed concurrently in respect of counts 1 and 4. So the 5 year fixed term commenced on 22 August 2004. It expired on 21 August 2009. His Honour fixed a non-parole period of 2 years, expiring on 21 August 2006.
The ninth count related to an incident approximately three years later. It charged that, between 1 January 1999 and 7 December 1999, the applicant committed the crime of aggravated indecent assault (s61M(1)). The assault occurred on a camping trip with B and S, a young friend of B. B, by that time, was 15 years old. His friend, S, was 13 or 14. The applicant masturbated both B and S. They then masturbated him.
Again the statement of facts makes it plain that the conduct, so far as B was concerned, occurred on other occasions. The statement included the following:
"Sexual contact between the accused and (B) involving masturbation took place on other occasions, at various houses at which the family resided and at the Rydalmere factory, between 1996 and 7 December 1999."
The maximum penalty under the section was 7 years. His Honour imposed a fixed term of imprisonment of 2-1/2 years, concurrent with the terms imposed in respect of counts other than count 8, that is, commencing from 22 August 2001. No non-parole period was fixed.
Counts 10 and 11 concerned the victim S, B's friend. Both counts were charges of aggravated indecent assault (s61M(1)). Count 10 related to an incident in the first half of 1998. S was staying the night at his friend's home. He was then 12 or 13 years old. The applicant came into the bedroom and touched S's penis. The applicant also got S to touch his, the applicant's, penis. His Honour imposed a fixed term of 2-1/2 years to commence on 22 August 2001. The term was, therefore concurrent with all counts other than count 8. No non-parole period was fixed.
The final charge, count 11, related to the camping trip described in relation to the offences committed against B (count 9). At the time of that incident S was 13 or 14 years old and his friend, B, 15 years old.
Again, the statement of facts makes it plain that the incident was not an isolated occurrence. The statement said this:
"Sexual contact between the accused and (S) involving masturbation took place on other occasions between January 1998 and 7 December 1999."
The Grounds of Appeal
In helpful written submissions, counsel for the applicant identified the grounds of complaint in respect of the sentence imposed by his Honour, in these words:

The sentencing judge failed to give sufficient weight to the applicant's attempts at rehabilitation prior to sentence via the counselling he undertook.
The sentencing judge failed to give sufficient discount for the plea of guilty.
Alternatively that if the appropriate discount was given the starting point for the sentence was too high.
The sentence imposed offended the principles in R v Pearce (1998) HCA 57.
The total sentence and its component parts are manifestly excessive.

Analysis of Complaints

Submissions on sentence were made on 22 August 2001. His Honour reserved. He then imposed the sentence under appeal on 24 August 2001, having been provided with a number of authorities by both the Crown and counsel for Mr Myers.
His Honour's remarks on sentence include a careful analysis of the objective seriousness of the offences. There were five victims, some very young. There were multiple offences in which certain counts were identified as representative of a number of similar acts. His Honour considered the explanation provided by Mr Myers. He could not completely accept that explanation. He said this: (p 11)
"It seems to me that the prisoner has yet to come totally to grips with what he actually did."
It was plain that Mr Myers systematically abused his victims for his own sexual gratification. His Honour, appropriately, in my view, said this: (p13)
"Whilst this does not fall into the class of the worst types of abuse which the courts see in these type of charges, it is extremely serious and demands a very lengthy term of imprisonment."
The subjective case of the applicant was, as counsel contends, strong. Mr Myers was, at the time of trial, a man aged 37 years. He had no criminal convictions. He was highly regarded by persons with whom he worked, and those who knew him in the community. His prospects of rehabilitation were, in my view, given appropriate weight, and were regarded as good. Mr Myers, in his letter of explanation addressed to the Court, referred to his attempts in prison to obtain counselling assistance. The psychologist who had seen him, referred to, as his Honour acknowledged, "a consistent commitment to the counselling process", adding that counselling had been of considerable benefit to the applicant.
His Honour did not quantify the discount for the plea of guilty. However, he certainly did not undervalue that plea. He said this: (p 9)
"It is a valuable plea, it is also of value that he admitted the offences at any early time and co-operated and accordingly in accordance with the guideline judgment of the Court of Criminal Appeal I will allow him the maximum deduction recommended there upon his sentence."
I assume that his Honour allowed, therefore, a discount of 25% (as suggested by R v Thomson & Houlton (2000) 49 NSWLR 383). I do not believe that there is warrant for any greater discount. I will approach the sentence upon this footing.
The real grievance of the applicant is the suggested departure from Pearce v The Queen (1994) 194 CLR 610, and the suggestion that the sentence imposed was too severe. The principle in Pearce v The Queen was conveniently summarised by Simpson J in R v Hammoud (2000) 118 A Crim R 66, where her Honour said this: (at 67)
"Following Pearce, a judge is required to fix 'an appropriate sentence' for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced."
Here, his Honour made the following statement shortly before identifying the sentences imposed in respect of each count. His Honour said: (p 14)
"The total criminality of these offences in my view require an extremely severe sentence. I will structure the sentence in due course, however you will be sentenced overall to a term of imprisonment of eight years with a non-parole period taking into account the special circumstances of five years. I now structure the sentences in this way to reflect that."
Pearce required that certain things be considered, when imposing sentence, and that they be considered in a particular order:

First, each offence must be considered separately, and an appropriate sentence determined.
Secondly, consideration must be given as to whether the sentences imposed should be made concurrent or cumulative (or partially one or the other). It will be appropriate, for instance, to make sentences for offences concurrent where, although separate, they are substantially contemporaneous and connected.
Thirdly, the principle of totality must be considered. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved (R v AEM Snr & Ors [2002] NSWCCA 58, para 70; R v Kalache (2000) 111 A Crim R 152, per Sully J at 184). The mechanism of making some sentences cumulative, and others concurrent (or partly so), may be used where, as often happens, and as happened in this case, the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence.

Here, I believe that his Honour approached the matter as required by Pearce. In the passage quoted, his Honour was simply providing Mr Myers, in advance, with the result which then emerged from the sentences which were imposed on each count. His Honour's remarks, and the structure of the sentence, indicate that he considered the question of concurrence and accumulation, as well as totality.
It is said on behalf of Mr Myers that his Honour's sentence on count 8 was too high, especially when one allows for the plea of guilty and a discount of 25%. It was the equivalent of 6.25 years. However, I do not believe that it was too high. His Honour was required to sentence for an offence of aggravated sexual intercourse involving an 11 year old boy, committed in circumstances of aggravation, namely, the betrayal of trust arising from Mr Myers' position, which was effectively that of step-father.
Even were it thought that the individual penalty imposed upon this or other counts were too high, the total sentence, in my view, is certainly not too high (cf s6(3) Criminal Appeal Act 1912). Mr Myers was guilty of a sustained abuse of five victims, some quite young, over a number of years.
In the course of argument, the Court has been taken to the statistics compiled by the Judicial Commission. The statistics have their place. However, they are, as the Court recently remarked, "a blunt instrument" (R v AEM Snr & Ors (supra) para 113). Care must be exercised in their use. I do not believe that the statistics suggest that the sentences imposed were outside the discretion given to his Honour. Specifically, I believe the total sentence imposed (8 years imprisonment with a non-parole period of 5 years) to be well within that discretion.
Order
The order I would therefore propose is as follows:
1. That leave to appeal should be given.
2. But the appeal should be dismissed.
SMART AJ: I agree.
KIRBY J: The order of the Court will be as outlined by me.

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LAST UPDATED: 14/05/2002