PB v R

1. [1]

   ROTHMAN J: The applicant, in relation to whom there is an order restricting publication of any matter that would identify him so as to protect the names and identities of the two victims, seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him by the District Court on 17 October 2014. The applicant was sentenced to an aggregate sentence of 14 years’ imprisonment commencing on 22 April 2014 and concluding on 21 April 2028 with a non-parole period of eight (8) years’ imprisonment, concluding on 21 April 2022.

2. [2]

   The sentence imposed related to five counts, for which an indicative sentence was set, in the following circumstances:

3. [3]

   The applicant pleaded guilty to each of the above mentioned Counts and received approximately 20% discount for his plea of guilty (Remarks on Sentence, p 13.9).

Grounds of Appeal

1. [4]

   The applicant relies on two grounds of appeal (the first of which is divided into two parts) in or to the following effect:

2. [5]

   During the course of the oral argument, it was pointed out that the indicative sentence in relation to Count 1 did not include an indicative non-parole period in circumstances where the offence had prescribed a standard non-parole period. Further, the indicative sentences, if applied consecutively, would give rise to a total sentence of 19½ years and his Honour fixed a total of 14 years with a non-parole period of 8 years. In other words there is “concurrency” amounting to some 5½ years, and no explanation or express reference to the principles of totality.

Facts

1. [6]

   Because a plea was entered, the Crown and the applicant were able to agree upon facts which were tendered before the sentencing judge (Exhibit A) and which the sentencing judge summarised in his Remarks. The learned sentencing judge’s summary of the facts is not in dispute and is in the following terms:

Consideration of Appeal

1. [7]

   The learned sentencing judge is an extremely experienced criminal lawyer and judge. One must have some regard to the workload and expertise of the judicial officer in drawing any inference as to what his Honour may or may not have had regard. Nevertheless, there is a need to display a level of transparency sufficient to allow an offender and the community, including the victim and the victim’s family, to appreciate the reasons for the sentence that has been imposed and otherwise to comply with the requirements of the law governing the sentencing process.

2. [8]

   The sentencing judge did not, as alleged, express a view as to the level of objective seriousness of the offences. I have no doubt that his Honour took the issue into account and expressly described the offences in adjectival terms that disclosed the serious view that he took. Nevertheless, there was, unfortunately, no assessment made of the objective seriousness in terms of the range of seriousness for each of the offences.

3. [9]

   I also have no doubt that his Honour took account of the Form 1 offences attached to Counts 2, 3 and 5. However, having expressly referred to the Form 1 offences for Count 1, his Honour did not expressly refer to any Form 1 offences for the other relevant counts. Nor did his Honour express in a manner that was sufficiently clear the manner in which the Form 1 offences were factored into the sentence to be imposed. If the only issue were the last mentioned aspect, I would, in the light of the comments otherwise made by his Honour, be inclined to refuse leave. In the light of the other issues however, I accept that error has been disclosed.

4. [10]

   Further, the learned sentencing judge was not assisted by the manner in which the charges were structured. The Form 1 offences were, in some instances, more serious than the offence to which they were attached.

5. [11]

   During the course of the appeal, it was pointed out that Count 1 was an offence for which a standard non-parole period applied and the terms of the s 54B of the Crimes (Sentencing Procedure) Act 1999 required a sentencing judge to express a non-parole period, even in respect to an indicative sentence: s 54B(4) of the Crimes (Sentencing Procedure) Act. The learned sentencing judge did not do that. Notwithstanding the point being raised, no attempt was made to amend the grounds of appeal.

6. [12]

   The failure to indicate a non-parole period is an error, although it is not an error that, in any sense, can affect the aggregate sentence imposed. It is from the aggregate sentence that the appeal lies (with leave). Further, the terms of s 54B(7) of the Crimes (Sentencing Procedure) Act make clear that the failure to indicate a non-parole period does not invalidate the sentence. That provision does not relieve a sentencing judge from the obligations imposed by the provision. Nor does it overcome error for the purpose of an appeal.

7. [13]

   For the foregoing reasons, error has been disclosed. I have not dealt with manifest excess, but, given the existence of error, re-sentencing is necessary and the submission on manifest excess is overtaken and dealt with in that process.

Resentence

1. [14]

   It is necessary to reiterate a number of matters. First, as a matter of principle, there can be few worse breaches of trust than a breach of trust of the kind involved in these circumstances. A parent and step-parent offending against a minor is inconsistent with every notion of trust that is required of them. These offences, in particular, are, in each case, above the mid-range of objective seriousness.

2. [15]

   Further, each offence is said to be a “representative” offence. In the case of SA and JA, the offending conduct commenced when each complainant was about 10 years of age and continued for some time thereafter or until apprehension.

3. [16]

   The breach of trust associated with the offending against SA is exacerbated by the fact that PB was aware that SA had been sexually abused by her own father in earlier years. I agree with the learned sentencing judge below, who, in turn, cited Badgery Parker J in R v Phillip Sea (Court of Criminal Appeal (NSW), 13 August 1990, unrep), that a significant aspect of the degree of seriousness relating to offences of this kind depends upon the degree to which the offender has, or is seen to have, exploited the youth of the victim. The present charges involved, as is clear from the facts of Count 1, the actual and threatened use of violence. Indeed, the applicant not only hit the complainant but threatened to drown her if she were not to comply.

4. [17]

   While there is authority for the proposition that the aggravating feature associated with the commission of an offence in the home of the victim does not apply where that home is one shared by both the offender and victim, in this case, as is made clear by the learned sentencing judge, the applicant exploited a vulnerable young child, his step daughter, in circumstances where she was entitled to feel safe and protected in her own home and he abused the circumstance that he was living in the same house that she was.

5. [18]

   That aspect of the offence is different from the breach of trust to which I have otherwise referred, in that it would apply to a person who was a flatmate of a parent. As already stated, however, the offender did abuse a position of trust, and also took advantage of the fact that the victims were vulnerable and, in the case of SA, particularly vulnerable because of the known previous sexual abuse.

6. [19]

   There is no doubt that the offences involved a series of criminal acts against more than one victim and was committed for the most selfish of reasons, being the sexual gratification of the offender.

7. [20]

   The learned sentencing judge took into account the good behaviour and lack of record of the applicant. As was said by this Court in R v TWP [2006] NSWCCA 141 (a Crown appeal), offences of this kind are, in some senses, similar, in relation to “previous good character”, as most white-collar crime. The non-apprehension of the applicant (or his prior good behaviour) is almost a necessary condition to the commission of the crime. The sentencing judge, as can be seen later in these reasons, expressed a similar view.

8. [21]

   If the applicant had been sentenced previously for conduct of this kind, he may never have had the opportunity to commit the offences in question here. Moreover, SA returned to live with her mother and the applicant in or about February 2013 and the offences commenced almost immediately thereafter.

9. [22]

   Were it not for the fact that the two victims ran away from this place on 22 May 2014 and reported the matters to the police, the offending conduct, no doubt, would have continued. As indicated earlier, the charges preferred are representative charges and the offending occurred on a weekly (if not daily) basis over the whole of the three to four month period.

10. [23]

    In those circumstances the prior good behaviour is not as significant as it would be for an offence that was committed once and once only.

11. [24]

    However, notwithstanding the foregoing comment, this is the first time that the applicant is before the courts for any serious offence and the first time that the applicant will be incarcerated and he is, as a consequence of that, entitled to some leniency and consideration.

12. [25]

    The Form 1 offences attached to Counts 1, 2, 3 and 5 cannot increase the sentence beyond that which is appropriate. The Court is imposing a sentence only for the charges that have been preferred.

13. [26]

    Nevertheless, the Form 1 offences may indicate a greater degree of offending associated with the charges to which they are attached. This may have the consequence of disclosing a greater need for specific deterrence and a greater need for more severe punishment in the preferred charges, than might otherwise be the case.

14. [27]

    Given that the Form 1 offences are offences against the two victims of the preferred charges and that the Court is taking into account that the charges are “representative”, it is not permissible to double count the effect of both the representative nature of the offences charged, on the one hand, and, on the other hand, the Form 1 offences insofar as those Form 1 offences are offences of the same or similar kind and would fall within conduct that was “represented” by the offences charged. As I have already taken into account the “representative” nature of the offences, the Form 1 offences have no additional impact.

15. [28]

    As earlier stated, each of the charges is above the mid-range of offences for the particular charge.

16. [29]

    I accept, except as otherwise dealt with above, the subjective matters to which the sentencing judge referred. No further material has been put to the Court which would satisfy me that the finding by the sentencing judge, that the applicant has not displayed any genuine remorse, should be overturned.

17. [30]

    The subjective circumstances to which the learned sentencing judge referred were the offender’s age (52 years of age) and his lack of significant criminal offences, the last offence being in 1982 for goods in custody and remaining upon inclosed lands for which small fines were imposed. Apart from those two offences, the record is, as described by the learned sentencing judge, inconsequential.

18. [31]

    As earlier noted at [19], the sentencing judge also went on to suggest that good character is usually of little weight in offences of this kind, with which comment I would agree, save that, if these were repeat offences, different considerations might apply.

19. [32]

    The offender worked as an Aboriginal Education Officer and was successful in that work and promoted. Leading up to the offences in question, the offender was said to be suffering from stress and sleep deprivation due to the responsibilities surrounding his employment. He was, at the time, abusing sleeping tablets.

20. [33]

    In the Pre-Sentence Report on which the learned sentencing judge relied, the applicant was quoted in terms which sought to condone his own behaviour but did acknowledge the effect of the behaviour on the victims. Nevertheless, notwithstanding the ages of the victims, he seemed to suggest that the relationships were consensual.

21. [34]

    I also agree with the learned sentencing judge’s comments that the offending in relation to the younger sister undermines the claims the applicant makes in relation to the nature of the relationship with SA.

22. [35]

    Notwithstanding the foregoing, the applicant pleaded to the charges and agreed upon the facts and gave full and complete admissions to the conduct involved in those offences (and the Form 1 offences). Such conduct avoided the necessity of each of the two young victims having to give evidence and face their abuser in Court. He was aware of the fact that his actions were wrong and was aware of it at the time that he engaged in the conduct for which he is to be sentenced. The plea was taken into account and the learned sentencing judge discounted the sentence by “about 20%”. I allow the same discount.

23. [36]

    I have dealt with the aggravating and mitigating factors outlined in s 21A of the Crimes (Sentencing Procedure) Act 1999 and note that sentencing in any offence, but particularly in offences of this kind, can be a most difficult task. It involves goals or purposes that are often pulling in different directions and to some extent may be inconsistent. Those purposes include the protection of society, the deterrence of the offender and of others who might be tempted to offend, retribution and reform: s 3A of the Crimes (Sentencing Procedure) Act and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

24. [37]

    Those purposes are consistent with the well-known purposes of sentencing and include the principles of proportionality and totality: see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. Those latter principles require a sentence that, overall, reflects the total criminal conduct and is proportionate thereto.

25. [38]

    In the case of multiple sentences for multiple offences, the totality principles adumbrated by the High Court in Pearce, supra, are well known and ought to be applied. Nevertheless, a sentencing judge is entitled to the flexibility to which the High Court referred to in Johnson, supra, and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; namely, that a sentencing judge should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is to be effected.

26. [39]

    The appeal in the present matter is an appeal technically and strictly against the aggregate sentence that has been imposed. The appeal is not against the indicative sentences.

27. [40]

    In my view, the indicative sentences to which his Honour the learned sentencing judge referred were, in light of the period of offending, the fact that there was more than one victim and the fundamental breach of trust, inadequate. However, that comment is made in circumstances where the sentence would be fixed in accordance with the principles set forth by the High Court in Pearce, supra.

28. [41]

    The learned sentencing judge commented on the “absurdity” of having a maximum penalty of 10 years’ imprisonment, with a standard non-parole period of eight years’ imprisonment. The relationship there between the maximum penalty and the standard non-parole period certainly restricts the flexibility that might otherwise apply, assuming, for present purposes, that the standard non-parole period were given effect.

29. [42]

    Nevertheless the standard non-parole period discloses the legislature’s view of the seriousness of the offences and, together with the maximum penalty, should be treated as guideposts. It is not for the Court to ignore the prescription.

30. [43]

    As the High Court made clear in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the standard non-parole period and the maximum penalty are each a guidepost to be taken into account by the sentencing judge. Even if one were to ignore the standard non-parole period, a maximum penalty of 10 years’ imprisonment, in circumstances where one is imposing a sentence for an offence that is above mid-range in objective seriousness and for which there are good reasons for a greater role for specific deterrence, does not equate with a head sentence of three years’ imprisonment.

31. [44]

    I accept that the aggravated indecent assault is generally a less serious offence than the sexual intercourse, being the conduct involved in Counts 2, 3, 4 and 5, in each case with a person between the ages of 14 and 16 years by a person of much older age and in a position of trust.

32. [45]

    Statistically, and one must be careful with the use of statistics, the mean non-parole period for an offence under s 66C of the Crimes Act is two years’ imprisonment and the mean offender is sentenced to a head sentence of three years’ imprisonment. Where there are multiple offences, the non-parole period for each seems to be the same (in mean terms) but in head sentence terms seems to be three years’ and six months’ imprisonment. I reiterate that these offences are above mid-range. However, the most severe sentence (Count 5) imposed, has an indicative head sentence of four years’ and six months’ imprisonment.

33. [46]

    Notwithstanding the less serious nature of Count 1, this offence was the first in time and involved the applicant threatening SA with physical violence and death, if there were non-compliance with his requests. This involved a different level of seriousness and inferentially that threat carried through to the other offences in relation to SA. In my view notwithstanding the subjective factors, the indicative sentences are inadequate, given the seriousness of the offending and the lack of remorse.

34. [47]

    I would set the following indicative sentences:

35. [48]

    The offending in question took place over three, almost four, months and involved two courses of action, one with each victim. Nevertheless each offence involved a separate intention to commit the offence in the knowledge that the conduct was wrong. Further, each offence, in and of itself, was representative of a course of conduct. As a consequence, ordinarily, I would accumulate to a greater degree than did his Honour, the result of which would be a sentence that was more severe than that imposed by his Honour.

36. [49]

    In the absence of a Crown appeal and in the absence of a warning (see, Parker v DPP (1992) 28 NSWLR 282), it is inappropriate (if not impermissible) for this Court to impose a more severe sentence than the sentence imposed at first instance. In those circumstances I propose that the Court determine that no less severe sentence is warranted in law and the appeal be dismissed.

37. [50]

    None of the foregoing should be taken as authority for the proposition that it is necessary, when determining that no lesser sentence is warranted in law, to express in the detail above, the sentence that would otherwise be imposed.

38. [51]

    Since the original drafting of the foregoing reasons and the orders that follow, I have had the advantage of reading, in draft, the reasons for judgment of each of Davies and Garling JJ. In my view, the error in reasons below was manifest, even though not in any way the fault of the sentencing judge.

39. [52]

    I am grateful for the more complete treatment of the errors below in the reasons of my colleagues. I reiterate my ready acceptance (see [8] above) of the proposition that an experienced sentencing judge, such as in this case, would take account of objective seriousness. However, if “instinctive synthesis” is to be other than “an arcane process into the mysteries of which only judges can be initiated” (Markarian at [39]), there remains a necessity for sufficient transparency and express reference to objective seriousness. Otherwise, I agree fully with the reasons for judgment of both Davies and Garling JJ.

40. [53]

    I propose that the Court make the following orders:

    1. (1)

       Leave to appeal granted;

    2. (2)

       Appeal dismissed.

41. [54]

    DAVIES J: I agree with the judgment of Rothman J and the orders his Honour proposes. I also agree with the additional remarks of Garling J. In particular, I join with Garling J in his view that the way in which the counts on the indictment were presented and the inclusion of the number and range offences on the various Form 1 schedules meant that the sentencing judge had a difficult task to perform.

42. [55]

    This Court has on more than one occasion expressed strong views about the approach taken to the inclusion of offences on a Form 1 in cases where a separate victim is involved and where the offences carry standard non-parole periods: SGJ v R; KU v R [2008] NSWCCA 258 at [24]-[29] and Karel Eedens v R [2009] NSWCCA 254 at [17]-[19].

43. [56]

    In the present case it was inappropriate for four offences of aggravated indecent assault against a different victim to have been placed on a Form 1 when the offence to which that Form 1 was attached charged one count of aggravated indecent assault against the principal victim. The second victim was younger than the principal victim being aged 10 or 11. The principal victim was aged 15. The age of the second victim was a matter of some significance and made the offences on the Form 1 objectively more serious than the principal offence charged: Shannon v R [2006] NSWCCA 39 at [28]; Eedens at [17]. Further, the offences against her were committed at a different time and in different circumstances from the offence against the principal victim.

44. [57]

    In respect of counts 3 and 5 charging sexual intercourse with a child aged between 14 and 16, an offence which does not carry a standard non-parole period, each such count had a Form 1 which charged (inter alia) aggravated indecent assault which carries a standard non-parole period. As the Court said in SGJ at [26] it is illogical to include crimes relating to one victim on a Form 1 where the offence to which it attached was charged against another victim, and it made it difficult for the sentencing judge to give such offences any real weight when sentencing on the count relevant to the Form 1. Further, as the Court made clear in Eedens at [19] the significance of the standard non-parole provisions loses its impact when the offence is placed on a Form 1.

45. [58]

    I have little doubt in the present case that the approach taken by the Crown in the regard to which I have referred contributed to the applicant being given a more lenient sentence that was in all the circumstances appropriate.

46. [59]

    GARLING J: I agree with orders proposed by Rothman J, that leave to appeal should be granted and that the appeal be dismissed. I have had the benefit of reading the remarks of Davies J. I express my entire agreement with those remarks.

47. [60]

    The way in which the counts on the Indictment were presented and, in particular, the inclusion of the number and range of offences on the various Form 1 schedules, meant that the sentencing Judge had to grapple with an unduly and particularly complex sentencing exercise. As well as this complexity, the counts charged were regarded as representative counts.

48. [61]

    The approach by the sentencing Judge, namely to impose an aggregate sentence, was one which most readily enabled him to consider and apply the sentencing principles of totality and proportionality. Notwithstanding the absence of express reference to these principles in the Remarks of the sentencing Judge, I am not in any doubt that his Honour did have due regard to those fundamental principles.

49. [62]

    In the course of a sentencing exercise of the kind undertaken here, there is a clear and compelling need for the sentencing Judge to consider, assess and set out his evaluation of the objective seriousness of the criminal conduct involved in the offences to which the applicant pleaded guilty. Unless he did so, it is impossible to understand how, if at all, the sentencing Judge took into account the statutory guidepost of the standard non-parole period. Nor is it possible to understand how the very serious offences included on the Form 1 schedules were given their proper attention and weight.

50. [63]

    It is for that reason that I am satisfied that error has been demonstrated, and Ground 1 should be upheld.

51. [64]

    I wish to make it plain that I do not intend by these remarks to indicate that error can be demonstrated by pointing to mere infelicities of expression, or an absence of an express reference to basic sentencing principles in short and succinct remarks on sentence, nor do I wish to discourage the entirely commendable practice of delivering sentence remarks either ex tempore or shortly after the conclusion of sentencing hearings. Having regard to the workload and sentencing burden placed on judges of the District Court, to impose such requirements would not be in the interests of justice. However, the complexities of this particular sentencing matter required an exposition of the matters to which I have earlier referred.

52. [65]

    Whilst the identification of error on Ground 1 necessitates re-sentencing, and means that the Court does not have to consider Ground 2, I wish to record my view that any contention that this sentence was manifestly excessive is wholly without merit. The aggregate sentence imposed was, in my opinion, unduly lenient. In my view, this applicant ought to have received a much lengthier sentence than he did.

53. [66]

    However, as Rothman J points out in [49] above, it is not open to this Court to re-sentence the applicant to any lengthier sentence than that imposed by the sentencing Judge.

54. [67]

    Accordingly, I agree that the appeal ought be dismissed.