R v TWP

[2006] NSWCCA 141

CITATION:	R v TWP [2006] NSWCCA 141
HEARING DATE(S):	6 February 2006
JUDGMENT DATE:	1 May 2006
JUDGMENT OF:	Beazley JA at 1; Simpson J at 2; Rothman J at 3
DECISION:	a Appeal allowed; b The sentences imposed by his Honour Judge Black QC of the District Court on 2 September 2005 be quashed and in lieu thereof, the following sentences be imposed: (i) Count 14: common assault – a fixed term of 18 months’ imprisonment to commence on 2 September 2005 and expiring on 1 May 2007; (ii) Count 1: indecent assault – a fixed term of three years’ imprisonment commencing 2 January 2006 and expiring on 1 January 2009; (iii) Count 10: incest – a fixed term of three years’ imprisonment commencing 2 January 2007 and expiring on 1 January 2010; (iv) Count 12: aggravated indecent assault – imprisonment for three years commencing 2 January 2008 and expiring on 1 January 2011 with a non-parole period of 27 months’ imprisonment commencing on 2 January 2008 and expiring on 1 April 2010; (v) Count 15: aggravated indecent assault – imprisonment for three years to commence on 2 January 2009 and expire on 1 January 2012 with a non-parole period of 27 months’ imprisonment to commence on 2 January 2009 and expire on 1 April 2011; (vi) Count 2: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years commencing 2 January 2010 and expiring on 1 January 2014 with a non-parole period of three years’ imprisonment commencing 2 January 2010 and expiring 1 January 2013; (vii) Counts 3, 4, 5, 6, 7, 8 and 9: sexual intercourse with a child between 10 and 16 years under authority – for each, imprisonment for four years to commence on 2 February 2011 and expire on 1 February 2015 with a non-parole period of three years’ imprisonment commencing on 2 February 2011 and expiring on 1 February 2014; (viii) Count 11: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2013 and expire on 1 February 2017 with a non-parole period of three years’ imprisonment commencing on 2 February 2013 and expiring on 1 February 2016; (ix) Count 13: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2014 and expire on 1 February 2018 with a non-parole period of three years’ imprisonment to commence on 2 February 2014 and expire on 1 February 2017; (x) Count 16: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2015 and expire on 1 February 2019 with a non-parole period of two years’ and seven months to commence on 2 February 2015 and expire on 1 September 2017; (xi) Count 17: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for a period of five years to commence on 2 September 2016 and expire on 1 September 2021 with a non-parole period of one years’ imprisonment to commence on 2 September 2016 and expire on 1 September 2017; c The respondent is sentenced to an overall effective sentence of a non-parole period of 12 years’ imprisonment and is first eligible for release on parole on 1 September 2017, thereafter to be under the supervision of the Probation and Parole Service until 1 September 2021.
CATCHWORDS:	Criminal law - criminal appeal - Crown appeal - sentencing - manifest inadequacy - sexual assault - incest - sexual intercourse with a child - principles in Crown appeals - overall sentence ascertained - insufficient regard to identification of overlapping or different criminal conduct - requirement for transparency in sentencing process - assignment of criminality for each offence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Wall [2002] NSW CCA 42 R v Prasad (2004) 147 A Crim R 385 R v Abboud [2005] NSWCCA 251 Johnson v The Queen (2004) 78 ALJR 616 Markarian v The Queen [2005] HCA 25 R v Ellis (1986) NSWLR 603 Pearce v The Queen (1998) 194 CLR 610 R v Mill R v AA [2006] NSWCCA 55
PARTIES:	Regina TWP
FILE NUMBER(S):	CCA 1891/2005
COUNSEL:	A: Mr G Rowling R: B T Stratton QC
SOLICITORS:	A: S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/51/0065
LOWER COURT JUDICIAL OFFICER:	Black QC DCJ

- 26 -

2005/1891

BEAZLEY JA
SIMPSON J
ROTHMAN J

1 May 2006

REGINA v TWP

Judgment

1 BEAZLEY JA: I agree with Rothman J.

2 SIMPSON J: I agree with Rothman J.

3 ROTHMAN J: The Crown appeals the alleged manifest inadequacy of the sentences imposed on TWP.

Issues

4 TWP pleaded guilty to 17 offences of various kinds of assault, sexual assault and incest against his three daughters (‘A’, ‘B’ & ‘C’) for which he was sentenced to a term of imprisonment for a non-parole period of 7½ years as part of a total sentence of ten years’ imprisonment. In dealing with the Crown appeal, it is necessary to deal with the details of the offences charged and the facts which gave rise to them, the principles to be applied in a Crown appeal against sentence, the errors, if any, in the sentencing process and, to the extent that manifest or identified error is found, whether the Court should re-sentence and if so what that sentence should be.

5 Because of the age of the victims, the legislation requires that their names, and in this case, because of the relationship, the respondent’s name, and any matter identifying them, must not be published and an order to that effect is in place.

Offences

Count 1:
Indecent assault of child under 16 years contrary to s.61E(1) of the Crimes Act 1900 (date of offence: between 9 February 1984 and 21 October 1994): maximum penalty six years’ imprisonment.

Counts 2 to 9, 11, 13, 16 and 17:
Sexual intercourse with a child between 10 and 16 years under authority contrary to s.66C(2) of the Crimes Act 1900 (date of offences: between 30 July 1988 and 31 January 2001): maximum penalty of ten years’ imprisonment.

Count 10:
Incest contrary to s.78A of the Crimes Act 1900 (date of offence: between 1 October 2000 and 31 December 2000): maximum penalty of seven years’ imprisonment.

Count 12:
Aggravated indecent assault contrary to s.61M(1) of the Crimes Act 1900 (date of offence: between 30 June 1999 and 30 July 2001): maximum penalty of seven years’ imprisonment.

Count 14:
Common assault contrary to s.61 of the Crimes Act 1900 (date of offence: between 30 July 2000 and 10 November 2001): maximum penalty of two years’ imprisonment.

Count 15:
Aggravated indecent assault contrary to s.61M of the Crimes Act 1900 (date of offence: between 7 November 2001 and 10 November 2001): maximum penalty of seven years’ imprisonment.

6 The sentence imposed by his Honour below was:

Count 1 : Fixed term of two years’ imprisonment to commence on 2 September 2005.
Counts 2 to 9 : Fixed term of four years’ imprisonment to commenced on 2 September 2005.
Count 10 : Fixed term of three years’ imprisonment to commence on 2 September 2005.
Counts 11, 13 and 15 : Fixed term of four years’ imprisonment to commence on 2 September 2007.
Count 12 : Fixed term of two years’ imprisonment to commenced on 2 September 2007.
Count 14 : Fixed term of eighteen months’ imprisonment to commenced on 2 September 2007.
Counts 16 and 17 : Imprisonment for ten years to commence on 2 September 2005 and expire on 1 September 2015 with a non-parole period of seven years, six months to commenced on 2 September 2005 and expire on 1 March 2013.

The aggregate of the sentences imposed is a head sentence of 10 years with a non-parole period of 7½ years.

The respondent is, on the current sentence, eligible to be released on 1 March 2013.

Facts

7 The following facts are taken from the Agreed Statement of Facts tendered before the trial judge and in turn are almost wholly taken from the transcript of the respondent’s ERISP:

AGREED STATEMENT OF FACTS


The offender is the father of three daughters, A, B and C. He is married to their mother, D.

A is 28 years old and was born on 9 February 1977, B is 18 years old and was born on 30 July 1987. C is 15 years old and was born on 14 November 1989.

On 5 July 2004, A told her mother that the offender had sexually assaulted her and her two sisters. Later that day D and her daughters attended the sexual assault service and spoke with a counsellor. D telephoned the offender and told him where they were. A spoke to him later and told him they were getting help. The offender was concerned that he would go to gaol. The following day, the offender rang A . He said “What am I going to do? I’m not a very good cook and I won’t be able to look after myself.” He then asked if he should turn himself in. A told him it had to be his decision. The offender rang again later and asked “Do they know what I did to B about getting her pregnant and then hitting her to lose the baby?” A replied “They know everything. We have been honest and you have to be honest.”
On 6 July 2004, the Ballina JIRT office received a notification from the Department of Children Services regarding C. No action was taken that day.
On 7 July 2004, the offender attended Lismore police station and informed the station staff that he was handing himself in for molesting his daughters. He was interviewed and admitted to sexually assaulting his daughters. The counts on the indictment are substantially based on the admissions made by the offender in his interview. His three daughters have partial memories of what occurred. They are embarrassed discussing sexual matters and expressed varying degrees of unease about the possible consequences for their father.
The first assault on A occurred when she was aged 7 and the last when she was 23. In the ERISP, the offender said his relationship with A was “ more like a husband/wife relationship … As gross and disgusting as that sounds that was the way it sort of was between me and A for years.” (Q&A 460) The offender said that when they lived at [one address] and A was aged between 13 and 19, there were two, three or maybe four breaks between it when he tried to stop but “I just miserably failed and went back to it again.” A said that “Dad took every opportunity he could to have sexual intercourse with me. If mum was busy or in the shower he would come to me and beg me to have sex with him. He never let up until I would let him.”
In relation to the offender’s conduct when she was older, A states that she got baptised at the age of 17. Her father had stopped touching her for a while but at the time she was baptised he was assaulting her again. She states that the first time she felt his penis inside her was when she was 16 or 17 but she later explains that it took her a while to remember what happened and she still does not remember everything that happened. Usually she said he would rub his penis in the crack of her bum until he ejaculated. …. She recalls an incident when out working with the offender at [a certain address] where they had sexual intercourse. She said it happened several times there. When she was 18, A said that sexual intercourse with the offender was almost a daily occurrence. She said he always put his penis in her vagina from behind while she was standing and he would pull it out before ejaculating.
The offender first had sexual intercourse with B when she was ten and also indecently assaulted her. The offender could not remember how many times he assaulted B, however, he said that B was never willing and didn’t want to do it and didn’t agree to it. He said he kept asking her and would say “along the lines of um, I really need it because when I got overcome I just was desperate and I’d beg for it sort of thing.” He said as a result he didn’t do it with B very much and didn’t think it was very many times. (Q&A 494-497)
B could not remember the particulars of other incidents apart from the two she particularised. She said it had happened roughly more than 20 times and that he only put his penis inside her the first time. She said it was fairly frequent “more than once a week.”
The offender had sexual intercourse twice with C around the time of her eleventh birthday. The offender said that after he had sex with C for the second time he decided to stop and told her he wouldn’t do it again. C said that after it happened she hated him and she figured if she was really nasty to him he would get the idea and stop. She said that when she anticipated him trying it she would burst into tears and bite and scratch him, punch him and cause a scene. The offender did not persist when C behaved this way. C does not recall the offender telling her that he would not have sex with her again.
B and C were home schooled until they finished their education. A was home schooled for the majority of her life. The girls’ primary social circle was the extended family of the offender and their small church group which was led by the offender’s family.
Count 1: Sexual Assault (cat 4): Victim A between 9 February 1984 and 31 October 1984
This charge resulted from an admission from the offender during his ERISP. He states in his interview that this incident occurred when A was aged 7 years and they were living at [place ‘TC’].
A was 7 on 9 February 1984 and D (her mother) states that they moved from that property in October 1984 (paragraph 7), hence the time frame of between 9 February 1984 and 31 October 1984 (end of October).
A does not remember this incident.
It was morning and A was sleeping on the couch. The offender approached her from behind. She woke up. He lifted her leg a little bit and rubbed in between her legs with his penis. He had taken his penis outside his pyjamas. When asked about the area of A he touched with his penis, the offender replied “The area of her vaginal area, like in between her legs, around there sort of and, well, just her, I just rubbed sort of in between her cheeks of her, of her, of her bottom basically.” He said that he may have actually put it inside there and rubbed on it but he was not sure. He ejaculated “all over her legs and everywhere.” (Q&A 54-111)
Count 2: Sexual intercourse with person 10 and under 16 years under authority s.66C(2): Victim A at [place ‘M’] between 14 November 1989 and 25 November 1989
This charge resulted from an admission from the offender during his ERISP. He states in his interview that this occurred living at a property at M. He also states that his second daughter was born at this stage but his youngest daughter was not. He said that A was 11 and B was only 2 or 3 years old.
D states that they moved to M just before B’s first birthday (30 July 1988) and A was aged 11 years at the time. C was born on 14 November 1989.
Hence the time frame of B’s 1st birthday on 30 July 1988 and the day that C was born on 14 November 1989 when A was aged 11 and 12 years.
Again, A does not remember this incident.
The offender was sitting on the toilet at night time and beckoned A over. She took off her pants and she sat over the offender’s penis. His penis went into her vagina for about 10 to 15 seconds. With A still attached to him, he stood up then knelt down and put her on the floor. He then backed off her before he ejaculated. (Q&A 112-159)
Count 3: Sex intercourse with person 10 and under 16 years under authority s.66C(2): Victim A at [place ‘M’] between 14 November 1989 and 25 November 1989
This charge resulted from an admission from the offender during his ERISP. He states in his interview that this occurred when living at the property and he thought that his wife was in hospital having their youngest daughter (C).
D states that she went into hospital earlier in the day that C was born (14 November 1989) and left the hospital 25 November 1989. D remembers the date that she left the hospital because she had a caesarean and had a bad experience with the doctor and just wanted to go home. (paragraph 15)
Again A does not remember this incident.
The offender said that A was on her back lying down in the caravan during the daytime. He took her knickers off and inserted his penis insider her. He took it out and ejaculated into his hand. The offender said that A did not want to be a part of it and wasn’t interested in it. (Q&A 160-181)
Count 4: Sexual intercourse with person 10 and under 16 years under authority s.66C(2): Victim A at [place ‘M’] between 25 November 1989 and 28 February 1990
This charge resulted from an admission from the offender during his ERISP. He states in his interview that this occurred when living at the Property after his youngest daughter was born (14 November 1989). A was about 12 years old.
D states that they lived at this property up until February 1990 when C was 12 weeks old.
The time frame is between the date that D got home from hospital after having C (25 November 1989) and the end of February 1990 when she states that they left the property (28 February 1990).
A vaguely remembers this occurring in the car shed however she also said that it occurred lots of times.
The offender also states that it happened more than once.
The police asked him about the first time had had sexual intercourse with A in the car shed. He said it was in the daytime and they were in there for about three or five minutes. A took her pants off. A was standing, sort of crouching and he inserted his penis in her vagina from behind. He backed out before he ejaculated. (Q&A 186-216)
Count 5: Sexual intercourse with person 10 and under 16 years under authority s.66C(2): Victim A at [place ‘M’] between 25 November 1989 and 28 February 1990
This charge resulted from an admission from the offender during his ERISP. The time frame is set out for the same reasons as charge 4.
The offender stated that the next time they had sexual intercourse was in the dairy or cattle yards about 20 metres from the old BMW car. It was daytime and A pulled her pants down. A was standing with her hands on her knees. He penetrated her vagina from behind, withdrew his penis and ejaculated on the ground. (Q&A 217-234)
The offender said that he had a habit of asking A to meet him there. He estimated they had sex about 5 times at that property.
Count 6: (Charge 13) Sexual intercourse with person 10 and under 16 years under authority s.66C(2): Victim A at [place ‘TC’] between 9 February 1991 and 9 February 1992
The offender stated that A was 14 years of age at the time. The time frame between 9 February 1991 and 9 February 1992 is when she was 14 years old. D states that they moved to that property (para 17) just prior to A’s 13th birthday and moved just before B’s 9th birthday (para 26), which was 30th July 1996.
The offender stated that he used to have sex with A near an old red ash tree in the paddock. He described the first time they had sex there. He asked her to meet him there. A would take down her pants and stand with her hands on her knees. He inserted his penis into her vagina from behind and would then back out and ejaculate. He said that it only ever took a minute or two. The rest of the family was up at the house which was on the hill. (Q&A 245-255)
Count 7 (Charge 14): Sexual intercourse with person 10 and under 16 years under authority s.66C(2): Victim A at [place ‘TC’] between 9 February 1992 and 9 February 1993
The offender stated that the offence occurred at TC when A was 15 years old.
The offender said that he had sex with A near the toilet trench which was downhill from the house. He said it was a sunny morning. He said that he told her to meet him there. She took off her pants and he inserted his penis into her vagina from behind. He removed his penis and ejaculated on to the ground. (Q&A 259-276)

Count 8 (Charge 15): Sexual intercourse with person 10 and under 16 years under authority s.66C(2): Victim A at [place ‘TC’] between 9 February 1991 and 9 February 1993
The offender stated that A was 15 at the time. They were disturbed by D. D stated that A was 15 years old.
The offender said that the bulldozer was parked in front of the house near the track. He was working on it with A and suggested that they do it. A took down her pants and rested her hands on the dozer. The offender inserted his penis into her vagina from behind. He removed it and didn’t get to ejaculate as his wife came out with a cup of coffee. When his wife saw them she threw the cup of coffee at him. He said that they were not actually in the act of intercourse but it looked suspicious as he pulled up his pants quickly. He had a major argument with his wife and he pleaded with her not to leave him. He said that once before his wife had actually caught them about to do it. (Q&A 279-294)
D said the offender and A were working on the bulldozer. She took a cup of coffee out to the offender. She could see the offender and A together and did not hear any sounds of working. She didn’t know what they were doing for certain but she was suspicious due to the other times she had seen them together. She cannot remember what she said to the offender but she was very angry. She thought that A was 15 at the time.
Count 9 Charge 16): Sexual intercourse with person 10 and under 16 years under authority s.66C(2): Victim A at [place ‘TC’] between 9 February 1991 and 9 February 1993
The offender said that A was about 15. He refers to numerous instances of similar behaviour at that time. D refers to one incident where she walked in on them. D thought that A was about 14 years old. A stated that the offender use to come into her bedroom early in the morning when her mother was making his lunch. She would stand up, turn around and the offender would insert his penis inside her vagina and pull it out before ejaculating. She said this “happened heaps of times. Too many times to mention.”
The offender said that he used to have sex with A in her bedroom in the morning while his wife was making his lunch. A would get up take her pants off and stand with her hands on her knees. The offender inserted his penis into her vagina from behind and removed it before ejaculating. (Q&A 328-339)
D stated that when A was about 14, D walked into D’s bedroom and saw the offender and A putting on their clothes. It looked as if the offender had been having sex with A from behind. She said both the offender and A denied that anything had happened. She asked A if she wanted to leave and she said that she didn’t. She told the offender he was sick and had a twisted mind. He told her she was always looking for evil when there wasn’t any. A thought that her mother caught them when she was about 13. A said that although she initially denied anything had happened she later told her mother about what happened on this occasion.
Count 10 (charge 17): Incest by a male of a female aged 16 years or over: Victim A at [place ‘WW’] between 1 October 2000 and 31 December 2000
The incest charge is the last time the offender and A had intercourse. A states that it happened a couple of months before she started going out with her husband. They commenced going out on 10 December 2000. The offender said that A told him she had found a guy who she loved and she wanted to marry him. The offender said “I actually bargained with her to do it one time, um, as a last time, I bargained with her.” He later explained that if she let him have sex once more that he promised never to do it again and to let her go and have her own life and get married. He said that the bargaining occurred at a bible camp and she eventually agreed and they did it when they got home. They had sexual intercourse in the fruit packing shed and the offender remembers that it was the only time that A knelt down during intercourse. The offender estimated that it was about 4 years ago. (Q&A 408-433) A said that he told her this was the last time. She said he asked to do it front ways but she didn’t want to do it that way. She said they had sex the same way with him entering her from behind.
Count 11 (Charge 6): Sexual intercourse with person 10 and under 16 years under authority s.66C(2): Victim B at [place ‘TC’] between 30 July 1997 and 30 July 1998
This charge resulted from admissions made by the offender during his ERISP. He states in his interview that this occurred after they moved to WW and he went with B to their old property at TC to check the water tanks.
D states that they moved to the property just before B turned 9 but continued to return to the TC property for some time after they moved.
B thought that she was 10 years old. She said that they sold the TC property before she was 10. She said the offender undid her belt buckle and used his penis to take her virginity. She was very reluctant to give details about what happened but confirmed he had sex with her. When he finished he told her to wipe herself.
The offender said he asked her if she wanted to “do it” and that in her innocence she said “yes” . He said she did not know what she was doing. He took off her pants. He said they were standing up facing each other and “I didn’t really put it in her, I just sort of, I put my penis sort of onto her vagina and sort of basically moved it around until I felt the urge and then I backed off and ejaculated.” He conceded he may have entered her vagina “slightly but I didn’t actually engage in full sexual contact as such.” The offender thought that B was about 11 but observed several times that she was young, “so young” . (Q&A 466-493) The time frame is based on B’s recollection of her age and the circumstances regarding the sale of the properties.
Count 12 (Charge 7): Aggravated indecent assault s.61M(1): Victim B at [place ‘WW’] between 30 June 1999 and 20 July 2001
This charge resulted from a disclosure from B during her interview. B said that the offender had sex with her in the cabin of his Ute. She advised she may have been 12 or 13 at the time. It was night time. She later stated that he did not put his penis inside her crotch this time. He stayed on the outside of it. He was lying on top of her and rubbed his penis on her crotch. He told her how beautiful she was. (Note it appears that “crotch” is the term B uses for vagina.)
The offender did not mention this matter however he did say that he could not remember all the times that he sexually assaulted B.
Count 13 (Charge 8): Sexual intercourse with person 10 and over under 16 under authority s.66C(2): Victim B at [place ‘WW’] between 30 July 2000 and 10 November 2001
This charge resulted from a disclosure from the offender during his interview. B does not refer to this incident except in the context of the subsequent charge. The period of the charge is from 30 July 2000 (when B turned 13) to 7 November 2001 (when D was in hospital). The offender said at Q&A 546-557 that the last time he assaulted B was when his wife was in hospital and this offence occurred before that incident.
The offender said that this assault occurred at the workshop toilet at WW. It was in the day time and he asked B over there and would have told her that he needed to do it. B’s pants were off and she sat down over him on his penis as he sat on the toilet. He said this was the first time he actually put it in B and this was the time “we thought that she got pregnant” . He said that he thought he had ejaculated after he’d gotten off. He said he would have told her to give herself a good clean out in case she got some on her. He said he thought she was 13 or 14 (Q&A 508-524)
Count 14 (Charge 9): Assault: Victim B at [place ‘WW’]. Time frame between 30 July 2000 and 10 November 2001
This charge resulted from a disclosure from the offender.
B stated that she was 9 when she started getting her period. One time her period was overdue by a couple of weeks and she told the offender. She said he was terrified and didn’t know what to do. He told her not to eat anything and to exercise a lot which she did. She still didn’t get her period and he said he was going to have to hit her to get rid of it. B said OK and he hit her between her hips and belly three times “hard enough” . He then hugged her and she got her period the next day. She said her period that time was reasonably heavy but it had never been light.
In his ERISP, the offender said that after Count 13 occurred, B told him that she felt sick and her period was overdue. He said he was shocked and really frightened. He asked where she felt sick and when she replies “here in the tummy” he backhanded her fairly hard saying “what there?” She told him that hurt and he said “well I hope you’re not pregnant.” He then went to buy a pregnancy test thing. He said he hit her “because at the time I felt that it might have, it might have stopped it happening if was, if she was pregnant.” He also told her that she could lose it by stressing herself or overexercising too hard. He said she buckled up a bit and moved backwards when he hit her. He observed “I just did all this out of absolute fear of her being pregnant.” (Q&A 520-541)
Count 15 (Charge 10): Aggravated indecent assault s.61M(1): Victim B at [place ‘WW’]. Time frame between 7 November 2001 and 10th November 2001
This charge resulted from an admission from the offender during the ERISP. He stated that it occurred when his wife was in hospital having a hysterectomy.
D states that she was in hospital between 7 November 2001 and 10 November 2001. (para 28)
The offender said that while his wife was in hospital he went to B’s bed at night as he was totally overcome with the feeling of sexual need. He told B that he needed to do it really bad but that he wouldn’t put his penis inside her after what happened before. B took her pants down and was lying on her back. The offender came in front of her between her legs. He rubbed his penis up and down on her vaginal area until he ejaculated. He said that was the last time he did anything with B. (Q&A 546-557)
Count 16 (Charge 11): Sexual intercourse with person over 10 under 16 person under authority s.66C(2): Victim C at [place ‘WW’] between 1 September 2000 and 30 December 2001
This charge resulted from an admission from the offender and a disclosure from C. The offender stated that it happened after his wife had a hysterectomy and they were not having sex much.

D states that she was in hospital between 7 November 2001 and 10 November 2001.

C discloses that it was just before she turned 11 (14 November 2000). She states that it was sometime in the two months before her birthday on a Saturday night as they went to a religious service the next morning.
C stated that the offender crawled into her bed when she was asleep and sort of climbed on top of her. He then undressed her and told her not to make any noise. He rubbed her backside with his penis as he tried to find her vagina. He then put his penis inside her vagina. She stated that his penis was inside her for what felt like a long time going back and forth. Every time she made a noise he told her to be quite. She was telling him to stop. He eventually got up and left. She said her vagina hurt and she felt like throwing up.
The offender said he thought C was 11 or 12, probably around 11. He hadn’t had sex for 3 or 4 weeks after his wife came home from hospital. He said that he went into her bedroom and she was sort of half awake. She was lying on her back. He pulled the blankets back and put her legs on an angled position upwards and pulled her pant upward. He then put his penis in her vagina. He said he didn’t keep it in there long. After he pulled out his penis he used it to rub the edge of her vagina for a few seconds then ejaculated quickly. His wife was asleep in the next room. (Q&A 556-572)
Count 17 (Charge 12): Sexual intercourse with person over 10 and under 16 years s.66C(2): Victim C at [place ‘WW’] between 14 November 2000 and 31 January 2001
This charge resulted from an admission from the offender and a disclosure from C. C stated that it happened just after her 11th birthday, between two or three weeks later.
C said that her mother was in the shower and she was putting away things on her bed. It was night time. The offender whispered to her to come into his room. She had an idea of what he wanted and didn’t want to go but felt she had to. When she got into his room, he grabbed her and pulled off her pants and sat her on his lap. He didn’t have any pants on. He then sort of pushed her back off and stood her over near the door and got her to bend over. She said he then put his penis in her vagina from behind. He moved it back and forwards for what seemed like a long time to her. He then told her to clean herself out. C had just finished her first period. She said that a few weeks after this incident the offender asked her whether she was pregnant and she said no. This was the last time anything happened.
The offender said that another two or three weeks had gone by since the first episode with C and he still had not had sex with his wife. He asked C to come to his bed and he got her to turn around. He removed her panties and inserted his penis in her vagina. He said he was only inside for a few seconds and then used his hand to ejaculate. He showed her his semen and told her that if it got inside her she would get pregnant. He said he told her that he was never going to touch her again. (Q&A 572) C does not recall the offender saying this to her.

8 It is clear from the above that the 17 offences with which the respondent was charged are those occasions upon which the respondent or the victim could give sufficient details to allow a charge to be laid. On the agreed facts before the Court, sexual intercourse with A was, at least during part of the time, occurring on a daily basis and was, at other times, occurring more than once a week with B. Whatever the frequency with which sexual assault occurred on one or more of his daughters, it is only with the 17 offences that the sentencing court was allowed to deal, and it is only those 17 offences with which this Court can deal. And, subject to the application of the principles in sentencing relating to totality, it is with each of those 17 offences that the Court is required to deal.

Principles in Crown Appeals

9 The principles that an appellate court applies to an appeal by the Crown have been stated on a number of occasions and are well known. The Crown appeal is, by its nature, an exceptional power reposed in either the DPP or the Crown which power ought to be exercised rarely. Even more rarely will the Court intervene because, while each appeal is dealt with on its merits, in Crown appeals, the Court continues to exercise a residual discretion, even where error has been shown, not to intervene in the discretion exercised by a sentencing judge.

10 The principles on Crown appeal were summarised by Wood CJ at CL in a much cited passage in R v Wall [2002] NSW CCA 42, which is cited in full in R v Prasad (2004) 147 A Crim R 385 at [27]. That summary is:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 207 CLR 584; 76 ALJR 79 at [58] and [109].
(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.
(c) A Crown appeal against sentence is concerned with establishing matters of principle ‘for the governance and guidance of courts having the duty of sentencing convicted persons’: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299, 74 A Crim R 241 at 244; Dinsdale v The Queen (2000) 202 CLR 321, 115 A Crim R 558, and Wong and Leung v The Queen .
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, Director of Public Prosecutions v Papazisis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at [110].
(e) 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: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para [62].

11 In R v Abboud [2005] NSWCCA 251, I remarked that over and above the principles stated must be added the strong resistance by the Court against tinkering with sentences and the injunction by the High Court in Johnson v The Queen (2004) 78 ALJR 616 at [26]:

Judges at first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing regime is effected.

12 To these principles should be added the confirmation by the High Court in Markarian v The Queen [2005] HCA 25:

[25] …Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? …
[27] Express legislative provisions apart, neither principle nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion at the sentence be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the basis for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime as applies. …
[30] Legislatures do not enact maximum available sentences as mere formalities. …
[31] It follows that careful attention to maximum penalties will almost always be required, first, because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yard stick.

13 It is the above principles, especially as they relate to Crown appeals, that I apply in dealing with the sentence below.

Are there Errors in the Sentencing Process: Identifiable or Manifest?

14 The sentencing judge rightly remarks “that people who commit sexual offences on their children are treated very seriously by the courts” and recounts that Counts 1 to 10 relate to the eldest daughter, A, and cover the period 1984 to 2000 when she was aged 7 to 23. Counts 11 to 15 relate to daughter B and cover the period 1997 to 2001 when she was aged 10 to 14. Counts 16 and 17 relate to daughter C and cover the period 2000 and 2001. The sentencing judge refers to “the previous good character of this offender” and various mitigating factors prescribed in s.21A(3) of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge accepts that the respondent “is unlikely to re-offend given the circumstances of this case, and … that he has good prospects of rehabilitation and as is already clear, there has been a plea of guilty.” The sentencing judge recites that the respondent is entitled to “the full credit for his plea” which saved his daughters and his wife from giving evidence and to a discount to reflect the principles in R v Ellis (1986) NSWLR 603, because his ERISP was a more detailed recollection of the offences and therefore was of assistance to the police in their investigation.

15 His Honour in dealing with the sentence to be imposed, says:

I would have regarded the appropriate head sentence in this case as in the region of fourteen to fifteen years. I have discounted that to ten years for the plea of guilty and the Ellis factor. As I say, I do not precisely go into the mathematics, but I have identified it so that people know. It will then become apparent that because of what I have already said, the minimum period that has to be served in custody for these matters will be one of seven and a half years dating from today, and it is now necessary for me to go through the various offences detailing how that is made up. That is an exercise I have to go through because of the principles of Pearce and other legal reasons.

After recounting why it would be inappropriate, in looking at the formal sentence to determine what was the sentence imposed in relation to one child as against another, his Honour said:

It is an administrative exercise that I have to do, and it remains that the overall gravity of what has happened here is reflected by a non-parole period of seven and a half years.

His Honour then went on to impose the sentences that are earlier mentioned in this judgment. His Honour did not find special circumstances.

16 There are a number of matters which need to be raised in relation to the sentence imposed and the remarks of the sentencing judge. The first is the reference to “previous good character”. The sentencing judge was here referring to the fact that, as at the date of sentencing, the respondent had no prior convictions. He was also referring to the references, mentioned above, provided on his behalf. The sentencing Judge seemingly took this into account to some large degree as he did the lack of a likelihood to re-offend. Each of these, no doubt, depends upon the report of the registered psychologist which was in evidence before his Honour and before this Court.

17 The difficulty with this approach, in relation to offences of this kind is that, similar to most white-collar crime, the non-apprehension of the respondent (or his prior good behaviour) is almost a necessary condition to the commission of the crime. In circumstances where the respondent faces 17 offences of sexual assault on children spanning a period of almost 20 years, previous good behaviour is a factor which ought provide little weight in favour of the respondent

18 The psychologist’s report is based upon an interview on one occasion on 30 August 2005 and has a number of problems. For example, it seems that the respondent told the psychologist that he approached members of the New South Wales Police prior to complaints being made against him and that his sexual activity with his eldest daughter commenced when she was approximately 12 years of age. The offences commenced when the child was 7. Offences against a 7 year old cannot be understood on the reasons given to the psychologist for initiating contact with his eldest daughter, which was that “she was at that time developing into womanhood”. It is also clear that notwithstanding that he now recognises what he did was wrong, he recognised at the time of the continuing offences that it was wrong and has so stated.

19 Further, in relation to whether or not he is “unlikely to re-offend”, there seems to be no independent evidence that would suggest that to be the case. It is clear from the psychologist’s report (although it does not seem that testing occurred) that the respondent is not a paedophile. The psychologist states that the respondent “has not preyed on other children or molested anybody outside the family”, but the psychologist was unaware, at least according to the report, that he had also molested his third child. The psychologist comes to the conclusion that the respondent is not “a danger to the community. His sexual activities have always been confined to the family and since he no longer has access to his wife and family, he has controlled his sexual desires and feels he will be able to continue to do so.” This may ground a finding that there are good prospects of rehabilitation but seems to depend far more on the current lack of opportunity. On the sentence imposed by his Honour, the respondent will be 56 years of age when he re-enters society. At that age he is well able to enter into a new relationship and have other children. Further, there seems nothing on the record which warrants a finding that he is unlikely to re-offend if contact occurs with his daughters, or their daughters.

20 Each of the above criticisms are criticisms relating to findings of fact that are within the discretion of the sentencing judge. They may provide an understanding for a sentence that would otherwise be manifestly inadequate, but, in and of themselves, ought not to be the subject of correction. I will assume, notwithstanding my grave reservations, that the findings of his Honour in relation to those matters stand.

21 However, his Honour discloses no basis for arriving at the sentence he imposes.

22 I do not here participate in the debate between “instinctive synthesis” and “a staged sentencing process”. As the High Court has made clear, no single approach is correct in all cases. The High Court, however, pointed out:

An invitation to a sentencing judge to engage in a process of ‘instinctive synthesis’, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression ‘instinctive synthesis’ may then be understood to mean an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interest of victims, of the parties, appeal courts and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ( Markarian , supra , at [39])

23 There is simply no transparency in the process by which his Honour divined the starting point of 14 to 15 years.

24 Moreover, the process of “instinctive synthesis” refers to a sentence to be imposed for one offence. It does not invite sentencers to ignore, or treat as an administrative task, the principles embodied in Pearce. In Abboud the Court remarked:

[36] It has often been stated that in sentencing an offender, an appropriate sentence must be fixed which considers all of the questions associated with the criminality of that offence. In the case of multiple sentences for multiple offences, the totality principles adumbrated by the High Court in Pearce v The Queen (1998) 194 CLR 610 are well known and ought to be applied. I have already referred to the flexibility which nevertheless remains in a sentencing judge and was referred to in Johnson , supra . In Johnson , the joint judgment, cites, with approval, the judgment of the High Court in Mill (see paragraphs [18] and [19] of Johnson ) … The High Court makes clear that there is no inconsistency between Mill and Pearce and that each reflects the level of flexibility that must be retained by a sentencing judge in applying the principles of sentencing. Nevertheless, the approach in Mill is recognised as the orthodox approach to sentencing. It provides that a separate sentence will be imposed in relation to each separate offence, taking into account the matters that affect that sentence. It is only at the end of the process that the totality principle will be accommodated, preferably, by making the sentences wholly or partially concurrent.

25 While it is permissible to accommodate the totality principle by adjusting the last sentence to be imposed, as his Honour did here, the processes as adumbrated by the High Court in Mill, Pearce and Johnson do not include a process which treats all of the offences as one or which allows a process which starts with an overall figure and treats the assignment of criminality in relation to each offence as an administrative step.

26 Both of those kinds of error are evident in his Honour’s remarks on sentencing. His Honour treats Counts 1 to 10 as if they were all one offence against the eldest daughter. Similarly he treats Counts 11 to 15 as if they were one offence against the middle daughter. His Honour treats Counts 16 and 17 against the youngest child likewise and as if there were no additional criminality involved over the offences against the elder daughters. The manner in which his Honour fixed the commencement date for the sentences pays insufficient regard to those aspects of the charges that related to different children and those aspects of each offence which were not comprehended in the other offences, even against the same child.

27 The process by which his Honour fixed the commencement date and term of each sentence was almost fictional, described by his Honour as “an administrative exercise” (see [15] infra), and pays insufficient regard to the principles adumbrated by the High Court in Pearce.

28 In the circumstances, errors of principle have occurred in the process of sentencing which require the respondent to be re-sentenced by this Court.

29 Further comment is required on the subjective factors concerning the respondent. The first is that, as set out in the facts above, his initial reaction to the reporting of these incidents by his wife and daughters was not remorse and contrition as to what he had done, but rather concern as to his ability to cook for and look after himself. This represents a continuation of the attitude of pandering to his own needs to the detriment of his children which underpinned the offences in question.

30 The second element is the comment made throughout the ERISP that part of the cause for these offences was the fact that his wife was unwilling or unable to engage in sex with him. I do not, in any way, accept the truth of that proposition, or, even if it were true, that such a proposition is ameliorative of the seriousness of these offences or the sentences to be imposed. Of note is the explanation given to the psychologist that one of the reasons that his wife had difficulty engaging in sexual intercourse with him was that “his wife had been abused by several people”. That knowledge, not mentioned by his Honour, shows an actual knowledge of some of the damage that would likely be occasioned to his daughters by his conduct.

31 Lastly, in relation to errors identifiable or manifest, I would make clear that a sentence of seven and a half years’ imprisonment non-parole period and ten years’ imprisonment for the total sentence is manifestly inadequate for a series of offences of this kind stretching over this many years.

32 This is not a case in which the residual discretion reposed in the Court not to interfere on a Crown appeal, even when error is found, applies. (See R v AA [2006] NSWCCA 55)

Sentencing

33 It is necessary for the respondent to be re-sentenced. For that purpose I accept, notwithstanding the above criticisms, the findings of fact upon which his Honour based the sentences imposed. I do so because those findings of fact were open and, given the nature of the appeal process, ought not to be disturbed. Further, I accept the discount of thirty-three and a third percent applied by his Honour on account of the utilitarian view of the plea of guilty and the assistance provided to police pursuant to the principles adumbrated in Ellis. I deal with the offences in what I consider to be ascending order of seriousness:

Count 14 is a common assault with a maximum penalty of two years’ imprisonment. It is an assault, within the range of common assaults, above a midrange of seriousness which was perpetrated on a person in a trust relationship with the respondent and done for the purpose of causing the termination of a suspected pregnancy. In the scheme of common assaults it is a quite serious assault. As already indicated, I allow the discount that the sentencing judge has applied and take into account the subjective elements, including prior good character. These subjective factors apply to all offences, as does the factor of this being his first period of incarceration.

Count 1 is an indecent assault of a child under 16 years which carries a maximum penalty of six years’ imprisonment. This was an indecent assault on a seven year old child. Nevertheless, the circumstances surrounding the assault are not such as to put it in the worst case but it is, again, above midrange in seriousness.

Count 10 is incest, carrying a maximum penalty of seven years’ imprisonment. Because daughter A at the time was above the age of consent, it is not sexual intercourse without consent as is the case in all persons under the age of 16 years. Nevertheless taking into account the position of trust and that this incident occurred as a culmination of a prolonged period during which the victim would have been wholly disempowered and her true consent suborned, it is an offence of serious proportions and at higher than midrange in the range of offences that fit within the section.

Counts 12 and 15 are each aggravated indecent assault carrying a maximum sentence of seven years’ imprisonment. The assault was committed against the middle child at the age of 12 or 13 in relation to Count 12 and at the age of 14 in relation to Count 15. Again these are offences which do not involve gratuitous violence or threats, but do abuse the position of trust which the respondent had vis-à-vis his daughter. Once more, this offence would be at midrange.

Counts 2 to 9, 11, 13, 16 and 17 are each sexual intercourse with a child between 10 and 16 years of age and relate to all three daughters. The first offence against each child, i.e. when each child was at her youngest age, is marginally worse than the others, although each of them are at or above midrange in seriousness. The first offences of this kind against each child are Count 2 for daughter A, Count 11 for daughter B and Count 16 for daughter C. None involves gratuitous violence or the use of force (or the threats of it) over and above that which is otherwise an element of the offence. However, each of them was an abuse of trust.

34 I must then deal with totality and the overall sentence. I consider that there is significant overlap in the sexual intercourse offences in relation to each child. None of the individual offences can, by itself, in this sentencing exercise, be served without some concurrence. I have decided to treat the first offence against each child separately from the others because it required a separate animus than the continuation of a course of conduct already commenced in relation to that child. The last and penultimate sentences have been fixed to put into effect the statutory ratio between non-parole period and the remainder of the term in circumstances that, but for that factor, do not enable a finding of special circumstances. The overall non-parole period and remainder of sentence represent, in accordance with the principles on a Crown appeal, the lowest end of the range available for these offences.

35 In light of all of the factors mentioned above and my assessment of the seriousness of the offences, I propose that the respondent be re-sentenced and I propose that the Court should make the following orders:

a Appeal allowed.

b The sentences imposed by his Honour Judge Black QC of the District Court on 2 September 2005 be quashed and in lieu thereof, the following sentences be imposed:

i. Count 14

: common assault – a fixed term of 18 months’ imprisonment to commence on 2 September 2005 and expiring on 1 May 2007;

ii. Count 1

: indecent assault – a fixed term of three years’ imprisonment commencing 2 January 2006 and expiring on 1 January 2009;

: incest – a fixed term of three years’ imprisonment commencing 2 January 2007 and expiring on 1 January 2010;

: aggravated indecent assault – imprisonment for three years commencing 2 January 2008 and expiring on 1 January 2011 with a non-parole period of 27 months’ imprisonment commencing on 2 January 2008 and expiring on 1 April 2010;

: aggravated indecent assault – imprisonment for three years to commence on 2 January 2009 and expire on 1 January 2012 with a non-parole period of 27 months’ imprisonment to commence on 2 January 2009 and expire on 1 April 2011;

: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years commencing 2 January 2010 and expiring on 1 January 2014 with a non-parole period of three years’ imprisonment commencing 2 January 2010 and expiring 1 January 2013;

: sexual intercourse with a child between 10 and 16 years under authority – for each, imprisonment for four years to commence on 2 February 2011 and expire on 1 February 2015 with a non-parole period of three years’ imprisonment commencing on 2 February 2011 and expiring on 1 February 2014;

: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2013 and expire on 1 February 2017 with a non-parole period of three years’ imprisonment commencing on 2 February 2013 and expiring on 1 February 2016;

: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2014 and expire on 1 February 2018 with a non-parole period of three years’ imprisonment to commence on 2 February 2014 and expire on 1 February 2017;

: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2015 and expire on 1 February 2019 with a non-parole period of two years’ and seven months to commence on 2 February 2015 and expire on 1 September 2017;

: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for a period of five years to commence on 2 September 2016 and expire on 1 September 2021 with a non-parole period of one years’ imprisonment to commence on 2 September 2016 and expire on 1 September 2017.

c The respondent is sentenced to an overall effective sentence of a non-parole period of 12 years’ imprisonment and is first eligible for release on parole on 1 September 2017, thereafter to be under the supervision of the Probation and Parole Service until 1 September 2021.

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