Regina v Murray

[2000] NSWCCA 430

CITATION:	Regina v Murray [2000] NSWCCA 430
FILE NUMBER(S):	CCA 60898/98
HEARING DATE(S):	8 February 2000
JUDGMENT DATE:	8 February 2000
PARTIES :	Regina v Denis Michael Murray
JUDGMENT OF:	Hulme J at 1,33; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/71/0036
LOWER COURT JUDICIAL OFFICER :	Luland DCJ

COUNSEL :	Unrepresented (written submissions filed) C K Maxwell QC (Crown)
SOLICITORS:	In person (Appellant) S E O'Connor(Crown/Respondent)
CATCHWORDS:	Sentence appeal - one count of indecent assault on a child under 16 by a person in authority, four counts of aggravated indecent assault - overall sentence mimumum term of 18 months with an additional term of 18 months - prior good character - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Regina v Todd [1982] 2 NSWLR 517; Regina v Stewart (1994) 72 A Crim R 17; R v Fisher (1989) 40 A Crim R 442.
DECISION:	Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL

CCA60828/98

HULME J
CARRUTHERS AJ

Tuesday, 8 February 2000

REGINA v Denis Michael MURRAY
JUDGMENT

1   HULME J: I will ask Carruthers AJ to deliver the first judgment. 2   CARRUTHERS AJ: The applicant, Denis Michael Murray, seeks leave to appeal against sentences imposed upon him by his Honour Judge Luland QC in the District Court at Wagga Wagga on 15 December 1998 in respect of one count of indecent assault on a child under 16 by a person in authority, and four counts of aggravated indecent assault. 3 The applicant has elected not to be represented before this Court or to be present himself but has filed written submissions. Written submissions have also been filed on behalf of the Crown and no further submissions were put to the court when it assembled this morning to hear the application for leave to appeal. 4 The maximum penalty for the offence of indecent assault is six years penal servitude: see s 61E(1A) Crimes Act, 1900, and the maximum penalty for the offence of aggravated indecent assault is seven years imprisonment: see 61M(1) of the Act. 5   The applicant was sentenced on the one count of indecent assault and three of the counts of aggravated indecent assault to a fixed term of 12 months penal servitude. On the remaining count of aggravated indecent assault he was sentenced to a minimum term of 18 months imprisonment and an additional term of 18 months. A fixed term was ordered to commence on 15 December 1998 and to expire on 14 December 1999. The minimum term of 18 months imprisonment was fixed to commence on 15 December 1998 and to expire on 4 June 2000. The additional term was fixed to commence on 15 June 2000 and to expire on 14 December 2001. 6   The complainant was born on 4 December 1983. The indecent assault on a child under the age of 16 by a person in authority (count 1) which was referred to as a representative count, was committed between 1 January 1989 and 30 November 1990. The aggravated indecent assaults (counts 2 and 3) were committed between 1 May 1991 and 31 January 1992, on 7 February 1992 (count 4); and between 1 January 1992 and 30 September 1995 (count 5). These counts were also referred to as representative counts. 7   The applicant, who is presently aged 58 years, commenced a de facto relationship with the complainant's mother in about 1984. They lived together with interruptions in various country areas of New South Wales. The complainant was nine months old at the time their relationship commenced and she was the child of an earlier relationship of her mother with another man. Her relationship with the applicant produced three sons. 8   His Honour, in his remarks upon sentence, somewhat euphemistically, it may be said described the indecent assaults as “fondlings of the vagina area of the victim with hands, fingers and in addition the prisoner's tongue”. They were in fact very serious offences, the detail of which it is not necessary for present purposes to note. The aggravating factors were categorised by his Honour as the tender age of the complainant and the fact that she was under the authority of the applicant at all times. 9   The complainant first raised with her mother in about 1990 the fact of the earlier indecent assaults and consequently her mother separated from the applicant for a period of some six months. However, she recommenced her relationship with him on his promise that the misconduct would cease. Unfortunately that did not occur and the conduct was in fact ongoing for a lengthy period of time. 10   In his remarks on sentence his Honour said, inter alia:

“I have been provided with the victim’s impact statement and one readily recognises in any event that offences upon children such as these do have a prejudicial effect upon them and an effect that will be long lasting for the victim. She does in the victim impact statement express the relief that the matter is nearing an end and she feels she will be able to get on with her life when it is all over and done with. Well that is no doubt so but the effects of this will remain with her, as is the case with offences such as these.”

11   The applicant has no antecedent criminal record, he has a good work record. He admitted, however, that he consumed more alcohol than he should have in his earlier life but did not himself attribute the subject offences to consumption of alcohol. 12   His Honour accepted that he was shameful of his conduct and genuinely remorseful. The applicant expressed the view to an examining psychiatrist, Professor McConaghy, that he had strong feelings for the young child and felt that this at least contributed to the inappropriate sexual behaviour. 13   Professor McConaghy diagnosed the applicant as a paedophile, according to the criteria of psychiatric disorders, but his Honour held that there was no evidence of such behaviour directed towards other young persons. 14   His Honour took into account the following subjective circumstances: the fact that the applicant sought treatment from Professor McConaghy, by way of desensitisation procedures, with some apparent degree of success, and the fact that the applicant has been attending, almost without failure, sessions with the Child Abuse Prevention Service. His Honour had before him a report from Miss Dorothy Ginn in that regard. His Honour said:

“So it appears to me that the prisoner has recognised his problem, that he has done the best he can do to do something about it and continues to do so. Nevertheless having said all of that his prior good character loses some of its weight given the very nature of the offences and that it was ongoing conduct over a significantly long period of time.”

15   His Honour took the view that the applicant’s attempts at rehabilitation constituted special circumstances, and accordingly, reduced the minimum term that he would otherwise have been required to impose. He noted that the applicant is now living apart from his former defacto wife as well as the victim of the offences. 16   The grounds of appeal lodged following the sentences were in the following terms:

“My counsel failed to use materials supplied for leniency to its fullest benefit. Failed also to use term of reference provided. My counsel appeared rather antagonistic towards me and failed to represent me as I expected.”

17   I am not exactly sure what the applicant meant by the phrase in relation to his counsel, “failed also to use term of reference provided”. I rather think, (although this may be incorrect) that the applicant’s reference to his counsel appearing rather antagonistic towards him was a reference to the manner in which counsel for the applicant conducted the sentence proceedings. However, as the addresses by counsel were not recorded and, therefore, necessarily not transcribed one cannot discern what actually was said by counsel. 18   Subsequently, the applicant filed the following six grounds of argument for his appeal:

“1. At the first hearing for my sentencing on 1/12/98 my barrister said it was ABSOLUTELY VITAL to my case to get a report from C.A.P.S. (Child Abuse Prevention Service) where I had been undergoing group counselling conducted by MRS DOROTHY GINN and had the case adjourned until 15/12/98. On 15/12/98 my barrister DID NOT emphasise THAT REPORT or the REPORT from PSYCHIATRIST PROFESSOR NEIL McCONAGHY of the Sydney Sexual Health Service, OR the fact that I had attended these sessions over a period of nine (9) months of MY OWN VOLITION.

2. It was not mentioned that I had been waiting FIFTEEN (15) months for sentencing after my arrest. My barrister said it had taken so long for me to come before the Court due to a LEGAL TECHNICALITY in the Indictment. THIS WAS INCORRECT. The real reason was NOT enough time on the Court calendar.

3. It was NOT mentioned that at the time of my arrest I HAD NOT OFFENDED IN ALMOST THREE YEARS. I had CEASED to offend of MY OWN VOLITION and VOWED NEVER, I repeat NEVER to offend again.

4. My barrister carried on as if he was the prosecutor insisting I MUST GO TO GAOL that I MUST BE GIVEN A GAOL TERM. I did not ask my barrister to say these words.

5. The judge, knowing my barrister and his reputation, did not question my barrister on his feeble attempt to ask for LENIENCY on my behalf. NOR did he ask me if I was satisfied with the way he had conducted my case.

6. I also feel the judge did not consider the effect a prison term would have on my sons aged 12 1/2 years, 5 1/2 years and 3 years at the time of my sentencing. Although, my barrister very quickly passed over them in his summation.

7. I wish to thank the Court of Criminal Appeal and its Officers for their time and consideration in this matter.”

19   As to specified ground 1, it is merely necessary to note that the reports of Professor McConaghy and Ms Dorothy Ginn were tendered to his Honour by the applicant's counsel and they were specifically referred to by him during the course of the proceedings. It is clear from a perusal of those reports that the applicant demonstrated remorse and a commitment to rehabilitate himself. 20   The opening words of Professor McConaghy’s report, “Mr Murray consulted me” make it clear that the applicant had voluntarily sought treatment from him. In Ms Dorothy Ginn’s report she specifically states that the applicant had “voluntarily” attended a significant number of group sessions. Indeed in his remarks on sentence his Honour stated that the applicant “to his great credit ... sought treatment”, and his Honour referred to the applicant’s attendance at a number of group sessions. 21   As I have already indicated, his Honour specifically indicated that he was reducing the minimum term that he would otherwise have imposed by reason of the applicant’s efforts to rehabilitate himself. I would therefore reject the first ground. 22   The second complaint may be dealt with on the assumption that the delay between arrest and sentence was not due to a legal technicality but due to the pressure on the court. Such a delay, in modern terms, could not however by any means be termed inordinate. Moreover, the applicant had the benefit over this period of bail and the very considerable benefit, to his credit one may say, of using this period for the purposes of rehabilitation. The reduction in the minimum term as a result of that commendable effort towards rehabilitation has already been noted. 23   We have been reminded by counsel for the Crown that there is authority in this Court for the proposition that where there has been a lengthy delay before sentence weight should be given to the progress of rehabilitation: see R v Todd. [1982] 2 NSWLR 517 at 519. It is obvious from what I have already said that such weight was given by the sentencing judge here. I would therefore reject the second ground. 24 As to the third ground, it is manifestly apparent that his Honour was aware that there was no evidence that the applicant had offended in the three years prior to his arrest and such cessation was not otherwise than of his own volition. His Honour accepted that the applicant was seeking to rehabilitate himself which carries with it the implication that he did not wish to re-offend. I would reject the third ground. 25 As to the fourth ground, I note that as the submissions were not transcribed there is no evidence before this Court as to the specific matter raised in ground four. Whatever precisely were the submissions made by counsel for the applicant to the sentencing judge, the fact remains that a custodial sentence for these serious offences was inevitable There was no other option available to the sentencing judge. I would reject the fourth ground. 26 As to ground five, when one reads the remarks on sentence one is at a loss to discern what other bases for leniency were available to counsel for the applicant to submit. It is also difficult to discern what more could be said about the various elements of the subjective circumstances which were identified by the judge. It is of course not the practice of a sentencing judge to inquire of a prisoner whether he or she is satisfied with the way in which counsel has conducted the case. I reject ground five. 27 As to the final ground 6, it is of course most unfortunate that the father of three young children should be incarcerated for any length of time. However, the law is well established that generally the circumstances that hardship is likely to be caused to the family members of the person facing imprisonment is not a matter that should be taken into account in sentencing. It may only be taken into account where hardship is exceptional as when the offender is a young mother and the children will be deprived of parental care. There must be adequate evidence of hardship and each case must be determined in relation to the gravity of the offence and other relevant circumstances of the particular case: see R v Stewart. (1994) 72 A Crim R 17. The evidence before his Honour was that the three boys are now living with the complainant’s mother. 28 As the evidence stands there is no basis for contending that his Honour erred in law or in sentencing principle by not referring to the impact upon the three boys of the applicant’s incarceration. There was certainly no evidence at all before him to that effect. The separation could not be described, in terms of the established precedents, as exceptional hardship. I would therefore reject the sixth ground. 29 Bearing in mind that the applicant is unrepresented and thus confined his submissions to the written material, to which reference has already been made, I have carefully considered the relevant evidence in the light of the well established sentencing principles appropriate to sexual offences against young persons by a person in authority. The conclusion which I have reached is that the sentencing judge imposed sentences which could fairly be described as being towards the lower end of the discretionary range available to him. 30 Time and time again, this Court has emphasised the serious nature of offences such as the instant ones and the strong deterrent element which arises when sentencing for such offences. The complaints which the appellant makes fall to the ground when one considers the high degree of objective seriousness of these matters weighed against the subjective circumstances, and the leniency which was afforded to the applicant. 31 In the well-known case of R v Fischer, (1989) 40 A Crim R 442 at 445. this Court stated the general principle applicable to a case such as this in the following terms:

“Sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them but also in an endeavour to deter others who may have similar inclinations.”

32   I would in the circumstances propose that leave to appeal against sentence be granted but the appeal be dismissed. 33   HULME J: I agree. The orders of the court will be: leave to appeal is granted but the appeal is dismissed.