New South Wales Court of Criminal Appeal CITATION : Lupton v Regina [2003] NSWCCA 200 HEARING DATE(S) : 17/7/03 JUDGMENT DATE : 20 August 2003 JUDGMENT OF : Sheller JA at 1; James J at 2; O'Keefe J at 3 DECISION : 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS : Appeal against sentence - Sexual assault - Two separate committals - Multiple counts in each committal - Complaints by victims - Voluntary disclosures by applicant - Offences committed over substantial period - Aggravation - Person in authority - Stepfather - Discount for plea of guilty - Discount for voluntary disclosure - Relationship between overall sentence and non parole period - Power of Court to impose non parole period greater than three quarters of the term of the head sentence - Special circumstances - Finding of special circumstances not mandatory, depends on all the circumstances. Crimes Act 1900 - ss 61, 66 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s 44 Criminal Appeal Act 1912 Power v The Queen (1973) 131 CLR 623 Regina v Bushby (1977) 1 NSWLR 594 CASES CITED : Regina v Cuthbert (1967) 86 W.N. (Pt 1) (NSW) 272 Regina v Simpson (2001) 53 NSWLR 704 Rex v Geddes (1936) 36 SR (NSW) 554 PARTIES : Peter Barry Lupton Regina FILE NUMBER(S) : CCA 60093/03 COUNSEL : Crown: Mr D Frearson Applicant: Mr S Corish SOLICITORS : Crown: S E O'Connor - Solicitor for Public Prosecutions Applicant: D J Humphries - Legal Aid Commission (NSW) LOWER COURT District Court JURISDICTION : LOWER COURT 00/31/0187; 99/31/0429 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : - 10 - IN THE COURT OF CRIMINAL APPEAL 60093/03 Sheller JA James J O'Keefe J 22 August 2003 REGINA v PETER BARRY LUPTON Judgment 1 SHELLER JA: I agree with O'Keefe J. 2 JAMES J: I agree with the judgment of O'Keefe J. 3 O'KEEFE J: Background 4 This is an application by Peter Barry Lupton (the applicant) for leave to appeal against sentences imposed on him in the District Court on 7 February 2002 in respect of 33 charges of sexual assault relating to his three stepdaughters committed over a period of nine years. 5 The applicant was before the court on two separate committals for sentence. The first involved 20 counts; the second 13 counts. The matters involved in the first committal for sentence resulted from complaints made by the victims. The matters involved in the second committal for sentence were a consequence of voluntary disclosures by the applicant. 6 The charges involved in the first committal for sentence were: (i) Indecent assault in circumstances of aggravation contrary to s 61M of the Crimes Act 1900 (the Act), the maximum penalty for which is imprisonment for seven years (seven matters). (ii) An act of indecency in relation to a child under the age of 16 years contrary to s 61O(1) of the Act, the maximum penalty for which is imprisonment for 5 years (five matters). (iii) Sexual intercourse with a child between 10 and 16 years of age contrary to s 66C(1) of the Act, the maximum penalty for which is imprisonment for 10 years (six matters). (iv) An act of indecency in relation to a person of the age of 16 years and above in circumstances of aggravation contrary to s 61O(1A) of the Act, the maximum penalty for which is imprisonment for 3 years (one matter). (v) Sexual intercourse without consent in circumstances of aggravation contrary to s 61J of the Act, the maximum penalty for which is imprisonment for twenty years (one matter). 7 It should be noted that two of the matters charged under s 61O(1) and the matter charged under s 61O(1A) should have been charged under s 61M(1). 8 The charges involved in the second committal for sentence were: (i) Indecent assault on a child under the age of 10 years contrary to s 61M(2) of the Act, the maximum penalty for which is imprisonment for ten years (one matter). (ii) Sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Act, the maximum penalty for which is imprisonment for twenty years (one matter). (iii) Aggravated indecent assault contrary to s 61M(1) of the Act, the maximum penalty for which is imprisonment for seven years (four matters). (iv) Sexual intercourse with a child between the ages of 10 and 16 years contrary to s 66C(2) of the Act, the maximum penalty for which is imprisonment for ten years (seven matters). 9 The offences were committed between 1 January 1990 and 1 July 1999 extending essentially throughout the whole of that period. 10 In all charges in which aggravation was involved the circumstance of aggravation consisted of the applicant being a person in authority in relation to each victim, namely, their step-father (s. 61J(2)(e)). 11 The applicant had pleaded guilty to the 20 counts included in the first committal for sentence on 21 October 1999 and confessed to the charges referred to in the second committal for sentence during the course of a programme for sex offenders on which he had entered. For the purposes of sentencing the Judge accepted that the applicant's pleas of guilty had been entered at an early time, and allowed a 20 percent discount in respect of such pleas to the matters involved in the first committal and a discount of 25 percent in respect of the matters involved in the second committal for sentence. However, the judge was unable to find and did not find that the applicant was truly remorseful or contrite. 12 The Judge sentenced the applicant to various terms of imprisonment. These ranged from a fixed term of 12 months to imprisonment for 8 years with a non-parole period of 6 years. Some of the sentences were wholly concurrent; some partially concurrent. The effect of the combined sentences is that the last sentence (that of 8 years commencing on 22 September 2003) expired on 21 September 2011, in respect of which the applicant will become eligible for parole on 21 September 2009. The first of the sentences imposed on the applicant was fixed to commence on the date on which he went into custody, namely, 22 September 2001. The cumulative effect of the various sentences is that the applicant is liable to imprisonment for a period from 22 September 2001 until 21 September 2011, i.e. a period of 10 years, with a period of 8 years before he becomes eligible for parole. The Submissions 13 In the written submissions filed on behalf of the applicant the attack made on the sentences imposed is that the sentencing judge (the Judge) erred in setting an effective non-parole period of 80 percent of the overall term and that such percentage was in any event excessive. This contention was put on the following bases: (i) It was greater than the 75 percent contemplated by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. (ii) There were special circumstances warranting a non-parole period of less of 75 percent of the overall term. It was also contended that: (a) the Judge failed to give adequate weight to, and allow a sufficient discount for, the pleas of guilty; (b) an insufficient and inadequate discount was allowed in respect of those matters which were voluntarily disclosed by the applicant; (c) a less severe sentence was warranted in law. 14 On the hearing of the application, the five grounds in support of the contention that there had been error on the part of the Judge in fixing the non-parole period were compressed into three, namely: (i) The Judge really intended to fix the non-parole period at 75 percent of the overall sentence. (ii) There were special circumstances and the Judge erred in not so finding. (iii) A less severe sentence was warranted in law. Analysis 15 In my opinion the submission that the Judge was bound to set non-parole periods the duration of which should not have exceeded three quarters of the overall sentence, misconceives the effect of Division 1 of Part 4 of the Act (ss 44 to 54). The scheme of Division 1 of Part 4 is that whilst the court is required by s 44(1)(b) to set a non-parole period for a sentence, that requirement is subject to a number of exceptions. The first is that the court may decline to set a non-parole period at all (s 45). The second is that the court may not set a non-parole period for a sentence if its term is 6 months or less (s 46). The third is that where special circumstances exist the court may fix a non-parole period that is less than three quarters of the term of the sentence. Furthermore, where a non-parole period is fixed and there are no special circumstances, it is not mandatory that the non-parole period be three quarters of the term of the head sentence. Section 44(2) provides that: "The non-parole period must not be less than three-quarters of the term of the sentence …" (Italics added) There is no prohibition on the court fixing a non-parole period that is greater than three quarters of the term of the sentence, even in a case in which it determines to fix a non-parole period. Whilst s 44(2) of the Crimes (Sentencing Procedure) Act 1999 operates to guide the discretion in a particular matter and also operates as a "hurdle to be overcome if a lower proportion than that for which the statute provides is to be determined" ( Regina v Simpson (2001) 53 NSWLR 704 at 719 para 70 per Spigelman CJ with whom Mason P, Grove J and Newman AJ agreed) "there is no hurdle for a sentencing Judge if that Judge wishes to impose a higher than statutory proportion". (id) 16 It was further argued on behalf of the applicant that the Judge had intended to fix a non-parole period that was three quarters of the term of the accumulated sentences. This submission was based on the following passage in the Remarks on Sentence: "I am not persuaded in all of the circumstances of the case that I should vary the prima facie ratio and I decline to do so." The argument was that this sentence indicates an intention on the part of the Judge to maintain, and hence order, a non-parole period of three quarters of the overall sentence. However, in my opinion, the argument is misconceived. The passage relied upon by the applicant must be read in the light of the Remarks on Sentence as a whole and, in particular, in the light of what immediately precedes the above passage and what follows it. 17 To assess the intent and meaning of the words relied on by the applicant it is necessary to examine the context in which they were made and the scheme of the relevant section of the Remarks on Sentence. The Judge had been asked to find special circumstances and in her Remarks on Sentence adverted to such request. Having done so she referred to the authorities that determine that accumulating sentences may constitute a ground for finding special circumstances. She then proceeded to find, and correctly so, that the fact that there is an accumulation of sentences does not necessarily and automatically give rise to a finding that special circumstances exist in the particular case. In determining that they did not she had regard to the nature of the offences, the tender years and virtual helplessness of the victims and the fact that the offences had occurred over the course of many years. It was against this background that the Judge made the statement referred to in paragraph 16 above. That passage was part of her statement of the conclusion that she was rejecting the request to find special circumstances. What the Judge was doing was declining to vary downwards the ratio of three quarters referred to in s 44(2) of the Act and was doing so because she was not persuaded that special circumstances existed in the case before her. 18 This conclusion is even more apparent when regard is hard to the passage that immediately follows that referred to in paragraph 15 above, namely: "His parole, if he is released as recommended at the expiration of the non-parole period, will allow for a further two years of supervision." The Judge is clearly turning her mind to the need for some supervision and confirming: (a) that she is not prepared to find special circumstances; (b) that in the circumstances of the offences committed she was fixing a non-parole period which would give an adequate period of supervision following the release of the applicant on parole. 19 In fixing the non-parole period the Judge had regard not only to the need for a period of supervision following the release of the applicant on parole, but also to the appropriate duration of such period. She thought that two years was such a period. In so doing, it is clear from the rest of the Remarks on Sentence that in fixing such a period of supervision, regard was had to the minimum period of actual incarceration called for in the light of the seriousness of the offences to which the applicant had pleaded guilty. To act in such a way is in accordance with authority. In Power v The Queen (1973) 131 CLR 623, Barwick CJ, Menzies, Stephen and Mason JJ said in relation to the parole period that: "… the Judge in fixing a non parole period, must, we believe, have regard not to the time in which the paroling authority must consider the prisoner's case but to the time for which the prisoner must remain in confinement" (at 627) 20 The decision in Regina v Simpson (supra) is to a similar effect. In that case Spigelman CJ with whom Mason P, Grove J and Newman AJ agreed, said that: "the non-parole period must itself appropriately reflect the criminality involved in the offence" (at 718 para 63). 21 This passage is clearly and accurately reflected in the Judge's Remarks on Sentence when she said in relation to the question of special circumstances: "the sentence imposed must always reflect the gravity of the crime for which it is imposed." 22 In my opinion, no error is disclosed in the passage the subject of challenge or in the process of fixing the non-parole period – on the basis that there were no special circumstances. Special Circumstances 23 It has been argued on behalf of the applicant that as he has already spent time in protective custody and is likely to do so in the future, this was a special circumstance that should operate in favour of a reduction in the parole period below that referred to in s 44(2) of the Act. However the Judge referred to that factor in her Remarks on Sentence and took it into account in fixing the head sentences. 24 The crimes to which the applicant had pleaded guilty were very serious. The theoretical maximum sentences that could have been imposed would have totalled 285 years. Some carried maximum sentences of imprisonment for twenty years. In order to be appropriate the sentences imposed should have been such as "to accord with the general moral sense of the community in relation to such a crime committed in (the) relevant circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others" (Rex v Geddes (1936) 36 SR (NSW) 554 at 555; Regina v Bushby (1977) 1 NSWLR 594 at 598; Regina v Cuthbert (1967) 86 W.N. (Pt 1) (NSW) 272 at 274). The overall sentence was, in my view, moderate by such a standard. Clearly the nature of the offences, their repetition, the absence of remorse on the part of the applicant and his conduct notwithstanding his conviction and sentencing bespoke a period of supervision following his release from prison. The period of two years selected by the Judge was in my opinion within the parameters for judgment on her part. 25 The fact that the Judge did not find special circumstances arising out of the nature and circumstances of incarceration of the applicant does not bespeak error. The mere fact that a matter or circumstance is capable of constituting special circumstances does not mean that a finding of special circumstances must be made in a particular case. Whether or not such a finding is made will depend on the facts of each particular case. 26 That the Judge declined to find special circumstances, either by reference to the nature and circumstances of possible custody of the applicant or by reference to his plea of guilty, did not in my opinion constitute error. The circumstances in which a particular applicant has been held, is being held, or may be held in the future may well vary from Correctional Centre to Correctional Centre. Furthermore, the serious nature of the offences, the fact that they were committed over a lengthy period on females who were subject to the applicant's authority and control, that he was not accepted as being truly remorseful and contrite and that he had breached his undertakings not to contact the victims or their households, were adequate justification for the Judge to decline to find special circumstances and to impose the minimum effective term of imprisonment that was imposed. 27 Not infrequently, in sentencing appeals the argument precedes as if the basis on which the court should intervene is that it has formed the view that error has occurred in the sentencing process. As I have indicated above I do not think that it did fall into error. However, as was pointed out by Spigelman CJ in Regina v Simpson (supra at 720–721 para 79) the court should not intervene unless it forms the positive opinion that some sentence other than that imposed is warranted in law and should have been passed. In the present case having regard to the various factors to which I have referred, I do not think it can be said that the requirements of s 6(3) of the Criminal Appeal Act 1912, namely that "some other sentence … is warranted in law and should have been passed" have been met. In my opinion the sentence imposed was far from excessive and this court should not interfere with it. 28 For the foregoing reasons, I would propose that leave to appeal be granted, but that the appeal be dismissed. Orders 1. Leave to appeal granted. 2. Appeal dismissed. ********** Last Modified: 11/07/2003 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.