New South Wales Court of Criminal Appeal CITATION : R v MBB [2001] NSWCCA 354 FILE NUMBER(S) : CCA 60600/00 HEARING DATE(S) : 8/8/2001 JUDGMENT DATE : 12 October 2001 PARTIES : Regina MBB JUDGMENT OF : Dowd J at 1; Smart AJ at 25 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1081 LOWER COURT JUDICIAL Knight DCJ OFFICER : COUNSEL : Mr S Odgers- Applicant Mr DML Woodburne- Crown SOLICITORS : DJ Humphreys- Applicant SE O'Connor- Crown CATCHWORDS : Appeal against severity of sentence - Aggravated sexual assault - Aggravated indecent assault - Seriousness of offence - Subjective factors - Rehabilitation - Youth of offender LEGISLATION CITED : Children's Criminal Proceedings Act 1987 Crimes Act 1900 CASES CITED: - DECISION : 1. Leave to appeal granted, and 2. Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60600/00 DOWD J SMART AJ 12 October 2001 Regina v MBB JUDGMENT 1 DOWD J: The applicant seeks leave to appeal against the sentence imposed by Knight DCJ on 31 August 2000, after a plea entered by the applicant to a count of aggravated sexual assault, contrary to s61J(1) of the Crimes Act 1900 ('the Act'), which offence carries a maximum penalty of twenty years imprisonment, and to a further count of aggravated indecent assault contrary to s61M(1) of the Act, which offence carries a maximum penalty of seven years imprisonment. 2 On the first count, the applicant was sentenced to four years and nine months imprisonment, to commence on the date of sentence expiring on 30 May 2005, with a non-parole period of two years and three months to expire on 30 November 2002, on certain parole terms and conditions. His Honour found that there were special circumstances to warrant the reduction of the non-parole period below three-quarters of the full sentence. 3 On the aggravated indecent assault count, the applicant was imprisoned for a fixed term of two years from the date of sentence. 4 The female victim, who was fourteen years of age, left the grounds of her school and walked to Plumpton Park. After some time, she sat at a picnic table reading and writing. She saw two people walking through the park towards the toilets. A little later a male (the applicant) came up to her and asked: "Do you have a lighter?" She replied "No". He remained in the vicinity. She remained there for a short time, then packed up her belongings and started walking across the park towards her school. She became aware that he was following her. 5 He came up to her. He was holding a knife in his hand. He said "Come with me", took hold of her hand, turned and they walked towards the toilet block. The victim asked if she could use the toilet. He agreed. She walked into the toilet and the applicant followed. When she came out the applicant was blocking her way out. She thought that he was still holding the knife at that stage. 6 The applicant forced her backwards, took her bag off her shoulder, grabbed her in a type of hug and ran his hand over her body, rubbing her on the breasts, down her back, on her buttocks and on her vagina. She kneed him in the groin and grabbed his face with her fingers. He received a scratch under his eye which bled. He became angry and again produced the knife. He then put it away and ordered her to take off her pants and threatened her. She felt frightened and believed she would be injured if she did not do what he said. She undid her jeans and pushed them down to her ankles. The applicant pulled her knickers down and rubbed her on the outside of her vagina for some time. She asked if she could go and he assented. She bent down and pulled her knickers and jeans back up. As she did so, the applicant opened and pushed down his pants. He insisted that she get down on her knees. She felt compelled to comply. He placed his erect penis in her mouth and the penis remained there for a few seconds. She withdrew her mouth and he pulled up his pants. 7 She left and walked back across the park to her school where each of her group of friends individually asked her what was wrong. One of them guessed what had happened. A little later in the afternoon, this schoolgirl and her mother went to the victim's house. She told them and then her mother what had happened. Her mother took her to the police. 8 Initially, the applicant denied any involvement in the offence and said that he was with a friend playing football at another park. The other person was interviewed and said that the applicant had been away for approximately twenty minutes to half an hour, and came back with a scratch on his face that had not been there earlier in the day. The applicant then admitted the offence. The Nature of the Hearing 9 The sentencing judge considered the applicant's then age, as he was obliged, and whether the applicant should be dealt with under Div4 Pt3 of the Children's Criminal Proceedings Act 1987, or in accordance with law. His Honour found that the nature of the offences was such that the case should be dealt with according to law. Further, the applicant had some degree of maturity, then being sixteen years of age, and the appropriate penalty was greater than the range of penalty available if the matter were dealt with in accordance with Div4 of Pt3. Subjective Factors 10 The applicant was born on 10 April 1983, and was seventeen years of age at the time of sentencing, and is now eighteen years of age. The sentencing judge took the plea of guilty into account in two ways; firstly the utilitarian value; and secondly, as evidence of contrition and remorse including saving the additional trauma of the victim having to give evidence in a Court before a judge and jury. His Honour assessed the utilitarian value of the plea as being ten per cent on that account alone, since the plea of guilty was entered by the applicant on the day fixed for trial, and therefore, very late in the proceedings in the face of a very strong Crown case. His Honour also took into account the absence of any prior offence, the evidence that the applicant had not had contact with his father for some five years, and that his mother experienced significant domestic violence within the marriage to his father, he being an alcoholic. The applicant had lived within a very unstable family unit. 11 His Honour also took into account the fact that the applicant was sixteen years of age at the time of the commission of the offence, and therefore considerations of rehabilitation must be given great weight, and should indeed outweigh matters of general and specific deterrence. His Honour said that the prime matter to be considered in sentencing was the prospect of successful rehabilitation. His Honour also took into account that there was only a two-year differential between the age of the victim and the applicant. The offence would have been more serious if the victim was of tenderer years, or if the applicant had been a mature man. His Honour also took into account that although a knife was used, no actual harm was done with the knife as such, although the victim's impact statement, which His Honour read, showed that the incident would always upset her because of her lack of permission to do the acts perpetrated. Sentences 12 In his Remarks on Sentence, His Honour adopted the opinion in the report of the Department of Juvenile Justice, that the applicant had some insight into his problems with anger that caused him to do acts which he would not otherwise do. The view expressed is that the applicant needs to remain in a situation with therapeutic intervention that specifically addresses sexual offending, and that that would require a total parole period of at least two years. His Honour adopted this recommendation and imposed conditions of parole to require appropriate supervision and treatment. His Honour directed that the imprisonment term be spent in a detention centre and stated that for the total of the utilitarian nature of the plea of guilty, the victim not having to give evidence and the applicant's contrition a discount of twenty per cent had been allowed. Grounds of Appeal 13 The applicant contended that while the offences were undoubtedly serious, they did not involve acts of violence. The act of fellatio was very short and did not involve ejaculation. No threats were made as she left. There is no doubt that the victim was very frightened and that she complied with the applicant's demand because of her fear. 14 The applicant submitted that while the plea of guilty was late, a juvenile may have greater difficulty acknowledging and accepting his guilt. The applicant was not helped by his mother and grandmother, maintaining that, essentially, he was innocent and looking to other causes (including people) to blame. Nevertheless, as the discount is given for its utilitarian value, limited weight only can be given in this case to the explanations proffered. The judge did not err in only allowing a discount of ten per cent for the plea's utilitarian value. It was a strong Crown case. 15 It was submitted that while the judge initially acknowledged that, in respect of juvenile offenders, considerations of rehabilitation "outweigh matters such as general deterrence and specific deterrence", he did not implement this principle when he determined the sentence in the present case. He said as to the offence of aggravated sexual assault: "…this is a type of offence … where I would be weakly merciful were I to adopt any course other than one of imprisonment of a lengthy custodial nature". 16 It was submitted that it may be inferred that the sentencing judge was referring to the elements of the threat of a knife and the (brief) fellatio. It was submitted that it was wrong to introduce the idea of being "weakly merciful", which is entirely focussed on matters of general and specific deterrence taking primacy over mercy to the particular offender. It was further submitted that to determine the sentence by giving primacy to those considerations directly conflicted with the correct approach and with the general observations which the sentencing judge had made earlier in his remarks. 17 The phrase "weakly merciful" was put into contemporary use in the middle of last century in respect of an inadequate sentence which was the subject of a Crown appeal. The phrase is an unhappy and emotive way of describing a sentence which an appellate court regards as inadequate. However, the applicant's submissions make too much of the judge's use of the phrase. All the judge meant to convey was that having regard to the gravity of the criminality and notwithstanding the subjective factors including rehabilitation, a substantial custodial sentence was required. 18 The applicant submitted that with a total discount of twenty per cent and a sentence of 4 years 9 months, this meant that the judge's starting point was about 6 years and that this was too high. Again, emphasis was put on the applicant's age and the desirability and primacy of rehabilitation. It was submitted that such a starting point demonstrated that too much weight had been given to general deterrence. 19 The offence of aggravated sexual assault was serious. The victim was accosted and went to the toilet to escape the applicant. When she emerged from the cubicle she was forced to submit to his indecent assault, forced to drop her pants and forced to engage in an act of fellatio. A knife was produced at critical times and the victim was terrified. She had been sitting reading and writing at a table in the park and not seeking attention. People using parks are entitled to be left alone and not subjected to the events that followed in the present case. 20 The starting point of 6 years was not too high. The sentence of 4 years 9 months was not excessive, being well within the permissible range. The non-parole period of 2 years 3 months was not excessive. It was sensible and sound, perhaps even slightly lenient. It allowed for the appellant's age of 16 and for his rehabilitation. He needs a long period of supervision on parole. The head sentence correctly marks the gravity of the offence, while the moderate non-parole period gives the applicant encouragement and assists in his rehabilitation. 21 The total discount of twenty per cent was not insufficient. As earlier mentioned, the discount of ten per cent for the utilitarian value of the late plea of guilty was not erroneous. Nor was it erroneous to allow only a further ten per cent for contrition and saving the victim having to give evidence. 22 In the present case, the judge gave careful attention to the subjective features and the need for and desirability of rehabilitation, but he was also mindful that the sentences must reflect the objective gravity of the offences. He constructed the sentences accordingly. He balanced the need for general deterrence with the need for rehabilitation. 23 The criticisms of the sentences imposed should be rejected. The sentences and the non-parole period were not manifestly excessive. 24 The orders that I would propose therefore are: 1. That leave to appeal be granted, and 2. That the appeal be dismissed. 25 SMART AJ: I agree. 26 DOWD J: The order of the Court therefore is that leave to appeal be granted and the appeal is dismissed. oOo 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.