New South Wales Court of Criminal Appeal CITATION : REGINA v. MARSHALL [2002] NSWCCA 311 FILE NUMBER(S) : CCA No. 60185 of 2002 HEARING DATE(S) : Thursday 1 August 2002 JUDGMENT DATE : 1 August 2002 PARTIES : REGINA v. MARSHALL, Michael George JUDGMENT OF : Sperling J at 1/22; Greg James J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0358 LOWER COURT JUDICIAL Christie, DCJ. OFFICER : COUNSEL : Crown: D. Woodburne App: P. Rosser SOLICITORS : Crown: S.E. O'Connor App: Sydney Regional Aboriginal Corporation Legal Service CATCHWORDS : Criminal law - appeal - sentence - multiple offences - breaches of recognizences - effect of prior offences - necessity for deterrence - sentence not manifestly excessive. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 DECISION : Leave to appeal granted; appeal dismissed. IN THE COURT OF CRIMINAL APPEAL No. 60185 of 2002 SPERLING, J. GREG JAMES, J. THURSDAY 1 AUGUST 2002 REGINA v. MICHAEL GEORGE MARSHALL Judgment 1 SPERLING, J: I will ask Greg James J to deliver the first judgment. 2 GREG JAMES, J: This is an application for leave to appeal against sentence imposed in the District Court of New South Wales in respect of an offence of aggravated sexual assault upon a male child under the age of 16 committed on l February 2001. That offence was in respect of a matter to which s.61J(1) of the Crimes Act 1900 refers which section provides for a maximum penalty of 20 years imprisonment. 3 On the occasion of sentencing the applicant in respect of the matter the learned trial judge dealt with the breach of a bond given under s.9 of the Crimes (Sentencing Procedure) Act 1999 to the applicant to be of good behaviour for 18 months by another District Court Judge in respect of an offence of aggravated indecent assault which was committed on 8 July 1994 to which the applicant had pleaded guilty, and also dealt with the applicant in respect of a breach of a bond under s.12 of that Act, that bond having been entered into as a consideration of the suspension of a sentence of 12 months imposed on 8 December 2000 by that other District Court judge and conditioned that the appellant be of good behaviour. That bond was also imposed for an offence of aggravated indecent assault committed on 8 July 1994. In respect of both of those matters of aggravated indecent assault dealt with by that other District Court Judge the applicant had pleaded guilty. 4 On this occasion and in respect of the instant offence the applicant also pleaded guilty. The learned trial judge sentenced the applicant for the offence, which was before him on the indictment to imprisonment for six years and six months commencing on 20 July 2001. In respect of that sentence his Honour imposed a non-parole period of four years and six months commencing on that same commencement date. His Honour imposed, in respect of the breach of the s.12 bond in respect of the suspended sentence, a sentence of imprisonment for 12 months commencing on that same date. Thus that sentence was wholly concurrent with the sentence his Honour had imposed in respect of the offences prosecuted on the indictment and to which the appellant had pleaded guilty before him. 5 His Honour imposed a sentence of three months imprisonment in respect of the breach of the s.9 bond directing that sentence to commence on 20 January 2006, that is to say, at the expiration of the non-parole period for the offence prosecuted before his Honour on the indictment. Thus the effective period of custody that the appellant had to serve by way of the period during which he could not receive parole was a period of four years and nine months commencing on 20 July 2001 and expiring on 19 April 2006. The total period of imprisonment to which the applicant was liable as a consequence of these sentences was that period of six years and six months commencing on 20 July 2001. 6 The application for leave to appeal is within a very narrow compass. It is contended on the applicant's behalf that his Honour erred in the starting point of his sentence calculations having regard to the objective criminality of these offences and all the circumstances of the case. It is submitted that error was translated into a sentence, which, on its face, exceeds that which is called for, that is a sentence which is truly manifestly excessive. 7 In support of the argument it is pointed out his Honour recognised that the particular nature of the acts performed by the appellant with the young boy were not physically invasive of the victim's body as they might have been had other acts to which the section applied been perpetrated. 8 It must be recognised, however, that his Honour specifically adverted to that very matter when considering the appropriate sentence. It is not necessary to go into detail as to what acts were perpetrated. 9 True it is that, although the relevant act was one of the ways in which the legislature has defined the offence as being able to be committed, and although the offence committed in that way may be a serious offence, its culpability is not as serious as some other modes of commission of the offence but it is not to the point to say that there might be worse crimes within the section. The question that needs to be considered is whether this sentence is inappropriate to the crime as it was committed. 10 The matter involved the taking of advantage of a young boy in circumstances in which the offender had plied the young man with alcohol and seduced him in the offender's home at a time at which the victim had apparently become ill. He was asleep when the criminal act was perpetrated upon him and attempted to refuse the advances of the applicant. 11 His Honour held in the applicant's favour that the victim, although vulnerable and disadvantaged, was not a person towards whom the appellant was required by law to exercise a particular duty, the breach of which would create the aggravating circumstance of a particular abuse of trust. However, his Honour did not under estimate the serious nature of what had occurred. His Honour had regard also to the applicant's prior record. 12 That record includes a number of offences, some of dishonesty, some involving driving with the prescribed concentration of alcohol, but, in particular, includes offences commencing in 1991 of committing acts of indecency and other sexual offences with young children. 13 The appellant received a recognisance in 1991 for committing an act of indecency with a child under the age of 16. In South Australia in 1997 he was imprisoned for two years and one month with a non-parole period of eighteen months for the crime of unlawful sexual intercourse. 14 When he came before the court on 8 December 2000 he was dealt with for the two aggravated indecent assault offences to which I have referred and four additional matters on a schedule. Those four additional matters included the offence of incite person under sixteen to commit act of indecency, soliciting sexual intercourse, exhibiting a film in the presence of minors – which is referred to as relating to three counts presumably relating to three minors – and supply liquor to minors. 15 His Honour, when referring to the necessity for deterrence in the particular case, said the following:- "I need, of course, in this particular case to deter Michael George Marshall from further offending in this way because the element of specific deterrence is present here. Mr Marshall, if he continued this type of conduct, would pass to another category which some people might describe as a predator. That is a person who habitually seeks out young men for the purpose of committing these offences." 16 I do not apprehend that his Honour, in those remarks, was indicating that he had concluded that the applicant was a person who was presently dangerous to the community in that regard. However, I do apprehend that his Honour was having regard to the applicant's past record of offences when he came to sentence for the present offences as indicating that the offender was not to receive such leniency as he might fully receive in the event that he had not such prior matters on his record as he has. His Honour had regard to the applicant's personal circumstances and, in particular, that he suffered from an emotional disability for which he had been prescribed Lithium. 17 Our attention has been drawn to that matter today but it has not been submitted that his Honour there fell into such error as would warrant the court interfering with the sentence in the way in which his Honour had referred to that matter. 18 What has been submitted, shortly, is that the starting point for his Honour's sentence, whatever that may mean in the context of this case, of nine years was too high and, thus, the result was too high. It was submitted that there was an effective sentence of five and a half years for this offence, that the totality of sentence, having regard to the course his Honour took in relation to the suspended sentence and the recognisance, produced a total sentence of seven years four months with a minimum term of five years seven months taking into account the periods in custody prior to the imposition of each sentence. 19 It is conceded, however, that his Honour acted entirely appropriately in the exercise of his discretion when dealing with the breaches of recognisance to which I have referred. When one has regard to the concurrence of the sentences imposed, in my mind I am assisted little by the submission concerning the submitted total effective sentence because, if one looks to this offence rather than looking to the sentences imposed for the matters before the other District Court judge, one notes that this sentence is a head sentence of five and a half years with a non parole period of three years six months. 20 It is submitted that this sentence was excessive on its face even in the circumstances of the prior offences. I do not accept that submission. It is only in the event that some other sentence is warranted in law and should have been passed that this court, under s6(3) of the Criminal Appeal Act 1912 should interfere. There needs to be some such error of discretion as shows that the sentence exceeds the permissible range available for a sentencing judge having regard to all the circumstances. 21 I am unpersuaded that his Honour fell into error in this way. I do not conclude that there is warranted in law some other sentence which should have been passed. The continued offending in this way was appropriately marked by his Honour by the sentence his Honour passed. In my view, since the matter has been fully argued, the application for leave should be granted but the appeal dismissed. 22 SPERLING, J: I agree. The orders of the court will be as proposed by Greg James, J. ********** 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.