REGINA v TOTTEN [2003] NSWCCA 207

New South Wales Court of Criminal Appeal

CITATION : REGINA v TOTTEN [2003] NSWCCA 207 HEARING DATE(S) : 17/07/2003 JUDGMENT DATE : 14 August 2003

JUDGMENT OF : Sheller JA at 1; James J at 2; O'Keefe J at 62 DECISION : Appeal allowed

CATCHWORDS : Criminal law - sentence appeal - sexual offences - protective custody - special circumstances LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Burchell (1987) 34 A Crim R 148 R v Scott (2003) NSWCCA 28 CASES CITED : R v Todd (1982) 2 NSWLR 517 R v Wahabzadah (2001) NSWCCA 253 Weininger v The Queen (2003) HCA 11 PARTIES : REGINA v Graham Sherne TOTTEN FILE NUMBER(S) : CCA 60118/2003 COUNSEL : TJ Golding - Applicant D Frearson - Respondent SOLICITORS : D Humphreys - Applicant SE O'Connor - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0118 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60118/03

SHELLER JA JAMES J O'KEEFE J

Thursday 14 August 2003 REGINA v Graham Sherne TOTTEN Judgment 1 SHELLER JA: I agree with James J 2 JAMES J: Graham Sherne Totten applied for leave to appeal against sentences imposed on him in the District Court on 12 September 2002 by his Honour Judge McGuire for an offence of aggravated indecent assault, the circumstance of aggravation being that the victim was under the age of sixteen years, and an offence of sexual intercourse with a child aged between ten and sixteen years, who was under the authority of the applicant. For the first offence his Honour imposed a sentence of a fixed term of imprisonment of eighteen months commencing on 12 September 2002 and for the second offence his Honour imposed a sentence of imprisonment for five years four months, also commencing on 12 September 2002, with a non-parole period of four years. Aggravated indecent assault is an offence under s 61M of the Crimes Act for which the maximum penalty is imprisonment for seven years. Sexual intercourse with a child aged between ten and sixteen years who is under the authority of the offender is an offence under s 66C(2) of the Crimes Act for which the maximum penalty is imprisonment for ten years. 3 The objective facts of the two offences can be briefly stated. The victim of both offences, who I will refer to simply as "the victim" or "the complainant", was a girl who was born in November 1985. In about 1994 the complainant's mother began working for the applicant in a caravan hire business he conducted and the complainant's mother and the applicant became friendly. 4 On an occasion some time between January 1996 and January 1998 the complainant, who was then between ten and twelve years old, accompanied the applicant as he delivered a caravan to a customer in the course of his business. The applicant asked the complainant to move into the centre of the front bench seat of the vehicle the applicant was driving and the complainant complied. The applicant then put his hand down the front of the complainant's shirt and on to her breast. While doing this, the applicant made a lewd comment. The applicant told the complainant not to tell her mother about the incident. This incident was the subject of the first offence charged against the applicant. 5 In about November 1997 the complainant's mother entered into a sexual relationship with the applicant and in about January 1998 the applicant, the complainant's mother and the complainant began living together. 6 On an occasion at some time between 1 June 1998 and 13 November 1998, when the complainant was twelve years old, the complainant accompanied the applicant to a building which the applicant used as his business premises. The applicant told a friend of the complainant, who was with her, to go to her home and he asked the complainant to go with him into the building. When inside the building, the applicant asked the complainant to go to a room, where a number of mattresses were stored. In this room the applicant spread two mattresses on the floor and told the complainant to sit on them. The applicant removed the complainant's clothing, told her to open her legs and, when she had complied, the applicant committed cunnilingus on the complainant. After a time the applicant stopped, saying that his tongue was getting sore. The complainant dressed and the applicant took her home. This incident was the subject of the second offence charged against the applicant. 7 The complainant made a complaint to her mother about the applicant's conduct but her mother did not believe her. On 11 October 1999 the complainant reported the incidents to police. The complainant went to live with her father at her father's home. However, it was not until 14 December 2000 that police arrested and charged the applicant. After being arrested the applicant declined to be interviewed by police. On 24 August 2001 the applicant was committed for trial in the District Court. On 10 May 2002 when the applicant was arraigned in the District Court, he pleaded guilty to both offences. 8 Although a number of character witnesses gave evidence in the proceedings on sentence, there was actually little information before his Honour about the subjective circumstances of the applicant. As I have already indicated, the applicant had declined to be interviewed by police and he did not give evidence in the proceedings on sentence. In the proceedings on sentence the applicant's counsel objected, successfully, to a tender by the Crown of a pre-sentence report about the applicant. 9 In his remarks on sentence his Honour referred to the few subjective circumstances of the applicant which were disclosed by the material before his Honour. The applicant had no relevant criminal history and the sentences of imprisonment his Honour was about to impose would be the first prison sentences the applicant had served. The applicant was a person of previous good character, as testified to by the character witnesses, whose evidence his Honour accepted. The applicant had had children by two previous relationships. 10 There was admitted into evidence in the proceedings on sentence a victim impact statement prepared by a psychologist. In the victim impact statement the psychologist recorded that the complainant had described episodes of sexual abuse by the applicant against her from late 1997 to October 1999. While the abuse was taking place, the applicant had experienced significant difficulties in her personal life and at school, but, after going to live with her father and changing schools, "her circumstances have significantly improved". 11 In his remarks on sentence his Honour said that the sexual molestation of children demonstrated criminality of a high order and was aggravated when the molestation involved the breach of a relationship of trust between the victim and the offender. 12 In his remarks on sentence his Honour said that he would give credit for the utilitarian value of the applicant's pleas of guilty, even though they were belated, particularly as the complainant had been saved from having to give evidence at a trial. His Honour also said that he was prepared to infer that the applicant's pleas of guilty reflected some contrition on his part. In the absence of evidence, his Honour found it difficult to determine what the applicant's prospects of rehabilitation were. His Honour said that he had considered the question of special circumstances and could find none. 13 On this application counsel for the applicant relied on a number of specific grounds, which I will consider in turn. I will deal firstly with the grounds which I consider can fairly readily be disposed of and will then deal with what I consider to be the more substantial grounds.