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. (2) That the sentence imposed did not reflect a finding by his Honour that there were special circumstances. (3) The terms of the victim impact statement were calculated to lead, and led, to matters being taken into account that should not have been. (4) That the sentences imposed are manifestly excessive. 13 Between 14 August 1999, when the applicant was arrested, and 6 June 2000 when the first of the sentences imposed by Judge McGuire commenced, is a period of about nine and three-quarter months. The portion of this referable to other matters was three months, so the pre-sentence custody referable to the offences with which Judge McGuire was concerned was six and three-quarter months. This is fairly described as "approximately six months", so the first ground of appeal fails. 14 The simple answer to the second ground is that his Honour did not find special circumstances, except insofar as is implicit in his mention of the topic and providing in the cumulative sentence of two years that he imposed a non-parole period of only six months. Of course, so far as that sentence is concerned, his Honour did depart from the ratio referred to in s 44 of the Crimes (Sentencing Procedure) Act, 1999. What his Honour said was: "I have considered the question of special circumstances. I will adjust the sentence to allow sufficient time for alcohol rehabilitation. ... There are facilities within the prison system by way of counselling for alcohol problems. Further, the parole period which I will fix is sufficient to permit the prisoner to participate in any alcohol rehabilitation programme if he is genuinely motivated." 15 It may be accepted that the parole period of eighteen months allowed by the sentence is less than one-quarter of what will be the applicant's total period of custody since August 1999, but in light of the way his Honour approached the matter, namely by directing attention to what period he considered sufficient to address the applicant's alcoholism, this is of no consequence. 16 I turn to the third ground. What was tendered as the victim impact statement of the applicant's stepdaughter consisted of a one and a half page document by the victim which fairly falls within that description and a five and a half page annexure by a sexual assault counsellor to the victim, which concluded with the impertinence: "It is recommended that the findings of this report be considered seriously in the sentencing of Mr Adler and in any consequent claims made by (the stepdaughter) for criminal compensation." 17 Quite apart from the obvious partisanship apparent in the annexure, it refers to conduct of the applicant which, if it occurred, went well outside the incidents, the subject of charges against him. It is a reasonable inference that the impact on the victim of which the document speaks was, at least in part, the result of these other matters. 18 In practical terms this was probably impossible to avoid. Similar comments, albeit because of its less detailed and partisan drafting, with less force, may be made in relation to the victim impact statement itself. 19 This Court in Regina v Bakewell (unreported, CCA, 27 June 1996) drew attention to the problems created when such material, going well outside the circumstances and consequences of the offences charged, is placed before a court. However, if there was to be any victim impact statement tendered in the case it was, as I have indicated, probably inevitable that in its definition of the impact on the victim had to embrace the consequences of these further matters. 20 Having regard to the terms of s 30 of the Crimes (Sentencing Procedure) Act, it is by no means self-evident that the annexure by the counsellor should have been included. Certainly, having regard to the terms in which the draft document is drafted, it should not have been, and it is apparent that his Honour had regard to the terms of the annexure. The matters to which I have referred earlier in these reasons make that clear. 21 That said, it is appropriate to consider the consequences of this conclusion after I have dealt with the fourth topic urged in support of the application, namely that the sentence is manifestly excessive. 22 An appropriate starting-off point in any consideration of this ground are the maximum penalties prescribed. I have set these out. By comparison with merely the ten year periods prescribed for the offences for which the sentences of three or four, implicitly about three and a half years in the case of one victim and two years in the case of the other, were imposed, these sentences are by no means high. It must be recognised that against each victim there was more than one offence, each of which rendered him liable to punishment, and more than one period of offending. In no sense can his offending against either victim be regarded as but one occasion of lapse. 23 That proposition becomes of more weight once one gives recognition to the fact of two victims and the entirely different periods - one in 1988-89 and the other in 1994 and 1997 - when he offended against them. It was clearly a case where accumulation of the sentences imposed in respect of the different victims should occur. 24 It was submitted that having regard to an appropriate allowance for the applicant's plea one must infer that his Honour thought that sentence, but for the plea, should have been something of the order of twenty-five percent higher than that actually imposed. 25 Reference was made to the guideline judgment in Regina v Thompson . Of course that decision was not then in existence but it may reasonably be anticipated that his Honour, an experienced sentencing judge, allowed a discount along the lines of the range envisaged in Thompson's case. However, I am by no means persuaded that the circumstances of this case merited anything like a twenty-five percent discount for the applicant's plea. Something closer to the bottom of the range referred to in Thompson's case would have seemed to me more appropriate. 26 The conclusion at which I have arrived is that the sentences were by no means excessive. Indeed, even though I think in some respects the sentencing process miscarried because of the terms of the annexure to the victim impact statement, I would not interfere. Section 6(3) of the Criminal Appeal Act provides: "On an appeal under s 5(1) against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal." 27 In my view, when regard is had to the applicant's criminality, no lesser sentence than he received is appropriate. Given the magnitude of the sentences I would grant leave to appeal but I would dismiss the appeal. 28 GROVE J : I agree with the orders proposed by Hulme J. Those orders therefore will be the orders of the Court. 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.