RWB v R - [2008] NSWCCA 93

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
BRADBERY v REGINA [2008] NSWCCA 93
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/3551

HEARING DATE(S):
4 March 2008

JUDGMENT DATE:
23 May 2008

PARTIES:
BRADBERY v Regina

JUDGMENT OF:
Mason P Latham J Mathews AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/31/0017

LOWER COURT JUDICIAL OFFICER:
English DCJ

LOWER COURT DATE OF DECISION:
16 July 2007

COUNSEL:
Crown: L. Wells
Applicant: A. Haesler SC

SOLICITORS:
S. Kavanagh (Director of Public Prosecutions)
S. O'Connor (Legal Aid Commission of NSW)

CATCHWORDS:
CRIMINAL LAW: Sentence – sexual assaults committed in the early 1970’s – sentencing to replicate sentencing practices of the earlier time – non-availability of remissions not a relevant matter – non-parole period to reflect pattern of sentencing at that time

LEGISLATION CITED:
Crimes (Administration of Sentences) Act 1999
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Regina v Edwards (1996) 90 ACR 510
Regina v Dib NSWCCA 13 Sep. 1991
R v MJR (2002) 54 NSWLR 368
AJB v R [2007] NSWCCA 51
R v Johnson NSWCCA 16 May 1997

TEXTS CITED:

DECISION:
Application for leave granted, the appeal allowed and the sentences imposed in the District Court be quashed. New sentences imposed.-

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3551
MASON P
LATHAM J
MATHEWS AJ
Friday 23 May 2008

BRADBERY v Regina

MASON P: I agree with Mathews AJ
LATHAM J: I agree with Mathews AJ
MATHEWS AJ: The applicant seeks leave to appeal against the severity of sentences imposed by Judge English of the Newcastle District Court on 16 July 2007 in relation to four charges of indecently assaulting a female under the age of 16 years. The offences were alleged to have taken place on various dates between the 1 January 1970 and 27 April 1975. They were laid under the now repealed s 76 of the Crimes Act 1900.
The victim in relation to each offence was the offender’s youngest daughter. The offences took place when she was between 8 and 12 years old. Briefly, the activities covered by each of the four charges were as follows.
The first offence took place when the victim was about 8 years old. At that stage she would often have a bath while her mother was preparing dinner. Her father came into the bathroom, sat down beside the bath and touched her on the outside of her vagina with his fingers.
The second offence took place when the victim was 9 or 10 years old. She was called into the laundry by the applicant. He had his shorts open and his penis exposed. He took the victim’s hands and placed them around his penis and testicles. He then made her rub these areas with her hands.
The third offence took place when the victim was 11 or 12 years old. One day after she had returned home from school, the applicant approached her while she was in the lounge room alone watching television. He started to wrestle with her in a joking manner. During the course of this he put his hand into her underpants and touched her on the outside of her vagina with his fingers.
The fourth offence occurred during this same period. The victim was again approached by the applicant one afternoon after returning from school. He took off her underpants and performed cunnilingus with her. He was masturbating at the time. Her vagina was sore after this occasion.
No further sexual approaches were made to the complainant after she turned 13. More than two decades then passed before these offences first came to light. In the mid-1990s the victim confronted the applicant about the offences in the presence of his wife, the victim’s mother. It took another ten years before she lodged any official complaint about the applicant’s activities. In December 2005 she first reported the matter to the police. A telephone intercept warrant was obtained in 2006 to intercept calls between the victim and the applicant. Two calls were recorded in which the applicant admitted to at least some of the offences.
The applicant was in due course arrested and charged with these four offences. He pleaded guilty to all of them.
In relation to each of the first three offences her Honour sentenced the applicant to fixed terms of 9 months imprisonment. The first sentence commenced on 16 July 2007. The second and third sentences were each accumulated on the previous sentence by a period of three months. Her Honour regarded the fourth charge as the most serious. In relation to that charge she sentenced the applicant to a non-parole period of 9 months commencing on 16 July 2008 and expiring on 15 April 2009. The balance of term was 9 months expiring on 15 January 2010. Accordingly the aggregate sentences consisted of a non-parole period of 1 year and 9 months with a balance of term of 9 months.

The applicant submitted that the sentences imposed by her Honour were individually and collectively too severe in that:
a.            Her Honour failed to have regard to the pattern of sentencing that applied at the time the offences were committed.
b.            Her Honour failed to give due and proper weight to the impact of the extraordinary delay in bringing these matters to court.
c.            Her Honour failed to give due and proper weight to the extraordinary impact the imprisonment of the applicant would have on his wife, for whom he was the principal carer.
Before discussing the submissions on appeal I should say something briefly about the applicant’s background. The applicant was born in 1928 and is 80 years old. He was in the workforce for most of his adult life. He has been retired for 17 years and is receiving an aged pension. He has no prior criminal convictions of any kind.
The applicant has been married for 60 years. He and his wife have five adult children as well as numerous grandchildren and great-grandchildren. The victim of the current offences was his youngest daughter. The family has been completely split since these offences came to light. The great majority of family members have estranged themselves from the applicant and his wife. The few family members who have remained loyal to them have been ostracised by the others. This has made it extremely difficult, particularly for the applicant’s wife. She has chosen to stand by her husband but at very considerable personal sacrifice. Both of them say that they have attempted self-harm because of the stresses associated with these offences.
I return to discuss the grounds of appeal. As will be seen from later discussion, I consider that there is substance in the first ground, particularly when taken in conjunction with the matters raised under the second ground. The third ground can be disposed of briefly. Under this ground the applicant submits that the sentencing judge failed to give appropriate weight to the impact of the applicant’s imprisonment upon his wife, for whom he was the principal carer.
Her Honour had before her a report dated 12 March 2007 from Mrs Bradbery’s General Practitioner. This described the various medical complaints suffered by Mrs Bradbery, including gastro-oesophageal reflux, dizziness, anxiety and depression as well as disabling osteoarthritis. Mrs Bradbery was dependant upon her husband to assist in performing almost all her activities of daily living. Her dependency upon her husband had been exacerbated by the abandonment of both of them by family and friends after the current offences came to light.
Her Honour in her reasons for sentence referred to Mrs Bradbery’s dependence upon the applicant but concluded that this was not such as to amount to exceptional circumstances in mitigation of sentence.
There is no doubt that the applicant’s wife will continue to suffer extreme hardship during the course of the applicant’s imprisonment. However this is not sufficient to require an adjustment in sentence. As Gleeson CJ said (James and Ireland JJ agreeing) in Regina v Edwards (1996) 90 ACR 510 at 515):
“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.”
As the court confirmed in Regina v Dib NSWCCA 13 Sep. 1991:
“It is only in circumstances of exceptional hardship to the applicant’s family the court will take into account that hardship in mitigation of sentence. The hardship must be so ‘extreme’ – going so far beyond the sort of hardship which inevitably results to a family when the breadwinner is imprisoned that a ‘a sense of mercy or of affronted common sense imperatively demands that they (the sentencing judges) should draw back’.”
In my opinion the hardship suffered by the applicant’s wife as a result of his incarceration is not so exceptional as to enable it to be taken into account on sentence. Accordingly I can find no substance in the third ground of appeal.
I return to consider the first two grounds of appeal.
In relation to the first ground, Mr Haesler SC, who appeared for the applicant, submitted that her Honour did not have the benefit of sufficient information about the pattern of sentencing in the early 1970’s. At that time, the maximum penalty for an offence under s 76 was five years imprisonment. Offences included under that section encompassed a wide range of conduct which now falls within the definition of “sexual intercourse” in s 61H of the Act. Indeed, all non-consensual sexual conduct other than penile/vaginal penetration was included within the offence of indecent assault. The applicant referred us to a number of statistics and other material relating to sentences for s 76 offences committed in the early 1970’s, none of which was provided to her Honour. It was submitted that this information should have been available to the sentencing judge.
The Crown did not dispute that a sentencing Court dealing with old offences should, so far as possible, replicate the sentencing practices of the period when the offences were committed (See R v MJR (2002) 54 NSWLR 368). However it was submitted that her Honour did refer to the regime of that time, including the maximum penalty which then applied, and the fact that offences under s 76 included a more serious range of conduct than now applies. The Crown also submitted that, once the applicant conceded (as he was said to have done) that a custodial sentence was merited, the statistics provided little support for his submissions. Of the small sample of offenders making up the statistics, half of those who were imprisoned were sentenced to between two and four years imprisonment.

The applicant’s submissions pointed out that sentences imposed before 1989 were generally reduced by one-third because of remissions. It was submitted that her Honour should have similarly reduced the sentence she imposed in order to take account of this matter. However the weight of authority is firmly against this submission. A similar issue arose in AJB v R [2007] NSWCCA 51. In that case, Howie J. (with whom Adams and Price JJ, agreed) said that it was inappropriate for a later sentencing court “to try to replicate, not only the sentencing practices of 1982, but also executive practices of that time in respect to the treatment of prisoners.”
The applicant’s primary submission was that, while her Honour paid lip service to the sentencing practices of the 1970’s, the sentences she in fact imposed were more consistent with today’s sentencing patterns. Moreover, her Honour overstated the seriousness of all the offences, particularly the first three, when she described them as being within the upper range of objective seriousness.
Both these submissions have substance. I shall deal first with the second matter, namely her Honour’s categorisation of all four offences as being “objectively very serious indeed.” In support of this assessment, her Honour referred to the age of the complainant when the offences took place and the fact that the offender was her natural father and in a position of ultimate trust in relation to her. These comments were unexceptionable. However, given the extremely wide range of offences covered by s 76 at that time, it was inaccurate to describe the offences committed by the applicant as being “within the upper range of objective seriousness.” The first three offences in particular were, objectively speaking, within the lower range of seriousness for these offences.
Her Honour clearly recognised that the fourth offence was much more serious than the first three. She said so in her reasons, and this was also represented in the sentences themselves. The total sentence imposed in relation to the fourth charge was double that imposed in relation to each of the first three.

I come now to discuss the matters raised by Mr. Haesler under the first ground, namely that the sentences were too severe in that the pattern of sentences imposed by her Honour did not in fact accord with sentencing practices of the early 1970’s.
Her Honour said in her reasons that she was allowing a 25% discount on account of the applicant's pleas of guilty. The undiscounted sentences would therefore have been 12 months for each of the first three offences and 24 months for the fourth offence. The total aggregate sentence would have been 3 years and 4 months, with a non-parole period of 2 years and 4 months. Certainly a discount of this magnitude might not have been given in the 1970s, but it shows that her Honour's starting point was too high, given the extremely wide range of offences covered by s 76 and the fact that the maximum sentence was 5 years imprisonment. In my view the sentences imposed by her Honour, both individually and cumulatively, were manifestly excessive, particularly in the light of the matters raised under the second ground of appeal.

At this point it is relevant to discuss the second ground of appeal. This ground relates to the consequences of the “extraordinary delay” in bringing these matters before the court. The applicant acknowledged that the mere fact of a time lapse, even one of over thirty years, between the commission of an offence and the sentencing for it will not in itself operate as a mitigating factor unless it has resulted in some unfairness to the offender (R v Johnson NSWCCA 16 May 1997). However the fact that a lengthy period has elapsed without any further offences being committed might well enable a court to make positive findings as to the rehabilitation of the offender. Further – and this is particularly relevant to the present applicant – the effluxion of time can mean that the offender has reached such an advanced age and precarious state of health that prison will be particularly onerous.
As to the first of these matters, Mr Haesler submitted that her Honour gave insufficient weight to the fact that the applicant voluntarily desisted from any further sexual approaches to his daughter at about the time she turned thirteen, and that he has led a blameless life ever since. This, it was submitted, is a clear indication of rehabilitation which should have been taken into account in his favour. Her Honour however appeared to make, if anything, negative findings on the issue of rehabilitation. She referred to the delay of ten years between the time the complainant first raised the offences with the offender in the mid 1990’s and the time that she made a formal complaint to the police. Her Honour commented that during this period “the offender took no steps to rehabilitate himself, such as attending counselling nor to disclose his offending behaviour to the authorities. He did not seek help for his daughter.” By 1995, twenty years had elapsed since the last of the offences committed by the applicant. His daughter was well into her thirties. It was unrealistic at that stage to expect the applicant to take the type of steps referred to by her Honour.

This factor alone would probably not have been sufficient to warrant appellate intervention. However it is relevant to the extent of leniency which should have been afforded to the applicant, particularly in the setting of his non-parole period, and to the issue (which I shall discuss shortly) relating to the pattern of non-parole periods in the 1970’s.
The other consequence of the extensive time lapse between the commission of the offences and the sentencing of the applicant relate to his age and state of health. In this regard a medical report was tendered before her Honour showing that the applicant suffered from prostate cancer that was currently under control but which required monitoring every six months. He also suffered type diabetes which was controlled by diet. Her Honour acknowledged that his age and frailty would make his time in custody more onerous. She treated this as relevant to a finding that special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 which justified altering the statutory ratio between the non-parole period and the total sentence.
This brings me to discuss a further basis upon which I consider that the appeal should be allowed. In my view her Honour erroneously failed to apply the sentencing patterns which applied in the 1970’s in relation to the setting of the applicant’s non-parole period.
In the 1970’s there was no statutory equivalent of s 44. The practice of fixing non-parole periods was significantly more liberal then it is under the present legislation (See AJB at [36]). In AJB the court was considering sentences imposed in relation to sexual offences committed in 1982. Howie J made the following observations:
“37. It seems to me that this Court should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant. It can do so on the basis that special circumstances under s 44 are to be found in the fact that there was a different sentencing practice in relation to fixing a non-parole period in 1982 which did not require a finding of special circumstances in order to avoid a statutory relationship between the non-parole period and the balance of the term…
…..
39. It seems that in 1982 a non-parole period was fixed at somewhere between a third and a half of the term of the sentence. Clearly one consideration in determining that non-parole period was the seriousness of the offence and the requirement of general deterrence. General deterrence was not a significant matter in the applicant’s case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct….”
No material was put before us as to the pattern of non-parole periods in the 1970’s. I think it is reasonable to assume that it was in the same order as that which applied in 1982, namely somewhere between one third and a half of the total sentence.
No mention of this matter was made by her Honour when dealing with special circumstances under s 44. She discussed the matter as follows:
“I am asked to find special circumstances and I will do so, they being the age of the offender, the fact that this is the first time he will find himself in custody and the need for a lengthier period on parole to ensure his attendance at the appropriate sex offenders’ program. Also the fact that even his time spent in custody will be spent on protection will be more onerous. That is because of his age and frailty, he will have difficulty defending himself even against other protection inmates.”

This passage clearly indicates, in my view, that her Honour was applying current sentencing practices when setting the applicant’s non-parole period. This is supported by the proportion of the non-parole period to the total sentence. Even after a finding of special circumstances, the overall non-parole period comprised 70% of the total sentence.
Error having been shown, in my opinion the appeal should be allowed. The applicant therefore comes to be re-sentenced by this Court. I propose that we impose fixed terms of 6 months in relation to each of the first three charges and a total sentence of 16 months in relation to the fourth charge, comprising a non-parole period of 4 months with a balance of term of 12 months. The aggregate sentence will be 2 years with a non-parole period of 1 year.
In my opinion the application for leave should be granted, the appeal allowed and the sentences imposed in the District Court be quashed. In lieu the following sentences should be imposed:
On the offence under s 76 Crimes Act 1900, committed between 1 January 1970 and 24 April 1971, the applicant is sentenced to a fixed term of 6 months imprisonment, to date from 16 July 2007, expiring 15 January 2008.
2. On the offence under s 76 Crimes Act, committed between 27 April 1971 and 31 December 1973, the applicant is sentenced to a fixed term of 6 months imprisonment to date from 16 August 2007, expiring 15 February 2008.
3. On the offence under s 76 Crimes Act, committed between 1 January 1973 and 27 April 1975, the applicant is sentenced to a fixed term of 6 months imprisonment, to date from 16 September 2007, expiring 15 March 2008.
4. On the offence under s 76 Crimes Act committed between 1 January 1973 and 27 April 1975, the applicant is sentenced to a non-parole period of 4 months to date from 16 March 2008, expiring 15 July 2008, with a balance of term of 12 months, expiring 15 July 2009. The applicant is entitled to release on 16 July 2008.

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AMENDMENTS:

31/08/2009 - Amendment made to case title to remove applicants first and middle name to prevent identification of victim - amendment made to short case title on coversheet; amendment made to parties on coversheet; amendment made to citation on coversheet; amendment made to case name citation before judgment in paragraph 1. - Paragraph(s) Coversheet

LAST UPDATED:
31 August 2009