Bravo v R

1. [1]

   BEAZLEY P: I agree with the reasons of Justice R A Hulme and with the orders he proposes.

2. [2]

   JOHNSON J: I agree with the reasons given by Justice R A Hulme that leave to appeal against sentence should be granted but the appeal should be dismissed.

3. [3]

   R A HULME J: The applicant was sentenced by her Honour Judge English in the District Court at Penrith on 17 October 2014 in respect of child sexual assault offences to an aggregate term of imprisonment of 22 years with a non-parole period of 16 years with effect from 23 May 2014.

4. [4]

   The applicant cannot be identified because doing so would tend to identify his victim. For this reason a pseudonym has been used in the name of this judgment.

5. [5]

   Details of the offences and the indicative sentences appear in the following table. All of the offences concerned the applicant's stepdaughter and occurred in a two year period when she was aged 9 to 11. The offences are all contrary to provisions of the Crimes Act 1900 (NSW) and standard non-parole periods pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to some.

6. [6]

   The applicant was found guilty of these offences at trial. The jury was not required to return a verdict on count 4 as it was in the alternative to count 3. Verdicts of not guilty were returned in respect of counts 9 and 10.

Facts

1. [7]

   The applicant commenced a relationship with the victim's mother when the victim was 2 years of age in 2004. He married the mother in 2006.

2. [8]

   The matter came to light when the complainant informed her mother on 9 April 2013 when she was 11 years of age, that the applicant had been sexually abusing her. The applicant was confronted and denied it. The complainant was interviewed by police that evening and disclosed the following details about the offences for which the applicant was ultimately convicted.

3. [9]

   Counts 1 and 2: This event represented the first occasion when the applicant had assaulted the victim. She was watching a movie and the applicant laid beside her and started kissing her. She described the kisses as "long in duration and tongue kisses". The applicant then removed their clothing and continued kissing her and squeezed her bottom. He then got up and went to his bedroom.

4. [10]

   Count 3: The next occasion the applicant assaulted the victim was when she went into his bedroom to say goodnight one evening when her mother was working. He got her to lie on the bed, kissed her, and removed their clothing. Using some lubricant he then penetrated her vagina with his penis. The victim was too scared to ask him to stop.

5. [11]

   Counts 5 and 6: The next incident occurred in almost identical circumstances but involved the applicant simulating vaginal intercourse with the victim in his bed. The applicant then turned the victim over and had anal intercourse with her. She said that it hurt but was too scared to tell him to stop.

6. [12]

   Count 7: The victim went into the applicant's bedroom to say goodnight and when she went to leave he dragged her back and asked for "a proper kiss". She kissed him on the cheek and then agreed to give him a hug. He then put her onto the bed and had anal intercourse with her. When she later went to the toilet she said she saw a "creamish" colour fluid came out of her bottom which she thought was "maybe a sperm".

7. [13]

   Count 8: This was another occasion in 2012 and involved the victim kissing the applicant goodnight. He took her to his bedroom, removed their clothing and rubbed his penis against her "front part". He suggested she sleep with him that night (her mother was again at work) but she wanted to sleep in her own bedroom. He went with her to her bedroom and there rubbed his penis against her vagina.

8. [14]

   Counts 11-14: Count 11 involved the applicant rubbing his penis against the victim's vagina whilst in his bedroom. Count 12 involved digital penetration of her anus and count 13 involved insertion of his penis. The applicant left the room but when he returned he "tongue kissed" her and then digitally penetrated her vagina (count 14). She told him that it hurt and he withdrew. She put her clothes back on and went to bed.

9. [15]

   There were uncharged acts of sexual abuse as well which involved inappropriate acts of kissing.

Remarks on sentence

1. [16]

   The judge made reference to a number of matters pertinent to sentencing including:

2. [17]

   The judge said that the most serious offence was the act of penile/anal penetration with ejaculation. That matter "falls at the midrange" and "I can see no reason why I should depart from applying the standard non-parole period in the circumstances".

3. [18]

   The offences in counts 1 and 2 were "not so serious as to warrant the imposition of fulltime custodial penalties were it not for the other offences committed by this offender".

4. [19]

   “The act of placing his penis into the genital area of the victim but not penetrating her is a serious example of an aggravated indecent assault” which “falls below the midrange which would attract a standard non-parole period of 8 years”.

5. [20]

   "The acts (sic) of penile vaginal intercourse are of course also objectively serious but given the facts, is not as serious as the act (sic) of penile/anal intercourse."

6. [21]

   Her Honour acknowledged the need for care in accumulation "because of the compounding impact of long sentences". She said, "Sentences should not crush any hope or desire for rehabilitation that a prisoner might belatedly feel".

7. [22]

   Special circumstances were found so as to provide for a longer parole period because of the accumulation of sentences; that this would be the applicant's first time in custody; and the need for rehabilitation upon release.

8. [23]

   Her Honour expressed a need for a significant element of general deterrence in relation to offences of this type. There was a need for the applicant and the community to "understand that such crimes will be met with stern and retributive punishment". She referred also to the need to denounce what the applicant had done, to recognise the harm done to the child, and to protect the community from him.

Ground The sentencing judge patently erred with respect to the indicative sentences resulting in the sentencing miscarrying

1. [24]

   The applicant's counsel contended that the following errors were patent in the specification of some of the indicative sentences:

2. [25]

   It was submitted that these errors would necessarily have impacted upon the final aggregate sentence.

3. [26]

   The Crown contended that her Honour did not err in relation to the indication of sentences of imprisonment in respect of counts 1 and 2. They might have warranted non-custodial sentences if they stood alone but they were not isolated offences and represented part of a "grooming" process for the more serious offences.

4. [27]

   The Crown accepted that her Honour erroneously regarded the offence in count 6 (s 66A(2)) as "the most objectively serious" because it involved anal intercourse with ejaculation. She found it fell within the midrange and warranted application of the standard non-parole period. In fact, it was count 7 that involved such intercourse with ejaculation but that was an offence contrary to s 66C(2) for which no standard non-parole period applied.

5. [28]

   The Crown contended, however, that the misstatement of ejaculation in relation to count 6 would have made little, if any, difference in the determination of the indicative sentence.

6. [29]

   Whilst accepting the conflation of the facts of count 7 with that of count 6, the Crown resisted such a conclusion in relation to the other offence of anal intercourse in count 3. Nothing in the judge's sentencing remarks supported the applicant's proposition.

7. [30]

   The Crown conceded that there was error in the judge specifying indicative sentences for counts 7 and 13 which equated to the maximum penalty. They were not in the worst category of this type of offence and the judge said nothing to suggest that she thought they were.

8. [31]

   The Crown also conceded that there was "Muldrock-error" in relation to count 6.

9. [32]

   I accept the Crown's submission that there was no error in relation to the indication of 1 month sentences for counts 1 and 2. Moreover, it cannot be thought that if there was such error in the specification of those indicative sentences there was any practical impact upon the assessment of the aggregate sentence. An appeal, of course, is against the sentence imposed, in this case an aggregate sentence; there is no appeal against indicative sentences: JM v R [2014] NSWCCA 297 at [40] (propositions 11 and 12).

10. [33]

    There was error in attributing the ejaculation that occurred in the count 7 offence to count 6 which clearly affected the judge's assessment of the seriousness of count 6.

11. [34]

    The contention that the judge also erroneously took ejaculation into account in relation to the count 3 offence is not borne out by anything the judge said.

12. [35]

    The applicant's submissions, and the Crown's concessions, as to the specification of indicative sentences at the level of the maximum penalty for counts 7 and 13 should be accepted. So too should the submission and concession as to “Muldrock-error” in relation to count 6. The High Court was clear in Muldrock (at [25]):

13. [36]

    In assessing the sentences for counts 7 and 13 the judge was "obliged… to take into account the full range of factors in determining the appropriate sentence for the offence" while being "mindful of two legislative guideposts: the maximum sentence and the standard non-parole period" (Muldrock at [27])

Re-sentencing

1. [37]

   Error having been established, there is a need for this Court to exercise the sentencing discretion afresh in order to determine whether some other sentence whether more or less severe is warranted and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW) and Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42].

2. [38]

   Counsel for the applicant submitted that a sentence "significantly less substantial" should be imposed when regard is had to the following matters:

3. [39]

   The Crown submitted that each of the offences, aside from those in counts 1 and 2, were serious crimes as is reflected in the prescribed maximum penalties: imprisonment for 10 years, 20 years and life. There were also significant standard non-parole periods that had to be considered as additional guideposts.

4. [40]

   Reference was made to R v Gavel [2014] NSWCCA 56 where the Court (Leeming JA, Johnson and Hall JJ) said:

5. [41]

   The Crown submitted that when all relevant matters were assessed by this Court the conclusion would be reached that nothing less than that imposed at first instance was warranted.

6. [42]

   Care is required in relation to the contention that counts 12 and 14 were less serious because they involved digital as opposed to penile penetration. As a general proposition that is not necessarily the case. As was observed in R v Gavel :

7. [43]

   However, in this case it would be appropriate to regard the offences in counts 12 and 14 as being less serious than the other sexual intercourse offences (counts 3, 6, 7 and 13) that involved penile/vaginal or penile/anal penetration.

8. [44]

   In oral submissions, counsel for the applicant emphasised that there was an absence of statutory (s 21A(2) Crimes (Sentencing Procedure) Act) or other aggravating circumstances in support of a submission that the offending was “low to midrange”. Arguably, some of the offences might fall below the middle of the range, but not all of them do.

9. [45]

   That counts 3 and 6 involved intercourse with a 9 year old where the offence in s 66A(2) can be committed against a child of any age under 10 is not a mitigating factor. Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452:

10. [46]

    A similar response must be made concerning the submission that the applicant did not persist with offending in the face of evident pain and distress displayed by the victim. There is nothing to suggest that the applicant was not fully aware of the gross acts of abuse he was perpetrating against a young child. He took advantage of the fact that because of her innocence and lack of comprehension of the heinous wrong that was being done to her she did not complain which allowed him to continue his abuse over a substantial period of time.

11. [47]

    Whilst I would not necessarily adopt all of the language used by the learned sentencing judge in describing the dimension of the applicant's crimes see above (at [16]), I am in respectful agreement with the sense of it.

12. [48]

    It is appropriate to again refer to R v Gavel for its succinct statement as to the effect upon children of offences of this type:

13. [49]

    The applicant had very little to offer in terms of subjective mitigating factors. His prior good character must be taken into account. I would agree with the primary judge's assessment that his rehabilitation prospects are guarded and very much dependent upon his engagement with sexual offender treatment programs. His prospects of success would be enhanced if he acknowledged his wrongdoing; something he is presently not prepared to do.

14. [50]

    I consider that nothing other than a term of imprisonment is appropriate for counts 1 and 2 having regard to their objective seriousness and the unavailability or lack of utility in other sentencing options. The assessment of objective seriousness for these offences is informed more by the offences forming part of the grooming and sexualisation of the child than the acts involved.

15. [51]

    There is no requirement to specify non-parole periods for indicative sentences where a standard non-parole period does not apply: JM v R at [39] (proposition 7). Moreover, whilst it seems to be often done, there is no practical purpose served in doing so. And I would certainly not engage in a process of setting indicative sentences at the level of what might otherwise have been the non-parole period as was done in McIntosh v R [2015] NSWCCA 184 for the reasons expressed in the comment on that case in Criminal Law News (2015) 22(8) Crim LN [3572].

16. [52]

    I assess the appropriate indicative sentences for each of the offences as set out in the following table.

17. [53]

    I would not find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. The reasons given by the primary judge (accumulation, first time in custody, need for rehabilitation after release) do not persuade me that the period I would allow for parole by following the statutory ratio would be inadequate.

18. [54]

    Having regard to those individual sentences I am mindful of the need to make an assessment of the totality of the applicant’s criminality. The aggregate sentence I would impose is no less than that imposed by the judge at first instance.

Orders

1. [55]

   I propose the following orders: