Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Scrimshaw (a pseudonym) v R [2021] NSWCCA 81 Hearing dates: 15 March 2021 Decision date: 30 April 2021 Before: Payne JA at [1]; Bellew J at [2]; Button J at [3] Decision: (1) Leave to appeal out of time granted. (2) Leave to appeal granted. (3) Appeal dismissed. Catchwords: SENTENCING — appeal against sentence — erroneous application of standard non-parole period not in existence at time of offending — error conceded by Crown — other grounds not considered — consideration of resentence — penetrative sexual offending against natural daughter — offender previously incarcerated for penetrative sexual offences against at least one child — cognitive limitations but awareness of wrongfulness of actions — first instance total head sentence of imprisonment for 11 years with total non-parole period of 7 years — no lesser sentence warranted in law Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 61N, 66C Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA Category: Principal judgment Parties: Adrian Scrimshaw (Applicant) The Queen (Respondent) Representation: Counsel: S Healy (Applicant) C Young (Respondent) Solicitors: Douglass & Ford Criminal Law (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/119672 Publication restriction: Pseudonyms adopted to avoid identifying child sexual assault complainant Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 February 2017 Before: McLoughlin SC DCJ File Number(s): 2015/00119672 Judgment 1. PAYNE JA: I agree with Button J. 2. BELLEW J: I agree with Button J. 3. BUTTON J: Error conceded and established Adrian Scrimshaw (a pseudonym for the applicant) was sentenced on 15 February 2017 in the District Court at Port Macquarie for a number of serious sexual offences against his natural daughter that had been committed many years beforehand. An orthodox sentence structure of "cascading" head sentences with staggered commencement dates was adopted, as opposed to an aggregate sentence. That structure led to a total head sentence of imprisonment for 11 years, with a total non-parole period of 7 years. Clearly, special circumstances were found that led to a significant reduction in the statutory ratio to a little over 63%. 1. Regrettably, although the applicable maximum penalty for all offences was correctly identified as having been imprisonment for 16 years, the learned sentencing judge wrongly proceeded on the basis that, at the time of the commission of the offences, Parliament had provided a standard non-parole period. In fact, at the time, there was none. That failing – which lawyers appearing for both parties in proceedings on sentence should take care to ensure does not occur in a very busy list – underpinned the second of three grounds of appeal, the others of which asserted a failure by the sentencing judge to refer to the pleas of guilty of the applicant in the remarks on sentence, and an error of fact with regard to the criminal record of the applicant. 2. At the hearing of an application for leave to appeal out of time in this Court, the Crown conceded that that leave should be granted, a material error had occurred with regard to the standard non-parole periods, appellable error had been established, and that this Court should move immediately to consideration of resentence. The Crown resisted, however, the proposition that any lesser sentence than that imposed at first instance is warranted in law. 3. Counsel for the applicant did not submit that there was any need for the other proposed grounds to be considered. He also accepted that, pursuant to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), this Court should have regard to sentencing practices as they apply now, rather than as they were at the time of the commission of the offences. Having said that, both he and the Crown agreed that the standard non-parole period currently applicable to the offences should be disregarded. 4. I would accept the concession of the Crown, find that error occurred at first instance, decline to determine the other proposed grounds, and move immediately to consider resentence. Consideration of re-sentence Objective features of the offending 1. The following is based upon an indictment, a Form 1, agreed facts, and a victim impact statement that were placed before the sentencing judge. 2. The applicant pleaded guilty to four counts of having sexual intercourse with a person between the ages of 10 and 14 years. Taken into account on sentence with regard to count 4 were four further sexual offences that he had committed against the same child. 3. The complainant, "Catherine", was born in July 1994. Her natural parents were the applicant, and her mother, "Maria". Maria had previously been married to a man who was deceased, and had five children to him. Maria married the applicant in March 1992. She had met him whilst he was serving a sentence of imprisonment at Cooma Gaol for child sexual assault offences. 4. Over the years, the family moved to various addresses on the South Coast of New South Wales. Catherine lived with her parents until she moved out in July 2013, when she was 19 years of age. 5. Whilst Catherine was growing up, the applicant worked as a cleaner in Bega between March 2004 and October 2008. Amongst his responsibilities was the cleaning of a large one-storey building containing numerous offices. On the weekends, the complainant, at the time still a very young child, would accompany her father to work. 6. On one weekend between July 2004 and December 2005, but around the summer of 2004, when Catherine was aged 10, she accompanied her father as he went to clean the offices. He took her to the conference room. A man was outside mowing the lawns of the premises. Her father closed the blinds of the conference room. He laid Catherine on the conference table with her legs apart and over its edge. He stood in front of his daughter and commenced to masturbate himself. He moved closer to the child, and his penis penetrated the outer lips of her genitals. He pulled his penis away from her body and ejaculated on her. The applicant ordered Catherine to stay where she was whilst he took steps to clean up. He returned and wiped his semen off his 10-year-old daughter with a paper towel. Thereafter, he returned to his cleaning work, and the complainant went out to play in the car park. 7. This offence of penile/vaginal sexual intercourse with a 10-year-old constituted count 1. It was contrary to s 66C(1) of the Crimes Act 1900 (NSW), and as I have said carried a maximum penalty of imprisonment for 16 years. 8. On a later occasion between the same dates when Catherine was aged 10 or 11 years, she and her father were at the same location in the same circumstances. The applicant called her into the bathroom of the office. He was seated on the lavatory without wearing any pants. She saw that his penis was erect. The applicant lifted his daughter onto his lap, and masturbated himself. During that process, his penis penetrated the outer lips of her genitalia. 9. Afterwards, whilst driving home, Catherine asked her father "Dad, what was that called that we did?" He replied, "Just don't tell your mother". 10. This offence underpinned count 2, which was identical in its terms to count 1. 11. The last incident of offending occurred between August 2005 and July 2006, when the complainant was 11 or 12 years of age. A number of offences were committed on the same occasion, as follows. 12. One evening, Catherine was sleeping in her father's bedroom in the family home. He was watching television in another room. She awoke and joined him on the bed, from where he was watching television. Whilst she was lying there, the applicant rolled over and began to touch her. He touched her stomach, rubbed her breasts, and then moved his hand inside her underwear and rubbed her genital area with his hand. 13. This aggravated indecent assault constituted the first charge on the Form 1. It was contrary to s 61M(1) of the Crimes Act. When dealt with on indictment, the offence carried a maximum penalty of 7 years. 14. Whilst the applicant committed the offence discussed above, he took hold of the hand of his daughter and placed it on his penis. She began to rub it, until it became erect. 15. This conduct constituted an aggravated act of indecency, the second charge on the Form 1. It was contrary to s 61N(1) of the Crimes Act. When dealt with on indictment, the offence carried a maximum penalty of 2 years. 16. During the acts described above, the fingers of the applicant penetrated the outer lips of the genitalia of his daughter for a period of time. 17. This conduct constituted an act of digital/vaginal sexual intercourse with a child aged between 10 and 14 years, and was the third charge on the Form 1. Again, the maximum penalty of the offence was imprisonment for 16 years. 18. The applicant and Catherine went to his bedroom. She lay down, and he got into bed with his daughter. She performed oral sex on him, and he did the same to her. Again, these were offences of sexual intercourse with a person aged between 10 and 14 years. 19. The fellatio constituted count 3 on the indictment. The cunnilingus constituted the fourth charge on the Form 1. 20. The applicant then placed his daughter on her back, and lay on top of her. At that time, his penis penetrated the outer lips of her genitalia. 21. This conduct constituted count 4 on the indictment, contrary to the same Act and section identified above, with the same maximum penalty. This was the last offence committed by the applicant against his daughter. 22. The applicant then dressed himself in his underwear, and returned to the other room. Catherine showered, because she felt upset and dirty. She began to cry, and considered running away from home at the age of no more than twelve. She packed a bag and wrote a letter to her mother, in which she disclosed what had been occurring and said that she no longer desired to live in the family home. Catherine entered the bedroom of her mother, woke her, and gave her the note. Maria read the letter and spoke to the applicant. Catherine was told to return to her bedroom. 23. The next day, Maria took the extraordinary step of arranging for the applicant and his daughter to go for a drive together. The applicant apologised, said that it would never happen again, and said that he would get help. 24. Catherine did not run away. She told nobody else about what had happened for many years. In mid-2013, she spoke to her best friend. Later in the same year, she spoke to other family members. When one of them confronted the applicant, he again apologised and said that he was going to leave because he did not wish to cause any more trouble. 25. In April 2014, Catherine made a formal statement to police. About three weeks later, the applicant was arrested, and engaged in an electronically recorded interview. He made admissions to masturbating in front of Catherine, and having penile/vaginal and oral sex with her. He claimed that he knew that his daughter was aged between 11 and 13 years at the time. He also admitted that he knew what he had done was wrong, and said that he was very sorry. 26. In a victim impact statement of November 2016, Catherine (by then in her early 20s) spoke of her lack of comprehension of what was occurring as a child; her isolation from her family; and her own misplaced sense of guilt. She spoke of the conversation in the car in which she expressed a child's complete incomprehension of the sexual intercourse that had just taken place between herself and her own father; the fact that on the last occasion of offending she "felt really dirty"; flashbacks of the sexual assaults that had developed when she was about 15 years of age; her psychological difficulties arising from the fact that her mother did not believe her when she first revealed the offending; her efforts to "move on" psychologically; the fact that she was seeking to recover from the problem with eating that she had developed whilst at school; and that she was "trying to undo all the damage that was done". Subjective features of the offender 1. The applicant pleaded guilty to all offences in the District Court. In accordance with the joint position of the parties at first instance and in this Court, I would provide a 20% discount upon the starting point of each head sentence. 2. The following is largely derived from the findings of fact made by the sentencing judge about the applicant himself. 3. The applicant is an older man who was born in November 1961, and is therefore currently 59 years of age. He is the third eldest of ten children born to his parents' union (one of whom was stillborn). He was born in Sydney, but moved with his family to Queensland when he was a young child. 4. His upbringing was said to be violent and dysfunctional: his father was an alcoholic and gambler; he regularly perpetrated violence towards the applicant, his mother, and his siblings; and, it is said, the father sexually abused the two elder sisters of the applicant. 5. As well, the applicant was the subject of cruel taunts by his father about his speech impediment and physical appearance, which caused the applicant to experience chronic anxiety. 6. The applicant recalled that he had "consensual" sex for the first time when he was 15 years of age, but had no memory of the event. 7. The sentencing judge noted that the applicant claimed to have been sexually assaulted numerous times whilst hitchhiking as a child. 8. The applicant has had minimal education, and is burdened by cognitive deficits and below average intelligence. 9. With regard to the commission of the offences, the applicant said that he was financially distressed at the time and was experiencing tension and acrimony in his relationships with his wife and step-children. 10. The applicant had apologised for the offences, albeit to his other daughter (Catherine's half-sister) and, except on the initial drive remarkably organised by Maria, not to the complainant herself. 11. When questioned about the age of consent by a psychologist whose report was tendered in the defence case on sentence, the applicant expressed the belief that it was 18. He was unable to provide any insight about why children under the age of consent should not be subjected to sexual activity, saying "in my day what I did wasn't considered sex it was considered foreplay". 12. As for his criminal record, the applicant had convictions for obtaining a benefit by deception from November 1996. He had separate convictions, from June 2000, for minor offences to do with a dog. 13. Those convictions, in my opinion, had negligible relevance to the proceedings on sentence. But the following matters were highly relevant. 14. In November 1988, when he was in the latter part of his 20s, the applicant was charged with one count of sexual intercourse with a child under 10, one count of sexual intercourse with a child aged between 10 and 16, and two counts of committing an act of indecency with a person under 16. 15. Subsequently, on 20 October 1989 in the Supreme Court sitting at Newcastle, he received a total head sentence of 3 years 9 months with a non-parole period of 3 years, to commence on 20 October 1989. His non-parole period expired on 19 October 1992, and the head sentence expired on 19 July 1993. Neither any alleged or agreed facts nor the remarks on sentence with regard to those matters were before this Court. As I have said, it was whilst he was incarcerated for those offences that he met Maria, with whom he fathered the child whom he went on to sexually assault by way of the offences under consideration. Events in custody since imposition of sentence 1. Evidence placed before this Court as against the possibility of resentence established the following. 2. The applicant suffers from rheumatoid arthritis, and treatment for that condition in custody has not been as good as it might have been in the community. 3. Counsel submitted orally that there has been some "level of depravation in his health care, using the term in its broader sense to include dental care, below what one might expect from a person in the community in that he put in an application for dentures". The point was made that the applicant has very few teeth, and that this has presented difficulties in custody, not only with regard to eating but also speaking comprehensibly. On the other hand, it seemed to be accepted by counsel that many people living in the community cannot afford good dental care, and one might infer that the applicant, if at liberty, would be one of them. There was also evidence that, late last year, the issue about properly fitted new dentures was eventually resolved. 4. Finally, it was said that there is evidence that the applicant has sought help in custody with regard to his obvious sexual attraction to children, and is currently on a waiting list for a psychotherapeutic program. Determination of resentence 1. Reflecting on whether a lesser sentence is warranted in law than that imposed at first instance, clearly there was a degree of planning and premeditation in the offending, at the least to the extent that it occurred whilst the applicant was at work, in secluded premises, and having brought his daughter with him. 2. The offences unquestionably constituted a breach of trust of the grossest kind. 3. Clearly enough, the applicant has inflicted very significant psychological damage upon his natural daughter. 4. All of the substantive counts must be assessed as objectively very grave, not least because of the age of Catherine when they occurred. The precise extent of penile penetration with regard to some of the offences is, in my opinion, immaterial. 5. Subjectively, I accept that the applicant had a deprived and psychologically harmful upbringing. I also accept that he is of no greater than well below average intelligence. Both of those facts sound in mitigation in various ways. 6. But he was surely well aware of the wrongfulness of what he was doing. That is demonstrated by the closing of the blinds at the office; the commission of a later offence in the secluded area of a bathroom within the offices; the warning to his daughter not to inform her mother; the commission of the most serious of the offences in the home in the bedroom and not the TV room, and the apologies that were proffered when the offences were revealed. 7. As well as that, the applicant well knew from his extended period of previous incarceration for the identical kind of offences that this was conduct that the community condemns and visits with stern punishment. And yet he proceeded to offend again in the same way. 8. The financial and family problems said to have been experienced by the applicant at the time of the offences provide no explanation for their commission, let alone any form of excuse. 9. Due to the fact that the applicant had previously been incarcerated for penetrative sexual offending against a young child, there is an obviously enhanced role in this matter for denunciation, general deterrence, specific deterrence, and retribution. 10. I accept that the applicant is not in a particularly good health, and that makes his incarceration more onerous than it would be for a healthy young man. Having said that, he has already reached a C2 classification, and there is no suggestion in the evidence of recent adverse events in custody. 11. In light of his proven readiness to act upon his sexual attraction to children, demonstrated over many years, the prospects of rehabilitation of the applicant must be assessed as guarded at best. 12. It is to be recalled that the applicant is to be sentenced for four offences carrying a maximum penalty of imprisonment for 16 years. And even undertaking the difficult hypothetical exercise of disregarding the currently applicable standard non-parole period, there can be no doubt that current sentencing practices with regard to penetrative sexual offences against children feature significant periods of imprisonment. 13. The sentencing judge imposed a cascading structure of three head sentences of 5 years, and one head sentence of 7 years, leading (as I have said) to a total head sentence of 11 years, with a total non-parole period of 7 years. 14. Exercising the sentencing discretion afresh, putting from my mind the individual sentences and total sentence previously imposed, taking into account the maximum penalties, considering all objective and subjective features, reflecting on current sentencing patterns (though disregarding any current standard non-parole period), and engaging in instinctive synthesis, I would provide indicative sentences for the four counts that are longer than the individual sentences imposed by his Honour. I would also impose an aggregate head sentence of imprisonment and aggregate non-parole period that are longer than the total head sentence and total non-parole period imposed by the sentencing judge. Proposed orders 1. Because that putative outcome demonstrates that I do not consider that a lesser sentence is warranted in law, I propose the following orders: 1. Leave to appeal out of time granted. 2. Leave to appeal against sentence granted. 3. Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2021