RS v The Queen
[2013] NSWCCA 227
•09 October 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: RS v R [2013] NSWCCA 227 Hearing dates: 9 September 2013 Decision date: 09 October 2013 Before: Beazley P at [1]
McCallum J at [2]
Schmidt J at [5]Decision: 1. Leave to appeal is granted.
2. The appeal is allowed.
3. The limiting terms imposed by Sides DCJ on 8 February 2013 are quashed.
4. In lieu thereof, the following limiting terms are imposed:
(i) On counts 1, 3 and 5 limiting terms of one month, to commence on 18 October 2011 expiring 17 November 2011.
(ii) On count 2 a limiting term of 8 months to commence on 18 October 2011 expiring 17 June 2012.
(iii) On count 4 a limiting term of 8 months to commence on 18 December 2011 expiring 17 August 2012.
(iv) On count 6 a limiting term of 8 months to commence on 18 February 2012 expiring 17 October 2012.
(v) On count 10 a limiting term of 5 months to commence on 18 February 2012 expiring 17 November 2012.
(vi) On count 11 a limiting term of 8 months to commence on 18 July 2012 expiring 17 March 2013.
(vii) On count 8 and 9 limiting terms of 14 months to commence on 18 August 2012 expiring 17 October 2013.
Catchwords: CRIMINAL LAW - appeal - appeal against sentence - sexual assault - intellectual disability - whether there was failure to take into account s 23(6) of the Mental Health Forensic Provisions Act 1990 - not established - whether error in finding that offender engaged in simulated intercourse - not established - failure to make allowance for applicant's good character - not established - failure to take account that the applicant was not fully aware of his actions, because of his mental disability (s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 - not established - wrongly imposing a longer sentence based on protection of the community - not established - whether limiting terms imposed were unusually harsh and severe - established - re-sentencing Legislation Cited: Crimes Act 1900
Mental Health (Criminal Procedure) Act 2005 (repealed)
Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions) Act 1990
Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (repealed)Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dousha v R [2008] NSWCCA 263
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Essex v R [2013] NSWCCA 11
Pearce v The Queen [1988] HCA 57; (1998) 194 CLR 610
R v ABS [2005] NSWCCA 255
R v AN [2005] NSWCA 239
R v Engert (1995) 84 A Crim R 67
R v Mailes [2004] NSWCCA 394; (2004) 150 A Crim R 365
R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85
R v PGM [2008] NSWCCA 172 ; (2008) 187 A Crim R 152
Regina v RTI [2005] NSWCCA 337
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465Category: Principal judgment Parties: RS (Applicant)
Regina (Crown)Representation: Counsel:
Mr M Ramage QC (Applicant)
Ms V Lydiard (Crown)
Solicitors:
Jeffreys Lawyers (Applicant)
S Kavanagh, solicitor for Public Prosecutions (Crown)
File Number(s): 2011/110195 2011/167849 Publication restriction: None Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2013-02-08 00:00:00
- Before:
- Sides QC DCJ
- File Number(s):
- 2011/110195
2011/167849
Judgment
BEAZLEY P: I agree with Schmidt J.
McCALLUM J: I agree with Schmidt J, for the reasons her Honour has stated. I would make the following additional remarks as to ground 1. As Schmidt J has explained, before the amendments to the Mental Health (Forensic Provisions) Act 1990 which took effect from January 2006, the court lacked power to postpone the commencement date of a limiting term and therefore lacked power to give effect to a fundamental principle of sentencing. The amendments were intended to address that deficiency but not in such a way as to produce limiting terms which would be more onerous than the sentences which would have been passed after a normal trial. It was in that specific context that Parliament saw fit to remind the court of the need to bear in mind the normal mechanism for accumulation, which requires that consecutive sentences be fixed by reference to non-parole periods: see s 47 of the Crimes (Sentencing Procedure) Act 1999. Absent that statutory reminder, since non-parole periods are not set in the case of forensic prisoners, the new process may have produced more onerous results for such prisoners through inadvertence. The principles of sentencing otherwise remain unqualified by the amendments. Specifically, there is no warrant for the conclusion, which appeared to be the premise of ground 1, that Parliament intended the aggregate limiting term for multiple offences to be less onerous than the aggregate head sentence imposed for multiple offences after a normal trial.
Section 54(c) of the Crimes (Sentencing Procedure) Act excludes forensic prisoners from the requirement in Division 1 of Part 4 of the Act to set a non-parole period for a sentence. It was no doubt in recognition of that provision that the learned sentencing judge stated that he had ignored the standard non-parole period (the relevant passage of the remarks on sentence is set out by Schmidt J). It is doubtful, however, whether the existence of a standard non-parole period is to be ignored altogether. As the High Court explained in Muldrock v The Queen [2011] HCA 39 at [27], a standard non-parole period is a legislative guidepost which stands among the full range of factors the court is obliged to take into account in determining the appropriate sentence for the offence after a normal trial. The standard non-parole periods Parliament has prescribed fall in Division 1A of Part 4, not Division 1. In any event, that was not the issue that arose in the present case.
I agree with the orders proposed by Schmidt J.
SCHMIDT J: The applicant seeks leave to appeal against the severity of limiting terms imposed upon him under the provisions of s 23(1)(b) of the Mental Health (Forensic Provisions) Act 1990. In 2011 the applicant was arrested and charged with thirteen offences involving two young complainants. In May 2012 the Mental Health Review Tribunal found him to be unfit to be tried on those charges. He was then granted conditional bail, having spent over 13 months in custody.
The Director of Public Prosecutions advised that it would proceed with the charges and so in December 2012 a special hearing was conducted in the District Court under s 19 of the Mental Health (Forensic Provisions) Act.
On 10 December 2012, Sides DCJ found under s 22(1)(c) of the Mental Health (Forensic Provisions) Act, that on the limited evidence available, the applicant had committed ten of the offences charged, they being offences under s 61O(2) and s 61M(2) of the Crimes Act 1900. Six of those offences involved the first complainant. They occurred in July 2010. Four of the offences involved the second complainant. They occurred in February 2011.
Bail was revoked on 10 December. His Honour indicated that he considered that given the seriousness of his offending, the period the applicant had already spent in custody, then some 1 year, 1 month and 21 days, would not equate to an appropriate overall limiting term for the offences found proven.
His Honour explained that he considered that bail should be refused even though the applicant had been assaulted while in custody before bail was granted and notwithstanding that because of his intellectual disability and separation from his family, who had been unable to visit him while he had previously been in custody, that custody would be more burdensome for him.
That conclusion rested on the adverse verdicts he had reached in relation to the offences committed against two different victims, one of whom was related to the applicant and the other being the daughter of a close friend. His Honour also had concerns, which he explained, as to the conduct of the applicant's siblings and mother on an occasion when he had breached the conditions of his bail, which required particular supervision when he was away from his home. He also had a concern as to the applicant's criminal record, what the protection of the community required and the capacity of the two people nominated to have responsibility for supervising him. His Honour recommended that the applicant be placed on protection.
The applicant then remained in custody bail refused until 8 February 2012, when he was sentenced and referred to the Mental Health Tribunal under s 24 of the Mental Health (Forensic Provisions) Act. After a hearing in May 2013, the applicant was transferred to Long Bay Hospital, by order of the Mental Health Review Tribunal.
By 8 February the applicant had spent a further 1 month, 30 days in custody. In the result he had spent a total period in custody, bail refused, of 1 year, 3 months and 21 days, when sentenced.
The limiting terms imposed were partly cumulative, with the result that the total of the limiting terms imposed was 2 years, 3 months, that is some 11 months and 9 days in addition to the time the applicant had already spent in custody. Those imposed in respect of the offences involving victim 1 commenced on 5 April 2011 and concluded on 4 April 2012. Those imposed in respect of the offences involving victim 2 commenced on 28 October 2012 and will conclude on 27 January 2014. The individual terms imposed were:
Victim 1
Count 1 (10 July 2010); count 3 (17 July 2010); and count 5 (18 July 2010):
Section 61O(2) - an act of indecency towards a person under the age of 10 years - maximum penalty 7 years - exposure of penis:
Limiting terms of 1 month to commence on 5 April 2011 expiring 4 May 2011
Count 2 (10 July 2010)
Section 61M(2) - aggravated indecent assault of a person under the age of 16 years - maximum penalty 10 years - touched victim on her genitals (bare):
Limiting term of 8 months to commence on 5 April 2011 expiring 4 December 2011
Count 4 (17 July 2010)
Section 61M(2) - touched victim on her genitals:
Limiting term of 8 months to commence on 5 June 2011 expiring 4 February 2012
Count 6 (18 July 2010)
Section 61M(2) - touched victim on her genitals:
Limiting term of 8 months to commence on 5 August 2011 expiring 4 April 2012
Victim 2
Count 10 (13 February 2011)
Section 61M(2) - touched victim on her genitals:
Limiting term of 5 months to commence on 28 October 2012 expiring 27 March 2013
Count 11 (13 February 2011)
Section 61M(2) - forcing victim's hand onto his penis:
Limiting term of 8 months to commence on 11 November 2012 expiring 10 July 2013
Count 8 and count 9 (13 February 2011)
Section 61M(2) - 'simulated intercourse' and opening the victim's vagina with fingers and looking in, without actual penetration:
Limiting term of 14 months to commence on 28 November 2012 expiring 27 January 2014
Two observations should immediately be made about these individual sentences. Firstly, both at first instance and on appeal, it was common ground that the maximum penalty for each s 61O offence was 10 years, when in fact the maximum penalty was 7 years. Given the nominal terms of 1 month imposed for each of these offences, (counts 1, 3 and 5), which were all made wholly concurrent with the term imposed for count 2, this error had no practical impact on the terms imposed on the applicant. That presumably explains why this error was not raised on appeal.
Secondly, there was a hiatus period of some 6 months and 15 days between the terms imposed. The hiatus commenced on 4 April 2012, (when the limiting term for count 6, involving the first victim expired) and ended on 28 October 2012, (when the limiting term for count 10 involving the second victim commenced).
His Honour did not explain that hiatus in his sentencing judgment. It did not entirely reflect the time that the applicant was on bail, between 25 May 2012 and 10 December 2012, (of some 6 months and 5 days), but may have been intended to reflect that period. If so, his Honour appears to have made a miscalculation, to which it will be necessary to return.
Grounds of Appeal
The applicant relied on six grounds of appeal:
"(1) The sentencing judge erred in failing to take into account s23(6) Mental Health Forensic Provisions Act;
(2) The sentencing judge erred in finding that the offender had engaged in simulated intercourse.
(3) The total limiting term imposed is unduly harsh and severe;
(4) The sentencing judge erred in failing to take or sufficiently take into account the mitigating factor under 21A(3)(j) that the offender was not fully aware of the consequences of his actions because of the offender's mental disability;
(5) The sentencing judge erred in imposing a longer sentence based on protection of the community;
(6) The sentencing judge erred in failing to make any allowance for good character."
Ground 1 - Failure to take account of s 23(6) of the Mental Health (Forensic Provisions) Act
The limiting terms imposed establish the period beyond which the applicant cannot be detained for the offences which were the subject of the special hearing (see R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85 at [30]). A person serving such a limiting term is a forensic patient, who may only be discharged prior to the expiry of such a term under the six monthly review process established under Part 5 of the Mental Health (Forensic Provisions) Act.
In R v Mailes [2004] NSWCCA 394; (2004) 150 A Crim R 365, the object of imposing a limiting term on a person who has been found to be unfit to be tried was explained at [32]:
"The objects of sentencing a person who has been convicted of a crime following a trial are the punishment of such person and the other objects set out in s 3A of the CSP Act. The object of nominating a limiting term is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial, although such person may be released prior to the expiration of such limiting term depending on the person's condition, or if such person becomes fit to be tried during such term, he or she can be tried according to law and if found guilty at such trial, can have a proper sentence fixed with a non-parole period. The maximum time that a person can be detained if convicted at a proper trial is the head or total sentence not the non-parole period: MHCP Act s 28 which sentence must take into account any time served under a limiting term."
Section 23 of the Mental Health (Forensic Provisions) Act governs how such a limiting term is to be determined, by reference to the total sentence which would ordinarily be imposed for the offence, after a normal criminal trial. That exercise does not involve the setting of a non-parole period (see s 54(c) of the Crimes (Sentencing Procedure) Act 1999).
By way of contrast, when a person is sentenced after a normal criminal trial, the sentencing judge is obliged to impose a non-parole period, that being 'the minimum period for which the offender must be kept in detention in relation to the offence', under s 44 of the Crimes (Sentencing Procedure) Act. In Mailes it was explained at [29] that as a matter of construction of these two Acts:
"There is, in my opinion, yet a further reason why the "sentence" referred to in s 23 must be a reference to the total sentence and not to the non-parole period. The only authority in the CSP Act for setting a non-parole period which is less than the total sentence is s 44 which is in Division 1 of Part 1 of the Act; but s 54 expressly provides that the Division does not apply to the sentencing of an offender to detention under the MHCP Act. A corresponding provision was formerly to be found in s 13(d) of the Sentencing Act, but it only provided that the relevant Part of the Act did not apply to detention under ss 25 or 39 of the MHCP Act, which relate to detention following a verdict of not guilty on the ground of mental illness. The broader exclusion in the CSP Act is, in my view, significant and must have been intended to refer to all detention under the MHCP Act, including detention under ss 23, 24 and 27. Consequently, simply as a matter of construction, there is no statutory authority in the case of a limiting term for fixing a non-parole or equivalent period at less than the total term."
The case advanced for the applicant was that despite the provision made in s 23(1) of the Mental Health (Forensic Provisions) Act and how it was construed in Mailes, the effect of s 23(6) is that properly construed, s 23 now requires that when a limiting term is fixed, the non parole period that would have been imposed, had the person been convicted after a normal criminal trial, is a relevant factor that must be taken into account by the Court, if a cumulative sentence is imposed in accordance with s 23(5)(b).
Section 23 was amended after Mailes was decided. As from 1 January 2006, subsections (5) and (6) were introduced by the Mental Health (Criminal Procedure) Act 2005 (repealed). It now provides after further amendment in 2009, when subsection (7) was introduced by the Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (repealed):
"23 Procedure after completion of special hearing
(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:
(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and
(b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term, in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
(2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.
(3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings.
(4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence).
(5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court:
(a) after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or
(b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person.
(6) When making a direction under subsection (5) (b), the Court is to take into account that:
(a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and
(b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47 (4) and (5) of the Crimes (Sentencing Procedure) Act 1999).
(7) If the Court indicates that it would not have imposed a sentence of imprisonment in respect of a forensic patient, it must notify the Tribunal that a limiting term is not to be nominated in respect of the person."
Before these amendments, s 23(5) permitted a limiting term to commence at an earlier time, but a later commencement was not permitted. The 2006 amendments introduced the possibility of a limiting term with a later commencement being imposed.
In the Second Reading Speech the proposed amendments to s 23(5) and s 23(6) were explained:
"This amendment is directed towards dealing with a deficiency in the legislation highlighted in the judgment of Justice Giles in R v RTI [2005] New South Wales Court of Criminal Appeal 337, in particular paragraph 45. The amendment gives effect to Justice Giles's suggestion that there should be a power to accumulate limiting terms. It is not intended that accumulation of limiting terms be dealt with in a way that is more onerous than the accumulation that takes place after a normal trial. The insertion of proposed section 23 (6) is intended to ensure that the court takes account of, and is guided as far as possible by, the provisions governing consecutive sentences after a normal trial. In all but the worst cases limiting terms where accumulation is warranted should
be partly concurrent and partly consecutive."
Giles JA observed in Regina v RTI [2005] NSWCCA 337 at [43] - [45]:
"43 Section 23(5) directs that the limiting term takes effect from the time when it is nominated. It and s 23(4) authorise only a back-dated commencement of a limiting term having regard to the periods of the person's custody or detention before, during and after the special hearing, being periods related to the offence. Further, as was pointed out in R v AN [2005] NSWCCA 239 at [14], s 23(5) does not authorise the commencement of a limiting term on a date after its imposition. Thus the Court can not nominate cumulative or partly cumulative limiting terms if commencement of some of the limiting terms would be after the time of nomination.
44 In the present case a number of the limiting terms were backdated to commence at times prior to 15 October 2004. It is not clear why the first commencing date of 13 May 2002 was selected by the judge, although we were informed that the appellant had been in custody from that date and his Honour must have been so informed. However, the appellant was not charged with the offences presently in question until 4 July 2001, and his earlier custody had been related to other offences (see R v RTI, above). Some of the limiting terms were imposed to commence on dates after 15 October 2004, as a result of his Honour's consideration of cumulation. It does not appear that the significance of s 23(4) and (5) was drawn to his Honour's attention, and his sentencing miscarried as to the first commencing date and the limiting terms commencing after 15 October 2004.
45 It is difficult to see that the legislature intended that the range of sentencing options available on a trial in accordance with normal procedures should not be available: s 23(1)(b) of the Act is to the contrary. Yet that is so when there are multiple offences calling for consideration of cumulation. There is a defect in the legislation, which deserves further attention."
In this case Sides DCJ initially referred to the requirements of s 23, correctly observing:
"As the Court is to indicate a limiting term, if of the view that a sentence of imprisonment would have been imposed after a normal trial, there is no provision for fixing a non-parole period and the Court ignored the standard non-parole period."
His Honour later said that he intended the terms he imposed to "reflect pre-sentence custody". They all accordingly commenced before 8 February 2013, the date of sentencing, as s 23(5)(a) permitted. None commenced after 8 February, as s 23(5)(b) permitted.
If the sentences imposed had resulted in terms commencing "at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated", then questions of accumulation and concurrency would have had to be considered, in the context of the provisions of s 47(4) and s 47(5) of the Crimes (Sentencing Procedure) Act. These provisions are directed to ensuring that there is no gap in custody, when a term of imprisonment is already being served. They provide:
"(4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender:
(a) will become entitled to be released from custody, or
(b) will become eligible to be released on parole,
having regard to any other sentence of imprisonment to which the offender is subject.
(5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if:
(a) a non-parole period has been set for that other sentence, and
(b) the non-parole period for that other sentence has expired, and
(c) the offender is still in custody under that other sentence."
Section 47(2)(b) provides:
"(2) A court may direct that a sentence of imprisonment:
...
(b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment."
The applicant was not already serving a sentence for another offence and none of the terms which Sides DCJ imposed commenced after 8 February 2013. Accordingly, none of these considerations arose in this exercise. That did not, however, mean that questions of accumulation and concurrency did not have to be considered.
As discussed in R v AN [2005] NSWCA 239 at [13], in determining a limiting term 'the court is to adopt and apply all the principles of sentencing, whether arising under the common law or statue, that apply in sentencing a person convicted of the offence'. In a case of multiple offences, such as this case, that requires consideration to be given to the question of totality and whether cumulative or partly cumulative sentences should be imposed, in order to properly reflect the overall criminality of the entire offending. It follows that whenever more than one limiting term is being imposed, questions of concurrency and accumulation will necessarily arise for consideration under s 23(1).
His Honour said that he had considered all of these matters, but the accumulation of the terms imposed is a matter to which it will be necessary to return in relation to ground 3.
This ground of appeal was not, however, established.
Ground 2 - The finding that the applicant engaged in simulated intercourse - count 8
The applicant did not give evidence on conviction or sentence. The Crown called evidence from the victims and other witnesses. The second victim was aged about 6 and a half years at the time of the offence, which occurred in February 2011, when she, her mother and younger sister had stayed with the applicant's family over the weekend. The applicant was then some 32 years of age.
In her evidence the victim described what had happened to her. Understandably, given her age, she did not use the term 'simulated intercourse'. That was a description which his Honour adopted.
Count 8 was described by his Honour in the sentencing judgment as having occurred on the day of her departure from the applicant's home. She was then at the back of the house on her own, while everyone else was at the front. The applicant used his finger to beckon her and told her to jump into a caravan in the back yard. His Honour observed:
" ... after she went into the van, he pulled down his pants, took his doodle out and then rolled around on her performing an act of simulated intercourse ... . During this act, whilst on top of the victim, he moved about whilst his penis was in contact with her genital area without any clothing separating those parts of their respective bodies. There is no evidence that his penis was erect."
In the earlier conviction judgment, his Honour had also referred to the victim's evidence, observing:
"She said this incident occurred when everyone else was out the front of the house and she was at the back. She said that he went like this, demonstrating a beckoning movement similar to that demonstrated by Felicity, and he said: "jump in the van". [The victim] said that, after she went to the van, he pulled down his pants, took his doodle out and rolled on her.
Although she said nothing else happened, she went on to say that she was on the bed, he pulled her dress up and went like that. The recitation of this incident upon which the Crown relies to prove count 8 is quite disjointed in the interview and intermingled with descriptions of other incidents. She said that his tummy was touching her body and his doodle was touching her wee-wee. She did not know if it was on the outside or the inside of her wee-wee. She said he was rolling around in circles. She said the accused's doodle was soft and she felt disgusted.
In summary the Court is satisfied that she was describing an act of simulated intercourse in the caravan, which is what the Crown relies upon to prove count 8, and that when referring to her wee-wee she was referring to her genital area. It is also satisfied that she meant penis when she used the word "doodle". The disjointed nature of her account is what might be expected of a child of about six and a half years of age."
On sentencing the case for the applicant was put by way of written submissions. There was no submission made there, or in oral submissions, that his Honour's earlier description of what the evidence had established as 'simulated intercourse', was incorrect. Orally it was submitted, however, that the offences were opportunistic and not for the purpose of sexual gratification, there being no evidence of sexual arousal. It was also submitted that the applicant's acts were 'more consistent with childlike curiosity rather than obtaining sexual gratification'.
His Honour plainly did not accept those submissions. Given the evidence of the applicant's acts, his Honour's description does not appear inaccurate, reflecting as it does that his Honour did not find that those acts included penetration. On the evidence, it was clearly open to his Honour to consider that they were the result, at the least, of sexual interest.
In my view this ground was not established.
Ground 6 - failure to make any allowance for the applicant's good character
His Honour took the view that the applicant could not claim the benefit of good character, given his record. In 1998, he was sentenced to a 2 year community based order by the County Court of Victoria, to undergo treatment for sexually penetrating a child aged between 10 and 16 years and indecently assaulting a child under 16 years. The applicant was then aged 15 years and the victim of the sexual penetration 10 years. He was 17 when the same victim was involved in touching his penis.
His Honour also took the view that while these convictions were old and the applicant was a juvenile at the time, they were relevant to be considered in relation to rehabilitation and the issue of protection of the community.
On appeal it was accepted for the applicant that this record was relevant, but it was submitted that necessary consideration was not given to the fact that the applicant had the same intellectual limitations at the time of his earlier offending. In the result, it was argued, he should have received some benefit or leniency for his otherwise good character, given that he had no other criminal matters of any kind, in the intervening period.
This submission must be rejected.
In Dousha v R [2008] NSWCCA 263 it was observed at [49]:
"...While an offender's previous good character must be taken into account on sentence its weight as a matter in mitigation of sentence will vary depending on the circumstances of the offending (Ryan v R [2001] HCA 21; 206 CLR 267 per McHugh J at 275). In the context of offending constituted by a course of repeated sexual offending against young children a claim for good character does not entitle an offender to the leniency that might otherwise be available (see R v PGM [2008] NSWCCA 172 at [43] and [44])."
As discussed by Buddin J in R v ABS [2005] NSWCCA 255, repeat offending in the context of sexual offences deprives on offender of a claim for leniency that might otherwise be available where the offending was spontaneous and only involves an isolated incident. This was referred to in R v PGM [2008] NSWCCA 172, where it was observed at [44] as to a pattern of repeat offending over a period in the course of an ongoing relationship between the respondent and a child:
"... Where these features are present a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending, perhaps in the expectation that the child may not see the offending conduct as wrong thereby both avoiding detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character"
I do not consider that in this case, even though the applicant's record was not extensive, his Honour erred in his approach. The applicant's record was relevant and his Honour was entitled to take it into account as he did. Given the terms imposed, that he gave that record undue weight, is not apparent.
I consider that this ground was not established.
Ground 3 - The limiting terms imposed were unusually harsh and severe
Ground 4 - Failure to take account that the applicant was not fully aware of his actions, because of his mental disability (s 21A(3)(j) of the Crimes (Sentencing Procedure) Act
Ground 5 - Imposing a longer sentence based on protection of the community
It is convenient to deal with these grounds of appeal together. In summary, I consider that grounds 4 and 5 have not been established, but that ground 3 has, for reasons connected with how the limiting terms were structured.
The applicant's case on sentencing was not that a custodial sentence was inappropriate. It was submitted that the sentences for the two sets of offences, which had each occurred over a short discrete period, should be concurrent and that any accumulation of the terms imposed for the offences involving the second victim should be partial, because full accumulation would result in a limiting term that exceeded the applicant's overall criminality. It was urged that the limiting terms imposed would not exceed the time the applicant had already spent in custody.
By reference to Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 it was submitted that the applicant's mental disability was highly relevant to the sentencing process, making him a person who had limited moral culpability for his offence and that accordingly, general deterrence should play no role in the sentencing exercise and that retribution and denunciation did not require significant emphasis. His difficulties in custody were also emphasised, as was his isolation from his family.
On appeal it was argued that the total limiting terms imposed were unduly harsh, being 'the equivalent of a putative head sentence of approximately 3 years'. That submission cannot be accepted. Nothing in his Honour's remarks suggests that he did not fix the limiting terms imposed by reference to the total sentence which would have been imposed on the applicant, had he been convicted after a normal trial, as s 23 of the Mental Health (Forensic Provisions) Act required.
The total term imposed was 2 years, 3 months. Had a non-parole period been fixed after a normal criminal trial, it would have been of a lesser period than this, as required by s 44(2) of the Crimes (Sentencing Procedure) Act. Ordinarily, when fixing such a non-parole period a balance of term must not exceed one-third of the non-parole period. Nothing in his Honour's remarks suggest that he wrongly took this exercise into account, when determining the limiting terms which he imposed.
It was further submitted that the terms imposed did not have proper regard to the objective and subjective circumstances which had to be considered on sentencing, but fell into a range more appropriate to a person not suffering from the applicant's mental disabilities. Further, that his mental abnormality should have rendered the applicant an inappropriate vehicle for general deterrence and that it reduced or eliminated the need for specific deterrence.
It was also argued that his Honour had wrongly proceeded on the basis that the applicant was motivated by sexual gratification, despite having found that he was not sexually aroused at the time of the offences and that lack of sexual gratification should have been taken into account as a mitigating factor. In Essex v R [2013] NSWCCA 11 it was observed at [49]:
"However in the present case the question of whether the conduct of the applicant was motivated by a desire for sexual gratification was necessarily an important one. It has been recognised by this Court that in matters of this nature, the question of whether the offending was so motivated is a significant factor to be taken into account in any assessment of objective seriousness. In R v Dunn (CCA (NSW) 15 April 1992 unreported) Gleeson CJ said:
"The act of which the appellant was found guilty was, by definition, an act of sexual intercourse. In my view it is material, indeed most material, to take into account that the conduct in question was not done for any form of sexual gratification and was an act committed by this young offender in a fit of irritability and at a time when her capacity for judgment was impaired by the ingestion of drugs. Those are circumstances which I think were insufficiently taken into account by the learned sentencing judge."
Contrary to these submissions, it is evident from his Honour's remarks that he paid careful attention to the evidence as to the applicant's intellectual disability and the nature of his sexual interest in his victims.
This led him to conclude that the applicant's condition was such that less weight had to be given to deterrence, retribution and denunciation, than would otherwise have been the case. There was no error in that conclusion. It accorded with the approach discussed in R v Engert (1995) 84 A Crim R 67.
Nor did his Honour err in concluding that the applicant was not fully aware of the consequences of his actions. Properly, it seems to me, that was one of the matters which gave rise to his Honour's concerns about the need for protection of the community. Contrary to the submissions advanced for the applicant, that was a matter to which he was obliged to have regard, s 3A of the Crimes (Sentencing Procedure Act) providing:
"3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
It was the applicant who tendered Dr Furst's reports. He was a consultant forensic psychiatrist working at Long Bay Hospital who first interviewed the applicant in April 2012, for some 60 minutes. In his report of 2 May 2012 Dr Furst explained the basis for his opinion that the applicant was not fit to be tried, as well as his diagnosis that the applicant suffered from a development disability of a moderate degree. He also referred to the applicant's report of having a sexual attraction to women, but not children. The applicant then denied the acts the subject of the charges.
Dr Furst assessed the applicant again in December 2012 for approximately 30 minutes. He also had access to numerous documents; including the applicant's criminal record, reports of another psychiatrist Dr Nielsen, a psychologist report, medical files and a June 2012 determination of the Mental Health Tribunal. In his 14 January 2013 report Dr Furst noted a similar report from the applicant as to his sexual orientation and desires, making the additional observation that the applicant then denied 'sexual desires generally.' He also denied feeling sexually frustrated or having any deviant fantasies. The applicant did not give evidence, so this report was not tested. It does not accord with the evidence on which he was convicted.
Those sexual acts, the steps he took to entice the victims to his van, his apparent awareness of wrongdoing, telling one victim not to tell what he had done, the acts in which he engaged and what was contained in Dr Furst's reports, provided a proper basis for his Honour's rejection of the notion that there was no sexual gratification involved in his offending.
Dr Furst expressed the opinion:
"The level of his disability would make it much more difficult than the ordinary person to understand concepts and hard for him to learn new information. It would also make it more difficult for him to communicate his understanding to others.
[RS] also appears to meet criteria for a paraphilia, which is a disorder of deviant sexual arousal and a pattern of abnormal sexual behaviour dating back to his adolescence. The nature of his deviant behaviour and presence of any deviant sexual fantasies was not clear to me. Further assessment is warranted in the context of any sex offender treatment programs he engages in."
Dr Furst considered that the applicant would benefit from further assessment and treatment to improve his behaviour and communication skills. In the event of release into the community, he recommended a treatment plan which included appointments with a clinical psychologist to address the applicant's sexual behaviours and to help him establish appropriate personal boundaries; the possible prescription of anti-androgen agents; and the goal of treatment with anti-libidinal agents, to remove deviant sexual arousal. In custody he recommended placement in a special unit for inmates with a developmental disability and a behavioural management plan along similar lines to that recommended, if released to the community.
In sentencing his Honour thus considered the need for protection of the community. He concluded that:
"...because of his intellectual disability, it gave greater weight to rehabilitation and less weight to deterrence, retribution and denunciation. However the need for protection of the community pulls in a different direction from the considerations concerning rehabilitation."
That conclusion involved no error. As discussed in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [9]:
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."
Further, as was observed at [10]:
"It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment."
In this case that difficult exercise had to be conducted in circumstances were the offences in relation to the first victim were committed while she was staying with her grandparents, the applicant's parents, with whom he lived, for the first time on her own, for a period of about a month. She was then aged 7 years. At that time the applicant lived and slept in one of two caravans in the rear yard of the house. His sister occupied the other van.
Counts 1 and 2 related to an occasion on 10 July 2010 when the applicant gave the first victim a signal, by moving his finger, while she was playing with her cousin. Only she entered the van. He put on a movie, 'Alf' and then showed her his penis, by pulling down his pants so that they were around his knees. This gave rise to count 1. He told her not to tell anyone what he had done. He then touched her in the area of her genitals, which he called her 'Minnie', under her clothes, so that his hand came in contact with her skin. This gave rise to count 2. He then told her to leave the van.
The following Saturday, 17 July, the victim was outside, listening to her iPod, while her grandfather was inside watching television. The applicant came out of the house, walked to the van and again signalled her with his finger, beckoning her into he van. He closed the door and she sat on the bed and the applicant put on a movie. After sitting with her for a while, he got up, pulled his pants down and exposed his penis to the victim. This gave rise to count 3. He then walked towards her, knelt down and touched her private parts by sliding his hand under her pants at the front, bringing the back of his hand into contact with her genital area. This gave rise to count 4.
The final incident occurred the next day. The victim was then outside after lunch with her cousin, teaching two dogs tricks. The accused again signalled her to the caravan and her cousin went inside. Again, he put on a movie and the victim sat on the bed to watch. Again, he pulled down his shorts and exposed his penis. This gave rise to count 5. He was looking into the victim's eyes as he did so. He then pulled up his shorts and walked to the victim, knelt down and put his left hand down her jeans and touched her on the genital area with the back of his hand, giving rise to count 6.
The victim did not tell her mother about these offences until April 2011, when her mother spoke to her. Her explanation was that she was too scared to tell her mother, but she could not articulate why.
As to the second victim, the circumstances of count 8 have earlier been referred to. Count 9 occurred shortly afterwards, while the victim was still in the van. The applicant then separated the opening of her vagina, using his fingers and looked in, without actually penetrating her. The same day the applicant was sitting in the house while playing cards, while the victim was standing up. He touched her genitals on the outside or the inside of her clothes. That gave rise to count 10. That day while they were at the kitchen table, he took hold of the victim's arm and forced her hand to come into contact with his penis. That gave rise to count 11.
The applicant's circumstances were found to be that he suffered from significant intellectual disability, placing him in the bottom 0.3 per cent of the population. His language skills are particularly compromised and he is illiterate and innumerate. He has some general living skills, but cannot live independently in the community. He has always lived in relatively remote regional areas and apart from helping his father run a farm, has not worked. He is socially isolated. He had been assaulted in custody and on sentencing was in protection. His Honour found that as a result, custody would be more burdensome for him than for other inmates.
His Honour considered the age of the victims and the fact that the offences were committed while they were houseguests in his parents' home. He found it probable that the offences were opportunistic. Each offence involved brief acts, which his Honour considered was as the result of a desire to avoid detection. He took into account that no physical harm resulted, that no threats were used and that the victim's silence had not been bought by gifts. He also observed that such offences could have a significant and long term impact on children, as the victim impact statements received had illustrated.
His Honour concluded that because of his intellectual disability, the applicant's moral culpability had been significantly reduced. There was no evidence of sexual arousal at the time of the offences, which all fell within the low range. He considered that the assault involving simulated intercourse and separating the vagina of the second victim and looking in, were more serious than the other acts of touching. His Honour found that count 10 was the least serious of those offences, because he was not satisfied beyond reasonable doubt that this touching was under the victim's clothing.
His Honour found that as a result of his disability, the applicant had no insight into his offending and that it was unlikely that he would ever learn what is appropriate and inappropriate behaviour towards children. He noted his mother's evidence that he always denied an allegation, when confronted with it. He also noted Dr Furst's opinion, that he met the criteria for paraphilia disorder of deviant sexual arousal and a pattern of abnormal sexual behaviour, back to adolescence.
His Honour observed that the attitude of his mother and sister towards the victims indicated that at least two of his three primary carers lacked an appreciation of the seriousness of his conduct and breach of bail. Dr Furst's recommendation for 24-hour supervision was also noted.
His Honour concluded that the applicant's prospects of rehabilitation and not re-offending were poor and that there was a need to protect the community. He noted that his prospects would improve, if he received the treatment Dr Furst recommend, but concluded that he then posed a danger to the community. He also considered that with appropriate treatment, including pharmacological intervention and compliance and supervision by responsible individuals, not including his mother and sister, this concern could be overcome, or ameliorated.
His Honour concluded that while a custodial sentence was a sentence of last resort, in this case there would have been a custodial sentence imposed after a normal trial and that accordingly, limiting terms should be set under s 23.
While I can see no error in any of those conclusions, it was argued on appeal that his Honour was not addressed on the basis that the applicant was a danger to the community and that he had poor prospects of rehabilitation. Those conclusions were said not to have been justified on the evidence and not supported by any expert evidence, particularly given the lack of any criminal record between March 1998, for offences committed in 1994.
Nor were they justified by the opinions expressed by Dr Furst, which were submitted to have involved only a 'tentative' opinion that the applicant suffered from paraphilia. There was no supporting evidence for Dr Furst's opinion; that the diagnosis was incomplete and that even Dr Furst had suggested that it required further assessment. Further, his opinion did not exclude treatment in the community and that it was manifestly unfair that the applicant's mother and sister had been excluded as responsible persons for his supervision.
It was also argued that on the evidence, no imprisonment was likely to have had any effect on the applicant's behaviour and in the circumstances, any perceived difficulty in the applicant remaining in the community, ought to have been canvassed with his legal advisers.
These submissions cannot be accepted. They overlook the circumstances in which the applicant had been refused bail in December 2012 and what occurred at the sentencing hearing.
His Honour had a concern about the attitudes of the applicant's mother and sister, which had been revealed on the earlier evidence. No further evidence about the applicant's supervision was called. During submissions on sentencing, his Honour raised with the parties the question of the danger which the applicant posed to the community, the suitability of his mother and sister to supervise the applicant, the earlier breach of his bail, their attitude to the danger which he posed to children and his record.
The applicant's case was that his Honour should conclude that the limiting terms imposed should reflect the time he had already spent in custody. It was submitted to be relevant that the applicant's offences were opportunistic, rather than predatory; that he had limited moral culpability, given his significant disability and that objectively, his offences were not serious, being more consistent with childlike curiosity, than to obtain sexual gratification. His mental condition was also submitted to significantly reduce the objective gravity of his offending and that his record should be disregarded entirely. It was also urged that it would be concluded that the offences fell at the bottom of the range and that any accumulation should be partial.
The Crown submitted that the limiting terms had to be fixed under s 23 on the basis of what an appropriate term of imprisonment would be, at a normal trial, without regard to any question of non-parole periods. That involved the normal approach necessary to be taken to offenders suffering from mental illness, making them less appropriate vehicles for general and specific deterrence. It was also submitted that regard had to be paid to Dr Furst's opinions, as to the applicant's lack of insight, his record and the attitude of his family members, when assessing the likelihood of his re-offending.
It was also submitted that the lack of insight and limited understanding of the criminality involved in his conduct, was two-edged, raising as it did the risk of re-offending which existed. That there had been no sexual gratification obtained by the applicant, was argued not to diminish the impact of the offence on his victims.
A limiting term backdated to expire on the day of sentencing, would not adequate reflect the criminality of the offending and the risk of further offending, particularly given the unsatisfactory arrangements for supervision available in the environment to which he would return.
As to accumulation, it was accepted that there should be some slight accumulation for each discrete set of offences, but that a total limiting term of only about 16 months would not be adequate. It was submitted that assessment of when the community would no longer be endangered by the applicant's release was a matter to be determined by the Mental Health Tribunal under s 43.
It follows that the submission on appeal that his Honour was not addressed as to concerns about the danger which the applicant posed to the community and the problems he perceived with the supervision arrangements, was not correct. His Honour's approach to these matters has not been shown to have involved any error. Nor has error been demonstrated in the individual sentences imposed. As discussed by Gleeson CJ in R v Engert (at 68):
"A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other considerations. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. ... It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."
As I have explained, however, the overall structure of the limiting terms which his Honour imposed was unusual, in that there was a hiatus between the day that the limiting term for count 6 expired on 4 April 2012 and the day that the limiting term for count 10 commenced on 28 October. That was a period of some 6 months and 5 days.
The result of his Honour's approach was that the total of the terms imposed on 8 February 2013 was some 2 years, 3 months. The total period that the applicant had spent to that day in custody bail refused, was 1 year, 3 months and 21 days. The total period he was to serve in custody after 8 February, was thus 11 months, 9 days.
Had his Honour adopted the more usual approach of commencing the term imposed for counts 1, 3 and 5, some 1 year, 3 months and 21 days before 8 February 2013, that being the total time that the applicant had spent in custody, as s 23(4) permitted, those terms would have commenced on 18 October 2011. On that approach, the total term of 2 years and 3 months imposed would have expired on 17 January 2014, rather than 27 January 2014.
Had his Honour so approached the sentencing exercise, there would have been no necessity for any hiatus period. Further, application of the principle of totality would then have required consideration to be given to the question of the accumulation of the limiting terms imposed in respect of the offences involving the two victims. As discussed in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45]:
"To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [Mill v The Queen (1988) 166 CLR 59.]."
This was a matter which his Honour was obliged to consider under s 23(1), which required that he make 'the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings'. That his Honour did give consideration to this question is apparent from his consideration of the principle of totality.
In relation to the first victim his Honour took into account that the offences were committed over a short time and that they involved separate acts on separate days, with the result that his Honour considered that 'some modest accumulation is called for'. He also said that:
"There should also be some accumulation as between those offences and the offences involving the other victim. It seems to the Court that they arose out of three separate events. The events involving the simulated intercourse and looking in the vagina are temporally quite proximate. What period of time separated them from the other two acts in the house is unclear. What period of time separated the two acts in the house is also unclear."
While the terms imposed for the various offences committed in respect of the two victims provided for some modest accumulation, as his Honour intended, as the result of the hiatus in the terms imposed, there was complete accumulation as between the offences involving the two victims. That does not appear to be what his Honour intended, or what would have resulted, had the applicant been sentenced for these offences after a normal trial.
Questions of concurrency and accumulation are discretionary, as explained in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:
"... there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
In this case it seems to me that after a normal trial, proper application of these principles would have resulted in some measure of concurrency as between the terms imposed in respect of both the individual offences and those involving the two victims, as his Honour intended, rather than the total accumulation which resulted from the imposition of the hiatus period.
It seems to me that the overall limiting terms imposed were too severe, being longer than the period for which the applicant would have been sentenced, after a normal trial. Otherwise, however, I do not consider that the limiting terms which his Honour imposed were unduly harsh.
In the result, in my view the applicant must be re-sentenced.
On re-sentencing the applicant relied on a 2 May 2013 report to the Court from the Mental Health Review Tribunal, which advised that it had made a determination under s 24(2) Mental Health (Forensic Provisions) Act, finding that the applicant was still not fit to be tried. He was, however, not found to be suffering from any mental illness or mental condition and was found not to require any ongoing treatment.
Having regard to the evidence as to the overall criminality of the applicant's offending and applying the principle of totality, I would impose individual limiting terms under s 23(1) of the Mental Health (Forensic Provisions) Act totalling 2 years, commencing from 17 October 2011 and expiring on 16 October 2013 as follows:
Victim 1
Count 1 (10 July 2010); count 3 (17 July 2010); and count 5 (18 July 2010):
Section 61O(2) - an act of indecency towards a person under the age of 10 years - maximum penalty 7 years - exposure of penis:
Limiting terms of 1 month to commence on 18 October 2011 expiring 17 November 2011
Count 2 (10 July 2010)
Section 61M(2) - aggravated indecent assault of a person under the age of 16 year - maximum penalty 10 years - touched victim on her genitals (bare):
Limiting term of 8 months to commence on 18 October 2011 expiring 17 June 2012
Count 4 (17 July 2010)
Section 61M(2) - touched victim on her genitals:
Limiting term of 8 months to commence on 18 December 2011 expiring 17 August 2012
Count 6 (18 July 2010)
Section 61M(2) - touched victim on her genitals:
Limiting term of 8 months to commence on 18 February 2012 expiring 17 October 2012
Victim 2
Count 10 (13 February 2011)
Section 61M(2) - touched victim on her genitals:
Limiting term of 5 months to commence on 18 June 2012 expiring 17 November 2012
Count 11 (13 February 2011)
Section 61M(2) - forcing victim's hand onto his penis:
Limiting term of 8 months to commence on 18 July 2012 expiring 17 March 2013
Count 8 and count 9 (13 February 2011)
Section 61M(2) - 'simulated intercourse' and opening the victim's vagina with fingers and looking in, without actual penetration:
Limiting terms of 14 months to commence on 18 August 2012 expiring 17 October 2013
Orders
The orders I would propose are:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The limiting terms imposed by Sides DCJ on 8 February 2013 are quashed.
4. In lieu thereof, the following limiting terms are imposed:
(i) On counts 1, 3 and 5 limiting terms of one month, to commence on 18 October 2011 expiring 17 November 2011.
(ii) On count 2 a limiting term of 8 months to commence on 18 October 2011 expiring 17 June 2012.
(iii) On count 4 a limiting term of 8 months to commence on 18 December 2011 expiring 17 August 2012.
(iv) On count 6 a limiting term of 8 months to commence on 18 February 2012 expiring 17 October 2012.
(v) On count 10 a limiting term of 5 months to commence on 18 February 2012 expiring 17 November 2012.
(vi) On count 11 a limiting term of 8 months to commence on 18 July 2012 expiring 17 March 2013.
(vii) On count 8 and 9 limiting terms of 14 months to commence on 18 August 2012 expiring 17 October 2013.
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Decision last updated: 09 October 2013
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