Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Stephens v R (No 2) [2022] NSWCCA 227 Hearing dates: 9 July 2021 Date of orders: 14 October 2022 Decision date: 25 October 2022 Before: Simpson AJA; Davies J; Button J Decision: (1) The applicant is sentenced to an aggregate head sentence of imprisonment for 4 years 6 months commencing on 26 August 2019 and expiring on 25 February 2024, with a non-parole period of 2 years 9 months that expired on 25 May 2022. Catchwords: CRIMINAL APPEAL – remittal for re-sentence from the High Court of Australia – High Court quashed all convictions subject to High Court appeal – remaining convictions not subject to appeal require re-sentence – no reason to depart from previous indicative sentences – no reason to depart from previous ratio between head sentence and non-parole period – applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Stephens v R [2021] NSWCCA 152; (2021) 290 A Crim R 303 Stephens v The Queen [2022] HCA 31; (2022) 96 ALJR 871 Category: Consequential orders Parties: Peter Leonard Stephens (Applicant) Regina (Crown) Representation: Counsel: A Cook (Applicant) D Kell SC & M W R Adams (Crown) Solicitors: Macedone Legal (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/331553 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 13 November 2019 Before: Woodburne SC DCJ File Number(s): 2017/331553 JUDGMENT 1. THE COURT: Introduction 1. On 14 October 2022, this Court resentenced Mr Peter Leonard Stephens (the applicant) for three counts of child sexual assault committed many years ago. That was after a successful appeal to the High Court of Australia against conviction relating to a number of other counts reflecting the same kind of offending against the same victim. As the applicant was eligible for consideration for parole pursuant to previous orders made by the Court, orders were pronounced with reasons to be given later. The following are our reasons. Background 1. The applicant was convicted of seven offences in the District Court after a trial by jury. On 13 November 2019, he was sentenced by Judge Woodburne SC to an aggregate head sentence of imprisonment for 7 years 9 months, to commence on 26 August 2019 and expire on 25 May 2027, with a non-parole period of 4 years 9 months. His first eligibility for consideration for release to parole was to arise on 25 May 2024. 2. He appealed against four of those convictions to this Court. On 9 July 2021, one only of those convictions was quashed, with the result that re-sentence was required: Stephens v R [2021] NSWCCA 152; (2021) 290 A Crim R 303. The new aggregate head sentence was imprisonment for 6 years, to expire on 25 August 2025, with a new non-parole period of 3 years 9 months to expire on 25 May 2023. 3. On appeal to the High Court, the three further convictions were also quashed, and the matter remitted for re-sentence to this Court: Stephens v The Queen [2022] HCA 31; (2022) 96 ALJR 871. Further re-sentencing exercise 1. Turning now to that exercise, both parties were content for the question of re-sentence to be considered in Chambers without an oral hearing, and written submissions were received from both. There were also affidavits – one sworn by a solicitor for the prosecution, and one by the solicitor for the applicant – setting out developments in his life since he was re-sentenced by this Court in July of last year. 2. The applicant is to be sentenced for three counts. The first of them was contrary to s 81 (long since repealed) of the Crimes Act 1900 (NSW). The allegation was that between 1 January 1982 and 6 July 1983, the applicant committed an "indecent assault upon a male person of whatever age". The maximum penalty then applicable was imprisonment for 5 years. 3. In short, the applicant, then aged about 28 years, was working at an airport as a flying instructor. The victim, a boy then aged 10 or 11 years, was at the airport with his brother and friend, no doubt interested to watch the aeroplanes coming and going. The applicant spoke to them and ultimately asked the victim to "show me your penis". The victim complied, and the applicant reached out from the car in which he was sitting and touched the boy's penis with his hand. 4. Over the next few days, on two further occasions, the applicant performed oral sex on the complainant to ejaculation. As the criminal law then stood, those acts also constituted indecent assault, and the same offence-creating provision with the same maximum penalty was applicable. According to the dates on the indictment, at the time of the commission of both counts 2 and 3, the victim was also aged either 10 or 11. 5. Subjectively, the applicant is now aged 68. He has been in continuous custody since 26 August 2019, a period of well over three years. He has no other convictions whatsoever. Many persons gave evidence in the proceedings on sentence about his otherwise commendable character. Gaol has been an undoubtedly frightening experience. The affidavit evidence filed recently shows that he has made sound progress in custody, and very recently commenced day leave. We assess his prospects of continued rehabilitation upon release as being excellent. 6. It may be accepted that the offence based on touching, whilst serious, is towards the less grave end of the spectrum of offences within indecent assault, especially in light of the greater offending that fell within that concept and the offence-creating provision in those days. 7. Conversely, the repeated performance of oral sex by a mature adult upon a person aged 10 or 11 must be seen as very grave offending, even bearing in mind the maximum penalty then pertaining of imprisonment for five years. General deterrence and denunciation have significant roles to play in sentencing for such conduct, even if it only comes to light many years after its commission, and even if the perpetrator has lived an otherwise exemplary life. 8. In July 2021, this Court previously provided an indicative head sentence of one year for count 1, three years for count 2, and three years for count 3. We see no reason to depart from any of those indicative sentences, and they should be maintained. 9. The aggregate head sentence previously imposed by this Court of 6 years had to be set aside following the quashing of three convictions for serious offences that previously partially underpinned it. 10. Reflecting afresh on totality, and the now-applicable reduction in proven offending, we considered an aggregate head sentence of imprisonment for 4 years 6 months to be appropriate. We also considered it appropriate to replicate the ratio between aggregate non-parole period and aggregate head sentence that was adopted in July 2021. With rounding down to the extent of three weeks, that resulted in a non-parole period of 2 years 9 months. Orders 1. It is for those reasons that we made the following pronouncements and orders on 14 October 2022: 2. For count 1, an indicative head sentence of imprisonment for 1 year is recorded. 3. For count 2, an indicative head sentence of imprisonment for 3 years is recorded. 4. For count 3, an indicative head sentence of imprisonment for 3 years is recorded. 5. Order: 1. The applicant is sentenced to an aggregate head sentence of imprisonment for 4 years 6 months commencing on 26 August 2019 and expiring on 25 February 2024, with a non-parole period of 2 years 9 months that expired on 25 May 2022. 1. The first date upon which the applicant became eligible for consideration for release to parole was 25 May 2022. ********** Amendments 25 October 2022 - Counsel for the applicant name changed. 27 October 2022 - Coversheet Case title amended 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: 27 October 2022