New South Wales Court of Criminal Appeal CITATION : R v AJC [2001] NSWCCA 388 FILE NUMBER(S) : CCA 60774/00 HEARING DATE(S) : 6/8/2001 JUDGMENT DATE : 6 August 2001 PARTIES : Regina AJC JUDGMENT OF : Dowd J at 1; Smart AJ at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0499 LOWER COURT JUDICIAL Naughton DCJ OFFICER : COUNSEL : Ms CJ Lyons- Applicant Ms EA Wilkins- Crown SOLICITORS : Mr DJ Humphreys- Applicant Mr SE O'Connor- Crown CATCHWORDS : Appeal against severity of sentence - Sexual assault - Indecent assault - Unlawful entry onto premises - Rehabilitation Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Enclosed Lands Protection Act 1901 Justices Act 1902 CASES CITED: R v GDR (1994) 35 NSWLR 376. DECISION : 1. Leave to appeal granted; 2. The appeals against the sentence of fifteen months on Count 6 commencing on 10 November 2000 imposed for an aggravated act of indecency, taking into account the Form 1 offences, is dismissed; 3. The appeal against the sentence of nine months, commencing on 10 November 2000 imposed for an aggravated act of indecency, is dismissed; 4. The appeal against the sentence of nine months, commencing on 10 February 2002 for an act of indecency is dismissed; and 5. The appeal against the sentences of sixteen months imprisonment concurrent with a non-parole period of twelve months, commencing on 10 November 2002 on each of the four charges of indecent assault, is allowed in part. I dismiss the appeal against the head sentence of sixteen months, and vary the non-parole period on each of those four sentences from twelve months to six months, commencing on 10 November 2002 and expiring on 9 May 2003. IN THE COURT OF CRIMINAL APPEAL 60774/00 DOWD J SMART AJ 6 August 2001 Regina v AJC JUDGMENT 1 DOWD J: The applicant, AJC, sought leave to appeal against the severity of sentences imposed by His Honour Norton DCJ in the Sydney District Court on 10 November 2000. The applicant pleaded guilty to seven charges relating to the sexual abuse of his daughter, whom I will call "P"; his son, "D"; and his stepdaughter, "T". Two matters were also taken into account on a Form 1, being an indecent assault against a child friend of one of his children, and a charge of unlawful entry onto premises. 2 The applicant, who was aged fifty-four years, pleaded guilty on 11 July 2000 to four counts of indecent assault against a child under sixteen years, contrary to s76 of the Crimes Act 1900 ('the Act'), such offence now having been repealed. A plea of guilty was then entered to an offence being an act of indecency, contrary to s81A of the Act, which section has also been repealed, that carrying a penalty of two years imprisonment. 3 On those counts 1-4, the applicant was sentenced to imprisonment for a term of sixteen months, commencing on 11 November 2002 and expiring on 9 March 2004, with a non-parole period of twelve months, commencing on 10 November 2002 and expiring on 9 November 2003. 4 On the offence contrary to s96 of the Act, the applicant was imprisoned for a period of nine months commencing on 10 February 2002 and expiring on 9 November 2002. 5 The applicant further pleaded guilty to two counts of aggravated acts of indecency contrary to s61O(1) of the Act, carrying a maximum penalty of five years imprisonment. On the first count, the applicant was imprisoned for a period of fifteen months, commencing on 10 November 2000 and expiring on 9 February 2002, and on the second of these two counts, he was imprisoned for a term of nine months to commence on 10 November 2000 and to expire on 9 August 2001. 6 The applicant had previous convictions in 1990 for three counts of wilful and obscene exposure. 7 The applicant was arrested on 12 August 1999, but released on bail on 16 August 1999, and remained on bail until sentenced on 10 November 2000. 8 The first offence was that between 1972 and 1976, the applicant assaulted his natural daughter, then being between the ages of three and seven years of age. The applicant would enter his daughter's room at night after she had gone to bed, took off her pyjama pants and rubbed the outside of her vagina with his hand. This action hurt the victim and made her feel uncomfortable. 9 The second charge was that during the same period, the applicant masturbated himself in the presence of his daughter, and forced her to suck his penis until he ejaculated into her mouth. 10 The third charge was that the applicant caused his daughter to strip naked and then made her put on the mother's pantyhose and to sit on the bed with her legs spread open whilst the applicant rubbed the outside of her vagina through the pantyhose. Whilst so doing, the applicant masturbated himself to ejaculation, he being naked at the time. 11 The fourth charge was that whilst carrying his daughter in a piggyback-style, the applicant reached behind his back with one hand and fondled his daughter, causing her to kick and wriggle until the applicant released her. 12 The fifth charge was that during the same period, the applicant exposed his penis to his son whilst the daughter was present, masturbated himself to ejaculation, requesting his son to rub and suck his penis whilst that was occurring. 13 The sixth and seventh charges were that between January 1998 and 31 December 1998, and between 23 November 1998 and the end of January 1999 respectively, the applicant committed an act of indecency towards his stepdaughter, she then being ten years of age and under his authority, in that he masturbated himself to ejaculation. 14 The first of the Form 1 offences was that between 1 September 1998 and 31 December 1998 at Narrabeen, the applicant committed an act of indecency towards a seven or eight-year-old female friend of his step-daughter, in that he masturbated himself to ejaculation. The other Form 1 offence was that he entered premises where his estranged step-wife and stepdaughter were living on 12 August 1999, in breach of the Enclosed Lands Protection Act 1901, he having permanently departed those premises. He scaled the balcony of the premises and entered the lounge room where his stepdaughter was. She told him to leave and he did so. 15 The applicant co-operated with police and made records of interview admitting the offence in substance. The applicant kept some adult pornographic magazines that he mixed with pictures of children. 16 The applicant entered a plea under s51A of the Justices Act 1902 to which he had pleaded before His Honour. 17 It was submitted on behalf of the applicant was that His Honour's sentencing discretion miscarried, in that His Honour failed to allow an appropriate portion between the total term of imprisonment and the effective non-parole period. 18 The sentence, as imposed, gives a proportion of thirty six out of forty months, nine-tenths being the non-parole period, and one tenth the period in respect of which the applicant is eligible for parole. 19 It was also submitted that His Honour erred in failing to give proper consideration to factors relevant to the issue of special circumstances. It is submitted that His Honour had no requirement to give reasons for fixing a proportion between the non-parole period and the total term, and it is noted that His Honour found that there were no special circumstances. The requirements of s44(2) of the Crimes (Sentencing Procedure) Act 1999 are that there is only a requirement for the Court to provide a non-parole period which is not less than three-quarters of the full term of the sentence where special circumstances are found. There is no statutory ratio, as has been decided by this Court on numerous occasions, but in particular in R v GDR (1994) 35 NSWLR 376. It is not necessary for a court to find that there are no special circumstances. There is only a requirement that special circumstances be found if that minimum requirement of three quarters of the term is displaced. 20 Section 44(1) of the Crimes (Sentencing Procedure) Act 1999 does, however, require the Court independently of s44(2), to firstly set a term of sentence; and secondly, to set a non-parole period for the sentence being the minimum term for which the offender must be kept in detention, it being remembered that there is not necessarily an automatic release from custody at the end of a non-parole period, depending on the term of that period. 21 The court is obliged in sentencing to make a determination as to a proper relationship between a head sentence and a non-parole period, if in putting the case, special circumstances should have been found. It was put that it was the applicant's first gaol sentence; that he would have to serve it in distinct, protective custody; his age; and that the accumulation of the sentences caused a disproportion between the head sentence and non-parole period and his prospects for rehabilitation. 22 In relation to rehabilitation, there was evidence before the court of treatment by Associate Professor Alex Blaszynski, which showed a degree of progress on the part of the applicant with dealing with his problems, but showed that there was a need for supervision. 23 It was also put on behalf of the applicant that the sentence was manifestly excessive, although it is conceded that a custodial sentence was warranted. In relation to the second ground as to the sentence being manifestly excessive, an examination of the whole period of offences involving his natural daughter particularly, and the other children, these offences would have had a serious effect on the children. They were committed on young and defenceless children over a lengthy period of time, with a large number of offences being involved. It is put that some of these could have been prosecuted in the Local Court. That submission makes an assumption that they would necessarily be matters that would come within the Local Court's jurisdiction in the proper exercise of discretion. I do not accept that that is the case, and I consider that these are matters properly dealt with by the District Court. 24 Notwithstanding that a discount was allowed, I consider, in the circumstances, that the accumulative sentence which can be imposed under s55 of the Crimes (Sentencing Procedure) Act 1999 was not manifestly excessive, and I consider that that ground of appeal fails. However, in relation, to the finding of there being no special circumstances, I consider that His Honour had a difficult task to determine, in light of the cumulative head sentence of some three years and four months, and in balancing the need to reflect the objective seriousness of the offences concerned and the need to have a proper period of time in fact served. 25 However, it appears to me that His Honour has erred in the sentencing discretion which he must carry out under s44(1). There was evidence that a period of supervision was necessary; that a period of rehabilitation under supervision was appropriate in the circumstances, and that I consider that in setting such a short period on parole, for which he was eligible for parole, that this totally frustrated any supervision or any rehabilitation that might have occurred, and in this respect, I consider that His Honour has erred. 26 This Court then has the difficult sentencing task of looking at the overall objective seriousness of a large number of offences, and the need for the setting of a realistic parole period. In the circumstances, I consider that the Court should not interfere with the total head sentence or with the total sentence imposed by His Honour, but it is necessary for the parole period to be extended to a period of ten months to allow some degree of supervision, inadequate though that term may be, but to extend any further than ten months into the total sentence would be to fail to reflect the seriousness of the offence by the unnecessary short period of time spent in custody. 27 Accordingly, I would propose the following orders: (a) Leave to appeal granted; (b) Dismiss the appeals against the sentence of fifteen months on Count 6 commencing on 10 November 2000 imposed for an aggravated act of indecency, taking into account the Form 1 offences; (c) Dismiss the appeal against the sentence of nine months commencing on 10 November 2000 imposed for an aggravated act of indecency; (d) Dismiss the appeal against the sentence of nine months commencing on 10 February 2002 for an act of indecency; and (e) Allow the appeal in part against the sentences of sixteen months imprisonment concurrent with a non-parole period of twelve months, commencing on 10 November 2002 on each of the four charges of indecent assault. I dismiss the appeal against the head sentence of sixteen months, and vary the non-parole period on each of those four sentences from twelve months to six months, commencing on 10 November 2002 and expiring on 9 May 2003. 28 SMART AJ: I agree with the orders proposed by Dowd J, and substantially with his reasons. This is a case where, on the evidence before the judge, there was a compelling need for supervised rehabilitation. 29 Further, there was an accumulation of sentences so that care had to be taken to ensure that in the end a suitable non-parole period resulted. It was a case in which if one had been starting afresh, one might have contemplated a longer head sentence with a significant longer non-parole period. 30 We have to do the best we can with what has been done bearing in mind that there is no cross appeal, and it is for these reasons that I have concurred with the orders proposed. 31 DOWD J: The orders will be as proposed by me. 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.