DH v R

1. [1]

   LEEMING JA: I agree with Hamill J.

2. [2]

   HAMILL J: The applicant seeks leave to appeal against an aggregate sentence imposed on him in the District Court of New South Wales on 16 March 2018. He was sentenced in relation to four counts of child sexual assault committed on a single victim. In relation to one of those offences, four other similar offences were taken into account. The applicant was sentenced by his Honour Judge Mahony SC DCJ to an aggregate sentence of 12 years imprisonment with a non-parole period of 9 years. The applicant entered a late plea of guilty and the sentencing Judge said that he had reduced the sentence by 10% as a result of his guilty pleas.

3. [3]

   The applicant relies on the following grounds of appeal:

   1. (1)

      The sentencing Judge erred in assessing the objective seriousness of Counts 1 and 3 by reference to a maximum statutory age of 16 years.

   2. (2)

      The sentencing Judge erred in finding that s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to the principal offences.

   3. (3)

      The sentence is manifestly excessive.

4. [4]

   If the Court accepts either the correctness of grounds 1 and/or 2 and forms the view that a different, less severe, sentence is warranted and should have been passed, it would not be necessary to consider the more general ground asserting that the sentence is manifestly excessive.

5. [5]

   I have reached the conclusion that both the first and second grounds of appeal are established. Further, taking into account all relevant circumstances and exercising the sentencing discretion afresh, I have concluded that a different, less severe sentence is warranted. These are my reasons for those conclusions.

The facts of the offences

1. [6]

   At the sentencing hearing the Prosecutor tendered an agreed statement of facts. The applicant gave evidence and did not contest those facts in any way. The facts recounted some eight specific incidents which formed nine counts on the indictment originally presented. The second count was discontinued and counts three, five, six and seven were placed on a Form 1, to be taken into account in sentencing in respect of count eight.

2. [7]

   Speaking generally, the offences arose out of an abusive sexual relationship between the applicant and the daughter of the applicant’s partner. It commenced when the applicant’s partner was pregnant in June 2008. At that time, the victim was aged eight years and nine (or perhaps 10) months.

3. [8]

   The statement of facts set out the details of the particular offences as follows:

4. [9]

   The victim then discussed these things with a person who cannot be identified. On 21 January 2016, Taree police were notified. Police spoke to the victim who provided a statement in February 2016. Police obtained a surveillance warrant and recorded a conversation between the accused and the victim. The conversation lasted for about an hour and the applicant told the victim that he was in love with her and apologised for what he had done. He said he hated himself and that she could put him in gaol if she wants to. He assured the victim that he had never touched her sister.

5. [10]

   The contents of the victim’s mobile phone were downloaded by police. There were something like 1,350 text messages between the applicant and the victim, most of which were sent by the applicant. The applicant was arrested on 22 February 2016 and refused to participate in an interview.

6. [11]

   The victim was under the age of 10 at the time of count 1 and count 3 (which was taken into account in sentencing for count 8). In relation to all of the other offences she was older than 10 but less than 16 years of age.

The offender's case

1. [12]

   The offender gave the briefest of evidence on sentence. He acknowledged his guilt, expressed his unreserved remorse for his behaviour and apologised to the victim, her mother and others who may have been affected by his conduct. He acknowledged the emotional injury that his conduct occasioned. He was not cross-examined. A psychologist’s report was tendered on his behalf. It set out his personal history. There was no cross-examination either of the expert (who it seems was not required to give evidence) or of the applicant when he gave evidence.

2. [13]

   The applicant was 52 years old when he stood to be sentenced. The psychological report did not diagnose the applicant with any particular psychological illness although it did indicate that he had a personality trait that tended to make him "feel worthless, vulnerable, inadequate and unsuccessful and to engage in self-criticism”. The psychologist expressed the opinion that the applicant may have committed the offences "in order to have his sexual and emotional needs met; without the fear of humiliation and rejection that he would encounter within his relationship with the victim's mother." She went on to suggest that he "may have also wanted to passively seek revenge against [the child's mother] for what he perceived as her abusive behaviour”. There was also a reference to the applicant's regular use of cannabis and the suggestion that this may have "somewhat impaired his ability to make sound decisions and to control his emotions and behaviour".

3. [14]

   In the end, there was very little in the evidence that explained why it was that the applicant sexually abused his stepdaughter over a period approaching seven or eight years.

4. [15]

   The most significant of the mitigating features were the applicant’s guilty plea, his expression of remorse (particularly in the unguarded, pretext, telephone call) and the fact that he had very little criminal history and no previous offences of sexual misconduct. All of the matters on his criminal history were quite old and none had resulted in a custodial sentence. There was also evidence that he had poor vision in one eye as a result of cataracts and other physical ailments.

Ground 1: The sentencing Judge erred in assessing the objective seriousness of counts 1 and 3 by reference to the maximum statutory age of 16 years

1. [16]

   Counts 1 and 3 were offences pursuant to s 61M(2) of the Crimes Act 1900 (NSW). At the relevant time, that is between May and December 2008, the offence proscribed by that subsection was in the following terms:

2. [17]

   The section has since been amended. The reference to the age of victims was increased from 10 to 16 years. The victim at the relevant time was either aged nine years (count 3) or just a little younger than nine years (count 1). In assessing the objective criminality of the offence, one of the matters to be considered was the age of the victim relative to the age stipulated in the section creating the aggravated form of the offence and the increased maximum penalty.

3. [18]

   Through no fault of the sentencing Judge, counts 1 and 3 were incorrectly pleaded. The “statutory age” of the victim was referred to as 16 years rather than 10 years. In the opening paragraphs of the remarks on sentence, the sentencing Judge set out the terms of the indictment rather than the terms of the statute. This was understandable because, it seems, the Judge was not made of aware of the relevant amendment. The sentencing Judge referred to the Prosecutor’s submission to the effect that s 61M(2) refers “to a child under 16 years of age" and "that the younger the child the more defenceless and vulnerable" they are. When asked to address the objective seriousness of count 1, the prosecutor said, “In relation to count 1, it’s the rubbing of the vagina underneath the clothing. Your Honour will appreciate that the complainant is eight years of age. The Crown would say in terms of indecent assault, that certainly is at the mid-range.”

4. [19]

   The remarks that followed suggest that his Honour accepted that submission. In particular, in referring to the objective criminality in respect of count 1 his Honour said:

5. [20]

   His Honour made other similar remarks throughout his judgment on sentence. Contrary to the submissions of the respondent, there is nothing either explicit or implicit in his Honour’s remarks to suggest that his Honour was aware of the correct statutory age.

6. [21]

   While the sentencing Judge was led into the error upon which the applicant relies, the inescapable conclusion is that the assessment of the objective gravity of count 1 and count 3, albeit that count 3 was not subject to a separate sentence, was affected by his misunderstanding of the relevant statutory age. This is a material error in the sentencing process.

7. [22]

   Accordingly, ground 1 must be upheld.

Ground 2: The sentencing Judge erred in finding that s 21A(2)(l) of the Crimes (Sentencing Procedure) Act applied to the principal offences

1. [23]

   The error asserted in ground 2 is different from that asserted under ground 1. However, the two grounds are at least somewhat related. The applicant relies on the following remark:

2. [24]

   I have emboldened and italicised the impugned passage.

3. [25]

   The reference to the vulnerability of the victim appears to have been made on the basis that she was aged eight or nine when the offence related to children under the age of 16. The statute at the time meant that the offence (in counts 1 and 3) related to children under 10. It was an error to assess the age of the victim as making them vulnerable in those circumstances. All children caught by the provision are necessarily vulnerable and this particular child was not very much younger than the 10 years of age prescribed by s 61M(2) at the time.

4. [26]

   Further, and while it may well have been a slip of the tongue (notwithstanding the judgment on sentence was reserved for a short while) the reference to “each of the offences” may suggest an error in taking into account the vulnerability of the victim based on her being eight or nine years of age. She was older, albeit still a vulnerable child, when the later offences were committed.

5. [27]

   Accordingly, ground 2 is also established.

Resentencing

1. [28]

   Because error is established this Court must exercise the sentencing discretion afresh in accordance with the High Court’s decision in Kentwell v The Queen. [1] Error having been established, the appropriate question is whether a different, less severe, sentence is warranted. [2] It is unnecessary to resolve ground 3 (manifest excess) under which it would be necessary to pay deference to the wide discretion residing in the Judge at first instance and to determine whether the sentence standing alone is manifestly excessive, plainly unjust or wrong. [3] Rather, it is for the Court to re-exercise the discretion, taking into account all relevant circumstances. If the sentence so assessed is less than that imposed by the sentencing Judge, that is the sentence that should be imposed on appeal.

2. [29]

   I have taken into account all relevant factual circumstances and sentencing principles both at common law and under the relevant legislation. It is not necessary to set these matters out in detail. I have concluded that a less severe (aggregate) sentence is warranted. Like the sentencing Judge, I would impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. The proper approach to s 53A (and associated sections) has been considered in a number of cases. [4] Like the sentencing Judge I would apply a 10% reduction in the indicative sentences to reflect the utilitarian value of the plea of guilty. I am unable to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999.

3. [30]

   I approach the standard non-parole periods applicable in each case in accordance with the High Court’s decision in Muldrock v the Queen, [5] noting that it is not strictly applicable because the sentence was not imposed after trial and the offences do not all fit within the mid-range of objective seriousness.

4. [31]

   I note in passing an oddity in the putative or indicative sentences settled on by the sentencing Judge and analysed by the applicant in his arguments under Ground 3. The oddity is that the indicative sentence for Count 8 (which involved penile vaginal penetration when the child was aged 11 years and 10 ten months, and in relation to which four other serious offences were taken into account) was 5½ years with a non-parole period of 4 years. That is a very lenient sentence in all of the circumstances. By comparison, the sentence for count 9, which took place when the child was 16 years old, was seven years with a non-parole period of 5½ years. It is impossible to reconcile those sentences. However, the appeal is against the aggregate sentence and the indicative sentences I favour for counts 8 and 9 reflect the different circumstances of those counts, the more serious nature of the offence charged in count 8 and the fact that four other offences are to be taken into account in sentencing for count 8.

5. [32]

   I have rounded down the indicative sentences and non-parole periods in order not to impose sentences expressed in days based around the application of rigid mathematical formulae. Insofar as it is necessary, I find special circumstances for that purpose only. The indicative sentences I favour are these:

6. [33]

   I would impose an aggregate sentence of 10 years with an aggregate non-parole period 7½ years.

7. [34]

   Accordingly, the orders I favour are as follows:

   1. (1)

      Application for leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      The aggregate sentence imposed in the District Court is quashed and in lieu thereof:

   4. (4)

      The applicant is sentenced to an aggregate sentence comprising an aggregate non-parole period of 7½ years commencing on 16 November 2017 and expiring on 15 May 2025 with a balance of parole of 2½ years commencing 16 May 2025 and expiring 15 November 2027.

8. [35]

   N ADAMS J: I agree with the orders proposed by Hamill J for the reasons provided by his Honour.