AGF v R

1. [1]

   MEAGHER JA: I agree with R A Hulme J and the orders he proposes.

2. [2]

   HARRISON J: I agree with R A Hulme J.

3. [3]

   R A HULME J: AGF ("the applicant") applies for leave to appeal against a sentence imposed upon him in the District Court on 6 November 2009. The applicant cannot be identified for reasons which will become apparent; hence the pseudonym.

4. [4]

   The applicant was found guilty by a jury of a number of offences and her Honour imposed a total effective sentence of imprisonment for 15 years with a non-parole period of 10 years. The non-parole period expires on 15 June 2018.

5. [5]

   The applicant seeks leave to appeal on the following grounds:

6. [6]

   Given that the proposed grounds do not assert any error on behalf of the sentencing judge it is unnecessary to say anything for the moment about the facts concerning the offences, the applicant's subjective case or her Honour's reasoning and assessment of sentence.

History

1. [7]

   The matter is the subject of a rather complex procedural history but I will only refer to so much of it as is presently pertinent. To maintain the applicant's anonymity I will refrain from providing a citation of some other cases in this Court which form part the history.

2. [8]

   The applicant was tried in early 2009 on an indictment alleging a total of 13 sexual offences and 1 assault offence against his niece. The jury returned verdicts of guilty in respect of 10 of the offences. They occurred between 1997 and 2003 when the complainant was aged from 12 to 18.

3. [9]

   When the applicant was sentenced later in 2009 there was no evidence brought forward about him having provided assistance to authorities.

4. [10]

   The applicant appealed against his conviction but not against his sentence. Heard at the same time as that appeal was an appeal against the severity of a sentence imposed in separate proceedings for an offence of assault concerning the same victim. The Court dismissed the appeal against conviction but allowed the appeal against the assault sentence. The reduced sentence of 3 months that the Court imposed was completely subsumed within the sentences imposed in the primary proceedings so nothing more needs to be said about it.

5. [11]

   The applicant filed a notice of appeal against sentence and an application for an extension of time on 1 June 2016. This was some 4 years after his conviction appeal had been determined and 7 years after he had been sentenced.

Ground 1 - miscarriage of justice because of the absence of evidence of assistance to authorities

1. [12]

   Senior counsel's advice was sought in 2014 as to the merits of an appeal against sentence but counsel was not briefed with information as to the applicant's assistance to authorities. When counsel was advised of it, sometime in the latter half of 2014, he requested that inquiries be made with the police officer in charge of the case and with the applicant's previous lawyers, both at sentence and on the conviction appeal. The officer confirmed that assistance had been provided. The applicant's previous legal representatives all provided affidavits as to their knowledge of it or otherwise.

2. [13]

   The solicitor and barrister who appeared in the trial and sentence proceedings provided affidavits indicating that they were unaware that the applicant had provided assistance and said that if they had been aware, it would have been raised during the sentence proceedings.

3. [14]

   The solicitor and barrister who represented the applicant in the conviction appeal indicated in their affidavits that the applicant had said something about having provided assistance. The filing of an appeal against sentence was contemplated but no further information was forthcoming and nothing happened.

4. [15]

   The applicant swore an affidavit on 8 April 2016. He said that he did not tell his legal representatives in the District Court proceedings that he had provided assistance but he told his solicitor after, and possibly before, the hearing of the conviction appeal in this Court. He said that he had provided information to a named police officer prior to his trial. He said that he did not bring this to the attention of his legal representatives for a number of reasons which I paraphrase and summarise as follows:

5. [16]

   The applicant also claimed that he did not provide assistance in order to obtain a benefit for himself. He said that he did so "out of my sense of right and wrong and my strong moral views against the manufacture and supply of illicit drugs".

6. [17]

   The Court was informed at the hearing of the application that a police officer, at the request of the applicant's wife, had provided an affidavit setting out the applicant's assistance after the hearing of the conviction appeal four years ago. The lawyers on both sides of the record at the time were completely unaware of this. The officer apparently sent it directly to the associate to the presiding judge. What became of it is a mystery. It may be inferred, however, that at least by sometime in 2012 the applicant had become aware of the relevance of his assistance to the assessment of sentence and of the confidentiality with which such matters may be dealt with.

7. [18]

   Mr Boulten SC accepted that there were some aspects of this history that were "unacceptable". He also accepted that the delay in the issue being raised counted against an extension of time being granted but contended that if the Court found that the assistance was of some substance then intervention was warranted in order to repair a miscarriage of justice.

8. [19]

   There is an obvious need to be circumspect about the nature of the assistance provided by the applicant. It is enough for present purposes to say that there were three components. The first involved the applicant providing information about very serious criminal activity by a person notorious for his involvement in serious, including violent, crime. In conjunction with information police obtained from a completely separate source it led to a police investigation being successful to the extent that the notorious person was charged with 17 offences, some of considerable seriousness. He ultimately received a sentence of imprisonment. The assistance the applicant provided in relation to this matter did not extend to him making a statement or offering to give evidence.

9. [20]

   The second aspect was that the applicant provided information to police about organised crime activity in a certain area. The third is that he provided information about the criminal activities of a prison inmate.

10. [21]

    As to the value of the applicant's assistance in relation to the first matter, his information on its own would not have been sufficient to bring about the success of the police investigation whereas the information from the other source would have been. It is of significance, however, that the validity of the applicant's information was confirmed by that from the other source and by the successful outcome of the investigation and prosecution.

11. [22]

    In terms of the matters required to be considered by s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the assistance was reasonably significant and it could be regarded as useful, truthful, reliable and timely. Having regard to the type of person the information concerned, it had the potential to expose the applicant, and perhaps his family, to a significant risk of personal harm.

12. [23]

    In relation to the second and third aspects of the assistance, the applicant's information was described as "more general". Some of it was confirmed through police intelligence holdings and some could not be. It was not of a nature that police could act upon it. It is of far less significance than the first aspect.

13. [24]

    There was no controversy that because at the time of the sentence proceedings in 2009 the applicant knew that he had provided assistance to the police, even though it was not known by his lawyers, the evidence of it should be regarded as new rather than fresh. The Court may receive new evidence where it is "necessary to do so in order to avoid a miscarriage of justice": Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 at [2], [10].

14. [25]

    The principles relating to the reception of fresh and new evidence in an application for leave to appeal against sentence were thoroughly canvassed by Simpson J (as her Honour then was) in her judgment in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 where she said, in part:

15. [26]

    Her Honour then made specific reference to applications for leave to appeal against sentence and there being "an additional, sometimes intractable, barrier to admissibility" in relation to facts or circumstances which have arisen post-sentencing. In this context she referred to assistance provided to authorities and physical and mental health conditions. She then referred to a "sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence" where the matter existed at the time of sentence but was not known, or imperfectly understood, at that time where, if the interests of justice have so dictated, the Court has admitted the evidence in order to correct the misunderstanding. Her Honour continued:

16. [27]

    The point included in [108], and mentioned again in the final sentence of [121] of the above - the necessity of evaluating the capacity of the evidence to have affected the outcome at first instance - is critical to the outcome in this case.

17. [28]

    In written submissions, the assistance provided by the applicant was described as "very considerable". The failure of the applicant to bring it to the attention of his lawyers was explained. It was misguided but should not be held against him. There was no tactical advantage to be gained by withholding it. It was submitted that it was in the interests of justice that the Court receive the evidence and reduce the applicant's sentences as would "almost inevitably" have occurred if the evidence of assistance had been placed before the primary judge.

18. [29]

    Reference was made to this Court having received such evidence in the past in exceptional cases to guard against miscarriages of justice, even when the evidence was not strictly fresh. Many v R (1990) 51 A Crim R 54 was cited as an example.

19. [30]

    Counsel for the Crown submitted that the new evidence of assistance is not of such a character that its absence in the proceedings in the District Court resulted in a miscarriage of justice.

20. [31]

    It was submitted that the assistance was of limited weight. It did not, of itself, lead to the laying of any charges against any person. It did not involve the applicant giving evidence, or offering to do so: s 23(2)(b) and (d) of the Crimes (Sentencing Procedure) Act.

21. [32]

    The Crown pointed to the fact that the sentencing judge found that because the applicant continued to deny his guilt, "There is … no remorse and contrition to be taken into account as a mitigating factor". As a consequence, it was submitted that it could not be said that the giving of assistance supported a finding of remorse.

22. [33]

    It was submitted as well that the applicant's assistance to authorities would not create a situation in which he would "suffer harsher custodial conditions as a consequence": s 23(2)(g). The sentencing judge found that for other reasons, including the nature of his offences, the applicant "will serve his time in custody significantly more arduously than would others". The judge referred to the fact that he was in protective custody and was "likely to remain as an A2 classified prisoner for the whole of his term of imprisonment". He would have little, if any, access to educational facilities or rehabilitation programs. Her Honour accepted that the applicant "has fear, genuinely based, that he may be murdered in the gaol system, if not seriously harmed".

23. [34]

    The delay in bringing this issue before the Court has obviously been considerable and is not well-explained. It is particularly curious that the matter was not pursued further in 2012 when the applicant informed the lawyers who were representing him in the conviction appeal. A further aspect is the delay between his current lawyer becoming aware of the issue in the latter half of 2014 and the commencement of proceedings only a few months ago. However, there is force in the submission that there was no tactical advantage or self-interest in the applicant's tardiness. Counsel for the Crown candidly conceded this was so.

24. [35]

    The rationale for reducing sentences for those who provide assistance to authorities was explained by Hunt CJ at CL and Badgery-Parker J in R v Cartwright (1989) 17 NSWLR 243 at 252 - 253:

25. [36]

    What was said in R v Cartwright remains valid in spite of the subsequent enactment of s 23 of the Crimes (Sentencing Procedure) Act. One of its important features, in the form which it took at the time of sentencing and still now, is the prohibition in s 23(3) against reducing a sentence to a point which is "unreasonably disproportionate to the nature and circumstances of the offence".

26. [37]

    The applicant's assistance involved the provision of information whereas significant reductions of sentence are usually reserved for offenders who also give evidence against others, or undertake to do so. Nevertheless, the assistance which concerned a rather dangerous criminal was of some substance. It was not such as to warrant a reduction of sentence by a large proportion but the extent of the reduction it should have attracted is not trivial either when one has regard to the very lengthy term that was imposed. The level of reduction should reflect the serious nature of the criminal activity about which the applicant volunteered information to police; the validity of his information; and the potential risk to which he exposed himself. The level of reduction should also serve the public interest discussed in R v Cartwright.

27. [38]

    In my assessment, the applicant's overall sentence should be reduced by 10 per cent. That will not be productive of an unreasonably disproportionate sentence. It will be necessary to reduce the individual sentences and the degrees of accumulation in a manner that achieves this.

Ground 2 - miscarriage of justice because the applicant was dealt with on the basis that he had previously been convicted of a child sexual assault offence

1. [39]

   This ground concerns another aspect of the complex procedural history. When the applicant was sentenced in 2009 his record comprised two prior convictions. They were for offences of assault and sexual assault of a person under the age of 16 years. The applicant had been sentenced for these offences in 2008 and received sentences of 18 months and 5 years respectively.

2. [40]

   When sentenced in 2009, the judge referred in her sentencing remarks to these matters as follows (omitting unnecessary detail):

3. [41]

   The appeal to this Court to which the second sentencing judge referred was heard and determined in 2010 and resulted in the applicant's conviction for the child sexual assault offence being quashed and a retrial ordered. The Director of Public Prosecutions subsequently determined to pursue the matter no further.

4. [42]

   The written submissions for the applicant acknowledged that "the absence of previous convictions for matters of this type is, as her Honour correctly pointed out, a matter of minor significance when an offender was participating in an ongoing course of conduct over time". However, it was submitted that "the fact that the applicant had a previous conviction for sexually abusing a different victim at an earlier time must have aggravated sentence to some degree". As a consequence, the sentence imposed "must have been somewhat higher than they ought to be in the light of the fact that the applicant's conviction for the offence involving [the other victim] has now been quashed".

5. [43]

   It was submitted that the sentencing exercise carried out in 2009 "was predicated on an incorrect fact" and so this ground should be upheld. Alternatively, it was submitted that if Ground 1 was upheld, re-sentencing should be carried out with regard to the fact that the previous child sexual assault conviction was subsequently quashed.

6. [44]

   It was submitted for the Crown there is no suggestion of the primary judge having regarded the prior conviction for a child sexual assault offence as a matter of aggravation. Her Honour did not suggest that there was a greater need for general or specific deterrence or for denunciation by reason of that prior offence. She simply said that she could not take into account as a mitigating factor that the applicant was a person of prior good character. She also noted that even if she could, it would not be a matter that was "particularly relevant".

7. [45]

   Even after the conviction for the prior child sexual assault offence was quashed, it remained the fact that the applicant's record comprised a conviction for a prior assault. It therefore remained the position that he was not a person of prior good character. In short, it was submitted that the applicant's submission that the sentence "must have been somewhat higher" could not be sustained.

8. [46]

   The Crown's submission should be accepted. The sentencing judge’s treatment of the past convictions was confined to denying the applicant a mitigating factor of prior good character that is conceded to be of minimal significance in any event. A finding of prior good character would not have been open if her Honour had been aware only of the prior assault offence, particularly when that offence concerned the same victim as in the offences for which the applicant was being sentenced.

9. [47]

   This ground cannot be upheld.

Re-sentencing

1. [48]

   In re-sentencing, in the unusual circumstances of this case, it is, arguably, simply a matter for this Court to arithmetically adjust the sentences imposed upon the applicant to give effect to the allowance that should be made for his assistance to authorities. A literal interpretation of what was said by the High Court of Australia in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 would have it that the Court is required to completely re-exercise the entire sentencing discretion.

2. [49]

   The point need not be decided here because there was consensus at the hearing of the application that, subject to the two matters raised by the grounds of appeal, the sentences imposed in the District Court were otherwise appropriate. In indicating why I accept the correctness of that consensus it is necessary to provide some detail about the offences in question and the applicant's subjective case.

3. [50]

   The complainant is the niece of the applicant's wife. She went to live with them in February 1995 when she was 9 years old because her father was deceased and her mother had a serious mental illness. The applicant assumed the role of a parent towards her but from the time when she was 12 years of age until she was 18 years of age he repeatedly subjected her to sexual abuse.

4. [51]

   The following are the details of each of the 10 offences. The statutory provisions referred to are all within the Crimes Act 1900 (NSW). The commencement dates for the sentences are as adjusted by this Court following the quashing of some unrelated sentences.

5. [52]

   On an occasion when the complainant was 12 years old the applicant told her to lie on his bed with him. He was watching a pornographic video and touching his penis. He touched and rubbed her genital area on the outside of her clothing and told her to touch herself. She refused to do so and got up and left quickly.

6. [53]

   Sentence: fixed term of imprisonment for 12 months commencing 16 June 2008.

7. [54]

   In 1998 when the complainant was aged 12 or 13 there was an occasion when the applicant dragged her to her bedroom and threw her onto her bed. He pulled her underwear down, lifted up her skirt and licked her vaginal area. The complainant was screaming and crying and telling him to stop. He was angry and told her to shut up. The applicant then told the complainant to watch him masturbating to ejaculation into a towel. He said to her, "Sorry mate, I just had to do that".

8. [55]

   Sentence: fixed terms of imprisonment for 3 years and for 12 months, both commencing 16 June 2009.

9. [56]

   On an occasion in the first half of 1999 when the complainant was aged 13 she was home alone with the applicant. He told her to go to the front room, take her clothes off and lie on the floor which she did. He then performed oral sex upon her. The applicant took off his pants and asked the complainant to perform oral sex on him which she did. He ejaculated into her mouth. She then ran to her bedroom and then to a friend's house across the road.

10. [57]

    Sentence: fixed term of imprisonment for 3 years from 16 June 2010.

11. [58]

    Each of the offences in Counts 8 to 10 occurred during the summer school holidays of 1999-2000 when the complainant was aged 14. On one occasion he told her to come to his room and offered her wine which she refused. He had previously spoken of wanting to have sex with her but she said she did not want to. On this occasion he told her that she was developed enough now, it would not hurt and she should relax but she reiterated that she did not want to. He tried to penetrate her vagina but was unsuccessful. She was crying, squirming and experiencing considerable pain. She pushed him off and went to her bedroom.

12. [59]

    Sentence: fixed term of imprisonment for 3 years commencing 16 June 2011.

13. [60]

    On another occasion in the same holiday period he did the same thing. He used a condom and lubricant but was again unsuccessful in achieving penetration. She experienced pain and told him to stop, which he did not do immediately. After some 10 minutes she went to her own bedroom.

14. [61]

    Sentence: fixed term of imprisonment for 3 years commencing 16 June 2011.

15. [62]

    On another occasion in this period the applicant again asked the complainant to have sex with him and this time succeeded in achieving penetration. He wore a condom, used a lubricant and ejaculated. She experienced pain once again.

16. [63]

    The sentencing judge found that by this stage the complainant had come to accept that this was what was expected of her and so she did not resist any longer. She thought she had no choice; it was going to happen anyway; so she went along with it to avoid any force or violence.

17. [64]

    Sentence: fixed term of imprisonment for 4 years commencing 16 June 2011.

18. [65]

    This offence occurred at the end of 2001 when the applicant was in what the judge described as a jealous rage because the complainant had been in the company of a young man the previous night at a school formal. The assault included kicking and putting the complainant onto the floor with his hands around her neck while he was kneeling on top of her. He said he was going to kill her and that she was a liar. The judge accepted that there was no suggestion of physical injury but it was towards the top of the range in terms of objective seriousness for such an offence.

19. [66]

    Sentence: fixed term of imprisonment for 18 months commencing 16 June 2012.

20. [67]

    The complainant was aged 18 when this offence occurred on about 13 December 2003. She had just returned home from "Schoolies Week". The applicant asked her about men she may have met. He then told her to go to the front room and she realised this meant he wanted to have sex with her. She told him that she did not want to and that she hated him and he disgusted her. She was crying but took off her clothes because she thought she had no choice. While he was having penile-vaginal intercourse with her she scratched his back and told him that he was a disgusting paedophile. He said that she was putting him off and the intercourse ended without ejaculation.

21. [68]

    The complainant moved out of the applicant's home in early 2004.

22. [69]

    Sentence: imprisonment for 10 years with a non-parole period of 5 years commencing 16 June 2013.

23. [70]

    Taken into account at the applicant's request in sentencing for Count 13 was an offence of using a carriage service to access child pornographic material (s 474.19 Criminal Code (Cth)). 303 images from 32 web pages were found when a search warrant was executed after the applicant was arrested. Her Honour described some as "not particularly explicit" while others "were at the highest level of explicitness".

24. [71]

    The complainant gave evidence in the trial of "numerous" occasions when similar sexual activity occurred. Appropriately, the judge took this into account only as an indication that the charged acts for which the applicant was found guilty were not isolated incidents. There was also evidence in the trial of the applicant saying things to the complainant by way of manipulation and coercion; for example, "Come on mate, we're friends. We have a special bond. It will stop when you're eighteen, it is only sex, it happens all the time. This is very common."

25. [72]

    Her Honour referred to the complainant coming into the applicant's home "as a very needy nine-year-old girl whose father had died when she was very young, and whose mother was not able to care for her because of her own mental health problems". She said the offences constituted a "gross violation of the trust that children ought to feel they can place in all adults, but particularly parents or those who stand in the place of their parents, to have their innocence removed from them in this way". She described each of the offences as serious and, correctly with respect, noted the importance of general deterrence in sentencing.

26. [73]

    The applicant was aged 60 at the time of sentencing. He had been married for 39 years and his wife remained supportive. As indicated earlier, the judge found there was no remorse.

27. [74]

    The judge accepted expert opinion that the applicant experienced post-traumatic stress disorder arising from his employment and also that he suffered from a chronic adjustment disorder with depression and anxiety. There was no evidence connecting his offending behaviour with any of his psychological or psychiatric conditions but the judge accepted it lessened the weight to be given to general deterrence and that the conditions would likely deteriorate through incarceration. Further, and as previously mentioned, the judge accepted that the applicant's time in custody would be significantly more arduous because of his protective classification.

28. [75]

    The judge found special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act and reduced the non-parole component of the sentence accordingly.

29. [76]

    Having taken into account the considerable seriousness of the applicant's offending but also aspects of his subjective case, the most pertinent being his mental condition, I am satisfied that the common position of the parties as to the otherwise appropriateness of the sentences imposed in the District Court should be accepted.

Orders

1. [77]

   In giving effect to the applicant's success on Ground 1, and with some rounding for practical purposes, I propose the following orders which will have the effect that the applicant will be subject to an overall sentence of 13 years 6 months with a non-parole component of 9 years: