Regina v Crowe

[1999] NSWCCA 239

CITATION:	Regina v Crowe [1999] NSWCCA 239
FILE NUMBER(S):	CCA 60698/98
HEARING DATE(S):	30 June 1999
JUDGMENT DATE:	30 June 1999
PARTIES :	Regina Ross David Crowe
JUDGMENT OF:	Sully J; Bell J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0323
LOWER COURT JUDICIAL OFFICER:	Solomons DCJ

COUNSEL:	P.J.D. Hamill - Appellant R.A. Hulme - Crown
SOLICITORS:	Egan Murphy & Co. - Appellant R.A. Hulme - Crown
CATCHWORDS:
ACTS CITED:	Crimes Act 1900
DECISION:	Leave to appeal against sentences granted; that appeal against those sentences be upheld; that both sentences be quashed and the applicant re-sentenced as follows:; on count two in the indictment to penal servitude for 8 years and 9 months to comprise minimum term of 6 years and 6 months and additional term of 2 years and 3 months. The minimum term will commence on 26 October 1998 and expire on 25 April 2005. The additional term will commence on 26 April 2005.; as to count one, to imprisonment for a fixed term of 2 years to commence on 26 October 1998.

IN THE COURT OF
CRIMINAL APPEAL

060698/98

SULLY J
BELL J

30 June 1999

REGINA v Ross David CROWE

JUDGMENT

1 SULLY J: On 30 October 1998 in the District Court at Tamworth Mr Ross David Crowe, the present applicant for leave to appeal against sentence, stood for sentence before his Honour Judge Solomon. The applicant had been found guilty after a substantial trial by jury of two very serious criminal offences: one of them an aggravated indecent assault; and the other an aggravated act of sexual intercourse without consent. The first of those offences contravenes s 61M(1) of the Crimes Act 1900 and attracts a statutory maximum penalty of imprisonment for seven years. The other offence contravenes s 61J(1) of the same Act and attracts a statutory maximum penalty of penal servitude for 20 years.
2 The learned sentencing Judge imposed in respect of the two offences cumulative sentences. As to the contravention of s 61M(1) his Honour sentenced the applicant to imprisonment for a period of two years and six months as a minimum term with an accompanying additional term of 12 months. For the contravention of s 61J(1) his Honour sentenced the applicant to penal servitude for eight years and nine months to comprise a minimum term of six years and six months and an additional term of two years and three months. As I have said, his Honour made the sentences cumulative, so that the practical effect of the sentences was to impose a total liability to, variously, penal servitude and imprisonment totalling 11 and a quarter years, nine of them actually to be served, and the remaining two and a quarter years to be a minimum term applicable to the overall position created by the accumulated sentences.
3   The offences in question were beyond any doubt, and simply in their own particular terms without any other aggravating circumstances, extremely serious offences. They were committed against a young girl to whom the applicant stood in a position of, in effect, familial trust. The learned sentencing Judge was, in my respectful view, entirely correct to treat the offences as on their own intrinsic facts very serious offences.
4   In February of 1991 the applicant had been dealt with by a Judge of this Court in the Narrabri Supreme Court in connection with two offences involving significant sexual impropriety between him and the same victim. One of the matters then charged against him was sexual intercourse with a child under the age of ten years, an extremely serious offence. The other matter then charged against him was that of indecent assault upon a child under 16 years by a person then in authority over the child. That too is well recognised as an extremely serious offence.
5   The objective facts of those matters are set out on page three of the remarks on sentence. I do not now repeat them in detail. That is because, as I apprehend, there are present in Court persons who are connected with the victim and I do not think that any purpose would be served by recounting yet again in open Court the disgusting details of the offences with which the Court was dealing in 1991. What was specifically said by his Honour Judge Solomon at page three of those remarks on sentence is available for proper public recourse and will speak for itself as to the gravity of the offences that were in issue in 1991.
6   In respect of each of those matters this Court gave the applicant the benefit on each count of a recognisance, self in the sum of $1,000 to be of good behaviour for five years; that is to say until and including 17 February 1996. On its face this is an extremely lenient sentence; and it is, I think, properly to be inferred that the Judge who made the recognisances available to the applicant did so upon the basis of what must have been an extraordinarily persuasive subjective case embodying, as I think common sense would suggest, strong assurances on the part of the applicant there would not be in the future any repetition of the offences in question at all; and certainty not a repetition in connection with the same victim.
7 Of the two matters in relation to which his Honour Judge Solomon sentenced the applicant, the first of them, that is to say the s 61M(1) matter, was an offence committed at some unspecified time between 1 January 1994 and 31 December 1994. It was clearly an offence committed during the currency of the recognisances to which I have earlier referred. It is trite, but perhaps worthwhile to make the point for proper emphasis nonetheless, that such re-offending is the more egregious because it involves not only a discrete offence, but a discrete offence in the teeth of the assurances which may reasonably be supposed to have been given so as to have attracted the grant of the recognisances in the first place.
8   The second of the matters for which the applicant was sentenced by his Honour Judge Solomon, that is to say the s 61J(1) matter, occurred on or about 30 August 1997; that is to say, it occurred at a time after the expiration of the recognisances of which I have been speaking. Nonetheless, that it occurred at all shows, to say the very least, a fairly loose approach on the part of the applicant to the considerable leniency represented by the recognisances granted to him in 1991.
9   The learned sentencing Judge in the present case took account of the fact that the applicant had pleaded not guilty, as of course the applicant was perfectly entitled to do, thereby entailing the inescapable calling by the Crown of the victim in question. It is well recognised by sentencing Courts, and certainly well recognised by this Court, that the exposure of a young victim to the exigencies of a hotly contested trial at first instance involves in the nature of things a degree of personal stress and distress which are of deep concern to the Courts in connection with the effects which they maybe supposed to have upon the future personal development and personal adjustment and, indeed, personal recovery, of such a young victim from her experience at the hands of the particular offender. It goes without saying, and his Honour Judge Solomon clearly recognised, that the applicant was not liable to be punished the more seriously simply for having exercised his undoubted right to defend the charges brought against him. His Honour recognised as well, however, and correctly, that the applicant was not entitled to the discount, and it is sometimes a generous discount, - which the Court concedes to an offender who acknowledges properly his or her guilt of offences charged. That is especially so in cases that involve gross sexual impropriety. For the reasons to which I earlier adverted, it is always the anxious concern of the Courts to avoid exposing young victims to the giving of evidence in a hotly contested trial where everything they have said by way of complaint is relied over in meticulous detail, and on the basis of suggestions, of the kind that were put forward quite plainly in the present case, that the complaints are essentially a concoction.
10   That situation has in the present matter an additional dimension that arises by reason of the fact that the applicant, having been found guilty by the jury as charged on both counts in the indictment, at his subsequent sentencing proceedings did in fact acknowledge that the allegations upon which he had gone to trial had been in fact true. He coupled with that an apology to the victim and the members of her family. Judge Solomon appears, it seems to me, to have taken proper account of all those matters. 11   There were, as of course there always are, subjective matters to the particular offender. It is sufficient to say that they were taken, as far as I can see from a reading of the remarks on sentence, adequately into consideration.
12   At page four of the remarks on sentence the learned sentencing Judge summed-up the overall perception that his Honour had about this matter as follows:

"The prisoner is a sexual predator who has preyed over the years on a young child. He acted as a sexual vulture in the family and had been in 1990. He is a recidivist pedophile of the worst possible type, selfishly abusing a young child for his own sexual gratification. This community will not tolerate actions which cause such hurt and distress to an innocent victim."

13   It is not, I think, to the point that I say anything further for my present purposes than that I agree entirely with the thrust of the views stated by the learned sentencing Judge; and I consider that it is manifest on the material that was before his Honour that he was perfectly entitled to take so severe a view of the offences with which he was dealing.
14   So far as I can see there are only two points of any substance upon which the present applicant might seek to rely to his advantage. 15   The first of them involves the proposition that the learned sentencing Judge, having decided to accumulate the sentences, went about doing so in a way that did not accord with what the law requires in that behalf. As I follow the submissions that have been put for the applicant, that argument entails: first, the submission that the sentencing Judge ought not in any event to have accumulated the sentences, but rather ought to have made them concurrent; and entails, secondly, that even were it thought permissible in the circumstances of this case to accumulate the sentences, proper regard needed then to be paid to what is called conventionally the principle of totality.
16   As to those submissions my views are these: First, I do no think that it manifests necessarily error of principle to have accumulated the sentences in the present matter. The two matters in relation to which the applicant stood for sentence were, after all, and in a real sense, discrete matters separated by a very significant period of time. It cannot possibly be the case that in such a situation proper punishment for the later in time of the two separate offences is to be reduced to some such level as a reasonable mind would not regard as being appropriate to the gravity of what has been done, and for no other reason than that there is some perceived imperative to make the sentences concurrent rather than to make them cumulative. For myself, I think that the learned sentencing Judge was entirely entitled to take the view that an accumulation of sentences was permissible and appropriate in this case.
17   As to the question of totality, it is not easy to make a fair assessment of the way in which his Honour approached that matter. His Honour says nothing about it in terms in his remarks on sentence. I do not think, for myself, that it necessarily follows that his Honour did not apply his mind to the question of totality; and, indeed, given the prominence which the principle of totality now has in the field of sentencing, I would think it wholly improbable that as experienced a Judge as his Honour had not adverted to the question of totality.
18   The second point of substance that is available to be argued for the applicant is the one in which, upon the view to which I have come, the applicant is entitled to have a measure of success.
19   The argument is one that is based upon an earlier decision of this Court in R v Moore CCA (unreported 12 April 1994). It is trite that all arguments by analogy are necessarily imperfect. However, I think that this is one of those occasions where the comparison put forward does have real substance, relevance and applicability. In Moore the offender had been sentenced in respect of three matters. On the most serious of them he had been sentenced to penal servitude for 12 years apportioned between a minimum term of nine years and an additional term of three years; and the other two matters for which he was sentenced had been dealt with by way of fixed terms imposed concurrently The Court of Criminal Appeal reduced that penalty to one of penal servitude for nine years, to comprise a minimum term of six years and an additional term of three years, preserving the concurrent, and fixed, sentences imposed in relation to the remaining two offences.
20   I have come to the view that a fair reading of the judgment of the Court in Moore requires this Court to intervene in relation to the sentences imposed on the applicant, not because of any hyper-refined technical legal argument; but simply because a fair comparison of that decision with the relevant facts in the present matter does suggest that the end result achieved by what was done by his Honour Judge Solomon is to impose a penalty higher than what I would regard as the available upper limit given the current state of the law.
21   It is then a question of how this Court can best redress that error. For myself I think that the simplest practical way of doing it is to confirm the sentence imposed in respect of count two and to impose concurrently a fixed term in connection with count one. Because the sentence imposed by his Honour Judge Solomon on count one was expressed in terms of minimum and additional terms, and because there is clear authority for the proposition that a sentence expressed as a fixed term is inherently more burdensome and severe than one expressed as a fixed term, I myself would think that in this case a fixed term of two years imposed upon count one would meet the requirements of justice in this case.
22   I wish to say for myself that I reach that conclusion with some reluctance. I think that the offences for which the applicant stood for sentencing before his Honour Judge Solomon were disgusting offences committed in a way that showed either an abysmal lack of understanding of, or, as I am prone to think was the case, a rather cavalier attitude towards the very considerable leniency that the applicant had been given in the form of the recognisances extended to him in 1991. The applicant would do well to understand in the plainest and clearest terms that the concession he gets from this Court on this occasion is a concession extended simply in order to preserve in an appropriate way consistency of sentencing, a principle that is well recognised in the field of sentencing. It would be a grave mistake for the applicant to consider that the concession he got in 1991, added to the concession he will get now from this Court, somehow indicates that he can just go on offending in the way of which I have been speaking, and shelter behind comparative sentencing and other refinements of that kind.
23   For the whole of the forgoing reasons I would propose the following:

1. That leave to appeal against the sentences imposed in the Court below be granted.
2. That the appeal against those sentences be upheld.
3. That both sentences be quashed and that the applicant be re-sentenced as follows:
On count two in the indictment to penal servitude for eight years and nine months to comprise a minimum term of six years and six months and an additional term of two years and three months. The minimum term will commence on 26 October 1998 and will expire on 25 April 2005. The additional term will commence on 26 April 2005.
As to count one I sentence the applicant to imprisonment for a fixed term of two years to commence on 26 October 1998.

24   BELL J: I agree
25   SULLY J: The orders of the Court will be as proposed.

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