R v Woods
[2009] NSWCCA 55
•29 April 2009
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
R v Woods [2009] NSWCCA 55FILE NUMBER(S):
2007/7831HEARING DATE(S):
27 November 2008JUDGMENT DATE:
29 April 2009PARTIES:
Crown - Appellant
Jacob Charles Woods - RespondentJUDGMENT OF:
Giles JA Latham J Mathews AJLOWER COURT JURISDICTION:
District CourtLOWER COURT FILE NUMBER(S):
07/61/0100LOWER COURT JUDICIAL OFFICER:
Nicholson DCJLOWER COURT DATE OF DECISION:
2 June 2008COUNSEL:
J Girdham - Crown
P Strickland SC - RespondentSOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions)
S O'Connor (Legal Aid Commission)CATCHWORDS:
CRIMINAL LAW
Crown appeal
23 charges
majority sexual offences
three young victims
whether sentences manifestly inadequate
criminality involved
charges based on admissions of respondent
early plea of guilty
assistance to authoritiesLEGISLATION CITED:
Classification (Publications, Films and Computer Games) Enforcement Act 1995
Crimes Act 1900
Criminal Procedure Act 1986CATEGORY:
Principal judgmentCASES CITED:
KJH v Regina [2006] NSWCCA 189
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
Pearce v The Queen (1998) 194 CLR 610
R v AJP [2004] NSWCCA 434
R v Burchell (1987) 34 A Crim R 148
R v Cage [2006] NSWCCA 304
R v Ellis (1986) 6 NSWLR 603
R v Gorman (2002) 137 A Crim R 326
R v Kennedy [2000] NSWCCA 527
R v MMK [2006] NSWCCA 272
Ryan v The Queen (2001) 206 CLR 267;TEXTS CITED:
DECISION:
Crown appeal allowed.
Respondent resentenced.JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 2007/7831
DC 07/61/0100GILES JA
LATHAM J
MATHEWS AJWednesday 29 April 2009
R v Jacob Charles WOODS
1 THE COURT: This a Crown appeal against the asserted inadequacy of sentences imposed by Nicholson DCJ (“the Judge”) in the District Court at Bourke on 2 June 2008. The respondent had pleaded guilty to 14 charges. In addition, seven related charges were dealt with under s 167 of Criminal Procedure Act 1986. Two further charges were dealt with under Form 1.
2 The proliferation of charges against the respondent – 23 in all – means that, without a degree of simplification, a somewhat confusing picture emerges. This is compounded by the fact that the individual charges have generally been identified by reference to “sequence numbers” which bear no apparent logical sequence at all.
The offences
3 The great majority of charges related to sexual activities between the respondent and three young boys. Those boys are
· NB, born in April 1995
· ME, born in May 1998
· DG, born in August 1996
4 All offences took place in Bourke, in one of two homes rented by the respondent, and over two separate periods: first, between February and October 2005, when the respondent was living in a unit in Richards Street; and later, between May 2006 and January 2007, when he was living in a house in Church Street. Between October 2005 and May 2006 the respondent was living in Moree and no offences took place.
5 The respondent was between 23 and 25 years old at the time of the offences. He was working as an Aboriginal Liaison Officer, and was also coaching a football team involving young boys. He encouraged young Aboriginal boys to visit his home, keeping his refrigerator full of food by way of inducement. He also used to show pornographic films to the boys, as a form of titillation for them and for himself.
6 Thirteen of the charges to which the respondent pleaded guilty, and four of the charges under s 167, related to sexual activities with one or more of the three boys. A further s 167 charge related to the respondent exhibiting adult films to minors and was therefore indirectly associated with the sexual activity charges. The remaining charge to which the respondent pleaded guilty was a firearms charge, as were the remaining two s 167 charges. Finally, the two Form 1 offences related to a separate episode on 6 January 2007 in which the respondent threatened a neighbour and resisted arrest, as we shall describe later.
7 In an endeavour to clarify the general nature of the principal offences for which the respondent was sentenced, we have prepared a schedule setting out all seventeen sexual offences according to the nature of the offence, and including the sequence number, the victim, and the dates of the offences. (See Schedule A to this judgment.)
8 By far the most serious offences were the four offences of having sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act 1900. The maximum sentence for this offence is imprisonment for 25 years. A standard non-parole period of 15 years applies in relation to this offence.
9 The maximum sentences for the other sexual offences committed by the respondent are:
- sexual intercourse (SI) with child between
10 and 14 years (s 66C(1))16 years
- attempt SI with child between 10 and 14 years (s 66C(1)) 16 years - *indecent assault child under 10 years (s 61M(2) 2 years (except on indictment) - *indecent assault child under 16 years (s 61M(1) 2 years (except on indictment) -*act of indecency with child under 16 (s 61N(1)) 1 year (except on indictment)
10 The three asterisked offences (under ss 61M and 61N) were dealt with under s 167 of the Criminal Procedure Act rather than by indictment. Accordingly, the lower penalties apply to those offences.
11 As Schedule A shows, there were, in all, 11 offences of having sexual intercourse with a child, separated only by the age of the victim. Every one of these offences involved fellatio, with the respondent either placing the victim’s penis in his own mouth or his own penis in the victim’s mouth. The former situation was much more common. There were only three occasions on which he placed his own penis in the child’s mouth, all involving NB (sequence numbers 7, 10 and 22).
12 In some cases, single episodes gave rise to multiple charges. For example, sequence numbers 3, 4, 11, 13 and 26 all related to one episode involving both DG and ME. The two boys were staying at the respondent’s home at the time. He said that they started to “muck around” with each other. The respondent joined in. He masturbated both boys and had one of them masturbate him. Both victims then separately put their penises in his mouth. This episode, as indicated, led to five separate charges.
13 Similarly, sequence numbers 17 and 24 relate to a single episode in which the respondent first touched ME’s penis and then put it in his mouth. Sequence numbers 9, 10 and 15 also arose out of a single incident involving both NB and DG. The respondent and NB put their penises in each other’s mouths in the presence of DG (giving rise to sequence numbers 9 and 10), following which the respondent put DG’s penis in his own mouth (sequence number 15).
14 As far as we can ascertain therefore, the 15 sexual offences (other than the two offences of attempted sexual intercourse) arose out of seven separate episodes. Schedule B separates the offences according to those episodes and provides a very brief outline of the facts in relation to each of them.
15 The two charges of attempted sexual assault with a child between the ages of ten and fourteen (sequence numbers 8 and 2) relate to two occasions on which the respondent attempted to have anal intercourse with NB. On each occasion the boy said that it was hurting him and the respondent stopped before any penetration had occurred.
16 Of the remaining offences, one (sequence number 19) is an offence under s 14(2) of the Classification (Publications, Films and Computer Games) Enforcement Act (1995) of privately exhibiting a “R18+” rated film with a minor present. Such a film was shown in the presence of all three boys.
17 The fourteenth charge to which the respondent pleaded guilty (sequence number 21), together with two of the related charges under s 167 (sequence numbers 20 and 25), arose from the respondent’s possession of an unauthorised and unregistered .22 calibre rifle and his failure to keep it safely. Police searched for the rifle on the afternoon of 16 January when they first confronted the respondent about these offences. The rifle was not in the boot of the car where the respondent said it should be. Later that evening the respondent took the rifle to the Bourke Police Station where he surrendered it to police.
18 Finally, the two offences taken into account under Form 1 related to an altercation which took place between the respondent and a neighbour on the night of 6 January 2001 and in the early hours of the following morning. It commenced when a number of boys who were staying with the respondent threw objects onto the neighbour’s roof. The neighbour spoke with the respondent about this upon which the respondent, who was clearly intoxicated, became aggressive and abusive towards him. Police were called, but the respondent went inside his house and refused to speak with them. Later the respondent continued to threaten the neighbour. The police were called again. On this occasion the respondent continued to call out threats to the neighbour, and the police placed him under arrest. However, the respondent started struggling and resisted being placed into the caged truck. This episode gave rise to charges of intimidating a person with intent to cause fear, and resisting a police officer in the execution of his duty.
19 The respondent was released from custody the next day, 7 January 2007. On 16 January the police recorded an interview with the victim NB. On the same day they executed a search warrant at the respondent’s premises at Church Street. They found, amongst other things, a handwritten suicide note in the following terms:
“Dear all
I am sorry. Tell my family I love them and I will look over them.”
There followed a short passage about the respondent’s ward, then:
“To all my friends I am sorry. To the police, please set up a counselling service for people like me to get help before they do something. I hated doing it afterwards, and wanted help, but nowhere to go for help …”
At this point the respondent was taken to the Bloomfield Hospital at Orange. Three days later, on 19 January 2007, an ERISP was conducted at Orange. The respondent was cooperative in the extreme. Indeed, every one of the seventeen charges relating to sexual activity on his part was based on information provided by him in this ERISP. This is a matter of considerable significance on this appeal, as we shall discuss later.
20 The respondent was thereafter charged with the various matters referred to above. He has been in custody ever since.
Respondent’s background
21 Before setting out the sentences imposed in the District Court, it is relevant to say something about the background of the respondent. The respondent gave evidence before the sentencing judge, and a psychiatric report of Dr Allnutt was also tendered on sentence.
22 The respondent, who is of aboriginal background, was born in January 1982 in Coonabarabran. He was one of three children in a supportive and loving family. However, at the age of nine he was sexually abused by an older man who was a family friend. This continued on a regular basis until he was 13 years old. It included fondling, oral sex and anal sex. Between the ages of 19 and 22 he had a relationship with a woman as a result of which he has two children, now aged seven and five, with whom he has lost contact. During the offending period he was drinking two or three times a week to the point of intoxication. He was not taking illicit drugs of any kind. Dr Allnutt considered that he was not suffering from any significant symptoms of a major psychiatric illness, although he had mood fluctuations which might have been consistent with bipolar affective disorder.
23 The respondent has a record of relatively minor nuisance offences, all of which have been dealt with by way of fines. There are no prior offences of a sexual nature. He has never been in gaol before. In all relevant respects he is a person of prior good character.
24 The respondent completed his year 12 of schooling. His early employment included positions such as employment consultant for an agency and contact manager within the Aboriginal Employment Strategy. In June 2005, he was appointed the Aboriginal community liaison officer with the Department of Education and Training stationed in Bourke. This involved working with communities to give them a better understanding of how the Education Department functioned. He has always worked in administrative capacities. He also had skills as a football coach and had several seasons of coaching young boys in rugby league.
25 Shortly before his arrest the respondent attempted suicide. After writing the note referred to in paragraph [19] above, he pointed the .22 rifle at his head and attempted to discharge it. However, the rifle was malfunctioning and did not go off.
Sentencing proceedings
26 The sentencing judge noted that the respondent had expressed remorse in a number of different ways. His pleas of guilty and assistance to the authorities were the most significant of these. In addition, he wrote a letter to the parents of each of the victims in similar although not identical terms. A sample is a follows:
“I know I am the last person you would want to hear from, but please hear me out.
I am so sorry I have hurt you all, the way that I have hurt especially [victim] I know no words can describe the terrible things I have done, I only hope that you will get help for [victim]. It is very important that he talks about what has happened, to a counsellor. I can’t stress enough the importance of this help. If I had done it fourteen years ago, none of this would have happened. The last thing I want for [victim] is to have to go through what I am having to go through, my past and present. Remember to get him help. Even if he doesn’t want it, never let up, I know from experience.
I know you may never forgive me, however, I am getting the help that I need so I never hurt another boy, ever.””
27 The sentencing judge referred to these matters and determined to give a discount of 27.5% in relation to each of the sexual assault offences.
28 The Judge also took account of the following matters:
· The respondent used the pornographic films to sexually excite the young boys, thereby facilitating their willingness to participate in his illegal activities. This grooming constituted an aggravating feature of the offences.
· Certain offences involved the participation of two victims. The presence of another person was an aggravating feature of these offences.
· The respondent was NB’s football coach, and therefore was in a position of responsibility in relation to him. This was an aggravating feature of the offences involving NB.
29 The Judge made an express finding that none of the s 66A offences fell within the mid-range of seriousness. The reasons given were as follows:
“57. None of the offences has any suggestion of force, threats, or drugs, before during or after the sexual encounter. There is no suggestion in respect of these four offences of any pain or discomfort being experienced by the victims. There is no suggestion that any of the victims was unwilling, although as I said the use of pornographic videos was, in part, a factor in their apparent willingness. Each case was an episode of fellatio upon the victim.
58. The standard non-parole period applies to all offences created by s 66A, that is sexual intercourse with children under ten years. The law recognises many forms of intercourse between victim and offender. The definition of sexual intercourse in the Crimes Act is wider than used in common parlance. Fellatio, all other things being equal, is not regarded by the law as heinous as penile penetration of a female victim or anal penetration or both.”
30 The Judge found that special circumstances existed which justified a departure from the statutory nexus between the non-parole period and the additional term. The Crown has not sought to challenge this finding.
31 The Judge then proceeded to divide the 14 primary offences into seven groups, depending on the nature of the charge and the identity of the victims. He then imposed sentences which were partially concurrent and partially cumulative in relation to each of these seven groups. The sentences imposed were as follows:
Sequence no Charge Sentence 21 Unauthorised firearm Fixed term 2 months 7 days
22.01.07 – 28.03.07
4, 15 Sexual intercourse (SI) with child aged 10 to 14 yrs (DG) 16 months non-parole period (NPP) 22.02.07 – 21.06.08 Additional term (AT) 10 months to 21.04.09 17, 18, 3 SI with child under 10 yrs (ME) 2 years NPP
22.02.08 – 21.02.10
AT 15 months to 21.05.11 7, 1, 9 SI with child aged 10 to 14 yrs (NB) 14 months NPP
22.08.08 – 21.10.09
AT 1 year to 21.10.10 10, 22 SI with child aged 10 to 14 yrs (NB) 18 months NPP
22.11.08 – 21.05.10
AT 15 months to 21.08.11 8, 2 Attempt SI with child aged 10 to 14 yrs (NB) 18 months NPP
22.02.09 – 21.08.10
AT 1 year, 15 days to 05.09.11 23 SI with child under 10 yrs (NB) 21 months NPP
22.05.09 – 21.02.11
(taking into account Form 1 offences) AT 22 months 15 days to 05.01.13
32 In relation to the sentences imposed pursuant to ss 166 and 167, the Judge sentenced the respondent to fixed terms of imprisonment which were wholly subsumed within the sentences for the primary charges. These sentences were as follows:
Sequence no Charge Fixed term 11 Act of indecency to DG 6 months
22.02.07 – 21.08.07
13 Indecent assault child under 16 yrs (DG) 6 months
22.02.07 – 21.08.0724 Indecent assault child under 10 yrs (ME) 8 months
22.02.07 – 21.10.07
26 Indecent assault child under 10 yrs (ME) 8 months
22.02.07 – 21.10.07
19 Playing adult film to minors 6 months
22.01.07 – 21.07.07
20 Unregistered firearm 1 month
22.01.07 – 21.02.07
25 Not keep firearm safely 4 months
21.01.07 – 21.05.07
33 The respondent went into custody on 19 January 2007. Accordingly, he was sentenced to an overall non-parole period of four years, one month and two days, expiring on 21 February 2011, with an additional term expiring on 5 January 2013, making a total sentence of nearly six years.
Crown submissions
34 The Crown submissions pointed out that the Judge made two patent errors on the face of the record. First, if all pre-sentence custody was to be taken into account, which was apparently the Judge’s intention, the sentences should have been backdated to 19 January 2007 instead of 22 January 2007. Second, the Judge sentenced the respondent to a fixed term of six months’ imprisonment for playing an adult film in the presence of a minor (sequence number 19) whereas the maximum penalty for that offence is a fine only.
35 The second of these matters clearly requires rectification. This could readily be done without disturbing the overall sentences imposed by the Judge. However, the Crown’s primary submission is that the sentencing process miscarried because the sentences, both individually and collectively, were manifestly inadequate. It was submitted that the sentences imposed, taken both individually and together, did not adequately reflect the objective gravity of the offences, given that they involved three young boys between the ages of eight and eleven years over a period of almost two years. It was further submitted that the Judge erred in failing to assess the objective seriousness of the offences. In relation to the s 66A offences, the Judge found that they fell below the mid-range of objective gravity, but failed to indicate the extent to which they did so. Such an assessment is a fundamental starting point to arriving at the appropriate sentence (R v Cage [2006] NSWCCA 304 at [17]). In relation to the four s 66A offences, the Judge referred to the standard non-parole period and noted that it had no direct application after a plea of guilty. However, the sentences then imposed for these offences clearly show that the Judge could not have used the 15-year standard non-parole period as a guide or indicator to the appropriate sentence. This is demonstrative of error in the sentencing approach (per Simpson J in R v AJP [2004] NSWCCA 434 at [16] – [18]).
36 The Crown submitted that the sentencing judge erred in giving too much weight to the respondent’s subjective features, and too little weight to countervailing considerations. In particular, the submissions pointed out, general deterrence should be a primary factor in sentencing for child sexual offences (R v Burchell (1987) 34 A Crim R 148 per Hunt J at 150 – 151). It was further submitted that the Judge did not adequately take into account the repeated nature of the respondent’s offending. This repeated offending, it was submitted, deprived the respondent of any claim for leniency that might have been available to him had his offending involved only an isolated incident. Nor is the prior good character of a sex offender to be afforded the weight which might be appropriate for other offences.
37 The Crown’s written submissions made no complaint about the discount of 27.5% which the Judge allowed on account of the respondent’s plea of guilty and his cooperation with the authorities. However, it was submitted that the starting point for each sentence was “woefully inadequate”. During the hearing of the appeal, the Crown conceded that the 27.5% discount was not sufficient in the circumstances of this case. This was an appropriate concession, as we shall discuss later. However the Crown went on to say that this highlighted the “manifest inadequacy” of the Judge’s starting point.
38 Thus far, the matters raised by the Crown related to its overall submission that the sentences imposed by the Judge, both individually and collectively, were manifestly inadequate. In addition, the Crown submitted that the Judge erred in the manner in which he imposed sentences for individual offences. In particular, it was submitted that the Judge erred by making sentences for sequences 4 and 15 (DG) and sentences for sequences 17, 18 and 3 (ME) completely concurrent. This, it was submitted, resulted in a manifestly inadequate sentence. The Crown referred to R v MMK [2006] NSWCCA 272 at [13] (Spigelman CJ, Whealy and Howie JJ):
“13 In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending ... The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326.”
39 In Gorman the Court allowed a Crown appeal on the basis that the concurrence of the sentences deriving from different offences committed in the same incident of sexual offending had resulted in a manifestly inadequate sentence.
40 Finally, the Crown submitted that the Judge erred by not providing adequate punishment for the offences against NB, excluding sequence 23. It was submitted that the sentences in relation to the five s 66C offences in relation to NB and the sentences for the two offences of attempted sexual intercourse with NB were wholly subsumed within the other sentences. The sentence for sequence 23 only extended the effective non-parole period by six months. This being the case, it was submitted that the sentencing structure adopted by the Judge did not provide effective punishment for these offences and contributed to the manifest inadequacy of the overall sentence.
Respondent’s submissions
41 Senior counsel for the respondent conceded that the respondent would probably need to be re-sentenced by this Court. However, he urged that any increase in sentence, particularly to the non-parole period, should be a relatively minor one. In this regard he submitted that, consistent with the principle in Pearce v The Queen (1998) 194 CLR 610, the Court is entitled to look both at the individual sentences and the overall effect of them. In the respondent’s case, it was urged that there are compelling reasons why the overall sentence, particularly the non-parole period, should be, comparatively speaking, a very low one.
42 As to the particular matters raised in the Crown’s submissions, the respondent’s submissions conceded that the Judge made no express finding as to where the offences fell in the range of objective seriousness, but submitted that he must have considered that they fell well below the mid-range. It was submitted that it was open for him to reach this conclusion for the reasons given in his Remarks on Sentence, namely:
“a.None of the offences had any suggestion of force, threats or drugs before, during or after the sexual encounter;
b.There is no suggestion is respect of the section 66A offences of any pain or discomfort experienced by the victims;
c.There is no suggestion that any of the victims was unwilling;
d.The offences involved fellatio: KJH v Regina [2006] NSWCCA 189 at [34] and [35].”
43 The respondent’s submissions went on to describe various further mitigating factors which, in combination, were said to justify the overall non-parole period imposed by the Judge. They were as follows:
1)that the respondent was a person of good character;
2)he pleaded guilty to all offences at the earliest opportunity;
3)he showed profound remorse;
4)the Judge found that he had strong prospects of rehabilitation and was unlikely to re-offend;
5)he is a relatively young man, now 27 years old; and
6)it was the respondent who made the admissions that enabled the sexual offence charges to be laid.
44 The respondent disputed the Crown’s criticism of the manner in which the Judge made certain sentences wholly concurrent and others partially concurrent. It was submitted that the approach taken by the Judge in dealing with a large number of offences by grouping certain of them together was consistent with authority generally and with the requirements of Pearce in particular.
Discussion of issues
45 We should say at the outset that we consider that the Court has no choice but to intervene and re-sentence the respondent. Apart from the patent errors referred to by the Crown, the overall sentence requires upward adjustment in order to accommodate to the total criminality involved, particularly in relation to the s 66A offences. In addition, some of the individual sentences require re-arrangement between themselves.
Failure to comply with Pearce?
46 We turn first to the Crown’s criticism of the manner in which the Judge structured the various sentences. Given the number of charges against the respondent it was necessary, from a logistic point of view, to separate them into groups and deal with them accordingly. The Judge chose to group them in the first place according to the identity of the victim and then, if necessary, according to the nature of the offence. There were two charges in relation to DG, both under s 66C, which were dealt with together. In relation to ME, there were three charges under s 66A, which were also grouped together. There were many charges in relation to NB. The Judge dealt separately with the s 66A offence and again with the two offences of attempted sexual intercourse. There remained five charges under s 66C relating to NB. The circumstances varied according to whether the respondent performed fellatio on the victim or had the victim perform it upon him. The former category (sequence numbers 10 and 22) were dealt with separately from those in the latter category (sequence numbers 7, 1 and 9).
47 In all the circumstances we consider that the manner in which the Judge chose to group the offences was appropriate to the circumstances of this case. The extent to which they should have been made cumulative or concurrent with each other is a different matter, which we will address shortly.
48 A further matter of potential concern arises from the wording of the Judge’s remarks under the heading “Setting the Sentences”. He described the sentences he proposed to impose in each group as an “overall sentence”. One interpretation of these remarks is that the Judge was imposing one sentence in relation to more than one offence. This approach to sentence would not conform to the requirements of Pearce and would represent a fundamental miscarriage of the sentencing discretion.
49 We note that the Particulars of Trial provided by the Crown for the appeal appear to assume that the sentence imposed in respect of each group was in fact imposed in respect of each of the offences in that group. This was no doubt the Judge’s intention, but nowhere in the remarks on sentence is this made clear.
Objective gravity
50 Before dealing with the adequacy of the sentences themselves, it is necessary to refer to the Judge’s failure to assess the objective gravity of the offences. There is nothing in the remarks that allocates each of the offences a general position in the range indicated by the maximum penalty for that offence. As Latham J observed in R v Cage [2006] NSWCCA 304, with the concurrence of Hunt AJA and Johnson J:
“17A bare recitation of the facts constituting the offences and a reference to the "objective features of the offences" does not satisfy the requirements of sentencing. The correct approach to imposing a sentence for an offence has been the subject of repeated pronouncements of this Court since the decision in R v Rushby [1977] 1 NSWLR 594, as the following excerpt from the Court's judgment in R v Gordon (1994) 71 A Crim R 459 at 468 demonstrates:
The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform - even though those purposes overlap and sometimes are in conflict: Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238. It is important always to have regard first of all to the gravity of the crime viewed objectively for, without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place: Dodd (1991) 57 A Crim R 349 at 354. Except in well-defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. (Italics not in original)
18In the instant case, there was no assessment undertaken of the objective gravity of the offences, insofar as no attempt was made to determine where on the scale of criminality these examples of the offences lay, referable to the maximum penalty prescribed by the legislature in each case. Accordingly, the respondent's criminal history, subjective circumstances and prospects of rehabilitation could not be meaningfully measured against the respondent’s objective criminality. I do not mean to suggest by these remarks that it is necessary to undertake a mathematical or prescriptive approach to sentencing, or that one should engage in a two-tier approach : see Markarian v The Queen [2005] HCA 25. However, his Honour's remarks lacked the transparency that would allow the respondent, this Court and the general community to understand how it was that his Honour arrived at the final result.”
51 In relation to the s 66A offences, the Judge made a finding that they did not fall within the mid-range of objective gravity, but he said no more than that. It was open to him to make that finding, given that the offences were constituted by fellatio. But the extent of the influence of the standard non parole period on the non parole period imposed for each of these offences very much depended upon whether the offences were just below, moderately below, or well below the mid-range of objective gravity.
52 The reasons given for the Judge’s finding in relation to the s 66A offence are set out in para 57 of his Remarks on Sentence (quoted in para [29] above). Apart from the reference to fellatio, the reasons refer to the absence of certain aggravating features in the offending behaviour. In other words, the absence of aggravating features in relation to these offences is said to justify a downward revision in the assessment of objective gravity. The logical extension of this proposition is that the greater the number of aggravating features missing from the commission of a child sexual assault offence, the lower will be its objective criminality. This is problematic, to say the least.
53 Offences relating to sexual activity between young children and adults are premised upon the vulnerability, dependency and immaturity of children. It is those attributes that render young children amenable to sexual exploitation by adults. The structure of the offences, and the legislative policies underpinning them, assume that young children are not capable, by and large, of understanding the significance of sexual activity (hence the absence of informed consent) or of asserting their will over that of an adult. How then, can the fact that a victim co-operates with an offender be relevant to an assessment of the objective gravity of an offence of this type? That is not to say that evidence of a victim’s resistance and/or an offender’s efforts to restrain a victim are not relevant to an assessment of objective gravity for offences of this type. Such a circumstance would aggravate a child sexual assault offence. But the absence of struggle or resistance (that is, the child’s co-operation) cannot, in our view, mitigate such an offence.
54 In the present case, we assess all of the s 66A offences as moderately below the mid range of objective gravity. The three offences against ME were committed when the victim was eight years old, a significant factor in the assessment of objective gravity : MLP v R [2006] NSWCCA 271 ; 164 A Crim R 93. One of them (sequence no. 3) was committed in the presence of another child. The offence against NB (who was just under ten years of age) was committed while the respondent and the victim were watching a pornographic video and when the respondent occupied a position of trust towards him. In addition, it must be borne in mind that these offences were part of a pattern of conduct on the respondent’s part, which displayed “grooming” characteristics.
55 As for the remaining offences, sequence nos. 1, 4, 7, 9, 10, 15 and 22 were constituted by fellatio and were all aggravated, either by a breach of a position of trust or by commission in the presence of another child. In our view, they also fall below the mid-range to a moderate degree. The two offences of attempt anal intercourse (sequence nos. 2 and 8) were committed in breach of a position of trust. The respondent only ceased his attempt at penetration when the victim told him it was painful. We would categorise these two offences as just below the mid-range. The offences constituted by acts of masturbation (sequence nos. 11, 13, 24, and 26) were all dealt with as summary offences, as were two of the firearms offences.
56 The Judge’s assessment of the criminality inherent in the offence of Possess Unauthorised Firearm was generous to the respondent. The Judge found that the respondent’s possession on 16 January 2007 “was more about securing the weapon and delivering it to police.” However, this overlooks the fact that the police had interviewed the victim NB on that day and the boy had provided details of the respondent’s habit of keeping the gun in a cupboard or under the bed. The charge may have been referable to 16 January but it was not correct to limit the respondent’s possession to merely transporting the gun to police. This offence should have attracted a more significant penalty than imposed by the Judge.
Inadequacy of sentences
57 We turn to discuss the Crown’s overall contention that the sentences, both individually and collectively, were manifestly inadequate. It is appropriate to commence this discussion by reference to the s 66A offences. These were, on any way of looking at it, by far the most serious of the respondent’s offences, involving children under the age of ten. This is reflected in the maximum sentence, of 25 years, with a standard non-parole period of 15 years.
58 There were four of these offences. Three involved ME, who was then aged eight, and were committed between May and November 2006. One involved NB and was committed between February and April 2005, in the months leading up to the boy’s tenth birthday.
59 The Judge’s sentence in relation to the three offences involving ME (sequences 17, 18 and 3) consisted of a non-parole period of two years with an additional term of fifteen months: a total sentence of three years and three months. The non-parole period was to run from 22 February 2008 to 21 February 2010. This was partially concurrent with a previously imposed non-parole period (expiring 21 June 2008) and with a subsequently imposed one (commencing 22 August 2008). The additional term for these offences was completely subsumed within subsequently imposed sentences.
60 In relation to the s 66A offence involving NB (sequence 23), the respondent was sentenced to a non-parole period of 21 months from 22 May 2009 to 21 February 2011, with an additional term of 22 months and 15 days, expiring on 5 January 2013: a total sentence of three years, seven months and 15 days. The two offences under Form 1 were taken into account in the imposition of this sentence. This non-parole period was partially concurrent with a previously imposed non-parole period, expiring on 21 August 2010. The previously imposed additional term was to expire on 5 September 2011. The additional term for the s 66A offence was therefore cumulative to the extent of one year and four months.
61 It follows that of the overall non-parole period of four years and one month, a period of only two months was attributable solely to the three s 66A offences involving ME. These were, without question, the most serious of all offences committed by the respondent and a significantly longer non-parole period should have been directly attributed to these offences.
62 In the result the Judge’s sentencing process miscarried in the following respects:
· the sentences, both individually and in their totality, were manifestly inadequate
· the manner in which the sentences for particular groups of offences were made partially concurrent and partially cumulative did not adequately reflect the seriousness of some of those offences.
63 Accordingly, the appeal must be allowed and the respondent re-sentenced.
Re-sentencing
64 We turn to discuss the subjective matters which are relevant on re-sentence.
65 The offender is still a young man, now 27 years old. Apart from these offences, he has been a person of good character. On the other hand the absence of a relevant criminal history is almost invariably a pre-requisite for employment in a role which gives the employee access to children. Teaching and coaching positions are generally occupied by persons who are reputedly of good character and generally well-regarded in the community. When adults in these categories commit sexual offences against children, good character is often relied upon. However, it is of lesser weight in sentencing for these offences because it is often this factor that provides the offender with the opportunity to commit the offences. It is also of lesser weight where, as here, the offences occur over a lengthy period and involve a breach of trust : Ryan v The Queen (2001) 206 CLR 267 ; R v Kennedy [2000] NSWCCA 527.
66 The Judge found that the offender had strong prospects of rehabilitation and was unlikely to re-offend. He had considerable insight into his offending, and into the relationship between his offences and the sexual abuse which he himself had suffered as a child. There is no question as to the genuineness or the extent of his remorse, given his attempted suicide, the letters he wrote to the victims’ parents, and his cooperation with the authorities following his arrest. He gave evidence before the sentencing judge in which he acknowledged the problems caused by his sexual urges. Even before the offences commenced, he had searched the internet for services or programs which might help him, but none was available in the remote location where he lived. He said that when he was arrested his primary emotion was one of relief that it was all over. He was prepared to undergo any treatment programs whilst he was in custody.
67 The most significant factors in favour of the respondent arise from his pleas of guilty, which were entered at the earliest opportunity, and the indispensable assistance which he rendered to the authorities in the detection and investigation of these offences. The Judge in this regard made the following observation:
“The early plea coupled with the detailed admissions made an otherwise weak Crown case relatively strong.”
He then determined to apply a discount on sentence of 27.5% in relation to all offences.
68 However, as the respondent’s counsel pointed out, the sentencing judge significantly understated the value of the assistance given by the respondent. The fact is that almost every charge of a sexual nature against the respondent was based solely upon admissions made by him during his record of interview with the police. Were it not for those admissions, the Crown would have had no case whatsoever against the respondent, at least in relation to the major charges contained in the indictment. NB told the police that the respondent “could have been dirty to me”. However, he firmly denied that there had been any penile contact between them, or that he had ever seen the respondent be “dirty” with other boys. He expressed anger that the respondent had told the police that these things had happened between them, which he said was untrue. ME was asked if the respondent had done anything to him or touched him sexually. He repeatedly said that he could not remember. DG told the police that the respondent had been “dirty” once, and had touched him on “the private”. He denied that there had been any penile contact between himself and the respondent. He also expressed anger at the respondent for telling these things to the police.
69 It is a well-established principle that a significant discount on sentence should be allowed in relation to a person who comes forward and admits to offences which the authorities would not otherwise have known about, and which could not otherwise have been established against them (R v Ellis (1986) 6 NSWLR 603).
70 The discount applied by the Judge did not adequately reflect the degree of assistance given by the respondent in this case. A discount of 40% would more appropriately reflect the combination of the respondent’s early plea of guilty and his significant assistance to the authorities. That is the discount we propose to apply.
71 In re-sentencing the offender, we propose to do the following:
1.Make the overall sentence commence on 19 January 2007, the day the respondent went into custody.
2.Increase the sentences for the majority of offences on the indictment, particularly the more serious offences.
3.Alter the sequence of sentences so that the s 66A offences are dealt with last, with the result that the sentences for these offences will not be subsumed within later-imposed sentences.
4.Retain the fixed-term sentences imposed by the Judge pursuant to s 167, with the exception of the sentence relating to the offence of showing an R-rated film, which exceeds the statutory maximum.
72 The orders we make are as follows. We allow the appeal and quash the sentences imposed by the sentencing judge, with the exception of the sentences imposed pursuant to s 167 of the Criminal Procedure Act 1986. In relation to those offences, we confirm all sentences with the exception of the sentence imposed in relation to the charge of privately exhibiting a “R 18+” rated film in the presence of a minor, contrary to s 14(2) of the Classification (Publication, Films and Computer Games) Enforcement Act 1995. We quash the sentence imposed in relation to that offence and substitute an order that the respondent pay a fine of $500.
73 In relation to the offences dealt with by way of indictment, we substitute the following sentences:
1) For the offence of Possessing Unauthorised Firearm, a fixed term of 6 months imprisonment is imposed, to commence from 19 January 2007, expiring 18 July 2007.
2) On each of the offences of Sexual Intercourse with a Child Between the Ages of 10 and 14 committed upon NB (sequence nos. 1, 7, 9, 10 and 22), a non parole period of 21 months is imposed, commencing 19 July 2007, expiring 18 April 2009, with a balance of term of 15 months, expiring 18 July 2010.
3) On each of the offences of Sexual Intercourse with a Child Between the Ages of 10 and 14 committed upon DG (sequence nos. 4 and 15), a non parole period of 18 months is imposed, commencing 19 July 2008, expiring 18 January 2010, with a balance of term of 12 months, expiring 18 January 2011.
4) On each of the offences of Attempt Sexual Intercourse (anal) committed against NB, a non parole period of 2 years is imposed, commencing 19 July 2009, expiring 18 July 2011, with a balance of term of 18 months, expiring 18 January 2013.
5) On the offence of Sexual Intercourse with a Child under 10, committed against NB (and taking into account the offences under Form One), a non parole period of 3 years is imposed, commencing 19 December 2009, expiring 18 December 2012, with a balance of term of 18 months, expiring 18 June 2014.
6) On each of the offences of Sexual Intercourse with a Child under 10, committed against ME, a non parole period of 3 years is imposed, commencing 19 July 2010, expiring 18 July 2013, with a balance of term of 3 years, expiring 18 July 2016.
74 The aggregate non parole period is therefore six and a half years, of an aggregate sentence of nine and a half years. The respondent is eligible for release to parole on 19 July 2013.
******
SCHEDULE A
4 x sexual intercourse (SI) with child under 10 years (Crimes Act s 66A)
Sequence nos: 23 NB (Feb – Apr 05) 17 ME (May – Sep 06) 18 ME (Jun – Sep 06) 3 ME (Sep – Nov 06)
7 x SI with child between 10 & 14 years (s 66C(1))
Sequence nos: 7 NB (Apr – Oct 05) 1 NB (May 05 – Jan 07) 22 NB (May 05 – Jan 07) 4 DG (Sep – Nov 06) 9 NB (Nov 06 – Jan 07) 10 NB (Nov 06 – Jan 07) 15 DG (Nov 06 – Jan 07)
2 x attempt SI with child between 10 & 14 years (s 66C(1))
Sequence nos: 8 NB (Apr – Oct 05) 2 NB (Jun 06 – Jan 07)
2 x indecent assault child under 10 years (s 61M(2))
Sequence nos: 24 ME (May – Sep 06) 26 ME (Sep – Nov 06)
1 x indecent assault of child under 16 years (s 61M(1))
13 DG (Sep – Nov 06)
1 x commit act of indecency with child under 16 years (s 61N(1))
11DG (Sep – Nov 06)
SCHEDULE B
Dates Sequence no Victim Offence Summary of actions 1) 06.02.05 to 29.04.05 23 NB Sexual intercourse (SI) with child under 10 yrs Child’s penis in mouth 2) 28.04.05 to 29.10.05 7 NB SI with child between 10 & 14 yrs Put penis in child’s mouth 3) 20. 05.06 to 16.01.07 1, 22 NB SI with child between 10 & 14 yrs Mutual oral sex 4) 20.05.06 to 01.09.06
17, 24 ME 17: SI with child under 10 yrs
24: indecently assault child under 10 yrsTouched child’s penis then put child’s penis in mouth 5) 01. 06.06 to 01.09.06 18 ME SI with child under 10 yrs Child’s penis in mouth 6) 01. 09.06 to 30.11.06 3, 4, 11, 13, 26 ME 3: SI with child under 10 yrs; See para [12] main judgment DG 4: SI with child between 10 & 14 yrs; DG 11: commit act of indecency with child under 16 yrs; DG 13: aggravated indecent assault; ME 26: indecent assault of child under 10 yrs 7) 30.11.06 to 05.01.07 9, 10, 15 NB DG 3 x SI with child between 10 & 14 yrs See para [13] main judgment
LAST UPDATED:
29 April 2009
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