McGovern aka Lanesbury v R

1. [1]

   BELL P: I have had the benefit of reading the judgment of Bellew J. For the reasons his Honour gives, leave to appeal must be granted. On the question of resentencing, my reasons accord with those of Bellew J for imposing no lesser sentence than was originally imposed.

2. [2]

   ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Bellew J. I agree that the sentencing judge was not assisted and was led into error. That is regrettable. I agree that the ground relating to the error of her Honour aggravating the sentence on account of the offence being conducted while the applicant was on conditional liberty is made out.

3. [3]

   I do not accept that the sentence imposed was manifestly excessive. As has often been stated, there is no single correct sentence. Even allowing for a more severe sentence on account of the error by her Honour, the sentence was well within range. I also have adopted the findings of her Honour on the issues of objective seriousness and I accept fully the reasons of Bellew J on the additional evidence adduced in these proceedings.

4. [4]

   I agree that the sentence that should be imposed is as indicated by Bellew J. While a lesser sentence might be available, it would not, in my view, be appropriate for the seriousness of the offence and the circumstances of the offender. I agree with the orders proposed by Bellew J.

5. [5]

   BELLEW J: Jason McGovern, also known as Jason Lanesbury (the applicant) pleaded guilty to the following offences for which he was sentenced in the District Court:

6. [6]

   The applicable maximum penalties were as follows:

7. [7]

   The sentencing judge gave the following indicative sentences:

8. [8]

   Her Honour imposed an aggregate sentence of 17 years imprisonment with a non-parole period of 10 years.

9. [9]

   The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

THE FACTS OF THE OFFENDING

1. [10]

   Based on an agreed statement of facts, [1] the sentencing judge found the facts of the offending to be as follows. [2]

Background

1. [11]

   The victims of the offending in counts 1 to 4 were two sisters, to whom I shall refer as SHM and SUM. SHM was born in 2005 and SUM was born in 2002. At the time of the offending, they were aged five years and eight years respectively. They lived with their father (AM) and their mother (AN) next door to the applicant, who lived with his mother and sister.

2. [12]

   On an occasion in 2010, a barbecue was hosted at the residence of SHM and SUM. The applicant was present, and was one of a number of adults who were drinking and socialising in a carport at the front of the residence. At about 9.00pm, SHM and SUM went to their shared bedroom. They got into their respective beds and started to watch a movie. The applicant subsequently excused himself from the barbecue to go to the bathroom. Upon entering the premises, he instead went into the victims' bedroom.

Count 1

1. [13]

   The applicant got into SHM’s bed and told her to move over. He lay on the side of the bed closest to the wall and pulled the blankets up so that he and SHM could not be seen. The applicant then used his hand to touch SHM on the outside of her vagina, underneath her clothes. He rubbed his hand up and down, such that there was skin-to-skin contact but no penetration.

Count 2

1. [14]

   At the same time, the applicant placed one of SHM’s hands on his penis, underneath his clothes. Again, there was skin-to-skin contact. SHM removed her hand whereupon the applicant held her hand and placed it back on his penis. SHM said “stop”, before removing her hand a second time.

Count 3

1. [15]

   The applicant got out of SHM’s bed and walked over and got into SUM’s bed, pushing her across to make room for himself. The applicant pulled up the blankets up so that he and SUM could not be seen. He then used his hand to rub the outside of SUM’s vagina, underneath her clothes. There was skin-to-skin contact but no penetration.

Count 4

1. [16]

   The applicant then removed his hand and held SUM’s hand on his penis, underneath his clothing. Again, there was skin-to-skin contact.

2. [17]

   The applicant then moved SUM’s hand from his penis and pulled up his shorts, before getting out of her bed and leaving the bedroom. He then went into the bathroom before re-joining the adults at the front of the residence. He was in the bedroom for approximately 10 to 15 minutes. The offending was reported by SHM and SUM to their mother approximately eight years later.

3. [18]

   Whilst mindful of the fact that the applicant was to be sentenced only on the specific charges set out above, the sentencing judge made reference to, and incorporated in her reasons, what was referred to in the agreed facts as “tendency evidence” and which was in the following terms:

Counts 5 and 6

1. [19]

   Following his arrest in respect of counts 1 to 4, the applicant was released on conditional bail. An apprehended violence order was made in favour of SUM and SHM which prohibited the applicant from going within 200m of their premises.

2. [20]

   Between 9:44pm on 7 March 2019 and 12:11am the next morning, the applicant was at a licensed premises drinking alcohol and playing poker machines. AM was at home with AN and their children, all of them having gone to bed between 11.00pm and 12:00am.

3. [21]

   In the early hours of 8 March 2019 the applicant sent two messages to a friend stating:

4. [22]

   Between about 1:30am and 1:40am that morning, the applicant entered AM’s premises by cutting a hole in a fly screen and gaining access through a window. Having entered the premises, the applicant opened the door of AM’s bedroom and turned the light on. AM woke up and saw the applicant next to his bed. The applicant was wearing a black hooded jumper and yellow rubber gloves, and was holding a large kitchen knife which was approximately 30cm long. AM asked the applicant what he was doing. The applicant did not respond. He then stabbed AM to the shoulder and chin area.

5. [23]

   The applicant walked out of AM's bedroom and down the hallway. He ran down the street with the hood of his jumper pulled up to cover his face, with the drawstring to the hood pulled tight. He then went to a friend’s house and said:

6. [24]

   The applicant spoke to his friend about the charges which had been brought against him, saying that he “needed someone to talk to”. There was no discussion as to what had occurred earlier that evening, the applicant stating:

7. [25]

   The applicant was subsequently spoken to by police, placed under arrest, and cautioned. At that time he denied the allegations, telling police that he had been at a club the previous evening, that he had remained there until about 11:30pm, and that he had then gone “to a mate’s house”.

8. [26]

   AM was taken to hospital following the incident where he presented with the following injuries: [3]

9. [27]

   AM was discharged from hospital on 11 March 2019. Although at that time his prognosis was considered to be good, [4] other evidence before the sentencing judge tended to suggest that such prognosis may have been somewhat optimistic. Dr Melissa Collogan, AM's General Practitioner, [5] confirmed that AM had reported that he was continuing to experience ongoing pain in his right shoulder, which he had sought to numb by excessive drinking. He also complained of a reduced range of movement and difficulties working, and reported that he was experiencing nightmares as a result of the incident. Dr Collogan prescribed analgesia and anti-inflammatory medication, and reported: [6]

Counts 1 to 4

1. [28]

   Leaving aside the finding which is the subject of ground one, the sentencing judge addressed the objective seriousness of counts 1 to 4 as follows: [7]

Counts 5 and 6

1. [29]

   In respect of the objective seriousness of counts 5 and 6, her Honour said: [8]

THE APPLICANT'S SUBJECTIVE CASE

1. [30]

   A report of Dr Richard Furst of 15 March 2020 was tendered in the applicant's case on sentence, [9] in which Dr Furst assessed the applicant in the context of the offending in counts 1 to 4. I draw the following summary from that report.

2. [31]

   The applicant was born in December 1982 and is currently 38 years of age. He left school part way through Year 10, following a period of emotional difficulty and a related decline in his academic performance. [10] His emotional problems began when he was sexually abused around the age of 11 or 12, a fact which he did not disclose to his family and friends. His memories and thoughts about that abuse had become more prominent in his teenage years, to the point where he told Dr Furst that he was “kicking himself” for having allowed it to occur. [11]

3. [32]

   The applicant began using cannabis when he was 13 or 14 years of age, which Dr Furst viewed as a (maladaptive) means of coping with his childhood sexual abuse. The applicant smoked approximately 1g of cannabis per day in his teens, and continued to do so until he was around 27 years of age. He regularly drank to excess from his late teens until he reached his 30s. He also had issues with gambling and excessive loss of money between his late teens and his late 20s. [12]

4. [33]

   As set out in the agreed facts, the applicant presented to hospital in March 2016 following a suicide attempt which occurred when, having consumed excessive alcohol, he sat in his car and lit a fire. He got out of the car when his jacket caught on fire, shortly after which the car exploded. He reported feeling depressed at the time and was prescribed anti-depressant medication following his admission to hospital. The clinical notes of that admission [13] were tendered before the sentencing judge and generally confirmed what the applicant had reported to Dr Furst.

5. [34]

   The applicant told Dr Furst that he was unable to remember the offending in counts 1 to 4, or his thought processes at the time, but thought that he had been intoxicated. He said that he felt guilty about his conduct, and about being sexually attracted to SUM. He cited that attraction, along with the fact that SUM had, he asserted, wanted to be in a relationship with him, as the reason for his attempted suicide. The applicant denied having any other sexual urges, or any sexual attraction towards children. [14]

6. [35]

   Dr Furst noted that the applicant had been prescribed two forms of anti-depressant medication, but had continued to struggle with low mood and insomnia in custody. He noted that the applicant's family were supportive of him, and that the applicant intended to live with his mother or his grandmother on his release. That support was confirmed in a testimonial provided by the applicant’s mother to the sentencing judge. [15]

7. [36]

   On the basis of the results of testing administered to the applicant, Dr Furst concluded that he was placed towards the lower third of the spectrum of risk when compared to other adult male sex offenders, and was thus in a low risk category in terms of re-offending. [16] In terms of the applicant's rehabilitation, Dr Furst identified a necessity to: [17]

8. [37]

   Dr Furst expressed the view that the applicant recognised the issues which arose from his offending. [18] When asked about the impact of the sexual abuse upon the applicant, and upon his offending, Dr Furst said: [19]

9. [38]

   Dr Furst diagnosed the applicant as suffering from a Recurrent Major Depressive Disorder. [20] He recommended that the applicant remain under the care of a psychiatrist and a mental health nurse, and that he continue to take the anti-depressant medication which had been prescribed for him. He expressed the view that when eventually released into the community, the applicant should engage in follow-up consultations with his General Practitioner with a view to continuing treatment with anti-depressant medication and associated therapy. [21] He identified a need for long term psychotherapy to address the applicant's childhood sexual abuse and his deviant sexual thoughts, and to encourage more adaptive coping skills.

10. [39]

    Dr Furst provided a second report of 6 May 2020 following a request to assess the applicant in the context of the offending in counts 5 and 6. [22] As to that offending, the applicant told Dr Furst that he had been “going through a lot of stress” at the time, that he “had a lot going on in his head”, that he felt as though his “whole life was falling apart around him”, and that he was “losing his life”. [23] He said that he had been upset with AM at the time because AM had been “yelling out abuse at [his] mother” and had “put words into the girls’ mouths … [and] he was causing a lot of dramas”. [24] He also said that he felt “bad” for committing the offences and that “everything [had] got the better of [him]”. [25]

11. [40]

    Although the applicant described the offending in counts 5 and 6 as a “snap" and a “brain freeze”, Dr Furst noted that he had worn gloves and a hooded jumper, and was in possession of a knife when entering the premises. This, in Dr Furst’s view, indicated that the applicant’s conduct was targeted, and involved some degree of premeditation. [26]

12. [41]

    Dr Furst concluded that the applicant continued to meet the criteria for a Recurrent Major Depressive Disorder, as well as an Alcohol Abuse Disorder. He said: [27]

13. [42]

    Dr Furst generally confirmed his earlier recommendations regarding the applicant's future treatment. [28]

THE APPLICANT’S CRIMINAL HISTORY

1. [43]

   The only entry on the applicant's criminal history arose out of an offence on 5 March 2009 for driving whilst his license was suspended. When he appeared at the Belmont Local Court on 11 June 2009, he was sentenced to a bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) for a period of 12 months. This is of significance in light of ground one.

THE FINDINGS OF THE SENTENCING JUDGE

1. [44]

   In terms of the utilitarian value of the applicant’s pleas of guilty, the sentencing judge allowed a discount of 5% in respect of counts 1 to 4, in circumstances where those pleas were entered at a late stage, and a discount of 25% in respect of counts 5 and 6, in circumstances where those pleas had been entered in the Local Court. [29]

2. [45]

   Her Honour summarised the reports of Dr Furst and concluded that the applicant had significant mental health issues. Her Honour expressly stated that she took those issues into account. [30]

3. [46]

   In assessing the applicant's prospects of rehabilitation, her Honour said: [31]

4. [47]

   In terms of the applicant’s reported sexual abuse as a child, her Honour said: [32]

5. [48]

   Having noted that the applicant's pleas of guilty were some evidence of remorse, her Honour said: [33]

6. [49]

   In addressing considerations of totality, her Honour acknowledged that the offending in counts 1 to 4 had been driven by the same motive and had occurred at same time. However, her Honour was expressly mindful of the importance of recognising the separate harm done to each of SHM and SUM, and concluded that this should be reflected by partially accumulating the sentences. [34] Her Honour went on to say: [35]

7. [50]

   Her Honour concluded that it was necessary for any sentence to personally deter the applicant from offending in the future. [36] In terms of general deterrence, her Honour said: [37]

8. [51]

   Her Honour concluded that in the absence of evidence from the applicant, it was difficult to assess how the restrictions brought about by the current pandemic would affect his conditions of custody. Whilst accepting that it was an issue, her Honour concluded that it should only have a marginal effect on any sentence to be imposed. [38] Finally, her Honour made a finding of special circumstances given the nature and extent of the supervision that the applicant would require upon his release in order to address his mental health issues. [39]

9. [52]

   Her Honour then imposed the sentences previously set out.

THE PERIOD OF THE OFFENDING IN COUNTS 1 TO 4

1. [53]

   Section 21A(2)(j) of the Sentencing Act provides that offending is aggravated if it is committed while the offender was on conditional liberty in relation to an offence or an alleged offence.

2. [54]

   In the present case, between 11 June 2009 and 10 June 2010, the applicant was on conditional liberty pursuant to the bond imposed for the driving offence. The indictment presented against the applicant pleaded that the offending in each of counts 1 to 4 occurred between 1 January 2010 and 31 December 2010. The statement of agreed facts made reference to each of these offences having occurred between 6 May 2010 and 31 December 2010. [40] However, irrespective of which of these periods was adopted, if the Crown sought to assert that the applicant’s offending in counts 1 to 4 was aggravated by the fact that he was subject to the bond at the time, it was incumbent upon the Crown to prove, beyond reasonable doubt, that such offending occurred at some time between 1 January 2010 and 10 June 2010. [41]

THE PROCEEDINGS ON SENTENCE

1. [55]

   The Crown who appeared on sentence (who was not the Crown before this Court) provided a document referred to as a “sentence summary” to the sentencing judge which included the following: [42]

2. [56]

   Clearly, the Crown’s position on sentence was that the offending in counts 1 to 4 was aggravated by the fact that the applicant was on conditional liberty at the time. The matter was not further canvassed by the Crown before her Honour, be it in written or oral submissions.

3. [57]

   Written submissions were provided to the sentencing judge by counsel for the applicant (who was not counsel before this Court). Those submissions stated the following: [43]

4. [58]

   However, by specific reference to s 21A(2)(j) of the Sentencing Act, the submissions then stated: [44]

5. [59]

   Notwithstanding the fact that these two submissions were diametrically opposed, nothing further was said to the sentencing judge by counsel for the applicant as to whether the offending was aggravated.

THE REASONS OF THE SENTENCING JUDGE

1. [60]

   In addressing the objective seriousness of counts 1 to 4, her Honour said: [45]

2. [61]

   That finding was in accordance with the position taken by the Crown in its sentence summary.

PROCEEDINGS FOLLOWING SENTENCE

1. [62]

   Immediately after sentence had been passed, the following exchange took place between the sentencing judge and the Crown: [46]

2. [63]

   When asked whether he wished to be heard on the issue, counsel for the applicant responded:

Submissions of the applicant

1. [64]

   Counsel for the applicant accepted that the written submissions provided to the sentencing judge included an express concession that the applicant was on conditional liberty at the time of the offending in counts 1 to 4. However, counsel submitted that in the circumstances of this case, the applicant should be permitted to resile from that concession for two primary reasons.

2. [65]

   Firstly, it was submitted that the concession had been made “in a confused manner” having regard to the completely contrary submission which preceded it. It was pointed out that this situation was allowed to pass without comment, and importantly without any attempt being made to clarify it.

3. [66]

   Secondly, it was submitted that there had been a miscarriage of justice, arising from the fact that her Honour had erroneously taken into account that the applicant was on conditional liberty at the time of the offending in counts 1 to 4, in circumstances where the Crown had conceded, albeit belatedly, that it could not establish that this was ever the case. It was submitted that such miscarriage was not rectified by the fact that counsel for the applicant had made no substantive submission in relation to the matter when he was given an opportunity to be heard following the matter being raised by the Crown.

Submissions of the Crown

1. [67]

   The Crown submitted that notwithstanding the Crown’s ultimate acceptance that it was not able to establish that the applicant was on conditional liberty at the time of the offending, there was nothing about the circumstances of the case which permitted the applicant to resile from the concession made before the sentencing judge. Whilst acknowledging that some confusion had arisen as a consequence of the contradictory submissions made on behalf of the applicant, the Crown submitted that no miscarriage of justice had arisen. In this regard, the Crown relied on the fact that counsel for the applicant had been given the opportunity to address the sentencing judge in relation to the matter, and had effectively declined to do so.

2. [68]

   The Crown submitted that in all of these circumstances, although an error on the part of the sentencing judge had been identified, that error had been “dealt with” by counsel for the applicant’s correct acceptance of the fact that the error was not material to the sentence imposed.

CONSIDERATION

1. [69]

   It is evident from what the Crown said to her Honour following sentence that there had been discussions between the parties, in the course of the sentence proceedings, about whether the offending in counts 1 to 4 was aggravated by a breach of conditional liberty. Regrettably, the sentence hearing was allowed to proceed in the absence of that issue being resolved, and a clear position being put to the sentencing judge.

2. [70]

   Notwithstanding the absence of such resolution, the Crown’s position in the sentence summary was that the offending was aggravated. Having stated that position, the Crown said nothing further about the issue. There was obvious confusion about the applicant’s position, given the entirely contradictory submissions made in writing. That confusion was also left entirely unresolved.

3. [71]

   It is obvious that the Crown realised, at some time prior to the applicant being sentenced, that its position on this issue before the sentencing judge was an error. Rather than bring the matter to her Honour’s attention immediately, the Crown left it until after the applicant was sentenced to do so. By that time, the sentencing judge had found that the offending was aggravated, based upon the Crown’s (erroneous) position at the time of sentence. Had the matter been brought to her Honour’s attention prior to that time, this ground of appeal would, in all likelihood, not have arisen.

4. [72]

   The primary submission of the Crown before this Court was that the applicant was bound by the concession which had been made by counsel appearing before her Honour. I am mindful of this Court’s reluctance entertain submissions which seek to resile from concessions made at first instance, and of the necessity, before such a course can be permitted, for exceptional circumstances to be made out which establish a miscarriage of justice. [47]

5. [73]

   However, I am satisfied that a miscarriage of justice has been established. Putting it simply, and leaving aside the fact that the concession which was made by counsel for the applicant was shrouded in confusion, the sentencing judge found that the offending was aggravated by a circumstance which the Crown ultimately conceded it could not prove. The finding of the sentencing judge was an error, albeit one into which her Honour was led by the manner in which the proceedings were conducted.

6. [74]

   It is no answer for the Crown to point to her Honour’s observation that her finding “would have had almost no bearing” on the sentence she imposed. Such a statement does nothing other than make it clear that the finding had some bearing. I am fortified in that view by her Honour’s subsequent statement that her finding was “obviously a matter that [she] took into account”.

7. [75]

   I am also not persuaded that the error that I have identified was corrected by anything said (or not said) in the exchange between the sentencing judge and counsel for the applicant when he was given the opportunity to be heard. Contrary to the Crown’s submission before this Court, that did not “deal” with the error. On the contrary, it highlighted it.

8. [76]

   This Court has said on a number of occasions that there is a fundamental obligation upon counsel appearing in sentence proceedings to assist the sentencing judge. [48] Significantly, such observations were recently repeated in the context of sentence proceedings before a Judge of the District Court in which incorrect information as to the maximum penalty for the offending had been included in a sentence summary provided by the Crown. [49]

9. [77]

   In my view, that obligation was not met in the present case. The failure of both parties to properly assist the sentencing judge in the conduct of the sentence proceedings has given rise to the error, and the resulting miscarriage of justice, which I have identified. That failure was compounded by the fact that although the Crown’s error was apparent before the applicant was sentenced, it was inexplicably not drawn to her Honour’s attention until after sentence had been passed.

10. [78]

    Judges in the District Court are burdened with busy lists. In circumstances where errors of the kind identified in this case are becoming increasingly common, it is appropriate to reiterate the fact that there is a fundamental obligation on counsel to provide the assistance which sentencing judges are entitled to expect. Any further comment on the undesirability of sentence proceedings being conducted in the manner in which they were conducted in the present case would be superfluous.

11. [79]

    For the reasons expressed, this ground is made out.

RE-SENTENCE

1. [80]

   In light of the conclusion that I have reached in respect of ground one, the Court must re-sentence the applicant. In those circumstances, it is both unnecessary and inappropriate to consider ground two, which asserted that the sentence imposed was manifestly excessive. However, I have taken into account the written submissions made by the parties in relation to that ground on the question of re-sentence.

2. [81]

   The written submissions filed on behalf of the applicant placed extensive reliance upon sentencing statistics, and pointed out that the indicative sentences in the present case fell towards the top of the ranges established by those statistics. The limitations placed on statistical material of that kind are well known. [50] Moreover, the fact that a particular sentence may fall towards the higher end (or even at the top) of a statistical range is, of itself, of limited assistance in determining whether some other sentence is warranted. [51] At the risk of stating the obvious, an appropriate sentence is to be determined having regard to all of the circumstances of the case, including the objective circumstances of the offending, and the subjective circumstances of the offender.

3. [82]

   As to the former, and obviously leaving aside the finding which is the subject of ground one, counsel for the applicant took no issue before this Court in relation to the findings made by the sentencing judge as to the objective seriousness of the offending and in those circumstances, I adopt those findings for the purposes of re-sentence. As to the latter, counsel submitted that the applicant’s affidavit which was read on the question of re-sentence provided a basis for this Court to reach conclusions as to the applicant’s remorse and his prospects of rehabilitation which were more favourable than those reached by the sentencing judge.

4. [83]

   In his affidavit, the applicant stated that he has been abstinent from all illicit drugs and alcohol since entering custody. [52] He has also commenced to undertake rehabilitative programs and has completed a Certificate III in Business through TAFE. [53] He expressed a hope that the completion of such courses will assist with his reintegration into the community on his release. [54]

5. [84]

   The applicant is presently employed as a sweeper, and was previously employed in the laundry. [55] He made reference to the support which has been provided by his family since being taken into custody. [56] He continues to be prescribed anti-depressant medication and although he has sought treatment from a psychologist, he has only been able to secure appointments on three occasions. [57] He expressed “deep regret” for his actions, and specifically expressed his regret for the fact that all of the victims of his offending would have to continue to live with the trauma of his offending. [58]

6. [85]

   In light of the matters set out in his affidavit, I am satisfied that the applicant is using his time in custody productively. That said, his prospects of rehabilitation remain dependent, in large measure, upon his willingness to address the numerous underlying mental health issues identified by Dr Furst in his two reports. In these circumstances, I am guarded about those prospects, although I am satisfied that he has shown some remorse for his offending. His mental health issues, which I have taken into account, justify a finding of special circumstances as I am satisfied that a longer period on parole would assist in his ongoing rehabilitation.

7. [86]

   Whilst I accept that the offending in counts 1 to 4 might be viewed as opportunistic, the fact remains that it was perpetrated on two young girls who were obviously vulnerable. The offending in counts 5 and 6, far from being opportunistic, was clearly planned. The applicant came armed to the premises with a knife and went to some lengths to attempt to disguise his identity by wearing a hoodie and gloves. That offending was aggravated by the fact that it was committed in AM’s home, in circumstances where the applicant was on bail, and subject to an Apprehended Violence Order. Further, the injuries sustained by AM were serious, and the medical evidence to which I have referred makes it clear that he continues to suffer from a number of ongoing sequelae. All of these matters, in my view, give rise to the need for any sentence to reflect not only personal and general deterrence, but a need to protect the community.

8. [87]

   Taking all of the circumstances into account, and in the fresh exercise of sentencing discretion, I have come to the view that no lesser sentence is warranted.

ORDERS

1. [88]

   For the reasons outlined, I propose the following orders:

   1. (1)

      Leave to appeal against sentence is granted.

   2. (2)

      The appeal is dismissed.