AB v R

1. [1]

   HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.

2. [2]

   ADAMSON J: I agree with Bellew J.

3. [3]

   BELLEW J:

INTRODUCTION

1. [4]

   On 11 April 2019, AB (the applicant) appeared before her Honour Judge Herbert in the District Court of NSW and pleaded guilty to the following offences:

   1. (1)

      Between 1 January 1996 and 30 December 1996, at Lismore Heights in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 11 or 12 years (Count 1).

   2. (2)

      Between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 13 or 14 years (Count 2).

   3. (3)

      Between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 13 or 14 years (Count 3).

   4. (4)

      Between 1 January 1998 and 30 December 1998, at Telopea in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 13 or 14 years (Count 4).

   5. (5)

      Between 10 February 1997 and 30 December 1997, at Eastwood in the State of New South Wales, did incite (TC), a person then under the age of 16 years, namely 11 years, to an act of indecency with AB (Count 5).

2. [5]

   In respect of Count 1 the applicant asked her Honour to take into account three further offences set out in a Form 1, namely offences of:

3. [6]

   The offending in each of Counts 1 - 4 was contrary to s 61M(1) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 7 years’ imprisonment. The offending in Count 5 was contrary to s 61N(1) of the Act, the maximum penalty for which was 2 years’ imprisonment.

4. [7]

   The sentencing judge gave the following indicative sentences:

5. [8]

   Her Honour imposed an aggregate sentence of 5 years’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment.

6. [9]

   The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

Background

1. [10]

   Her Honour set out the background to the offending as follows: [1]

Count 1 and the Form 1 Offences

1. [11]

   In respect of Count 1 her Honour found the following facts: [2]

Count 2

1. [12]

   In respect of Count 2, her Honour found the following facts: [3]

Count 3

1. [13]

   In respect of Count 3, her Honour found the following facts: [4]

Count 4

1. [14]

   In respect of Count 4, her Honour found the following facts: [5]

Count 5

1. [15]

   In respect of Count 5, her Honour found the following facts: [6]

The circumstances leading to the applicant’s arrest

1. [16]

   Having made the findings set out above, her Honour referred to the circumstances leading up to the applicant’s arrest.

2. [17]

   LC did not report the abuse by the applicant until May 2017. After she did so, police obtained a surveillance warrant and recorded a telephone call between her and the applicant. During that conversation, they spoke about the period of time over which the applicant had been living with LC and the sexual abuse that had occurred during that time. When LC told the applicant she was ringing about her childhood and wanted to talk to him about the fact that he had sexually abused her, the applicant said: [7]

3. [18]

   When the conversation continued the applicant was asked if he remembered about what used to happen at the first house in Telopea where he had lived with LC. He responded: [8]

4. [19]

   In an apparent attempt to explain to LC why he had committed the offences, the applicant said: [9]

5. [20]

   On 16 April 2018 a second conversation between the applicant and LC was recorded in which the applicant made further admissions about his offending. [10]

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

1. [21]

   Her Honour found that as the stepfather of LC and TC, the applicant had abused his position of trust and authority, and that this was a matter of significant weight. [11] Her Honour also found that as young children in a family situation, both LC and TC were helpless, and had been living in a home where they ought to have felt safe and protected from harm. In these circumstances her Honour concluded that the fact that the offending was committed in their home was a circumstance of aggravation.

2. [22]

   Her Honour briefly summarised the circumstances of each individual count before reaching the following conclusions as to objective seriousness: [12]

THE APPLICANT’S SUBJECTIVE CASE

1. [23]

   Tendered in the applicant's case before the sentencing judge was a report of Megan Godbee, forensic psychologist. Having noted that the applicant agreed with the facts of the offending as outlined, Ms Godbee reported: [13]

2. [24]

   Ms Godbee concluded that it appeared that the applicant had accepted responsibility for his behaviour, and that he had acknowledged that such behaviour was wrong. However, she also noted that he presented with “some minimisations and justifications", and concluded he had mixed insight into ways of reducing his risk of reoffending. [14]

3. [25]

   Ms Godbee assessed the applicant as falling within the average level in terms of the risk of further sexual offending. [15] In reaching that conclusion, Ms Godbee cited a number of factors which in her view, had the capacity to increase the risk of the applicant sexually reoffending, namely that he: [16]

4. [26]

   Ms Godbee concluded: [17]

5. [27]

   Apart from two relatively minor corrections (neither of which is relevant for present purposes) the applicant confirmed the accuracy of the contents of Ms Godbee's report in his sworn evidence before the sentencing judge. [18] When asked about statements he had made to Ms Godbee in which he may have suggested that LC was in some way responsible for his offending, the applicant said: [19]

6. [28]

   The applicant told her Honour that since being interviewed by Ms Godbee he had changed his thinking about his offending: [20]

7. [29]

   The applicant also told her Honour that he felt “disgusted" about his offending, and acknowledged the hurt and disgust felt by the victims. [21] He also acknowledged the need to undertake treatment to improve his insight into his offending. [22] When asked what he would say to the victims if he had the opportunity to speak with them, the applicant said: [23]

8. [30]

   In cross-examination, the applicant expressly acknowledged that LC was not a willing participant in any of his offending [24] and specifically accepted that she did not initiate any contact. [25] When it was suggested that some of his statements to Ms Godbee had indicated an attempt on his part to minimise his responsibility for the offending, the applicant said: [26]

9. [31]

   In the course of her remarks on sentence, the sentencing judge summarised the report of Ms Godbee at considerable length. [27] On the whole of the evidence, her Honour accepted the applicant’s expressions of remorse and contrition were genuine and that he appeared to be sorry for what he had done. [28]

10. [32]

    Her Honour made reference to testimonials which were tendered in the applicant’s case and which were generally supportive of the applicant and his prior good character. Her Honour found that the applicant had prior convictions for two matters in Western Australia which post-dated the present offending and concluded that in these circumstances, the applicant's criminal history did not disentitle him to leniency. [29] She found that the applicant's prospects of rehabilitation were guarded. [30]

11. [33]

    Her Honour concluded that the applicant had engaged in a pattern of abuse over a four-year period. [31] Whilst accepting that some of the matters relating to his background which had been canvassed by Ms Godbee explained his conduct, her Honour concluded that such matters did not reduce the applicant’s moral culpability, and that Ms Godbee's report demonstrated that the applicant needed specific treatment which may only be available upon his release. Her Honour concluded that this was a proper basis for a finding of special circumstances. [32]

12. [34]

    Her Honour noted that there had been a delay of about 20 years between the time of the offending and the time at which the applicant was charged. During that time the applicant had made admissions to those involved in the administration of a church of which he was a member, but those admissions were never acted upon. [33] Her Honour also found that the fact that the applicant lacked the support of friends and family meant that there would be an additional degree of hardship in serving his sentence. [34]

13. [35]

    Finally, her Honour acknowledged that the offences on the Form 1 were themselves serious. [35] She concluded that considerations of general deterrence remained important, and that personal deterrence remained relevant along with the need for protection of the community. [36]

evidence sought to be relied upon by the applicant

1. [36]

   Before this Court, the applicant sought to rely upon documentary evidence, in the form of statutory declarations, an affidavit, and associated documents which were not before the sentencing judge. The majority of that material attempted to address observations made by her Honour in the course of sentencing the applicant about aspects of the report of Ms Godbee. The Crown objected to that material but in the event that the Court admitted it, sought to rely upon affidavit material in reply.

2. [37]

   At the time of hearing the application for leave to appeal, the Court indicated to the applicant that it was not prepared to admit this additional material into evidence. The entirety of the material sought to be relied upon was obviously known to the applicant at the time of his sentence. It stemmed directly from the contents of the report of Ms Godbee which was tendered in his case. In those circumstances, the grounds for admission of the evidence were not established. [37]

THE GROUNDS OF APPEAL

1. [38]

   In addressing the grounds of appeal, and without intending any criticism whatsoever, it is necessary to note that the applicant was self-represented before this Court. It is also apparent that he drafted, without legal assistance, the grounds of appeal upon which he relies, and the written submissions in support of them. The grounds of appeal are in the following terms:

2. [39]

   Obviously, grounds pleaded in such terms lack clarity. However, having regard to the written and oral submissions advanced by the applicant before this Court, the application for leave to appeal proceeded upon the grounds set out below.

The reasons of the sentencing judge

1. [40]

   In the course of assessing the offender's moral culpability, the sentencing judge said: [38]

2. [41]

   Subsequently, her Honour said: [39]

3. [42]

   The aggregate sentence imposed on the applicant reflected a ratio of 70% between the head sentence and the non-parole period, as opposed to the statutory ratio of 75%. The reduction in the non-parole period was one of three months.

Submissions of the applicant

1. [43]

   The applicant submitted that the aggregate sentence imposed had resulted “in a less than expected favourable outcome in time off [his] non-parole period" and that this reflected error on the part of the sentencing judge. He submitted that the sole purpose of a finding of special circumstances is to expedite an offender's rehabilitation, and that such a purpose is best served by a “notable portion of time" being deducted from the non-parole period. He submitted that the sentence imposed by her Honour reflected little in the way of any such reduction, and brought no advantage to him in light of the fact that he would not be able to enter any relevant educational program until at least six months after his earliest possible release date. The applicant submitted that this rendered her Honour's finding of special circumstances “practically ineffective and of little to no benefit”.

2. [44]

   Finally, the applicant submitted that the conclusions reached by the sentencing judge as to the genuineness of his contrition and remorse were not reflected in her Honour's adjustment of the statutory ratio following her finding of special circumstances.

Submissions of the Crown

1. [45]

   The Crown submitted that having found special circumstances, the extent of any adjustment to the statutory ratio was a determination to be made in the exercise of the discretion of the sentencing judge. It was submitted that the adjustment made in the present case was open to her Honour, and was obviously based upon the matters to which her Honour had referred in her reasons, including her assessment of the applicant’s prospects of rehabilitation and his risk of reoffending. It was the Crown's submission that in all of these circumstances there had been no error demonstrated.

Consideration

1. [46]

   In Park v R [40] R A Hulme J made the following observations regarding a finding of special circumstances:

2. [47]

   A finding of special circumstances involves the exercise of a discretion. Providing a sentencing judge gives reasons for such a finding, and providing that such reasons are available on the evidence, no error will be established. [41] Such a discretionary finding is a matter in respect of which this Court will be slow to intervene. [42] As a practical matter, there are unlikely to be many cases in which the Court will intervene unless the non-parole period is found to be manifestly inadequate or manifestly excessive. [43] The starting point for determining whether there has been an error in the exercise of the discretion to find special circumstances is to ascertain what can be gleaned, in terms of the intention of the sentencing judge, from the sentencing remarks. [44]

3. [48]

   In the present case, it is evident from what her Honour said that her finding of special circumstances was based upon the opinion of Ms Godbee that there was a need for the applicant to undertake specific rehabilitative treatment. [45] Although the nature of the treatment which was recommended that the applicant undertake was not further explained, this was not a case in which the applicant had a long standing history of offending which required him to address a number of matters related to his rehabilitation, nor was it a case in which there was evidence of a lengthy and complicated rehabilitation plan having been devised for him which would need to be administered over a long period of time. [46] The inference to be drawn is that any treatment the applicant might undergo is limited.

4. [49]

   Moreover, and contrary to the applicant’s submission, there was no evidence before her Honour that the applicant would not be able to enter any relevant program until at least six months after his earliest possible release date. The highest that Ms Godbee put it in her report was that given the historical nature of his offending and his assessed level of risk, the applicant was unlikely to be prioritised for a group-based intervention program in custody. [47]

5. [50]

   In these circumstances her Honour’s finding does not bespeak error. It is wholly consistent with the evidence, as well as with the fact that a finding of special circumstances is directed towards assisting an offender’s rehabilitation and reintegration into the community. It is evident from what her Honour said that she had those matters firmly in mind when she sentenced the applicant.

6. [51]

   It is not to the point that the adjustment to the non-parole period was less favourable than the applicant had expected. The extent of any such adjustment is not determined according to an offender’s expectations. Whilst the reduction of 5% may have been modest, that does not lead to a conclusion that there was an error in the exercise of the discretion of the sentencing judge. Reading her Honour’s remarks as a whole, it is evident that this is what her Honour intended having regard to the evidence.

7. [52]

   Finally, and contrary to the submission of the applicant, matters of contrition and remorse have little, if any, bearing on a finding of special circumstances.

8. [53]

   For all of these reasons, this ground is not made out.

The reasons of the sentencing judge

1. [54]

   In assessing the applicant's prospects of rehabilitation, the sentencing judge said the following: [48]

2. [55]

   Her Honour then said: [49]

Submissions of the applicant

1. [56]

   A number of the submissions in support of this ground were based upon the additional evidence which the Court refused to admit. Such matters aside, the grounds of appeal asserted that her Honour had made contradictory statements when assessing the applicant's prospects of rehabilitation. It is to be inferred that such statements stem from those passages of her Honour’s sentencing remarks set out above.

Submissions of the respondent

1. [57]

   The Crown submitted that her Honour's finding as to the applicant's prospects of rehabilitation was inextricably linked to an assessment of his risk of reoffending, and that the level of such risk was, in turn, dependent upon the applicant successfully undergoing and completing rehabilitative courses.

2. [58]

   It was the Crown’s submission that in these circumstances no error had been made by her Honour in her assessment.

Consideration

1. [59]

   The applicant's principal complaint appears to be that statements made by her Honour in the course of making her assessment of his prospects of rehabilitation were contradictory. Although not specifically stated, it is to be assumed that in advancing that submission, the applicant was referring to her Honour's conclusion that his prospects of rehabilitation were “guarded”, [50] which was followed by the conclusion that the fact that the applicant had not reoffended in the 20 year period between his offending and his arrest “enhanced” his prospects of rehabilitation. [51]

2. [60]

   In my view, when the sentencing remarks are read as a whole there is no inconsistency in these two conclusions. Although her Honour found that the applicant's prospects of rehabilitation were enhanced by the fact that he had not reoffended, she took the view that the nature of his offending, the assessment of his risk of reoffending, and the existence of cognitive distortions in relation to child sexual abuse, all pointed to a guarded assessment. It is also evident, consistent with that conclusion, that her Honour took the view that the applicant's successful rehabilitation was dependent, in large measure, upon receiving “offence specific treatment”.

3. [61]

   In these circumstances, this ground is not made out.

Submissions of the applicant

1. [62]

   The gravamen of the applicant’s complaint under this ground appeared to be that there were a number of factors arising from Ms Godbee’s report which were not the subject of any evidence before the sentencing judge, and that if such “context and facts" had been considered by her Honour “it would have assisted in extinguishing bias in sentencing". He submitted that in these circumstances the sentencing judge had erred by allowing “bias” to result in little weight being given to various subjective factors.

2. [63]

   All of these submissions were based largely upon the additional evidence which this Court refused to admit. To the extent that they were not, the applicant appeared to take some issue with the observation of the sentencing judge that he continued to hold distorted beliefs and place himself in high risk situations. [52] The latter was a reference to the fact that the applicant had become a tennis coach and was thus engaging with young children.

Submissions of the Crown

1. [64]

   The Crown pointed out that the report of Ms Godbee was tendered in the applicant's case on sentence, and submitted that it had obviously been open to the applicant to adduce further evidence in relation to any of the matters contained in that report had he wished to do so. The Crown submitted that there was no evidence of any “bias” on the part of the sentencing judge.

Consideration

1. [65]

   In my view this ground has no merit. As the Crown pointed out, the report of Ms Godbee was tendered in the applicant's case. It was open to the applicant to supplement the contents of the report in his oral evidence if he wished to do so.

2. [66]

   There is certainly no evidence of any “bias” on the part of the sentencing judge. To the extent that the applicant's submissions suggested that her Honour had placed an inappropriate degree of weight on the report of Ms Godbee, there is nothing to suggest that this is so. Her Honour’s finding that the applicant continued to hold distorted beliefs and place himself in high risk situations such as becoming a children’s tennis coach was properly based upon the report of Ms Godbee.

3. [67]

   For all of these reasons this ground is not made out.

ORDERS

1. [68]

   In circumstances where the applicant was unrepresented, the Crown properly addressed the question of manifest excess of the sentence, even though no specific complaint was made by the applicant in this regard.

2. [69]

   To the extent that any of the applicant’s submissions might be taken to amount to the proposition that his sentence was manifestly excessive, I am not persuaded that this is so. His offending was objectively serious, it occurred over a lengthy period of time, it manifested itself in a series of different ways, and it was aggravated by the fact that it involved a gross abuse of the applicant's position of trust towards two young victims in their own home.

3. [70]

   Taking all of these factors into account, the sentence imposed was well within the range of discretion available to the sentencing judge.

4. [71]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.