R v Smith - [2003] NSWCCA 353

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Smith [2003] NSWCCA 353

FILE NUMBER(S):
60264 of 2003

HEARING DATE(S): 24/11/03

JUDGMENT DATE: 24/11/2003

PARTIES:
Regina
v
Kenneth Alfred Smith

JUDGMENT OF: Meagher JA Kirby J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1185

LOWER COURT JUDICIAL OFFICER: Bellear DCJ

COUNSEL:
A: A Francis
R: G I O Rowling

SOLICITORS:
A: S O'Connor
R: C K Smith

CATCHWORDS:
SENTENCES: Inadequacy - attitude taken by Parliament; Accumulation of sentences - Previous sentence and current sentence; Principle of totality - Effect on applicant of accumulation of sentences; Special circumstances - Difference in allowance made in individual sentences and overall term; Direction of trial judge.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave to appeal refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60264 of 2003
MEAGHER JA
KIRBY J
SHAW J
Monday, 24 November 2003

Regina v Smith

Judgment

MEAGHER JA: The Court is in a position to give judgment. I shall give the first judgment.
This is an application for leave to appeal on behalf of Mr K A Smith, who was convicted before Bellear DCJ in the District Court at Dubbo on 20 December 2002 following a plea of guilty in respect of five offences presented upon indictment, namely, two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 and three counts of aggravated sexual assault contrary to s 66A of the Crimes Act 1900. The case is a very serious one.
The details of the five counts to which I have referred are as follows: count 1, aggravated indecent assault committed between 1 November 1997 and 5 April 1998; count 2, aggravated sexual assault committed between 1 November 1997 and 5 April 1998; count 3, aggravated indecent assault committed between 24 March 1998 and 18 December 1998; count 4, aggravated sexual intercourse committed between 24 March 1998 and 18 December 1998; and count 5, aggravated sexual intercourse committed between 19 December 1998 and 20 April 1999.
In the case of these five counts, the sentences imposed by his Honour were as follows:
Count 1: Three years and six months to date from 29 July 2001;
Count 2: Seven years to date from 29 July 2002;
Count 3: Three years and six months to date from 29 July 2003;
Count 4: Seven years to date from 29 July 2003;
Count 5: Seven years to date from 29 July 2005.
There are various non-parole periods. The curiosity, which may be apparent when one considers the first count, which dates from 29 July 2001, seems to be explained by the fact that that is the date where his non-parole period on a previous sentence expires. Mr Smith was convicted also before Bellear DCJ and that conviction was affirmed in this court whereby he was sentenced to serve four years and six months commencing on 29 April 1999 with a non-parole period of seven months commencing on 28 July 2001. Whilst that conviction was previous in point of time the events to which it referred were later in point of time than the ones involved in the instant case.
Each of the matters involved in the previous convictions and in the present convictions involved offences of a sexual nature against a small child. I think it is worth noting, because it is the only aspect of the case that has not been drawn to our attention by either counsel, the extreme seriousness with which Parliament regards these offences. An offence under s 61M of the Crimes Act 1900 has a maximum penalty of ten years and an offence under s 66A of the Crimes Act 1900 carries a maximum penalty of twenty years. Any argument dealing with the adequacy or inadequacy of sentence ought, in my view, take as its starting point the attitude that has been expressed by our Parliament.
The first argument which has been presented on behalf of Mr Smith by Ms Francis, with her usual skill and thoroughness, concerned what in effect was said to be a miscalculation of the periods. As can be seen from the facts I have already recited the terms of imprisonment imposed by his Honour overlap to a considerable extent and, to some extent, are cumulative. The way Ms Francis approached it was this: if you take the previous conviction and add those to the current convictions you get a total sentence of thirteen years and three months with a total non-parole period of ten years and three months, giving you a ratio one to the other of seventy-seven per cent, whereas the ratio should be seventy-five per cent or less.
In my view that method of approaching it contains a logical fallacy. One should not accumulate the earlier sentence with the later sentence. In imposing the later sentence one certainly must have regard to the earlier sentence and that is not in dispute; but it does not say that one accumulates them. If one does not accumulate them, but looks merely at the sentences imposed in the matters now on appeal, one has a different situation, one has sentences of eleven years with non-parole periods of eight years, which will give you a figure of seventy-three per cent, which is well within the statutory limit and, I should have thought, well within his Honour’s discretion.
In my view no point is to be made by looking at percentages and calculating figures on the basis that one is at liberty to accumulate the previous sentence with the current sentence. In my view that ground of appeal must fail.
There is a further ground, which has been alleged by Ms Francis and that was that as a whole the sentences imposed by his Honour were excessive. In this regard she has drawn our attention to a large number of cases where on the superficially similar facts more lenient sentences have been granted. In this case, as in many others, I find that I get no assistance from comparing the current sentences with sentences imposed in other and very different cases. The duty of the judge was to impose such sentences as he deemed to be sufficient and, in that regard, having regard to the wishes of Parliament.
In my view the learned trial judge did not trespass beyond his brief, he imposed sentences that were at least within his discretion and probably fully justified. There were very special circumstances, which he took into account and it is apparent from his Honour’s judgment that he did take them into account. One was the question of accumulation, one was Mr Smith’s need for ongoing therapy for sex offenders, one was Mr Smith’s psychiatric state, one was his need for guidance and one was the fact that he was serving his sentence under protection. All those matters appear from the particulars before his Honour. Insofar as his Honour did not expressly take them into account his Honour did, in my view, impliedly take them into account.
In addition there can be no doubt his Honour, having expressly found, did pay adherence to the principle of totality. I can find nothing wrong with the sentences of his Honour and I can see no reason to reduce them on the grounds of severity, particularly, I might add, is that so when one considers the objective gravity of the offences.
Ms Francis conceded, viewed objectively, the offences were very serious indeed. There is no doubt her concession is properly made. If one thinks about it, the gravity was enormous, the offences were not only, in each case, of the most unpleasant kind, the offences were as a whole perpetrated over a considerable period. The victim of the offences was a girl under the age of ten years, she was the applicant’s step-daughter and therefore each offence involved a serious breach of trust. The offences were all carefully planned and the victim suffered from the most serious traumatic stress disorder. When these factors are taken into account and weighed up against the special circumstances I think the ultimate conclusion to which one must come is that leave to appeal should be refused and that is the order I propose.
KIRBY J: With respect to the learned presiding Judge, I disagree. Mr Smith pleaded guilty to five counts. They concerned the same complainant, a girl under the age of ten years, namely eight years at the time of some offences, and nine years at the time of others. The charges were as follows:
Count 1: indecent assault of a child under ten years contrary to s 61M(2) of the Crimes Act 1900, for which the maximum penalty is ten years imprisonment.
Count 2: sexual intercourse with a child under ten years contrary to s 66A of the Crimes Act 1900, for which the maximum penalty is twenty years imprisonment.
Count 3a: indecent assault of a child under ten years also contrary to s 61M(2) of the Crimes Act 1900.
Count 4: sexual assault of a child under ten years also contrary to s 66A of the Crimes Act 1900.
Count 5: sexual intercourse with a child under ten years also contrary to s 66A of the Crimes Act 1900.
The circumstances giving rise to these charges were the subject of an agreed statement of facts, incorporated into the remarks on sentence of the learned sentencing Judge as follows:
“The complainant Sarah was born on 15 August 1989, she is now aged thirteen. When Sarah was aged approximately seven, the offender Kenneth Smith formed a relationship with Sarah’s mother, Karen. At this time Sarah and her mother were living in Lithgow. Subsequently Sarah’s mother gave birth to her brother, Bradley on 12 May 1997.
In November 1997, Sarah’s family, which then included her mother, Bradley and the offender Kenneth Smith, moved to Dubbo where they lived until approximately late March 1998. By this time Sarah was eight years old. Whilst at the Dubbo home it is alleged that the offender, Kenneth Smith, indecently assaulted Sarah.
Count 1: After moving to Dubbo Sarah recalls an occasion when she was required to clean up at the house. Her mother was outside. It is alleged that the offender told Sarah to go to her room. The offender also went to the room. The door was shut. When in the room, the offender told the complainant Sarah to pull her pants down. The complainant’s pants were pulled down. It is alleged that the offender then touched Sarah’s vagina with his finger. He did not penetrate her. Sarah was aged eight at this time.
Count 2: On another occasion when living in Dubbo Sarah’s mother was not home. On this occasion it is alleged that the offender took Sarah to the bathroom of the house. The offender then undid his zipper and told Sarah to suck his penis. She did as she was told and moved her mouth onto his penis. As she did this, the offender was also holding his penis. The offender ejaculated after which Sarah spat out the semen from her mouth. She was still aged eight at this time.
Count 3: In late March 1998 the offender and Sarah’s family moved to Gilgandra to live. They lived at Gilgandra until December 1998. Whilst living at the Gilgandra property, Sarah recalls that she was with the offender chasing emus on a motorbike. Subsequently the offender stopped the motorbike and told Sarah to pull her pants down. The offender then placed his finger on Sarah’s vagina. He did not penetrate her. After touching her vagina, the offender and the complainant continued to chase emus. Sarah was eight or nine at the time of this offence.
Count 4: On another occasion in Gilgandra her mother was not present. The offender took Sarah to the bathroom of their house. In the bathroom the offender told Sarah to suck his penis. He undid his zipper and took out his penis. She then performed fellatio on the offender until he ejaculated. She was eight or nine at this time.
Count 5: After living at Gilgandra the family moved to Mendooran in December 1998. At this time they lived on a farm. Sarah recalls being taken to a shed by the offender. In the shed the offender pulled his pants down and told Sarah to suck his penis. She did as she was told and performed fellatio on the offender until he ejaculated. She was nine at this time.
On 28 April 1999 Sarah spoke to her mother and told her about the offender’s sexual contact with her. The next day Mrs O’Neill called the police. Thereafter the relationship between Sarah’s mother and the offender ended. A statement was subsequently obtained from Sarah on 19 May 1999.
On 24 April 2002, police formally spoke to the offender at Penrith police station. He agreed to be interviewed. During the interview the offender denied the allegations against him. He was later charged.”
The offences were plainly serious. It is unsurprising the effect upon the victim has been severe. It was a circumstance of aggravation that the victim was the offender’s step-daughter. The offences involved premeditation. They took place over a number of years.
His Honour fixed the following sentences in accordance with Pearce v The Queen (1988) 194 CLR 610:
Count 1: Imprisonment for a fixed term of three years and six months to date from 29 July 2001 and to expire on 28 January 2005.
Count 2: Imprisonment for seven years to date from 29 July 2002 and to expire on 28 July 2009 with a non parole period of four years to expire on 28 July 2006.
Count 3: Imprisonment for a fixed term of three years and six months to date from 29 July 2003 and to expire on 28 January 2007.
Count 4: Imprisonment for seven years to date from 29 July 2003 and to expire on 28 July 2010 with a non parole period of four years to expire on 28 July 2007.
Count 5: Imprisonment for seven years to date from 29 July 2005 and to expire on 28 July 2012 with a non parole period of four years to expire on 28 July 2009.
His Honour found special circumstances. He identified three reasons for doing so. First, the applicant whilst in gaol was undergoing therapy for sexual offenders. There was "an ongoing need for such therapy". Secondly, at the time of sentencing the applicant was a man aged thirty years. Some years earlier he had been diagnosed as suffering from schizophrenia. He appeared to be in remission but would require psychiatric treatment. Thirdly, Mr Smith would benefit from supervision by the Probation and Parole Service.
His Honour noted that at the time of sentence Mr Smith was already serving a sentence for a similar offence. In 2000 he had been charged with having had sexual intercourse with a child aged between ten and sixteen years. The victim was his niece aged approximately eleven years. She in fact fell pregnant and had his child. There was a successful Crown appeal against the sentence imposed by the sentencing judge. The Court of Criminal Appeal resentenced Mr Smith to four and a half years imprisonment with a non parole period of twenty-seven months. The non parole period began on 28 April 1999. It was to expire on 28 July 2001.
In determining the overall sentence his Honour was obliged, as he recognised, to have regard to the principle of totality. He clearly gave thought to whether, and if so to what extent, the sentences for individual counts should be made concurrent or cumulative. He determined that the offences should be partially accumulated. The commencement date of each sentence was staggered as follows:
Count 1:    29 July 2001.
Count 2:    29 July 2002.
Count 3:    29 July 2003.
Count 4:    29 July 2003.
Count 5:    29 July 2005.
By this means his Honour fixed a total sentence of eleven years imprisonment with a non parole period of eight years. The date of commencement was 28 July 2001, being the end of the non parole period for the sentence that Mr Smith was then serving.
The applicant relies in this court essentially upon two grounds of appeal. First that his Honour, though finding special circumstances, and though giving expression to that finding in the individual sentences imposed, did not reflect that finding in the overall term. The statutory non parole period under s44(2) of the Crimes (Sentencing Procedure) Act 1999 in respect of the sentence imposed by his Honour was eight and a quarter years; the non parole period fixed by his Honour in respect of that sentence was eight years. The non parole period fixed, therefore, notwithstanding the finding of special circumstances, was only three months less than that suggested by the Statute (s44(2) Crimes (Sentencing Procedure) Act 1999) (73% of the eleven years cf 75%).
Secondly, it was suggested the sentence was manifestly excessive. In fixing the non parole period his Honour should have had regard to the sentence which Mr Smith was already serving, and the length of time he would be in continuous custody, by reason of his existing sentence.
Dealing with the first ground, his Honour's reasons for finding special circumstances were cogent. Each warranted that finding. Indeed, his Honour may have added, as further justification for that finding, that Mr Smith would serve his sentence on protection, and that the sentence was to be accumulated upon a sentence which he was already serving (R v Close (1992) 31 NSWLR 743 at 748; R v Simpson (1992) 61 A Crim R 58 at 60-61; The Queen v Clarke (1995) 78 A Crim R 226 at 238-239; and The Queen v Bolamatu [2002] NSWCCA 454, per Wood CJ at CL para 28 (Dowd and Bell JJ agreeing)). His Honour created the impression, by his remarks, that he intended to allow a longer period of supervision than that suggested by the statutory formula. If that was his Honour’s purpose, the sentence did not achieve that purpose since, as mentioned, the non parole period was only three months less than the period suggested by the Act. It should be noted that in Counts 2, 4 and 5, where his Honour fixed a non parole period, the ratio between the full term (seven years in each case) and the non parole period (four years) was approximately 60%.
The circumstances closely resemble those in R v LWP [2003] NSWCCA 215, where Spigelman CJ described what occurred in that case in these words: (para 2)
"His Honour made a finding of special circumstances which was reflected in each individual sentence by the imposition of a non parole period of 66.66 per cent of the head sentence in lieu of the statutory ratio of 75 per cent. However, the effective sentences actually imposed by reason of their accumulation was such that, overall, there was no variation of the statutory ratio when the sentences were considered as a whole. The Applicant appeals from the sentence structure so imposed, as distinct from each individual sentence."
In that case, as in this, the finding of special circumstances was justified. The Crown responded by asserting that, in any event, no lesser sentence was warranted (s6(3) Criminal Appeal Act 1912). The Chief Justice (with whom Miles JA and Bell J agreed) said this: (para 20)
"I am satisfied, in accordance with s6(3), that, in the light of his Honour's findings of special circumstances, a lesser effective sentence is warranted within the meaning of s6(3), if that test applies to the effective sentence of three separate offences partially accumulated as occurred in this case and not merely to each individual sentence."
The Chief Justice added: (para 22)
"The exercise by his Honour of the sentencing discretion did not miscarry, save in carrying his intended result into effect. The difficulty arose by reason of the sentencing structure and the partial accumulation of the three different sentences. The non parole period for Count 2 commenced at the expiration of the two year non parole period for Count 1. The non parole period for Count 3 commenced after the expiration of six months of the eighteen months non parole for Count 2."
Here, I believe that in fixing the non parole period in respect of the overall term, his Honour's discretion miscarried. A reduction of the non parole period greater than 2% was required to reflect the finding of special circumstances.
That brings me to the second ground, namely that the sentence was manifestly excessive. The applicant is thirty years old. He had a difficult and deprived upbringing. He left school at the age of fourteen years. He has only been successful in obtaining occasional seasonal work. He had a history of substance abuse including marijuana and heroin. He has participated in the methadone programme. He has, as mentioned, been treated for schizophrenia.

Mr Smith pleaded guilty shortly before the trial. He thereby spared the complainant the anguish of giving evidence. His Honour allowed, appropriately, a benefit of 15% in respect of that aspect. Mr Smith is serving his sentence in protective custody, which is unsurprising having regard to the nature of the offences.
In fixing the various sentences, and the overall sentence, his Honour stated that objectively the offences were very serious. Obviously they were. Children are entitled to protection, especially from those who occupy positions of trust. Deterrence, both general and personal to Mr Smith, were recognised by his Honour, again appropriately, as important objectives in respect of any sentence imposed. However, his Honour, in the course of his remarks on sentence, did add these words:
“I do, however, take into account the fact that all acts of sexual intercourse were that of fellatio and nowhere near as damaging or violent as that of penile vaginal intercourse but still a sexual abusive violation of a child under ten.”
In submissions, and in the course of argument, counsel have referred to a number of cases in which sexual offenders have been sentenced under the same sections as the charges preferred against Mr Smith, s61M(2) of the Crimes Act (indecent assault of a child under ten years) and s66A of the Crimes Act (sexual intercourse with a child under ten years). (See R v Moore (CCA, unreported, 12.11.94); R v Latu (CCA, unreported, 6.7.93); R v Swindale (CCA, unreported, 20.2.92); R v PFC (CCA, unreported 14.12.92)). Making due allowance for any shift in attitude in the decade since these decisions, the sentence imposed upon Mr Smith was high. But, was it too high?
Here, I believe the principle of totality required his Honour to address the effect upon the applicant of accumulating the sentence he was about to impose on top of the non parole period for the sentence the applicant was then serving. In R v Mohamed Hakem Hajjo (CCA, unreported, 31.8.92), the appellant pleaded guilty to seven charges of aiding and abetting another to obtain a financial advantage by deception, and to a further charge of conspiracy. At the time he was sentenced he was, as in this case, already serving another sentence (for arson). A non parole period had been fixed in respect of that sentence. Badgery-Parker J (with whom Gleeson CJ and Mahoney JA agreed) identified the choices which the sentencing Judge had open in these circumstances: (p 7)
"He was still serving the sentence imposed by Judge Shadbolt in respect of the arson offence when he came to be sentenced by Judge Madgwick for the present matters. It was clearly appropriate that Judge Madgwick should impose in respect of these matters sentences wholly or partly cumulative on the arson sentence. If he concluded that the sentences should be wholly cumulative on the arson sentence, he was obliged by s9(1) of the Sentencing Act to make those sentences commence at the expiration of the minimum term of that sentence, that is to say, they must commence on 3 May 1991. That provision, however, applies only after the decision is made to accumulate the sentence. It does not apply where a sentence is to be made wholly or in part concurrent, so that it would have been open to his Honour, had he seen fit, to date the sentence back so as to commence at some appropriate time during the minimum term of the other sentence."
His Honour continued, referring to the totality principle, endorsing the remarks (which he reproduced) of the sentencing Judge: (p 7)
"Whichever way his Honour structured the sentence, and from whichever date he chose to commence it, it was, as he expressly recognised, incumbent upon him to have regard to the principle of totality. His Honour said:
'The second thing that stays me to some extent in the case of the present prisoner is that I must have regard to the totality principle. When his sentence for these matters commences, the prisoner will have been in gaol for 18 months and I must consider the likely effect upon him of the totality of the sentence which he will serve.'"
The same principle must be applied here. Indeed, the relevance of totality in the context of this applicant is perhaps the greater, since the aberrant conduct was essentially the same. The previous offence involved, essentially, the same conduct, although with a different victim, and at a different time. The offences before Bellear CDJ in fact occurred earlier in point of time, during 1997/1998. They came to light and were prosecuted later. The effect of his Honour's order was that Mr Smith would be in continuous custody for ten years and three months (the existing non parole period of two years and three months, together with the non parole period of eight years fixed by his Honour). The combined term of the existing sentence and that imposed by his Honour, was thirteen years three months, given the partial accumulation with the existing sentence.
In that context, the sentence imposed was, I believe, too long. It was manifestly excessive. The sentence should be restructured to make Counts 3, 4 and 5 concurrent. The non parole period for the offences under appeal would then be six years (rather than eight years), to be accumulated on the existing non parole period of two years and three months. The parole period would remain the same, namely, three years. However, the proportion between the overall term for the sentences under appeal would then appropriately reflect the finding of special circumstances.
SHAW J: The crimes, it is conceded, involve very serious criminal misconduct in relation to the young child, in particular, aggravated sexual assault in relation to the applicant’s step-daughter. Viewed objectively and having regard to the gravity of the crimes it is difficult to see that the overall term of eleven years with a non-parole period of eight years is manifestly excessive. However, the applicant alleges mathematical error having regard to the unchallenged finding of the sentencing judge that there were special circumstances relevant to the ratio between the head sentence and the non-parole period.
In my view the judge at first instance expressly had regard to the previous convictions and to the principle of totality. It is submitted and I accept that the discount based on the finding of the special circumstances is modest, that is, two per cent under the statutory ratio of seventy-five per cent in calculating a non-parole period. The discount of fifteen per cent for the plea of guilty was applied and in my view was appropriate, however, I regard the result as within the discretion of Bellear DCJ. In all the circumstances and having regard to the particularly difficult task of sentencing on a discretionary basis that trial judges must undertake, I agree with the orders proposed by Meagher JA.
MEAGHER JA: The orders of the Court therefore are the orders which I proposed.

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LAST UPDATED: 01/12/2003