SM v The Queen

[2014] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

SM v R [2014] NSWCCA 137

Hearing dates:

11 December 2013

Decision date:

25 July 2014

Before:

Hoeben CJ at CL
Simpson J
Hall J

Decision:

(1) Leave to appeal granted

(2) Appeal dismissed

Catchwords:

CRIMINAL LAW - sentence appeal - application for leave - six counts of assault female and commit act of indecency contrary to s 76 of the Crimes Act 1900 - two counts of sexual assault and commit act of indecency contrary to s 61E(1) of the Crimes Act 1900 - two counts of carnal knowledge contrary to s 67 of the Crimes Act 1900 - additional matters taken into account on a Form 1 - sentencing judge did not err in finding that delay did not mitigate the penalty - sentencing judge did not err in failing to take into account the likelihood that the applicant would serve his sentence in protective custody - sentencing judge did not err in failing to reduce the sentence imposed on account of past assistance to authorities in circumstances where no submission was made to the sentencing judge on the matter of past assistance - sentencing judge properly took into account the youthfulness of the applicant - leave granted - appeal dismissed

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bradbery v Regina [2008] NSWCCA 93
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Todd [1982] 2 NSWLR 517
RJP v Regina [2006] NSWCCA 149
RJT v R [2012] NSWCCA 280
Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

SM (Applicant)
Regina (Crown)

Representation:

Counsel:
I McLachlan (Applicant)
S Herbert (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2012/48803

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-03-22 00:00:00

Before:

English DCJ

File Number(s):

2012/48803

Judgment

1. HOEBEN CJ at CL: I agree with Hall J.

1. SIMPSON J: I agree with Hall J.

1. HALL J: The applicant, SM, by Notice dated and filed on 23 September 2013, seeks leave to appeal against a total effective sentence of imprisonment of 7 years 9 months commencing on 22 March 2013 and expiring on 21 December 2020, with a total non-parole period of 3 years 9 months expiring on 21 December 2016 imposed by the District Court on 22 March 2013.

1. The applicant entered guilty pleas to the following offences:

Count 1: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 2: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 3: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 4: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 5: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 6: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 7: Carnal Knowledge (s.67 of the Crimes Act 1900);

Count 8: Carnal Knowledge (s.67 of the Crimes Act 1900);

Count 9: Sexual assault (cat 4) assault and commit act of indecency (s.61E(1) of the Crimes Act 1900); and

Count 10: Sexual assault (cat 4) assault and commit act of indecency (s.61E(1) of the Crimes Act 1900).

1. There were four matters on a Form 1 involving Assault Female and Commit Act of Indecency, contrary to s 76 Crimes Act 1900 occurring in the period 1 September 1977 to 31 December 1979 to be taken into account in respect of Count 7.

1. On 22 March 2013 the applicant was sentenced as follows:

Count 1: Sentenced to a fixed term of imprisonment for 6 months commencing on 22 March 2013 and expiring on 21 September 2013;

Count 2: Sentenced to a fixed term of imprisonment for 12 months commencing on 22 April 2013 and expiring on 21 April 2014;

Count 3: Sentenced to a fixed term of imprisonment for 12 months commencing on 22 May 2013 and expiring on 21 May 2014;

Count 4: Sentenced to a fixed term of imprisonment for 18 months commencing on 22 June 2013 and expiring on 21 December 2014;

Count 5: Sentenced to a fixed term of imprisonment for 2 years commencing on 22 July 2013 and expiring on 21 July 2015;

Count 6: Sentenced to a fixed term of imprisonment for 2 years commencing on 22 August 2013 and expiring on 21 August 2015;

Count 9: Sentenced to a fixed term of imprisonment for 2 years commencing on 22 September 2013 and expiring on 21 September 2015;

Count 10: Sentenced to a fixed term of imprisonment for 6 months commencing on 22 December 2013 and expiring on 21 June 2014;

Count 7: Sentenced to a non-parole period of 3 years commencing on 22 November 2013, with an additional term of 3 years to expire on 21 November 2019; and

Count 8: Sentenced to a non-parole period of 3 years commencing on 22 December 2013, with an additional term of 4 years to expire on 21 December 2020.

1. The offences to which the applicant pleaded guilty occurred between September 1977 and December 1983.

1. The maximum penalty for an offence Assault Female Contrary to s 76 Crimes Act 1900 was 6 years imprisonment; for an offence of Carnal Knowledge contrary to s 67 Crimes Act was penal servitude for life; and for an offence of Indecent Assault contrary to s 61E(1) Crimes Act was 6 years imprisonment.

1. The applicant was allowed a 25% discount on sentence in respect of his guilty pleas. The total effective sentence imposed of 7 years 9 months with an effective non-parole period of 3 years 9 months reflects an alteration of the statutory ratio to 48.4%. This, the Crown observed, reflects the sentencing practices for historical offences and special circumstances.

1. The Crown further observed that there was an error in charging the applicant in relation to the offence (identified as Sequence 14, being Count 9) with an offence of indecent assault pursuant to s 61E(1) Crimes Act with a maximum penalty of 6 years. The offence was constituted by an act of fellatio which at that time was within the definition of sexual intercourse and the appropriate charge was s 61D(1) Crimes Act with a maximum penalty of 10 years imprisonment. The penalty imposed by the sentencing judge for this offence was a 2 year fixed term commencing on 22 September 2013 and expiring on 21 September 2015. Due to the structure of the sentences imposed, this does not have any operational or practical effect, being within the period covered by the accumulation of other sentences.

1. The applicant relied upon five grounds of appeal in the following terms:

"1. Her Honour erred in finding that the delay in this matter was not a mitigating factor.

2. Her Honour erred in failing to take into account the likelihood that the applicant would serve his sentence in protective custody.

3. Her Honour erred in failing to reduce the sentences imposed on account of past assistance to the authorities.

4. Her Honour erred in failing to properly take into account the youthfulness of the applicant.

5. The sentences imposed were manifestly excessive having regard to the sentencing practice at the time of the offending."

The Agreed Facts on Sentence

1. Whilst the sentencing judge when formulating the sentences stated that he took the Form 1 matters into account in relation to the offence the subject of Count 8 instead of Count 7, given the structure of the sentences imposed including in particular the substantial concurrency between the sentences imposed in respect of Counts 7 and 8, there is no basis upon which the error could be said to have given rise to any practical injustice or disadvantage to the applicant and no argument was in fact directed to that aspect.

1. The Crown tendered a number of documents at the sentencing hearing (Exhibit A) which included an Agreed Statement of Facts.

1. The applicant's date of birth is 21 June 1963. The victim was the applicant's stepsister. The victim's parents separated in 1976 when she was four years of age. Between August 1977 and November 1977 the victim's mother and her two older brothers moved in with her mother's new partner who had three children including the applicant then aged 14 years.

1. The victim's mother married her partner in 1978. The offences commenced in September 1977 when the victim was aged 5. They ceased in December 1983 when the victim was aged 11 years and the applicant was aged between 19 and 20.

1. I reproduce below the Agreed Facts part of Exhibit A in the proceedings before the District Court so far as the individual offences are concerned:

Offence - Indecent Assault-s.76 [FORM 1]

5. On a day between 1 September 1977 and 31 December 1977 the Accused (then aged 14) took the Victim (then aged 5) into his bedroom. While they were alone the Accused touched the Victim's vagina and rubbed her clitoris very hard. This resulted in her vagina becoming red and swollen.

6. While he did this he asked the victim, "How does that feel? Do you like it? The victim recalls that this was the first time this offence occurred. The Accused then threatened her by saying words similar to "If you tell anyone, youse will have to move out. Do you want that? Do you want to lose your sisters? Do you want your family to have nowhere to live?

7. As a result the victim felt threatened and did not tell anyone what the Accused did to her, she feared that it would cause the break up of the family.

8. After this first incident, the Accused repeated the same acts of touching the Victim's vagina, at times, about twice a week.

Offence - Indecent Assault-s.76 [Count 1]

9. On a day between 1 October 1977 and 31 January 1978, a few weeks after the first incident, the Accused (then aged 14) took the Victim (then aged 5) into the home office. The Accused placed the Victim's hand over his penis and got her to rub her hands backwards and forwards along the length of his penis.

Offence -Indecent Assault-s.76 [Count 2]

10. The offence occurred on a day between 1 October 1977 and 31 January 1978, when the victim (then aged 5) and the Accused (then aged 14) were both in the home office.

11. The Accused asked the Victim to remove her clothing. She did, and he then inserted two fingers and then three fingers into her vagina. She experienced pain when he did this.

12. The victim specifically recalls this was the first time the Accused penetrated her with three fingers because it hurt much more than on the occasions when he had inserted two fingers.

Offence -Indecent Assault-s.76 [FORM 1]

13. Between 1 November 1977 and 31 March 1978 the Accused (then aged 14) took the Victim (then aged 5) into the home office.

14. The Accused inserted three of his fingers into the Victim's vagina. The Victim recalls that on this occasion the accused stopped when the Victim screamed out in pain.

Offence - Indecent Assault-s.76 [Count 3]

15. Within the next couple of weeks, on a day between 1 November 1977 and 31 March 1978 while the Accused (then aged 14) and Victim (then aged 5) were in the home office, the Accused again inserted his fingers into the complainant's vagina. Victim screamed out "Stop, Stop it really hurts. I don't like it". The Accused stopped. He then penetrated with his fingers the Victim's vagina again and made her rub his penis until he ejaculated.

Offence -Indecent Assault-s.76 [Count 4]

16. A few months later, on a day between 1 January 1978 and 31 July 1978, the Accused spoke to the Victim about oral sex and told her he wanted her to 'suck his penis'. He told her when his 'penis was in her mouth that he wanted to feel her teeth softly rubbing on his penis'.

17. The Accused (then aged between 14-15) forced the victim (then aged between 5-6) to kneel down on the floor while he remained standing. He pushed the back of her head forward until his whole penis was in her mouth. At the same time, he thrust himself backward and forwards towards the Victim's mouth. The Victim felt she couldn't breathe. She tried to get her head away and get his penis out of her mouth. The Accused kept pushing the Victim's head forward onto his penis.

18. The Victim said she was gagging and vomiting but the Accused continued. The victim said she vomited from the sides of her mouth and had to swallow part of the vomit because the Accused continued to force his penis inside her mouth to her throat. He continued until he ejaculated inside her mouth and on her face.

19. This occurred on an almost daily basis.

Offence -Indecent Assault-s.76 [FORM 1]

20. Between 1 August 1979 and 31 August 1979 the family had professional family photographs taken at their home. Before the photographs were taken, the Accused (then aged 16) took the Victim (then aged 7) into his bedroom and closed the door.

21. The Accused forced the Victim to perform fellatio on him. The Victim knelt down on the floor while the Accused stood in front of her and put his penis inside her mouth. He pushed her head back and forth until he heard someone near by.

Offence -Indecent Assault-s.76 [Count 5]

22. On a day between 1 January 1979 and 31 December 1979, the Accused (then aged between 15-16) introduced the Victim (then aged between 6-7) to the act of performing cunnilingus and fellatio simultaneously (the act described as '69') and forced the Victim to participate.

23. On this occasion, whilst in the home office, the Accused instructed the Victim to remove her clothing and lay on top of him lay on top of him, opposite to his face and face his penis. When the Victim did not grasp his instructions, the Accused got angry and yelled at her.

24. After the Victim realised what she had to do, the Accused instructed the Victim to suck his penis the way that she does standing up. Whilst Victim continued to perform fellatio, the Accused performed Cunnilingus by licking the Victim's vagina.

25. This continued for a period of time until the Accused was about to ejaculate, he asked the Victim to turn around and he ejaculated on her lower back.

Offence -Indecent Assault-s.76 [Count 6]

26. The Victim recalls that oral sex occurred on a daily basis, but that mutual oral sex (the act described as '69') occurred about once per fortnight.

27. About a week after the first instance of mutual oral sex, on a day between 1 January 1979 and 31 December 1979, the Accused (then aged between 15-16) was in his bedroom with the Victim (then aged between 6-7). At his direction a further act of mutual oral sex occurred.

28. This was followed by the accused telling the victim to get on her knees and continue to perform fellatio upon him while he remained standing. The Victim continued until the Accused ejaculated inside the Victim's mouth and over her face.

Offence - Indecent Assault-s.76 [FORM 1]

29. On a day between 1 January 1979 and 31 December 1979, the Accused (then aged between 15-16) sat opposite the Victim (then aged between 6-7) at the dining table at dinner time. He, placed his bare foot under the table between the Victim's legs. He was able to push her underwear aside and insert his toe into her vagina and rub, her clitoris.

30. The Victim was shocked as this was the first time the Accused penetrated her with people around.

Offence - Carnal Knowledge-s.67 [Count 7]

31. After the accused returned to the family home after a short absence he asked the Victim "Have you had a period yet?", the victim replied "No, Why?".

32. On a day shortly after that conversation, between 1 January 1980 and 31 December 1981, the Accused (then aged between 16-18) and the Victim (then aged between 7-9) were in the home office.

33. The Accused closed the door and told the victim to lay on her stomach on the floor behind the door. He then bent over the top of the victim and lifted her up so she was on her hands and knees.

34. The Accused then inserted his erect penis inside the Victim's vagina and thrust himself backwards and forwards causing her to yell out in pain. She tried to crawl away from the Accused but he held her around the waist and continued to have intercourse with her.

35. The Victim was crying and the Accused said, "It won't be long, not much longer". After some time, the Accused removed his penis and ejaculated all over the Victim's lower back. The Accused then wiped the Victim's back with a cloth.

36. The Accused tried to console the Victim but then he told her "if she ever told anyone about what he had done the family would be separated". Upon hearing this the Victim felt scared and frightened.

Offence -Carnal Knowledge-s.67 [Count 8]

37. The accused continued to perform oral sex on the victim on almost a daily basis. On a day between 1 February 1980 and 1 July 1982 the Accused (then aged between 16-19) called the Victim (then aged between 7-9) to his bedroom.

38. The Accused told the Victim to lay on her stomach on the floor and told her what he wanted her to do to him. The Victim told the Accused that she didn't want him to do it to her.

39. The Accused told the Victim that he wouldn't put his penis in as far this time, so it wouldn't hurt. The Victim insisted she didn't want to do it but then complied and laid on the floor.

40. The Accused lifted the Victim up on to her hands and knees and inserted his penis into her vagina and thrust backwards and forwards for a period of time.

Offence -Indecent AssauIt-s.61E (1) [Count 9]

41. On a night between 1 January 1983 and 31 December 1983 in the front lounge room, the Victim (then aged between 10-11) was on her knees performing fellatio on the Accused (then aged between 19-20).

42. As the Victim was performing fellatio, the Victim's stepsister ... (then aged 15) walked in and witnessed the incident. The Victim recalls [her stepsister] screamed when she saw them and ran out the room.

Offence -Indecent Assault-s.61E (1) [Count 10]

43. On a day between 1 January 1983 and 31 December 1983 while in the Accused's (then aged between 19-20) bedroom he told the Victim (then aged between 10-11) to remove her upper body clothing.

44. The Victim took off her top off and the accused asked her to lay on her back on the floor.

45. While the Victim lay on the floor the Accused straddled by placing his knees on the floor beside her waist. He then pulled the Victim's breasts together tightly and placed his penis between her breasts and moved it backward and forward between them.

Complaint

46. The Victim says she first complained about the abuse to her childhood friend [JF] and her cousin [LK]. Both are now deceased.

47. The Victim says that when she was 7 or 8 years of age she also told a close childhood friend [TK] that "Stephen hurts me". When the victim and [TK] were 19 years old the Victim told her that she had been molested by the Accused.

48. The Victim says she told her cousin [LR] on a day between 1984 and 1985 that "Stephen touched me in places that I don't like ".

Admissions

49. Two telephone conversations between the Victim and Accused were lawfully intercepted.

50. The first conversation took place on 21 July 2009. Because of a technical malfunction only the Victim's side of the conversation was recorded. However the Victim said the Accused admitted to wrong-doing of some kind, without being specific. According to the Victim the Accused said he does not remember much about that time in his life, but then said: [SM] (the accused sister) won't have anything to do with him because of it, he doesn't want to have children because of it, he hasn't done it to anyone else, and his uncle did it to him.

51. The second conversation took place on 11 August 2009. Both parties were recorded. The Accused said he felt that he was facing his demons after the earlier conversation and that what he did to her turned him into something he didn't like. He said he "fucked up" the Victim's life. He said, "I've shared the fact that I was, I molested my step sister with many many people". When asked why he selected the victim, he conceded it was because "you're an easy target". He denied doing anything that could have made the victim pregnant, and said "There was only one occasion where I actually tried to enter you". He agreed with the comment, "There were a lot of oral stuff'.

52. In a recorded conversation with the Victim on 22 July 2009, the Accused father, [RM], states the Accused admitted the allegations were true.

53. Sometime in the middle of 1994 when the Victim's mother [DM] found out about the abuse she confronted the Accused. She grabbed the Accused by the front of the shirt and said "You've been interfering with my daughter". The Accused cried and said "I'm sorry, I'm sorry, I'm sorry. I love you. I'm sorry. I'm sorry. I'm sorry".

54. The accused was then arrested on the 5 April 2012 and charged.

The Grounds of Appeal

Ground 1: Her Honour erred in finding that the delay in this matter was not a mitigating factor

1. In her remarks, the sentencing judge observed:

"... There has been a considerable delay between the commission of these offence[s] and sentence. The delay has not necessarily worked to the advantage of the offender as he has had a troubled life for many years.

These matters were raised with him in the early 1990s. He must surely have realised the possibility of the victim coming forward and making a formal complaint. He had an opportunity then to make a complete disclosure of the extent of his criminality. He clearly chose not to do so, although he was before the courts on many, many occasions and, no doubt, would have had ample opportunity to raise with his lawyers over the years what he knew about his conduct between the ages of fourteen and twenty. Perhaps he hoped the matter would simply go away, yet he knew full well the consequences for him because of what had happened to his uncle who had sexually assaulted him.

This is not a matter, in my view, where delay mitigates the penalty. The sentencing of offenders for historical sexual assaults is always a difficult task. These offences were committed between 1977 and 1983. For some of that time the offender was under the age of eighteen; indeed, even under the age of sixteen ...". (Remarks on Sentence at pp 21-22).

1. In the written submissions for the applicant it was noted that the victim's mother confronted the applicant regarding his offending conduct in the early 1990s and that lawfully intercepted telephone conversations between the victim's mother and the applicant took place in July and August 2009 in which the applicant admitted to some kind of "wrong-doing".

1. The applicant was arrested and charged on 5 April 2012.

1. It was submitted for the applicant that a substantial delay ought to have been taken into account as a mitigating factor.

1. Mr McLachlan of counsel, who appeared in this Court on behalf of the applicant, in his oral submissions referred to the agreed facts which recorded two lawfully intercepted telephone conversations having taken place, on 21 July 2009 and 11 August 2009. The applicant made admissions in the second of those two conversations: Agreed Facts at [51].

1. Mr McLachlan observed that it was then almost three years before the applicant's arrest on 5 April 2012: Agreed Facts at [54]. The submission on this ground was said to be that the latter period of "delay" subsequent to the victim's mother raising the allegations with him, and the almost three years delay before the applicant was charged, represented overall a considerable delay during which the applicant would have been left in a state of "uncertain suspense as to what would happen to him and it wasn't a case of him being content to remain silent in that regard ...": T 2, 11 December 2013.

1. As to the absence of evidence from the applicant of him having lived in ongoing suspense or uncertainty of whether he would be prosecuted, Mr McLachlan relied upon the report of Ms Anita Duffy, psychologist, dated 5 February 2013, and the references that were tendered which referred to the applicant being "relieved that it was all final [sic] all out in the open" In Mr McLachlan's submission "... the inference can be drawn from that is that he was in a certain degree of what's referred to as uncertain suspense": T 2.

1. In my assessment, Ground 1 may be readily dealt with on two bases. First, I do not consider that there was evidence that the applicant was left in a "state of uncertain suspense" of the kind referred to by Street CJ in R v Todd [1982] 2 NSWLR 517 at 519. I have taken into account the report of Ms Duffy in so concluding. I do not consider that that report provides any assistance to the applicant on this ground. Second, there was no delay of the kind referred to in Todd, supra, arising from the operation of the criminal justice system such that the applicant's fate or position was not determined for many years.

1. Finally, as the Crown observed, the applicant had the benefit of any delay resulting in findings that he had good prospects of rehabilitation.

1. There was, in my opinion, no error in the sentencing judge's finding that delay did not mitigate the penalty. This ground should be dismissed.

Ground 2: Her Honour erred in failing to take into account the likelihood that the applicant would serve his sentence in protective custody

1. In relation to this ground, there is a question as to whether the issue of protective custody was raised in submissions before the sentencing judge.

1. In this respect, Mr McLachlan drew attention to two matters. The first was the applicant's evidence before the sentencing judge on the issue of protective custody the evidence was brief. It was as follows:

"Q. If you were to receive a term of imprisonment for these offences, what is your attitude in relation to protective custody?

A. I would be seeking it.

Q. And that's on what basis?

A. Basis of the, the nature of the crimes and also because I've been in protective custody before." (T 4, 14 February 2013)

1. In the written submissions for the applicant in this Court, it was stated that the issue of the applicant serving his custodial sentence in protective custody was otherwise raised in submissions. However, the only reference cited in this respect was a reference to protective custody in the Crown's written submissions before the sentencing judge at p 17. There, the Crown referred to the fact that it was not known if the applicant would be placed in protective custody and that there was no evidence before the court regarding his likely status if that were to happen. In particular, the Crown noted that there was no evidence of the implications of such custody for the applicant's rehabilitation and ability to enrol in courses: Crown's Sentence Submissions at p 17.

1. The applicant sought leave at the hearing in this Court to rely upon fresh evidence concerning his conditions of custody since being incarcerated, in particular, to the applicant's affidavit affirmed on 4 December 2013 and the affidavit of Bryan Dowe, solicitor, also declared and affirmed on 4 December 2013.

1. The applicant's affidavit stated that he had been in limited association protection, which means he has limited access to programs, education and work.

1. Mr Dowe annexed to his affidavit a copy of a letter from the Contract Compliance Manager of the correctional institution where the applicant is presently held. This confirmed that the applicant was then unemployed due to his PRLA status and his listed medical conditions (a copy of extracts from the Justice Health file were attached to the letter).

1. In circumstances in which the applicant did not seek during the sentencing hearing to adduce evidence as to (1) the likelihood of him being placed in protective custody; (2) his likely status if placed in protective custody, or (3) as to the likely position in terms of his rehabilitation or the ability to enrol in courses, and there having been an absence of submissions on any such matters, I do not consider that his abovementioned affidavit evidence, or that of Mr Dowe, can be considered to constitute "fresh" evidence.

1. Further, the absence at the sentencing hearing of any attempt in the submissions for the applicant to identify, as a matter to be taken into account on sentence, particular factors bearing upon his custodial conditions, as a matter of discretion, weighs against the grant of leave for the applicant to rely upon the affidavit evidence.

1. In Zreika v R [2012] NSWCCA 44 it was observed, at [80]:

"There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]."

1. It is sufficient to resolve the issue as to whether leave should be granted upon the basis on which it was argued, namely, the contention that the evidence constitutes fresh evidence. In the circumstances of this case to which I have referred this is not one wherein the evidence was unavailable or could not have been obtained and placed before the sentencing judge. The evidence sought to be placed before this Court is not fresh evidence and in my opinion leave to admit it in the present proceedings should be refused.

1. I consider that this ground is without merit and should be dismissed.

Ground 3: Her Honour erred in failing to reduce the sentence imposed on account of past assistance to the authorities

1. Mr McLachlan properly accepted that this was not a matter upon which any submission was made to the sentencing judge and he acknowledged that the principle stated in Zreika, supra, accordingly applies to this ground. However, Mr McLachlan argued that the "evidential foundation" for the ground was clearly raised and it was not insignificant in terms of the sentencing of the applicant: T 3, 11 December 2013.

1. The evidence relied upon for this ground was that given by the applicant at the sentencing hearing on 14 February 2013 at T 10:16-46. The evidence was to the effect that he had made a statement to police in relation to the abuse of him by one of his uncles, who was subsequently charged and later was sentenced to a term of imprisonment for the offences committed against the applicant. He said he went to police and reported the matter in 1974 or 1975. He did not recall going to court and giving evidence about the offences to which he referred.

1. Mr McLachlan stated that "some allowance" should have been made for past assistance to the authorities but did not suggest it would be a "significant allowance": T 3, 11 December 2013.

1. The Crown submitted that as no submissions were made to the sentencing judge on any discount for past assistance, this ground amounts to a "reformulation of the case": Crown's Written Submissions at [16].

1. The Crown referred to the observations made by the majority in RJT v R [2012] NSWCCA 280 to the effect that a victim who assists by reporting the offence in question is able to receive a discount on sentence pursuant to s 23 of the Crimes(Sentencing Procedure) Act 1999. However, the Court there also observed that the availability of a discount and its level in such a case "should await a case in which they squarely arise": at [11].

1. I do not consider in the circumstances of this case where no submission was made to the sentencing judge on the matter of past assistance, that any appellable error has been established in relation to this ground. Accordingly, Ground 3 should be dismissed.

Ground 4: Her Honour erred in failing to properly take into account the youthfulness of the applicant

1. Whilst it was argued that the sentencing judge failed to properly take into account the youthfulness of the applicant, it was conceded that her Honour was "mindful of the general position" in relation to the sentencing of young offenders: T 3, 11 December 2013.

1. In the written submissions for the applicant it was observed:

"When dealing with the issue of the young age of the applicant at the time of the commissions of the offences, her Honour prefaced her findings as follows (at page 15):

'It is often said that where youthful immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years, because of an inability to recognise the unacceptable nature of the behaviour ...'

However, her Honour then held (at page 15):

'... I find that the same cannot be said in the circumstances of this case. As I have just alluded to, the perpetrator of the sexual offences against this offender had been sent to gaol about two years prior. That is something which must have been in the forefront of his mind, even if he was acting out.

And, even if I am wrong in that regard, certainly by the time he was committing the more serious offences of carnal knowledge upon her, he would have matured significantly and been able to come to the realisation that his behaviour was unacceptable and was wrong and he should have been able to exercise a far greater degree of self-control ...'

The applicant was a victim of sexual assault between the age of 6 & 10 years old. He first committed an offence on [the victim] when he was only 14 years old." (Applicant's Written Submissions at [21]-[23])

1. The submission was then made that to attribute to the applicant, as a 14 year old boy, the same level of maturity and insight as might be ascribed to a male of, say, 40 years of age, simply because of the applicant's prior experience as a reported victim of sexual abuse, was a failure to give proper weight to the very immaturity and lack of insight inherent in young people of that age: Applicant's Written Submissions at [24].

1. It was submitted:

"Furthermore, the 'more serious offences of carnal knowledge' was said to have occurred when the applicant was between the ages of 16 & 18 years old and between the ages of 16 & 19 years respectively. No further consideration was given by her Honour as to precisely when those two offences occurred or what was the exact age of the applicant at the time of such offences - nor could there be, other than to note the difficulty involved (RoS page 23).

But to proceed upon the basis that the applicant was somehow much, much older when these offences occurred in that he had 'matured significantly' by this time was not open to find on the facts beyond reasonable doubt. Indeed, it was equally as likely that the applicant was just 16 years of age when those offences occurred.

Such an approach to the carnal knowledge offences further demonstrates her Honour's failure to give proper weight to the youthfulness of the applicant." (Applicant's Written Submissions at [26]-[28])

1. The Crown's submission was, firstly, that the sentencing judge referred to the appropriate principles for sentencing in relation to offences committed by an offender as a juvenile. Secondly, having referred to those principles, her Honour then made findings that were open to her particularly in light of the applicant's admissions as to his knowledge and understanding, as detailed in the psychological pre-sentence assessment and the report of Ms Duffy, psychologist.

1. I do not consider that the pre-sentence report dated 11 February 2013 refers to any matters that assist in establishing the level of the applicant's understanding and appreciation of the gravity of his offending conduct in the period from 1977 to 1983.

1. However, the report of Ms Duffy is of assistance on those matters. It is to be borne in mind that whilst the applicant was aged between about 14 to 20 years at the time of his offending, the victim was only a very young child, between about 5 to 11 years. The applicant's offending was regular, almost systematic, carried out with threats being made to the victim from time to time warning her not to report his conduct. Ms Duffy noted, importantly, the applicant's frank admissions as to his level of insight of his wrongdoing, not only in retrospect many years after the offences occurred, but at the time he committed them.

1. In addition, it was observed in the Psychological Pre-sentence Assessment prepared by Ms Kate Solomon and Ms Katherine Sahm, under the subheading "Attitude to offences and acceptance of responsibility" that:

"[The applicant] took full responsibility for his offending behaviour. He acknowledged that he had sexually abused his stepsister. He stated that at the time he knew his behaviour was wrong, and he experienced a lot of negative feelings after he offended which he tried to ignore ... Furthermore [the applicant] stated that as an adolescent he had a high sex drive, 'I was consumed by sex' and therefore by abusing his stepsister he did not have to get a girlfriend in order to be sexually gratified; he stated that the offending 'became a habit'." (pp 2-3)

1. The findings of Hislop J in RJP v Regina [2006] NSWCCA 149 were referred to by the Crown as apposite for this case.

"26 ... from the pattern of repeat offending over many years that any immaturity by reason of his age at the time of the first offence was not a significant contributing factor to the offence as, with admitted knowledge that his behaviour was unacceptable, he persisted with such behaviour for many years thereafter." (Crown's Written Submissions at [20])

1. In light of the approach taken by the sentencing judge, based upon a recognition by her of the principles to be applied to juvenile offenders to the facts of this case, I do not consider that appellable error has been established. Ground 4 should be dismissed.

Ground 5: The sentences imposed are manifestly excessive having regard to the sentencing practice at the time of the offending

1. In order to establish this ground the applicant is required to establish that the sentences, in particular the total effective sentence, was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 371 [25].

1. It is firstly to be noted that the sentencing judge imposed fixed sentences in respect of the six offences under s 76 and in respect of the two offences under s 61E(1) Crimes Act. All such offences carried a maximum penalty of 6 years imprisonment.

1. Secondly, there was a high degree of concurrency in relation to the sentences imposed with respect to all offences except Count 10 (the second offence charged under s 61E(1) which was made fully concurrent with Count 8 (an offence under s 67 Crimes Act), the latter offence being a most serious offence for which a non-parole period of 3 years commencing 22 December 2013 was imposed with a balance of term of 4 years expiring on 21 December 2020.

1. Thirdly, the offence, Count 7, was also a serious offence under s 67 Crimes Act but was only accumulated by one month on the sentence for Count 8.

1. The sentences for all such offences are summarised at [6] above.

1. The submissions for the applicant commenced by analysing the sentences imposed by way of fixed terms which are to be taken as representing non-parole periods. On the analysis it was observed by Mr McLachlan that there would then be a need to increase the sentences to adjust for the 25% discount allowed for the applicant's early guilty pleas to determine the notional pre-discount non-parole period.

1. It was then submitted that these notional non-parole periods would represent between one-third to one half of the starting head sentences as acknowledged in Bradbery v Regina [2008] NSWCCA 93, given the pattern of sentences at the time: Bradbery at [28]-[38].

1. The submission on the above bases for the counts for which fixed terms were imposed of, say, 18 months or more, was that the notional starting point for the head sentence was either the actual statutory maximum penalty itself of 6 years imprisonment or even higher. With a fixed term of 2 years, it was observed, this would become 32 months after the 25% discount is added back. If that represented one-third of the head sentence, then the sentencing judge had started with a head sentence of imprisonment of 8 years (before allowing for the discount for the plea) for an offence that carried a maximum penalty of only 6 years imprisonment.

1. The Crown, on the other hand, responded by stating that if the applicable range was one half to one-third then it would be appropriate to consider the notional starting point if the non-parole period was half the total sentence. The Crown produced a table to show the result: Crown's Written Submissions at [23].

1. For reasons set out below, I do not consider that the competing exercises undertaken in the submissions for the applicant and the Crown directed at reconstructing notional starting points especially in respect of Counts 1, 2, 3, 4, 5, 6, 9, and 10 (all fixed term sentences), assist in determining whether the sentences and the way they were structured resulted in manifestly excessive sentences individually or overall. What needs to be kept in focus is the gravity of each of the offences.

1. Counts 2 and 3 involved acts of digital penetration causing pain to a five-year-old. They were serious offences.

1. Counts 4, 5, 6 and 9 were indecent assault offences involving acts of fellatio and cunnilingus and were all objectively serious offences - at least middle range and probably at the higher end of the range, and would have been so considered for sentencing purposes as at the time of their commission. Count 4 occurred when the victim was five years old and involved aggravating features including the use of some force on the victim. Counts 5 and 6 involved simultaneous acts of fellatio and cunnilingus. Count 9 involved an act of fellatio when the applicant was 19 to 20 years of age. The sentence in respect of Count 10 was for a term of 6 months which, as noted above, was wholly concurrent with the sentence imposed with respect to Count 8.

1. An examination of each of the sentences imposed in respect of Counts 1, 2, 3, 4, 5, 6, 9 and 10 could not, in my assessment, be considered manifestly excessive even by reference to historical sentencing patterns.

1. Counts 7 and 8 were particularly serious offences. As previously observed, four offences of indecent assault on the Form 1 were also taken into account. The maximum penalty, as noted earlier, for the offences the subject of Counts 7 and 8 was penal servitude for life. Count 7 involved an offence that inflicted pain on the victim. She endeavoured to escape but was restrained by the applicant. The applicant persisted even though the victim was distressed and crying. The Crown submitted, and I agree, that this offence was a heinous one. The applicant was 16 to 18 years of age in the relevant time period. At age 16, the victim was then 7 years of age.

1. The applicant then continued to offend on a regular basis after the Count 7 offence: Agreed Facts at [37].

1. In relation to the Count 8 offence, which was committed on a day between 1 February 1980 and 1 July 1982, the applicant was then aged 16 to 19 years, and the victim 7 to 9 years. The applicant demanded that the victim comply with his demands and had sexual intercourse with the victim.

1. The sentencing judge properly, with respect, found the most serious offences were the carnal knowledge offences -Counts 7 and 8.

1. The written submissions for the applicant detailed a number of sentencing cases, some of which were said to be comparable cases covering offences for the period in question. It was submitted that the sentencing judge erred in imposing sentences that were manifestly excessive and this occurred because whilst her Honour said that she was sentencing the applicant in accordance with the sentencing practice of the 1970s, the sentences imposed were in fact more consistent with the current sentencing patterns.

1. I, with respect, disagree. The circumstances in this case, including the very young age of the victim (as compared with the ages of the victims in many of the cases said to be comparable cases), the large disparity in age range between the victim and the applicant, the fact of the offences occurring in a context of the applicant's on-going sexual misconduct throughout the relevant period, the multiplicity of the offences charged and bringing into account the Form 1 matters (all of which involved grave misconduct) and the well above mid-range objective seriousness of the Counts 7 and 8 offences all, in my opinion, indicate that the sentences were well within range and were not manifestly excessive. I have earlier made observations about the structuring of the sentences. That, in my opinion, reinforces the conclusion that the sentences imposed were well within the range of available sentences. Ground 5 should be dismissed.

1. I accordingly propose the following orders:

(1) Leave to appeal be granted.

(2) Appeal be dismissed.

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Decision last updated: 25 July 2014