R v RC

[2014] NSWDC 386

District Court

New South Wales

Medium Neutral Citation:	R v RC [2014] NSWDC 386
Hearing dates:	20 June 2014
Date of orders:	20 June 2014
Decision date:	20 June 2014
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [32] – [33]
Catchwords:	CRIMINAL – aggravated indecent assault – SENTENCE – sentencing following a re-trial – offender already served more time in custody than can be imposed by the new sentencing judge – the ‘ceiling principle’ – prior criminal record – totality – expired sentence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Pearce v The Queen [1998] 194 CLR 610 Mill v The Queen (1988) 166 CLR 59 Muldrock [2011] HCA 39 R v Gilmore (1979) 1 ACR 416 R v McL v The Queen (2000) 203 CLR 452 Bedford (1986) 5 NSWLR 711
Category:	Sentence
Parties:	Regina (Crown) RC (Offender)
Representation:	Counsel: Mr Lungo (Crown) Mr Evers (Defendant)
File Number(s):	2008/00016107
Publication restriction:	Nil

SENTENCE

1. HIS HONOUR: The prisoner, RC, appears today for sentence in relation to two counts in respect of which he was found guilty by me last Friday. I gave judgment in that matter last Friday, as I was required, sitting as a judge alone, and set out the various facts I found in respect of the two matters and I do not propose to reiterate them for the purposes of this proceeding.

2. The background to the matter I have already dealt with in judgment but briefly, as it is relevant to this sentencing exercise, the prisoner was found guilty of three counts by a jury and was sentenced by her Honour, Judge Flannery, in relation to those three counts, on 17 December 2009. The presiding judge, his Honour, Judge Goldring, at the trial, had passed away in very early October 2009 and thus it fell to another judge to sentence the prisoner.

3. In relation to count 1 on the indictment for which the prisoner was to be sentenced by her Honour, Judge Flannery, the prisoner was sentenced to a total sentence of four years and seven months. That seems to date from 19 April 2011. Her Honour fixed a non‑parole period of two and a half years. In respect of count 5 on that indictment, which is count 4 on this indictment, the offender was sentenced to a total sentence of 32 months with a non‑parole period of two years. That sentence to date from 19 October. Thus, it can be seen that the sentence for count 1 which was the longer sentence, was partially accumulative upon what is count 4 on the current indictment, to the extent of six months, to reflect the usual practices commensurate with totality of sentencing as discussed, for example, the High Court judgment of Pearce v The Queen [1998] 194 CLR 610, particularly at [45], and otherwise discussed in a range of authorities, including the High Court judgment in Mill v The Queen.

4. The structuring of the sentences by her Honour took place in the context of the offender having been found guilty by a jury presided over by his Honour, Judge Lakatos, in respect of offences with which I am not concerned, due to a judgment I gave three weeks ago or thereabouts. Thus, her Honour was sentencing the offender in the context of the existence of other sentences which are no longer applicable. My calculation of the total sentences imposed by her Honour, in respect of matters with which I am now concerned, is a total sentence of five years and one month. But the non‑parole periods fixed by her Honour have a degree of artificiality by reason of partial accumulation of those sentences by a relationship to other sentences which are no longer. I point out that her Honour also had to sentence the prisoner in respect of an offence for which I found the accused not guilty.

5. The crimes for which the prisoner is to be sentenced are offences contrary to s 61M(1) Crimes Act 1900. The maximum penalty for each of these offences is seven years’ imprisonment. The legislature has decreed in this particular instance, and by reference to one or two other offences on the table of Pt 4, Div 1A Crimes (Sentencing Procedure) Act, a standard non‑parole period that frankly does not represent in any way, a mathematical statement of an appropriate non‑parole period for a sentence of this maximum but the legislature has not chosen to amend those provisions and they stand.

6. I have regard in sentencing the offender, by reference to the standard non‑parole period, the observations, firstly of the High Court in Muldrock, particularly at [20] - [30] of that judgment, and I also bear in mind of course, the recent amendments to particularly ss 54A and 54B Crimes (Sentencing Procedure) Act, as they relate to what are the relevant matters to be taken into account. It is quite clear, both by reference to what is left of Muldrock, as a relevant authority and the legislation, that the matters pertaining to consideration of the standard non‑parole period, are matters that are only concerned with assessing the objective seriousness of the offending. Of course, the Court has to take into account other features of the matter as well, as both the legislation and the decision in Muldrock makes clear.

7. I have read her Honour’s judgment in this matter which is to the point and concise. I note in relation to the penalties imposed by her Honour in respect of the offending with which I am concerned, that there was no Crown appeal against the inadequacy of the sentences imposed, in the context of the characterisation of the offending, with which I agree, set out in her Honour’s judgement by reference to the objective circumstance of the offence. The sentences imposed by her Honour were in reality quite unremarkable.

8. The offender appears now off bail, if that be correct or certainly at large, in the context of having been in custody from 19 July 2007 until 24 September 2013 when he was granted bail after his successful appeals to the Court of Criminal Appeal in respect of the matters for which he had been convicted by juries and had been sentenced. The total period of time in custody was six years, two months and six days. I have already pointed out that the totality of the sentence imposed by her Honour, that I am concerned with, is a total of five years and one month, as I calculated.

9. The pertinence of her Honour’s sentencing of this offender, admittedly in a context that no longer applies, that is the offender having been found guilty of other offences previously, is that in the sentencing of offenders following a retrial ordered by a superior court, a binding principle, subject to some exceptions, is that an offender if convicted on retrial should not, “ordinarily”, receive a longer sentence or non‑parole period than that imposed after the first trial, unless there is some significant circumstance to be taken into account. A number of judgments support this proposition but I need only cite the decision of R v Gilmore (1979) 1 ACR 416, particularly at [419], and the judgment of the High Court in R v McL v The Queen (2000) 203 CLR 452, particularly at [72].

10. Of course, the principle is not intended to fetter the independent discretion of the sentencing judge. So has been held in judgments, such as Merritt, a decision of the Court of Criminal Appeal in 2000. It is open for the judge to impose a higher sentence if the original sentence was “manifestly inadequate” or, “remarkably lenient”. However, the exercise of that discretion to increase the original sentence is, of necessity, “rare”, as discussed by the High Court in R v McL v The Queen (2000) 203 CLR 452.

11. In this particular matter, bearing in mind of course, the prisoner comes forward for sentence for these offences with matters that her Honour took into account no longer relevant, I could not conclude by reference to the maximum penalties and the standard non‑parole period for that matter, that the sentence imposed by her Honour, set aside by the successful conviction appeal to the Court of Criminal Appeal, was either, “manifestly inadequate”, or “remarkably lenient”. Of course, there is one other feature of that, in case my judgment was ever brought into doubt, that is the fact the Crown sought not to appeal the inadequacy of the sentence, as I would understand it. In any event, I am confronted with the reality that the prisoner has spent more time in custody than the maximum that I am permitted to impose by reason of what I have described as “the ceiling principle”.

12. Of course, I also point out, consistent with what I have already said, that significant circumstances that may affect resentencing, might include aggravations of further offences committed whilst in custody or whilst on bail, or on the other hand, where there were multiple convictions but not all are the subject of resentencing after trial. It can be significant that the original sentences were modified by considerations of totality and that has been held in, for example, the decision of Bedford (1986) 5 NSWLR 711.

13. As I said, I have regard to her Honour’s judgment. I have had provided to me today, and the material that was before her Honour. There was some objection to that material but it seems to me, with respect, that I am entitled to have the material upon which her Honour sentenced the offender on the last occasion, even if some of that material she regarded not of great moment. Part of the material that is available to the Court, which as I understand it was available on the last occasion, is material from the Department of Corrective Services and Community Corrections. I have read through that material as it is relevant to the assessment of the offender’s risk of re‑offending and his prospects of rehabilitation. The truth of the matter is, in the context of the offending that I have identified, given the prisoner’s criminal history - I mean this in no way of personal criticism - the prisoner is a person who, to my mind, is at risk of re‑offending in the future. Thus in the context of, for example, the matters I need to take into account under s 21A(3), there is little to be found by way of mitigating factors. Certainly, it is to be fairly said in the way in which the prisoner approached this litigation, and I particular refer to count 4 in my indictment given the film evidence, there is very little if, in fact no evidence, of contrition on the part of the prisoner. Despite what I personal regard as overwhelming evidence at the very least, of a highly improper relationship with the victim.

14. With regard to the prisoner’s criminal history, if I might pause for a moment, her Honour of course took that into account but I note the fact that the prisoner has convictions in relation to a range of matters, some of course quite minor, going back to 1981. Significantly, he was convicted in the Supreme Court, as I would understand it if he was sentenced by his Honour, Justice Slattery, in June 1991, in respect of various offences of homosexual intercourse with a child under the age of ten, for which he received a number of terms of imprisonment. As I would understand it, the terms of imprisonment were the subject of appeal to the Court of Criminal Appeal and the appeal was dismissed, although leave was granted for the appeal to be conducted. The crimes involved were very serious crimes indeed, as reflected in the significant sentences imposed by his Honour.

15. I also note that the prisoner was convicted in 2002 of an offence of possessing child pornography, for which he was further sentenced to a term of imprisonment although with a comparatively modest non‑parole period to that imposed by the Judge of the Supreme Court. The prisoner has some other convictions in Queensland, but they effectively predate the significant matters to which I have made reference.

16. I refer to this criminal history, if I may, in the context of going back to consider some of the material that was before her Honour. Again I put these matters on the record because they deserve to be on the record, not in any way to cause embarrassment to any particular party. I note in the formulation that was undertaken in the “psychological report” prepared by the Forensic Psychology Services of the Department of Corrective Services reflecting upon the prisoner’s background and like matters, which I need not dilate upon at this point, that the reporters, who included a clinical psychologist and the Therapeutic Manager of Forensic Psychological Services in the Sex Offender Programs for Corrective Services noted:

“However the primary predisposing factors for this offence are”‑‑ that is the offences in part with which I am concerned:

“RC’s sexual interest in and his emotional identification with young boys. This leads to an offence pattern whereby he builds a relationship with young boys to meet his needs for closeness and intimacy. His sexual attraction to young boys then leads him to sexually offend against them. It is also clear from the 1991 offences that he is able to sexually offend against young boys without first establishing an intimate bond. RC has failed to manage his risk factors and he remains in denial of the current and 1989 offences. His high risk for reoffending will need to be addressed in psychological treatment.”

17. I discussed this with learned counsel for the prisoner. Of course counsel for the prisoner is in a difficult position given some of the constraints upon this sentencing exercise. But those words that I have just read far more eloquently summarise what I have concluded from the evidence available to me in this Court.

18. Even though I acquitted the offender in relation to other counts involving another complainant, it is quite clear that the relationship that the prisoner developed with that complainant, as with the complainant with which I am concerned now, was a relationship that very much reflected the character of grooming of a young person because of the prisoner’s development, at the very least, of an emotional and most probably a sexual interest in the particular victim.

19. I note throughout the material that is available to me from the previous sentencing proceedings in 2009 and the conduct of proceedings in relation to these charges at this time, a strong element of denial on the part of the prisoner of responsibility for what has either been proven in the past or, to my mind, is demonstrated unequivocally in the film of the prisoner’s conduct towards the victim in this matter, which was exhibit F in the trial. To be frank that is a matter of considerable concern because, to put it in blunt terms, what that film shows of the prisoner’s attention to the victim reflects what I regard as an entirely unnatural relationship that would cause the parent of the particular child to be greatly aggrieved.

20. I note the various findings of her Honour in relation to the material available to her and I have no reason to doubt or discuss any further her findings other than say that I am in agreement with them, although it must be said I might be in a better position than her in sentencing the prisoner because I have had the opportunity to see the relevant complainants and to experience the evidence at firsthand.

21. I earlier pointed out in the course of discussion of this matter with learned counsel for the accused the fact that though I am constrained in relation to the sentencing of the offender even though I am not suggesting that I would impose a greater sentence than that imposed by her Honour for a raft of reasons particularly having regard to the ceiling principle, as a judicial officer with certain public responsibilities I am deeply concerned about the interests of the prisoner and the interests of the community because the prisoner is in some form of denial in relation to his behaviour. It would seem, because of the successful appeal to the Court of Criminal Appeal, he has not undertaken the programs that it is thought best for him to undertake. I am mindful of the fact, from my own experience of particular categories of offender, they are completely resilient to any attempt to assist them to stop offending in the future.

22. In relation to this matter I have naturally had regard to s 21A Crimes (Sentencing Procedure) Act. Her Honour directed some attention to those matters and there is no need for me to dilate upon them. Their significance in the sentencing of this offender, as with all offenders where there is a standard non‑parole period, has been made clear by the terms of Pt 4 Div 1A Crimes (Sentencing Procedure) Act and, of course, decisions emanating from Muldrock and Muldrock itself.

23. I have also been provided with the sentencing remarks of his Honour Judge Lakatos. They are not of the same salience as the observations of her Honour. But they do provide details in relation to the basis upon which his Honour sentenced the prisoner on the occasion that he was required so to do. I note in relation to the prisoner, to support the remarks I have earlier made, that the Probation and Parole Service reported to her Honour, as I would understand it, that the prisoner “maintained his innocence” and:

24. “Appeared to not show any remorse for his offending behaviour. Of course, the fact that given his denial of the current offences the offender would not be able to engage with this Service, which would risk his chances for therapeutic interventions.”

25. Of course one thing I do know from having seen multiple offenders going into custody or coming out of custody having committed particularly sexual assault offences, the denial of an offender obviously is relevant to treatment and makes such treatment impossible. This is a matter of concern.

26. I accept the submission of the Crown that I am required to fix a non‑parole period in relation to the sentences that I must impose. That because of the existence of a standard non‑parole period, the legislature and the cases that have interpreted the legislation make it clear that where a standard non‑parole period is available for a particular offence, whatever structure a sentencing judge gives to the sentences, there must be a non‑parole period fixed.

27. In the circumstances of this matter I must give the prisoner, however, full credit for all the time that he has spent in custody and in fixing the sentences imposed by her Honour, both I and she, of course, have had regard to s 3A Crimes (Sentencing Procedure) Act. Unfortunately, given the matters that I have already referred to the opportunity for this Court in any way to promote the rehabilitation of the offender is denied by the realities of the sentencing situation. Thus, I propose to impose the same sentences that were fixed by her Honour.

28. I have earlier pointed out, of course, that the offender comes forward for sentence in somewhat different circumstances than presented to her Honour, given the acquittals in relation to the matters for which Judge Lakatos imposed sentences. But it does not lead me to the conclusion that I should impose any sentence less than that imposed by her Honour. In my view this is not inconsistent with the ceiling principle to which I earlier referred.

29. As her Honour, in fixing the sentences, imposed the sentence that was shorter in time to proceed first, so will I. That is the only way that structure can be given to the sentences to reflect the totality of the criminality in the sentencing of the offender.

30. Just before I turn to the matter of sentencing, I have noted the reports of Dr Phillips from 1991 and the report of Dr Jacmon. It seems that Dr Jacmon’s views in relation to the matter reflected the existence of a personality disorder which would be difficult to make amenable to any particular coherent treatment. But it is also true that Dr Jacmon pointed out that the disorders that he assessed were “unlikely to resolve by themselves”. He noted, of course, the offender’s denial of responsibility for his conduct but noted also that if the prisoner admitted the offence in the future he would benefit from programs. The problem is, of course, that there seems no likelihood that the prisoner will have sufficient insight to take responsibility for his conduct.

17. Ultimately that is not a matter that can deny the prisoner a non‑parole period, nor is it a matter that I can reasonably regard as pertinent to increase the sentences imposed by her Honour because this material was available to her Honour when she sentenced the prisoner.

18. In relation to count 4 on the indictment you are convicted. I sentence you to a term of imprisonment by way of non‑parole period for two years. That term of imprisonment will commence on 19 July 2007 and will expire on 18 July 2009. I fix a balance of sentence in relation to that sentence of eight months and that balance of sentence will expire, on my calculation, on 18 March 2010.

19. In relation to count 1 on the indictment you are convicted. I sentence you to a term of imprisonment by way of non‑parole period for two years and six months. That non‑parole period will commence on 19 January 2008. It will expire on 18 July 2010, and in respect of that sentence I fix a balance of sentence of two years and one month, which expires on 18 August 2012.

20. Are those dates correct, gentlemen?

21. EVERS: Yes your Honour.

22. LUNGO: Yes your Honour.

23. HIS HONOUR: In the circumstance where, of course, those sentences have expired and there is no issue of releasing the prisoner to parole, there is no issue for the Parole Authority to address. Thus, the prisoner will not be remanded into custody given the fact that the totality of the sentence has expired.

Decision last updated: 22 February 2017