New South Wales Court of Criminal Appeal CITATION : Regina v Barry William John Rodgers [1999] NSWCCA 260 FILE NUMBER(S) : CCA 60090 of 1998 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 6 August 1999 REGINA PARTIES : v BARRY WILLIAM JOHN RODGERS JUDGMENT OF : Levine J at 1; Carruthers AJ at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0552 LOWER COURT JUDICIAL OFFICER : Acting Judge Nash R D Ellis (Crown) COUNSEL : P M Skinner (Appellant) S E O'Connor (Crown) SOLICITORS : T A Murphy (Appellant) CATCHWORDS : Criminal Law - indecent assault - ss 61D(1), 61E(1) & 81 Crimes Act 1900 (NSW) - leave to appeal granted - appeal allowed - resentenced ACTS CITED : Crimes Act 1900 (NSW) DECISION : See paragraph 22 IN THE COURT OF CRIMINAL APPEAL 60090/98 LEVINE J CARRUTHERS AJ FRIDAY 6 AUGUST 1999 REGINA v BARRY WILLIAM JOHN RODGERS JUDGMENT 1 LEVINE J: The applicant applies for leave to appeal against the sentences imposed upon him by his Honour Acting Judge Nash in the Sydney District Court on 19 February 1998. 2 The application had come on for hearing in this Court constituted by two other judges on 11 November last year. On that occasion the applicant appeared unrepresented as he had apparently been refused legal aid. It appears that as a result of some observations made in the written submissions by the Crown at that time, issues were perceived to arise that warranted the applicant having the benefit of legal representation, thus the delay in the determination of the application. The applicant has had the benefit of Mr Skinner's appearance before this Court today. 3 The applicant was sentenced in respect of eleven counts of sexual offences committed between 1 January 1974 and 21 July 1989. Five of the counts being counts one, two, three, four and ten were brought under the then s 81 of the Crimes Act. Counts five, seven, nine and eleven were brought under s 61 D(1). Counts six and eight were brought under s 61 E(1). 4 At the time of sentence the applicant sought to have the sentencing judge take into account pursuant to s 21 of the Criminal Procedure Act a further eleven offences of a similar nature committed on four of the same victims, being six offences under s 81 and five offences under s 61 E which were encompassed by the same time period of the offences charged. 5 In respect of counts one, two, three and four, six, eight and ten the applicant was sentenced to a fixed term of penal servitude of two years to commence on 22 April 1997. In respect of counts five, seven and nine the applicant was sentenced to a fixed and concurrent term of penal servitude of five years. In relation to count eleven the applicant was sentenced to a minimum and concurrent term of seven years and six months and an additional term of two years and six months in respect of which count the matters in the Form 2 were taken account and in respect of which the overall sentence of ten years constitutes the maximum applicable for the substantive offence. 6 The applicant who is now aged sixty-three had prior convictions in New Zealand in 1962, 1965 and 1996 for various offences of indecent assault. I do not propose to go into the facts to any greater extent than involves the recitation of the sentencing judge's remarks: "On thirteen occasions you touched and fondled the penises of various victim in homes, at the Speedway and on camps. On seven occasions you sucked the victims' penises. On one occasion you put your penis between a victim's legs just below his anus and thrust your penis backwards and forwards while your hand was on the boy's penis. On the last occasion you touched, fondled and sucked the victim's penis and attempted to put his head towards your erect penis". 7 It appears that a feature of the history of these matters, and one identified as an aggravating feature by the sentencing judge, was that except for the offence committed in 1974 the applicant has committed offences after absconding on bail and did not appear in respect of that 1974 offence on 24th July 1974. In respect of the offences that occurred in the early 1980's, it appears as I understand it he was in a somewhat similar position relating to offences committed in New Zealand for which he was sentenced ultimately in 1996 having absconded from this country and returned to his native land. 8 The ages of the victims ranged between at least six and twelve. There were six in number, two of whom were brothers. At the relevant time the applicant was aged between thirty-seven and fifty-one years and at the time of sentence he was sixty-one. His Honour remarked upon the relationship of trust which existed between the applicant and his victims who were in his care and control at the relevant times, generally there placed by their parents and often in their homes, sometimes in the applicant's home and on other occasions on what his Honour described as what should be "regarded as very enjoyable church camps". 9 The overall gravity of the offences is reflected in his Honour's understanding of the maximum sentences applicable. His Honour specifically remarked upon, to the credit of the applicant, his conduct in relation to the person said by the applicant to be five but now understood really to have been six, to the extent that the applicant volunteered information in relation to that boy. 10 His Honour noted the applicant's antecedents and convictions in New Zealand. His Honour took into account the pleas of guilty insofar as the expense of trials was concerned and the trauma for the victims in participating in them was obviated. His Honour expressed doubts as to the remorse the applicant said he felt, but hoped that such as it was, if it was felt upon his release, he would require psychological and psychiatric counselling. His Honour referred to the applicant's age. His Honour gave "anxious consideration" as to the total appropriate overall sentence in respect of the matters. 11 His Honour came to the view that had the applicant pleaded not guilty and been convicted, an appropriate total sentence would have been in the order of twelve to thirteen years penal servitude, but taking into account the plea his Honour arrived at the sentence, reflecting his Honour's view of totality, of the ten years to which I have referred. His Honour made a specific finding that there was no anal intercourse. 12 As to special circumstances his Honour came to the view that the usual period would be sufficient for the purposes of continuing rehabilitative attention, but otherwise declined to make any special allowance therefor. As I have said in respect of the eleventh count which brought about the effect of the imposition of the maximum penalty, his Honour took into account the eleven other matters. 13 By reason of the progress of this matter through the appellate system, the applicant now relies on the position taken by the Crown in its written submissions first lodged to the effect that even allowing for the application of the totality principle it might be argued that it should not result in a maximum sentence which is reserved for the worst category of case. His Honour clearly did not find the applicant's conduct to constitute such a case. There are features which obviously take it below the worst category. The applicant readily admitted his guilt, he confessed to an offence on a victim where there was no other evidence and there was no anal intercourse. 14 One issue that has been ventilated, but in my view need not necessarily be resolved in the disposition of this application, is the question of the operation of s 55 of the Interpretation Act. In the context of a period of time between July 1981 and June 1984 where there was an overlap between the existence of s 81 and s 61 E. 15 This problem has been referred to in the matter of Regina v Sweeney (Court of Criminal Appeal, unreported, 14 July 1998) and has been the subject of some detailed supplementary submissions on behalf of the Crown. Extraordinarily, one view of the application of that section to the history of amendments to the Crimes Act in this area could lead to the outcome that the maximum sentence for the relevant conduct was in fact four years as opposed to the five relied upon by his Honour, or from another perspective to a maximum of six years. 16 The disposition of this appeal in my view does not warrant the resolution of that interesting point, the reason being that that there is a practical vehicle in the sentence imposed for count eleven that can accommodate the consequences of intervention. I say that bearing in mind Mr Skinner's reminder that the sentence imposed for count eleven took into account several offences under s 81 and therefore several offences in respect of which the debate as to the applicable maximum was relevant. 17 There are two particular factors which persuade me that there is a basis for intervention. First is the availability of the operation of the principles in Regina v Close (1992) 65 A Crim R 55 in the context of the applicant having been in custody in New Zealand from June to April 1997. 18 It is that period of custody that is of significance in accordance with the principle to which I have referred. It not having been the subject of consideration itself leads me to the view that the ultimate penalty reflected in the sentence imposed for count eleven can be viewed as excessive and warranting intervention. 19 Further, although his Honour made reference to the applicant's age it appears that it went no further than that and that is a factor that properly could have been taken into account. Finally there is the question of special circumstances generally. His Honour made no allowance by way of additional term for special circumstances. It was open to his Honour so to do and of course having failed to do so does not necessarily mean that error is disclosed. The view I take in the circumstances of this case, its long history and notwithstanding the appalling objective factors is that the circumstances involving the requirement for further rehabilitative attention and that of the pre-existing New Zealand custody would warrant a variation in the usual ratio. 20 The applicant by reason of the criminality of his conduct is not deserving of sympathy. It was of course appalling and requires unreserved condemnation and appropriate punishment reflecting general deterrence, retribution and personal deterrence. It is important, as is well known, that subjective considerations should not be permitted to bring about any imbalance that derogates from a penalty reflecting the objective seriousness of the offences. 21 For the reasons I have stated however, I am of the view that there are bases for intervention by this Court and that leave to appeal should be granted and that the appeal be allowed in respect of the sentence imposed in respect of count eleven. A total sentence of eight years penal servitude to my mind is appropriate taking into account the factors to which I have referred. A proper consideration of totality and by reason of the special circumstances constituted by the pre-sentence custody, the age of the applicant and I add the nature of the custody he will have to undergo (until administratively if it happens, that custody is ameliorated), warrants that overall term being constituted by a minimum term of five years and six months and an additional term of two years and six months. 22 Accordingly I propose that the sentence in relation to count eleven be quashed and in substitution therefor, the appellant be sentenced to a minimum term of five years and six months to commence on 22 April 1997 and to expire on 21 October 2002. An additional term of two years and six months is to commence on 22 October 2002 and to expire 21 April 2005. The date upon which the applicant therefore would be eligible for release to parole being 21 October 2002. 23 CARRUTHERS AJ: I agree. 24 LEVINE J: The orders will be as I have proposed. *********** 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.