R v Sangalang

[2005] NSWCCA 171

CITATION:	Regina v Sangalang [2005] NSWCCA 171
HEARING DATE(S):	27 April 2005
JUDGMENT DATE:	27 April 2005
JUDGMENT OF:	Hunt AJA at 1-32,33; Johnson J at 32
DECISION:	1. Leave to appeal against sentence is granted; 2. The appeal is dismissed.

CATCHWORDS:	Aggravated indecent assault committed after 1 February 2003 - case falling "just below" the mid-range of objective seriousness - plea of guilty - relevance of standard non-parole period fixed by Division 1A of Part 4 of Crimes (Sentencing Procedure) Act 1999 - sentence falling within upper end of the range of sentences for this offence in Judicial Commission statistics for offences committed before 1 February 2003 - intention of Legislature to increase sentences for all offences of aggravated indecent assault.
LEGISLATION CITED:	Child Protection (Offenders Registration) Act 2000 Civil Liability Act 2002 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Regina v Davies [2004] NSWCCA 319 Regina v Pellew [2004] NSWCCA 434 Regina v Porteous [2005] NSWCCA 115 Regina v Thomson & Houlton (2002) 49 NSWLR 383 Regina v Way (2004) 60 NSWLR 168
PARTIES:	Regina v Victor Sangalang
FILE NUMBER(S):	CCA 2004/3320
COUNSEL:	Mr P Ingram - Crown Mr S Corish - Appellant
SOLICITORS:	Mr S Kavanagh - Crown Mr SE O'Connor - Appellant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/10009
LOWER COURT JUDICIAL OFFICER:	Geraghty DCJ

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF criminal APPEAL

HUNT AJA

JOHNSON J

Wednesday 27 April 2005

REGINA v Victor SANGALANG

Judgment

1 HUNT AJA: The applicant, Victor Sangalang, pleaded guilty in the Local Court to a charge of aggravated indecent assault, and he appeared for sentence in the District Court before Judge Geraghty. The circumstance of aggravation was that the victim, a young girl of thirteen years, was under sixteen years of age.

2 The applicant, a married man and forty-four years old with children, befriended the victim’s mother after a chance meeting at the local shopping centre. Both were members of the Filipino community, although it appears that the applicant’s wife was not a friend of the victim’s mother. The applicant began to attend alone at the victim’s home. On the day in question, the applicant drove the victim, together with her sister and a very young cousin, back to his own residence. Whilst the sister remained in the applicant’s vehicle, he took the victim (who was in her school uniform) and her young cousin inside the residence.

3 When inside the residence, the applicant approached the victim from behind and wrapped his arms around her, using both hands to cup and rub her breasts. The victim pulled away from him but he approached her again, placing his hands on the area of her vagina but outside the school uniform, rubbing her vagina through her clothing. The victim again pulled away from the applicant, but he spun her around and attempted to kiss her on the lips. She managed to pull her head back and, as a result, his kiss was on her cheek. The applicant was then successful in kissing the victim on the lips. Again, the victim pulled away from the applicant, but he was successful in kissing her on the lips for a second time, this time inserting his tongue into her mouth.

4 There were thus five related acts of indecency involved in the charge. The applicant had been convicted of a similar offence some three years earlier for which he had been given a good behaviour bond for three years. This bond had expired shortly before this offence. As a result, the applicant is a registrable person in accordance with the Child Protection (Offenders Registration) Act 2000.

5 The judge gave careful consideration to the matters put forward in mitigation — that the applicant had been affected by amphetamine drugs at the time, that he had only a vague recollection of what had occurred, that he had (he said) pleaded guilty so that the victim did not have to give evidence, that he realised that what he had done was very wrong, that he was aware of the consequences of what he had done, and that he was very sorry. He said that he was also aware of the effect of his conduct on his own family.

6 The applicant agreed that he did have a problem with sexual offending, and he stated that he was willing to seek some treatment. He has been in custody since 17 October 2003 under protective custody but, according to an affidavit he swore last week, he has not yet been successful in obtaining any treatment notwithstanding that he has been interviewed by psychologists. He has undertaken a number of educational courses while in custody.

7 Two character references were provided, but neither referee appears to have known exactly the nature of the offence which the applicant had committed. They did speak of his good reputation within the Filipino community, but that assertion hardly reflects the applicant’s true character. The nature of the two offences he has now committed well illustrates the distinction between character and reputation. The judge appears to have recognised the distinction, in that he held that he would not take the applicant’s character into account apart from his penchant or tendency to be sexually attracted to young girls and as a habitual drug user.

8 The Victim Impact Statement revealed that the assault had indeed had a significant effect on the young girl, and the judge accepted that the emotional harm to the child was significant, although he thought that the harm probably had not been substantial.

9 The evidence produced by the applicant also reveals a lack of acceptance on his part of the seriousness of his conduct, in that he told one clinical psychologist, after the earlier offence but before this offence, that he considered the earlier charge against him to have been exaggerated in comparison to what had in fact happened, and that it had been “no big deal”. He claimed to have learnt his mistake after he had been placed on the good behaviour bond. That claim has certainly been repudiated by the commission of this present offence.

10 The applicant claimed to another psychologist after this present offence that he had not planned this offence, that he had not been attracted to the victim, and that his drug use was solely responsible for his sexual offending rather than any attraction young girls had for him. He claimed that, when using drugs, he was unable to control his behaviour. He said that he had been aware that his advances to the victim in this case were not welcomed and, on reflection (he said), his behaviour was like that of an animal.

11 The applicant told the second psychologist that he had failed to learn from the first offence because the penalty of a bond had seemed to him to be minimal. Had he been sent to gaol the first time, he said, he would have realised that his offence was a bad one. This certainly shows that, contrary to his claims that he learns from his mistakes, the applicant needed condign punishment on this occasion to bring the lesson home to him.

12 The psychologist commented that the applicant still did not spontaneously recognise the need to address his sexually deviant behaviour, and that his claims highlighted his lack of insight into the nature of his problem. She thought that there was the possibility of a personality disorder or of the existence of a clinical syndrome. She identified a number of negative factors which impacted unfavourably on the applicant’s likelihood of future risk of re-offending. One of those factors was his psycho-sexual make up, including his attraction to teenage girls. The applicant also endorsed a number of negative ideas — that the community makes a bigger deal out of sexual activity with children than it really is, that trying to stay away from children is probably sufficient to prevent a child molester from molesting again, and that, if such an offender tells himself that he will never molest again, then he probably will not do so.

13 Notwithstanding that background, the second psychologist assessed the applicant as only a moderate risk of sexual re-offending because of the involvement of drugs in the presence offence, his acceptance “at least in part” of responsibility for the offence, and because he had “some” understanding of the seriousness of his offence. The sentencing judge accepted her opinion. The psychologist did, however, say that, on his release into the community, the applicant will need conditions preventing him from unsupervised contact with female children other than his own. In the light of the applicant’s past need for constant prompting to report to the Probation and Parole Service (and notwithstanding the nature of his rotational shift work), it seems to me that it is unlikely that such a condition would be a practical one.

14 A Probation and Parole officer reported that, in her view, the predatory nature of the applicant’s conduct indicated that this offence was not a spur of the moment or drug-induced decision. She formed the opinion that the applicant’s attraction to young, innocent victims may be more an entrenched personal preference. She said that stringent monitoring by the Department of Community Services was required. Again, in my view, this does not seem likely to be a practical condition to impose.

15 The judge accepted that the applicant had expressed significant remorse and, despite the opinions which had been expressed, that the offence had not been planned. He also found that the applicant had “some” prospects of rehabilitation, and that he seemed to be gaining “more” insight into his conduct, but (as the judge said) he had a substantial way to travel before gaining sufficient insight. The judge acknowledged the need for caution in coming to those views in the light of the opinions which had been expressed. The judge accepted that special circumstances had been established, and he imposed a total sentence of imprisonment four years and three months with a non-parole period of two years and nine months.

16 This was a case to which Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 applied. The standard non-parole period provided by s 54D for this offence is five years, which is almost 71.5 per cent of the maximum sentence of seven years. Such a non-parole period is applicable only to offences “in the middle of the range of objective seriousness”; wherever the objective seriousness of the particular offence is either lesser or greater than that of an offence in that mid-range, the standard non-parole period is not obligatory: Regina v Way (2004) 60 NSWLR 168 at [66]. Nor is the standard non-parole period obligatory where the offender is being sentenced after pleading guilty rather than after a trial: Ibid at [68], [71]. The standard non-parole period does, however, remain relevant as a reference point or a guide post to what is the appropriate non-parole period in any case for which it is not obligatory; Ibid at [122]. See also Regina v Davies [2004] NSWCCA 319 at [6], [29].

17 The judge did not accept the Crown’s submission that the present case fell within the mid-range to which the standard non-parole period applied. He held that it fell “just below” that range, because the offence did not extend over a period of time, it was committed in the presence of the very young cousin of the victim, the victim was able to escape without a struggle and there was no attempt to intrude under the victim’s clothing nor to make flesh-to-flesh contact. That was a finding which was open to the judge, although the applicant says that the finding was erroneous and that it placed the seriousness of this offence too high, a submission to which I will return.

18 The judge correctly recognised that, by reason of the finding which he did make, and also because there had been a plea of guilty, the standard non-parole period prescribed by s 54D did not apply directly to this offence. However, it is asserted by the applicant that, notwithstanding that recognition, the judge nevertheless did err by adopting the standard non-parole period as his starting point in assessing the non-parole period appropriate to this case.

19 What the judge did was to determine first that the appropriate reduction for the early plea of guilty was twenty-five per cent, as that plea saved the expense and inconvenience of a long trial and it also saved the child having to give evidence. In the course of his determination of that first issue, the judge said that, as a standard non-parole period applies to offences only where the offender has been found guilty after a trial, an appropriate deduction should be made for a plea of guilty. If it was the judge’s intention by that statement to suggest that an appropriate deduction should be made by reference to the standard non-parole period, rather than to the non-parole period otherwise determined to be appropriate in the particular case, his approach was clearly erroneous, as the deduction must be made to the non-parole period found to be appropriate in that case.

20 Later in his remarks on sentence, the judge indicated a different intention, one to follow the correct approach in relation to the discount for the plea of guilty, when he said:

It seems to me, for the reasons I have given, that the standard non-parole period of five years should be reduced by twenty per cent and that this reduced period should be further reduced by twenty-five per cent because of the plea of guilty. [The emphasis has been added to the original.]

Unfortunately, the first part of that statement produces the clearest evidence supporting another complaint made by the applicant, that the judge used the standard non-parole period as a starting point rather than as a reference point for determining the appropriate non-parole period for this case, a complaint to which I will return shortly.

21 Moreover, notwithstanding the intention stated in that quoted passage, the calculation which the judge in fact made for the discount to be given for the plea of guilty appears to indicate that he was following the earlier, clearly erroneous, approach. Having reduced the standard non-parole period of five years by twenty percent (that is, fixing the appropriate non-parole period at four years), he then deducted from that reduced period not twenty-five per cent of that reduced period (which would have meant a reduction of one year) but twenty-five per cent of the standard non-parole period of five years (a reduction of fifteen months). That error benefited the applicant by a non-parole period three months shorter than it should have been, but the applicant has argued that, notwithstanding that benefit, the error indicates that the judge did commit a further error in using the standard non-parole period as the starting point rather than as a reference point. To that complaint I now return.

22 It could perhaps be that the judge merely intended to say that he had fixed the non-parole period appropriate to the present case at four years, and then merely described it as the equivalent of eighty per cent of the standard non-parole period, but if he did reason in that way (which I doubt) his description was a particularly unfortunate one. A sentencing judge should state no more than that he or she has used the standard non-parole period as a reference point or guidepost, and then identify the appropriate non-parole period, describing where significant any particular matters taken into account in doing so. That appropriate non-parole period should never be described as a percentage of the standard non-parole period.

23 Of course, however a judge approaches the calculation of the appropriate non-parole period in the particular case under consideration, it is inevitable that a comparison will eventually be made of the non-parole period so fixed with the standard non-parole period, and that that comparison will then inappropriately be described, by those who study these matters, by way of a percentage of the standard non-parole period. That will not be helpful to proper sentencing practices, and judges should take great care not to encourage such a practice by referring to such percentages. If the practice does continue, the arguments on appeal from such sentences will give rise to a comparison with the rather arid appeals from assessments of the percentages of the degree of permanent impairment for the purposes the Civil Liability Act 2002 and similar statutes. That will not be helpful either.

24 The error of which the applicant complains, that the judge used the standard non-parole period as his starting point rather than a reference point, is made out by the passage from his remarks on sentence already quoted. The error is conceded by the Crown, although it has argued that this Court should not interfere with the sentence imposed as a result of that error because no lesser sentence is warranted in law. That can only be determined after all of the applicant’s arguments have been dealt with.

25 The next argument of the applicant is that the judge erred in his assessment of the objective seriousness of the case. He points to the circumstances that the indecent assault was not prolonged, that it was not committed in the context of a history of abuse of the child, that the girl’s clothing was not removed and that there was no direct skin-to-skin contact. The judge took into account all but one of those matters (the second) in coming to the decision that he did. However, the matter omitted was obvious from the facts, and in any event its omission does not, in my view, alter the situation. I am not persuaded that, despite these factors, the judge’s assessment of the objective seriousness was in error. On any basis, the case was a substantially serious one.

26 The applicant also complains that there should also have been a further discount for contrition. The judge fixed the non-parole period, as he said, bearing in mind all of the mitigating and aggravating factors. It would have been wrong for the judge to assess an amount by which the view he had taken of the objective seriousness of the offence should be reduced for each factor in mitigation. The correct approach is to take all of the mitigating and aggravating factors into account together. It is, of course, often the case that a judge will nominate a particular percentage for the plea of guilty pursuant to the guideline judgment of Regina v Thomson and Houlton (2002) 49 NSWLR 383. The reason for doing so may be to avoid any suggestion that there has been a non-compliance with s 22 of the Crimes (Sentencing Procedure) Act, despite the clear terms of s 22 of that Act which deny the need for the amount of the reduction given to be nominated by the judge in the course of his or her remarks on sentence.

27 I am not persuaded that the judge erred in his assessment of the objective seriousness of the case.

28 Finally, the applicant has argued that, notwithstanding the judge’s finding that the objective seriousness of the offence was “just below” the mid-range, the total sentence imposed falls within upper end of the range of sentences for this offence as revealed by the sentencing statistics maintained by the Judicial Commission, and that the sentence was thus manifestly excessive.

29 That the sentence bore such a relationship to the statistics is hardly surprising. As this Court said in Regina v Way (at [134], [142] , the effect of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act is that the pattern of sentencing will move upwards for some offences above the range demonstrated by the previous sentencing statistics. The standard non-parole period for this offence, as I have said, is set at almost 71.5 per cent of the maximum sentence, which is far above the medium range of sentences imposed before Division 1A came into effect. The nominated standard non-parole period for this offence of aggravated indecent assault was the clearest indication of an intention by the legislature in Division 1A that such an increase was to be the case for this offence: Regina v Pellew [2004] NSWCCA 434 at [37], [52]. And, as the standard non-parole period is a reference point for all offences of aggravated indecent assault to which such a non-parole period does not directly apply, it was the intention of the legislature that the sentences for all those offences were also to increase. The statistics of sentences imposed for offences which were committed before Division 1A of Part 4 of the Act came into operation (1 February 2003) are, therefore, of very limited use indeed: Regina v Porteous [2005] NSWCCA 115 at [49].

30 I am not satisfied that the sentence imposed by the judge in this case was manifestly excessive as asserted by the applicant. Indeed, I am of the view that the applicant was very fortunate with some of the judge’s findings in his favour. If the error established were to lead to a re-sentencing, some of those findings are such that they may not withstand further scrutiny. Quite apart from what may have been the unintended reduction of the apparently intended non-parole period by three months, the sentence imposed was in no way an excessive one for the circumstances of this case. In my view, therefore, it would not be appropriate for a lesser sentence to be imposed in this case. This Court of accordingly unable to quash the sentence and pass another in substitution for it: Criminal Appeal Act 1912, s 6(3).

31 Because the judge’s process of reasoning in adopting the non-parole period which he described as the standard non-parole period less twenty per cent invited complaint, and as this is (so far as I am aware) the first case in which the error which occurred (whether mathematical or otherwise) has been examined in this Court, I would grant leave to appeal, but I would then dismiss the appeal. Those are the orders I propose.

32 JOHNSON J: I agree.

33 HUNT AJA: The orders of the Court are therefore as I have proposed.

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