R v PGM

[2008] NSWCCA 172

Appeal Outcome: Special leave application dismissed by the High Court (s414/2008) 12 March 2009 [2009] HCASL 62

New South Wales

Court of Criminal Appeal

CITATION:	R v PGM [2008] NSWCCA 172
HEARING DATE(S):	8 July 2008
JUDGMENT DATE:	13 August 2008
JUDGMENT OF:	Spigelman CJ at 1; Barr J at 2; Fullerton J at 3
DECISION:	1. The appeal against sentence is allowed. 2. The sentences imposed in the District Court are quashed. 3. In lieu thereof the following sentences be imposed: Count 1: a non-parole period of 6 years to date from 26 January 2006 and expiring on 25 January 2012 with a balance of term of 3 years expiring on 25 January 2015. Count 2: a non-parole period of 6 years to date from 26 January 2006 and expiring on 25 January 2012 with a balance of term of 3 years expiring on 25 January 2015. Count 3: a non-parole period of 4 years to date from 26 January 2006 and expiring on 25 January 2010 with a balance of term of 2 years expiring on 25 January 2012. Count 4: a non-parole period of 4 years to date from 26 January 2006 and expiring on 25 January 2010 with a balance of term of 2 years expiring on 25 January 2012. Count 5: a non-parole period of 6 years to date from 26 January 2006 and expiring on 25 January 2012 with a balance of term of 3 years expiring on 25 January 2015. Count 7: a non-parole period of 4 years and 8 months to date from 26 November 2008 and expiring on 25 July 2013 with a balance of term of 2 years expiring on 25 July 2015. In the result, the effective non-parole period is 7 years and 6 months and the earliest date that the respondent is entitled to be considered for release to parole is 25 July 2013.
CATCHWORDS:	Crown appeal against inadequacy - multiple offences against s 66A and s 61M of the Crimes Act 1900 - after trial - application of s 54B of Crimes Sentencing Procedure Act 1999 - significance of prior good character and psychiatric condition
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Criminal Appeal Act 1912
CASES CITED:	GAT v R [2007] NSWCCA 208 House v R (1936) 55 CLR 499 Ibbs v R (1987) 163 CLR 447 Lozanovski v R [2006] NSWCCA 143 MLP v R [2006] NSWCCA 271; 164 A Crim R 93 Pearce v R [1998] HCA 57; 194 CLR 610 PGM v R [2006] NSWCCA 310; 164 A Crim R 426 R v ABS [2005] NSWCCA 255 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v CJP [2004] NSWCCA 188 R v Hemsley [2004] NSWCCA 228 R v Kennedy [2000] NSWCCA 527 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Witchard [2007] NSWCCA 167 RJA v R [2008] NSWCCA 137 Ryan v R [2001] HCA 21; 206 CLR 267 Tarrant v R [2007] NSWCCA 124
PARTIES:	The Crown (App) PGM (Resp)
FILE NUMBER(S):	CCA 2006/15199
COUNSEL:	MG Sexton SC (App) DE Baran (Resp)
SOLICITORS:	Director of Public Prosecutions (App) Dorrough Smart Solicitors (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0996
LOWER COURT JUDICIAL OFFICER:	Graham ADCJ
LOWER COURT DATE OF DECISION:	22 February 2008

2006/15199

SPIGELMAN CJ
BARR J
FULLERTON J

Wednesday 13 August 2008

REGINA v PGM

Judgment

1 SPIGELMAN CJ: I agree with Fullerton J.

2 BARR J: I agree with Fullerton J.

3 FULLERTON J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of sentences imposed by Acting Judge Graham in the District Court at Sydney on 22 February 2008.

4 On 5 July 2007 the respondent was found guilty after trial of six offences which were committed over a period of seven months between October 2003 and May 2004. Three of the six offences were laid contrary to s 66A of the Crimes Act 1900 and involved sexual intercourse with a child under 10 years namely between 6 and 7 years. These offences attract a statutory maximum of 25 years imprisonment and a standard non-parole period of 15 years pursuant to the provisions of Div 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act“). The remaining three offences were laid contrary to s 61M(2) of the Crimes Act and involved indecent assaults of the same child. These offences attract a statutory maximum of 10 years imprisonment and a standard non-parole period of 5 years.

5 On sentence his Honour was invited to take into account two offences of possessing child pornography on a Form 1 in respect of which the respondent acknowledged his guilt as provided for in s 32(2)(a) of the Sentencing Act.

6 The indictment particularised each of the counts of sexual intercourse as having occurred between 1 October 2003 and 5 May 2004. The first two counts concerned sexual intercourse in the nature of cunnilingus whilst the third count of sexual intercourse (count 6 on the indictment) related to penile/vaginal sexual intercourse. In respect of each count, his Honour imposed a term of 7 years imprisonment with a non-parole period of 4 years to date from 26 January 2006 and to expire on 25 January 2010. The order for concurrency was imposed despite the fact that the offences involved different conduct that was separated in time.

7 The three counts of indecent assault were also particularised as having occurred between 1 October 2003 and 5 May 2004. Two of the three counts attracted a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years to date from 26 April 2006, while the third count attracted a term of imprisonment of 4 years with a non-parole period of 2 years to date from 26 July 2008. The sentences imposed on the first two counts of indecent assault were effectively subsumed by the concurrent sentences imposed in respect of the three counts of sexual intercourse, while the third count of indecent assault extended the overall non parole period by 6 months to account for the matters on the Form 1.

8 In the result, an overall sentence of 7 years imprisonment with a non-parole period of 4 years and 6 months was imposed. The commencement date for each of the sentences referable to the counts of sexual intercourse reflect the fact that the respondent had served periods in pre-sentence custody both as a consequence of being refused bail between conviction and sentence and because of the sentences imposed following his conviction at an earlier trial. That conviction was overturned following a successful appeal to this Court in PGM v R [2006] NSWCCA 310; 164 A Crim R 426. The sentences imposed following the respondent’s conviction at the first trial were the subject of an application for leave to appeal against their severity, however, since the convictions were quashed and a retrial ordered, the sentences were not the subject of review by this Court.

9 His Honour found special circumstances established on a number of bases one of which was the fact that the respondent had served two discrete periods of custody. That finding is not challenged on appeal.

10 It is not necessary for current purposes to refer to the sentencing order following the first trial. Suffice to note that the sentences imposed on that occasion were of an order of severity in marked contrast to the sentences the subject of the appeal. The sentencing judge acknowledged the remarks on sentence, and the sentences imposed by Judge Marien SC, but emphasised, consistent with established authority, that there is no legal bar to the imposition of a sentence different from that fixed by a previous sentencing judge so long as the sentence is properly within the judge’s sentencing discretion (see Tarrantv R [2007] NSWCCA 124 at [31]).

11 The Crown submits that his Honour’s sentencing discretion miscarried. The Crown does not submit error is manifest simply because the sentences imposed differ markedly from those imposed after the first trial, but because they fail to adequately reflect the objective gravity of what was a sustained course of grave criminal conduct involving a very young child and the need for the sentences in those circumstances to meet the predominant objective of general deterrence. The error in the imposition of the individual sentences is said to be compounded by the structure of the overall sentence, and that an effective non-parole period of 4 years and 6 months fails to reflect the total criminality of the offences for which the respondent was convicted and the offences on the Form 1.

12 The Crown also submits that in light of the standard non-parole periods of 15 years and 5 years for the offences of sexual intercourse and indecent assault respectively, and the mandatory operation of s 54B of the Sentencing Act in circumstances where the offending is appropriately described as in the mid range and where there are no countervailing considerations in s 21A warranting the imposition of another sentence, the sentences imposed by his Honour were wholly inadequate. The Crown submits that his Honour’s erroneous classification of the particular offending in both categories of offence as other than squarely in the mid range, together with the unwarranted weight given to the respondent’s subjective circumstances and other matters said to have operated in mitigation of penalty, has undermined the intended operation of s 54B of the Sentencing Act, a conclusion that is gainsaid by the degree to which the sentences depart from the standard non-parole period in each category of offence.

The relevant facts concerning each of the counts on indictment

(a) The three counts of sexual intercourse

13 The victim in each of the offences was a neighbour of the respondent and his wife in a Sydney suburb. The young child lived with her parents and her siblings. The respondent was involved with a bush care group which maintained bushland at the rear of their suburban properties. He commonly hosted a barbecue at his home after these activities. It was in that connection that he forged a relationship with the child such that she visited his home on a number of occasions between October 2003 and May 2004 to help him with his gardening. Over the course of the seven months the child had her seventh birthday.

14 His Honour found it unnecessary to recount the details of the offences in circumstances where, subject to minor variations in the evidence before the jury in the second trial, the facts supporting the conviction on each count were adequately reflected in the remarks on sentence following the previous trial. Those facts in summary are as follows.

15 In respect of the first count on the indictment (a count of sexual intercourse likely to be the last in time) the respondent, after finishing some gardening with the young child, took her to his home to show her a video which the child said “had cats and music on it”. It appeared on the evidence that this was a video of the musical “Cats”. The respondent then put the child on the lounge, pulled her pants down, told her to open her legs and began licking her vagina. The respondent told her that he enjoyed this but to keep it secret. The young child then went home.

16 The second count related to an incident some months earlier in February 2004 when the child went to the respondent’s house and was playing inside on the stairs. The respondent asked whether she wanted to do some gardening, in the course of which she recalled falling over. After a bandaid was applied she went with the respondent inside the house. On this occasion he took her to a bedroom, laid her on the bed and told her to open her legs. He then pulled her underwear down and sucked her vagina. He then pulled up her underwear and the child went home.

17 In respect of the third of the three counts of sexual intercourse (count 5 on the indictment) the evidence led at trial was that the respondent commenced to put his penis into the child’s “private parts” but that it “came out”. It was an incident said to have occurred before Christmas 2003. The sentencing judge noted that there was an issue at trial as to whether the conduct attributed to the respondent by the child on that occasion constituted sexual intercourse within the meaning of the Crimes Act, or whether it was simply an attempt to commit that offence. While his Honour acknowledged that the verdict of the jury must be taken as acceptance of the fact that sexual intercourse occurred and to the criminal standard, having regard to the evidence at trial, he took the view that the jury’s verdict should be taken only as an acceptance of the proposition that there was sufficient penile penetration to amount to sexual intercourse. His Honour acknowledged that irrespective of the degree or extent of penetration, sexual intercourse of a young child was a serious offence deserving of condemnation and was properly characterised as a disgusting act on the part of a mature man.

18 An issue arises on the appeal as to whether, in light of that finding, his Honour gave sufficient weight to the objective seriousness of that offence when fixing a non-parole period of 4 years against a term of imprisonment of 7 years and, in addition, whether the objective criminality constituted by that offending was appropriately reflected in the overall sentence given that the sentence imposed on that count was to be served wholly concurrently with the other two counts of sexual intercourse.

(b) The three counts of indecent assault

19 In so far as the three counts of indecent assault are concerned, the first in time (count 3 on the indictment), occurred in the living room of the respondent’s house when the respondent put cream on his penis after removing the child’s underwear. The child described “white stuff” spurting out of his penis and hitting her vagina.

20 The second count of indecent assault (count 4 on the indictment) occurred in the lounge room of the respondent’s home in circumstances where he showed the child an image on the computer of a naked young child with her legs apart. At the time of showing her the image the child gave evidence that the respondent said to her “that looks very nice”. After retiring to the garden for a time the respondent then took the child back into the lounge room and, after removing her underwear and widening her legs, he put his penis on her vagina and “wiggled it”. According to the child the respondent had his trousers down at this time and was standing above her whilst she was sitting. She gave evidence that she told him to stop after which he then pulled up his trousers.

21 The third count of indecent assault (count 7 on the indictment) also occurred in circumstances where the respondent and the young child had been gardening together. On that occasion the child was taken inside the respondent’s home where she was given an ice-cream. Whilst in the living room the respondent rubbed the child’s vagina with his hand.

(c) The offences on the Form 1

22 The offences of possession of child pornography were constituted by images of young children engaging in sexual conduct found on his arrest in May 2004 on a computer hard-drive at the respondent’s home in a file which bore his name. A related offence concerned similar images on a CD-rom also in the respondent’s possession.

23 His Honour purported to take that conduct into account when imposing sentence for count 4 on the indictment. The Crown submits that his Honour failed to augment the sentence in respect of count 4 in a way that reflected the nature and severity of the offences on the Form 1 and, further that by reason of the structure of the sentencing order, that offending effectively went unpunished.

The objective seriousness of the offending and the application of the standard non-parole period

(a) The three counts of sexual intercourse

24 In respect of each of the three counts of sexual intercourse, his Honour assessed the offending as being “at the upper end of the lower end of the scale, perhaps just edging into the lower end of the middle range of offences”. His Honour did not regard the offending constituted by any of the counts of sexual intercourse as “a typical category of case which would require the imposition of a standard non-parole period”.

25 The Crown submitted that while his Honour well appreciated that the application of s 54B of the Sentencing Act required him to hypothesise the features of an abstract offence in the mid range of objective seriousness as a significant point of reference for sentencing purposes in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168, and that his Honour appeared to recognise that the standard non-parole period in respect of each of the three counts of sexual intercourse was substantial whether standing alone or by comparison with the maximum sentence of imprisonment of 25 years, he nonetheless erred both in his assessment of where the subject offending fell in the abstract range of offending under the section and in concluding that the imposition of the standard non-parole period was either not warranted because it was not typical of cases where the standard non-parole period was required, or because of the subjective circumstances of the respondent, or both.

26 In R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [13], Simpson J observed that the assessment of objective criminality when a standard non-parole period is provided should be approached intuitively based upon the general experience of the courts in sentencing for the particular offence at issue. Accordingly, it was necessary for his Honour to have regard to the nature of the sexual intercourse that was constituted by each offence and the circumstances in which the offences were committed. While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others (see Ibbs v R (1987) 163 CLR 447). This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending to which Simpson J referred in AJP at [24]-[26].

27 Despite making clear that offences involving an adult sexually assaulting a child of six or seven could not be regarded as otherwise than grave, his Honour was nevertheless satisfied that the acts of cunnilingus constituted by Counts 1 and 2 on the indictment were, in general terms, less serious than the penile penetration in Count 5. Furthermore, in so far as the penile penetration was concerned, since his Honour was satisfied that penetration was to a minor degree, albeit sufficient to amount to the actus reus of the offence, he found that count 5 was not objectively more serious than counts 1 and 2.

28 While it was open to his Honour to differentiate between the sexual intercourse in counts 1 and 2 on the one hand and the sexual intercourse in count 5, for my part, to reason to the conclusion that the act of penile penetration in this case was of the same order of seriousness as cunnilingus simply by reason of the fact that the respondent’s penis penetrated the child’s genitalia only to a small extent, is to fail to give account to the fact that penile penetration of a young child involves conduct of a quite different order and criminality of a more serious kind than other forms of sexual intercourse contemplated by the statutory definition in s 61H of the Crimes Act. In that connection I note the observation of the Chief Justice in RJA v R [2008] NSWCCA 137 at [33] that a limited degree of penetration is not necessarily indicative of a lower level of objective criminality. The Crown has not sought to refer the Court to the evidence of the child so as to amplify the context in which the penile penetration occurred or the reason the respondent desisted, and while his Honour made reference to the child’s evidence at the previous trial, to the effect that she told the respondent that “it hurts”, he did not make it clear whether she gave the same evidence at the second trial, still less whether he took it into account for sentencing purposes.

29 I acknowledge that judgments of the kind his Honour made as to the relative ordering of seriousness of the types of sexual intercourse, involve the exercise of a broad discretion with which this Court may not interfere, particularly where the sentencing judge has presided over the trial. I will return to consider whether this feature, in the context of all the circumstances bearing upon an assessment of the objective seriousness of the counts of sexual intercourse, justified his Honour’s finding that the offending was less than mid range.

(b) The three counts of indecent assault

30 His Honour characterised each of the offences of indecent assaults as falling at least into the lower end of the mid range. He considered that each offence, although amounting to a different form of assault, was “relatively significant as an act of indecent assault”. For this reason, unlike the approach to the three offences of sexual intercourse, his Honour accepted that the imposition of the standard non-parole period of 5 years was what he described as “the starting point” for sentencing purposes as provided for in s 54B of the Sentencing Act. In the result, however, his Honour considered there were a range of matters in s 21A which warranted a departure from the standard non-parole period.

31 As this Court has observed, it is of considerable significance when assessing the objective seriousness in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved (see GAT v R [2007] NSWCCA 208 at [22]). Having regard to the degree of genital connection in counts 4 and 7, and the gravity of the conduct in count 3 which although grossly indecent nevertheless fell short of any actual physical connection, his Honour’s characterisation of the offending as at the lower end of mid range is in my view indicative of error. Having regard to the facts in respect of count 4 on the indictment, facts which on one view may well have justified a charge under s 66A of the Crimes Act, it is difficult to hypothesise more serious instances of indecent assault. Even were it open for his Honour to have found the particulars of these offences as occupying a position in the lower end of mid range, when account is taken of the other factors bearing upon the assessment of the objective criminality constituted by that offending, his Honour’s finding is in my view unsustainable.

(c) Factors common to the overall course of criminal conduct as bearing upon objective seriousness

(i) Extent of harm

32 In considering the circumstances of each of the offences of which the respondent was convicted, his Honour was obliged to take into account the evidence of harm the young child was subjected to as a composite course of criminal behaviour. He found that in each case the harm did not extend beyond the emotional harm that was reflected in a victim impact statement the child prepared in which she spoke of her distrust of people, the deleterious effect on her schoolwork and the nightmares she suffered. She was ten years old at the time she prepared the statement. His Honour correctly acknowledged that the extent of emotional or psychological harm is not always easy to assess at the time of sentence, particularly when the victim of sexual assault is very young and the full extent of any harm may only become apparent as the victim matures through adolescence and into early adulthood. His Honour also correctly observed however that it is only where ongoing emotional harm can be accurately and confidently predicted that account can be taken of it in the sentencing exercise, otherwise it becomes a speculative exercise and beyond the proper reach of a judge’s sentencing discretion.

33 His Honour was also satisfied that although there was a persistent course of criminal conduct revealed by the separate and repeated acts of indecent assault and sexual intercourse over a seven month period, there was no physical violence inflicted or threatened in perpetration of any of those offences. Despite the absence of physical harm or coercion, his Honour found that there was a measure of psychological pressure employed by the respondent to ensure that the child did not report what had been happening to her.

(ii) Breach of trust

34 His Honour accepted that despite the absence of any filial relationship between the respondent and the child, he had nevertheless exploited a position of trust he occupied relative to the child and her parents – a position that was founded in his reputation as a decent and moral person and a neighbour who could be trusted to behave appropriately in relation to the children with whom he had unsupervised contact.

35 Finally his Honour accepted for sentencing purposes that the respondent’s primary motivation was personal sexual gratification and not the exploitation of the child for some other reason. I do not regard that finding as in any way ameliorating the objective criminality of the offending as distinct from the presence of some other motive potentially serving to aggravate the offending and to place what might otherwise have been mid range offending into a higher category.

(iii) The significance of the child’s age

36 With respect to the issue of vulnerability, in MLP v R [2006] NSWCCA 271; 164 A Crim R 93 at [22] Kirby J said:

“Unquestionably, the age of the victim is an important consideration in determining the objective seriousness of the crime and whether it falls within the mid range. But it does not follow that, because age is relevant and because the section contemplates a range of ages, an offence against a child approaching the age of 10 cannot be regarded, or should not be regarded, as being within the mid range. The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable. Whilst the age of the victim was a matter for his Honour to consider (which he obviously did) his remarks do not betray error.”

37 His Honour acknowledged that the primary purpose of the criminal law is to protect the community and, in particular, in the context of offences of a sexual nature perpetrated against children, to protect them as the most vulnerable in the community. Having regard to the sentences imposed in this case it is difficult to avoid the conclusion that insufficient weight was given to the fact that the child was six and seven when the offending occurred. The seriousness with which offending against s 66A of the Crimes Act must be viewed (a provision which is age specific) is reflected in the fact that the Parliament provided for an increase of 5 years in the maximum penalty from 20 years to 25 years effective from 1 February 2003, coincident with the introduction of a standard non-parole period of 15 years (see Schedule 2[1] of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002).

Is there error in the assessment of objective criminality in respect of any or all of the offences?

38 Accepting that an assessment of where in a range of notional cases a particular offence might fall is not easy or capable of precise assessment, I am of the firm view that while it was open to his Honour to differentiate between the acts of cunnilingus and penile penetration, and to emphasise the absence of any physical harm that resulted from that offending or the indecent assaults, his Honour failed to give adequate weight to the breach of trust involved in the respondent’s sexual mistreatment of the child and to her very young age. However, despite the fact that a proper weighing of these factors would justify a finding of mid range offending I am not persuaded that his Honour’s assessment of the objective seriousness in the three counts of sexual intercourse as being less than mid range was an error (see House v R (1936) 55 CLR 499).

39 Although the fact that his Honour was not obliged to consider the operation of s 54B(3) of the Sentencing Act given his finding of less than mid range offending, the question arises as to whether a non-parole period of 4 years on each count adequately reflects what is in any event objectively serious offending in the context of an offence for which a standard non-parole period of 15 years is provided.

40 When dealing with the three counts of indecent assaults, and because of his finding that the offending there was within the mid range albeit at the lower end, his Honour expressly acknowledged the operation of s 54(3) of the Sentencing Act in the calculation of sentence. In respect of this offending, however, I not only consider that his Honour’s assessment of it at the lower end of the hypothetical mid range was infected by his failure to give due weight to the breach of trust and the child’s age (in fact his Honour diminished the seriousness of the offending by the fact that the respondent was not a family member) but that it was an erroneous finding in light of the gross nature of the assaults themselves. In my view the offending in each case was very serious offending, justifying an appointment in the mid range well above the lower end of that range.

41 The stated reason for not imposing the standard non-parole period for these offences related to what his Honour described as “a number of other factors” to which I will presently refer. He also applied his findings on these matters when considering the sentences that should be imposed for the offences of sexual intercourse, concluding that they also justified a significant departure from the standard non-parole period.

The significance of the respondent’s prior good character

42 Principal among the additional factors was his Honour’s description of the respondent as a person of “good character, indeed in some respects of exemplary character.” In that connection he referred to a history of voluntary work in the area where he was living, which extended to involvement with fellow Vietnam veterans in another state. His Honour regarded this as constituting positive evidence of his contribution to the community as a community-minded citizen. His Honour also emphasised the fact that the respondent was a person who had no significant criminal history as further evidence of his established good character. He went on to conclude that the behaviour and conduct as revealed by his mistreatment of the young child over what he described as a relatively short period of time as out of character for him. Despite acknowledging that the respondent’s admitted possession of child pornography necessarily qualified his status as a person of good character, and that were those of his neighbours who attested to his impeccable character and contribution to the community to have known of that fact their view of him would likely change very considerably, his Honour was nevertheless of the view that the respondent’s previous good character was entitled to very significant weight in the sentencing exercise.

43 In Lozanovski v R [2006] NSWCCA 143, this Court confirmed the approach that should be taken by a sentencing court when previous good character is relied upon as a matter in mitigation. The departure point was identified by the High Court in Ryan v R [2001] HCA 21; 206 CLR 267. Justice McHugh said at [275]:

“It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced . Because that is so, many sentencing judges refer to the offender’s “previous” or “otherwise” good character.
…. Secondly, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes . The weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances.” (emphasis added)

44 In this case, while his Honour was entitled to take the respondent’s previous good character into account, to afford it “very significant weight”, in my view, failed to recognise the pattern of repeat offending over a period of seven months in the course of an ongoing relationship between the respondent and the child - a relationship which was deliberately fostered by him for his own sexual gratification. Where these features are present a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending, perhaps in the expectation that the child may not see the offending conduct as wrong thereby both avoiding detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character (see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender of a claim for leniency that might otherwise be available where the offending was spontaneous and only involves an isolated incident). The fact that the respondent used child pornographic images in the course of perpetrating one of the offences of indecent assault signifies, in my view, that the offences for which he was convicted were neither opportunistic nor in any meaningful contrast to his outward or public good character.

The significance of the respondent’s psychological condition

45 His Honour also found that the respondent’s chronic ill health was entitled to be given full weight in the sentencing exercise. This was revealed by a complex mix of symptoms referable to an intractable post traumatic stress disorder resulting from his war service record in Vietnam and associated generalised psychological instability since that time. The extent of the post traumatic stress disorder and associated depression was well documented in the materials tendered on sentence and, accordingly, it was open to his Honour to find that this had been productive of significant psycho-social dysfunction over an extended period leading to alcohol abuse with related problems in the respondent maintaining a creditable employment record and personal relationships. The respondent had also made attempts to take his own life in the past such that he was regarded as a suicide risk when imprisoned after the first trial and managed in the Acute Crisis Management Unit for a period of six months. His Honour regarded it as to the respondent’s credit that he was able to live at least an outwardly functional life, and that to the observations of his neighbours he was useful, productive and socially connected whilst he had to live privately with various daemons.

46 Although his Honour recognised that the significance of the respondent’s psychiatric condition and the associated symptoms was difficult to evaluate for sentencing purposes, and despite expressly rejecting any demonstrated link between the offending behaviour and any of the psychological or psychiatric conditions from which the respondent suffered such as might reduce his moral culpability or otherwise have an impact on an assessment of objective seriousness (see R v Way per Spigelman CJ at [88]), he was nevertheless satisfied that it resulted in significantly less weight being given to general deterrence and some weight as a matter in mitigation.

47 The principles that govern the sentence of a person who is mentally ill, are as stated in R v Hemsley [2004] NSWCCA 228: .

“33 Mental illness may be relevant … in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

34 Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

35 Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

36 A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24].”

48 A report from the Forensic Psychology Services of the Department of Corrective Services described the respondent as presenting in December 2007 in good general health without any observable symptoms of mental illness, that self report tests for anxiety and depression did not suggest current difficulties and, that on his own assessment, he has made significant progress in managing his symptoms since he was returned to custody in June 2007. The Crown concedes however that his Honour was entitled to take into account that the respondent’s complex psychological condition would exacerbate his experience of custody since the authors of the report also suggest that on closer assessment and screening the respondent demonstrated low levels of disclosure and what are described as high levels of impression management which may mask his underlying condition and his capacity to progress through the prison system without any deterioration in his mental heath. The authors of the report also ventured the view that at the time of assessment the respondent may have been experiencing a mild manic phase of a mood disorder having regard to perceptible levels of euphoria and overstatement. Overall these findings would appear to be consistent with a report from Dr Westmore in May 2007 (prior to the retrial and the convictions that resulted) to the effect that his prognosis from a psychiatric perspective was poor due to the chronicity of his symptoms.

49 The authors of the report also confirmed that the respondent persisted in his strenuous denials of guilt and a committed belief that his convictions would be overturned but did not suggest that this was an indication of any disturbance in perception or outlook. In these circumstances, and despite the fact that his Honour openly acknowledged that he could not give any weight to his psychological health at the time of the offending as might otherwise diminish the need for denunciation or moral culpability (and that his prosects for rehabilitation were necessarily qualified as a result of his persistent denials of any responsibility for the assaults on the child), he nevertheless regarded the respondent’s psychological health as a significant factor in mitigation.

50 The Crown submits this was a finding that was not open to his Honour and that the weight given to it as a feature of the respondent’s subjective circumstances, together with the weight given to the respondent’s prior good character, was at the expense of the need for the sentence to reflect the dominant principle of general deterrence in recognition of the need to signal that the courts will not tolerate the sexual abuse of children and that condign punishment will result where that offending is found proved.

Conclusion

51 I am satisfied that error has been demonstrated in the sentences imposed on the individual counts, inclusive of his Honour’s failure to give adequate account to the offences on the Form 1and the ultimate structure of the sentencing order compounded those errors. I consider that, given the very serious course of repeated offending for which the respondent was convicted, the sentences fell so far short of what was appropriate that the intervention of this Court is warranted despite the fact that it will involve the respondent being sentenced a third time, and despite the restraint that should be exercised in those circumstances as matter of discretion (see and R v CJP [2004] NSWCCA 188). I am mindful, however, of what this Court emphasised in R v Witchard [2007] NSWCCA 167, namely that a sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court, and will generally be towards the lower end of the available range of sentence.

Re-sentence

52 There was no additional evidence tendered in the event of re-sentence and, importantly, nothing to indicate any change in the conditions under which the respondent is currently detained or any change in his attitude to his offending.

53 Using the standard non-parole period of 15 years as a marker for each of the three offences of sexual intercourse, and endeavouring to synthesise the objective features of that offending to which I have referred (inclusive of what I am prepared to accept for the purposes of re-sentence is offending just outside the mid range) and after a proper weighting of the respondent’s subjective case, I would impose a non-parole period of 6 years in respect of each of counts 1, 2 and 5. Applying his Honour’s view of special circumstances I would impose a balance of term of 3 years on each count.

54 Undertaking a similar exercise in respect of the three counts of indecent assault, but in this instance in accordance with the approach dictated by s 54B of the Sentencing Act, I would impose a non-parole period of 4 years with a balance of term of 2 years in respect of counts 3 and 7 and a non-parole of 4 years and 8 months in respect of count 4 taking into account the Form 1 offences with a balance of term of 2 years.

55 In considering whether the sentences should be served wholly concurrently or partially accumulated in accordance with the principles set out in Pearce v R [1998] HCA 57; 194 CLR 610, I am conscious that the total sentence to be imposed on the respondent must be limited by the principle of totality. It has also been necessary to make a further adjustment to the effective non-parole period to take account of the fact that because I propose to partially accumulate the sentence in respect of Count 7, the finding of special circumstances, which the Crown did not seek challenge on the appeal, would have been neutralised.

56 Accordingly, I propose the following orders:

1. The appeal against sentence is allowed.

2. The sentences imposed in the District Court are quashed.

3. In lieu thereof the following sentences be imposed:

Count 1: a non-parole period of 6 years to date from 26 January 2006 and expiring on 25 January 2012 with a balance of term of 3 years expiring on 25 January 2015.

Count 2: a non-parole period of 6 years to date from 26 January 2006 and expiring on 25 January 2012 with a balance of term of 3 years expiring on 25 January 2015.

Count 3: a non-parole period of 4 years to date from 26 January 2006 and expiring on 25 January 2010 with a balance of term of 2 years expiring on 25 January 2012.

Count 4: a non-parole period of 4 years to date from 26 January 2006 and expiring on 25 January 2010 with a balance of term of 2 years expiring on 25 January 2012.

Count 5: a non-parole period of 6 years to date from 26 January 2006 and expiring on 25 January 2012 with a balance of term of 3 years expiring on 25 January 2015.

Count 7: a non-parole period of 4 years and 8 months to date from 26 November 2008 and expiring on 25 July 2013 with a balance of term of 2 years expiring on 25 July 2015.

In the result, the effective non-parole period is 7 years and 6 months and the earliest date that the respondent is entitled to be considered for release to parole is 25 July 2013.
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