LB v R

1. [1]

   PAYNE JA: I agree with Davies J.

2. [2]

   DAVIES J: The applicant was convicted after trial of the following two offences:

3. [3]

   On 13 October 2017 the applicant was sentenced by Judge Noman SC as follows:

4. [4]

   The total sentence was therefore 13 years’ imprisonment with a non-parole period of nine years expiring 30 September 2024.

5. [5]

   Judge Noman SC also convicted the applicant of a breach of an apprehended domestic violence order which was contained on a s 166 certificate. The sentence was a s 10A conviction without penalty.

6. [6]

   The applicant now appeals against the sentences imposed upon the following grounds:

7. [7]

   The Notice of Intention to Appeal was filed on 31 October 2017 but the Notice of Appeal was not filed until 25 January 2019. An affidavit from the applicant’s solicitor adequately explains the delay. The Crown does not oppose an extension of time. In my opinion, an extension of time should be granted.

The offending

1. [8]

   Her Honour found the following facts consistent with the jury’s verdict.

2. [9]

   Count 1 concerned offending against HU who was the sister of the applicant’s partner CU. HU was aged 8 at the time of the offending. The applicant was aged almost 33.

3. [10]

   Count 1 occurred on an occasion in March 2015 when HU's parents went to collect a TV and left her with her sister CU. CU and HU then stayed at the applicant’s family home, where he lived with his mother.

4. [11]

   HU said that she was on the couch in the lounge room when the applicant put a blanket on her and took her to his bedroom. She said that she was placed on a grey woollen couch in the applicant’s bedroom. She said he placed his finger inside her shorts and touched her on her "private", directly on the skin. Neither HU nor the applicant said anything, according to HU.

5. [12]

   HU said that she ran from the room, she was crying and she told her sister that she was missing her parents. HU did not complain to her mother until October 2015, after AU had complained about the assault on her that constituted Count 2, and after the applicant was in custody.

6. [13]

   Count 2 concerned AU who was a child of the applicant’s partner CU. AU was aged five at the time of the offending. Count 2 occurred when AU was driven to the applicant’s house in September 2015. AU's mother, CU, arrived separately a short time later. AU said that she was in the applicant’s bedroom. AU described how the applicant placed his hand on her stomach and pulled her pants down. She said, "Who's doing that" and "Ouch, it hurts”. The applicant said, "Okay". AU said that she screamed. She said that there was no one else in the room.

7. [14]

   She said that she left the room and went to Aunty Bev's room, the applicant’s mother, to sleep. She said she told her aunt KU (CU’s sister), and then Kelly about what the offender did. Kelly was KU’s partner. AU told Kelly that the applicant put his hand in her pants, inside and that it really hurt.

8. [15]

   The police were notified. The applicant was arrested solely in response to the allegation made by AU. He declined to be interviewed by police. The applicant did not give evidence at trial but he did call his mother.

Grounds of appeal

1. [16]

   When considering the nature of the offending involved in count 2 the sentencing judge said this:

2. [17]

   The applicant submitted that there was no basis for a finding of there being “some bleeding”, and the only evidence supporting the finding of pain was evidence from AU, her aunt KU, and Kelly that AU experienced pain “going to the toilet” some days after the assault. The evidence was that the pain was felt on 23 (or 25) September 2015 when the offence was particularised as having occurred between 15 and 20 September 2015.

3. [18]

   The Crown accepted that the reference to bleeding was a misstatement, but submitted that her Honour’s single reference to it meant that it could be inferred that her Honour did not rely upon it as a significant matter. The Crown submitted that the bleeding was just one of a large number of matters considered by her Honour in forming a view about the objective seriousness of the offence.

4. [19]

   The Crown submitted that there was evidence to justify the finding of pain both at the time of the offending and later when AU went to the toilet.

5. [20]

   There was ample evidence to support her Honour’s statement that the digital penetration caused pain. In her record of interview on 25 September 2015 AU said the following:

6. [21]

   AU was not challenged in cross-examination about her statements that the digital penetration had hurt her. The only questions she was asked about “hurt” in relation to the offending were the following (T116-7):

7. [22]

   There was also evidence from Kelly Brown and Irene Mitchell, AU’s maternal grandmother, about what AU had said in relation to experiencing pain when she went to the toilet.

8. [23]

   Although the applicant’s argument in relation to the suffering of pain related chiefly to whether the pain experienced by AU when urinating could be related to the offending, her Honour made no finding that it was so related. Nevertheless, such a finding was certainly available on the evidence. AU had said in answer to questions 81 and 94 that it hurt where the applicant put his finger in her private part. She was then immediately asked if it hurt at the time of the interview (at least five days after the offence) and she said that it did when she went to the toilet. The only rational inference that can be drawn from those answers is that the hurt she felt on urinating a few days later was related to the hurt caused by the applicant in the offending.

9. [24]

   It may be accepted that her Honour was in error in referring to bleeding. That appears to be a confusion with AU’s statement during her interview that her nose was bleeding during the interview. Nevertheless, the only way the finding of bleeding was apparently taken into account was in the assessment of objective seriousness. As will be discussed when considering ground 2, her Honour took a large number of matters into account when assessing objective seriousness. Even if the erroneous bleeding was excluded from the matters considered, it cannot be said that her Honour’s assessment of objective seriousness was erroneous.

10. [25]

    I would reject this ground.

11. [26]

    Her Honour said this in relation to the objective seriousness:

12. [27]

    The applicant submitted that the conduct did not constitute conduct falling "just below" the mid-range. The applicant submitted in relation to the offence involving AU that the actions of the applicant were at the lower end in terms of the seriousness of conduct contemplated by the section. The use of his hand/finger did not carry the same potentiality for serious injury that other means of penetration of a young child would. The applicant submitted that the assessment of objective seriousness incorporated a finding of injury/bleeding that was not supported by the evidence.

13. [28]

    The applicant submitted that the following matters mitigate the seriousness of that offending:

14. [29]

    As far as the offence against HU was concerned (Count 1), the applicant submitted that where the sentencing judge found the offending to be just below the mid-range of objective seriousness, her Honour imposed a sentence representing half the maximum penalty. The applicant submitted that it was difficult to reconcile that outcome with the expressed intention of her Honour to extend some leniency to the applicant on other bases.

15. [30]

    The Crown noted various findings made by the sentencing judge, which were said to have informed her Honour’s assessment of the objective seriousness of that offending. Those findings were these:

16. [31]

    The Crown drew attention to the submissions made at the sentence hearing about objective seriousness. The Crown submitted that the findings as to objective seriousness were open to her Honour and were substantially similar to what had been submitted by the applicant's counsel at sentence.

17. [32]

    At the sentence hearing, counsel for the applicant said the following in relation to objective seriousness:

18. [33]

    In the light of the concession by counsel for the applicant that AU’s age would tend to bring the offending more towards the mid-range of objective seriousness, it is difficult to see how her Honour’s finding that the offending fell just below the mid-range does not constitute an acceptance of counsel’s submission, particularly where the Crown had submitted that the offences fell at the mid-range.

19. [34]

    I accept the Crown’s submission that when her Honour came to consider the question of objective seriousness she had regard to all of the matters set out at para [30] above. It may be observed in that regard that her Honour’s erroneous reference to bleeding was only part of one of the considerations her Honour addressed. Her Honour, while earlier referring to AU’s age, did not relate that age to the maximum age with which the section is concerned. AU was half of that age, and that was a significant additional matter that justified her Honour’s assessment of objective seriousness.

20. [35]

    I do not consider that there is any error in her Honour’s assessment of the objective seriousness of the offending. I would reject this ground.

21. [36]

    In her Remarks on Sentence (ROS), the sentencing judge said this:

22. [37]

    The applicant submitted that her Honour’s reference to “strictly comply" with the standard non-parole period reveals faulty reasoning. That is because the High Court determined in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 that the standard non-parole should not be given determinative significance.

23. [38]

    The applicant submitted that her Honour’s depiction elevated what is a guidepost to the impermissible level of a mandate. The applicant submitted that, where the offending was not within the mid-range of seriousness, the approach that the standard non-parole sets the sentence unless other sentencing principles militate against its "strict compliance” was apt to mislead her Honour into the imposition of a sentence more severe than what was warranted.

24. [39]

    The Crown drew attention to what her Honour had said at the commencement of her ROS about the curious temporal relationship between the maximum penalty for the offence against s 61M(2) and the standard non-parole period. The Crown submitted that the remarks made by her Honour, now the subject of the applicant’s complaint, do not demonstrate that she elevated the guidepost to a mandate. Rather, they recognise the uncontroversial fact that it is not mathematically feasible to set a head sentence for a s 61M(2) offence that is close to the mid-range while also giving weight to the standard non-parole period.

25. [40]

    The Crown submitted that the non-parole period imposed for Count 1, which was assessed as being just below the mid-range, was less than half of the standard non-parole period. The Crown submitted that the imposition of such a sentence militated against the submission that her Honour gave undue weight to the standard non-parole period.

26. [41]

    When stating the offences, the maximum penalties and the standard non-parole periods at the outset of her ROS, her Honour said in relation to count 1:

27. [42]

    There can be little doubt that the challenged remarks of her Honour were adverting to this earlier observation. Whilst the use of the word “strictly” was unfortunate, it must be remembered that her Honour’s ROS were delivered ex tempore at the conclusion of the sentence hearing. More importantly, in making the challenged remark, her Honour referred to “the guidance” provided by the standard non-parole period. That is entirely in accordance with what the High Court said in Muldrock. It should also be observed that, as a matter of logic, one cannot “strictly” comply with “guidance”.

28. [43]

    I also accept the Crown’s submission that a non-parole period of three years and nine months for an offence said to be just below the mid-range, even taking into account factors justifying leniency, is inconsistent with the sentencing judge having given undue weight to the standard non-parole period. In any event, the weight given to any factor is ordinarily the domain of the sentencing judge unless a House v The King error can be demonstrated. In my opinion error is not demonstrated for the reasons given.

29. [44]

    I would reject this ground.

30. [45]

    In her ROS, the sentencing judge said:

31. [46]

    The applicant submitted that this finding involved a factual error. The applicant submitted that her Honour’s certitude that the applicant could address his relevant issues before his release to the community prevented her Honour having regard to applicant's disadvantaged background and drug dependency in her assessment of the need or otherwise for prolonged community based rehabilitation. The applicant submitted that her Honour’s finding that adequate access to all necessary rehabilitative services was available in custody was not supported by the evidence and was against the express caution to the opposite effect by the psychologist Ms Wyzenbeek. Ms Wyzenbeek had said that the applicant’s needs were “unlikely to be adequately addressed within a custodial setting".

32. [47]

    The applicant also submitted that her Honour fell into error in disregarding the causal role that substance addiction had played in the offending. In that regard, the sentencing judge said:

33. [48]

    The applicant submitted that the use of the word "definitively" raised a concern that her Honour had applied the wrong standard. The applicant submitted that her Honour should not have rejected the unimpeached expert opinion. The applicant submitted that her Honour’s statement that no moderation of the sentence was called for did not reveal the appropriate chain of reasoning. That chain would be an appraisal of whether there were criminogenic factors in play that necessitated a sentence which recognised and responded to them by way, for example, of prolonged supervision or rehabilitative or specialist courses. The applicant submitted that, at the very least, the applicant’s addiction was a relevant subjective factor.

34. [49]

    The applicant, while noting that her Honour extended leniency to the applicant in the light of his severe social disadvantage, submitted that the social disadvantage was relevant both to the length and formulation of the appropriate sentence. That should have brought about an increase in the parole period due to the need for prolonged and profound therapeutic and rehabilitative response to his social disadvantage because such services were not available in the custodial setting.

35. [50]

    The Crown submitted that before a variation is made for special circumstances those circumstances must be sufficiently special. Reference was made to R v Fidow [2004] NSWCCA 172 at [22]. The Crown submitted that a finding of special circumstances is a discretionary finding of fact in respect of which this Court is slow to intervene.

36. [51]

    The Crown submitted that Ms Wyzenbeek's report indicated that many of the applicant's needs were being managed by Corrective Services and Justice Health, and that there were custodial programs which would assist the applicant with specific issues. The Crown submitted that whilst psychological intervention for depression, anxiety and trauma was unlikely to be addressed adequately in custody, such matters were not unique to the applicant and did not mandate a finding of special circumstances.

37. [52]

    The Crown submitted that the overall sentence provided a period of four years after the expiration of the non-parole period.

38. [53]

    In terms of any role played by substance addiction in the applicant's offending, the Crown submitted that Ms Wyzenbeek's ultimate opinion was that the reasons for his offending were unclear, and she hypothesised that there were a number of relevant factors that may have played a part. In that way, the Crown submitted, her Honour was correct to conclude that there was no evidence to establish a definitive causal connection, but this did not mean her Honour did not take the applicant's methamphetamine use into account at all.

39. [54]

    The Crown submitted that her Honour accepted the applicant's social disadvantage in childhood and associated factors, and noted that those matters were taken into account in determination of the sentence. The Crown submitted, in any event, that the applicant's upbringing, while deprived and difficult, was not at the extreme end of the spectrum that would justify being described as severe, extreme, pervasive or profound.

Determination

1. [55]

   This ground involves three sub-grounds, each of which will be considered separately.

2. [56]

   In her ROS, the sentencing judge said this:

3. [57]

   The psychologist, Ms Wyzenbeek, said this in her report:

4. [58]

   Earlier in her ROS, the sentencing judge made reference to Ms Wyzenbeek's report and what was said there in relation to the applicant’s substance abuse, his depression and Post Traumatic Stress Disorder and his social disadvantage.

5. [59]

   As noted in Ms Wyzenbeek's report, there were programs available in custody which would deal with his sexual offending specifically and his substance abuse. Whilst it was true that his psychological needs were unlikely to be adequately addressed within a custodial setting, Ms Wyzenbeek noted that his participation in the CUBIT program would provide him with better insight into his psychological processes and offer him some basic coping skills to better manage those symptoms. Ms Wyzenbeek also accepted that once the applicant was released from custody, his psychological needs could be addressed within the community. As the Crown pointed out, the sentence imposed provides a four year period on parole where his psychological needs could be further dealt with.

6. [60]

   The relevant issues in respect of which the applicant needs assistance, according to Ms Wyzenbeek, are his sexual issues, his substance misuse issues and his psychological needs resulting from depression, anxiety and trauma. The first two of those can be met in custody and, as Ms Wyzenbeek says, dealing with the sexual issues will assist with the psychological issues. Further, Ms Wyzenbeek did not suggest that there was a pressing need to deal with the other psychological issues prior to the time that treatment would be available in the community if he were to be released to parole. It can also be accepted that pharmacological assistance is available for inmates suffering from depression and anxiety at a clinical level.

7. [61]

   I do not consider that her Honour has made any error in her approach to the treatment that will and will not be available to the applicant whilst in custody.

8. [62]

   In her ROS, her Honour said:

9. [63]

   In her report, Ms Wyzenbeek said this:

10. [64]

    The applicant did not give evidence either at the trial or at the sentence hearing. The evidence of his methamphetamine use around the time of the offending, his lack of memory of the offending and his belief that methamphetamine may have contributed to impairments in his memory were all untested. Her Honour was entitled not to accept a causal connection between his use of methamphetamine and the offending because it was not adequately proved. Her Honour was entitled to give little weight to the untested statements made to Ms Wyzenbeek: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; TS v R [2007] NSWCCA 194 at [30]. I do not consider that her Honour’s assessment of the causal significance of LB’s substance abuse was not open to her.

11. [65]

    In her ROS, the sentencing judge said this:

12. [66]

    The difficulty with the sub-ground of the appeal as it is expressed is that it is a complaint, in effect, that insufficient weight has been given to a particular matter. In that way it acknowledges that some weight has been given to the matter. Here, the ground is expressed to be “insufficient response”, but the principle is the same.

13. [67]

    Her Honour made the references, in the passage set out at [65] above, to the applicant’s social disadvantage and said that it would be taken into account in the determination of the sentence. The extent to which her Honour took it into account is within her Honour’s discretion.

14. [68]

    The difficulty for the applicant with the whole of this ground of appeal (ground 4) is that a finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. Her Honour referred to the submissions on behalf of the applicant that a finding of special circumstances should be made. Her Honour indicated that she factored the relevant matters into her sentence and needed to be careful about double counting. Each of the issues raised by this ground of appeal was dealt with by her Honour in her ROS.

15. [69]

    In fact her Honour reduced the statutory ratio for the overall sentence by reducing the non-parole period from nine years and nine months to nine years. Counsel for the applicant accepted that there had been a finding of special circumstances in that regard but submitted that the reduction should have been greater than nine months. That submission only highlights the difficulty of challenging a discretionary decision such as a finding of special circumstances.

16. [70]

    No error is shown in relation to Her Honour’s treatment of those matters. I would reject this ground of appeal.

17. [71]

    Although the applicant’s written submissions made a conclusion on this ground of appeal dependent on the finding of error in one or more of grounds 1-4, counsel for the applicant made clear at the hearing that the ground relied on a finding that the sentences were plainly unreasonable and unjust, independently of error being found. However, no further submissions were made to justify the assertion that the sentences were plainly unreasonable and unjust. Neither statistics nor comparative cases were put forward in support of the submission of manifest excess. The implied suggestion must be that the Court would examine the sentences and, by reason of the experience of the Court’s members, reach a view about manifest excess. That is an entirely unsatisfactory procedure. The Court reaches a decision on issues and grounds of appeal assisted by submission from the parties. I note also that it does not appear that her Honour was given any assistance in terms of cases or statistics at the sentence hearing.

18. [72]

    It may be accepted that the overall sentence is a stern one. It is, nevertheless, necessary to examine each of the individual sentences.

19. [73]

    While the head sentence for Count 1 is half the maximum sentence (and complaint was made about that with respect to ground 2 because of the finding of objective seriousness), it is clear from her Honour’s remarks concerning the peculiar relationship between the maximum sentence and the standard non-parole period, that her Honour was trying to achieve a balance between those two guideposts whilst endeavouring also to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The result is that the non-parole period is less than half of the standard non-parole period, indicating that considerable leniency has been shown when the findings of objective seriousness and the other mitigating factors are taken into account.

20. [74]

    The sentence for Count 2 is certainly not a lenient one. However, a number of factors suggest that the sentence cannot be said to be manifestly excessive. First, the maximum penalty for the offence is life imprisonment. That maximum penalty was recently increased by Parliament, indicating the seriousness with which the courts must recognise and deal with such offending. Secondly, the non-parole period imposed was only a little over half of the standard non-parole period where the applicant was found guilty after a trial. Thirdly, the complainant was aged only 5 years where the offence is concerned with children under ten years. The offence involved a breach of trust by reason of the relationship of the applicant to the complainant. Fourthly, given the offending against HU at an earlier time, this offending was not aberrant. Fifthly, her Honour found no remorse and did not find favourable prospects of rehabilitation. Sixthly, the offence was committed in breach of an ADVO, the matter dealt with on the s 166 Certificate.

21. [75]

    Unassisted by further material, the matters set out above do not lead me to the conclusion that the sentence imposed for Count 2 was plainly unreasonable or unjust.

22. [76]

    As to the overall sentence, it should be noted that there is a significant amount of concurrency between the two individual sentences, with each of the non-parole period and the overall sentence for Count 2 being accumulated by only 12 months for the offending in Count 1, despite a different complainant being involved and the time of the offending being separated by some six months.

23. [77]

    I would reject this ground of appeal.

Conclusion

1. [78]

   I propose the following orders:

   1. (1)

      Extend time for the filing of the Notice of Appeal to 25 January 2019.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [79]

   BUTTON J: I agree with Davies J.