R v CAMPBELL [2001] NSWCCA 89

New South Wales Court of Criminal Appeal

CITATION : R v CAMPBELL [2001] NSWCCA 89 FILE NUMBER(S) : CCA 60124/00 HEARING DATE(S) : 21/03/2001 JUDGMENT DATE : 23 March 2001

PARTIES : REGINA v Allan Alexander CAMPBELL JUDGMENT OF : Studdert J at 1; Barr J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0126 LOWER COURT JUDICIAL Bellear DCJ OFFICER :

COUNSEL : Crown: LMB Lamprati Applicant: RJ Button SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys

LEGISLATION CITED : Crimes Act 1900, s 66A R v Keith James Bryant, Court of Criminal Appeal, 27 June 1994, unreported R v Adrian Leonard Levi, Court of Criminal Appeal, 15 May 1997, unreported CASES CITED: R v Benjamin Cecil Page, Court of Criminal Appeal, 25 February 1994, unreported R v Terrance George Skinner, Court of Criminal Appeal, 28 October 1993, unreported R v Thomson & Anor [2000] NSWCCA 309 R v KBW, Court of Criminal Appeal, 26 August 1994, unreported DECISION : See paragraphs 31 and 32.

IN THE COURT OF CRIMINAL APPEAL 60124/00

STUDDERT J BARR J

Friday, 23 March 2001 REGINA v Allan Alexander CAMPBELL JUDGMENT

1 STUDDERT J: I agree with Barr J. 2 BARR J: Allan Alexander Campbell seeks leave to appeal against sentences imposed in the District Court. On 11 February 2000 he pleaded guilty before Bellear DCJ to four acts of sexual intercourse, five acts of indecent assault and two acts of indecency, each committed on his four year old granddaughter. All the acts of intercourse were constituted by his licking the child's vulva. The acts of indecent assault and of indecency related to the applicant fondling her genitals through her underpants and directly and getting the child to fondle his penis. All the acts were committed over a period of about five days during which the child was under the care of the applicant. 3 The child lived with her mother, who was the applicant's daughter, and her boyfriend in Orange. The applicant's marriage developed problems and he moved from Sydney, where he had been living, to his daughter's household. He began to babysit the child regularly and was left alone with her for substantial periods. All the offences took place at such times, on five days between 1 March and 10 April 1999. 4 The child complained to her mother that her sexual parts were sore, and she was in a good deal of pain, especially when cream was put on to try to soothe her. Her exterior parts were blistered. Her mother referred her to a doctor, who thought that she had herpes and suspected sexual interference. Tests were carried out which confirmed that the blisters were herpes. The child's mother spoke to the applicant about this and he asked how the child could have contracted the disease. When he was told that it must have been by contact, he remarked that he was the only one who suffered from herpes and wondered whether he might have infected the child by transfer of the virus from his lips to the child's sexual parts by medium of a face washer or in some such way. 5 The child's mother began to suspect that the applicant might be responsible and questioned the child. The applicant had told her not to tell anybody and at first her answers suggested that nothing wrong had happened but eventually she told her mother that the applicant had kissed her on the sexual parts and sometimes on the buttocks and that the applicant had done so because it was their "licking game". She said that they played the game in rooms from which they could not be observed from outside, because if they were they would get into big trouble. 6 The child's mother reported the matter to an officer of the Department of Community Services. She told the applicant that it was his choice whether he go to the police and give himself up or wait for them to come and arrest him. Faced with that choice, he went to the police station. He made full confessions in an electronically-recorded interview. So detailed was his account that fourteen charges were laid. Ultimately only the eleven were proceeded with. He asked the police to lock him up, which they did, with the result that he has remained in custody since his arrest. 7 The evidence about the child's contraction of herpes was that, without any apparent ill health she had been left in the sole care of the applicant for a time. Before long the presence of symptoms was noted by the mother, who took the child to the doctor. The doctor certified a herpes type 1 infection. The doctor certified in writing that the presence of herpes was consistent with the child's having been subject to oral sexual activity with someone who was suffering from that virus or had done so in the past. It was common ground that the applicant had cold sores at the relevant time. The acts of cunnilingus were admitted. There was no evidence of any other source of infection. However, his Honour was not satisfied that by his activities the applicant had infected the child. The contraction of the virus was therefore not a matter to be taken into account in determining the sentences. 8 The Crown submitted on appeal that his Honour's failure to be satisfied that the applicant had infected the child was wrong and that this Court should not proceed as though the finding were a proper one. This Court, however, is a court of error. Although his Honour's conclusion on this matter might be said to be surprising, I do not think that this Court is entitled to go behind it and come to a different conclusion. I think that this Court should regard the applicant as liable to be sentenced without reference to the contraction by the child of herpes. 9 Although there was no other evidence of injury, his Honour took notice, as he was entitled to, that children subjected to sexual abuse may later in life suffer psychological injuries, even long term injuries. 10 His Honour correctly observed that the offences represented a gross breach of trust, having been committed by an adult upon a defenceless child who had every need and right to put her trust in him. 11 Those two aggravating features were properly taken into account by his Honour, it seems to me. 12 The applicant was able to present a strong subjective case. He pleaded guilty at an early stage and maintained the plea throughout the proceedings. Evidence of his contrition and of the commencement of rehabilitation came from a number of sources. A letter was put before the Court that he had written to the child's mother apologising and stating that he was then undergoing psychiatric analysis in the hope of finding an answer to why he had acted as he had. There was evidence from Dr Hugh Jolly, consultant psychiatrist who prepared a report dated 31 January 2000. His Honour quoted extensively from the report and his remarks on sentence and there is no need here to say more about it than that it strongly supported the submission that the applicant was contrite and was taking steps towards rehabilitating himself. 13 The offences of sexual intercourse each attracted a maximum penalty of twenty years' imprisonment. The indecent assaults attracted a maximum of ten years' imprisonment and the two acts of indecency a maximum sentence of seven years. Fines might be imposed as well. For the first count of sexual intercourse his Honour sentenced the applicant to imprisonment for seven and a half years, comprising a minimum term of four and a half years and an additional term of three years. For each other count of sexual intercourse his Honour imposed a fixed term of four and one-half years concurrent with the minimum term of the first sentence. For each of the indecent assaults his Honour imposed a fixed term of two years concurrent with the earlier sentences. For the two acts of indecency concurrent terms each of twelve months were imposed. The total effective sentence was therefore imprisonment for seven and one-half years with a minimum term of four and one-half years. The sentences commenced on the day of the applicant's arrest, namely 11 February 2000. 14 It is submitted that the sentences are excessive in view of the facts that there was a single, short episode of criminality not involving penetration, that the applicant pleaded guilty at the earliest opportunity and that he will have to spend the whole of the custodial part of his sentence in protective custody. 15 Judicial Commission statistics of sentences imposed under s 66A Crimes Act, the section under which the four acts of cunnilingus were charged, show that the sentences are almost at the top of the general range of sentences imposed under that section. However, the section includes acts of intercourse far more serious than cunnilingus, particularly acts of penetration. It seems fair to say that the statistics lend modest support to the applicant's contentions. 16 Some indication of appropriate sentence ranges may be obtained from the results of appeals to this Court following acts of cunnilingus. In R v Keith James Bryant 27 June 1994 offences were committed on a single victim over a considerable time. There was a plea of guilty. The head sentence of four years with a non-parole period of three years was not disturbed. 17 In R v KBW 26 August 1994 there were four victims and one was assaulted over a period of four years between the ages of four and eight years. There was a plea of guilty. A head sentence of ten years with a non-parole period of six years was not disturbed. 18 In R v Benjamin Cecil Page 25 February 1994 two victims were assaulted over a period of time that it is not possible to ascertain. Both showed signs of psychological injury. There was a plea of guilty by an older offender who had no prior convictions. A head sentence of four yeas with a non-parole period of three years was not disturbed. 19 In R v Terrance George Skinner 28 October 1993 a series of very serious offences was committed upon four victims over a period of seven years. One became pregnant and had an abortion. There was penile intercourse with the natural daughter of the respondent when she was three or four years of age. Force was often used. A Crown appeal was upheld and a head sentence of ten years with a non-parole period of seven years imposed. 20 In R v Adrian Leonard Levi 15 May 1997 two victims were assaulted over the course of one month. The offender pleaded guilty and had no prior convictions. A head sentence of four years with a non-parole period of two years was not disturbed. 21 Of these cases, Skinner is of no assistance because as well as cunnilingus it concerned substantially more serious activity. 22 Although they are few, I think that the results of the remaining cases support the applicant's contention that in all the circumstances the resulting sentences were excessive. Ultimately, however, the matter becomes one of impression. 23 The applicant's early plea of guilty had great importance for the case because it made it unnecessary for the child and her mother to give evidence, something they would have found difficult and the child might have found impossible. In a practical sense the Crown case was proved out of the applicant's own mouth, principally by the full and frank confession that he immediately made to the investigating police officers. His plea and his confessions were the strongest evidence of remorse and the commencement of the process of rehabilitation and were supported by the other evidence I have summarised. 24 The third effect of the applicant's plea of guilty was the saving of the time and expense of a trial. In R v Thomson & Anor [2000] NSWCCA 309 it was stated that the proper recognition of the utilitarian value of a plea of guilty will generally result in a reduction of the sentence in the range ten percent to twenty-five percent. 25 Relying upon that authority, Mr Button, for the applicant, submitted that the applicant would have been entitled to a reduction of twenty-five percent in his sentence and that his Honour must therefore have adopted a head sentence of ten years before making the utilitarian deduction. It was then submitted, by reference to Judicial Commission statistics of sentences imposed under s 66A, that that starting point would place this case at such a point in the range of sentences that it was exceeded by only three percent of cases. Notwithstanding the seriousness of the case, it could not be said that it was so serious, having in mind the more serious forms of sexual intercourse that the section contemplates. 26 Mr Button then submitted that that result was achieved without any consideration of the other effects of the pleas of guilty, which I have summarised above, and which were substantial and merited a further substantial reduction. 27 As the Court has observed on a number of occasions, including in R v Thomson, sentencing is not a mathematical exercise. It is not possible to make precise calculations about what must have been the process of reasoning of a sentencing judge by adding up and subtracting percentages. First and last, sentencing is an intuitive process. Although I do not accept that the applicant could necessarily have expected to receive a reduction as high as twenty-five percent for the utilitarian value of his pleas of guilty, he was undoubtedly entitled to receive a realistic deduction. I think that there is force in the submission that, given the favourable features for which his Honour was bound to allow the applicant a combined deduction, the ultimate head sentence of seven and a half years shows either that his Honour commenced at too high a point before applying the deductions or gave too little consideration to the features I have summarised. 28 Accordingly, I think that the challenge to the sentences has been made good and that the sentences were excessive. 29 Evidence was received in the appeal in case the Court should decide to interfere with the sentences. The affidavit of the applicant sworn on 20 March 2001 shows that he has served the whole of his sentence so far on protection, has put himself to work and has committed himself to the continuation and completion of courses recommended to him by psychologists within the Corrections system. A report from Dr Roger Blake shows that the applicant has already completed a substantial course designed to teach participants about factors underlying their sexual behaviour and to develop an understanding of the reasons why they offend. Dr Blake considers the applicant committed to the further treatment that he needs in order to increase his limited understanding of his offences. 30 It seems to me that this evidence shows that the applicant is likely to continue for a long time to need professional counselling and assistance in order to achieve the understanding which he must have in order to ensure that he will not reoffend. An important part of that professional help will need to be given after the applicant is released from custody under the terms of his parole. I do not think that a parole period as low as twenty-five percent of a proper head sentence would be sufficient to enable him to receive the help that he needs and that society is entitled to expect that he should receive. That fact to my mind justifies the fixing of a longer parole period. 31 I would grant leave to appeal and would quash the sentences imposed for the first four counts. On each of the first four counts I would sentence the applicant to imprisonment for a period of five years, commencing on 11 February 2000 and expiring on 10 February 2005. On each sentence I would fix a non-parole period of three years expiring on 10 February 2003 and would declare the applicant eligible for release on parole on 10 February 2003. 32 I would leave the remaining sentences undisturbed. **********