New South Wales Court of Criminal Appeal CITATION : Regina v ICC [2002] NSWCCA 119 FILE NUMBER(S) : CCA 60753/01 HEARING DATE(S) : 28 March 2002 JUDGMENT DATE : 28 March 2002 PARTIES : Regina v ICC JUDGMENT OF : Studdert J at 1,28; Smart AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 1/11/0495 LOWER COURT JUDICIAL R Woods ADCJ OFFICER : COUNSEL : (A) G L Halsall (R) D M L Woodburne SOLICITORS : (A) Low and Associates (R) S E O'Connor CATCHWORDS : Sentences for serious sexual offences not excessive LEGISLATION CITED : Nil CASES CITED: Nil DECISION : Leave to appeal against sentence granted. Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60753/01 STUDDERT J SMART AJ Thursday 28 March 2002 REGINA v ICC JUDGMENT 1. STUDDERT J: I shall ask Mr Justice Smart to give the first judgment. 2. SMART AJ: [ICC] seeks leave to appeal against the alleged severity of concurrent sentences of imprisonment of four years, six months with a non-parole period of three years, four months and 13 days on each of two counts of aggravated sexual intercourse without consent and under authority, and a concurrent sentence of imprisonment of three years with a non-parole period of two years three months on one count of aggravated indecent assault under authority. The judge took into account on the charges of aggravated sexual assault without consent, 10 charges of aggravated indecent assault, one of aggravated indecency and one of aggravated sexual assault. The applicant pleaded guilty upon arraignment. 3. The applicant is the father of the female victim who was born on 6 September 1983. 4. Count 1. This charge of aggravated indecent assault occurred between 1 January and 31 March 1997 at the family home. As she was walking out of her parent's bedroom, after having asked her father a question, he pulled her down on to his lap. He held her around her hips and touched her breasts on the outside of her clothing. He attempted to undo the buttons on her uniform. After some time he let her go and she left the room. 5. Count 2. This charge of aggravated sexual assault occurred between 1 and 30 June 1998 and was preceded by two aggravated indecent assaults. About 7.15 am the applicant went into his daughter's room to wake her. Eventually he put his hand underneath her nightie, undid her bra and touched her on the side of the breast. He then took off her underpants and kissed her on the bottom. He next pushed her onto her back, knelt above her with his legs on either side of her legs. He removed her clothing so she was naked, then rubbed and squeezed her on her breasts. She cried due to pain. He kissed her body, slowly moving down her stomach. He forced her legs apart and kissed her vagina. After a period he wiped her vagina with a tissue. 6. Count 3. This charge of aggravated sexual assault occurred between 1 October 2000 and 14 November 2000 at the family home, and was preceded by two aggravated indecent assaults When his daughter stood up, the applicant pulled her down and caused her to hit her bottom on the wooden armrest. The applicant apologised, put his hand underneath or inside her underpants and rubbed her bottom. He then lent over and kissed her on the mouth, inserting his tongue into her mouth. She pushed his face away. He next picked her up and carried her into his bedroom, placing her on her back into his bed. He shut the bedroom door. He pulled off her top and lifted her bra above her breasts so that they were exposed. He rubbed her breasts with one hand while, with the other, he lifted her skirt up and massaged her vagina in a circular motion with his fingers on the outside of her underpants. After some time he turned her over so she was lying on her stomach. He undid her bra, pulled her underpants off and positioned her so that she was kneeling. He kissed her vagina with his mouth and tongue until the telephone rang. That caused him to stop. He denied that he inserted his tongue into her vagina and I will proceed on that basis. 7. The other charges of aggravated indecent assault involved, amongst other things, the applicant putting his hands under her clothing, undoing her bra, feeling her breasts and rubbing her bottom. 8. On another occasion he placed one of her hands on top of his penis. She could feel his erect penis through his shorts. He pushed her down on the bed so that she was lying on her back, positioned himself above her with his legs on either side, pulled his shorts down partially and masturbated himself over his underpants. He forced her to watch. He ceased masturbating himself, pulled down his underpants exposing his erect penis, wrapped her hand around his penis and forced her hand up and down, thereby masturbating his penis. He got up from the bed and left the room. A few minutes later he returned, put his hands under the sheet and rubbed her on the legs, thighs and chest. He exposed her breasts, rubbed, squeezed and kissed them. 9. Following two indecent assaults on his daughter, the applicant pulled her skirt up to her waist and then pulled her underpants down. He kissed and bit her breasts while, with his hand, he stroked and touched her vagina. She felt his mouth and tongue on her vagina, licking and sucking it. He used his finger to open her vagina lips and inserted his tongue inside. She cried and finally yelled for him to stop. He desisted. She dressed and ran from the house. He denied that he inserted his tongue. I will again proceed on the basis that the tongue was not inserted into the vagina. 10. The aggravated indecent and sexual assaults, the subject of the indictment and the Schedule (or Form 1) took place between January 1997 and November 2000. The daughter alleged in her statement that offences of similar nature had occurred since she was 11 years old and increased in frequency as she grew older. She was unable to provide specific details of these other instances. They cannot therefore be taken into account, but it can be said with some confidence that the incidents relied on were not isolated instances. 11. The applicant has no prior convictions. He was born on 17 October 1953 in China. His family moved to Macau when he was aged six or, according to another report, nine. He was employed as a clerk. He, his wife and two children migrated to Australia in 1995. Since coming to Australia he has worked in various positions as a cook for which he was trained. The longest period he spent in any one job was two years, but he always seems to have been in employment. His wife has relatives in Australia but he has none. He appears to have few friends. 12. He told the Probation and Parole officer of the serious sexual difficulty in the marriage, especially since the birth of their second child in 1987. The officer wrote that the applicant appeared depressed, lonely and pessimistic about the future. He said that he was having great difficulty sleeping and appeared to have an inadequate diet. The officer made this assessment: "[ICC] appears to be a quiet, hard working man who was regarded as a good husband and father until the onset of the offences now before the Court. He presents as shy, withdrawn and reserved and his wife said that they did not communicate at a deep level. Since leaving the family and learning that divorce proceedings have begun, the offender appears to be despairing of the future and spoke several times about ending his life. However, he expressed the belief that he could not take this step until he had paid his debts. He believes that his wife does not want any contact with him and said that he had stopped ringing the home. Whilst his wife enunciated her willingness to forgive the offender and, at some future point, make a new beginning, he appears to be unable to forgive himself". 13. Dr JM Carne, a consultant forensic psychiatrist, saw and examined the applicant on 15 October 2001 with the assistance of a Cantonese interpreter. Dr Carne had the benefit of a copy of the police brief and a copy of the Probation and Parole report. 14. The applicant admitted the offences to Dr Carne and told him that what he, the applicant, had done was wrong, that he loved his daughter very much and that he lost control of himself. He made no excuse that his behaviour with his daughter was due to the absence of a sexual relationship with his wife. The applicant spoke of the shame he felt. It was so acute that he could not bring himself to tell anyone what he had done, nor to ask for help. Only his friends at the church he attended had noticed how bad he was feeling. 15. Dr Carne has written: "[ICC's] offending behaviour, commonly described as incest, demonstrates a commonly described pattern of initiation of sexual contact with a prepubescent girl in the absence of a sexual relationship with the wife in the context of a close relationship with the daughter and transgressing morally and legally acceptable boundaries and social taboos. At the time I examined [ICC], he presented as profoundly ashamed, remorseful and contrite. As a result he had developed a significant depressive illness and made two suicide attempts". 16. Dr Carne thinks that the applicant represents a continuing high suicide risk and should receive appropriate psychiatric treatment. 17. The judge accepted that the applicant's pleas of guilty showed genuine remorse. The judge found that there were no special circumstances. 18. For counts 2 and 3, the aggravated sexual assaults, the judge used a starting point of six years. After allowing for the pleas of guilty he arrived at a sentence of four and a half years. That was a generous discount. For count 1, the aggravated indecent assault, the judge used a starting point of four years. After allowing for the plea of guilty, he arrived at the sentence of three years. As he found no special circumstances, he set the non-parole periods earlier mentioned. 19. The applicant submitted that the judge's remarks did not touch on the issue of rehabilitation. The applicant was able to rely on significant subjective features, namely his plea upon arraignment, his remorse and contrition, his lack of a criminal record, his work record, his funding of his daughter's private tuition, his desire to return to work on his release to fund his children's university education, his willingness to participate in a sexual offender's programme and seek other professional help. It was the applicant's case that, with such strong subjective features, there was a good base from which to work and, with his commitment to his family, there were reasonable prospects of rehabilitation. 20. It was further submitted that the judge erred in failing to find special circumstances as there were compelling special circumstances, namely that this was his first time in custody, he would serve his sentence in protective custody and that a prolonged period of parole supervision in combination with the applicant's participation in a sexual offender's programme and psychiatric treatment for his depression, would be most likely to prevent recidivism. 21. Dr Carne wrote that a prolonged period of parole supervision and the applicant's attendance at a sexual offender's programme, plus the appropriate psychiatric treatment and perhaps other treatment were widely accepted as most likely to prevent recidivism and to successfully treat the family trauma. I have assumed that Dr Carne thought that those principles could be applied in the present case. Rehabilitation in this kind of a case is notoriously difficult. The upshot is that the avenues suggested by Dr Carne were well worth trying. 22. The judge did not indicate whether he thought that a period of 13 and a half months on parole would be adequate for any attempted rehabilitation. That is a very short period for the rehabilitation of what appears to be an entrenched condition once the applicant is released on parole. It does not meet Dr Carne's recommendation of a prolonged period of paroled supervision in combination with the applicant's participation in a sexual offender's programme. 23. The applicant complained that the judge did not take into account that the applicant would serve his sentence in protective custody. It was further submitted that the acts of sexual intercourse relied on by the Crown were at the lower end of the range of criminality, and that even without the specific errors relied upon the sentences imposed by the judge were manifestly excessive. 24. There is no substance in the contention that the sentences were manifestly excessive. These were serious offences as were those which were to be taken into account. Furthermore, the offences the subject of the indictment and the Schedule were spread over a period of three years, 10 months. The abuse of trust by the father was of a high order. The applicant was fortunate that the judge did not make some of the sentences cumulative. 25. There is really only one question: Should longer periods on parole be fixed? The judge did not allow for the special circumstances which existed and particularly for the extended period of supervision on parole. 26. However, the need for a longer period on parole has to be balanced against the requirement of the minimum period that the applicant is required to spend in prison. I do not think that that can be fixed at less than three years, four months, 13 days. Indeed, having regard to the gravity of the offences and the period over which they extended, that period is probably too short. To achieve a longer period on parole would involve extending the sentences overall. That is not a course I would take. No lesser sentences and no lesser non-parole periods are warranted. 27. Questions of substance have been raised. I propose that leave to appeal against sentence be granted but that the appeal be dismissed. 28. STUDDERT J: I agree and the orders of the court will be those proposed by Mr Justice Smart. ********** 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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