R v TJ

[2004] NSWCCA 59

CITATION:	R v TJ [2004] NSWCCA 59
HEARING DATE(S):	17/03/2004
JUDGMENT DATE:	17 March 2004
JUDGMENT OF:	Hodgson JA at 1; Shaw J at 2; Smart AJ at 13
DECISION:	1) Leave to appeal dismissed
CATCHWORDS:	Appeal against severity of sentence - Sexual assault - Conditions of imprisonment
CASES CITED:	De Simoni v R (1981) 147 CLR 383; Regina v JCW (2000) 112 A Crim R 466
PARTIES :	Regina - Crown TJ - Appellant
FILE NUMBER(S):	CCA 60428/03
COUNSEL:	B. Knox SC - Crown C. Bruce - Appellant
SOLICITORS:	S. Kvanagh - Crown S. O'Connor - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/1134
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

60428 of 2003

HODGSON JA
SHAW J
SMART AJ

17 March 2004

REGINA v TJ

Judgment

1 Hodgson JA: I agree with the observations of Shaw J. Mr Bruce for the applicant submitted that the case of JCW (2000) 112 A Crim R 466 was a case involving substantially greater criminality than this case, so that the sentence in this case was disproportionate. In my opinion, this overlooks the circumstance that in JCW the offender was being sentenced for two offences only, and that the background history was taken into account, not as a circumstance of aggravation, but only for the purpose of rejecting mitigation.

2 Shaw J: TJ seeks leave to appeal to this Court against the sentence imposed upon him by Judge O’Reilly on 28 March 2003 in the District Court of NSW for a number of counts of sexual assault. I have considered his Honour’s careful and detailed observations on sentence, which includes findings of the offence of buggery committed by the appellant on his young son (aged 9) when the family lived at Yagoona. Another incident alleged, and found, arose in 1988 when there was penile intercourse by the appellant with his daughter. Thirdly, an incident is referred to in 1989 where the offender, with knife in hand, directed his daughter to go to her bedroom and had anal intercourse with her.

3 The trial judge rightly focussed his attention on the three counts in the indictment, which I have summarised, and observed that there were 2 matters set out on the Form 1, indicating that these were not isolated incidents. The trial judge correctly said that he could not punish him for events other than those charged specifically on the indictment but could take into account the Form 1 matters.

4 Some 9 years passed between the incidents alleged and the complaint, because apparently the appellant’s wife told police that she did not wish to pursue the complaints by her children because she would not be able to cope financially if her husband went to gaol. However, the appellant was eventually arrested in February 2001. The trial judge carefully considered a pre-sentence report dated 25 March 2003. Psychological evidence was given of a family history of sexual abuse of siblings and indications of a “narcissistic personality disorder.” The psychologist, Dr John Baron, recorded that the appellant had indicated that he could remember having sexual contact with the children. There is some further psychiatric evidence from Dr T.O. Clarke who has proffered the opinion that the appellant is not at current risk of recidivism and not a threat to the community, but would need long term supervision and psychotherapy.

5 In these circumstances, the trial judge made a finding of “special circumstances” particularly emphasising that this was the appellant’s first time in custody, that he will need to serve it in strict protection and that he needs long-term supervision on release. The sentence in relation to the first count was one of full-term imprisonment of 6 years expiring on 27 March 2009, with a non-parole period of 4 years, leading to eligibility for release to parole on that count on 27 March 2007. On the second count of the indictment, the sentence was a full-term of imprisonment of 8 years expiring 27 March 2014, with a non-parole period of 4 years so that there would be eligibility for release on parole on 27 March 2010. In relation to the third count of the indictment the full-term of imprisonment was 4 years, expiring 27 March 2010 with a non-parole period of 2 years, so that the appellant would be eligible for release to parole on 27 March 2008. The trial judge correctly referred to the principle of “totality” whilst taking due note of the degree of criminality. In summary, the earliest release date is 27 March 2010. In addition, the trial judge directed that upon release of the offender, the police be informed of the nature of the offences and the fact of his release.

6 The appellant (who at the date of his trial was 51 years of age) pleaded guilty on each count.

7 His appeal to this Court depends upon a short point. It is said that the sentencing proceedings miscarried when the report of Dr Baron was placed before the sentencing judge, and when that report included allegations from TJ’s son that:

his father had subjected him to sexual assaults on a number of occasions, including when he was 6.

Secondly it is said that Dr Baron’s report, prejudicially, included allegations which went beyond the indictment, namely that apart from digital, vaginal and anal intercourse alleged

as well as forced oral sex on multiple occasions and over several years, when she was between 8 and 13.

It is relevant that Dr Baron’s report was admitted into evidence without objection. The matters in Dr Baron’s report complained of were not treated by the sentencing judge inappropriately, and in particular were not regarded as aggravating factors.

8 I accept that these observations were extraneous to the sentencing process, which should have focussed upon the precise allegation made against the appellant. However, I take the view, after a careful reading of the observations on sentence by the trial judge, that his Honour did concentrate upon the particular matters alleged at trial. I am of the view that there was no distraction or error occasioned by these additional and perhaps surplus observations made by the expert witness in the sentencing process. There was no jury to be inflamed by the additional and emotive allegations. The trial judge could, and I believe did, appropriately put aside those matters and deal with the particular allegations made against the appellant.

9 I agree with the Crown’s submission that the Court is dealing with a violation of trust extending over a period of 9 years involving non-consensual, forcible sexual activities with the appellant’s young children. I do not take the view that there has been any erroneous reliance upon aggravating circumstances in the present case: cf R v De Simoni (1981) 147 CLR 383. I take into account the judgment of the Court of Criminal Appeal, NSW, in JCW (2000) 112 A Crim R 466 in which sexual relations with a daughter were admitted, and where the resultant sentence was 10 years imprisonment, with a non-parole period of 8 years. However, each such difficult case turns on their own facts and circumstances and I think that due deference should be accorded to the discretion of the sentencing judge. JCW involved a “systematic violation” of two daughters (to adopt the language of Spigelman CJ). However, I am unable to discern any compelling disparity of sentences in the two cases sufficient to justify the upholding of the present appeal.

10 It is true that the conditions of incarceration are particularly harsh. It may be argued that these arrangements are necessary for the protection of the prisoner and are otherwise within the discretion of the prison authorities. Nonetheless, it is my view that the current regime of imprisonment of the appellant should be conscientiously reviewed in an objective way, despite the gravity of the crimes, to determine whether it is really necessary or desirable to restrict his access to the other prisons, education, visits, psychological treatment and sporting facilities. I do not see, for myself, why these facilities should be denied. In our society, the penalty for serious crimes is incarceration for significant periods. There is no occasion for “add-on” sanctions within the prison system unless the measures are justifiable for the protection of the prisoner, other inmates, or to deal with misconduct by the prisoner. I urge that the appropriate authorities, having regard to these criteria, review the regime of punishment, in relation to the appellant.

11 On any analysis crimes of great moral turpitude were committed. In all of these circumstances, I do not believe that there are any appropriate grounds for interfering with the discretion of the sentencing judge in dealing with the appellant in relation to those crimes.

12 Accordingly, I would refuse leave to appeal.

13 Smart AJ: I agree with both judgments which have been delivered.

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Last Modified: 03/23/2004