Croxon v R

1. [1]

   HOEBEN CJ AT CL: I agree with Bellew J.

2. [2]

   DAVIES J: I agree with Bellew J.

3. [3]

   BELLEW J: On 21 March 2016 an indictment was presented against David Reginald Croxon (“the applicant”) containing the following counts:

   1. (1)

      On 12 December 2014, at Nowra in the State of New South Wales, did assault (LS) and at the time of such assault committed an act of indecency on (LS), a person then being under the age of sixteen years, namely fifteen years (count 1);

   2. (2)

      On 26 February 2015, at Nowra in the State of New South Wales, did have sexual intercourse with (LS) without the consent of (LS) knowing she was not consenting, in circumstances of aggravation, namely, that (LS) was a person then being under the age of sixteen years, namely fifteen years (count 2).

4. [4]

   The applicant pleaded guilty to each of those counts. In addition, he asked the sentencing judge to take into account two further matters on a Form 1, namely:

5. [5]

   The offending in count 1 carried a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years. The offending in count 2 carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The same respective penalties applied to the matters in (i) and (ii) on the Form 1.

6. [6]

   On 19 August 2016 Acting Judge Delaney expressed indicative sentences as follows:

7. [7]

   His Honour then imposed an aggregate sentence of 11 years and 9 months imprisonment, with a non-parole period of 7 years.

8. [8]

   On 9 September 2016, with the consent of the parties, his Honour corrected the sentence pursuant to s. 43 of the Criminal Procedure Act 1986 (NSW) on the basis that he had “been informed that the sentences that (he) imposed offended one of the sections of the Act”. He varied the total sentence from one of 11 years 9 months imprisonment to one of 11 years 5 months imprisonment. The non-parole period of 7 years was not varied.

9. [9]

   The applicant now seeks leave to appeal against the sentence on the grounds more fully set out below. However before considering the issues raised by those grounds, I wish to make some observations regarding the Crown’s use of the Form 1 in this case.

10. [10]

    The second matter on the Form 1 was an offence contrary to s. 61J(1) of the Crimes Act 1900 (NSW). It alleged that the applicant had sexual intercourse with LS without her consent in circumstances of aggravation, namely that LS was under the age of 16 years. That was the same offence as that in count 2 of the indictment. It carried a maximum penalty of 20 years imprisonment, and a standard non-parole period of 10 years.

11. [11]

    The Crown was unable to explain how the inclusion of such a serious offence on a Form 1 had eventuated. He suggested that it may have been the result of plea negotiations which had taken place immediately before the commencement of the applicant’s trial. In fairness, it should be pointed out that the Crown before this Court did not appear in the sentence proceedings.

12. [12]

    In my view, the inclusion of such a serious matter on a Form 1 was an entirely inappropriate use of the procedure for which provision is made in ss. 32-33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is a matter of some concern that this is the second occasion within the space of a little more than two months on which this Court has had to express that view. In DG v R [2017] NSWCCA 139 Hoeben CJ at CL (with the agreement of Garling J and myself) observed (at [43]-[44]) that the inclusion of serious offences on a Form 1 in that case involved a distortion of ss. 32-33 of the CPA, and resulted in the sentencing task being made considerably more difficult.

13. [13]

    In my view, the inclusion of the second matter on the Form 1 in this case resulted in a similar distortion. It is to be hoped that the Director of Public Prosecutions takes these observations into account when deciding what matters are appropriately included on a Form 1 in any case in the future.

THE FACTS

1. [14]

   An agreed statement of facts was tendered before the sentencing judge, on the basis of which his Honour found the facts of the offending to be as follows:

The applicant’s subjective case

1. [15]

   His Honour noted (at ROS 6) that the applicant was 42 years of age at the time of sentence. He described the applicant’s upbringing as “unremarkable, certainly not dysfunctional, but more likely stable” (at ROS 6). The applicant had been married for 9 years and had 2 children, aged 3 years and 6 years respectively. His marriage had ended following his incarceration for these offences.

2. [16]

   The applicant completed Year 12 before undertaking a Bachelor of Economics, a Graduate Diploma in Education, and a Graduate Certificate in Careers. He had been continuously employed as a school teacher for approximately 17 years and at the time of the offending had been employed at the same school for approximately 11 years. His Honour noted that the applicant had been working at that school as a careers advisor and had been well respected by the school community.

3. [17]

   The applicant had no criminal history. A report of Professor Greenberg which was tendered before the sentencing judge diagnosed the applicant as suffering from an adjustment disorder with depressed mood (in remission) and “personality problems”. Having recounted aspects of the applicant’s personal history, Professor Greenberg said (at p. 6 of his report):

4. [18]

   A pre-sentence report was also before the sentencing judge. In terms of the applicant’s background, the report was generally consistent with that of Professor Greenberg. In addressing the applicant’s attitude to his offending, the author of the report stated:

5. [19]

   The applicant was assessed as being at a low risk of further sexual offending. It was considered that he would benefit from a period of supervision by Community Corrections, and that appropriate case management strategies would include referral to a psychologist for such further assessment and intervention as may be deemed necessary.

6. [20]

   Having reviewed these subjective matters, the sentencing judge said (at ROS 10) :

The reasons of the sentencing Judge

1. [21]

   The sentencing Judge said at (ROS 18):

2. [22]

   A short time later (at ROS 19) his Honour clarified that the stated non-parole period of six years was in fact an error, and that he had intended to impose a non-parole period of 7 years.

Submissions of the applicant

1. [23]

   Whilst accepting that questions of accumulation are discretionary matters for a sentencing judge, and whilst also accepting that some degree of accumulation between the two sentences was appropriate in the present case, counsel for the applicant submitted that the total accumulation of the indicative sentences reflected a miscarriage of the sentencing discretion.

2. [24]

   It was further submitted that in essence, the applicant was to be sentenced in respect of two events in relation to one complainant who was “close to the upper limit of the age range envisaged by the offence”. It was submitted that the sentence imposed by his Honour was disproportionate to the offending, and amounted to a crushing sentence, in the sense that it would leave the applicant with a sense of hopelessness, and destroy any expectation he might have of a useful life following his release from custody.

Submissions of the Crown

1. [25]

   The Crown submitted that rather than considering the degree of “notional accumulation”, the principal focus of this Court’s attention should be upon ground 3 which asserted that the sentence is manifestly excessive. To the extent that ground 1 complained of the degree of actual accumulation imposed, it was submitted that the first and second incidents of offending were separated by a significant period of time, leading the sentencing judge to correctly describe them as two discrete offences. It was submitted that in these circumstances, notional accumulation was inevitable.

Consideration

1. [26]

   In the present case the sentencing judge totally accumulated the two indicative sentences into an aggregate sentence. That was not, as the Crown described it, “notional accumulation”.

2. [27]

   Questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. In Cahyadi v R [2007] NSWCCA 1 Howie J said (at [27]):

3. [28]

   The application of the totality principle will necessarily have a bearing upon the extent to which sentences are to be served concurrently or accumulatively: Cahyadi at [28] per Howie J citing R v MMK [2006] NSWCCA 272. In R v Holder (1983) 3 NSWLR 245 Street CJ said (at 260):

4. [29]

   In the present case, the sentencing judge failed to conduct the evaluation of which Street CJ spoke. Whilst the two incidents which were the subject of counts 1 and 2 were separated in time, the total accumulation of the two sentences failed to have any regard to principles of totality. In these circumstances, ground 1 is made out.

5. [30]

   Error having been found, it is necessary for this Court to exercise its sentencing discretion afresh: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37. Although in these circumstances it is not strictly necessary to consider ground 2, I should do so in light of the fact that the Court heard full argument in relation to it.

The proceedings before the sentencing judge

1. [31]

   In written submissions provided to the sentencing judge, and having cited a number of sentencing principles, the applicant’s then representative stated the following (at [70](a)-(b)):

2. [32]

   The sentencing judge assessed the objective criminality of the offending as follows (commencing at ROS 15):

Submissions of the applicant

1. [33]

   Whilst accepting that the offending was serious, and that it involved a significant abuse of a position of trust, counsel for the applicant submitted that the offending nevertheless fell below the mid-range of objective seriousness in each case because:

2. [34]

   In addition, counsel submitted that the applicant had presented a “strong subjective case”.

Submissions of the Crown

1. [35]

   The Crown submitted that the assessment of objective seriousness of particular offending is a matter within the discretion of the sentencing judge, and that such findings are of a kind with which this Court will be slow to interfere. In response to the matters relied upon by counsel for the applicant, the Crown submitted that:

2. [36]

   The Crown submitted that in all of those circumstances, the conclusion reached by the sentencing judge that the offending fell within the mid-range did not reflect error. The Crown also emphasised that the written submissions relied upon by the applicant’s then representative before the sentencing judge included an express concession that the offending was appropriately categorised as falling within the mid-range. It was submitted that in these circumstances, it was not open to the applicant to now seek to resile from that concession.

Consideration

1. [37]

   In dealing with this ground it is necessary to make a number of observations regarding some of the matters relied upon by counsel for the applicant.

2. [38]

   Firstly, and although not entirely irrelevant, the fact that each episode of offending may have been relatively short in time is of limited significance. This Court has observed on many occasions that offending of this nature is capable of having a profound and deleterious effect upon victims for many years, if not for the whole of their lives: R v Gavel [2014] NSWCCA 56 at [110] per the Court (Leeming JA, Johnson and Hall JJ)) and the authorities cited therein; MLP v R [2014] NSWCCA 183 at [31] per Bellew J (Macfarlan JA and Adamson J agreeing); R v Egan [2016] NSWCCA 285 at [143]-[147] per Bellew J (Macfarlan JA and Hall J agreeing). The fact that some of those observations were made in the context of younger victims does not mean that the effects of the offending on the present victim were any less profound, or any less deleterious.

3. [39]

   Secondly, the fact that the offending did not involve penile/vaginal penetration is also of limited significance. The particular type of forced intercourse is not determinative of the objective seriousness of this kind of offending. The creation of some form of hierarchy in that regard is neither possible nor appropriate: Doe v R [2013] NSWCCA 248 at [48] per Bellew J (Hoeben CJ at CL and Johnson J agreeing) citing R v AJP [2004] NSWCCA 434 at [24]; Kertai v R [2013] NSWCCA 252 at [36] per Hoeben CJ at CL (Johnson and Bellew JJ agreeing) citing R v King [2009] NSWCCA 117 at [35]-[36].

4. [40]

   Thirdly, the reliance by counsel for the applicant upon what was said to be the applicant’s “strong subjective case” was misplaced. Subjective considerations play no part in the assessment of the objective seriousness of offending.

5. [41]

   The circumstances of the offending are fully set out in the remarks of the sentencing judge. Its seriousness, and the fact that it involved a gross breach of trust, will be self-evident. However, contrary to the submission of the Crown, I am not satisfied that there was any evidence that the applicant had “groomed” the victim in the accepted sense, nor was the offending categorised by threats of violence of the use of alcohol or drugs. In all of the circumstances I would, like the sentencing judge, place each of the offences in the mid-range, albeit towards the lower end of that range.

6. [42]

   It follows that this ground is not made out.

RE-SENTENCE

1. [43]

   Given the error found in respect of ground 1, it is not necessary to consider ground 3 which asserts that the sentence was manifestly excessive.

2. [44]

   Counsel for the applicant drew the court’s attention to the decisions of this Court in FB v R [2014] NSWCCA 282, AG v R [2016] NSWCCA 102 and Ewen v R [2015] NSWCCA 117 all of which, it was submitted, involved offending of far greater objective criminality than that of the applicant. It was submitted that a comparison of the present case with each of those three cases supported the conclusion that some lesser sentence was warranted.

3. [45]

   General deterrence, denunciation, and the protection of the community, are all relevant factors on re-sentence. The gross breach of trust in which the applicant engaged in committing the offences cannot be understated. Moreover, the first incident was accompanied by a threat by the applicant to the victim that he would kill himself in the event that the victim reported what had occurred. All of that said, I am unable to accept the submission of the Crown that there was little of significance in the applicant’s subjective case. This is so for a number of reasons.

4. [46]

   Firstly, the applicant is a person of prior good character and is entitled to have that taken into account in his favour.

5. [47]

   Secondly, he has been assessed at presenting at a low risk of sexual re-offending. That supports a conclusion that his prospects of rehabilitation are favourable.

6. [48]

   Thirdly, and notwithstanding the reference in the pre-sentence report to an attempt to justify his behaviour, there is evidence of the applicant having expressed his remorse to the victim of his offending. He told Professor Greenberg that he had felt “guilty and horrible” and acknowledged that he had abused his position of trust. He apologised to the victim in writing and accepted that he was required to be punished by the law. In all of these circumstances, I am satisfied that the applicant is remorseful.

7. [49]

   I have also had regard to the three authorities to which the court was referred by counsel for the applicant. Whilst the sentencing judge found special circumstances, in my view there is no evidentiary basis upon which to do so. The applicant is entitled to a 10% discount to reflect his pleas of guilty.

8. [50]

   I have regard to the principles of totality and have also taken into account the contents of an affidavit of the applicant which was relied upon for the purposes of re-sentence. That affidavit discloses that the applicant has been the subject of two serious assaults in custody, as a consequence of which he has been placed on limited association with other inmates. That, in turn, has resulted in the applicant not being able to undertake any work or study whilst serving his sentence.

ORDERS

1. [51]

   For the reasons given, I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentences imposed by Acting Judge Delaney in the District Court on 19 August 2016 are set aside.

   4. (4)

      In lieu thereof, and having regard to the offences on the Form 1, the applicant is sentenced as follows:

   5. (5)

      The total non-parole period is one of 4 years and 6 months imprisonment and the additional term is one of 1 year and 5 months imprisonment.

   6. (6)

      The applicant will be eligible for release on parole on 25 August 2019.