Cunningham v R

HOEBEN CJ at CL: This is an application for leave to appeal pursuant to s 5(1)a(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed by her Honour Acting Judge Latham SC at the Sydney District Court on 23 January 2020.

The applicant was committed for sentence on the following two counts involving the same victim:

After allowing a 25 per cent discount for the applicant’s early guilty pleas, her Honour sentenced the applicant on Count 1 to a fixed term of 18 months to date from 12 April 2018 and which expired on 11 October 2019. The sentence on Count 2 was partially accumulated by six months; the non-parole period was 3 years to date from 12 October 2018 and to expire on 11 October 2021. There was an additional 2 years and 3 months to date from 12 October 2021 and to expire on 11 January 2024. Accordingly, the effective term imposed was a head sentence of 5 years and 9 months with a non-parole period of 3 years and 6 months (representing a ratio of 60.9 per cent of the head sentence).

The two grounds of appeal advanced by the applicant are:

At the time of the offences, between 1995 and 1997, the applicant lived alone in a unit at Campsie and was employed as a jockey at Canterbury Racecourse. The female victim was aged between 9 and 12 years at the relevant time. The applicant had befriended the victim’s father and also worked for his lawn mowing business. The applicant provided horse riding lessons for the victim and other children. On occasions, the applicant would babysit the victim and collect her from school.

The applicant told the victim’s father that a girl with him (L) was his daughter. In fact, she was not his daughter but another girl whom the applicant babysat and also sexually assaulted. The victim’s father allowed the victim to stay overnight with the applicant when [L] was with the applicant. The victim’s parents also accepted the applicant’s offer to look after the victim during school holidays while they were at work.

During the horse riding lessons, the applicant would touch the victim on the vagina, bottom and breast on the outside of her clothing, making her feel scared and uncomfortable.

On one occasion outside the victim’s home when she was waiting for the applicant to pick her up, he arrived and told her “Come on give me a cuddle”. She did not want to cuddle him but went over to him and he put his arms around her, pulled her close to his body and she felt something hard against her stomach; inferentially, his penis.

This was a count of digital penetration and occurred on a separate occasion on a night when the victim stayed at the applicant’s unit when the other girl (L) was present. The offence was preceded earlier in the night by the applicant initiating a game of “Simon says” with both girls, in which he placed his hands on his genitals and chest. The victim later saw a “television program featuring a naked male and a naked female making noises and rubbing each other”. She saw their genitalia. The other girl told her later that night that the applicant wanted them to do “a strip show” and the girl started taking off her clothes and dancing. The victim felt uncomfortable with all of these things and did not take part. She went to bed, feeling frightened and concerned.

Later that night, she heard the door open and footsteps approaching the bed. The victim was “so scared she closed her eyes and pretended to be asleep”. She felt a hand slowly move down her body towards her vagina, go into her pants, rub the outside of her vagina and then fingers went inside her vagina and rotated around. She recalled a person, i.e. the applicant, lying on top of her and felt something hard press against her groin. She felt breathing against her.

Objective seriousness

Her Honour found that Count 1 was towards the lower end of the range, noting it was of short duration and through clothing (Sentence judgment p2). Her Honour found that Count 2 was near the middle of the range. Her Honour took into account the abuse of trust of the child and her parents and the degree of planning and manipulation by the applicant (Sentence judgment p2).

By way of background, the sentencing judge took into account that there were other instances of indecent conduct between the applicant and the victim and between him and other young females over the same period of time. These offences came to light in May 1997 at which time the victim of the instant offences was interviewed. However, the victim did not disclose the offences.

The sentencing judge noted that the applicant’s conduct towards the victim was consistent with his sexual exploitation of three other young females in similar circumstances to those of the victim, which was the offending that came to light in May 1997.

The sentencing judge noted that the applicant was sentenced by her Honour Judge Karpin on 5 June 1998 for indecent assault offences in relation to those three young females. Each offence then carried a maximum penalty of 10 years imprisonment. Judge Karpin imposed an aggregate sentence of 3 years and 6 months imprisonment, together with a 5 year recognizance. The applicant was released to parole in respect of that sentence on 18 November 1999.

By way of further background, the sentencing judge took into account that between 2002 and 2003, the applicant committed further child sexual assault offences resulting in his return to custody on 17 April 2003. On 1 June 2005, the applicant was sentenced for those offences and received an aggregate sentence and non-parole period which specified a release date of 16 October 2012. On appeal, that aggregate sentence and non-parole period were reduced allowing for the applicant’s release to parole on 16 January 2011. In fact, the applicant was not released to parole until 5 October 2011.

The sentencing judge noted that until being charged with these offences, the applicant had remained in the community for about seven years without offending.

When dealing with this other offending and the principle of totality, the sentencing judge said:

This ground involves the interrelationship between the present sentence and the sentences for other child sex offences committed by the applicant. As pointed out by the sentencing judge, there were two occasions previously on which the applicant had been sentenced in the District Court for child sexual offences – by her Honour Judge Karpin in 1998 and by his Honour Judge Delaney in 2005. The current offences occurred at the same time as the offences for which he was sentenced by Judge Karpin.

The sentencing judge was clearly alert to the issue of totality and raised it with the parties during the sentence proceedings (T2.44, 23.01.20). The applicant’s complaint is, however, that her Honour erred by not taking into account as part of the assessment of totality the sentence imposed by Judge Delaney.

The complaint made by the applicant in oral and written submissions is that the sentencing judge failed to properly apply the principle of totality by focusing primarily on the sentence imposed by Judge Karpin and not having appropriate regard to the sentence for the later offending imposed by Judge Delaney. That approach is wrong for the following reasons.

The defence written submissions in the sentence proceedings referred to the issue of totality (at p1) and argued that “there is a need to moderate the sentence by applying [the] totality principle”. The submissions recognised the effect of the enactment of s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW). The submissions included the following:

Soon after the proceedings commenced, her Honour raised the issue of totality by saying to the Prosecutor (T2.49, 23.01.20) “... in the circumstances of matters like these, there is an additional factor; and that factor is that there is some account taken by the Court of the nature of the sentence that should be imposed had it been imposed at the relevant time. In other words, that there are considerations of totality that come into play which are quite distinct from delay.”

The Crown Prosecutor acknowledged that this statement was correct and referred to the different proceedings which had occurred at different points in time. He referred to the 1998 sentencing to which her Honour replied: “That would have been the referable timeframe”. The Crown Prosecutor referred to the time since the applicant’s release in 2011 and submitted that “I would not disagree that some account has to be taken for that in terms of totality” and her Honour replied “Thank you” (T3.16, 23.01.20).

Her Honour inquired about the period in custody following the further offences noting that she understood that he had committed further offences following his release from the sentence imposed by her Honour Judge Karpin. Her Honour noted there was a “three year hiatus” when he was not in custody, after being released to parole in November 1999 (T4-5, 23.01.20).

The applicant’s counsel in the sentence proceedings did not demur from anything that had been said and did not add to his written submissions on the topic.

The relevant principle, which the applicant seeks to invoke under this ground, was correctly identified in the applicant’s written submissions on sentence as Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. In RLS v R [2012] NSWCCA 236 Bellew J (with whom McClellan CJ at CL and Johnson J agreed) considered that principle in the context of offending which had occurred at different stages separated by a number of years:

In accordance with those statements of principle, the approach taken by the sentencing judge (consistent with that urged upon her by counsel for the applicant and the representative of the Crown at sentence) was to regard the offending, which was related in time (the Judge Karpin sentences), as directly impacting on the question of totality in terms of overlapping criminality while still taking into account in a general sense the 2003 offending (i.e. the Judge Delaney sentences) as part of the applicant’s criminal custodial history.

That her Honour followed such an approach is clear from the language used by her to the effect that the Judge Karpin sentences were the “most salient factor” and which required application of the principle of totality in terms of the question posed in Mill v The Queen. The sentencing judge also correctly noted that the Judge Karpin offences did not involve a count of aggravated sexual intercourse without consent, rather they were offences of aggravated indecent assault under s 61M(2).

The sentencing judge was also clearly aware of the effect of the sentencing for the Judge Delaney offences and that the applicant had spent seven years in the community before his arrest on this matter. The sentencing judge specifically referred to totality and noted that the second offence for which the applicant stood to be sentenced involved digital penetration and carried a higher maximum penalty than the offences before Judge Karpin. All these factors were consistent with the application of the totality principle and do not disclose error.

The simple fact is that the Judge Delaney offences were committed some five to six years after the Judge Karpin offences had been committed. Not only that, but they occurred following the applicant’s release from prison for the Judge Karpin offences and while the applicant was still subject to the recognizance imposed by Judge Karpin. The Judge Delaney offences were in no way related temporally or otherwise to the Judge Karpin offences. They represented an entirely separate episode of offending, separated in time by a number of years.

As was noted in submissions, when assessing this ground of appeal and as discussed by Price J in R v Cattell [2019] NSWCCA 297 at [152], there is a degree of artificiality in attempting to apply totality in a situation where the earlier sentences have expired and s 25AA did not apply. Section 25AA(1) now requires a court to sentence an offender for a child sexual offence “in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence” and under subsection (3) requires the court to “have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts)”. This did not apply when the applicant was sentenced in the District Court in 1998 and 2005, nor by this Court on appeal in 2006.

The applicant’s counsel, who had highlighted the similarity of the offending with that of the offences before Judge Karpin, also acknowledged this countervailing issue that current sentencing patterns must be applied under s 25AA and recognised the limited role for totality to ameliorate the present sentence in these circumstances.

In summary, there is a relationship between the present matter and the matters which were before Judge Karpin so that in terms of the principles of totality her Honour was completely correct to regard the Judge Karpin matters as the most relevant. Insofar as the Judge Delaney offences were relevant to totality, the sentencing judge clearly referred to them and took them into account but only in a background way. Given the timing of when they were committed and the nature of the offences they would have little impact on this sentence in terms of totality.

It follows that no error has been demonstrated in her Honour’s exercise of the sentencing discretion in respect of Ground 1. Her Honour’s approach conformed with s 25AA and the statements of principle of Price J in R v Cattell at [147]-[151] and R A Hulme J in Porter v R [2019] NSWCCA 117 at [50]-[54], in that her Honour took into account the previous periods of imprisonment, noted the relatively greater seriousness of the offending in count 2 compared with the other offending before Judge Karpin and noted that it involved an additional victim. The overall sentencing result reflects and comprehends the serious criminality involved in the applicant’s sexual offences committed against eight young girls over an extended period of time.

This ground has not been made out.

The principles relevant to a ground of manifest excess are well known and were summarised in Hughes v R [2018] NSWCCA 2 at [86] by this Court (Payne JA, R A Hulme and Garling JJ) as follows:

In Kerr v R [2016] NSWCCA 218 at [113] Bathurst CJ (with whom Hoeben CJ at CL and Price J agreed) said:

In order to understand the issues raised by the applicant under this ground of appeal, it is necessary to set out the findings by the sentencing judge as to the applicant’s subjective case.

The sentencing judge had before her a psychological report by Mr Borkowski, dated 20 January 2020. Her Honour derived the following information from that report:

In addition to the matters in the Borkowski report her Honour made the following additional findings:

Despite not being raised as a separate ground of appeal, the applicant submitted that the objective seriousness of the offending was lower than midrange on the scale of offences against s 61J of the Crimes Act “... in that the penetration was presumably of short duration and being digital did not result in the fears or actuality of pregnancy or disease that penile penetration might have presented. There was no actual or threatened violence and there was no deprivation of liberty”. The applicant conceded that he was in a position of authority.

The test in relation to challenging an assessment of objective seriousness was as set out by Spigelman CJ in Mulato v Regina [2006] NSWCCA 282 at [37]:

In the same case, Simpson J expressed her agreement with the Chief Justice as follows:

To the same effect, Basten JA observed in Baines v R [2016] NSWCCA 132 at [15], that consideration of the objective seriousness of an offence is an evaluative exercise that requires an assessment of a large range of factors which may be susceptible of significantly differing views.

Significantly, the applicant’s submission on the assessment of objective seriousness overlooks that there is no hierarchy of sexual assault. Not only did her Honour find that there was an abuse of trust but there was also a degree of planning, manipulation and premeditation. This was in part demonstrated by the fact that the applicant had falsely claimed to the victim’s father that the other girl with him at his premises was his own daughter.

The sexual intercourse was preceded by sexual behaviour during the game of “Simon Says”, the “strip show” and the pornographic movie. The victim was so scared in the bedroom at the approach of the applicant that she feigned sleep. Moreover, the facts stated that “fingers” (plural) were inserted into the victim’s vagina and then rotated around. The applicant was also lying on top of the victim, pressing his erect penis against her. Finally, the fact that the offence could have been worse or more serious is an irrelevant consideration when one is making an evaluation of the objective seriousness of an offence of this kind.

In relation to the ground of appeal relied upon, i.e. manifest excess, the maximum sentence for each offence constituted an important guidepost for the sentencing judge, i.e. 7 years and 20 years. It is trite to observe that these maximum penalties reflect the community’s longstanding abhorrence of this kind of criminal behaviour. That is particularly so in circumstances such as these which involved a level of planning and premeditation.

Section 25AA was applicable to the sentencing. The starting points for the sentences for the two offences were consistent with her Honour’s findings as to objective seriousness. The victim was significantly younger than the 16 year threshold for each offence. As there were two occasions on which the applicant offended against the victim, some partial accumulation was appropriate.

It is also not without significance that the applicant received the benefit of a generous adjustment of the non-parole period as a result of her Honour’s finding as to special circumstances.

It follows therefore, that this ground of appeal has not been made out.

The orders which I propose are:

HARRISON J: I agree with Hoeben CJ at CL and with the orders he proposes.

Count 1 is an offence of aggravated indecent assault. The maximum penalty for this offence is 7 years. There is no standard non-parole period. The structure of the sentence imposed by her Honour in this case meant that, by reason of accumulation, the applicant was only required to serve 6 months of the 18 months fixed term on this count. That result is in my view unexceptionable. However, I would not want to be taken as expressing agreement with a sentence of imprisonment for 18 months for Count 1 upon the basis of the objective seriousness of that offence standing alone.

BELLEW J: I have had the advantage of reading in draft the judgment of Hoeben CJ at CL.

I agree with his Honour’s conclusions in respect of both grounds of appeal. As to the second ground, and in circumstances where in my view the first of the offences fell towards the lower end of the scale of objective criminality, the sentence of 18 months imprisonment which was imposed might be regarded as stern. However, I am not satisfied that such sentence, or the overall sentence which was imposed, is manifestly excessive in the sense of being unreasonable or plainly unjust.

I agree with the orders proposed by Hoeben CJ at CL.