TP v R

[2018] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	TP v R [2018] NSWCCA 140
Hearing dates:	8 June 2018
Date of orders:	16 July 2018
Decision date:	16 July 2018
Before:	White JA at [1] Bellew J at [2] Wilson J at [30]
Decision:	(1)   Leave to appeal granted. (2)   Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – Sentence – Appeal – Sexual offending – Where applicant was the father of the victim – Where the offending occurred in home environment where victim entitled to feel safe – Multiplicity of offences – Offending accompanied by reassurances on the part of the applicant to the victim that the acts constituting the offending were appropriate – Limited significance of short duration of offending – Necessity for general deterrence – Necessity to balance an offender’s subjective case against the objective seriousness of the offending – Sentence not manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Croxon v R [2017] NSWCCA 213 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 Doe v R [2013] NSWCCA 248 Kearsley v R [2017] NSWCCA 28 R v Dodd (1991) 57 A Crim R 349 R v Freedman [2017] NSWCCA 201 R v Van Ryn [2016] NSWCCA 1 Simpson v R [2014] NSWCCA 23 Vaiusu v R [2017] NSWCCA 71
Category:	Principal judgment
Parties:	TP – Applicant Regina – Respondent
Representation:	Counsel: G D Woods QC and T Woods – Applicant F Veltro – Respondent   Solicitors: Nazarian Lawyers – Applicant C Hyland, Solicitor for Public Prosecutions NSW – Respondent
File Number(s):	2015/184151
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 24 May 2017 Before: Her Honour Judge Bright

Judgment

1. WHITE JA: I agree with Bellew J.

2. BELLEW J: Following a trial in the District Court of New South Wales, TP (“the applicant”) was found guilty by a jury of the following offences:

1. that on 26 December 2014 at Branxton in the State of New South Wales, he assaulted (SP) and at the time of such assault committed an act of indecency on (SP), a child then under the age of 16 years, namely 14 years.

2. that on 26 December 2014, at Branxton in the State of New South Wales, he assaulted (SP) and at the time of such assault committed an act of indecency on (SP), a child then under the age of 16 years, namely 14 years.

3. that on 26 December 2014, at Branxton in the State of New South Wales, he had sexual intercourse with (SP), without the consent of (SP), knowing she was not consenting, in circumstances of aggravation, namely that (SP) was under the age of 16 years, namely 14 years.

4. that on 26 December 2014, at Branxton in the State of New South Wales, he assaulted (SP) and at the time of such assault committed an act of indecency on (SP), a child then under the age of 16 years, namely 14 years.

3. SP is the applicant’s biological daughter.

4. The offending in each of counts 1, 2 and 4 was contrary to s 61M(2) of the Crimes Act 1900 (NSW) and carried a maximum penalty of 10 years imprisonment, with a standard non-parole period of 8 years imprisonment. The offending in count 3 was contrary to s 61J(1) of the same Act and carried a maximum penalty of 20 years imprisonment, with a standard non-parole period of 10 years imprisonment.

5. On 24 May 2017 the applicant was sentenced to an aggregate sentence of imprisonment of 9 years and 6 months with a non-parole period of 6 years and 2 months.

6. The applicant now seeks leave to appeal on a single ground, namely that the sentence imposed was manifestly excessive.

The circumstances of the offending

7. The sentencing Judge (commencing at ROS 1) found the circumstances of the offending to be as follows (noting that the name of the victim, and the names of other persons through whom the victim may be identified, have been anonymised):

Count 1, on 26 December 2014 at Branxton in the State of New South Wales, he did assault SP and at the time of such assault committed an act of indecency no SP, a child then under the age of 16 years, namely 14 years. This is an offence pursuant to s 61 M(2) of the Crimes Act. It has a maximum prescribed penalty of 10 years and a standard non-parole period of eight years.

Count 2, on 26 December 2014 at Branxton in the State of New South Wales did assault SP and at the time of such assault committed an act of indecency on SP, a child then under the age of 16 years, namely 14 years. This is an offence pursuant to s 61M(2) of the Crimes Act. It has a maximum prescribed penalty of 10 years and a standard non-parole period of eight years.

Count 3, on 26 December 2014 at Branxton in the State of New South Wales did have sexual intercourse with SP without the consent of SP, knowing she was not consenting in circumstances of aggravation, namely that SP was under the age of 16 years, namely 14 years. This is an offence pursuant to s 61 J(1) of the Crimes Act. It has a maximum prescribed penalty of 20 years and a standard non-parole period of 10 years.

Count 4, on 26 December 2014 at Branxton in the State of New South Wales did assault SP and at the time of such assault committed an act of indecency on SP, a child then under the age of 16 years, namely 14 years. This is an offence pursuant to s 61M(2) of the Crimes Act. The maximum prescribed penalty is 10 years and there is a standard non-parole period of eight years.

For the purpose of sentencing, I find the facts as follows: The offender is the natural father of the complainant, SP. Her date of birth is 16 May 2000.

The offender had separated from the complainant's mother, (RM), in 2013. The separation was amicable.

After the separation, the complainant and her younger brother, CP, lived with their mother. Whilst CP would stay with the offender on a regular basis, the complainant would only occasionally stay. In 2014 she estimated that she had only stayed at the offender's house on four occasions.

THE EVENTS OF 26 DECEMBER 2014

On Christmas Day 2014 the complainant and her younger brother spent the morning with their mother before being collected by the offender. They spent the remainder of Christmas day with the offender. The arrangement was that they were to spend a number of days at their father's house.

On 26 December 2014, the offender had to work so the complainant and her brother spent the day with their grandmother. They were collected by the offender late in the afternoon.

After returning to the offender's home, at some stage the offender asked the complainant if she would like a massage. There was a room in the house that had been set up as a massage room, as the offender's new partner, (HS), was a masseuse.

The offender told the complainant, "I've been learning off (HS) how to learn massages".

When the complainant went to the massage room, there were candles burning and opera music playing on a portable radio.

The offender told the complainant, "Take everything off but your underwear". The complainant removed the pyjamas that she had been wearing and laid face down on the massage table. She was only wearing her purple Bonds underpants.

The offender put oil on the complainant's back and began to rub her on her back, legs, shoulders and neck. He then told the complainant to roll over. He then began to rub her again. At one stage he rubbed both her breasts with both his hands. This conduct constitutes count 1 on the indictment.

He then directed the complainant to roll over again. He then placed his two hands inside the top of her underpants and, "rubbed her bum". She described the area rubbed as her, "two cheeks". This conduct constitutes count 2 on the indictment.

The offender then removed the complainant's underpants. Her underpants were on the floor. Every time the offender did something that the complainant was not sure about, he would say, "It's not rude or anything".

After removing her underwear, the offender began to rub the inside of her legs. It was at this stage that he put his finger inside her vagina. This conduct constitutes count 3 on the indictment.

The complainant, at some stage, again rolled over, exposing her breasts. She had a towel over her eyes. She heard footsteps and then could feel something on her breast. She removed the towel and saw the offender kissing or licking her left breast. She said to him, "What are you doing?" He replied, "Nothing, I'm just rubbing it". The offender immediately changed the subject and then started pressing on her shoulders. This conduct constitutes count 4 on the indictment.

Shortly thereafter the complainant left the massage room, went and had a shower and then went to bed.

The following day the complainant described the offender as acting as though nothing had happened.

The complainant also spent the next day at her grandparents, as the offender had to work. In the afternoon she went to her aunty's house. At 6.15pm she telephoned her mother, became upset and complained about the conduct of the offender. Her mother immediately collected the complainant. The matter was reported to police that evening.

The offender was arrested on 22 June 2015. He participated in a record of interview. He agreed he had given the complainant a massage, however denied any sexually inappropriate conduct.

The findings of the sentencing Judge

8. The sentencing Judge assessed the objective seriousness of each court of individual offending as being below the mid-range of objective seriousness (at ROS 5-6). Her Honour concluded (at ROS 7) that general deterrence was an important consideration, and found (at ROS 7) that the offending was aggravated because:

1. it occurred in the home of the victim; and

2. the applicant had abused his position of trust.

9. In terms of the applicant’s subjective case, her Honour found that:

1. the applicant was a person of prior good character (at ROS 8);

2. the offending was out of character and an aberration (at ROS 8-9);

3. the applicant had good prospects of rehabilitation (at ROS 9); and

4. the applicant was unlikely to re-offend given his age and his previous good character (at ROS 9).

10. Her Honour rejected a submission that the applicant had suffered a degree of extra curial punishment on account of the fact that his relationship with his son had been extinguished because of his offending. Finally, her Honour made a finding of special circumstances in favour of the applicant, adjusting the ratio between the non-parole period and the head sentence to one of 65%.

The sentence imposed

11. Her Honour imposed an aggregate sentence. In doing so, her Honour said (at ROS 9):

Had I in instead sentenced the offender for each individual offence, I would have considered that partial accumulation was warranted, having regard to the separate types of offending that occurred and notwithstanding that overall it could be described as one episode of criminality.

The ground of appeal

12. As noted at [6] above, the applicant relies on a single ground of appeal, namely that the sentence imposed was manifestly excessive.

Submissions of the applicant

13. The written submissions of senior counsel for the applicant expressly acknowledged that the applicant’s offending amounted to a “reprehensible breach of trust” which was obviously deserving of a custodial sentence. However, senior counsel relied upon a number of factors which, it was submitted, supported the conclusion that the duration of the sentence imposed was of a kind generally reserved for cases of sexual offending committed over a long period of time, and was thus manifestly excessive.

14. Firstly, it was submitted that although there were four separate instances of offending, they formed part of the same course of conduct. Senior counsel stressed the importance of determining an overall sentence by reference to the fact that the applicant was, in effect, being sentenced for one episode of criminality. It was submitted that this rendered the principle of totality a compelling consideration.

15. Secondly, it was submitted that the offending occurred over a short period of time, and on the one day.

16. Thirdly, senior counsel pointed to the findings made in favour of the applicant by the sentencing judge as outlined at [9] above and in doing so, placed particular emphasis upon her Honour’s finding that the applicant had good prospects of rehabilitation.

17. In oral submissions, senior counsel made reference to the fact that the offending in count 3 involved digital penetration, and again highlighted the favourable findings made by the sentencing judge in respect of the applicant’s subjective case. Although not put in these express terms, the essence of senior counsel’s submission in that latter respect appeared to be that there was a displacement between those findings and the sentence which was ultimately imposed. Senior Counsel went so far as to submit that if this Court came to re-sentence the applicant, the present sentence should be reduced by approximately one third.

Submissions of the Crown

18. The Crown accepted that the individual offences formed part of one course of conduct, and that this rendered the principle of totality a relevant consideration. However, the Crown submitted that the fact that there was similarity of conduct committed in the same episode did not lead to a conclusion that there should be complete concurrency. It was submitted that even in such a case, each offence can contribute to the total criminality, and that the more important consideration was to ensure that the overall sentence imposed was appropriate having regard to all of the offences committed. It was submitted that the imposition of concurrent sentences in the present case would not have encompassed the totality of the applicant’s criminality.

19. In terms of the duration of the offending, the Crown submitted that the short duration of a sexual assault was not a factor which ordinarily operated to reduce the objective seriousness of offending.

20. The Crown acknowledged the favourable findings made by the sentencing Judge in relation to the applicant’s subjective case. However, the Crown emphasised the necessity to balance those findings against the objective seriousness of the offending, in circumstances where general deterrence was an important consideration. It was submitted that when read as a whole, it was apparent that the sentencing Judge had properly accounted for the applicant’s favourable circumstances, but at the same time had placed appropriate weight on considerations of general deterrence, denunciation and protection of the community.

21. Finally, the Crown submitted that it was evident from her Honour’s sentencing remarks that she had had regard to both of the relevant legislative guide posts, namely the maximum penalty and the standard non-parole period. In this regard the Crown submitted, in particular, that the commission of multiple offences for which significant standard non-parole periods were prescribed tended against the proposition that the sentence was manifestly excessive.

Consideration

22. The assertion that the sentence imposed was manifestly excessive requires the applicant to establish that the sentence imposed is unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]. The general principles applicable in such a case were summarised by R A Hulme J (with whom Bathurst CJ and Beech-Jones J agreed) in Vaiusu v R [2017] NSWCCA 71 at [28]. Those principles include the following:

1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

3. it is not to the point that this Court might have exercised the sentencing discretion differently;

4. there is no single correct sentence, and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle;

5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

23. Applying those principles to the present case, I am unable to accept the submission that the sentence imposed upon the applicant is manifestly excessive. This is so for a number of reasons.

24. Firstly, whilst the totality principle was obviously relevant, there is no demonstrated error in the way in which her Honour approached the imposition of an aggregate sentence. In particular, her Honour’s observation that, had she imposed individual sentences, she would have ordered partial accumulation, was entirely appropriate. Although the offending arose from the one episode, there were, within that episode, separate and distinct instances of offending. For that reason, this was not a case in which the totality of the applicant’s criminality could have been properly reflected by the imposition of wholly concurrent individual sentences: see Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] per Howie J.

25. Secondly, this Court has observed on a number of occasions that the fact that offending of this nature may have been of relatively short duration is of limited significance: see Croxon v R [2017] NSWCCA 213 at [38] per Bellew J (Hoeben CJ at CL and Davies J agreeing) and the authorities cited therein. Moreover, and to the extent that the submissions of senior counsel for the applicant referred to the fact that that the offending in count 3 involved digital as opposed to some other form of penetration, this Court has also observed that it is an error to concentrate upon the form of forced sexual intercourse for the purpose of determining objective seriousness, just as it is an error to attempt to rank forms of forced sexual intercourse in some hierarchy, so as to determine their objective seriousness: Simpson v R [2014] NSWCCA 23 at [33]-[34] per Hoeben CJ at CL (Adams and R A Hulme JJ agreeing) citing Doe v R [2013] NSWCCA 248 at [54] per Bellew J (Hoeben CJ at CL and Johnson J agreeing).

26. Thirdly, it is clear that her Honour fully considered the applicant’s subjective case. That case was to be balanced against the objective seriousness of the offending. The offending involved a significant breach of trust, and was committed in an environment in which a vulnerable teenage victim was entitled to feel completely safe. Her Honour properly recognised (at ROS 4) the need for any sentence to reflect considerations of general deterrence. Her findings (which were not the subject of any challenge on the present application for leave to appeal) included the fact that the victim’s expressed uncertainty about what she was being asked to do by the applicant was met by the applicant reassuring her that it was “not rude or anything”. That form of reassurance was entirely self-serving, and grossly misleading.

27. In all of these circumstances, there is no displacement between her Honour’s findings as to the applicant’s subjective case, and the sentence which was ultimately imposed. On the contrary, her Honour’s determination of the appropriate sentence reflects proper recognition being given to the fact that subjective considerations, no matter how persuasive, cannot be allowed to unduly overshadow the objective gravity of an offence, to the point where there is a failure to ensure reasonable proportionality between the seriousness of the offending and the sentence imposed: R v Van Ryn [2016] NSWCCA 1 at [280]; R v Freedman [2017] NSWCCA 201 at [96] citing R v Dodd (1991) 57 A Crim R 349 at 354 and Kearsley v R [2017] NSWCCA 28 at [14].

28. Finally, as the Crown pointed out, her Honour properly had regard to the relevant legislative guideposts which are set out in [4] above. Reference to those guideposts does nothing other than fortify my view that the sentence was not manifestly excessive.

23. For those reasons I propose the following orders:

1. Leave to appeal granted.

2. Appeal against sentence dismissed.

30. WILSON J: I agree with the orders proposed by Bellew J for the reasons given by his Honour.

**********

Decision last updated: 16 July 2018