Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cridland v R [2024] NSWCCA 243 Hearing dates: 4 December 2024 Date of orders: 20 December 2024 Decision date: 20 December 2024 Before: Stern JA; Fagan J; Ierace J Decision: (1) Grant leave to the applicant to appeal against the sentence passed by English DCJ on 16 February 2024. (2 Allow the appeal and quash the aggregate sentence passed on 16 February 24. (3) In lieu thereof sentence the applicant to an aggregate term of imprisonment of 11 years commencing on 16 June 2023 and expiring on 15 June 2034 with a non-parole period of 7 years and 2 months expiring on 15 August 2030. (4) The applicant will first be eligible for release to parole on 15 August 2030. Catchwords: CRIMINAL LAW – sentence appeal – sexual intercourse with a child aged between 14 and 16 years – whether trial judge erred by making findings of fact concerning counts on which the jury returned not guilty verdicts – whether trial judge erred in failing to find that offender's alcohol abuse and post traumatic stress disorder reduced moral culpability – whether aggregate sentence manifestly excessive – manifest excess established – appeal allowed – sentence reduced on re-sentence Legislation Cited: Crimes Act 1900 (NSW) Category: Principal judgment Parties: Troy Cridland (Applicant) Rex (Crown/Respondent) Representation: Counsel: S Howell (Applicant) J Styles (Crown/Respondent) Solicitors: Mitchell & Co Lawyers (Applicant) Solicitor for Public Prosecutions (Crown/Respondent) File Number(s): 2020/348125 Publication restriction: No Decision under appeal Court or tribunal: District Court Campbelltown Jurisdiction: Criminal Date of Decision: 16 February 2024 Before: J English DCJ File Number(s): 2020/348125 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was a police officer serving in a country town. He was convicted after trial on six counts of sexual intercourse with a girl aged between 14 and 15 years at the time of the offending. She had been introduced to the applicant by the principal of her school and by her mother, for counselling in relation to bullying by her peers. Four of the six counts were aggravated (under authority). There was an additional count of using the young person for production of child abuse material (requesting intimate photographs) and a count of act with intent to pervert the course of justice (requesting the young person's mother to make false statements to investigating police). The applicant was sentenced to an aggregate of 15 years imprisonment with a non-parole period of 9 years and 9 months. He sought leave to appeal on grounds that the sentencing judge had erred in the following respects: 1 Making findings of fact concerning counts on which the jury had found the applicant not guilty. 2 Failing to find that the applicant's moral culpability was reduced because he was affected by post-traumatic stress disorder (PTSD) at the time of the offending. 3 The aggregate sentence imposed was manifestly excessive. Held by the Court, granting leave, dismissing the appeal on grounds 1 and 2 and upholding ground 3: As to ground 1, the sentencing judge recorded in her Remarks on Sentence the allegations in the charges that were not proved but did not make findings concerning those allegations. A fundamental error of taking into account unproved allegations was not to be implied in the absence of a clear indication in the Remarks on Sentence that the allegations were so misused. There was no such indication and no basis for imputing error (at [14]). 1. As to ground 2, the conflicting evidence about alcohol consumption did not compel a conclusion that the applicant had been affected by an alcohol abuse disorder or PTSD at the time of any of the offending. The sentencing judge had no evidence from the applicant himself claiming to have suffered PTSD symptoms, or effects upon his judgment and conduct, at the respective dates of the offences. The applicant was capably performing his police duties throughout the charge period and there was no suggestion that he was affected by alcohol at the time of the offending. It was open to the sentencing judge not to have been satisfied that any mental disorder contributed to his offending so as to reduce his culpability (at [28]-[31]). As to ground 3, the aggregate sentence was manifestly excessive for the totality of the offending and should be quashed, to be replaced by a sentence of 11 years with a non-parole period of 7 years and 2 months (at [35]). JUDGMENT 1. THE COURT: The applicant seeks leave to appeal against an aggregate sentence passed by her Honour Judge English on 16 February 2024 in the District Court at Campbelltown. The sentence followed the appellant's trial on 11 counts arising from his sexual activity with a 14-15 year old female complainant. He was found guilty of eight offences: six counts as charged and statutory alternatives to two counts. 2. The charges on which the applicant was found guilty, the maximum penalties and the indicative sentences nominated by the sentencing judge were as follows: First sexual event, before about 10 May 2020 1 Aggravated (under authority) sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(4) of the Crimes Act 1900 (NSW). Maximum 12 years with a non-parole period of 5 years; indicative sentence 6 years with a non-parole period of 3 years. Request for intimate photographs, approximately June 2020 4 Attempt to use a child of or above the age of 14 years for the production of child abuse material, contrary to s 91G of the Crimes Act. Maximum 10 years; indicative 1 year and 6 months. Second event, between 4 May and 29 August 2020 6 Sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act). Maximum 10 years; indicative 4 years. 7 Sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3). Indicative 5 years. Third event, 30 August 2020 8 Aggravated (under authority) sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(4). Maximum 12 years with a non-parole period of 5 years; indicative 6 years with a non-parole period of 3 years and 10 months. 9 Aggravated (under authority) sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(4). Indicative 6 years with a non-parole period of 3 years and 9 months. 10 Aggravated (under authority) sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(4). Indicative 5 years with a non-parole period of 3 years and 3 months. Act with intent to pervert the course of justice, 10 September 2020 11 Act with intent to pervert the course of justice, contrary to s 319. Maximum 14 years, indicative 2 years and 6 months. This involved the applicant asking the complainant's mother to give false information about his contact with the complainant if police should investigate. 1. Her Honour imposed an aggregate sentence of 15 years with a non-parole period of 9 years and 9 months. Leave is sought to argue the following grounds of appeal: 1 The sentencing judge erred by making findings of fact in relation to count 2, count 3 and count 5, of which the [applicant] was found not guilty. 2 The sentencing judge erred by finding the [applicant's] moral culpability was not reduced by the fact that at the time of the offences he was suffering from post traumatic stress disorder. 3 The aggregate sentence imposed is manifestly excessive. The grounds are arguable and leave will be granted. Facts 1. At the time of the offending in 2020 the applicant was 28 years old. He had been a police officer for over six years, since 2013. From May 2017 he was stationed at Tabulam, about 90 km west of Lismore. The complainant lived with her mother and sister in a small town not far from Tabulam, further to the west. For most of 2019 she attended the Central School at Bonalbo, 30 km north of Tabulam. In about November 2019 the complainant, then aged 14 years, reported to the principal of the school that she was being subjected to "cyber bullying". In late November 2019 the principal met with the applicant and informed him that cyber bullying was affecting students, including the complainant. 2. The complainant left Bonalbo Central School at about the end of 2019. In early 2020 she attended Tenterfield High School, until her return to the Bonalbo School on 1 May 2020. The sentencing judge found that the complainant had met with the applicant in late 2019 and early 2020 to seek counselling from him in relation to being bullied. Her Honour rejected the applicant's case at trial that he had first become acquainted with the complainant on 10 February 2020 through the dating site Tinder and that he had not met her in person until 10 May 2020. First sexual event, before about 10 May 2020, count 1 1. On a date between 1 March 2020 and 31 May 2020 – as the sentencing judge found, probably before Mother's Day, being 10 May that year – the complainant asked her mother to contact the applicant, apparently in relation to conflicts with other students. A meeting was arranged at Tabulam Oval and the complainant's mother drove her there and left her in the offender's company. He was in uniform. He drove the complainant in his police vehicle to the Tabulam station, took her into the garage where a tent was set up and told her to get into the tent and take her clothes off. He then got into the tent and had penile vaginal sexual intercourse with her. The complainant turned 15 towards the end of May 2020. She was either close to her 15th birthday or just turned 15 when this offence was committed. 2. On 5 May 2020 the construction of a police station and residence in Bonalbo was completed. The applicant moved into the residence from that date and worked from the Bonalbo station thereafter. Request for intimate photographs, approximately June 2020, count 4 1. In June 2020 the applicant asked the complainant to send him naked pictures of herself, specifically of her vagina and her breasts. She responded with photographs of herself in her underwear. Second event, between 4 May and 29 August 2020, counts 6 and 7 1. The second sexual encounter occurred at the police residence in Bonalbo, adjacent to the station. It must have occurred after 4 May 2020 because the applicant did not occupy the residence until 5 May. The complainant was able to fix the date of the third episode as being 30 August 2020 and said that the second occasion had been prior to that. The date could not be fixed more precisely. The occasion was an evening on which the complainant was having dinner with her mother and grandmother in Bonalbo. The applicant messaged her to come to the police station. She went there, unaccompanied, and the applicant took her into the residence that he was occupying next door. 2. In his bedroom, the applicant induced the complainant to perform oral sex on him (count 6). He then pulled her pants down and had penile vaginal intercourse with her, at one point with his hand on her throat, constricting her airway (count 7). The charges in respect of these acts were laid under s 66C(4) as sexual intercourse aggravated by the circumstance of the complainant being under the appellant's authority. However, the jury found the applicant guilty of the statutory alternative to each charge, being sexual intercourse contrary to s 66C(3), not aggravated. Presumably the aggravating circumstance was not found because the complainant had gone to the applicant's residence unaccompanied, rather than being delivered into his care by her mother. Third event, 30 August 2020, counts 8, 9 and 10 1. Late on the evening of 29 August 2020 the complainant and her mother were visiting the complainant's grandmother at her house in a small township a few kilometres north of Bonalbo. The applicant messaged the complainant and asked her to meet him at a road junction not far from the grandmother's house. She agreed and at about 12:40 am her mother drove her to the rendezvous, where the complainant got into the applicant's police vehicle. He drove some distance down an unsealed road to a relatively isolated location. He then parked and laid the front passenger seat back. He removed the complainant's clothing and proceeded to have penile vaginal intercourse with her, twice, in different positions. He then had oral sex with her and ejaculated in her mouth. Act with intent to pervert the course of justice, 10 September 2020 1. On 8 September 2020 another officer came into possession of the complainant's mobile phone in connection with an unrelated matter. Upon the applicant becoming aware of that, he met with the complainant's mother on 10 September 2020 and requested that if she should be asked anything about his dealings with the complainant she should say that "we only ever dealt with police matters and [the complainant's] bullying". He requested the mother to deny that the complainant had ever been in the police vehicle. He asked for access to the mother's phone and looked through the messages on it. Ground 1 – allegations on counts of which the applicant was acquitted 1. In her Remarks on Sentence the learned judge set out the Crown allegations on count 2 (an additional occasion of penile vaginal intercourse, on 10 May 2020), count 3 (the applicant sending to the complainant a video of himself masturbating) and count 5 (an additional instance of oral intercourse). These matters are clearly described in the Remarks as allegations and in respect of each it is stated that the jury returned a verdict of not guilty. Contrary to the terms in which ground 2 is expressed, her Honour did not make findings of fact in relation to the unsuccessful counts. There is no explicit statement in the Remarks to indicate that the judge took these unproved allegations into account as informing the gravity of the overall course of offending. Of course, no indicative sentence was nominated in respect of any of them. 2. For her Honour to have taken into account the matters alleged in the three unsuccessful charges would have been an obvious and egregious error. Circumstances that tend to aggravate the seriousness of a course of offending cannot be considered unless proved beyond reasonable doubt. Allegations in respect of which not guilty verdicts have been returned, of course, cannot add to the gravity of the matters for which sentence is to be passed. The making of a fundamental error of sentencing in this respect is not to be implied in the absence of a clear indication in the Remarks that that is how the unproved allegations were misused. There is no such indication. There is no basis for imputing error and ground 1 must be rejected. 3. All of that said, we would point out that the recitation in remarks on sentence of detailed allegations that underly counts of which an offender has been acquitted is a highly undesirable practice. It could only serve a useful purpose in a case where the jury's dismissal of some charges might be relevant to inferring the limits of their findings of fact relevant to the guilty verdicts. It served no purpose in the present case. Ground 2 – no finding of reduced moral culpability for mental disorder 1. In the sentence proceedings the applicant contended that at the time of offending he suffered from Post Traumatic Stress Disorder (PTSD) and Alcohol Use Disorder and that those mental conditions contributed to "poor judgment at the time" and reduced his moral culpability. 2. In his evidence in the trial the applicant had described exposure, while working as a police officer, to incidents that were capable of causing psychological trauma. In February 2018 he attended a fatal motor vehicle accident in which a 26-year-old female driver suffered "gruesome" injuries. In March 2018 the applicant was called to an accident on a farm where a log had crushed a workman. The applicant conducted cardio pulmonary resuscitation before handing over to ambulance officers, who were unable to keep the man alive. On 6 April 2018 the applicant attended a suicide by hanging. In September 2019 the applicant was stabbed with a syringe in the course of arresting a male who had earlier threatened pharmacy staff with the syringe, containing blood. The applicant had to undergo blood testing for six months to confirm that he had not become infected. 3. In late 2019, as a volunteer with the Rural Fire Service (RFS), the applicant was involved in the rescue of an elderly couple from a house that was surrounded by a bushfire and that was about to be engulfed in flames. Not long after that he had to assist an anthropologist to recover the remains of two people who had died when their house was destroyed by fire. On 9 February 2020, again as an RFS volunteer, the applicant was required to swim through floodwaters to attach a winch line for recovery of a vehicle in which a single occupant was trapped and in danger. On 17 June 2020 the applicant attended house were a two year old boy had died, in circumstances of great distress to the boy's twin sister. That incident is referred to in subsequent medical reports as having occurred in May 2020 but the date of 17 June was taken from a police database. 4. An inspector in the Richmond Local Area command monitored reports of the applicant's exposure to these events as they occurred. From about early 2019 through to September 2020 the inspector intermittently sent emails to the applicant warning that he was at risk of developing mental health difficulties and encouraging him to seek help as needed. 5. On Monday 14 September 2020 the applicant sought leave on medical grounds. That was four days after asking the complainant's mother to give false information to police, at a time when the applicant knew another officer had the complainant's phone. Leave was granted. On 15 September 2020 police attended the applicant's home and informed him that he was under investigation. Later in the same week the applicant attended his general practitioner at Bonalbo complaining of "recently feeling low, sleeping poorly, not concentrating, hot and cold flushes, teary at times, some work-related stressful events". On 29 October 2020 the general practitioner referred him to Dr M Whittington, psychiatrist. 6. The applicant gave Dr Whittington a history of exposure to confronting situations, substantially as summarised above, and complained of "regular nightmares of disturbing and traumatic events". He also described working very long days, of up to 16 hours, for weeks on end. In a report of 10 November 2020, which was tendered in the sentence proceedings, Dr Whittington diagnosed PTSD with "a very significant component of 'burnout' to his presentation". The doctor referred to excessive drinking of up to 15 standard drinks in one night. No timeframe for the onset of PTSD symptoms or of alcohol abuse was nominated in the report and the doctor said nothing about the offending, of which he appears not to have been informed. 7. There was also tendered on behalf of the applicant an opinion of Dr Alice Neale, psychiatrist dated 1 December 2020. Her report was addressed to an officer of the workers compensation insurer who was handling a claim in respect of the applicant. Dr Neale also diagnosed PTSD, which in her opinion had "developed […] during the course of his duties as a police officer", in particular over the preceding 12 to 18 months. With respect to alcohol abuse the doctor recorded that "prior to going off work" the applicant had been consuming 6 to 7 standard drinks per night. There is no indication in Dr Neale's report that she was aware of the offending conduct and she expressed no opinion about diminished judgment with respect to conduct of that type. 8. A report of John Kotroni, psychologist, dated 8 February 2021 was tendered. He confirmed the diagnosis of PTSD, which he said was "a direct result of over years of accumulated trauma from front line policing". Mr Kotroni was aware of the charges that the applicant then faced but did not express any opinion about the date of onset of the PTSD or about any causal relationship between the condition and the offending. 9. The applicant obtained and tendered on sentence a medicolegal psychiatric report from Dr Gerald Chew, psychiatrist, dated 17 September 2023. Dr Chew had the history of the applicant's exposure to traumatic events. He was aware of the offending of which the applicant had, by the date of the report, been convicted. Dr Chew reviewed the opinions of Dr Whittington, Dr Neale and Mr Kotroni. He was informed by the applicant that "at the time of the offending he was drinking daily 12 cans of Canadian Club a night". The relevant conclusions in his report were as follows: [The applicant] has a well-documented diagnosis of PTSD as a result of his service with the NSW Police. It is likely that at the time of the offending he was suffering from PTSD and also abusing alcohol. I think that there is a link between his diagnosis and the offending behaviour. In particular his negative mental state at the time from untreated PTSD and his alcohol use both contributed to his poor judgment at the time. 1. Dr Chew diagnosed the applicant as having suffered Alcohol Use Disorder, which he said was in remission at the time of the report. In oral evidence in the sentence proceedings he gave the following answers: I think it's quite clear that he has a diagnosis of PTSD and the, the symptom clusters, there are a number of significant clusters which I think would have affected his thinking and emotions and, therefore, potentially behaviour at the time and these are in the realm of negative affect and also in the realm of alterations and arousal and reactivity. So, so typically with PTSD, and certainly in [the applicant's] case, I think he had a, a particularly sort of negative view about, about the world, a feeling of - a bit of a feeling of sort of detachment from, I guess from normality and, and that's, and that's a common symptom in PTSD, and associated also commonly with this type of emotional state can be some reckless and self-destructive behaviour and in my view, this type of behaviour that, that he exhibited likely fits into that sort of category, and that's not in the diagnostic criteria of PTSD. 1. The sentencing judge's findings from the above evidence regarding mental disorders and any causal relationship to the offending was follows: There are discrepancies in the various reports as to the quantity of alcohol the offender was consuming at various times and for just how long he had been experiencing symptoms of post-traumatic stress disorder, together with the descriptions of his childhood. Without evidence from him, those matters cannot be resolved, but the discrepancies cast doubt upon the weight to be given to the various reports. Dr Chew in his report suggests that there is a causal link between the offender's post-traumatic stress disorder and excessive consumption of alcohol, and his offending behaviour. Dr Chew's report is very much based on the history given to him by the offender which I find was not necessarily accurate. For example, the offender did not give Dr Chew an accurate timeline of offending and then going off on sick leave after becoming aware that the victim's phone had been seized by police. Another example of an inaccuracy is that one of the incidents said to give rise to the symptoms of post-traumatic stress disorder occurred after the offender had commenced sexually assaulting this young victim. This offending occurred over a three month period, whilst the offender was actively engaged in the duties of a police officer. There is no suggestion at any time during the course of his employment that his judgment was impaired as a result of his symptoms of post-traumatic stress disorder or excessive consumption of alcohol. There is no suggestion that at the time he committed these offences he was, for example, under the influence of alcohol. Not that that would have been a mitigating factor in any event. 1. In order to sustain ground 2 the applicant would have to demonstrate that the above findings were not open to her Honour and that, instead, the evidence was all one way to establish that the onset of the applicant's PTSD had occurred at or prior to the time of the offending and that the symptoms of the disorder contributed to his conduct in a manner and degree that reduced his moral culpability. In our view her Honour was not bound to make such findings on the evidence before her. It was not all one way. 2. First, although it was undisputed that the applicant had been exposed to traumatising experiences, the date by which he had become affected by diagnosable PTSD was far from clear. The first diagnosis was that of Dr Whittington in his report of 10 November 2020. There is no compelling medical opinion that the disorder and its effects must have commenced before the first of the offences (pre-10 May 2020) or even before the last of them (30 August 2020). The conflicting evidence about alcohol consumption similarly did not compel a conclusion that the applicant had been affected by an alcohol abuse disorder (or for that matter PTSD) at the time of any of the offending. 3. Secondly, as regards causative effect, only Dr Chew expressed an opinion. Even he limited himself to describing what is common with PTSD, namely, reckless and self-destructive behaviour. Her Honour had no evidence from the applicant himself claiming to have suffered PTSD symptoms, or effects upon his judgment and conduct, at the respective dates of the offences. 4. Thirdly, as against the rather faint opinion on causation expressed by Dr Chew, her Honour had positive evidence that the applicant was capably performing his police duties throughout the charge period, that the offending was not impulsive but appeared to have been, to a degree, planned and that there was no suggestion that he was affected by alcohol at the time of the offending. 5. Ground 2 must be rejected. Ground 3 – manifestly excessive aggregate sentence 1. The considerable gravity of each offence is self-evident from the above summary of the facts. The learned sentencing judge took into account that the applicant exploited a vulnerable young victim who had mental health problems arising from bullying by her peers. The applicant manipulated her mother to bring her to him for counselling. The applicant is of prior good character and in other respects has served well as a police officer but he misused his position to gain access to this young girl. All of the offending constituted an appalling breach of the applicant's sworn duty to uphold the law and to protect the community, in particular the complainant. 2. The applicant's subjective circumstances as found by her Honour include that he had a difficult childhood, with some degree of physical and emotional abuse by his parents. He left home at 15. The applicant had been in a number of relationships with members of the opposite sex prior to this offending, including one relationship that ended in circumstances that had an adverse effect on his mental health. The applicant's partner at the time of the offending remained supportive of him when he was sentenced. She was – and no doubt still is – under particular stress as a result of the applicant's incarceration, because their child was born prematurely in 2022 and is developmentally delayed. That would be difficult enough for the couple to manage together, let alone for the mother of the child to manage as a single parent. 3. The applicant continued to deny his offending in the sentence proceedings and falsely maintained that he met the complainant on Tinder. Her Honour did not accept that he was remorseful but assessed his prospects of rehabilitation as excellent and found it highly unlikely that he would offend in the same way again. The learned judge accepted that the psychological harm sustained by the complainant was "no greater than that of all victims of this type of crime" and did not treat the harm to her as a factor of aggravation. 4. Taking into account all objective and subjective factors we agree with the indicative sentences nominated by her Honour. However, we consider that the aggregate sentence is manifestly excessive for the totality of the offending. Her Honour expressly stated that "a high degree of accumulation" was warranted. In our view, there is implicit in the outcome an excessive accumulation. Aside from the public justice offence in count 11, there was a single complainant and all of the physical sexual offending occurred in three events spread over four months. The aggregate term of 15 years, with a non-parole period of 9 years and 9 months, is unreasonable and plainly unjust. Ground 3 is upheld. In resentencing the Court adopts the same indicative sentences as nominated by her Honour. Orders 1. For these reasons the orders of the Court are as follows: 1. Grant leave to the applicant to appeal against the sentence passed by English DCJ on 16 February 2024. 2. Allow the appeal and quash the aggregate sentence passed on 16 February 24. 3. In lieu thereof sentence the applicant to an aggregate term of imprisonment of 11 years commencing on 16 June 2023 and expiring on 15 June 2034 with a non-parole period of 7 years and 2 months expiring on 15 August 2030. 4. The applicant will first be eligible for release to parole on 15 August 2030. ********** 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: 20 December 2024