Bell v R

BELL P: I agree with the reasons of and orders proposed by R A Hulme J.

SIMPSON AJA: I agree with R A Hulme J.

R A HULME J: Ty Andrew Bell (the applicant) seeks leave to appeal against a sentence imposed by his Honour Judge Colefax SC in the District Court at Parramatta on 10 August 2018.

The applicant had pleaded guilty to two offences of having sexual intercourse with a child above the age of 10 and under the age of 14 in circumstances of aggravation, namely that the victim had a cognitive impairment. Such an offence is contrary to s 66C(2) of the Crimes Act 1900 (NSW) for which there is a maximum penalty of imprisonment for 20 years and a standard non-parole period of 9 years.

The aggregate sentence imposed by his Honour was one of imprisonment for 9 years and 6 months with a non-parole period of 7 years.

His Honour indicated that if not imposing an aggregate sentence he would have imposed a sentence for the first offence of 5 years and 7 months imprisonment with a non-parole period of 4 years and 2 months and a sentence for the second offence of 6 years and 9 months with a non-parole period of 5 years.

The applicant filed a Notice of Application for Leave to Appeal against Sentence on 9 August 2019. An extension of time was not opposed by the Crown and was granted at the hearing of the application.

The applicant seeks leave to appeal on the following grounds:

In December 2016, the applicant, who had recently become homeless, accepted an invitation from an old school friend to move into live at the friend's family home. The family comprised the friend, his mother, and his two siblings, one of which was the victim.

The victim was aged 12. She had a mild intellectual disability (a “cognitive impairment” as was defined in s 61H(1A)) [1] and attended special classes to meet her needs. She also had a hearing impairment and had worn hearing aids since she was 7 years old. The applicant was aged 28.

The applicant lived in the garage of the home, but he was described in the agreed facts as becoming "part of the family". He joined them for meals and took the two younger children out to the park during the week. He also assisted them getting ready and taking them to school.

About a month after he moved in, the applicant and the victim started to kiss and cuddle. At some stage during the summer school holidays between 21 December 2016 and 30 January 2017, the applicant committed the first offence by having penile/vaginal sexual intercourse with the victim in his bedroom (the garage). It was an agreed fact that he wore a condom and that the duration of the intercourse was unknown.

The second offence occurred on 10 April 2017 in the garage and also comprised penile/vaginal intercourse. On this occasion, the applicant did not wear a condom and ejaculated onto the bed. The sentencing judge noted that because the applicant was not wearing a condom, this exposed the victim “to a real risk of pregnancy and/or sexually transmitted diseases”.

The second offence was witnessed by the victim’s grandfather from outside the garage. He informed other family members and the applicant was later confronted. He protested, “I love her”. Police were notified, but when they arrived, the applicant fled by jumping over a fence. He was arrested 8 days later. He told police in an interview that he knew that the victim was 12 years of age. Notes written by the applicant and the victim were found in the applicant's possession. They comprised expressions of their "love" and commitment to each other.

A victim impact statement was provided to the court during proceedings on sentence. There, the victim expressed, in various practical ways, the psychological distress that the offending had caused her. The sentencing judge commented that “it is clear enough that the offences have caused significant psychological damage to her”. [2]

The applicant’s case on sentence comprised his oral evidence and the tender of a report by Ms Anita Duffy, psychologist. His Honour summarised the material in the applicant’s subjective case in his sentencing remarks in a fashion that was not subject to any criticism. The substance of his Honour's summary is referred to below in the discussion of Ground 2.

The following passage from the sentencing remarks relates to the judge’s assessment of the objective seriousness of the offences:

The applicant accepted that the question in relation to this ground was whether it could be established that the judge's characterisation of the objective seriousness of the offences was not reasonably open: Dawkins v R [2018] NSWCCA 278 at [36] (McCallum J, Basten JA and Bellew J agreeing). The Crown referred to the description of the question by Basten JA in Ramos v R [2015] NSWCCA 313 at [41], being whether the assessment of the objective seriousness of the offending is shown to be outside the range properly available to the sentencing judge. His Honour added that this was "bearing in mind that the reasonableness of the range should not be too readily confined, nor error too easily inferred".

The applicant disavowed taking any issue with the judge's finding that each offence was aggravated because it occurred in the victim's home and involved an abuse of trust. Nor was there any issue about the judge stating that the second offence exposed the victim to a risk of pregnancy and/or sexually transmitted disease.

What was disputed, however, was his Honour's statement that because of her age, the victim "obviously could not consent to either of the acts of sexual intercourse". It was submitted that his Honour failed to take into account that there was consent, not just in the sense that she was not forced or coerced into the sexual acts, but that she was a willing and active participant. Counsel referred to the statement by McCallum J in Dawkins v R (at [34]) that "it may be accepted that the presence or absence of consent is relevant in the assessment of objective seriousness for an offence contrary to s 66C".

The second error contended for by the applicant was that the circumstance of aggravation element of the offences (s 66C(5)(f): cognitive impairment) was not as serious as other such circumstances may be. Section 66C(5) lists a number of circumstances of aggravation for the purpose of the section that were asserted to be more serious than the victim having a cognitive impairment:

In particular, the applicant sought to contrast the circumstance of the victim having a cognitive impairment with offences that involved actual violence, threats of violence involving weapons, gang rape, and cases involving kidnapping or house breaking. These were said to "give rise to this type of offence being committed in substantially more serious circumstances than those of the present case". [3]

The third error contended for by the applicant concerned the judge's finding that the second offence was further aggravated by some "slight" degree of planning. It was submitted that the judge erred in finding that there was any planning and that even if he did not, he erred in finding it was sufficient to aggravate the offence pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Counsel observed that the judge provided no reasoning as to the basis of this finding.

It is pertinent to note the submissions made by the applicant's then counsel as to the objective seriousness of the offences, as it provides a context for the findings made by the sentencing judge: [4]

In further submissions, counsel conceded that his Honour may conclude that there was a breach of trust. He said that his Honour could find "that at least they found some solace in speaking to each other, it may be making a connection", but "regrettably though, Mr Bell of course being the adult should have known and did know that the engagement of any intimacy with the victim was both inappropriate and illegal". He referred to there having been "no violence, no threats of violence" and that the conduct was "engaged in at succinct times separated by a period of time". [5]

It was counsel for the applicant who introduced the concept of "planning". He said: [6]

The solicitor for the Crown submitted that the first offence was "around midrange at least" and the second offence was "above midrange". In submissions concerning discrete aspects which were said to be pertinent, he referred to the "non-oppositional" submission by the applicant's counsel and said, "These are not 61J offences, [7] and that must be borne in mind". In relation to the second offence, he referred to there having been "some planning involved". [8]

The finding by the judge that "because of her age, [the victim] obviously could not consent to either of the acts of sexual intercourse" was correct. He immediately followed this statement by an adoption of the submission that was made by the applicant's counsel: "there was no violence, threats, intimidation, or the like" and that "each act of sexual intercourse was non-oppositional". [9]

There was no error in the judge adopting those submissions. It has long been held that consent is not a mitigating factor in child sexual assault offences. In R v McClymont (Court of Criminal Appeal (NSW), 17 December 1992, unrep), Mahoney JA (with the concurrence of Gleeson CJ and McInerney J) said, in relation to offences of having sexual intercourse with a 12-year-old girl, committed by a man aged about 20 years:

Similar sentiments were expressed by Smart J (Hunt CJ at CL and Studdert J agreeing) in R v Brady (Court of Criminal Appeal (NSW), 3 March 1994, unrep):

In R v Nelson [2016] NSWCCA 130, the Court was concerned with a Crown appeal against the manifest inadequacy of sentences imposed on the offender, aged between 18 and 19 years at the time of the offending, for sexual intercourse with three young girls, one just under and the other two just over the age of 14. The sentencing judge referred to there having been "no force or threats or violence utilised or relied upon by the offender" and he was satisfied that the intercourse was consensual. He said that even though this was not an element of any of the offences, "it does, however, impact upon the objective serious nature of the type of sexual intercourse undertaken". Basten JA, with the concurrence of Rothman J, responded (at [23]):

In Dawkins v R, to which counsel for the applicant referred, McCallum J (at [34]) cited Hogan v R [2008] NSWCCA 150; 186 A Crim R 52 at [77] and Wakeling v R [2016] NSWCCA 33 at [47] in support of the proposition that "the presence or absence of consent is relevant in the assessment of objective seriousness for an offence contrary to s 66C". It was not said in either of those two cases that consent was a mitigating factor. The issue in each case was whether the sentencing judge had infringed the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 when sentencing for offences against s 66C by taking into account a lack of consent, which was an element of the more serious offence in s 61J. The Court's response in each case was to characterise the judge as having done no more than refer to a matter that was relevant to the "relative seriousness of the offence" as compared to other offences which might be charged under s 66C: see Hogan v R at [77]; Wakeling v R at [47].

The sentencing judge in the present case was correct to approach the issue of "consent" in the manner in which it had been submitted by the applicant's counsel at sentence; namely, by taking into account the fact that each act of sexual intercourse was "non-oppositional" when assessing the relative seriousness of the offences.

The absence of consent is not an element, or inherent, in offences against s 66C. Forced intercourse without consent would be relevant as a matter of aggravation in assessing the relative seriousness of such an offence (if care is taken in the manner described in Hogan v R and Wakeling v R to not infringe the De Simoni principle). The absence of an aggravating feature does not mitigate the seriousness of the offences here in question: see, for example, R v Woods [2009] NSWCCA 55; (2009) 195 A Crim R 173 where the Court (Giles JA, Latham J and Mathews AJ) said (at [53]):

Counsel in this Court, to her credit, acknowledged the force of the argument put against her on this point and did not seek to pursue the assertion of error any further. In the final analysis, the assertion is untenable.

The applicant's submissions incorporate an implicit assumption that the victim's cognitive impairment was necessarily less serious than other circumstances of aggravation listed in s 66C(5). However, as the Crown submissions point out, it was not submitted to the primary judge that his assessment of objective seriousness should include such a comparison and conclusion.

In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [50], the High Court expressed caution about downplaying the significance of a "mild intellectual disability". The description "mild" does not suggest something inconsequential. Here, the child was aged 12, but that was just her chronological age.

It was not self-evident that the circumstance of aggravation averred in the charges was necessarily less serious than others listed in s 66C(5). The judge was correct to characterise the victim impact statement as reflecting the age and intellectual development of the victim, and there is no challenge to his finding that "it is clear enough that the offences have caused significant psychological damage to her".

This assertion of error must be rejected.

The first issue to be considered in relation to this asserted error is what the judge meant by "planning". In normal parlance, it suggests (at the least) forethought being given to some future activity. In the present case, it appears the word was used to contrast the second offence from one that occurred unexpectedly or spontaneously.

The applicant was a relatively intelligent adult who had deliberately fostered a relationship with a child who he knew was aged 12 and had an intellectual disability. She was thereby in no position to make any mature and considered choice about the matter. He engaged in forms of intimacy with her (kissing and cuddling) soon after he commenced living in the family home. On one occasion, the applicant had full penile/vaginal intercourse with her (the first offence). It was in the context of these events occurring over several months that, on 10 April 2017, the applicant and the victim were lying naked on his bed in the garage of the family home. The second offence then occurred.

I am satisfied that this was what counsel for the applicant was alluding to when he made the submission about "some planning", by his references to "it had already been on foot" and the "ongoing nature of it". I am also satisfied that the judge used the word "planning" in the very same loose way that counsel had.

I am of the view that the applicant's contention of error must fail for three reasons.

First, it was the applicant's counsel who suggested that the judge would make the finding. As a general rule, this Court "will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made": Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J).

Secondly, the assertion that the judge incorrectly found that the aggravating factor in s 21A(2)(n) applied is not supported by the judge's remarks. He simply paraphrased the submission the applicant's counsel had made by saying "the second offence is further aggravated by some slight degree of planning". He did not (and counsel did not) refer to s 21A(2)(n), nor did he use the description in that provision: "the offence was part of a planned or organised criminal activity". Even though not a matter of aggravation pursuant to that provision, it remained open to his Honour to regard the background to the second offence (as I have described it above) as affecting the relative seriousness of the offence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(1)(c).

Thirdly, the complaint that his Honour provided no reasons for making this finding is groundless. The point was not in issue and thus it was unnecessary for his Honour to explain.

None of the errors asserted in relation to the judge's assessment of the objective seriousness of the offences are made out. His Honour's findings as to the relative seriousness of the offences were reasonably open to be made. Ground 1 must be rejected.

As identified by the applicant, the starting points for each of the indicative sentences before reduction by 25 per cent for the pleas of guilty were 7 years and 6 months and 9 years respectively.

The submission in relation this ground is encapsulated in the following paragraph of counsel's written submissions: [10]

Counsel referred in written submissions to a paucity of assistance available by way of sentencing statistics and comparative cases. She accepted that the maximum penalty and the standard non-parole period prescribed for the offence in s 66C(2) were points of reference. It was noted that the starting point for the second offence was a head sentence of 9 years which was equivalent to the standard non-parole period. The significance of this was not explained and it is not clear what the Court was to make of it. [11]

Despite the little to be derived from the foregoing, it was submitted that the indicative sentences were excessive when considering the criminality involved in the individual offences. Further, there was said to be, "perhaps", an erroneous approach to another issue that may explain the asserted manifest excess of the sentence, namely that in the (notional) accumulation of the indicative sentences the judge failed to give due regard to the principle of totality. [12]

Counsel accepted that it was necessary for some element of accumulation "to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending": R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]. However, it was submitted that "the length of the indicative sentences, the degree of (notional accumulation) and the absence of a finding of special circumstances resulted in a sentence which had the effect of being excessive having regard to the totality of criminality of the offender's conduct". [13]

It was also submitted that there was a "significant overlap between the facts and circumstances of the two offences" as being pertinent in relation to totality. It was submitted that "they overlap in being committed upon the same victim, during the same period of time the offender was residing with her, within the course of the same 'relationship', in the same surrounding context". [14]

The Crown submitted that the aggregate sentence was not unreasonable or plainly unjust because of the following matters:

The Crown was critical of the applicant's reliance upon statistics and comparative cases. However, as indicated above, the applicant's counsel readily accepted in her written submissions that they were not of any particular assistance. Counsel who appeared at first instance adopted the same approach.

The Crown submitted (uncontroversially) that questions of accumulation of sentences are entirely discretionary and in this case it was open to the sentencing judge to (notionally) accumulate as he did. In support of this, the Crown noted that there were two discrete episodes of offending some three or four months apart and that the second offence involved additional matters of aggravation.

The principles to be applied in the assessment of a ground of appeal asserting manifest excess in a sentence were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

Where the subject of the assessment is an aggregate sentence, it is necessary to focus upon that sentence, although regard may be had to the indicative sentences and the notional degree of their accumulation in order to understand the foundation for the aggregate. The issue is whether the actual sentence imposed is proportionate to the totality of the offender's criminality. (See JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].)

It was necessary for the sentencing judge to make an assessment of the individual sentences (in accordance with Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57) that were proportionate to their objective gravity: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]. As previously mentioned, his Honour found the first offence to be slightly below, and the second offence to be within, the middle of the range of objective seriousness.

These findings by the judge as to the relative objective seriousness of the offences enable use of the maximum penalty and the prescribed standard non-parole period as legislative guideposts: R v West [2014] NSWCCA 250 at [27] (Adamson J). As mentioned, the former is imprisonment for 20 years and the latter is a non-parole period of 9 years.

The starting points for each indicative sentence before 25% reduction for the applicant's early pleas of guilty were 7 years and 6 months and 9 years respectively. The actual indicative sentences were 5 years and 7 months and 6 years and 9 months. In determining the aggregate sentence by applying the principle of totality, the judge uncontroversially, albeit notionally, accumulated one partly upon the other. The indicative sentences are each significant, but the degree to which they were accumulated to arrive at an aggregate sentence of 9 years and 6 months is quite substantial.

One does not know (and it was not necessary for the judge to say) whether the sentence for the first offence was accumulated upon the sentence for the second, or vice versa, or whether the judge simply looked at the two and made an assessment of what was appropriate for the totality of the offending. Simply put, in addition to the sentence for the first offence there is an additional 3 years and 1 month for the second offence. Or, in addition to the sentence for the second offence, there is an additional 2 years and 9 months for the first offence.

In Nguyen v R (2016) 256 CLR 656; [2016] HCA 17 at [64], Gageler, Nettle and Gordon JJ made the following observation about the operation of the principle of totality:

There were a number of common features in the two offences (e.g. they both involved the same type of offending with the same victim), but there were additional elements of criminality that demanded an appropriate level of partial (notional) accumulation. Using the terminology of Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27], the sentence for one offence could not comprehend and reflect the criminality for the other offence. They were discrete offences committed some months apart and with the second offence involving additional aggravating factors.

There were a number of subjective matters of significance that had to be borne in mind in the assessment of sentence. They should not have lost their force, or been diluted in their effect, in the assessment of the aggregate sentence. They included the following matters as described by the judge: [15]

The applicant's offences were very serious and warranted a stern response in sentencing in order to give effect to some of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). These include adequate punishment, deterrence, making the offender accountable, denunciation of his conduct, and recognition of the harm done to the victim. However, it was necessary also to make due allowance for those aspects of the applicant’s subjective case which were favourable to him. The starting points for the indicative sentences give the appearance of reflecting the former, but not the latter. Having regard to the substantial degree to which the sentences were notionally accumulated, the same may be said of the aggregate sentence.

I am satisfied that the aggregate sentence of 9 years and 6 months is manifestly excessive.

My own assessment of the objective seriousness of the offences coincides with that of the primary judge. I have had particular regard to the fact that the offences were committed by a mature and reasonably intelligent 28-year-old adult who formed an abhorrent belief that he was in love with a 12-year-old girl. He said in his evidence that he was aware of both her age and her intellectual disability at the time. Both offences involved full penile/vaginal intercourse, the second occurring without any protection. The applicant concedes that the offences were further aggravated as they occurred in the victim's home and in abuse of his position of trust.

An affidavit by the applicant was read in the event of re-sentencing. He affirmed that he had involved himself in work and in education since he was sentenced. He is currently involved in a 12-month traineeship in heavy engineering and had completed other vocational courses. He had also completed the EQUIPS drug addiction program from which he claims to have derived considerable benefit.

The Crown read an affidavit to which was attached a number of documents describing some institutional disciplinary misconduct charges brought against the applicant. There are three such instances, but they are of a relatively minor nature and there have been no further incidents in the past nine months.

It may well be the case that the applicant's prospects of rehabilitation are better now than they were at the time of sentencing, but there are no expert reports available to assist with an assessment of this.

Counsel for the applicant submitted that there should be a finding of special circumstances thereby reducing the non-parole proportion of any new sentence imposed. One circumstance contributing to this was said to be the "accumulation of sentences". It appears that this submission is made quite often, but it is inapt where only one sentence with one non-parole period is imposed and nothing is actually accumulated. The other circumstance submitted was that the applicant should have an extended period of time on parole in order to assist with his rehabilitation through supervision and support. Almost all inmates would benefit from that. I do not see anything sufficiently "special" in the applicant's case when regard is had to the potential period of parole available when a sentence is imposed in the terms indicated below. This is particularly the case when all matters potentially supporting a finding of special circumstances have been taken into account in determining the overall sentence: R v Fidow [2004] NSWCCA 172 at [18].

In relation to the nomination of individual sentences as required by s 53A of the Crimes (Sentencing Procedure) Act, I propose a sentence for the first offence of 7 years and a sentence for the second offence of 8 years. These are to be reduced by 25% for the applicant's early pleas of guilty, yielding sentences of 5 years, 3 months and 6 years respectively. For the purposes of s 54B(4) of the Crimes (Sentencing Procedure) Act, the non-parole periods are 3 years, 11 months and 4 years, 6 months respectively.

Applying the principle of totality in relation to those discounted individual sentences, I propose an aggregate sentence of 7 years, 6 months with a non-parole period of 5 years, 7 months.

I propose the following orders: