New South Wales Court of Criminal Appeal CITATION : Regina v GKW [2002] NSWCCA 130 FILE NUMBER(S) : CCA 60568/01 HEARING DATE(S) : 25 March 2002 JUDGMENT DATE : 25 March 2002 PARTIES : Regina v GKW JUDGMENT OF : Levine J at 1; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/61/0039 LOWER COURT JUDICIAL His Honour Judge Nield OFFICER : COUNSEL : Crown - P.E. Barrett Applicant - R. Toner SC SOLICITORS : Crown - S.E. O'Connor Applicant - Macedone Christie Willis LEGISLATION CITED : Crimes Act 1900 s61M(1) Dinsdale v The Queen (2000) 202 CLR 321 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 Regina v Simpson [2001] NSWCCA 534 DECISION : Application for leave granted. Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60568/01 LEVINE J CARRUTHERS AJ Monday, 25 March 2002 REGINA v G K W Judgment 1 LEVINE J: I agree, and the orders will be as his Honour has proposed. 2 CARRUTHERS AJ: The applicant seeks leave to appeal against sentences imposed upon him by his Honour Nield DCJ at Bathurst District Court on 16 August 2001. The applicant was committed for sentence by the Local Court in respect of four counts of aggravated indecent assault under s61M(1) of the Crimes Act, 1900. 3 The aggravation arose by reason of the age of the complainant, she being at the relevant time under sixteen years of age. She was the twelve year old daughter of a family friend of the applicant and his partner. The applicant himself was born on 16 December 1950. 4 In relation to the first count, and I shall give the details of this offence shortly, which was committed on 27 January 2000, his Honour imposed a fixed term of eleven months to date from 16 September 2002 and to expire on 15 August 2003. 5 In respect of the second count, which his Honour correctly, in my respectful view, considered to be the most serious of the four matters, also took place on 27 January 2000, his Honour sentenced the applicant to three years imprisonment to date from 16 August 2002 and to expire on 15 August 2005 with a non parole period of one year to dated from 16 August 2002 and to expire on 15 August 2003. 6 In relation to count three, which occurred on 9 March 2000, his Honour imposed a fixed term of one year to date from 16 July 2002 and to expire on 15 August 2003. 7 By reason of a helpful chart prepared by Mr Barrett of counsel for the Crown, it can be seen that the effect of these sentences is that the fourth count, which it is convenient to refer to first, involved a discrete sentence of eleven months. 8 Insofar as counts 1, 2 and 3 are concerned, the concurrent sentences resulted in an aggregate thirteen months imprisonment consisting of eleven months for count 1, a minimum term of twelve months for count 2 and thirteen months for count 3. The additional term of two years on count 2, of course, stands alone as from 16 August 2003. 9 This was the approach which his Honour ultimately took in order (in his view) to accommodate the application of the principles laid down by the High Court in Pearce v The Queen (1998) 194 CLR 610. 10 As to the objective circumstances which his Honour found to be serious acts of indecent misconduct which were deliberate and intentional, his Honour specifically noted that he was satisfied, to the requisite standard, that count 3 was planned. 11 On the other hand, he merely expressed the view that counts 1 and 2 "may have been planned" but that count 4 was "probably opportunistic". 12 Nevertheless, to use his Honour's expression, the indecent assaults were a breach of trust and debased and degraded the complainant, who was of tender years. His Honour said: "They were committed by an adult, a man much older than the complainant's father, for his own sexual gratification without care or concern for the complainant's wellbeing or sexual development. They have caused enormous emotional harm to the complainant. They demand appropriate salutary punishment." 13 It is unfortunately necessary to make some brief reference to the specific acts relied upon by the Crown as constituting the subject offences and I shall in that regard rely upon what his Honour said. 14 As to count 1, on 27 January 2000, the applicant fondled the complainant's breasts. As to count 2, on the same day, shortly after committing the first offence, the applicant undressed the complainant, undressed himself and then, with the complainant sitting on a bed, he opened her legs, knelt in front of her between her open legs and fondled her external genitalia. 15 As to count 3, on 9 March 2000, the applicant rubbed the complainant's breasts, kissed her on the mouth and inserted his tongue into her mouth. As to the fourth count, on a day about three weeks after 9 March 2000 but before 1 April 2000, the applicant placed his hands on the complainant's breasts. 16 His Honour referred in greater detail to the offences which he had earlier described briefly and I do not find it necessary for present purposes to refer to that detail. 17 If necessary, the detail is, of course, to be found in his Honour's judgment. 18 His Honour carefully assessed the various subjective factors. He took into account the applicant's age and he commented: "How it could be that a man of the applicant's age might think that a girl of the complainant's age might be sexually interested in him staggers me." 19 His Honour referred to the applicant's background which was referred to in the Pre-sentence Report and the psychologist's report before his Honour. In that regard he found that there was nothing relevant in the applicant's background to shed light on his later commission of the subject offences. He then referred to the applicant's upbringing and again found nothing relevant as to the commission of the subject offences. The same may be said about the limited education of the applicant. 20 As to the applicant's employment, his Honour saw nothing of relevance there, although of course, generally speaking, the applicant has always been in regular employment or self employed. As to his marital situation, the applicant was living in a de facto relationship, of which two children were born, a daughter aged seven and a son aged two years, who, sadly, suffers from Downs Syndrome. 21 As to the applicant's health, his Honour noted that he suffers from asthma, which is controlled by Ventolin and chronic back pain, which is controlled by analgesia. He suffers anxiety related to his son's condition and to his own financial position. 22 His Honour thought that the applicant had regularly drunk alcohol to excess since the birth of his son. He noted his unblemished prior good character and reputation and acknowledged that he was entitled to have that taken into account in his favour. 23 He then referred, without my going into the detail, to the effect of the offences upon the complainant, and concluded that they demanded appropriate salutary punishment. 24 He noted that the applicant had been unable to give any explanation for the commission of the offences, except to suggest that while he had been affected by alcohol at the time, he was not in control of himself and was in a kind of euphoric, dreamlike state. Nevertheless, he admitted there was no excuse for his behaviour. 25 As to the applicant's pleas of guilty, his Honour noted that although the applicant declined, as he was entitled to do, to answer questions when first spoken to by the police, he did plead guilty before the Local Court at Cowra on the day of his first appearance before the Court after service of the Crown's brief of evidence. 26 Accordingly, his guilty pleas were of the greatest utilitarian value, which is now categorised as facilitation of the administration of the criminal justice system. 27 As to the applicant's contrition, he accepted responsibility for his conduct and his Honour thought that contrition was indicated by his guilty pleas. 28 Nevertheless, his Honour noted that the applicant did not give evidence before him. 29 As to rehabilitation, his Honour said: "Although I cannot tell what will happen tomorrow, let alone what might happen far into the future, I doubt that the applicant will re-offend." 30 His Honour noted the element of deterrence he had to take into consideration and he noted the effect his sentences would have upon his family. 31 His Honour noted that the applicant would serve all of his sentences, or at least part of them, on protection. 32 Having referred to these various subjective circumstances, his Honour then referred to the necessity to apply the principles the High Court had laid down in Pearce and, thereupon, he fixed the sentences. 33 Mr Toner of senior counsel for the applicant has basically relied upon a submission to the effect that his Honour failed properly to apply the principles in Pearce and indeed, gave some examples which he contended indicated that what his Honour actually had done was to determine what the totality of the offences by way of sentence required and then adjusted individual sentences by way of concurrency and accumulation to fit within the concept of his view of the appropriate totality. The true approach should have been, he contended, to determine an appropriate sentence for individual offences and then take account of accumulation or concurrency to achieve an appropriate totality of punishment. 34 Mr Toner submitted that evidence to support that contention was demonstrated by the fact that the fourth count, which perhaps was the least serious, attracted a discrete sentence of eleven months. 35 Mr Toner submitted that an appropriate way to have dealt with this criminality was to have imposed an overall sentence of three years with a non parole period of twelve months. 36 That, of course, is the entire sentence which his Honour imposed in relation to count 2 independent of the concurrency which his Honour provided in that regard so far as counts 1 and 3 are concerned. 37 I should add, for the sake of completion, that in respect of the pleas of guilty his Honour individually for each offence allowed a discount of 25 per cent. His Honour found special circumstances existed, being the prior good character of the applicant and his reputation and what his Honour considered to be his excellent prospects of rehabilitation. 38 It can be seen, therefore, that this matter received very considerable and detailed consideration by his Honour and indeed, his Honour specifically noted Pearce and indicated that it was necessary for him to approach the resolution of the matter in light of the principles laid down in Pearce. 39 The Crown, on the other hand, contended by reference to the very helpful diagram, to which I have made reference, that there was an accordance with Pearce and indeed, the sentences ultimately imposed by his Honour were more favourable to the applicant than they should have been, or as Mr Barrett put it this afternoon, they were certainly adequate but no more than adequate. 40 The Crown, of course, places emphasis on the objective seriousness of the second count. In particular cases where a number of counts are involved, there must be an almost infinite number of ways in which a particular judge could undertake the exercise laid down by the High Court in Pearce. Perhaps it might be said that any particular approach may be capable of some criticism. 41 In Regina v Simpson [2001] NSWCCA 534 Spigelman CJ referred (at pars 74-80) to the principles to be applied in the determination of an appeal to this Court and referred to the fact that in Dinsdale v The Queen (2000) 202 CLR 321, Gleeson CJ and Hayne J said: "It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the Court is given, and the circumstances in which those powers may be exercised." 42 At pars 79 and 80 Spigelman CJ said in Simpson: "79 Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s6(3) [of the Criminal Appeal Act] this Court must form a positive opinion that 'some other sentence ... is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense. 80 In the present case I do not believe there is any proper basis for the formation of an opinion in the statutory terms; the objective and subjective circumstances do not lead me to the conclusion that 'some other sentence ... is warranted in law and should have been passed'. The effective sentence imposed by his Honour on count 7 of imprisonment for three years and six months with a non parole period of two years and seven months was, in my opinion, entirely appropriate." 43 In my respectful view those observations accord with the view which I have formed after consideration of the submissions of counsel for both the applicant and the Crown. 44 I do have difficulty, I must confess, in justifying in my own mind criticism of the way in which Nield DCJ sought to resolve the sentences in accordance with the principles in Pearce, but certainly in my view the evidence and the submissions do not justify forming a view within the meaning of s6(3) of the Criminal Appeal Act that some other sentence is warranted in law and should have been passed. 45 For those reasons what I propose is that the application for leave be granted, but that the appeal be dismissed. *********** 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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