New South Wales Court of Criminal Appeal CITATION : R v KJW [2002] NSWCCA 107 FILE NUMBER(S) : CCA 60466/01 HEARING DATE(S) : 28 March 2002 JUDGMENT DATE : 28 March 2002 PARTIES : Regina v KJW JUDGMENT OF : Studdert J at 1; Smart AJ at 34 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3253 LOWER COURT JUDICIAL Sorby DCJ OFFICER : COUNSEL : D.M. Woodburne (Crown) B.T. Stratton QC (Applicant) SOLICITORS : S.E. O'Connor (Crown) Bryan Gorman & Co (Applicant) LEGISLATION CITED : Crimes Act CASES CITED: Cameron v The Queen [2002] HCA 6 DECISION : Leave to appeal granted; appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60466/01 STUDDERT J SMART A-J Thursday 28 March 2002 REGINA v KJW Judgment 1 STUDDERT J: This is an application for leave to appeal against sentences imposed by Sorby DCJ in the District Court at Campbelltown on 19 June 2001. 2 The applicant had pleaded guilty to the commission of three offences, two of aggravated indecent assault and one of aggravated sexual assault. 3 In respect of each of the offences of aggravated indecent assault, the judge sentenced the applicant to fixed terms of imprisonment of two years to be served concurrently and to commence on 19 June 2001. For the offence of aggravated sexual assault, the judge sentenced the applicant to imprisonment for four years to commence on 19 March 2002 and to expire on 18 March 2006. Having found special circumstances, his Honour fixed a non-parole period of two years to expire on 18 March 2004. 4 The overall effect of these sentences was that the applicant was sentenced to imprisonment for four years nine months with a non-parole period of two years nine months. 5 The offences of aggravated indecent assault were in a category attracting a maximum penalty under s 61M of the Crimes Act of seven years imprisonment. The aggravated sexual assault was in a category attracting a maximum penalty under s 61J of the Crimes Act of imprisonment for twenty years. 6 Each of the victims was a stepchild of the applicant and the circumstances of aggravation arose from the applicant's position of authority over the victims and from the ages of the victims when the offences were committed. 7 The relevant facts were recorded in a document tendered by the Crown and set out in the remarks on sentence. I draw on those remarks on sentence to summarise the facts concerning these offences. 8 Addressing firstly the aggravated indecent assaults, these were committed upon the applicant's stepdaughter: "In 1992 the offender was the step-father of the person S and residing with her mother and brother M and step-brother J. S was aged eleven at the time in year 5 at school. Somewhere around October 1992 S was in bed when she was awoken by the offender stroking her forehead while standing by her bed at home. He was naked. The offender took S's right arm and placed it on his penis and moved her arm up and down so that it was stroking his penis. He did this for about five minutes and then left the room. S did not say anything to anyone at this time. Number two, in 1993 when S was twelve years old, she was sleeping in her brother M's room. The offender again naked, took S's left arm and moved it up and down along his penis. This continued for some time. The offender then left the room. S did not inform her mother about these incidents until 1994 and she received counselling." 9 The aggravated sexual assault was committed upon the applicant's stepson: "...in 1998 at Easter the offender's step son M aged twelve years at the time together with his sister and brother were staying at a holiday cabin in the Wiseman Ferry area with the offender and members of his family. At about 11 pm on Good Friday evening M was sleeping in a room with his younger brother and the offender. M was wearing underpants, shorts, black track suit pants and a shirt. He was woken by the offender who said, 'He wanted to show him something', pulled down the boy's track suit pants, shorts and underpants. The offender then placed his mouth over M's penis and commenced to suck it. He did this a number of times. M said he did not like it and the offender stopped and told him to forget that it had ever happened. 10 M told nobody about this incident until May 1999 when his mother spoke to him about another matter involving the offender and his sister. 11 In a statement tendered on behalf of the offender, he said in relationship to this later incident that he was well affected by alcohol and drugs. While this may explain his behaviour in part it did not cause it and it cannot excuse it. 12 His Honour correctly categorised these offences as "objectively very serious" and observed: "The community views such acts with abhorrence. The legislature has imposed penalties to reflect the community's attitudes." 13 The events that occurred between offences one and two, against S, and offence three, against M, are significant. S disclosed the offences against her to her mother either in December 1994 or in January 1995. There followed a period of separation of the applicant from his family and, indeed, police were contacted, but no proceedings were commenced. After a period of denial the applicant agreed to see a psychiatrist, Dr Schultz, who was consulted over a period of about twelve to eighteen months. The applicant made supervised visits to the family home and moved back into it in 1996. 14 In his remarks on sentence the judge examined the subjective features of the case. The applicant was born on 27 September 1960 so that he was nearly forty-one years of age when he came to be sentenced. He was married to the mother of the complainants and, apart from the stepchildren, there was a child of the union who was some six years younger than his stepbrother. 15 The applicant left school in 1977 after completing year 11 and the judge found he was a hard working man all his life with only a six months period of unemployment. As at the date of being sentenced, his Honour observed that the applicant was in full-time employment as a production manager, working twelve hours per day. He had no prior criminal record. 16 Evidence was given before the judge by the applicant's brother who had been providing accommodation for the applicant and who was encouraging the applicant to continue with treatment being afforded by a psychotherapist, Dr Touma. A former working associate, Ms Nemovski, gave evidence of her assessment of the applicant as a hard working and dedicated worker who had expressed his remorse and contrition to her about what he had done. 17 The judge referred to that evidence and clearly had it very much in mind. There was, it seems, a pre-trial diversion of offenders programme proposed for the applicant and it appears that he signed a treatment agreement in December 2000. Eventually, it would seem, he did not go on with that but I do not ultimately consider the failure to go on with that treatment programme as being a matter of significance. 18 The judge made findings about the applicant's efforts to undertake appropriate treatment which was favourable to the applicant and the sentence imposed is to be considered with this in mind. 19 The judge had before him a report from Dr Touma and evidence that at the time of the sentencing procedure the applicant had been undergoing treatment for his sexual problems for nearly two years. Dr Touma thought the treatment was progressing well, concluding his report which was in evidence with the following paragraphs: "On the basis of the above I believe that therapy has been very fruitful and its progress very satisfying and would encourage [KJW] if given the opportunity to continue his therapy for at least another year. At this stage, and as much as someone can be confident in knowing the other, I believe that it is highly unlikely that [KJW] re-offends and would not be overly concerned about him staying in the community with appropriate support." 20 Reports were tendered from a probation and parole officer, Ms Wojciechowski. Ms Wojciechowski also gave evidence in court and his Honour remarked that this witness impressed him as a person who had the applicant's interests clearly in perspective, and he considered she provided a realistic appraisal of the applicant's past, his treatment and his prospects. In her report, reference was made to sexual abuse that the applicant himself had experienced when a young child. Her report included the following passage: "[KJW] presents as a social[ly] isolated and emotionally needy man who, to some extent, continues to be confused about his sexual identi[t]y and remains disturbed by his history of sexual victimisation. However, he has displayed considerable and consistent efforts to address his offending behaviour and, as a result, has gained insight into his offending. Despite this, issues of attachment remain evident. Mr Warner appears receptive to continue with rehabilitation but it seems likely that a motivational style of therapy, as opposed to a confrontational approach, will continue to facilitate his responsivity. There is no denial or minimisation of his offending behaviour evident and considerable remorse and empathy for his victims is apparent. As essentially a non-fixated, intra-familial paedophile, [KJW] is within the category of the lowest risk of all sex offenders. However, his offences against both a female and a male increases his risk status. There appear to be significant 'gaps' in [KJW]'s understanding of sex offending and further prescriptive and didactic intervention would address these needs and meet the Departmental guidelines on appropriate targets for sex offender rehabilitation." 21 In the witness box the witness did give evidence to the effect that whilst familial paedophiles were at the bottom of a risk table, the fact that the applicant had offended against both a male and a female would increase his risk status. 22 Nonetheless, the judge made a favourable finding based upon the evidence of this witness and the report of Dr Touma, in concluding: "that rehabilitation prospects are positive by way of motivational therapy to prevent the offender from further offending in the future." 23 The judge indicated in his remarks on sentence that he intended to give the applicant a full discount of twenty-five percent for what ought to be described as the applicant's "willingness to facilitate the course of justice": Cameron v The Queen [2002] HCA 6. 24 Special circumstances were found in: (a) the need for the offender to have an extended period under supervision and to continue his rehabilitation; (b) the fact that this was the applicant's first experience of imprisonment with the added feature that he would be detained in special custody. 25 It has been submitted by Mr Stratton of Queen's Counsel, that whilst the applicant's behaviour has to be regarded as criminal, his problem is essentially a medical one for which treatment is required. The applicant has been seeking appropriate treatment and receiving it, and successful treatment would minimise the risk of him offending in the future. Hence, Mr Stratton has submitted, that it is in the interests of the community that the treatment be pursued sooner rather than later and since any treatment can best be addressed outside the prison system, it would not be irresponsible to substantially reduce the sentences here imposed. 26 Those considerations, of course, address one of the matters to concern a court engaged in a sentencing task, but there are others, including the need to punish for an offence and considerations of deterrence, both general and specific. 27 The first question that this Court has to address is whether or not there has been error in the sentencing procedure in the District Court. Mr Stratton submitted that the offences are at the lowest end of the scale of seriousness for offences of this type but the Crown has drawn attention to those features which were acknowledged by the judge, including the ages of the children and the abuse of a position of trust by the applicant. The offences were, to my mind, correctly categorised by the judge as "objectively very serious", and his Honour properly directed himself to the importance of deterrence in sentencing for offences such as these. 28 It is not suggested in this case that there has been any manifest error in the remarks on sentence, nor that the judge has indicated, by anything that he has said, that he failed to take some matter appropriately into account. If this Court is to interfere with this sentence, it can only be on the basis that the sentence imposed was manifestly excessive. 29 As to the interference with rehabilitation which the sentence imposed may have occasioned, the Crown has drawn attention to evidence which the judge had before him from a psychologist, Mr McElhone, to the effect that there was offence specific treatment available within the prison system, it being a moderate intensity sex offender treatment programme offered by the custody based intensive treatment programme for sexual offenders at Malabar Special Programmes Centre. 30 Moreover the Crown has pointed out that there was no evidence before the judge that detention would be destructive of the rehabilitation thus far achieved nor was there evidence that delay in resumption of treatment would make the chances of full rehabilitation harder. 31 But, as I say, the question of the applicant's rehabilitation is but one of the concerns that the sentencing judge had to address. His Honour was faced with a very difficult sentencing exercise. His remarks do not reveal any error of principle or any misunderstanding of fact. 32 Mr Stratton took the Court to some statistics concerning offences under s 61J and s 61M. To my mind these do not demonstrate that the sentences here imposed fell outside the permissible range. 33 In the result, I am not persuaded that there was any error on the part of the sentencing judge which would warrant the intervention of this Court. I, therefore, propose that leave to appeal be granted but that the appeal be dismissed. 34 SMART AJ: I agree. 35 STUDDERT J: The orders of the Court will be those that I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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