Regina v CJB

[2000] NSWCCA 161

CITATION:	Regina v CJB [2000] NSWCCA 161
FILE NUMBER(S):	CCA 60172/99
HEARING DATE(S):	5th May 2000
JUDGMENT DATE:	5 May 2000
PARTIES :	Regina v CJB
JUDGMENT OF:	Hulme J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0395
LOWER COURT JUDICIAL OFFICER :	Job DCJ

COUNSEL :	L M B Lamprati - Crown
SOLICITORS:	S E O'Connor - Crown
CATCHWORDS:	Criminal law - sentence appeal - multiple offences - complaint that last sentence had been accumulated on earlier concurrent sentences.
LEGISLATION CITED:	Crimes Act 1900, ss 66C(2), 73
CASES CITED:	Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610
DECISION:	Application for leave to appeal is refused.

IN THE COURT OF CRIMINAL APPEAL

60172/99

HULME J
CARRUTHERS AJ
Friday, 5 May 2000

REGINA v CJB

JUDGMENT

1   HULME J: The court orders that there be no publication of any part of these proceedings in a fashion which will serve to identify the complainant or her children, and in particular, orders that in any publication of these proceedings, the applicant can be referred to as "CJB"

2   CARRUTHERS AJ: The applicant seeks leave to appeal from sentences imposed upon him by his Honour Judge Job QC at the Newcastle District Court on 29 October 1998.

3 The applicant had earlier pleaded guilty to an indictment containing eight counts. Counts 1-7 were under Section 66C(2) of the Crimes Act 1900 - sexual intercourse with a child between ten and 16 years by a person in authority. This offence carries a maximum penalty of penal servitude for ten years.

4 The eighth count was under Section 73 of the Act - carnal knowledge by a stepfather. This carries a maximum sentence of eight years penal servitude. The eight counts cover the period from 14 September 1987 to 18 May 1993.

5   The complainant was born on 27 January 1977 and accordingly the offences range over the period from age 10 to 16 years.

6   In relation to the eighth count, his Honour sentenced the applicant to a fixed term of three years penal servitude to commence on 24 August 1998 (the day upon which he was ultimately taken into custody having pleaded guilty) and to expire on 23 August 2001.

7   In relation to counts 1-7, his Honour imposed a minimum term of four years penal servitude to commence on 24 August 2001 and to expire on 23 August 2005. His Honour imposed an additional term of three years to commence on 24 August 2005 and to expire on 23 August 2008.

8   The applicant was born on 5 December 1958 and was accordingly 39 years of age at the date of sentence.

9   The applicant commenced having a relationship with the complainant's mother in late 1976 and they eventually married on 20 August 1977. The complainant was born, as I have indicated on 27 January 1977 as the result of a relationship between her mother and a person other than the applicant. Thus as from 20 August 1977 the applicant became the complainant's stepfather. Four children resulted from the marriage between the applicant and the complainant's mother.

10   The applicant and his family lived in various locations in New South Wales throughout the relationship. These locations included Newcastle, Sydney and the mid-north coast of New South Wales.

11   The complainant always referred to the applicant as "Dad".

12   The complainant erroneously believed until she was twelve years of age that the applicant was her biological father. When the complainant was about twelve years of age the applicant and the complainant's mother separated. The marriage was subsequently dissolved.

13   The complainant then remained with her mother who is alleged to have been very violent towards her. Eventually the complainant moved into the same residence as the applicant.

14   By consent a statement of facts was tendered before his Honour under the hand of Senior Constable Muxlow dated 29 September 1998. It is convenient to set that report out verbatim:

"Offence No 1: Sexual intercourse with child between 10 and 16 years by person in authority.

On or about 14 September 1987 the prisoner and his family moved to the Smithtown area, near Kempsey. Sometime between 14 September 1987 and 14 February 1989
During this period the prisoner entered the victim's bedroom and removed his son, Kenneth from the bed. He then removed all his clothing and all of the victim's clothing. At this time the prisoner got into bed with the victim.

The prisoner has then placed his penis into the vagina and moved his penis in and out for some period of time. The prisoner has then had the victim turn over so she was laying on her stomach. The prisoner has again placed his penis into the victims vagina from the rear. The prisoner removed his penis from the victim's vagina prior to ejaculating onto the bed sheets. The prisoner later changed those sheets.

At the time of this incident the victim was a student at Smithtown Public School and was aged somewhere between 10 and 11 years of age. Also during this period the victim's mother would regularly travel to Sydney for work as a prostitute leaving the prisoner in charge of the children.

Offence No 2: Sexual intercourse with child aged between 10 and 16 years by person in authority.

Sometime between 14 February 1989 and 21 May 1989 the prisoner and his family moved to a house in Albert Street, South Kempsey. The victim recalls this incident occurring shortly prior to a school excursion to the Canberra area.

The prisoner has laid down next to the victim on a bed. The prisoner removed the victim's underwear, leaving her dressed only in a nightie. The prisoner has commenced to touch the victim on the breasts and vagina. The prisoner has then placed his penis inside the victim's vagina. After an unknown amount of time the prisoner has ejaculated inside the victim's vagina.

At the time of this incident the victim was 12 years of age and a student in year 6 at Kempsey South Public School.

Offence No 3: Sexual intercourse with child aged between 10 and 16 years by person in authority.

Sometime between 14 February 1989 and 30 May 1989 whilst living in the same house in Albert Street, South Kempsey the prisoner took the victim into his bedroom and laid the victim onto his waterbed. This occurred whilst the victim's mother was in Kempsey hospital. He removed all of the victim's clothing and his own clothing, except for his socks. The prisoner commenced to touch the victim on the breasts and the vagina with his hands. He has placed his penis into the victim's vagina for an unknown period of time. The prisoner has removed his penis from the victim's vagina and masturbated himself until ejaculating on the victim's stomach.

At the time of this incident the victim was 12 years of age.

Offence No 4: Sexual intercourse with child aged between 10 and 16 years by person in authority.

Sometime between 31 December 1989 and 1 March 1990 the prisoner and his family were living at Lauchlan Street, Kempsey. The prisoner has woken the victim from her sleep and asked her to go to the lounge room. After a cup of coffee the prisoner sat on a lounge chair and removed his penis from his pants. He has forced the victim to suck his penis by holding the back of her head. The victim's mother then walked from her bedroom and caused the prisoner to cover his penis with his shirt. The incident ceased prior to the victim's mother entering the room. The victim returned to her bed and went to sleep.

At the time of this incident the victim was either 12 or 13 years of age.

Offence No 5: Sexual intercourse with child aged between 10 and 16 years by person in authority.

Sometime between 26 January 1991 and 1 January 1992 the prisoner and his wife separated. The victim left the home with the prisoner. During this period the prisoner and victim moved into a house in Inches Road, Kempsey with people known and Lou and Pauline. During this time the victim awoke to find the prisoner on top of her and had his penis inside her vagina. The prisoner ejaculated inside the victim's vagina.

At the time of this incident the victim was 14 years of age.

Offence No 6: Sexual intercourse with child aged between 10 and 16 years by person in authority.

Sometime between the period of 18 February 1992 and 31 March 1992 the prisoner and victim were living at the Southside Caravan Park. The victim awoke one night during this period to find the prisoner on top of her and he had his penis inside her vagina. The prisoner removed his penis after and unknown period of time and ejaculated on the victim's stomach.

At the time of this incident the victim was 15 years of age.

Offence No 7: Sexual intercourse with child aged between 10 and 16 years by person in authority.

Sometime during the period of 3 March 1992 and 15 April 1992 the prisoner and the victim were living alone in firstly the Southside Caravan Park, Kempsey and then the Macleay Valley Caravan Park, South West Rocks. Sometime during this period the prisoner had sexual intercourse with the victim which caused the victim to fall pregnant. The victim gave birth to a baby named A on 7 January 1993 at Port Macquarie Hospital.

The age of the victim at the time of the incident was 15 years of age.

Offence No 8: Carnal knowledge by stepfather.

Sometime between the period of 6 May 1993 and 18 May 1993 the prisoner and victim were living alone at Mareeba Crescent, Port Macquarie or Church Street, Port Macquarie. Sometime during this period the prisoner had sexual intercourse with the victim which resulted in the victim falling pregnant. The victim gave birth to B on 16 February 1994.

At the time of this incident the victim was 16 years of age and did not consent to having sexual intercourse with the prisoner.

This relationship continued between the prisoner and the victim until around 1 December 1996. As a result of this relationship the victim had two further children named C born at Belmont Hospital on 3 May 1995 and D born in Queensland on 14 October 1996.

About 9.00 am on Friday, 14 February 1997 the prisoner was arrested by police at B and Z Smash Repairs at Boolaroo. The prisoner was escorted to Wallsend Police Station and then to Mayfield Police Station as the interview room was occupied. The prisoner was electronically interviewed and denied the offences. He was then charged with the matters now before the court."

15   The applicant ultimately admitted his guilt in respect of all counts, however despite the dreadful wrong which he did to the complainant, it is impossible to discern even a glimmer of contrition on his part.

16   His Honour had before him a psychological report dated 13 October 1998 by Ms Anna Robilliard who conducted psychometric tests on the applicant. These tests interestingly revealed that the applicant was of a Schizoid personality. Ms Robilliard described such personality as follows:

"The Schizoid personality is characterised by a lack of sensitivity, interest or concern for other people. A similar remoteness is often observed in the individual's own self awareness and degree of personal insight. They will seem deficient across broad spheres of human knowledge, particularly about social matters, and often seem impervious to the emotional and personal implications of everyday social life or the praise or criticism of others.”

The report continued with reference to the applicant:

Dependent attributes are also evident in his test profile and are typically demonstrated in the adopting of docile, passive, avoidant behaviours, withdrawal from adult responsibility and an exaggerated fear of being alone. Lack of self confidence and a perception of personal inadequacy and ineptitude is consistent.
The antisocial attributes evident in his profile indicate that CJB is probably prone to impulsive, short sighted, imprudent behaviour and would show insufficient regard for norms, values and social codes predominant in society. Such individuals frequently find gratification in a perception that such restrictions do not apply to them and they value the image and sense of being free, unencumbered and unconfined to persons, places, obligations and routines. A callous insensitivity of mood is frequently demonstrated and paucity of compassion, remorse and adequate regard for the safety and wellbeing of others."

17   I found this explanation by Ms Robilliard to be extremely helpful in obtaining some comprehension of how the applicant could have behaved in such an appalling fashion as he did towards the complainant. Ms Robilliard did not think that the applicant is a paedophile in the more commonly understood sense of that term. She concluded:

"He definitely requires professional treatment as at this point he remains largely ignorant of the serious nature of his offences and the potential damage that could result for those involved, both in the short and longer term. Intellectually, he is quite capable of developing insight and understanding."

18   The applicant originally applied for Legal Aid which was granted and then withdrawn. He made certain submissions in the Application for Leave to Appeal which he lodged with this Court. He indicated to the Registrar that he would appear before this Court today unrepresented, however, we have been informed by Mr Lamprati presently appearing before the Court for the Crown, that the applicant has now indicated that he does not intend to appear before the Court and, in fact, he is not presently before the Court.

19   I set out verbatim his written submissions:

"(1) Accumulation of sentence(Re: The 8th count):

The 8th count was different in name only and did include some basic allegation(ie sexual intercourse with stepfather.

Though all this may be true and I have never denied this fact. But his Honour Justice Job has made this particular offence stand out as if it happened at a different time lapse (ie after a break up in relationship.)

But on the contrary was a continued pattern of behaviour that was a contruction (sic) of a relationship. It was not as isolated offence different in type, nature and occurrence to anything which had occurred previously and up to date of charge.

(2) The relationship between myself and my stepdaughter had lasted some 5-6 years in this time we lived as defacto husband and wife and there were 4 children born as a result of this relationship. There were no problems between myself and [the complainant] until a friend of mine's girlfriend had told here if she charged me with these offences she would get a lot of money and I would be put in jail for a long term to which has certainly happened.

(3) The other discrepancy I find with count 8 is that after this pregnancy there were 2 more, in which case I do not think his Honour Justice Job has looked closely at and to the period of time to which we were living de facto (5-6 years).

(4) I feel sentence is excessive on basis of the accumitation (sic) of the 8th count which is not different in"type" of offence or in a different time frame.

(5) This 8th count is different in name only of charge."

20   This Court has also had the benefit of written submissions on behalf of the Crown which conclude with the submission that "A worse case is difficult to envisage." I respectfully agree.

21   Referring to the applicant's written submissions, may I say that it is understandable that a lay person may find it difficult to appreciate the manner in which the sentences were structured, particularly bearing in mind that each of the offences constituted a high degree of criminality and it is difficult to conclude that any one offence is more serious than another. His Honour did not explain in his remarks on sentence why he structured the sentences in the way in which he did.

22   The high degree of criminality extending over so many years, and the large number of relevant counts would indicate that different judges would approach the structure of an appropriate sentencing regime in different ways. I do not think that the manner in which his Honour structured the offences offends against the principle of totality as explained by the High Court in Mill v The Queen (1988) 166 CLR 59 at 63 or the principles enunciated more recently in Pearce v The Queen (1998) 194 CLR 610.

23   So far as the subjective matters are concerned, his Honour specifically took into account the pleas of guilty, the fact that this is the first time the applicant has been in custody because of this type of offence, and that it is likely, because of the abhorrence which the prison population feels towards offenders against young children, that he will serve the sentence in protection. Because of these matters his Honour concluded, rightly, in my respectful view, that there were special circumstances within the meaning of Section 11 (2) of the Sentencing Act 1989.

24   It is quite unnecessary to refer to the earlier authorities of this Court which emphasise that sexual assaults upon young children especially by those who stand in a position of trust, must be severely punished. It is an area where the deterrent aspect of sentencing must necessarily play a significant role.

25   In my view, the application for leave to appeal entirely lacks substance. The sentences were well within the sentencing discretion available to his Honour and I would propose that the application for leave to appeal be refused.

26   HULME J: I agree. The order of the Court is that the application for leave to appeal is refused.

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