R v MA [2001] NSWCCA 30

New South Wales Court of Criminal Appeal

CITATION : R v MA [2001] NSWCCA 30 FILE NUMBER(S) : CCA 60346/00; 60352/00 HEARING DATE(S) : 21 February 2001 JUDGMENT DATE : 21 February 2001

PARTIES : Regina MA JUDGMENT OF : Grove J at 28; Hulme J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0376 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : Crown: PG Berman SC Appellant: A Webb SOLICITORS : Crown: SE O'Connor Appellant: DJ Humphreys

DECISION : Appeal dismissed

- 8 - IN THE COURT OF CRIMINAL APPEAL No: 60346/00 No: 60352/00 GROVE J HULME J

Wednesday, 21 February 2001 REGINA -v- M A

JUDGMENT 1 HULME J : This applicant for leave to appeal was sentenced in respect of the following offences: 1. On or about 24 June 1988 having sexual intercourse with his stepdaughter, then aged between ten and sixteen and under his authority. The intercourse was fellatio. 2. In August 1988 committing an indecent assault upon his stepdaughter, then under sixteen and under his authority. The assault included cunnilingus but, given the charge, not involving penetration. 3. In 1989 indecently assaulting his stepdaughter, then under sixteen and under his authority. The conduct was penile contact with her vagina. 4 & 5 In June 1988 and in 1989, indecently assaulting his stepdaughter while under his authority by touching her vagina. 6. In December 1994 indecently assaulting his stepdaughter again by touching her vagina, but there is no element of the victim being under his authority in this charge. 7. In December 1997 indecently assaulting his daughter, then under the age of ten, by touching her on the vagina. 8 & 9 In June or July and in December 1997 indecently assaulting his daughter, then under ten, by touching her on the vagina. 2 The offences I have numbered 1 and 7 to 9 each carry maximum penalties of ten years' imprisonment. Offences 2 to 5 carry maximum penalties of six years' imprisonment and offence 6 carries a maximum penalty of five years' imprisonment. 3 In respect of the first of these offences, and taking into account matters 4 to 6, the applicant was sentenced to imprisonment for a fixed term of three years commencing on 6 June 2000. In respect of each of the offences 4 and 5 he was sentenced to a fixed term of twelve months' imprisonment, such sentences being concurrent with one another and with the offence numbered 1. 4 In respect of the offence I have numbered 7, the applicant was sentenced to imprisonment for a term of two years commencing on 6 June 2003, and including a non-parole period of six months. In totality the applicant was sentenced to imprisonment for five years, including non-parole periods totalling three and one-half years. 5 Judge McGuire indicated that he took into account the fact that the applicant had also been in custody "for approximately six months" prior to sentence in connection with the offences. 6 It is unnecessary for me to identify at any greater length the applicant's conduct in and about the commission of his offences. Mention should, however, be made of the fact that his stepdaughter has been blind since birth, that her mother commenced a relationship with the applicant in 1985 and married him in 1986 and that, in addition to the second victim, the applicant and his wife had two other children. The applicant and his wife separated in mid-1997. 7 The applicant has a lengthy criminal history, particularly for driving and other offences related to a problem he has had with excessive alcohol consumption. He has previously been sentenced for periodic detention, home detention, fourteen days' imprisonment for defaulting in payment of a fine and three months' imprisonment for driving with a high range PCA and for failing to appear. Those terms of imprisonment commenced on 14 September 1999. His arrest on the current charge occurred on 14 August 1999. 8 The applicant pleaded guilty when indictments reflecting the above charges were presented. Judge McGuire observed that the applicant's convictions were not inevitable; the applicant had saved his victims the need to recount the assaults upon them and that the applicant had demonstrated remorse and contrition. His Honour said the applicant was entitled to substantial consideration for his pleas. 9 His Honour recorded there was nothing remarkable in the applicant's background to explain his conduct and, while alcohol may have lowered his inhibitions, it also did not provide an explanation for his conduct. 10 There was before his Honour a victim impact statement by the first victim and an annexure by a counsellor, from which his Honour noted that this victim suffered difficulties with sexual intimacy, anger, a sense of isolation, flashbacks, a tendency to abuse drugs and alcohol as a way of blocking out memories of her abuse, and that anxiety, loss of self-esteem, depression, disassociation and avoidance of sexual intimacies, as well as substance abuse, have substantially impacted upon her life. His Honour recorded that the sexual assault counsellor had said that the ongoing nature of the symptoms indicated post-traumatic stress disorder. 11 There was no victim impact statement from the applicant's daughter, but his Honour indicated he was prepared to find her life would have been affected substantially for a continuing period. His Honour recorded that the applicant had threatened to belt and hurt her if she reported his conduct. His Honour observed that he adjusted the sentence to allow sufficient time for alcohol rehabilitation, observing that he regarded the parole period he set as sufficient for that purpose. 12 A number of matters are relied on in support of the application for leave to appeal. It is submitted: (1) That his Honour's reference to "approximately six months" pre-sentence custody understated the true situation.