Wakeling v R

[2016] NSWCCA 33

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Wakeling v R [2016] NSWCCA 33
Hearing dates:	24 February 2016
Date of orders:	07 March 2016
Decision date:	07 March 2016
Before:	Hoeben CJ at CL at [1] Johnson J at [2] Davies J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal upheld. (3) Quash the sentence imposed by Judge Maiden in the District Court on 7 March 2014. In lieu thereof sentence the Appellant to a non-parole period of four years and one month commencing 22 July 2013 and expiring 21 August 2017 with an additional term of one year nine months expiring 21 May 2019.
Catchwords:	CRIMINAL LAW – sentencing – s 66C(4) Crimes Act - aggravated sexual intercourse with person aged over 14 and under 16 – objective seriousness – whether sentencing judge assessed objective seriousness by reference to offence against s 61J Crimes Act – sentencing judge refers to lack of consent when not an element of offence – need to describe surrounding circumstances of offending – finding of special circumstances – non-parole period 77% of whole sentence – need to re-sentence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bakewell v R (Court of Criminal Appeal, 27 June 1996, unrep.) Hogan v R [2008] NSWCCA 150 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 R v Lupton [2003] NSWCCA 200 R v So [2004] NSWCCA 362 The Queen v De Simoni (1981) 147 CLR 383
Category:	Principal judgment
Parties:	Kenny Wakeling (Applicant) Crown (Respondent)
Representation:	Counsel: H White (Applicant) E Balodis (Respondent)   Solicitors: Phillip A Wilkins & Associates (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/197139
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 07 March 2014 Before: Maiden DCJ

Judgment

1. HOEBEN CJ AT CL:   I agree with Davies J.

2. JOHNSON J:   I agree with Davies J.

3. DAVIES J: On 19 August 2013 the Applicant pleaded guilty to an offence of having sexual intercourse with a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely, that he was in the company of Donna O’Neill at the time, contrary to s 66C(4) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 12 years.

4. On 7 March 2014 he was sentenced by Judge Maiden in the District Court to a non-parole period of four years and six months commencing 22 July 2013 and expiring 21 January 2018 with an additional term of one year, four months and six days expiring on 27 May 2019.

5. The Applicant now seeks leave to appeal on two grounds as follows:

1.   The Sentencing Judge erred in the finding relating to the objective seriousness of the offence.

2.   The Sentencing Judge erred in setting the non-parole period.

The facts

6. There was an Agreed Statement of Facts at the sentencing hearing. The following facts are largely taken from the Sentencing Judge’s summary of those facts.

7. On 19 February 2011 the complainant, who was then aged 15 years, had been asked to baby sit the children of the Applicant and his partner (the co-offender). The complainant was the daughter of friends of the Applicant and the co-offender, and there was a close relationship between the families of the complainant and the Applicant. The complainant had been the regular baby sitter for the Applicant and the co-offender.

8. The Applicant and the co-offender had made an arrangement before the services of the complainant had been engaged to socialise that night at a local club. During that afternoon, the Applicant directed the co-offender to text the complainant with these words, "Kenny wants to know if you would like to have a threesome tonight." The complainant responded, "Tell him no". The Sentencing Judge concluded from the Agreed Facts that it may have been contemplated by the Applicant that despite the complainant's young age she would be provided with alcohol so that she may have been intoxicated and thus open to his suggestions.

9. The complainant cared for the children during the evening, including bathing them and putting them to bed. The Applicant and the co-offender arrived home shortly after 1am. The complainant was still awake and was handed money for the baby sitting.

10. After having a shower the Applicant went into the lounge where he had an argument with the co-offender. He then approached the complainant and said, "If you don't have sex with me I'll hit Donna (meaning the co-offender) and you". At that time the complainant walked into the bedroom of the Applicant and the co-offender because of her fear of a physical assault by him.

11. In the bedroom the Applicant took off the complainant's clothing. The co-offender started kissing the complainant. The Applicant told the co-offender to take the complainant’s bra off, and she did so. The Agreed Facts then say this:

The offender asked the co-offender to start “doing stuff” to the victim but she replied, “No”.

This statement was interpreted by the Sentencing Judge in a particular way that becomes relevant for the first ground of appeal. I will return to it when discussing that ground.

12. The Applicant then began kissing the co-offender and fondling her. He then kissed the complainant and put his hands down her underwear and then said, "Oh, let's take these off." He pulled the remaining clothing off the complainant and then inserted two of his fingers inside her vagina and moved them around inside of her. He then commenced to have penile vaginal intercourse with the co-offender and was kissing the complainant on the mouth and sucking her breasts whilst doing this. The co-offender also kissed the complainant as well as the Applicant. The co-offender also sucked the complainant’s breasts.

13. The complainant attempted to move her body away and look away from both of them but during this time she was pulled back towards the Applicant. The Sentencing Judge commented at this point that it was clear at this time that the complainant was in fear for herself and what was happening to her. His Honour said that it was difficult to imagine the distress that she must have been suffering and attempting to endure.

14. After ten minutes the Applicant took his penis out of the co-offender’s vagina and the co-offender performed fellatio on him. The Applicant then put his penis inside the complainant's vagina and commenced having sexual intercourse with her. The co-offender left the bedroom and went to the toilet. When she returned she said to the Applicant, “I thought you’d be done by now”, to which he replied, “No”. Shortly thereafter the Applicant had penile/vaginal intercourse with the co-offender, and then again had penile/ vaginal sex with the complainant.

15. After another matter of minutes, the co-offender re-entered the bedroom, lay on the bed and turned the television on. At this point the Applicant ejaculated inside the complainant’s vagina. The co-offender asked him words to the effect, "Where did it go?" and the Applicant replied, "In [the complainant]". The co-offender said, “Well, you better hope the pill works and she doesn’t get pregnant.” He said, “No, she won’t”. The Sentencing Judge observed at this point that the sex at this time was unprotected and there was no doubt that on this second occasion of penile vaginal intercourse that the Applicant had no regard for the safety and welfare of the complainant.

16. The complainant left the room and went to sleep in one of the Applicant’s children's rooms. She was followed by the Applicant who asked her, in an abrupt way, if she wanted to have sex again. The complainant told him to go away, which he did.

17. The next day the co-offender said to the complainant (the Applicant was not present), “Would you like to do it again?” to which the complainant replied, “Don’t ever mention it to me again”. The Sentencing Judge said that this highlighted the distress that the complainant had suffered and was suffering at that time.

18. On 14 March 2011 the complainant made complaint to her mother and to the police.

Remarks on sentence

19. His Honour assessed the objective seriousness of the matter at the highest end of the range for such offences. By reason of the submissions made on behalf of the Applicant in respect of ground 1 it is necessary to set out exactly what his Honour said in that regard. He said:

In terms of the objective seriousness of this matter, the court is of the view that this must be at the highest end of the range for such offences. Section 66C(4) carries a maximum term of 12 years imprisonment. It is a statutory offence which mirrors other sexual matters where the complainant/victims are of different age, that is under 14 years. In those involving victims of a younger age, there is an increased penalty.

It should be borne in mind that in respect of the offence of aggravated indecent assault, section 66M(2) [scil. 61M(2)] of the Crimes Act, that particular offence carries a maximum sentence of ten years and parliament has recommended that there be a standard non-parole period of eight years. There is no such standard non-parole period here.

In respect of this matter there were, in the court's finding, a number of actions by this offender that amounted to indecent assaults, for which he was not charged, those matters being part of the overall criminal offending which involved penile vaginal sex.

The authorities, of which there are relatively few, have involved ordinarily cases where the offender is well known to the child. Often they are matters involving the step-father and/or another male person with a young female where there is a degree of affection which results in sexual behaviour between the victim and the person involved. Cases such as EIP v R [2011] NSWCCA 224 are matters involving that sort of case and what, in the finding of this court, severs this case or differentiates this case from that case is that this was a matter which involved a threat to the complainant initially, where the behaviour continued for a lengthy period of time, notwithstanding it was part of the one overall event and it was done in terms of what might be seen by a reasonable member of the public in circumstances of perversion, that is of two adults having or one of their number having sex with a minor, involving fellatio and other acts during the time that the incident occurred.

20. His Honour then went on to consider the subjective circumstances of the Applicant. His Honour noted that he was then aged 29, that he was in a de facto relationship with the co-offender and that they had three children together. The Applicant was employed and had no prior criminal record.

21. His Honour referred to a pre-sentence report from Ms Lauren Sanders which recorded that the Applicant said that he was unable to recall what had occurred on the day in question because of his intoxication. He blamed his behaviour on his consumption of alcohol. His Honour did not accept that explanation. In that regard his Honour drew attention to the planning that was involved in the text message.

22. The Sentencing Judge found that the Applicant did not have any understanding of his actions and the damage it had caused to the complainant. His Honour noted the terms of the Victim Impact Statement from the complainant.

23. By reason of the Applicant having no criminal record, having work experience, his relationship with his wife and children, and that he was previously well thought of by others, his Honour found special circumstances.

24. His Honour found as a result of Ms Sanders’ report that the Applicant was at low to moderate risk of offending. However, his Honour was unable to assess whether or not the incident was what might be described as a “once only” matter.

25. His Honour found that there was a need for general deterrence as well as specific deterrence.

26. Finally, his Honour noted that the evidence showed that the Applicant suffered from no disability nor any intellectual or psychological defect that could give any explanation for his offending behaviour. That left his Honour with the view that what was done was done purely for his sexual gratification.

Ground 1:   Objective seriousness

27. The Applicant submitted that in assessing objective seriousness the Sentencing Judge took into account irrelevant considerations. These considerations were the uncharged offences of aggravated indecent assault and the taking into account of a more serious offence of aggravated sexual assault contrary to the principle in The Queen v De Simoni (1981) 147 CLR 383.

28. The Applicant submitted that the offence under s 66C(4) does not include an element of lack of consent or knowledge that the complainant was not consenting. If an offence under that section is committed in circumstances of lack of consent and knowledge that the complainant is not consenting it gives rise to the more serious offence under s 61J where the maximum penalty is 20 years imprisonment. The Applicant submitted that by his Honour finding the Applicant had committed offences of aggravated indecent assault it was implicit that he considered that the complainant was not consenting and that the acts occurred in circumstances where the Applicant knew she was not consenting. Similarly, the Applicant submitted that his Honour found that the fondling occurred in circumstances where the Judge found that the complainant was not consenting and the Applicant knew she was not consenting.

29. The Applicant pointed to the fact that the Sentencing Judge referred to how the complainant was in fear for herself and what was happening to her. The Sentencing Judge also said that the offence involved a threat initially to her.

30. From these matters it was submitted that the Sentencing Judge was dealing with the sexual intercourse on the basis of a more serious offence under s 61J. In that way the assessment of objective seriousness was arrived at erroneously.

31. The Crown submitted that the Sentencing Judge’s reference to the indecent assaults was relevant to how the offence was committed in company. By referring to the maximum penalty and standard non-parole period for the offence of indecent assault, the Sentencing Judge was explaining the seriousness of some of the other sexual activity.

32. The Crown submitted that the Sentencing Judge did not expressly find that the complainant did not consent to the sexual intercourse with the Applicant although his Honour erroneously included that the complainant showed her reluctance to engage in sexual activity with the co-offender. This was the matter referred to at [11] above. The Crown submitted that when the Sentencing Judge determined the objective seriousness at the highest end his Honour said that the initial threat to the complainant amongst other factors differentiated the case from one where there was a “degree of affection” between an offender and a complainant.

33. The Crown further submitted that if the totality of the remarks by the Sentencing Judge meant that, in effect, he concluded that the complainant was not consenting, his Honour was entitled to rely on that conclusion so long as his Honour did not also make a finding that the Applicant knew the complainant was not consenting in terms of s 61HA(3) of the Crimes Act. Reference was made to Hogan v R [2008] NSWCCA 150.

34. The Crown submitted that had his Honour sentenced the Applicant for an offence contrary to s 61J of the Crimes Act the starting point would have been much higher than a term of six years and six months, his Honour’s starting point for the sentence he imposed. Not the least reason for that was that the standard non-parole period for an offence under s 61J is ten years.

35. In Bakewell v R (Court of Criminal Appeal, 27 June 1996, unrep.) the applicant had been charged with an offence under s 61J arising out of sexual intercourse he had engaged in with a 13 year old girl. An arrangement appeared to have been reached and the charge under s 61J was withdrawn with the applicant pleading guilty to an offence under s 66C. The applicant submitted on the appeal that the sentencing judge fell into error by taking into account as an aggravating feature of the s 66C offence the fact that the complainant was not consenting to intercourse and that the intercourse occurred in circumstances of the use of force.

36. The sentencing judge based his remarks and findings on the content of a statement of the complainant, the content of which was not in dispute. The transcript at the sentencing hearing disclosed that the sentencing judge was alerted to the fact that the applicant was charged with the lesser offence under s 66C and that the element of consent was immaterial.

37. Justice Studdert (with whom Gleeson CJ and McInerney J agreed) said (at p.7):

His Honour’s task was a difficult one requiring considerable care not to take into account material that converted the offence charged with (sic) the more serious one under s 61J. That the Judge recited the facts such as would have supported the more serious offence does not necessarily constitute error, and indeed it seems to me that it was proper that he should recite the facts correctly. It does not follow from such recital that his Honour sentenced the applicant by reference to the additional elements of the aggravated offence contemplated by s 61J. The Judge did not say he was taking into account, in fixing a sentence, those aggravating elements.

38. Ultimately, the appeal in that case was upheld only because the sentencing judge had placed before him a psychological appraisal of the complainant that assessed her on the basis that the intercourse had not been consensual.

39. In Hogan v R the appellant appealed (inter alia) against the sentence imposed on him in respect of his conviction of an offence contrary to s 66C. One ground of appeal was that the trial judge erred in sentencing the appellant by taking into account the complainant’s lack of consent as being relevant to sentencing in circumstances where, by doing so, that factor would have rendered him liable for a more serious offence contrary to the principles in De Simoni.

40. The sentencing judge in that case said in her remarks on sentence:

A submission was made by Mr Hancock, [the appellant’s] counsel, that I ought not take into account in considering the factual circumstances and the objective seriousness of this offence because consent is not an element of this offence. But I think that the factual circumstances of the offence, particularly given the range of offences which can be covered by this offence can be taken into account. For example this offence could cover a situation where two teenagers close in age had consensual sexual intercourse. And I think that that situation is to be distinguished from the situation here which was that [TD] was fourteen years old, [the appellant] was, at that stage, twenty-nine years old, she was affected by alcohol and she was not a willing participant in the act which occurred.

41. The appellant in that case contended that by taking the complainant’s lack of consent into account the court was in effect sentencing him for an offence against s 61J.

42. Justice Beazley (with whom Johnson and McCallum JJ agreed) said:

[77]   In my opinion, her Honour has not offended the principle stated in De Simoni. In the first place, she was conscious that consent was not an element of the offence. Indeed, that had been a matter of submission to her Honour. Rather, it is apparent that her Honour considered the question of whether or not TD was a willing participant was relevant, having regard to the wide range of offences that may be covered by the section. It is also apparent that her Honour’s reference to TD not being a “willing participant” was made so as to gauge the relative seriousness of the offence in this case, as against other offences which might be charged under the section.

43. In the present matter the Sentencing Judge made two and possibly three references to matters that related to the complainant’s lack of consent to the sexual activity described. One was the threat initially made by the Applicant to the complainant set out at [10] above. The second finding is set out in the first sentence in [13] above.

43. The third is arguably what appears at [11] above. The Sentencing Judge summarised this aspect of the matter in this way:

In the bedroom the offender took off the complainant's clothing and there was what might be described as fondling initially and during the initial fondling, which would have amounted to an indecent assault, the complainant said the word "No".

45. The statement in the Agreed Facts is set out at [11] above. The Applicant submitted that his Honour correctly understood the Agreed Facts as saying that it was the complainant who said “no”. That was supported from the surrounding facts which showed that the co-offender continued to participate in the sexual activity.

46. I accept that the Agreed Facts are somewhat ambiguous, but it is not necessary to reach a final view on who said “no” to the Applicant. I do not consider the finding by the Sentencing Judge, if properly made, advances the submissions of the Applicant that his Honour has assessed the objective seriousness for some offence other than the one charged. Even if all of those references disclose that the complainant was not consenting to what took place, I do not consider that error has been shown by the Sentencing Judge’s references to those matters. The matter is not distinguishable from the way the sentencing judges had dealt with the matter in Bakewell and Hogan.

47. It was necessary for the Sentencing Judge to set out all of the details surrounding the offending so that a proper assessment of the objective seriousness could be made. There were two acts of penile/vaginal intercourse and one act of digital/vaginal intercourse. There was no particularisation of which act constituted the offence. Whether the complainant was a willing participant, notwithstanding her age, was relevant, as Hogan makes clear, to the level of objective seriousness.

48. A reading of the Remarks on Sentence as a whole leaves me in no doubt that the Sentencing Judge was aware that he was sentencing in respect of an offence against s 66C and not an offence either contrary to s 61J or s 61M. His Honour contrasted offences under s 66C with the offence of aggravated indecent assault under s 61M. He referred to the different maximum penalty and to the fact that the offence under s 61M carried a standard non-parole period of eight years whereas there was no such standard non-parole period under s 66C. His Honour made reference also to the fact that a number of the actions of the Applicant amounted to indecent assaults “for which he was not charged”. However, his Honour understood those matters as being part of the overall criminal offending.

49. Nowhere does his Honour say or imply that the surrounding facts elevated the offence to one contrary to s 61J or s 61M. His Honour was, however, entitled and required to have regard to them for assessing the objective seriousness of the offending against s 66C.

50. Had his Honour been sentencing under s 61J, as the Applicant submitted, it would have been necessary for his Honour to identify not only a lack of consent on the part of the Complainant but also knowledge on the part of the Applicant that the Complainant was not consenting. The Applicant submitted that his Honour went further than finding no consent and found that the Applicant must have known the complainant was not consenting. The Agreed Facts are silent about the matter. His Honour does not say anything about the Applicant’s knowledge or belief in that regard despite mentioning the matters relating to the Complainant’s lack of consent.

51. Further, I accept the Crown’s submission that if his Honour had in fact been sentencing for an offence against s 61J a starting point of six years and six months for the whole sentence in the face of a standard non-parole period of ten years, even on a plea of guilty, would have needed some justification in the Remarks.

52. In my opinion, this ground is not made out.

Ground 2:   The non-parole period

53. The Sentencing Judge said that in his view the matter should carry a head sentence of six years and six months. From that period he discounted the sentence by 10% for a late plea of guilty which left the sentence at five years, ten months and six days. His Honour made a finding of special circumstances because the Applicant was a person with no record, had work experience, was in a relationship with his partner to whom he had children and was previously thought of well by others.

54. His Honour then said:

Having found special circumstances, there is to be a non-parole period of four years and six months.

55. Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the balance of the term of a sentence must not exceed one-third of the non-parole period unless the court decides that there are special circumstances. The non-parole period in the present case was 77% leaving the balance of the term at 23%.

56. It seems clear that this was an error by the Sentencing Judge. As the Crown submitted, it could reasonably be expected that if his Honour had intended to shorten the balance of term when compared to the standard ratio period he would have explained why he had done so: R v Lupton [2003] NSWCCA 200 and R v So [2004] NSWCCA 362. It is clear that his Honour intended to provide for a longer parole period. The Crown accepted that this was so.

57. I would uphold ground 2.

Re-sentence

58. In the circumstances, this Court is required to exercise its independent sentencing discretion when it re-sentences the Applicant: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [43].

59. The Crown submitted that there was nothing in the available material to justify any adjustment to the non-parole period. However, the Crown conceded at the sentencing proceedings that it could not disagree with the finding of special circumstances.

60. The Applicant pointed to a number of matters including the fact that this was the Applicant’s first time in custody, that there was a need for an extended period on parole to assist his rehabilitation for problems associated with alcohol, and because he was said to be on protection in custody because of the nature of the offence charged. The Applicant relied on the combination of these matters.

61. The only evidence concerning the custodial arrangements for the Applicant was contained in an affidavit tendered at the hearing of the appeal by the Solicitor for the Director of Public Prosecutions. That affidavit annexed a letter from the Manager of Security at Kirkconnell Correctional Centre where the Applicant is held. The letter disclosed that the Applicant was housed in the compound area of the Correctional Centre in unit style accommodation mixing with the rest of the population. He was enrolled to do certain courses in the Correctional Centre. There was nothing to indicate any restrictions as a result of the custodial arrangements.

62. In my opinion, the highest special circumstances can be put is that this is the Applicant’s first time in custody and the pre-sentence report lists as one of his criminogenic needs, alcohol/drug problems. The report went on to say that the Applicant would benefit from a period of supervision by Community Corrections including referral for sex offender related programs and treatment, and referral for alcohol related counselling/programs and/or treatment.

63. In the event that only ground 2 was upheld, the Applicant did not contend that there should be any variation to the head sentence. In my opinion, an appropriate adjustment of the statutory ratio is to provide for a non-parole period of four years and one month being 70% of the overall sentence.

64. Finally, it is necessary to say something about the selection by the Sentencing Judge of an overall sentence that referred to a period of six days in addition to the years and months specified. This Court has said more than once that it is inappropriate to provide for a sentence in that form. Where the application of some discount produces such a result the sentence should ordinarily be rounded up or down to the nearest month as is appropriate.

Conclusion

65. I propose the following orders:

(1)   Leave to appeal granted.

(2)   Appeal upheld.

(3)   Quash the sentence imposed by Judge Maiden in the District Court on 7 March 2014. In lieu thereof sentence the Appellant to a non-parole period of four years and one month commencing 22 July 2013 and expiring 21 August 2017 with an additional term of one year nine months expiring 21 May 2019.

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Amendments

14 March 2016 - Para [51] amended.

Decision last updated: 14 March 2016