Horne v R

1. [1]

   2. The sentencing judge’s lack of satisfaction about the alleged childhood sexual abuse did not materially adversely affect the applicant’s case on sentence. According to the psychiatrist’s report his psychiatric problems, including a paraphilic disorder, “relate to” the childhood abuse. However, the sentencing judge accepted the psychiatrist’s diagnoses, for such significance as they had in the sentencing exercise, and the question of what caused them was immaterial. For that reason, also, there was no miscarriage of justice.

2. [2]

   THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed upon him on 26 May 2022 by his Honour Judge Hatzistergos, following his trial by jury in mid-December 2021. The applicant was found guilty on two counts of sexual intercourse without consent, knowing that the victim was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW) and one count of indecent assault contrary to s 61L. All three offences were committed in a single episode when the victim was unconscious and unable to consent.

3. [3]

   The offending was discovered when a search of the applicant’s residential apartment on 18 August 2020 produced a USB storage device upon which there was a 7½ minute video recording of the applicant carrying out the relevant acts. The victim was a friend of the applicant who had never knowingly been intimate with him. She was entirely unaware that the offending conduct had taken place. It occurred in her own home. The apparent date of the offences, in 2016, is attributed on the basis of meta data of the video recording. The applicant was aged about 42 years at that time.

4. [4]

   His Honour nominated indicative sentences as follows:

5. [5]

   An aggregate sentence was fixed with a term of 5 years and 3 months and a non-parole period of 3 years and 4 months. The sole ground of appeal is as follows:

6. [6]

   The applicant submits that Ms Samowitz consulted with the applicant on numerous occasions, for many hours in total, between late-2019 and the date of his arrest, 18 August 2020. From then until sentence was passed on 26 May 2022 the applicant was remanded in custody. For 10 months of that period he served a sentence for breaching reporting conditions that were applicable to him as a person registered under the Child Protection (Offenders Registration) Act 2000 (NSW). The applicant submits that the tender of Ms Samowitz’s consultation notes, consisting of 40 pages of handwriting, would have confirmed the applicant’s claim that he suffered sexual abuse at the hands of his brother, six years his senior, when the applicant was aged between 9 and 11 years. The applicant submits that that background would have been a material consideration on sentence and that the failure of counsel who represented him in the sentence proceedings to tender Ms Samowitz’s notes caused a miscarriage of justice.

7. [7]

   The following background circumstances were in evidence before the learned sentencing judge and are relevant to the proposed ground of appeal. The applicant was born in November 1973. At about age 27, in 2001, he commenced a de facto relationship with Ms C, who had two children from an earlier relationship and gave birth to two more children of whom the applicant is the father. In February 2007, when the applicant was 33 years old, he committed two acts of indecency towards Ms C’s daughter from her earlier relationship, a girl aged 11 years. On two separate occasions the applicant masturbated in the child’s presence.

8. [8]

   The applicant was not immediately prosecuted for that misconduct but proceedings were brought during 2007 for orders to prevent him from having access to Ms C’s children, including the two children of whom the applicant is the father. From February to August 2007 the applicant undertook counselling by Dr Kamal Touma, a general practitioner who professed expertise as a counsellor. The number of sessions with Dr Touma was variously given in evidence as 12 or 20. Then, Dr Lennings, a clinical psychologist, consulted with the applicant for a total of 2½ hours over three sessions in July and August 2007. Dr Lennings prepared a report dated 14 August 2007 in which he recorded the history provided to him by the applicant. The history included that from the age of 17 or 18, in about 1990-1992, the applicant had developed a habit of masturbating in the presence of others, initially in an obvious manner and later in a concealed manner although in public places.

9. [9]

   In his August 2007 report Dr Lennings recorded the following:

10. [10]

    In February 2011 the applicant was charged with two aggravated acts of indecency arising from the incidents of masturbating in the presence of his 11-year-old stepdaughter in February 2007. He pleaded guilty. At the sentence hearing for those matters a revised report of Dr Lennings dated 1 June 2012 was tendered on his behalf. By that date Dr Lennings had undertaken four further consultations with the applicant, for treatment purposes, in August, September and November 2007 and he had seen the applicant on 11 May 2012 to update his history. Dr Lennings’ second report repeated the summary statement of the applicant’s family background that has been quoted above. In both reports Dr Lennings concluded that the applicant:

11. [11]

    On 20 July 2012 the applicant was sentenced for the February 2007 acts of indecency. He was ordered to perform 120 hours of community service for one offence and was given a suspended sentence of 12 months for the other. After conviction the applicant was placed on the register maintained under the Child Protection (Offenders Registration) Act. He has remained on that register ever since. As earlier mentioned, the applicant consulted with Ms Samowitz from late-2019 into the first half of 2020. Between 18 January and 13 February 2020 the applicant failed to comply with his reporting obligations as a registered child sex offender. The particulars of breach are not disclosed in the appeal papers. The applicant was charged with the breach on 13 February 2020. The search of his apartment on 18 August 2020, which uncovered the video recording of the offences for which he was sentenced by Hatzistergos DCJ, was carried out by police exercising powers in relation to the applicant as a registered child sex offender. Following the search the applicant was charged with another breach of reporting obligations. Again, the particulars of the breach are not known to the Court.

12. [12]

    The sentence proceedings before Hatzistergos DCJ were conducted on 5 May 2022. The material tendered by the Crown included the two reports of Dr Lennings and a Sentencing Assessment Report dated 3 May 2022. The latter report included the following:

13. [13]

    The applicant tendered on sentence a report of Dr Furst, forensic psychiatrist, dated 14 February 2022. Dr Furst based his opinions upon a document review and an assessment of the applicant by audiovisual link over 80 minutes. The report included the following:

14. [14]

    The applicant also tendered a letter from his parents dated 17 February 2022. This made no mention of any childhood sexual abuse or trauma suffered by the applicant or of any assertion by the applicant that he had experienced such things. The parents spoke of their very close relationship with the applicant throughout his life.

15. [15]

    During oral submissions on sentence the learned judge pointed out that Ms Samowitz’s notes and report of 13 December 2019, as referred to by Dr Furst, were not in evidence. His Honour expressed the following reservations regarding the hearsay information about childhood sexual abuse of the applicant, as follows:

16. [16]

    The sentencing judge also pointed out the following:

17. [17]

    Counsel who appeared for the applicant before the sentencing judge (not being counsel who appeared in this Court) reminded his Honour that the consultations with Ms Samowitz had taken place before the video recording was found in the applicant’s apartment and when he would not have anticipated that he would face charges based upon the recording. The point of the submission was that the applicant’s statements to Ms Samowitz should not be regarded as self-serving with respect to the sentencing exercise. Nevertheless, his Honour made clear his lack of satisfaction that the alleged childhood abuse had occurred, given that it had not been substantiated by evidence from the applicant on sentence, that it was contrary to his explicit disclaimer to Dr Lennings of any childhood abuse and that the parents had made no mention of it in their letter to the Court notwithstanding that the applicant told Dr Furst he had disclosed the events to his parents “which was very difficult to do”.

18. [18]

    Counsel appearing for the applicant in the sentence proceedings informed his Honour that Ms Samowitz’s notes were available, that they could be provided to the Crown after the conclusion of the oral hearing and could thereafter be provided to the Court. His Honour said, “If you both agree on it then I can proceed on that basis”. Counsel did not pursue the opportunity to provide Ms Samowitz’s notes to the judge.

19. [19]

    His Honour dealt with the subject of the alleged childhood abuse in the following paragraphs of his remarks on sentence:

20. [20]

    In support of his ground of appeal the applicant has referred to two authorities concerning the principles to be applied in this Court when there has been a failure to tender some item of evidence in sentence proceedings. First, in John Wayne Tsiakas v R [2015] NSWCCA 187 the following was said at [42]-[44] (Beech-Jones J, Leeming JA and Johnson J agreeing) (some citations omitted):

21. [21]

    Secondly, the applicant relied upon Rossall v R [2021] NSWCCA 200 in which Garling J (Bathurst CJ and Rothman J agreeing) cited the above passages and added the following:

22. [22]

    In an endeavour to demonstrate miscarriage of justice, the applicant has submitted to this Court the following matters concerning the Crown’s submissions is in the sentence proceedings (emphasis added):

23. [23]

    The repeated use of the word “disclosure” in the above extracts and in numerous other places throughout the applicant’s submissions involves an assumption that the applicant did in fact suffer childhood sexual abuse and that the issue upon which the learned judge needed to be satisfied was whether the applicant had “disclosed” that aspect of his background prior to his consultations with Dr Furst in 2022. However, the transcript of the sentence proceedings makes clear that the learned judge was not satisfied, merely on the basis that the applicant had told Dr Furst he had been sexually abused or on the basis that Ms Samowitz’s notes had been given to the doctor, that such abuse had in fact taken place. His Honour indicated that his lack of confidence in this hearsay information arose not just because he had not seen the notes but also because (1) Dr Lennings had not been told of the alleged abuse in 2007 or in 2012 and (2) Dr Lennings had been given an explicitly contrary history of “a good family background” and “no domestic violence, physical, sexual or emotional abuse at home” and (3) the parents’ letter to the Court made no mention of any such history despite Dr Furst having been informed that they had been told about it.

24. [24]

    The applicant’s submissions in this Court continue as follows (emphasis added):

25. [25]

    Again, the use of the word “disclosure” betrays an unjustified assumption that if the learned judge could be satisfied that the applicant told Ms Samowitz about the alleged childhood abuse then he would have to have been satisfied that it occurred. The final sentence of the above passage is not accepted. Tender of Ms Samowitz’s notes would do no more than add another piece of hearsay assertion to the pieces that were already before the judge in Dr Furst’s report and in the Sentencing Assessment Report. The notes would take the earliest date of the applicant’s assertions on this subject back from 2022 to late 2019. That would have done nothing to address the learned judge’s reservations arising from Dr Lennings’ reports and from the parents’ letter. Those sources of reservation could only have been addressed by calling the applicant, not by adding more hearsay. It has not been suggested that a miscarriage of justice arose from counsel electing not to call the applicant. Nothing less would have made any difference.

26. [26]

    Dr Furst came to the following conclusions in his report of 14 February 2022:

27. [27]

    The sentencing judge quoted in full the first of the above paragraphs at [60] of his remarks on sentence. His Honour then reviewed the evidence concerning the “reported history of childhood sexual abuse” (in the paragraphs quoted at [18] above) and concluded that the allegations of such abuse should not be given any weight. However, this did not cause his Honour to reject Dr Furst’s diagnoses. On the contrary, his Honour commenced [72] of his remarks with these words:

28. [28]

    The applicant submits that, as a result of the judge giving no weight to the second-hand reports of alleged childhood abuse, his case on sentence was materially adversely affected. He submits that without acceptance by the judge that the abuse had occurred, Dr Furst’s opinion that his “primary psychological and psychiatric problems relate to a reported history of childhood sexual abuse” was undermined. We reject that submission. The question of what, in the applicant’s background, had caused his psychiatric or psychological disorders was of negligible consequence for the purposes of sentencing. What mattered was the medical fact, which his Honour found proved to his satisfaction, that the applicant suffered from the disorders identified by Dr Furst.

29. [29]

    The sentencing judge took Dr Furst’s diagnoses into account so far as counsel who then appeared for the applicant asked him to do so. Counsel did not suggest any causal relationship between the diagnosed disorders and the commission of the offences. The following was submitted:

30. [30]

    Dr Furst’s report included the following:

31. [31]

    In summary, it is not shown that the tender of Ms Samowitz’s notes would have caused the sentencing judge to accept as a fact that the applicant suffered childhood sexual abuse. Nor would that tender have increased the chances of a finding to that effect and in any event a finding of childhood sexual abuse was not necessary to Dr Furst’s diagnostic opinion, which the judge accepted. Such a finding was not significant in any other way to the exercise of the sentencing discretion. No miscarriage of justice occurred.

Orders

1. [32]

   For these reasons, the orders of the Court are:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.