WG v The Queen

[2019] NSWCCA 263

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

WG v R [2019] NSWCCA 263

Hearing dates:

23 October 2019

Date of orders:

31 October 2019

Decision date:

31 October 2019

Before:

Hoeben CJ at CL at [1]
Walton J at [2]
Price J at [63]

Decision:

(1) Leave is granted to bring the appeal out of time;

 

(2) Leave to appeal granted;

 (3) Appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal – sentence – medical conditions – loss of employment – protective custody – grounds of appeal without merit

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:

Greenwood v R [2014] NSWCCA 64
Miller v R [2015] NSWCCA 86
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category:

Principal judgment

Parties:

WG (Applicant)
Regina (Respondent)

Representation:

Counsel:
B Baker (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/163455

Publication restriction:

Statutory prohibition on publication in relation to identities of the complainants under s 578A of the Crimes Act 1900 (NSW); Non-publication order in relation to the name of the applicant.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 November 2017

Before:

Judge Wells SC

File Number(s):

2016/163455

Judgment

1. HOEBEN CJ AT CL: I agree with Walton J and the orders which he proposes.

2. WALTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act1912 (NSW) to appeal against sentence imposed upon him on 9 November 2017 in the District Court at Coffs Harbour by her Honour Judge Wells SC.

3. The applicant was sentenced to an aggregate sentence of 5 years and 7 months imprisonment with a non-parole period of 3 years and 6 months for 11 sexual offences against the three daughters, JP, SS and HP, of his then partner, namely:

1. 10 offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW), which at the relevant time attracted a maximum penalty of 7 years imprisonment; and

2. 1 offence of aggravated act of indecency with a person under the age of 16 years (under authority) contrary to s 61O(1) of the Crimes Act, which at the relevant time attracted a maximum penalty of 5 years imprisonment.

4. No standard non-parole periods were applicable to those offences.

5. Nine additional offences of aggravated indecent assault under s 61M(1) of the Crimes Act (with a maximum penalty of 7 years imprisonment) were taken into account on Form 1 documents pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

6. The sentencing judge applied a 25% discount for the utilitarian value of the applicant's early pleas of guilty and imposed indicative sentences for each of the 11 offences which are reflected in a table helpfully prepared by Ms B Baker, who appeared for the respondent, as follows:

Sequence	Offence	Indicative Sentence
Complainant JP
H266876194 /6	Aggravated indecent assault (under the age of 16 years namely, 14 years) S 61M(1) Crimes Act 1900	9 months
H266876194 /16	Aggravated indecent assault (under the age of 16 years namely, 15 years) S 61M(1) Crimes Act 1900	9 months
Complainant SS
H266876194 /1	Aggravated indecent assault (under the age of 16 years namely, 12 years) S 61M(1) Crimes Act 1900	1 year 1 month
H266876194 /12	Aggravated indecent assault (under the age of 16 years namely, 15 years) S 61 M(1) Crimes Act 1900	6 months
H266876194 /13	Aggravated indecent assault (under the age of 16 years namely, 15 years) S 61M(1) Crimes Act 1900	Taking into account 3 offences of aggravated indecent assault on a Form1: 1 year 10 months
H266876194 /14	Aggravated indecent assault (under the age of 16 years namely, 15 years) S 61M(1) Crimes Act 1900	Taking into account 2 offences of aggravated indecent assault on a Form 1: 1 year 6 months
H266876194 /19	Aggravated indecent assault (under authority) S 61M(1) Crimes Act 1900	1 year 1 month
Complainant HP
H266876194 /2	Aggravated indecent assault (under the age of 16 years namely, 10 years) S 61 M(1) Crimes Act 1900	1 year 10 months
H266876194 /5	Aggravated indecent assault (under the age of 16 years namely, 10 or 11 years) S 61M(1) Crimes Act 1900	Taking into account 3 offences of aggravated indecent assault on a Form 1: 2 years 3 months
H266876194 /20	Aggravated indecent assault (under the age of 16 years namely, 10 or 11 years) S 61M(1) Crimes Act 1900	Taking into account 1 offence of aggravated indecent assault on a Form 1: 1 year 10 months
H266876194 /21	Aggravated act of indecency with person under the age of 16 years, namely 11 years (under authority) S 61O(1) Crimes Act 1900	8 months

7. The applicant requires leave to appeal out of time. No objection was taken by the respondent in that respect.

GROUNDS

8. The applicant, who was self-represented, relied upon three grounds of appeal as follows:

1. The Court failed to recognise that my poor memory during questioning was due to thyroid disease and not an attempt to evade questions or responsibilities.

2. The loss of my forty (40) year career was not taken into account during sentencing.

3. The need to remain in protective custody was not taken into account during sentencing.

9. The applicant relied upon his affidavit filed in these proceedings on 28 August 2019. There was no objection to the affidavit by the respondent.

BACKGROUND FACTS

10. There was an agreed statement of facts in the proceedings below executed by the applicant on 25 June 2017 and the respondent on 26 June 2017. The applicant gave evidence at the sentencing hearing and was cross-examined.

11. Between 1996 and 2000 when the applicant was aged in his mid-40s, he indecently assaulted his partner's three daughters, who were then aged between 10 and 16 years. The applicant had assumed a father figure role in relation to each complainant.

Sequence 6 – JP

12. When JP was 14 years old and the applicant was 43 years, the applicant was playing with JP on her mother's bed. Whilst he was tickling JP, the applicant groped JP's breasts and groin region outside of her clothing. JP knew that what the applicant was doing was wrong, and was not an accident, and left the room immediately. She was concerned for her mother's happiness and did not want to cause trouble. She became wary of the applicant.

Sequence 16 – JP

13. When JP was 15 years, she was doing work experience at Port Macquarie while her family lived at Dorrigo. As JP's mother was working, the applicant took JP to Port Macquarie for the week and they stayed at a hotel. They stayed in separate beds, however, on one night, JP woke up in the middle of the night to find the applicant touching one of her breasts. The applicant was kneeling beside the bed and his hand was groping around her left breast on the outside of her jumper. JP was terrified. She rolled over, pulling the covers over her in order to prevent the applicant from continuing. The applicant walked back to his bed. They did not speak about what happened. After this incident, JP had trouble sleeping.

Sequence 1 – SS

14. When SS was 11 years old, she went on a holiday with her family to Valla Beach. The applicant was also there, either staying with them or visiting. The applicant was playing a chasing game with SS and her sisters. The applicant chased SS's sisters into a corner and started tickling them.

15. The applicant initially began tickling SS before putting his hands up inside her shirt. SS was not wearing a bra as her breasts were just developing. The applicant tickled SS's stomach and then suddenly grabbed one of her breasts and her nipple. He then did the same to the other breast. SS was scared. She pushed the applicant's hand away. The applicant then carried on as if nothing had occurred.

Context evidence – SS

16. In 1997, SS moved with her mother and sisters to Dorrigo, where the applicant often visited. The applicant kissed SS on the lips. This made her feel uncomfortable. On another occasion, she saw the applicant watching her as she was dressing after her shower. Similar incidents occurred when SS saw him loitering outside her window while she was getting changed. SS developed a habit of changing in her wardrobe. SS also recalled another occasion in 1999 when she caught him watching her through a hole in the bathroom door while she was naked. SS begged the applicant to "stop doing these things".

17. When SS was aged between 13 and 15 years, the applicant would provide SS with alcohol. On occasions after she had consumed alcohol, the applicant would take her to the bedroom and tickle her towards her breast and vagina areas.

Two Form 1 offences (in relation to sequence 14) – SS

18. During this period, on several occasions when SS was asleep, she woke up to find the applicant's hand down the front of her underwear on the outside of her vagina or on some occasions touching her breasts.

Sequences 13 and 14 – SS

19. During the same period, the applicant started kissing SS quite passionately when tucking her into bed. He tried to push his tongue inside her mouth, causing SS to compress her lips to prevent it.

20. On another occasion, the applicant engaged in a simulated sexual activity while lying in bed with SS. The applicant had an erection was pushing his penis against SS's body.

Three Form 1 offences (in relation to sequence 13) – SS

21. On another occasion, SS and the applicant were in the backyard shed of SS's home. The applicant put his hand on SS's backside, who moved his hand away. He grabbed her bottom again.

22. In the latter part of 1999, when SS was 15 years, she became ill and was diagnosed with anorexia. The applicant entered SS's bedroom to say goodnight and sat on her bed. He put his hand onto her breast and held it there, stating that she was losing too much weight and that she would lose her “lovely curves" and her "boobs" would get small. SS did not have the energy to push the applicant away.

23. On another occasion, when SS was 14 or 15 years old (1998 - 1999), SS was watching TV with one of her sisters. The applicant was sitting between them on the couch. Underneath a blanket, the applicant put his hand on the outside of SS's clothing toward her vagina and she pushed his hand away.

24. By January 2000, SS started avoiding the applicant. On one occasion, the applicant was affected by alcohol and confronted SS about her attitude towards him. Toward the end of that year, JP moved to Brisbane to study. SS decided to move to Brisbane with JP and the applicant. The applicant would talk about himself and SS as if they were moving to Brisbane together as a couple.

Sequence 19 – SS

25. In 2000, when SS was 16 years old, the applicant arranged for them to travel to Sydney together. Again, the applicant touched SS inappropriately and attempted to kiss her passionately.

26. At some later stage, SS began going out with a man. The applicant was particularly angry when he found out about it and SS moved out, thereafter avoiding the applicant. She was diagnosed twice with anorexia between 2001 and 2002 and refused to see the applicant while she was in hospital.

Sequence 2 – HP

27. During the applicant's relationship with HP's mother, he became a father figure and provided HP with gifts and other treats.

28. In April 1996, when HP was 10 years old, the applicant kissed HP goodnight and forced his tongue inside her mouth when they were at the Valla Beach Caravan Park. This made HP feel strange and confused.

Form 1 offence (in relation to sequence 20) – HP

29. In early 1997, when HP was 10 or 11 years old, she was alone with the applicant in the master bedroom one morning. The applicant engaged in simulated sexual activity. The applicant took hold of HP and moved her on top of his erect penis with her legs either side. He asked her whether it felt good and whether it felt nice.

Form 1 offence (in relation to sequence 5) – HP

30. During the same period there was also an occasion where the applicant rubbed HP's vagina, both inside and outside her underwear.

Sequences 5 and 20 – HP

31. Also in 1997, when HP was 10 or 11 years old, HP was in her bed and her mother was not home. The applicant got on top of HP and touched her underdeveloped breasts skin-on-skin and touched her vagina through her underpants (sequence 5). The applicant also gyrated his pelvis against hers and he had an erect penis at the time (sequence 20).

Sequence 21 – HP

32. On another occasion, HP had some girlfriends sleep over in a tent in the backyard. They were talking and laughing about matters relating to sex and erect penises. HP observed the applicant sneaking around outside and run away when alarm was raised.

33. The next day, the applicant entered the shower while HP was in there and exposed his erect penis to her. He said he knew what they were talking about last night and that he would not tell anyone, but she could not tell anyone about the shower.

Context evidence – HP

34. From reading a teen magazine, HP realised that the applicant's activities were akin to him masturbating. She subsequently left a letter in her mother's drawer, being a contemporaneous outlining of alleged incidents which HP recalled both before and after 1997. The applicant's behaviour ceased about that time, when she realised it was wrong. There had been other occasions when HP was 11 or 12 years and the applicant would enter her room and touch her breasts.

35. The complainants raised these matters with their mother in 2003. The applicant was then confronted. The applicant completely denied the allegations. Complaints were made to Police in 2015 and 2016.

DISPOSITION OF THE GROUNDS

Ground 1: The Court failed to recognise that [the applicant's] poor memory during questioning was due to thyroid disease and not an attempt to evade questions or responsibility

36. The applicant submitted that it was "not open to the sentencing judge to find that he was being evasive or refusing to take responsibility for his crimes" during his evidence because he had memory problems relating to his thyroid condition.

37. The applicant contended that he was diagnosed with hypothyroidism in January 2017. He further submitted that "one of the common problems associated with hypothyroidism is poor memory". He also stated that he was unable to "satisfactorily answer" many questions in cross-examination, and that his failure to do so was "a result of memory loss due to thyroid disease".

38. In his affidavit read in these proceedings, he stated that he was “questioned at length” in the sentencing hearing and that he was “unable to satisfactorily answer many questions” because he could “not recall the events in question or had just a vague memory of them”. He stated that he was not shirking responsibility but that he simply could not recall events due to his “thyroid disease”.

39. The applicant gave evidence in the proceedings on sentence on 9 November 2017. This evidence post-dated his diagnosis. In the sentence proceedings, there was self-reported evidence from the applicant that he had a thyroid condition and that manifested in difficulties with memory and tiredness.

40. As the applicant accepted in submissions before this Court, there was no expert evidence in the Court below opining that the applicant's memory of his offending behaviour was likely to be affected by such a condition. The evidence led by the applicant in these proceedings does not overcome that omission.

41. It was neither suggested by the applicant in evidence, nor by his counsel in submissions in the sentencing proceedings, that the sentencing judge should consider any medical condition of the applicant as the explanation for his asserted inability to recall certain events in cross-examination. Rather, the applicant's evidence was that he had tried to "blot the offending out of his mind”. Similarly, in relation to his memory of the complainants' rejections of his behaviour, the applicant did not deny all recollection but instead stated "it wasn't verbalised to me at the time" and that he could recall some occasions but "not in detail”.

42. In these circumstances, given the applicant was represented in the sentencing hearing, the applicant is constrained by the well-established principles set out in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81] (per Johnson J, with whom McClellan CJ at CL agreed), namely, an appeal is not an occasion to reformulate the case made in the court below.

43. In any event, the applicant received the benefit of a finding that he had demonstrated remorse in the “pretext” phone calls and in his pleas of guilty. Nonetheless, the sentencing judge expressed a guarded view as to remorse as follows:

Although I regard him as having good prospects of rehabilitation in that he demonstrated some remorse during the pretext phone call, I nevertheless have some reservations as to whether or not he is truly remorseful. There was a delay in his acknowledgement of the wrong in what he did to these girls and an undercurrent of his minimising what he did, the failure to recall events, and to explain frankly what was going on in his mind at the time of the commission of these offences, other than to say he was stressed and using too much alcohol.

44. That finding was, on the evidence in the sentencing hearing, open to the sentencing judge.

45. This ground of appeal should be dismissed.

Ground 2: The loss of [the applicant's] forty (40) year career was not taken into account during sentencing

46. The applicant submitted as follows:

The loss of my nursing career spanning over forty (40) years was not taken into account during sentencing. Her Honour indicated that this would be considered when she said ‘…It is certainly the end of his nursing career, which is a matter to which the Court could give some weight’…I realise that I would be unable to continue nursing as a result of my crimes. However, the loss of my nursing registration means that I can no longer be employed in any aspect of nursing or health, such as teaching or administration anywhere in Australia… It was always my intention to continue working into my seventies for two reasons…

47. In oral submissions, the applicant emphasised that he not only had lost a job but a career.

48. Contrary to the applicant's submissions, the sentencing judge expressly took into account the loss of the applicant's 40-year career as a nurse. At page 9 of the Reasons on Sentence, the sentencing judge found that the applicant was a person of good character in every other aspect of his life and noted that he had "worked for 40 years in a professional role assisting other members of the community". The sentencing judge further stated:

[The applicant] retains the support of his current wife and... he indicated their future plans, though as he conceded in his evidence, it is certainly the end of his nursing career, which is a matter to which the Court could give some weight.

49. These considerations arose out of the applicant's submission at the sentencing hearing.

50. In Greenwood v R [2014] NSWCCA 64, this Court doubted that the loss of employment should be given any weight in a case where the loss of employment was "an inevitable consequence" of the commission of the offence. Hoeben CJ at CL, with whom Bathurst CJ and Adams J agreed, stated at [35]-[36]:

[35] There is no substance in the applicant's submission that his Honour erred in failing to take into account by way of "extra curial punishment" the fact that the applicant had lost his job as a result of his conviction for this offence. Loss of employment, no matter what the employment, would be an inevitable consequence in almost every circumstance where a person was convicted of an offence of this kind.

[36] The difficulties with such an approach were identified by Basten JA in somewhat different circumstances when referring to the loss of a profession, in Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [85] - [97] (RS Hulme and Latham JJ agreeing).

"87 ... Nevertheless, the label "extra-curial punishment" seems inapposite in relation to all of these considerations ... Nor is it desirable to address them all under the same heading. Some consideration must be given to the consequences of how particular matters are taken into account. Thus, loss of good standing in the community may readily give rise to an element of double counting, if the offender is also given favourable consideration for his or her prior good character. Taking account of the economic consequences (including loss of employment) which inevitably follow from imprisonment, may mean that those previously in employment will receive shorter sentences than those who were unemployed."

51. In the result, the fact that the sentencing judge gave "some weight” to the applicant's loss of his career as a nurse was to the applicant’s advantage. There is no other special or exceptional circumstance pointed to, as having a connection to the applicant’s loss of employment, which may warrant any further mitigation being given in this respect.

52. This ground should be dismissed.

Ground 3: The need to remain in protective custody was not taken into account during sentencing

53. The applicant submitted that his time in custody is more onerous because of the nature of his offences and the subsequent need to remain in protective custody and that the sentencing judge failed to take this into account in sentence.

54. There was no evidence in the Court below to establish that the applicant was to serve his sentence in protective custody, except by virtue of the nature of the offences. In the Court below, counsel for the applicant made a submission to the effect that given the nature of the offences and the likelihood of protective custody, the Court could accept that imprisonment may be more burdensome on the applicant.

55. The applicant relied upon an affidavit sworn by him on 18 August 2019, in which he states that he is now in protective custody (limited association). He stated that he has been verbally abused, and that he has had rocks thrown at him. He considers the threat is elevated by the recording of him on a phone by a complainant during the sentencing hearing because this factor must result in him remaining in protective custody for the balance of his incarceration.

56. It is well established that it cannot be assumed that protective custody is more onerous than other forms of custody: Miller v R [2015] NSWCCA 86 at [31]. The sentencing judge did not err in failing to take protective custody into account in mitigation of the sentence.

57. Further, in accordance with the applicant's counsel's submission at the sentencing hearing, the sentencing judge found special circumstances and varied the statutory ratio to 62.6% of the head sentence.

58. In the circumstances, there could be no basis for the applicant's full time custodial sentence to be further reduced.

59. This ground of appeal should be dismissed.

FURTHER SUBMISSION

60. The applicant referred to his recognition of his offending conduct, his high prospects of rehabilitation and his good behaviour whilst incarcerated to contend that his non-parole period should be reduced. Whilst he would seem, by his submissions, to have recognised his offending and its consequences and his prospects for rehabilitation are, as the sentencing judge found, good, there is no ground of appeal which may sustain such a claim for relief and no proper basis upon which the submission may be accepted to ground the relief sought. I reject the contention.

CONCLUSION

61. As there is no objection to the grant of leave to extend time it should be granted. Given that the affidavit of the applicant has been read in these proceedings, it is appropriate, in my view, that leave to appeal be granted but the appeal be dismissed upon the basis that the grounds of appeal are without merit.

ORDERS

62. I propose that the Court make the following orders:

1. Leave is granted to bring the appeal out of time;

2. Leave to appeal granted;

3. Appeal dismissed.

63. PRICE J: I agree with Walton J.

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Decision last updated: 01 November 2019