SW v R

[2013] NSWCCA 255

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	SW v R [2013] NSWCCA 255
Hearing dates:	16 October 2013
Decision date:	08 November 2013
Before:	Hoeben CJ at CL at [1]; Johnson J at [2]; Bellew J at [59]
Decision:	Application for extension of time to appeal against sentence refused
Catchwords:	CRIMINAL LAW - sentence appeal - Applicant sentenced in November 2010 - claim of Muldrock error - application for extension of time to appeal - Applicant pleaded guilty to one count of having sexual intercourse with a child under the age of ten years contrary to s.66A Crimes Act 1900 - victim aged five to six years - principle of finality - relevant considerations for grant of extension of time - held no Muldrock error demonstrated - challenges to sentencing judge's assessment of objective gravity - whether offence motivated by sexual gratification - no error demonstrated - claim of manifest excess - held sentence not manifestly excessive - no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	Abdul v R [2013] NSWCCA 247 Essex v R [2013] NSWCCA 11 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v State of Western Australia [2013] HCA 38; 87 ALJR 1035 RR v R [2011] NSWCCA 235; 216 A Crim R 489 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Texts Cited:	---
Category:	Principal judgment
Parties:	SW (Applicant) Regina (Respondent)
Representation:	Counsel: Mr MP King (Applicant) Ms TL Smith (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2009/7892
Publication restriction:	---
Decision under appeal	Citation: --- Date of Decision: 2010-11-25 00:00:00 Before: English DCJ File Number(s): 2009/7892

Judgment

1. HOEBEN CJ at CL: I agree with Johnson J and the orders which he proposes. I also agree with Johnson J that even had Muldrock error been demonstrated, no lesser sentence would be warranted in the case taking into account the further evidence upon which the Applicant relied in this Court.

1. JOHNSON J: The Applicant, SW, seeks an extension of time to apply for leave to appeal against sentence imposed in the District Court on 25 November 2010. Because the Applicant's offence was committed in a small country town so that publication of his name would tend to identify the victim, a non-publication order was made concerning the names of the Applicant and the victim in the District Court. It is appropriate that the judgment in this Court use initials to describe the Applicant.

The Offence and Sentence

1. The Applicant pleaded guilty to having sexual intercourse with a child under the age of 10 years contrary to s.66A Crimes Act 1900. The offence was committed between January 2007 and February 2009, when the victim was aged five or six years.

1. The maximum penalty for an offence under s.66A is imprisonment for 25 years and a standard non-parole period of 15 years attaches to this offence.

1. On 25 November 2010, the Applicant was sentenced to imprisonment comprising a non-parole period of five years commencing on 31 October 2010 and expiring on 30 October 2015, with a balance of term of two years and seven months commencing on 31 October 2015 and expiring on 30 May 2018.

The Present Application

1. On 3 December 2010, a Notice of Intention to Appeal against sentence was filed in the Court of Criminal Appeal. On 31 August 2011, the Applicant was refused legal aid for the purpose of an appeal as it was not considered that he had reasonable prospects of success in accordance with the legal aid merit test.

1. Accordingly, the Notice of Intention to Appeal lapsed.

1. Following the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 ("Muldrock"), handed down on 5 October 2011, the Applicant's case (together with others) was assessed within Legal Aid NSW to determine whether there were grounds to appeal in light of the decision in Muldrock.

1. On 10 July 2013, a Notice of Application for Extension of Time to seek leave to appeal against sentence was filed in the Court of Criminal Appeal. The Applicant seeks to rely upon the following grounds of appeal:

(a)   Ground 1 - her Honour erred in her application of the standard non-parole period legislation in light of the principles identified in Muldrock.

(b)   Ground 2 - her Honour erred in her assessment of the objective gravity of the offence.

(c)   Ground 3 - her Honour erred in finding that the age of the complainant was a "highly aggravating factor".

(d)   Ground 4 - her Honour erred in finding that the offence was committed for sexual gratification.

(e)   Ground 5 - (abandoned).

(f)   Ground 6 - the sentence is manifestly excessive.

1. The concept of Muldrock error (asserted in Ground 1) was referred to in Abdul v R [2013] NSWCCA 247 at [19]-[28]. What is said there will assist an understanding of some of the issues raised in this application.

1. In Abdul v R at [42]-[53], the Court referred to principles where application is made for extension of time to appeal against sentence. Those principles will be applied in determining the present application.

1. Reference was made in Abdul v R at [51] to the fact that the prospect of sentence being reopened long after the event may impact adversely upon victims of crime, particularly where the crime involves sexual violation of the victim. This factor is a significant one in this case as well, where a very young child was the victim of a sexual offence with grave and long-lasting consequences for the victim. The High Court of Australia has noted recently that the role of the criminal law includes "the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence": Munda v State of Western Australia [2013] HCA 38; 87 ALJR 1035 at 1045 [54]. Considerations of this type are pertinent when application is made long out of time to reopen the question of sentence for crimes of violence, including sexual assault.

Facts of the Offence

1. An Agreed Statement of Facts was placed before the sentencing court.

1. The victim, born in December 2001, lived with his parents in a country town in New South Wales. The Applicant (born in August 1955) had been a schoolteacher at the school attended by the victim's mother. Later in life, the victim's parents befriended the Applicant, who would attend their home on many occasions.

1. From about January 2007, the Applicant (then aged 51 years) began spending time alone with the victim (then aged five years). There were times when the victim stayed overnight with the Applicant in 2007. The victim's mother suffered from epilepsy and the father suffered health issues as well in late 2007, so that the Applicant assisted the victim's family to a considerable degree at this time.

1. In late 2007, the Applicant's contact with the victim increased. The victim resided with the Applicant on frequent occasions. The association between the Applicant and the victim was encouraged by the victim's parents as they were forming the view that the Applicant may be a guardian for the victim due to their own increased health difficulties.

1. The association between the victim's family and the Applicant ended in February 2008, in circumstances where the victim's father considered that the Applicant was being overly controlling in his approach to the victim's family.

1. In June 2008, the victim made disclosure to his parents concerning the Applicant. The victim told his mother, "Uncle [S] put a thermometer up my bottom". In answer to an enquiry by the mother as to why the Applicant would do that, the victim replied, "It's to make me poo better". Complaint was then made by the parents to the victim's teacher, and then to police on 26 June 2008.

1. The next day, a Joint Investigation Response Team attended the school and spoke to the victim. The boy explained that, on the occasion in question, the victim and the Applicant were in the bathroom, with the victim in the bath. The Applicant said to the victim, "I think I need to put the squirty thing in your bum". The Applicant placed a tube into the anus of the victim and squirted water. The victim described "the squirty thing" as being red and black in colour. The Applicant possessed a rectal syringe which fitted this description.

1. The victim told police that "he stuck it up my bum all the way up my bum hole and squirted it and water came out". The victim stated that it "hurt a lot", and that he did not like it. The victim said that he went to the toilet, which was located in the bathroom. The victim said to the Applicant, "Don't do that again" and the Applicant replied, "I'm not".

1. After the incident, the victim went to bed to watch a movie and had to lie on his stomach as he was sore and his bottom hurt. The victim's parents informed police that the victim had never suffered from constipation.

1. On 3 July 2008, police attended the Applicant's home and informed him that he was under arrest for sexual assault. The Applicant consented to a search of his premises and the police located in the bathroom a black and red coloured rectal syringe. The Applicant was asked if he had used the syringe upon anyone else and he replied, "[The victim] has used it".

1. When taken to the police station, the Applicant declined an interview, but did state that the victim had used the rectal syringe numerous times in the bath to blow bubbles "to make him fart". However, the Applicant denied using the rectal syringe upon the victim.

The Sentencing Proceedings in the District Court

1. The Applicant was committed for trial from the Local Court on 17 June 2010. On 17 July 2010, he entered a plea of guilty to the s.66A offence referred to above.

1. A Statement of Agreed Facts was tendered at the sentencing hearing. Also tendered by the Crown was a report dated 24 August 2010 from sexual assault counsellors attached to the relevant Area Health Service concerning the impact of the offence upon the victim. A report of Ms Katherine Wakely, psychologist, dated 10 August 2010 was tendered in the Applicant's case.

1. The Applicant did not give evidence at the sentencing proceedings.

1. The subjective material relied upon on sentence was drawn from the psychological report of Ms Wakely. Her Honour recounted aspects of that report in the following way (ROS5-6):

"From the history contained in the report the offender came from a stable environment and reported a close relationship with his parents and siblings. He was not the victim of neglect nor physical abuse. He did not witness alcohol or drug abuse within the family home.

He trained as a teacher at the [XXX] and he holds a variety of other qualifications. He worked mostly as a primary school teacher but eventually resigned due to continuing ill health. He described having poor control and being irritable and belligerent which he put down to poor health.

He performed casual security work before operating his own security business for seven years. He ceased operating that business in 2007 because of the adverse impact running a business was having upon his health.

In 2009 he was employed as a delivery driver but his employment was terminated when the contract expired. At the time of his arrest he was in receipt of a pension. He suffers from diabetes, hypertension, hypercholesteremia and osteoarthritis and he is prescribed a variety of medications. He apparently also suffers from diverticulitis. He does not abuse drugs or alcohol. He has no prior criminal convictions.

On the opinion of the psychologist the offender has had difficulty coming to terms with the offence he has committed. He denies interest in child pornography and denied any aberrant sexual arousal involving children. He expressed a willingness to engage in a program to treat child sex offenders. He has been placed in the medium to high range for sexual re-offending.

In the opinion of Ms Wakely the offender requires admission to a treatment program aimed at addressing sexual offending such as the Deniers Program which is an adaptation of the CORE program, that program is based at the MSPC at Long Bay Correctional Centre and is offered in a group format over a five month period. Participants attend treatment twice weekly. Strict monitoring by Probation and Parole is recommended post release together with the attendance at a community based maintenance treatment program for child sex offenders."

1. Ms Wakely observed that underlying personality constructs, such as the Applicant's concern with maintaining relationships and the high regard he has for the opinions of others, were likely to contribute to the difficulty he had in coming to terms with the offence to which he had pleaded guilty. Ms Wakely observed that denial and minimisation were extremely common in sexual offenders, and in particular in sexual offenders of child victims, with both being prominent features which allow offenders to justify their actions and help them to overcome internal and external inhibitions. However, Dr Wakely observed that denial and minimisation of offending behaviour may decrease in the context of appropriate treatment. With regard to the offence, Ms Wakely reported the Applicant as having "an overall feeling of being 'disappointed that this has happened'", with the Applicant having "come to terms with the prospect of serving a custodial sentence and being placed upon the sexual offenders register".

1. The Applicant's counsel in the District Court provided a written submission which stated that the "offending behaviour was both aimed at assisting the complainant with toileting and with granting the offender sexual gratification". On the question of assessment of objective seriousness, counsel then appearing for the Applicant submitted that, in this case, "the offending behaviour was explained to the child as being for a non-sexual purpose". In the course of oral submissions on sentence, the Applicant's then counsel submitted that the use of the instrument involved "an element of helping the child and ... an element of sexual gratification" and that this was "acknowledged by the plea of guilty" (T6, 4 November 2010).

1. The sentencing Judge referred to the report of the sexual assault counsellors and found that the victim suffered "very substantial ongoing emotional harm" and that "the impact on his young life has been profound". The sentencing Judge expanded further upon this evidence (ROS6-7):

"This little boy was only five or six when he was sexually assaulted by the insertion of an implement into his anus by a trusted family friend. He felt physical discomfort after the incident, however, he has clearly suffered substantial ongoing emotional harm. He has been undertaking counselling which commenced on 2 October 2008 and was continuing in August 2010. He suffers from flashbacks and dreams. He has become socially withdrawn. He demonstrates intense arousal, anxiety, hyper-vigilance and startled responses. There has been a decline in his ability at school. He now suffers from encopresis and is displaying inappropriate sexualised behaviour. He will continue to need ongoing therapy and support."

Some Findings of the Sentencing Judge

1. Having regard to the grounds of appeal, it is appropriate to refer to some specific findings of the sentencing Judge.

1. Her Honour observed (appropriately) that offences of this type are considered to be of the utmost seriousness, as demonstrated by the maximum penalty and the applicable standard non-parole period.

1. The sentencing Judge touched upon the Applicant's absence of criminal history and the significance of his breach of trust in the following way, in a manner not challenged in this Court (ROS7):

"As I mentioned earlier, the offender has no prior criminal antecedents. That is not a matter which entitles this offender to much by way of leniency. In the normal course it would entitle him to no leniency whatsoever because these types of offences are often committed by persons of otherwise good character. It is that otherwise good character that allows access to a child and minimises the risk of detection. Sadly, all too often, persons of otherwise good character hide behind that good character confident in the knowledge that if a child makes a disclosure it is more probable than not that the child would not be believed.

Here, there was clearly a breach of trust by this offender. This young child was left in his care with a view to a relationship being established between the two so that in the event of the parents being unable to care for the child the offender would become that child's guardian."

1. The following passage gives rise to Ground 4 (complaint concerning the finding of sexual gratification) (ROS7):

"The sexual assault took place in the home of the offender, somewhere where the child had resided on many occasions. Somewhere where he was entitled to feel safe and free from defilement by this offender. Somewhere where his parents considered him also to be safe. I find it was an offence committed for sexual gratification. There can be no other reason. There is simply no other explanation for why the offender behaved in this manner. Clearly on the evidence before me the child was not suffering from any condition which required an insertion of an instrument such as this into his anus."

1. A 15% discount was allowed for the Applicant's plea of guilty, a finding not challenged in this Court.

1. The sentencing Judge addressed the seriousness of the offence in the following way (ROS8-9):

"The offence is one, which as I have said, attracts a standard non parole period. It is appropriate, therefore to assess the seriousness of the offending behaviour by the offender. It was an isolated incident of brief duration, but as I said earlier on a very young boy in the care of the offender and at a place where the child had stayed on many occasions and ought to have been safe.

The child was physically hurt and he told the offender to stop doing what he was doing and that he did not like it. It was obviously an act which went on for long enough and to a depth to such an extent as to cause the young boy immediate pain and discomfort which lasted for some time afterwards, that is the significance of the act of penetration. Not the length of time over which it occurred.

Like many sexual assaults upon young children this appears to have been an opportunistic incident, lacking any preplanning or premeditation. There were no threats or violence involved. It would appear that the offender used his natural authority over the child as a person standing in loco parentis in order for the child to be compliant so that he could insert the syringe into the child's anus on the pretext of it being for a medical purpose.

It was not as serious as an act of penile anal penetration of a very young child. I say that being fully aware that the type of penetration is simply one factor to be taken into account and does not by itself indicate how serious a particular offence may be."

1. Her Honour considered the age of the victim, in a manner giving rise to Ground 3 (ROS9):

"The age of the child is another factor to be taken into account, the younger the child, the more serious the offence simply because very young children are unable to report what has happened or to understand. The fact that this child was well short of ten years of age is a highly aggravating factor.

Also of significance is the very substantial ongoing emotional harm suffered by the boy to which I have referred. Clearly the impact on his young life has been profound."

1. The sentencing Judge concluded the remarks on sentence in the following way (ROS9-10):

"This is not an offender, however, who is being sentenced for a pattern of history of abuse upon the child. Often such a history is a typical feature of offences committed under s 66A and would certainly result in the finding that such offending behaviour falls within the mid range envisaged by the legislature. For all those reasons I find it is an offence falling somewhere below the mid range of an offence against s 66A. The fact that it is an isolated incident and a plea of guilty entered is sufficient to warrant a departure from that standard non parole period, of course, that does not mean that the standard non parole period does not apply. It remains relevant as a benchmark or guidepost to be taken into account.

The offender will no doubt spend his time on protection. He is not a young man and he is in poor health. Prison will be more onerous for him and that is a factor I have taken into account. I have had regard to the objective circumstances and the subjective circumstances which I have set out. Only a sentence of imprisonment will satisfy the requirements of general deterrence, to which I have referred, and that is because not only must this offender be deterred but so too must others who might be of a like mind. A message must be sent to the community that those who choose to defile innocent young children will be severely punished, not only to deter them but to deter others who might be of a like mind, as I have just said."

1. A finding of special circumstances was made as there was "a need for a lengthier than normal period of supervised parole to ensure attendance at [an] appropriate program to minimise the risk of relapse post release" (ROS10).

Merits of the Grounds of Appeal

1. Given the nature of the application to extend time, it is appropriate to consider the grounds of appeal in a summary fashion: Abdul v R at [53]. Substantial written submissions were placed before the Court, supplemented by oral submissions at the hearing of the application. It is not necessary to recite the submissions in this judgment.

1. The application for an extension of time to seek leave to appeal was filed on 10 July 2013, some two years and seven months after sentence was passed. The evidence before the Court points to the decision in Muldrock as being the true reason for the bringing of this application. To the extent that Grounds 2, 3, 4 and 6 were available to the Applicant without the decision in Muldrock, no satisfactory explanation has been provided as to why those grounds were not advanced at an earlier time.

1. In support of Ground 1, the Applicant submits that her Honour erred by adopting a two-stage approach to sentence and by giving determinative weight to the standard non-parole period, contrary to the principles in Muldrock. The Crown contends that no Muldrock error is demonstrated in this case.

1. I have set out earlier substantial extracts from the remarks on sentence. In determining whether Muldrock error has been demonstrated, it is necessary to fairly read the remarks on sentence in their entirety.

1. I am not persuaded that Muldrock error has been demonstrated in this case. The sentencing Judge had regard to objective and subjective factors, before turning to the imposition of sentence itself. Section 54B(4) Crimes (Sentencing Procedure) Act 1999 requires the sentencing Judge to identify fully the facts, matters and circumstances which the Judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed: Muldrock at 132 [29]. The sentencing Judge did just this, before observing, correctly, that the standard non-parole period remained relevant as a benchmark or guidepost to be taken into account: Muldrock at 132 [27]. Her Honour's use of the phrase "sufficient to warrant a departure from that standard non-parole period" needs to be read in the context of the remarks on sentence as a whole, including the structure and content of those remarks.

1. The Applicant has not demonstrated that the sentencing Judge engaged in an impermissible two-stage approach. Further, it is difficult to see how the standard non-parole period (15 years) has been accorded determinative weight given the imposition in this case of a non-parole period of five years. Ground 1 ought be rejected.

1. Grounds 2, 3 and 4 each complain, in various ways, concerning the sentencing Judge's assessment of the objective gravity of the offence. The grounds may be considered together and briefly.

1. The Applicant (then aged 51 years) occupied a position of trust which allowed him access to the victim (a boy aged five or six years). A significant feature of this case is that it involved a very young victim, of an age well removed from the age limit of 10 years which demarcates a s.66A offence: RR v R [2011] NSWCCA 235; 216 A Crim R 489 at 519 [147]. The age of the victim, far removed from the statutory ceiling of 10 years, may be described aptly as a highly aggravating factor. There is no merit in Ground 3.

1. Submissions were made in support of Grounds 2 and 4 which focused upon the act of the Applicant which constituted the offence. Comparison was sought to be made with other forms of sexual intercourse which fall within the definition in s.61H Crimes Act 1900. Ground 4 sought to challenge the finding of the sentencing Judge that the offence was committed for sexual gratification.

1. The act of sexual intercourse inflicted upon the child victim involved the use by the Applicant of a rectal syringe under the guise of some process intended to assist the child. The victim's parents stated that the child had no difficulty with constipation, so that no valid reason existed for the Applicant to act in this way. The fact that the Applicant told the child that this was the reason for the act of abuse does not assist the Applicant. The Applicant did not give evidence at the sentencing hearing. When spoken to by the police following his arrest, the Applicant denied using the rectal syringe upon the victim at all. The Applicant's account provided to Ms Wakely, the psychologist, appears to have been approached by the psychologist as involving a form of minimisation of responsibility, a phenomenon well known with child sex offenders.

1. Counsel appearing for the Applicant at first instance submitted in writing and orally that the Applicant was motivated by sexual gratification in the commission of the offence. To the extent that the submissions advanced by different counsel in this Court involve a movement away from submissions made at first instance, this Court should bear in mind the approach to such circumstances set out in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477-478 [79]-[82].

1. This offence involved a significant act of violation of a young child, in circumstances where the victim complained immediately of the pain caused and his concern as to what had happened. Further, the victim impact material before the sentencing Judge, which included a detailed expert report, emphasised the grave and long-lasting consequences for this victim arising from this offence. To the extent that a submission was advanced in this Court that some of the difficulties experienced by the victim may possibly be explained by matters apart from the Applicant's offence, it should be observed that no such argument was advanced at first instance: Zreika v R at 477-478 [79]-[82]. The evidence at first instance did not suggest any other explanation and there is no other evidence before this Court which bears upon this issue.

1. Sexual abuse of children of very tender years will inevitably give rise to psychological damage emanating from (at least) the confusion in the young mind of the victim of abuse. As RR v R at 519 [147] exemplifies, a single act of sexual abuse may have a substantial impact upon the psychological state of a young victim, with the likelihood of long-term adverse consequences. In this case, the very young victim has sustained significant adverse psychological consequences which may be traced back to the Applicant's crime.

1. The fact that the offence in this case was perpetrated by the use of an item such as a rectal syringe does not indicate that a lesser finding of objective gravity is appropriate than that reached by the sentencing Judge. The circumstances of this case are far removed from those in Essex v R [2013] NSWCCA 11, where the offender was not motivated at all by a desire for sexual gratification.

1. In my view, there is no merit in the complaint concerning the sentencing Judge's discretionary assessment of objective gravity (Ground 2) and in the particular respects complained of in Grounds 3 and 4.

1. Ground 6 contends that the sentence is manifestly excessive. It is necessary for the Applicant to demonstrate that the sentence is unreasonable or plainly unjust. The assessment contained so far in these reasons indicates the seriousness of the offence. The sentencing Judge gave appropriate weight to the Applicant's prior good character and his subjective circumstances. The maximum penalty and the standard non-parole period are significant legislative guideposts to which the sentencing Judge had regard. It has not been demonstrated that the sentence is manifestly excessive.

Conclusion Concerning Extension of Time

1. The grounds of appeal relied upon by the Applicant lack merit. Application is made long out of time to bring this application for leave to appeal against sentence. The real explanation for the delay is the decision in Muldrock. No satisfactory explanation has been provided for the substantial delay in advancing other grounds of appeal.

1. In circumstances where error has not been demonstrated, the Court does not reach the point where consideration of s.6(3) Criminal Appeal Act 1912 is required. I record my view, in any event, that no lesser sentence would be warranted in this case, taking into account the further evidence upon which the Applicant relies in this Court.

1. I propose that the application for an extension of time to bring a sentence appeal should be refused.

1. BELLEW J: I agree with Johnson J.

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Decision last updated: 08 November 2013