R v Wilkinson

[2004] NSWCCA 468

CITATION:	R v Wilkinson [2004] NSWCCA 468
HEARING DATE(S):	06/05/2004
JUDGMENT DATE:	20 December 2004
JUDGMENT OF:	McColl JA at 1; Levine J at 2; Hidden J at 3
DECISION:	Appeal allowed: sentenced to imprisonment for twelve years, non-parole period nine years, from 9 October 2002.
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - aggravated sexual intercourse without consent - two matters on Form 1 - whether judge had regard to standard non-parole period, not applicable to the case - whether proper approach to Form 1 matters - whether adequate weight given to plea of guilty, co-operation, poor health, protection
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Criminal Appeal Act
CASES CITED:	R v Wilkinson (CCA, unreported, 6 October 1983) R v Ohar [2004] NSWCCA 83 Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 14 R v McCarroll [1999] NSWCCA 237 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Ellis (1986) 6 NSWLR 603 R v L (CCA, unreported, 17 June 1996) R v Kain [2004] NSWCCA Veen v The Queen [No 2] (1988) 164 CLR 465
PARTIES :	Regina (respondent) Ernest John Wilkinson (applicant)
FILE NUMBER(S):	CCA 60013/04
COUNSEL:	R Hulme SC (applicant) G Rowling (Crown)
SOLICITORS:	S O'Connor (applicant) S Kavanagh (respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3029
LOWER COURT JUDICIAL OFFICER :	Maguire DCJ

60013/04

MCCOLL JA
LEVINE J
HIDDEN J

Monday 20 December 2004

Regina v Ernest John Wilkinson

Judgment

1 MCCOLL JA: I agree with Hidden J.

2 LEVINE J: I agree with Hidden J.

3 HIDDEN J: The applicant, Ernest John Wilkinson, pleaded guilty in the District Court to a charge of sexual intercourse without consent in circumstances of aggravation, an offence under s61J of the Crimes Act which carries a maximum sentence of twenty years imprisonment. There were two further charges under the same provision on a Form 1. He was sentenced to imprisonment for eighteen years, to date from the day of his arrest, 9 October 2002, with a non-parole period of thirteen and a half years. He seeks leave to appeal against that sentence.

Facts

4 The three offences were committed over a period between April 2001 and September 2002, when the complainant was between thirteen and fourteen years old. The circumstance of aggravation in each case was that she was under the age of sixteen: s61J(2)(d). She also suffered from a mild intellectual disability, having a mental age of eight to nine years. The applicant knew her because he had previously had a relationship with her mother. The three offences, together with several other incidents of a similar nature, occurred on occasions when she was staying at the applicant’s home.

5 The first of the three offences occurred in the later part of 2001, the second in June 2002, and the third towards the end of September 2002. It is unnecessary to recite the detail of the offences except to record that each involved penile/vaginal intercourse. The complainant became pregnant as a result of the second offence, and it was this which brought the applicant’s conduct to light. The pregnancy was terminated. Police were notified, and the applicant was arrested and interviewed on 9 October 2002.

6 The complainant had been interviewed on 3 October 2002. She described the incident which gave rise to her pregnancy and, although she had difficulty articulating the act of sexual intercourse, she made it clear that the sexual activity took place over her protests. She said that there had been similar incidents before but she provided no detail about those occasions. Asked how often it had occurred before, she could only say “more than once.”

7 From the progress of her pregnancy, it was clear that the act of intercourse giving rising to it had occurred some time in June 2002. This was the second offence on the Form 1. In his police interview, the applicant not only admitted intercourse on that occasion but also provided the information giving rise to the principal offence and the first offence on the Form 1. Without that information those charges could not have been framed. He admitted having had intercourse with the complainant “about half a dozen times”, saying that the incidents he described giving rise to the other two charges were the first and last of those occasions. The principal charge related to that last occasion, and the first charge on the Form 1 to the first occasion.

8 On 1 October 2002, prior to his arrest, the applicant attempted suicide by an overdose of prescription drugs when he heard about the complainant’s pregnancy. He told police that he did so because he knew that “everything would come out” about his sexual contact with the complainant and that he was afraid of reprisals which might be arranged by her father, who had contacts in the prison system. He added, “I knew that I’d sooner die in me sleep than die stabbed to death or bashed to death”. He also said that he had left a tape for the complainant in which, as he put it, “I said somethin’ along the lines that, that I was sorry for what I’d done, and that I’d be better off dead and it wasn’t her fault that I committed suicide and not to blame herself… and that I loved her”. Asked how he would describe his love for her, he said, “She was somethin’ special to me, that’s all… It wouldn’t be like a love between a man and a woman, it was just a love that I felt for her. I think because she was the only person that I felt comfortable with.”

9 He pleaded guilty to the principal charge in the Local Court and was committed for sentence.

Subjective Case

10 The applicant was aged between fifty-three and fifty-four years at the time of the offences and is now fifty-seven. He has a lengthy criminal record, including some entries for offences of a sexual nature which were very important in the sentencing task faced by the primary judge. His record begins with offences of dishonesty dealt with in the Children’s Court when he was only eleven years old. It continues into his adult years and, apart from sexual offences, is mainly composed of offences of dishonesty, some of them serious enough to have resulted in terms of imprisonment.

11 In 1964, on his seventeenth birthday, a judge of the Supreme Court ordered that he be detained in a juvenile institution for carnal knowledge and indecent assault of a female under sixteen years of age. There was no evidence before the sentencing judge in the present case about the circumstances of those offences. However, it is his sexual offences as an adult which are of primary significance and his Honour did have the facts of some of those.

12 In 1983, when he was thirty-five years old, he was found guilty at trial of six counts of sexual intercourse without consent and a related count of robbery, and was sentenced to terms of imprisonment aggregating twelve years with a non-parole period to expire on 1 July 1987 (a period of about five years and seven months). His appeal against conviction and sentence was dismissed: R v Wilkinson (CCA, unreported, 6 October 1983). The offences arose from one incident, in which he forced a sixteen year old girl into a derelict house, detained her for five hours, subjected her to five acts of vaginal intercourse and one of anal intercourse, and took from her what Street CJ in the Court of Criminal Appeal described as “some trifling possessions” and a small sum of money. He was released on parole in December 1985, aged thirty-nine.

13 In 1988, at the age of forty, he was convicted in the District Court of four counts of homosexual intercourse with a male under eighteen years of age, and was sentenced to concurrent terms of imprisonment for three years and six months with a non-parole period of three years. The facts of those offences, which were committed while on parole, were not before his Honour in the present case. However, there was a psychiatric report of Dr Jonathon Carne, to which it will be necessary to refer later. In recounting his history to Dr Carne, the applicant said that the sexual activity the subject of those charges was consensual.

14 In 1990, at the age of forty-two, he was convicted of sexual intercourse without consent of a person under the age of sixteen, armed robbery and indecent assault. He was again on parole at the time of these offences. He was sentenced to terms of imprisonment aggregating eight years and eight months with a minimum term of seven years. The offences arose from two incidents, two days apart.

15 For several months in 1990 he was living with his brother and sister-in-law in Albury. On 9 July 1990 he sexually assaulted their daughter, his niece, by placing his hand inside her clothing and rubbing her vagina. He stopped when she told him to. She told her mother what he had done. He left the house early the following morning, leaving a note apologising for his action.

16 The following day, he was hitch-hiking towards Goulburn when a man stopped to offer him a lift. He directed the driver to a bushland area, where he threatened him with knife, forced him into the bush, tied him up, removed his trousers and underpants and fondled his penis. He then gagged the victim and left him tied to a tree. The charge of armed robbery also arose from this incident but the material before his Honour did not disclose what property was stolen.

17 He was again released on parole in July 1997, but this parole period had expired well before the commission of the present offences.

18 He had a dismal childhood, the detail of which need not be recited. It is sufficient to say that he never knew a stable family life, and spent periods in institutions not only for committing offences but also upon being found to be what was then known as an “uncontrollable” child. His only education was in those institutions, and it was limited. As an adult, apart from periods of imprisonment, he pursued an itinerant lifestyle with casual employment in unskilled positions. He had never had a long term intimate relationship. At the time of the present offences he was living alone in Housing Department accommodation in the south-west of Sydney.

19 Before his Honour was a report of 9 October 2002 by Associate Professor K Wilhelm, psychiatrist, of the St Vincent’s Mental Health Service, prepared following the applicant’s suicide attempt on 1 October. Professor Wilhelm described that attempt as “severe and intended to kill him”. From the history provided, he diagnosed a condition of worsening depression over the previous six months. However, he found that the applicant was not “psychotic, delirious, or obviously depressed in terms of psychomotor change or profound suicidal ideation”. He added, nevertheless, that he does “constitute an ongoing suicidal risk but this is unlikely to be resolved by any psychiatric treatment”.

20 In a report of June 2003, Dr Carne concluded that the applicant had an antisocial personality disorder and was depressed in the period leading up to the offences. He recommended that, while in custody, he attend a sexual offenders program and be assessed by a forensic psychiatrist experienced in the treatment of such offenders, and that such a regime should continue upon his release. He also recommended consideration of the use of long-acting antiandrogen medications to decrease his sexual drive.

21 From those reports and from the report of a general practitioner, Dr V M Nguyen, it also appears that the applicant suffers from serious organic health problems. He has severe, chronic ischaemic heart disease and peripheral vascular disease. He has suffered a number of acute myocardial infarctions and had coronary bypass surgery in 1991. A further blockage was detected in 1994 but, because of his continued heavy smoking, surgery was deferred. Dr Nguyen reported in May 2003 that he had been experiencing recurrent angina attacks despite being on “maximum medical treatment”. In addition, he suffers from chronic insulin dependant diabetes, which is poorly controlled, as well as chronic asthma, hypercholesteronaemia and gout. He has been on an array of medication. However, Dr Nguyen reported that he was often not compliant with treatment and that, if he continued his current lifestyle, his prognosis was “extremely poor”.

The application

22 In this Court Mr Hulme SC, for the applicant, submitted that the sentence is manifestly excessive, arguing that this was the result of a number of specific errors to be identified in his Honour’s remarks on sentence. It is convenient to deal firstly with those specific matters.

Standard non-parole period

23 At the commencement of the remarks, having referred to the applicant’s plea of guilty to “aggravated sexual assault” and the maximum penalty for the offence, his Honour observed, “The standard non-parole period is ten years.” Clearly, this was a reference to the standard non-parole period for the offence under s61J of the Crimes Act to be found in the table to division 1A of part 4 of the Crimes (Sentencing Procedure) Act: see s54B of that Act. However, those provisions were introduced in 2002 and apply only to offences committed on or after 1 February 2003. They did not apply to this case.

24 In R v Ohar [2004] NSWCCA 83, this Court held that a sentencing judge was in error in seeking “some guidance” from the table of standard non-parole periods for the purpose of sentence in a case which was not governed by those provisions, even though that judge was aware of that fact and recognised that he was “not bound” by them: see the judgment of James J at [83] - [85]. The Crown prosecutor before us noted that his Honour made no further reference to the standard non-parole period, and argued that the conclusion could not be drawn that he had regard to it in an impermissible way in the sentencing process. However, one is left to wonder why his Honour did refer to it at all, particularly given that he did so immediately after his reference to the maximum sentence. I am driven to the conclusion that his Honour mistakenly believed it to be applicable to the case.

25 I think that there is force in Mr Hulme’s argument that, although not expressed, the assumption that the ten year standard non-parole period applied explains the manner in which the sentence was arrived at. Section 54A(2) of the Crimes (Sentencing Procedure) Act provides that the standard non-parole period “represents the non-parole period for an offence in the middle of the range of objective seriousness” of offences of that kind. Given the facts and the applicant’s antecedents, which highlighted the need for particular deterrence, his Honour fairly observed that these offences were “deserving of the most severe punishment”. If he had used the standard non-parole period of ten years as a starting point, one can understand how he might have arrived at the non-parole period of thirteen and a half years which he specified. If one were then to add a third of that period, four and a half years, the result is the head sentence of eighteen years which was passed. That approach would have been consistent with s44 of the Act as it is now expressed, having itself been amended in 2002 and also applying in its amended form to offences committed on or after 1 February 2003.

26 In short, it appears to me that his Honour dealt with the matter in accordance with the statutory regime introduced by the 2002 amendments and, in so doing, he fell into error. This is sufficient to warrant this Court’s intervention and to enliven our discretion to re-sentence. It certainly could not be said, in the terms of s6(3) of the Criminal Appeal Act, that no lesser sentence than that which his Honour passed was warranted in law. Strictly, it is unnecessary to determine the other particular matters raised by Mr Hulme. However, it is appropriate to refer to them and some of them bear on the assessment of the sentence which should now be passed.

27 Form 1 matters

At the beginning of his remarks, his Honour referred to the committal charge and to the two other charges on the Form 1 which, he said, “have been taken into account…”. However, he went on to refer to the three offences without distinguishing between the principal offence and those on the Form 1. More importantly, at the end of the remarks he passed sentence in this way:

I sentence you to a term of eighteen years imprisonment. I set a non-parole period of thirteen and a half years.

He then set out the commencement date of the sentence and the terminal dates of the non-parole period and the head sentence. However, he did not express the sentence to be referable to the committal charge, with the Form 1 matters being taken into account.

28 Moreover, the transcript discloses that the procedure set out in s33(2) of the Crimes (Sentencing Procedure) Act, dealing with outstanding charges being taken account, was not followed. While the Form 1 document cannot now be found, it is accepted that the applicant signed it and intended that the two additional offences be taken into account. Section 33(2) permits a court to take a further offence into account if the offender admits his or her guilt of that further offence and indicates that he or she wants the court to take it into account when sentencing for the principal offence. These are formal steps which should be taken and recorded during the sentence proceedings. It does not appear that his Honour asked the applicant whether he admitted his guilt to the two matters on the Form 1 and whether he wished them to be taken into account when being sentenced for the committal charge.

29 From all this, Mr Hulme submitted, it should be inferred that his Honour failed to approach the matter in accordance with the principles governing the Form 1 procedure enunciated by Spigelman CJ in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, particularly at [42] – [43]. Mr Hulme argued that he appears to have passed a sentence intended to reflect the total criminality of the three offences, rather than focusing upon the principal offence. The Crown prosecutor submitted that that inference should not be drawn, relying upon the fact that his Honour did specify at the outset of his remarks that the two charges on the Form 1 “have been taken into account.”

30 For present purposes, the matter need not be resolved. However, it highlights the need to ensure that the procedure in s33(2) is followed and that the formal sentencing order expressly records that the sentence is passed in respect of the principal offence, with the Form 1 matter or matters being taken into account.

31 Plea of guilty, contrition and co-operation

As was accepted by the Crown’s representative at the sentence proceedings, the applicant had pleaded guilty to the principal charge at the earliest opportunity. As I have said, the two charges on the Form 1 were able to be framed only because of his admissions. Moreover, in admitting that there had been about half a dozen acts of intercourse in all, he acknowledged a wider pattern of abuse than the complainant herself had been able to articulate.

32 As to the plea of guilty, his Honour said in his remarks no more than that he had taken it into account. He also said that he saw no evidence of contrition. It was incumbent upon his Honour to explain the significance which he placed upon the plea of guilty, that is, “to have spelt out the way in which it was taken into account”: R v McCarroll [1999] NSWCCA 237, per Wood CJ at CL at [14]. As counsel for the applicant at the sentence proceedings had argued, it was of considerable utilitarian value and it also spared a vulnerable complainant the necessity of giving evidence.

33 On the question of contrition, his Honour said nothing about that latter aspect of the plea, which was a relevant matter: R v Thomson & Houlton (2000) 49 NSWLR 383, per Spigelman CJ at [4] and [119] – [120]. Nor did he refer to the applicant’s admissions, particularly insofar as they disclosed a measure of criminality of which the police had no evidence: cf R v Ellis (1986) 6 NSWLR 603. Some remorse might fairly have been inferred from these factors. Whether an expression of remorse might be found in the tape which he left for the complainant before his attempted suicide I find it unnecessary to decide.

34 In my view, these are matters which should have earned the applicant a significant measure of leniency. Given that the sentence of eighteen years was ninety percent of the maximum, it is difficult to see what weight, if any, was afforded to them.

Health and conditions of custody

35 There was evidence that the applicant had been in protective custody, which his Honour said that he had taken into account. However, while he referred to Dr Carne’s psychiatric diagnosis and recommendations, he said nothing about the state of the applicant’s physical health. Mr Hulme submitted that the sentence demonstrates that these matters had not been taken into account or, at least, had not been given the weight which they deserved.

36 It is well established that the state of health of an offender is relevant to sentence where it might be exacerbated by the conditions of his or her custody or where it might render those conditions more burdensome, although that is not the only basis upon which regard might properly be had to it. The principles were reviewed by this Court in R v L (CCA, unreported, 17 June 1996) at pp 6-8. Equally, the fact that a sentence is likely to be served in protective custody is relevant and, given the nature of the applicant’s crimes, it is almost inevitable that he would require protection for the whole of the custodial term of his sentence. However, there appears to be a variety of arrangements within the prison system at present for prisoners requiring protection and whether, and to what extent, the arrangements in a particular case lead to conditions more onerous than those of the general prison population needs to be the subject of evidence: R v Kain [2004] NSWCCA 143, per Levine J at [60] ff.

37 There is some force in Mr Hulme’s argument but, again, the matter need not be resolved. It is reasonable to assume that the applicant’s experience of incarceration will be more difficult because of the parlous state of his health. However, there was no evidence before his Honour of the effect of his health or of his status as a protected prisoner on the conditions of his custody. Suffice it to say that, for the purpose of re-sentence, there is before this Court an affidavit of the applicant dealing with both those matters.

Antecedents

38 Finally, Mr Hulme submitted that the severity of the sentence demonstrates that, in assessing the significance of the applicant’s prior record for serious sexual offences, his Honour fell into the error identified in the joint judgment in Veen v The Queen [No 2] (1988) 164 CLR 465 at 477:

…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences…

39 Yet again, it is unnecessary to determine this matter. For the purpose of re-sentence there is no doubt about the significance of that criminal history, but its proper place was explained in the same joint judgment as follows (also at 477):

It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.

Re-sentence

40 The applicant’s affidavit, sworn on 6 May 2004, discloses that he had then been waiting for about a year to see a specialist cardiologist with a view to undergoing a bypass operation. He has continued to have frequent angina attacks, sometimes more than once a day, and has often had to wait for a significant period of time before officers attend his cell to supply him with the necessary medication. He has been on strict protection with limited association, which has reduced his opportunity for daily exercise in a yard and has compromised his access to educational courses.

41 There is no denying the gravity of these offences, particularly given the age of the complainant and her limited intellectual capacity. It is also to be borne in mind that they are part of a wider pattern of abuse. It is necessary to recognise the seriousness of the principal offence, taking into account the further offences on the Form 1 and giving appropriate weight to the applicant’s antecedent criminal history, while making due allowance for his deprived background, his age, his state of health and his conditions of custody. I would assess the appropriate starting point for sentence at sixteen years. In the light of his plea of guilty, his co-operation with the police and the measure of remorse which I would be prepared to infer, I would reduce that sentence by twenty-five percent to twelve years.

42 While there is evidence which might justify a finding of special circumstances, I would not depart from the normal statutory proportion in specifying the non-parole period. In my view, a period of any less than nine years would be inadequate to mark the applicant’s criminality. The balance of the sentence of three years remains a substantial period of parole eligibility during which he might be assisted to re-enter the community.

43 Accordingly, I would grant leave to appeal, allow the appeal and quash the sentence passed in the District Court. On the committal charge, taking into account the two matters on the Form 1, I would sentence the applicant to imprisonment for twelve years, with a non-parole period of nine years, to date from 9 October 2002. He would be eligible for release on parole on 8 October 2011.

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Last Modified: 12/21/2004