R v JS [2000] NSWCCA 38

New South Wales Court of Criminal Appeal

CITATION : R v JS [2000] NSWCCA 38 FILE NUMBER(S) : CCA 60090/99 HEARING DATE(S) : Friday 25 February 2000 JUDGMENT DATE : 25 February 2000

PARTIES : JS (applicant) Regina (respondent) JUDGMENT OF : Hidden J at 1; Carruthers AJ at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0032 LOWER COURT JUDICIAL Nader DCJ OFFICER :

COUNSEL : C B Craigie (applicant) P Hock (Crown) SOLICITORS : Legal Aid Commission (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - Sentence - whether manifestly excessive LEGISLATION CITED : Crimes Act 1900 DECISION : Leave to appeal granted. Appeal allowed. Sentence reduced.

IN THE COURT OF CRIMINAL APPEAL 60090 of 1999

HIDDEN J CARRUTHERS AJ

Friday 25 February 2000 Regina v JS

Judgment

1 HIDDEN J: The applicant, whom I shall refer to as JS, pleaded guilty before Nader DCJ in the District Court on two counts of aggravated indecent assault under s61M(1) of the Crimes Act 1900 and asked his Honour to take into account on a form 1 a further similar offence. 2 On those two counts, and taking that matter into account, his Honour sentenced the applicant to concurrent terms of three years imprisonment, each comprising a minimum term of eighteen months to commence on the date when the sentence was passed, 2 March 1999, and an additional term of eighteen months. 3 The applicant seeks leave to appeal against those sentences. 4 There is no need to elaborate upon the facts. The victim of the offence was the applicant's thirteen year-old stepdaughter. The two offences in the indictment occurred on the same day, 28 May 1996. On each occasion the applicant and the victim were engaged in what might be described as "a friendly wrestle", in the course of which the applicant seized the victim's breasts and touched her vaginal area on the outside of her clothing. 5 The matter the subject of the form 1 occurred on 12 June 1996. On that occasion the applicant approached the victim in the kitchen of their home and placed his hand onto her exposed breast beneath her dressing gown. 6 It appears that these were three isolated incidents. There was no evidence that they were part of a wider pattern of abuse. Two days after the latter offence the applicant was served with an interim apprehended domestic violence order and he left the matrimonial home. 7 The applicant is now fifty-three years old. He has no criminal record and has an entirely creditable background. The evidence before his Honour was that he had been an excellent worker and that, putting aside these offences, he had otherwise been a good husband and father to his wife and to his four step-children, including the complainant, of that union. 8 His Honour had regard to all this material. His Honour acknowledged the value of the applicant's pleas of guilty and noted the likelihood that he might require protective custody during part, at least, of his sentence. In the light of all that material, his Honour found special circumstances so as to extend what would otherwise have been the usual additional term. 9 The thrust of this application is that the effective sentence of three years is manifestly excessive. To that end Mr Craigie, who appears for the applicant, has produced Judicial Commission statistics and these have been supplemented this morning by the Crown prosecutor, who has produced somewhat updated statistics. I need hardly repeat the caution with which those figures must be approached. 10 When one examines those figures factoring in all the variables which apply to this applicant, the sample becomes so small as to be of no use. But when one looks, however, at the figures for all offenders, what they show is that a sentence of three years for this class of offence is in the upper range, although by no means at the top of it. I should add that, in any event, that is the experience of the Court of the pattern of sentencing in matters such as this. 11 In the somewhat unusual circumstances of this case, it just does not appear to me that a sentence of that order was called for. I say that when one looks at the nature of the indecent conduct, the fact that these were three incidents standing alone and were not part of a wider pattern of abuse and, of course, when one has regard also to the applicant's age and prior good character. 12 We received some further evidence this morning should we turn to the question of re-sentencing, and that material discloses that the applicant has been well behaved whilst in prison and has taken educational opportunities available to him. It also reveals that he suffered the loss of his mother in September last year. 13 In my view the sentences passed by the learned sentencing judge should be quashed and, in lieu, on each count, and taking into account the matter on the form 1, the applicant should be sentenced to imprisonment for two years, comprising a minimum term of twelve months and an additional term of twelve months. 14 CARRUTHERS AJ: I agree. 15 HIDDEN J: Formal orders of the Court are: leave to appeal is granted. The appeal is allowed. The sentences passed in the District Court are quashed. In lieu, the applicant is sentenced as follows: On each count in the indictment, and taking into account the matter on the form 1, he is sentenced to concurrent terms of imprisonment of two years, comprising a minimum term of twelve months to commence on 2 March 1999 and to expire on 1 March 2000, and an additional term of twelve months. We direct the applicant's release at the expiration of the minimum term. **********