XY v The Queen

[2007] NSWCCA 72

New South Wales
Court of Criminal Appeal

CITATION:	XY v R [2007] NSWCCA 72
HEARING DATE(S):	16 February 2002
JUDGMENT DATE:	23 March 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Sully J at 63; Howie J at 65
DECISION:	1. Appeal allowed; 2. Resentence the applicant as follows:; Count 1: fixed term of 4 years imprisonment commencing on 3 March 2006 and expiring on 2 March 2010; Count 2: a non-parole period of 4 1/2 years commencing on 3 March 2006 and expiring on 2 September 2010 with a parole period of 3 years expiring on 2 September 2013; Count 3: fixed term of six months commencing on 3 September 2005 and expiring on 2 March 2006; Count 4: fixed term of six months commencing on 3 December 2005 and expiring on 2 June 2006; Accordingly, the total term without parole will be a period of 5 years with a further period of 3 years on parole.
CATCHWORDS:	CRIMINAL LAW - Appeal against sentence - sexual assault of child - digital penetration - assault occasioning actual bodily harm - young offender - whether intoxication and prior good character were mitigating factors - whether offender was contrite - whether offence was close to being the worse case of its kind - whether offence was mid-range - whether there was error in determining non-parole period
LEGISLATION CITED:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Allpass (1994) 72 A Crim R 561 R v Dunn unreported, NSWCCA, 15 April 1992 R v Gordon (1994) 71 A Crim R 459 R v Kotevski unreported, NSWCCA, 3 April 1998 R v Marshall [2007] NSWCCA 24 R v Olsen [2005] NSWCCA 243 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Slack [2004] NSWCCA 128 R v Thomas (1993) 65 A Crim R 269 R v Wicks [2005] NSWCCA 409
PARTIES:	XY (Appl) The Crown
FILE NUMBER(S):	CCA 2006/2365
COUNSEL:	S J Odgers SC (Appl) J Dwyer (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/1028
LOWER COURT JUDICIAL OFFICER:	English DCJ
LOWER COURT DATE OF DECISION:	20 April 2006

2006/2365

McCLELLAN CJ at CL
SULLY J
HOWIE J

FRIDAY 23 MARCH 2007

XY v R

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against sentences imposed on him in the District Court. On 11 October 2005 the applicant pleaded guilty to four charges as follows:

Count 1: sexual intercourse with a child under the age of 10 years (s 66A Crimes Act 1900) for which the maximum penalty provided by statute is 25 years imprisonment with a standard non-parole period of 15 years.

Count 2: maliciously inflict grievous bodily harm with intent to do grievous bodily harm (s 33 Crimes Act 1900) for which the maximum penalty provided by statute is 25 years imprisonment with a standard non-parole period of 7 years.

Counts 3 and 4: assault occasioning actual bodily harm (s 59(1) Crimes Act 1900) for which the maximum penalty provided by statute is 5 years imprisonment.

2 The sentencing judge imposed the following sentences:

Count 1: fixed term of 8 years imprisonment commencing on 1 March 2007 and expiring on 28 February 2015;

Count 2: non-parole period of 10 years commencing on 1 March 2007 and expiring on 28 February 2017; with a parole period of five years.

Count 3: fixed term of 9 months imprisonment commencing on 2 June 2006 and expiring on 1 March 2007;

Count 4: fixed term of 9 months imprisonment commencing on 3 September 2005 and expiring on 2 June 2006;

3 Accordingly, the aggregate sentence imposed on the applicant was 16½ years with an effective non-parole period of 11½ years. The sentences in relation to counts 1 and 2 were entirely concurrent. The sentences imposed in relation to counts 3 and 4 were cumulative and were in turn accumulated with the concurrent sentences imposed on counts 1 and 2.

4 The sentencing judge concluded that there was only a limited utilitarian value of the applicant’s plea of guilty and allowed a discount of ten percent. It was entered only on the first day of trial. The sentencing judge also had regard to two periods of pre-sentence custody and backdated the commencement date of the sentence accordingly. Her Honour found special circumstances due to the age of the applicant, the fact that it was his first time in custody and his need for an extended period of supervised parole.

The facts

5 The offences arose from a single incident when the applicant assaulted three children of his girlfriend. Counts 1 and 2 both related to a female child aged 2 years and counts 3 and 4 related to each of two young male children, aged 8 and 4 years.

6 The sentencing judge made comprehensive findings of fact which were as follows:

“In February 2004 the offender and AR were in a domestic relationship. They had been in this relationship since October 2003. The offender moved into AR’s premises in early December 2003. They lived at those premises with her four children. DF who was aged 17 had also been living at the house for a few days. The children are KP, born 19 January 1995 who was then aged 8 years and 11 months; BP, born 17 April 1997, she was then aged 6 years and 10 months; TP, born 11 June 1999, he was then aged 4 years and 8 months; and MP born 30 May 2001, she was then aged 2 years and 9 months. The children, K, T and M are the victims in this matter.
On 26 February 2004 AR went to her friend DR’s house. While AR was at the house she consumed a number of Woodstock Bourbon and Cokes. M was left in the care of the offender and DF. The other three children were at school. Earlier that day the offender complained to AR that M had bitten him on the toe. As a consequence AR took disciplinary action against M. AR took her to the bedroom and hit her once on the buttocks with a strap. The strap is approximately one metre in length and is made from plaited nylon. M was told to stay in her room.
AR then left the house and walked to the nearby school to collect. T. At about 3pm she arrived home and saw the offender standing out the front of her house with M. The offender told AR that he was going to his mother's house with DF - he left M with AR. A short time later K and B arrived home from school.
At about 6 pm the offender and DF arrived home, they saw AR in the front yard of DR’s premises with T and M. B and K were in the front yard of AR’s premises playing together. At about 6:30pm the offender left. He told DF he was going to the Emerton Hotel. DF remained with K; B went to her mother who, at the time was still at DR’s premises.
At about 8:30pm B, T and M came home. DF was playing a Sony play station game. At about 8:45pm AR came home and fed and prepared the children for bed. AR told the children to go to their beds, they complied and went to their respective rooms. AR left the house and she returned to her friend's house. DF remained in the lounge room playing the play station.
The offender arrived home at about 9:15 pm, the offender cooked some food for himself and DF. After they ate the meal they jointly played the play station. At about 10 pm the offender left DF and walked down the hallway. The children were making noises and were restless in their rooms. The offender obtained the nylon strap; the offender then struck T and K on their buttocks with the strap on a number of occasions. As a consequence of being struck, they cried immediately.
The offender then went to M’s room. M was out of her bed at the time. The offender struck her on the buttocks. He then left the room. DF heard the children crying. He considered M’s crying to be "painful" so he went to investigate. While DF was investigating, the offender went to the toilet. When DF entered M’s bedroom he saw blood. He felt the mattress and he found it to be wet with blood. He called out to the offender. The offender entered M’s room and picked her up. He took her to the bathroom. He was accompanied by DF. They noticed blood dripping from her vagina. She was still crying. The offender told DF to get AR. DF left the house and told AR that M was bleeding. They returned to the house - a short time later the offender rang for an ambulance. The ambulance arrived at 10:28pm. M was taken to the nearby Mt Druitt Hospital where she was seen by Dr Georgis. He noted she was suffering from vaginal bleeding and in addition she was suffering from multiple bruises on the suprapubic area, lower abdomen, inner thighs, buttocks and back. He also noted clotted blood around the genitalia and inner thighs.
As a consequence M was transferred to the Children's Hospital at Westmead. M was seen by Dr Glenys Griffiths. Dr Griffiths conducted a genital examination upon M and she found: multiple lesions over her buttocks, some extending to her lower back and upper thighs. These lesions were parallel track like linear markings with some overlying petechial bruises and abrasions. The size of these lesions varied from 3 centimetres to 14 centimetres in length. The lesions were consistent with being hit with a strap. A 6 centimetre by 2 centimetre rectangular shaped blue purple bruise with abrasion of the skin over left groin extending to the mons pubis with an underlying bruise approximately 5 centimetres long which extended further into the groin. A red abrasion 2 centimetres by 2 centimetres on her mons pubis to the left side. Bruising to her labia majora, red brown colour, one centimetre by one centimetre on the left labia majorum, 2 centimetres by 2 centimetres majorum on the right. Abrasions on her right labia majora, approximately one centimetre in length; areas of arrhythma in the upper inner aspects of her labia minora. Blood was observed on the posterior fourchette area with a posterior fourchette tear at 6 o'clock.
M was required to undergo an examination under general anaesthetic in the operating theatre as the ano-genital examination was unable to be adequately completed. The examination revealed posterior fourchette tear and a complete transection of the hymen at 5 o'clock. The rectum and vaginal canals were both normal. Photographs were taken of the injuries to M’s vulva, hymen and posterior fourchette.
Later, M told hospital care workers that [the offender] "touched me down there" and she asked "Are you going to punch me in the wee wee?" Dr Griffiths found the findings were consistent with acute penetrating trauma. She ruled out accidental injury to the hymen on the basis that there was an absence of injury to the external genitalia. She found that whilst the tear to the posterior fourchette could be indicative of accidental injury, the pattern of genital bruising and hymeneal lesions is inconsistent with accidental injury.
Dr Griffiths also found that an object had been inserted into M’s vagina in order to cause the injuries. She ruled out the possibility the injuries could have been caused by a punch to the vagina or by whipping the child with a strap.
Dr Griffiths' findings and the photographs taken of M were forwarded to Dr Kieran Moran, the head paediatrician with the Sydney Children's Hospital at Randwick. Dr Moran agreed with Dr Griffiths' findings. Dr Moran also ruled out accidental causes for the injury. Dr Moran found that a punch or blow with a fist to the vulval area could not cause injury to the hymen. He stated that injury to the hymen requires the insertion of an object into the vagina.
KP and TP were also seen by Dr Georgis at Mt Druitt Hospital. Dr Georgis found that K had sustained multiple longitudinal bruises across the buttocks and longitudinal bruises to the left side of the back. Pain killers were administered. Dr Georgis found that T had sustained multiple longitudinal bruises across the buttocks, there was no tenderness or bleeding. Pain killers were also administered to T.
Police interviewed B, K and T. K told police that the offender had smacked him with a belt on a number of occasions and told him to go to sleep, B told police that the offender did not hit her. She pretended to be asleep. She could hear the offender hitting K and T. She saw the offender hit M with the strap and she then closed her eyes. T told police that the offender hit him with the strap on the bottom on a number of occasions.
The offender was arrested by police on 27 February 2004. He was taken to Mt Druitt Police Station, he agreed to be interviewed. He informed police that when he came home the children were not making any noise; that while he was playing the play station with DF he could hear noises coming from the children's rooms. He went to investigate. He told them to go to bed and he smacked them with an open hand. He returned to the lounge room, M came out of her room, he told her to go back to bed, he heard a loud crash after she entered her bedroom, he thought she may have hit the ensemble bed in her room. He went to investigate and saw blood on the inside of her thigh. He called out to DF who came to the bedroom. He admitted to previously smacking T on two occasions; he admitted to smacking M on three occasions. He said he used his hand to smack them. He said his hand may have left a red mark on them. He denied using the belt to smack them. He claimed that M bled from the vagina because she may have hit the corner of the bed.”

Subjective matters

7 The sentencing judge provided a detailed account of the relevant subjective matters. The applicant was eighteen at the time of the offences and aged twenty at the time he was sentenced. He did not give evidence at the sentencing hearing. However, reports were tendered from Mr Peter Ashkar, a clinical psychologist, and the Probation and Parole Service.

8 The evidence indicated that the applicant had a stable and happy childhood. He had no history of juvenile offending behaviour. He left school in Year 9 and has held a variety of jobs as a factory worker, a forklift driver and a truckie’s offsider. He suffers no apparent mental impairment and, at the time of sentencing, had a regular girlfriend.

9 At the time that he committed the offences the applicant had been in a relationship with the victims’ mother for about six months. She was older than the applicant and had four children from a previous relationship. It would seem that there was regular use of alcohol and cannabis in the household. The evidence disclosed that although the applicant did not use illicit substances he had problems with the abuse of alcohol. He was described by the sentencing judge as “weekend binge drinker.”

10 The applicant told Mr Ashkar that on the evening of the offences he had consumed 12 schooners of beer. He described himself as intoxicated. He said: “I was a bit wobbly on my pushbike.” He told Mr Ashkar that when he arrived home and found his partner had gone to a friend’s place leaving him with the children he was annoyed. When the children would not go to sleep he became frustrated and went into a rage. He said that he smacked the children with an open hand. He said to Mr Ashkar that he had “poked the female child once between her legs with his finger.” He said that he did this because he “knew that would hurt her.”

11 The applicant denied that his assault on the female child was sexually motivated. He denied knowledge of having penetrated her with his finger at the time. He did not believe that hitting a child on the buttocks with an open hand was wrong, although he accepted that it was wrong to have “poked [the child] between the legs.”

12 The applicant apparently told Mr Ashkar that he was sorry for having hurt the children and wished he had never done it. He agreed that he was out of control and accepted that no child deserves to get flogged and touched inappropriately. With the benefit of hindsight he recognised that he should have gone and found the children’s mother and allowed her to resolve the domestic situation.

13 Neuropsychological functioning tests were carried out on the applicant. He demonstrated no personality pathology. He was assessed as being within the moderate high-risk category of sexual and violent recidivism relative to other male sex offenders. However, Mr Ashkar was of the opinion that the results overestimated the risk. In his view the risk of sexual recidivism was more appropriately classified as moderate to low. The factors said to have contributed to the applicant’s offending behaviour are alcohol abuse, negative mood, anger and victim access. The applicant’s behaviour is said to have been grounded in anger and the need for power and control.

The remarks of the sentencing judge

14 The sentencing judge noted that Mr Ashkar believed that the offence against the female child was sexually motivated. The applicant denied this. Her Honour concluded that she was “unable to find that the offence was committed for sexual gratification; indeed I find to the contrary.” Her Honour indicated that the lack of sexual gratification was relevant to the matter of sentence: R v Dunn unreported, NSWCCA, 15 April 1992.

15 Her Honour said that she was satisfied that the offence of maliciously inflicting grievous bodily harm on the female child “could hardly be said to be more serious. It is difficult to find other than it comes close to being in the worst class of cases of its kind. It is far more serious than those envisaged as coming within the mid range of objective seriousness.”

16 Her Honour said:

“[The child] was only two years and nine months at the date of the offences committed against her. Whilst age is an element of the first count, it remains an important factor in assessing the degree of his criminality. The younger the age of the victim, the more serious the criminality. The sexual assault upon her was perpetrated with sufficient force to cause a posterior fourchette tear and a complete transection of the hymen; that is also the act relied upon to found count 2 on the indictment.
The medical evidence, in particular the expert opinion of Dr Glenys Griffiths states ‘significant force would be needed to cause such injuries given that the hymen tissue is distensible.’ There is photographic evidence of a significant amount of blood loss from a small child on her clothing, on the mattress and on the bathroom floor. In addition to the internal injuries she sustained bruising and abrasion to the skin of her groin, her mons pubis, her labia majora and in the upper inner aspects of her labia minor. She needed to be anaesthetised to examine the extent of her injuries.
There can be no doubt she would have been in considerable pain following these acts of extreme violence. Her screams of pain were such that the young DF came to investigate. In addition she was whipped with a length of plaited nylon rope which left significant bruising which is depicted in the photos and described in the medical evidence. Her injuries alone are a testament to the violence with which the offences were committed.
The impact of the offences upon [the child] are said to be detailed in a report prepared by a child protection case worker, Monica Gutierrez. Miss Gutierrez was assigned to the case in January 2006. She has conducted a review of [the child’s] case file. [The child] is reported as displaying inappropriate sexualised behaviour, aggressive behaviour and anxiety, all symptoms said to be consistent with the type of abuse she has sustained. It is not clear from the report however whether those symptoms were present initially or continued over the entire period or have abated.
Whilst it is said that the impact of child abuse occurring in the child’s formative critical years impacts enormously upon a child, there is insufficient evidence for me to make any finding that that is so in [the child’s] case in the absence of medical evidence and/or contemporaneous material other than the report prepared by the case worker which I find to be of little assistance.”

17 The sentencing judge recognised that the sentencing of the applicant was a difficult exercise. Her Honour acknowledged that the elements of the s 66A offence and s 33 offence overlapped significantly, although they were quite separate and distinct offences. The act of penetration of the girl’s vagina constituted the act of sexual intercourse. This was also the act relied upon as having been done maliciously with intent to do grievous bodily harm in addition to the whipping of the complainant with a length of plaited nylon rope.

18 Her Honour found that there were additional aggravating factors in respect of count 1. There was actual violence used in the penetration of the vagina, the applicant abused his position of trust and the victim was vulnerable, being aged 2 years and 9 months. She was in her own bedroom and in the sanctity of her own home when the offences were committed.

19 In relation to count 2 her Honour found that the injuries inflicted were substantial. She again found that the applicant had abused his position of trust and that the child was of tender years and in her own home. Her Honour found that the actions of the applicant amounted to actions of “gratuitous cruelty in the circumstances, in accordance with the provisions of s 21A(2)(f) and amount to an additional factor of aggravation.”

20 In relation to the offences committed against the two boys her Honour found the physical cruelty inflicted “upon them was clearly brutal.” Both boys were whipped with a plaited nylon rope causing multiple longitudinal bruises across their backs and buttocks.” Her Honour found that the offences were aggravated by the children’s age and, although there were no victim impact statements, her Honour commented that “the long term effects of trauma are well documented.” The offences against the boys were aggravated by their ages and the fact that they were in their own homes when they were assaulted. Her Honour found that the applicant abused a position of trust.

21 Her Honour also commented that the offences were committed in front of another child who was then six years of age. That child had apparently closed her eyes and pretended to be asleep. She saw her sister being struck and heard the boys being assaulted. Her Honour accepted that the experience for her would have been “truly traumatic.”

22 Her Honour found that there was little to be said in mitigation on behalf of the applicant. She did not accept the account given of the offences by the applicant who had initially denied using a belt to smack the children. He had originally claimed that the injuries suffered by the girl were occasioned by contact with the corner of her bed. He originally denied knowledge of the penetration of the girl.

23 Her Honour found that although the applicant estimated he had consumed between 10 to 16 schooners that evening, he nevertheless remembered the offences and accordingly her Honour concluded that “it cannot be said to amount to a mitigating circumstance.” The applicant had attended a drug and alcohol counselling program whilst on remand but, otherwise, her Honour found that he had done nothing to address his offending behaviour.

24 Her Honour noted that the applicant had no criminal antecedents. However, consistent with authority, her Honour indicated that previous good character attracts less weight in cases involving sexual assaults upon children. Her Honour then said:

“This case however is somewhat unusual in its nature. In respect of the first two counts it is a single episode of a very very violent and sadistic nature against [the child]; an offence committed purely with the intention of inflicting maximum pain upon a little girl. There is simply no explanation for the offender’s sudden departure from his previous law-abiding conduct, apart from his quest for power and revenge. That fact alone is of little assistance to him.
He was, at the time he committed these offences, a very young man. It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role in the need to have regard to individual treatment aimed at rehabilitation. However, important as that principle is, it cannot defeat the primary purpose of punishment, nor in the circumstances where a young offender conducts himself in a way which an adult does, can it stand in the way of the need to protect society.
…
The gravity of the crime, the fact the offences involved great violence must be kept steadfastly in mind otherwise the protective aspect of the court’s functions will cease to operate. In other words deterrence and retribution do not cease to be significant merely because a person is in their late teens and has committed an objectively serious offence.
It has been said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished. Heavy custodial sentences are essential if the courts are to play their proper role in protecting young children from sexual assaults by adults. The same must be said about physical assaults upon them also.
Additionally, when imposing a sentence in respect of counts 1 and 2, the nature of this offender’s criminality calls for a sentence that includes a substantial component of pure punishment. The community and [the child] would be entitled to think that this Court would be failing in its duty if sentences for the offences did not reflect the revulsion which the community would feel upon hearing of the nature of the offences inflicted against this very little girl.
Only sentences of imprisonment will satisfy the requirements of denunciation and retribution to which I have referred. The sentencing statistics and cases referred to by counsel in their respective addresses are of little assistance in respect of counts 1 and 2. The only decision of any like nature that I could find is that of Regina v Davies to which I have referred.
The offences of sexual intercourse with a child under the age of 10 and maliciously inflicting grievous bodily harm with intent, attracts standard non-parole periods. In respect of count 1 there is a standard non-parole period of 15 years imprisonment. That is a factor to be taken into account and it operates as a reference point or benchmark or sounding board or guidepost. I have already found there to exist some factors of aggravation which I have referred to above.
I find that in the circumstances of this case, as horrendous as it may be, the fact remains that the objective seriousness of the offence falls below the mid range envisaged by the legislature when the standard non-parole period was introduced. It must be remembered that s 66A relates to all types of sexual intercourse. This offence entails digital penetration of the vagina, admittedly with force. Absent are other factors which would place the offending behaviour towards the middle or upper end of the range. It has been held for example that a crime involving penile penetration is a more serious form of sexual intercourse than cunnilingus. Obviously I do not resile from my findings that the offence warrants stern punishment.
In respect of the second count, the maliciously inflict grievous bodily harm with intent, it attracts a standard non-parole period of seven years. I find that the offence falls at the upper end of the range for like offences. The acts were done with malice, with a complete indifference to human suffering and were done wantonly. The objective seriousness of the injuries are heinous as described in the medical reports which are demonstrative of the brutality meted out to this innocent child. I have taken into account the 38 days in custody between 27 February 2004 and 5 April 2004 when bail was granted, and from 10 October when the offender’s bail was revoked and he was remanded in custody pending sentence following the entering of his pleas of guilty.”

The appeal

25 Ten grounds of appeal were identified. It is appropriate to deal with them in turn although grounds 1 and 2 can be conveniently dealt with together.

Ground 1: The sentencing judge erred in holding that the applicant’s intoxication could not be regarded as a mitigating factor.

Ground 2: the sentencing judge erred in holding that the applicant’s previous good character was of little assistance to him.

26 I have already identified the fact that the sentencing judge accepted that the applicant had consumed a large amount of alcohol before committing the offences. Mr Ashkar found that the alcohol was a contributing acute dynamic factor in the commission of the offences which were “a combined function of his histrionic personality style and alcohol use.” The applicant was described as a weekend binge drinker and, although her Honour did not express it in these terms, it is plain that he had been on a binge on the relevant evening.

27 Her Honour concluded that although the applicant was intoxicated, because he could remember the offences, this could not be “said to amount to a mitigating circumstance.” The applicant complains that this reasoning involves error. In my opinion this submission should be accepted.

28 In R v Gordon (1994) 71 A Crim R 459 Hunt CJ at CL emphasised that in some circumstances “intoxication will mitigate the offence because the offender has by reason of the intoxication acted out of character.” In the present case, although there was evidence that the applicant had a “really bad temper” he had no previous convictions and there was nothing to suggest that he had previously conducted himself in the extraordinary manner which he did on the night of the offences. Her Honour described the position in these words “there is simply no explanation for the offender’s sudden departure from his previous law-abiding conduct, apart from his quest for power and revenge.”

29 I am satisfied that her Honour should not have put aside the role which the applicant’s intoxication played in the commission of the offences. By confining the role of intoxication to the circumstance where the offender is so overwhelmed by alcohol that he or she has no memory of the offences is in my opinion inappropriate. A person’s self control may be severely diminished by excessive alcohol although a memory of the event remains.

30 Her Honour found that the assault on the small girl was not sexually motivated but was committed out of a quest for power and revenge. I understand her Honour to have concluded that the applicant acted when he was overcome by rage because he had been abandoned by his girlfriend and his evening was being disturbed by the rowdy children. Desiring to control the children and at the same time demonstrate his anger to his girlfriend he committed these very significant assaults.

31 It is apparent that the offences were out of character and, particularly having regard to their brutality, difficult to explain. However, in my opinion, a conclusion that alcohol played a part in the applicant’s offending was inevitable. The applicant had an inadequate personality. He was young and immature. In these circumstances his previous good character should have been of assistance to him in the sentencing exercise. Although he committed a sexual assault it was not of the more usual type of repetitive offending against a small child who is unable to report the event, regrettably, often seen in the courts. For this reason in my opinion the sentencing judge should not have concluded that because the offence was one involving sexual intercourse the applicant’s previous good character was of little assistance to him.

Ground 3: The sentencing judge erred in finding that the applicant was not contrite

32 Her Honour found that the applicant’s pleas of guilty “demonstrate little by way of contrition.” Her Honour seemed to have reached this conclusion because of her Honour’s finding that the applicant had done little to address his offending behaviour whilst on remand. The applicant’s response to this finding was to emphasise to this Court that, although he ultimately pleaded guilty, his initial plea was not guilty. In these circumstances he could not have been expected to attend programs designed to deal with his offending conduct. Although he accepted that the late plea deprived him of a significant portion of any utilitarian discount it was submitted that it was inappropriate to conclude that he was not contrite by the time he came to be sentenced.

33 In fact the applicant had expressed contrition to the author of the pre-sentence report to whom he said that he felt “worse than terrible” about what he had done. As I understand this remark the applicant accepted full responsibility for his actions. The applicant also expressed remorse to Mr Ashkar, again taking responsibility for his offending behaviour. By the time he was sentenced the applicant had written a letter of apology to the family of the victims and had indicated a desire to do anger management and alcohol courses as well as attend the CUBIT program for sex offenders.

34 In these circumstances, in my opinion, her Honour’s finding that the applicant had done little to demonstrate contrition was inappropriate.

Ground 4: The sentencing judge erred in finding that the count 2 offence was close to being in the worst class of case.

Ground 5: The sentencing judge erred in finding that the count 2 offence was far more serious than those envisaged as coming within the mid range of objective seriousness.

35 These grounds may also be dealt with together. As the applicant pointed out the act relied upon to found the count 2 offence was the applicant’s digital penetration of the young girl’s vagina so as to cause a posterior fourchette tear and a complete transection of the hymen. The applicant pleaded guilty to the offence and accordingly accepted that what he did, and intended to do, could properly be categorised as “grievous bodily harm.”

36 The sentencing judge found that the offence was “close to being in the worst class of case of its kind.” Her Honour said it fell “at the upper end of the range for like offences. The acts were done with malice, with a complete indifference to human suffering and were done wantonly.” Her Honour found that the offence was “far more serious than those envisaged as coming within the mid range of objective seriousness.”

37 This finding was surprising. The Crown had not submitted that the offence was above the middle of the range of objective seriousness. It was contended that the offence was a “mid-range offence” because of “the age of the child and the number of times the child was struck.”

38 In this Court the applicant submitted that the offence was towards the bottom of the range of objective seriousness. Emphasising that her Honour’s findings exclude a sexual motivation in the applicant, it was submitted that the actual grievous bodily harm inflicted, the posterior fourchette tear and the complete transection of the hymen, was of a completely different degree of harm to the kind of harm, meeting the description of grievous bodily harm, which is commonly before the courts. Grievous bodily harm can extend to harm inflicted over a period of time causing permanent brain damage, very serious injury to the body, or a variety of life threatening injuries requiring hospitalisation for months and which may entail long and continuing suffering for the victim. The applicant submitted that the time taken to inflict the harm in this case was short. His counsel emphasised that there was insufficient evidence to make any finding that there would be a long term impact from the assault.

39 The applicant also submitted that the striking of the young girl with the belt did not cause injuries in the nature of grievous bodily harm. Although, as with the boys, harm was inflicted, it was submitted that it was not of a nature which could be described as grievous bodily harm.

40 The applicant acknowledged that it is difficult to find comparable cases to the present case when determining an appropriate sentence. In R v Olsen [2005] NSWCCA 243 the offender was found to have caused 57 injuries to his 3½ year old child. He was 29 years old, entered a plea of not guilty, was not contrite, had an extensive criminal record, including assault, for which he had been imprisoned and was on bail at the time for an offence of violence against the child’s mother. The child remained in hospital for 2 weeks. This Court concluded that the sentence imposed by the trial judge of 9 years with a non-parole period of 5½ years was heavy and at the top of the appropriate range.

41 In R v Kotevski (unreported, NSWCCA, 3 April 1998) the offender lost control during an altercation with his wife and repeatedly stabbed her with a number of weapons. A sentence of 3 years with a non-parole period of 2 years 3 months, was imposed. This Court by majority dismissed an appeal. Hulme J would have reduced the sentence to 2 years.

42 In these circumstances the applicant submitted that a sentence comprising a non-parole period of 10 years with a parole period of 5 years was manifestly excessive. It is submitted that when proper regard is had to the applicant’s prior good character, his youth and immaturity, his remorse and contrition and the influence of alcohol in his loss of control, a significantly lesser sentence should have been imposed.

43 In my opinion the applicant’s submissions should be accepted. Although a serious crime, in my view, it could not be classified as a “mid range” offence. Although committed in a drunken rage the lack of premeditation and the extent of injury inflicted did not justify the sentence which her Honour imposed.

Ground 7: The sentence imposed in respect of count 1 was manifestly excessive.

44 Her Honour imposed a fixed term of 8 years in respect of count 1. The applicant emphasised that the sentencing judge concluded that “the objective seriousness of the offence” fell “below the midrange envisaged by the legislature when the standard non-parole period was introduced.” The standard non-parole period is 15 years. A significant finding by her Honour was her conclusion that the offence was not done for any form of sexual gratification. Her Honour made this finding notwithstanding the opinion of Mr Ashkar a clinical psychologist.

45 In these circumstances the applicant submitted that her Honour must have concluded that the objective seriousness of the offence was towards the lower end of the range. It was submitted that this finding was correct having regard to the fact that, although it was an offence committed on a young child, it was an isolated, spontaneous act by an immature youth of prior good character who was significantly under the influence of alcohol. In these circumstances it was submitted that the sentence which her Honour imposed was excessive, and significantly so.

46 The applicant made reference to a number of previous decisions where significantly lesser sentences than that imposed by her Honour were imposed for breaches of s 66A. In R v Dunn unreported, NSWCCA 15 April 1992, where the circumstances were similar to the present case, the Court of Criminal Appeal varied the sentence from 3½ years to 2 years. In R v Slack [2004] NSWCCA 128 the Court of Criminal Appeal reduced a sentence to 2 years with a non-parole period of 1 year in relation to two counts of digital penetration of an 11 year old which did not cause physical damage or injury. R v Allpass (1994) 72 A Crim R 561 involved a 75 year old offender who digitally penetrated a 9 year old girl in breach of trust, causing damage to her hymen and consequent bleeding. In that case a Crown appeal against the imposition of a bond was dismissed, although the Court of Criminal Appeal considered that a more appropriate sentence would have been a period of periodic detention.

47 Each of these matters was determined before standard non-parole periods were provided by the Crimes (Sentencing Procedure) Act 1999. This may diminish their relevance. However, as I later indicate, I am satisfied that the offence fell below the mid range of seriousness and accordingly these decisions do have some significance to the sentencing task in the present case.

48 It is of considerable significance when sentencing for this offence that the sentencing judge found that the applicant was not motivated by a desire for sexual gratification. The Crown did not challenge that finding in this Court. In my view the applicant’s description of the offence (which I have recorded in [45] above) is appropriate. In these circumstances the offence fell significantly below the mid range of seriousness and the sentence her Honour imposed was excessive.

Ground 8: The sentencing judge erred in failing to determine a non-parole period for the sentences in respect of counts 3 and 4.

Ground 9: The sentencing judge erred in making the sentences for count 3 wholly cumulative on the sentence for count 4.

Ground 10: The sentencing judge erred in making the sentences for counts 1 and 2 wholly cumulative on the sentence for count 3.

49 In the view I have reached it is unnecessary to deal with these grounds in detail. I am satisfied that error has occurred which requires the applicant to be resentenced. The applicant’s complaint was that the sentencing judge gave no explanation for failing to set a non-parole period in respect of counts 3 and 4: see R v Thomas (1993) 65 A Crim R 269. Complaint is also made that although her Honour indicated that she would have regard to the principles of totality and accepted that the offences were committed in “one course of criminal conduct”, her Honour nevertheless made the sentence for count 3 wholly cumulative on the sentence for count 4. The applicant accepted that to some extent cumulation was required, but given the fact that there were separate victims, submitted that the appropriate course was to provide for partial concurrence: R v Wicks [2005] NSWCCA 409 at [49]. Furthermore, at the sentencing hearing the Crown did not contend that wholly cumulative sentences should be imposed. It is submitted that the end result of the course her Honour took is that the overall sentence was excessive.

Resolution of the appeal

50 I have already indicated that in my view error has occurred which requires intervention of this Court. It is necessary to form a clear appreciation of the circumstances in which the crimes were committed.

51 The applicant was an immature individual who reluctantly found himself in a position of responsibility in relation to the children. Without question he was seriously affected by alcohol, frustrated by the absence of the mother of the children and was not able to respond appropriately to their misbehaviour. His feelings of frustration turned to rage and in a misguided attempt at discipline he struck the two boys and the girl inflicting pain and causing serious bruising. The harm inflicted on the little girl was of a totally different order to that inflicted on the boys, although her Honour accepted that his actions did not have a sexual motivation. The applicant decided that a physical assault to her vagina was the most appropriate response to her restless behaviour. His purpose was to inflict pain on her. Any right minded person would be seriously affronted by his conduct.

52 However, it is necessary to ensure when sentencing for a particular offence that the penalty imposed reflects the seriousness of the actual crime having regard to the range of objective seriousness which offences of the type may involve. Unless this principle is kept firmly in mind consistency in sentencing cannot be achieved, diminishing public confidence in the criminal justice system.

53 Although by reason of the statutory definition the act of digital penetration of the small girl constituted sexual intercourse, not being motivated by sexual gratification, it has a character quite different to the offence to which the section is directed.

54 To my mind it was important when sentencing the applicant to bear in mind his immaturity and accordingly his inability to deal with the situation with which he was confronted. It is obvious that he must be severely punished by a sentence which makes plain to the community that the serious physical abuse of young children will not be tolerated. Although I am satisfied that the sentences which her Honour imposed were excessive, and significantly so, identifying the appropriate sentences is a complex task.

55 In relation to count 1, the sexual intercourse count, the standard non-parole period is 15 years. I have already indicated my view (at [48]) that, contrary to her Honour’s finding, the offence fell below the mid range of objective seriousness. Not only does the offence fall below the mid range of seriousness but as her Honour found, the offence is subsumed by count 2.

56 There are difficulties in sentencing an offender for a breach of s 33 of the Crimes Act. Although the maximum penalty is 25 years the legislature has provided a standard non-parole period of 7 years. Accordingly, for an offence falling below the mid range, a period of incarceration of less than 7 years will be appropriate. These difficulties were recently commented on by this Court in relation to a different offence in R v Marshall [2007] NSWCCA 24 at [34] ff.

57 I have already indicated that in my opinion the count 2 offence fell below the mid range of seriousness. Although the victim was a young and vulnerable child and the offence gratuitously cruel, no weapon, punch or kick was used. This offence is commonly characterised by far greater violence and the use of a weapon. Furthermore, the physical harm inflicted on the small girl will not occasion permanent injury, as tragically occurs in many cases. The assault was committed on a young girl and is, rightly, likely to initiate emotions of revulsion for the offence and the offender. However, when sentencing a court must endeavour to ensure that the sentence reflects the appropriate application of sentencing principles.

58 After considerable deliberation I have determined that allowing 10% for the applicant’s guilty plea for count 2, a non-parole period of 4½ years with a further term of 3 years is the appropriate sentence. There may be some who consider this to be a lenient sentence. However, the sentence which is imposed must reflect the statutory penalty and standard non-parole period to which I have referred. While proper consideration must be given to the vulnerability of the victims it must also reflect the applicant’s youth and the circumstances of the offence, including the extent of the injuries inflicted to which I have already referred.

59 The sentences imposed should provide an identifiable penalty for each of the assaults. In my opinion having regard to the problems I have identified in her Honour’s approach to sentencing the applicant, a modest reduction of those sentences is also appropriate. However, I would allow only partial accumulation of these sentences. Because of the applicant’s need for careful supervision so that he may effectively re-establish himself in the community as a mature adult, in my view, a finding of special circumstances is also appropriate.

60 In the circumstances of this case because, in my opinion, the applicant must receive a separate sentence for count 2 which extends beyond any parole period which may have been appropriate for counts 1, 3 and 4, I do not believe that a non-parole period for these offences is necessary.

61 The sentences I propose are:

Count 1: fixed term of 4 years imprisonment commencing on 3 March 2006 and expiring on 2 March 2010.

Count 2: a non-parole period of 4½ years commencing on 3 March 2006 and expiring on 2 September 2010 with a parole period of 3 years expiring on 2 September 2013.

Count 3: fixed term of six months commencing on 3 September 2005 and expiring on 2 March 2006.

Count 4: fixed term of six months commencing on 3 December 2005 and expiring on 2 June 2006.

62 Accordingly, the total term without parole will be a period of 5 years with a further period of 3 years on parole.

63 SULLY J: I agree with the orders of McClellan CJ at CL and I agree generally with his Honour’s expressed reasons for those orders.

64 I have had the advantage of seeing in draft the brief and separate reasons of Howie J. I agree completely with the additional observations made by his Honour.

65 HOWIE J: I have received the considerable benefit of reading the judgment of McClellan CJ at CL in draft. I agree with the orders he proposes for the reasons he gives. I merely wish to make some brief comments about the finding made by English DCJ that the offence involving the digital penetration of the complainant’s vagina was not a sexually motivated offence.

66 As the Chief Judge has pointed out, this Court was not asked by the Crown to revisit that finding of fact. Yet it was a crucial finding in sentencing for the offences in both counts 1 and 2. Arguably the finding was unreasonable. On its face the act of the accused was sexually motivated even if that motivation was not the principal reason for what he did. I find it difficult to believe that the digital penetration of a child of such young years would be the means taken of hurting the child if that was all that the applicant wanted to do and even in his intoxicated state.

67 The psychiatrist, an expert, believed that, notwithstanding the applicant’s denial, the act was sexually motivated. Yet the Judge preferred to accept the bald assertion of the applicant that he had no sexual motivation even though he did not give evidence before her. This Court has frequently indicated the caution with which a sentencing judge should accept statements attributed to offenders in mitigation or explanation for an offence contained in reports and where the offender did not give evidence: see for example R v Palu [2002] NSWCCA 381; 134 A Crim R 174. In any event it is easy to understand why a young man would later deny any sexual motivation for such an act by way of self-denial or from reasons of embarrassment.

68 In my view any person hearing of the act of the applicant and the injury inflicted upon the child would find it almost impossible to comprehend that conduct without thinking of it as a sexual assault upon the child of very grave seriousness. And yet once the finding of the Judge was made it is difficult to understand why there were two offences charged concerning the injury inflicted upon the child. If the act of digital penetration of the child was not sexually motivated, then that act is reduced to the means by which the grievous bodily harm was inflicted. It is very rare indeed for the Crown to charge as an offence both the act inflicting the grievous bodily harm as well as the infliction of the harm. That is because the offence of inflicting grievous bodily harm comprehends, at least for the purposes of sentence, the means by which the harm was inflicted. To take an absurd example, if a person struck another with a machete lopping of the other’s arm, it is inconceivable that the Crown would charge the offender with both the infliction of grievous bodily harm and an assault.

69 The only reason for charging both the sexual assault offence and the infliction of grievous bodily harm was because the Crown was asserting that there were two offences committed of a completely different nature arising from the same act, both of which needed to be separately punished: a sexual assault and the infliction of grievous bodily harm. Once the sexual content of the count 1 offence evaporated, the applicant was being doubly punished for the same act: see Pearce v The Queen (1998) 194 CLR 610. This is why there must be concurrent sentences for counts 1 and 2.

70 I cannot help but think that, notwithstanding the finding of no sexual motivation, the Judge could not completely dispel this connotation from her mind when sentencing for the grievous bodily harm offence otherwise it is impossible to see how her Honour could have been so wrong in determining the gravity of that offence as against the standard non-parole period. In my opinion the sentence proposed by the Chief Judge is significantly less than the sentence that ought to have been imposed if the Judge had not found that the offence in count 1 was not sexually motivated.

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