New South Wales Court of Criminal Appeal CITATION : REGINA v Graham WILLIAMS [2002] NSWCCA 458 FILE NUMBER(S) : CCA 60412/02 HEARING DATE(S) : 15/11/02 JUDGMENT DATE : 15 November 2002 PARTIES : Regina Graham Williams (Applicant) JUDGMENT OF : Wood CJ at CL at 1; Dowd J at 27; Bell J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/01/0052 LOWER COURT JUDICIAL Price DCJ OFFICER : COUNSEL : GIO Rowling (Crown) In Person (Applicant) SOLICITORS : SE O'Connor In Person (Applicant) LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Muldoon, (unreported), NSWCCA, 13 December 1990 DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60412/02 WOOD CJ at CL DOWD J BELL J 15 November 2002 REGINA v Graham WILLIAMS Judgment 1 WOOD CJ at CL: I will ask Bell J to deliver the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by his Honour Judge Price in the District Court at Broken Hill on 30 November 2000. On 28 November 2000 the applicant pleaded guilty on indictment to fourteen counts alleging the commission of sexual offences against a number of complainants. 3 At the time of the commission of the offences the applicant was a professional masseur. Each of the offences took place at his rooms during the course of a massage treatment. The two first counts charged him with offences committed upon the same fifteen-year-old client. The balance of the offences related to adult complainants. 4 Count 1 charged the applicant with an offence of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act ("the Act"). This offence carries a maximum sentence of twenty years imprisonment. The circumstance of aggravation charged was that the complainant was under the age of sixteen years. 5 The facts relating to count 1 which Judge Price found were that during the course of giving a full body massage to the complainant the applicant licked her vagina for several seconds. In respect of this offence the applicant was sentenced to imprisonment for three years and nine months, to commence on 29 November 2000 and to expire on 28 August 2004. A non-parole period of two years expiring on 28 November 2002 was specified. 6 Count 2 charged the applicant with an aggravated indecent assault, contrary to s 61M of the Act. This offence carries a maximum penalty of seven years imprisonment. In respect of this offence the applicant was sentenced to a concurrent term of fourteen months imprisonment with a non-parole period of ten months. 7 Counts 3, 6, 9 and 11 charged the applicant with sexual intercourse without consent, contrary to s 61I of the Act. This offence carries a maximum penalty of fourteen years. The particulars of these offences included digital penetration of the vagina of the complainants and an incident of cunnilingus. 8 Counts 4, 5, 7, 8, 10, 12, 13 and 14 charged the applicant with indecent assault, contrary to s 61L of the Act. These offences carry a maximum penalty of five years imprisonment. The allegations in support of these counts involved instances of indecent touching during the course of massage therapy. 9 The applicant was sentenced to a term of three years and two months imprisonment, to commence on 29 November 2002 and to expire on 28 January 2006 in respect of count 3. A non-parole period of twelve months expiring on 28 November 2003 was specified. 10 On each of counts 4, 8, 10 and 13 (indecent assault) the applicant was sentenced to concurrent terms of imprisonment for twelve months, commencing on 29 November 2000. 11 In respect of counts 5, 7, 12 and 14 (indecent assault) the applicant was sentenced to concurrent terms of fourteen months, commencing on 29 November 2000. 12 On counts 6, 9 and 11 (sexual intercourse without consent) the applicant was sentenced to concurrent terms of three years and two months imprisonment, to commence on 29 November 2000. 13 The effective overall sentence was one of five years and two months imprisonment with a non-parole period of three years. 14 The applicant lodged a notice of application for leave to appeal against the severity of the sentence imposed on count 1 by notice dated 27 December 2000. The ground stated on his application was as follows: "I believe the sentence on the first charge of aggravated sexual assault excessive. This is the only one I wish to appeal." 15 In an affidavit sworn 17 June 2002 the applicant referred to the circumstance that he had filed a notice of abandonment with respect to his application for leave to appeal. He seeks to go behind that notice of abandonment. At the time he submitted the notice he had been refused legal aid and it was his understanding that he was not able to appear personally in order to prosecute his application for leave to appeal. When he became aware that that course was open to him, he sought to have the matter relisted. 16 The applicant filed written submissions in support of his application. In those submissions he appeared to raise an issue concerning his conviction for the offence of aggravated sexual intercourse without consent charged in count 1. He asserted that he had licked the complainant once on the genitals and that there had been no penetration of her vagina nor any attempt to do so. He went on to recite that he had received conflicting legal advice concerning the significance of penetration for the purpose of proof of the offence. 17 During the course of the hearing of this application, the applicant stated that it was not his desire to obtain the leave of this Court to go behind his plea of guilty and the conviction in respect of count 1. He confirmed that it was his wish to seek leave to appeal against the severity of the sentence imposed in respect of count 1 only. 18 In the light of the circumstances set out in the affidavit, to which I have referred, the applicant was granted leave to go behind the notice of abandonment. 19 The matters to which the applicant directs attention in his written submissions include that he was aged sixty-six years at the date of the offence and that he was a man of previously unblemished character. As a result of the offences being brought to light his wife left him and he suffered the loss of his reputation, business and home. Fairly, the applicant acknowledged that Judge Price took all these matters into account in his remarks on sentence. Further, his Honour discounted the sentence that he would otherwise have imposed by twenty-five percent to reflect the applicant's early pleas of guilty. 20 The applicant pressed his application on a single basis; namely, the conduct that constituted the offence charged in count 1 was brief and of a superficial nature. To this extent the applicant submits that the sentencing judge must be taken to have erred in his assessment of the objective seriousness of the offence. In this respect the applicant referred us to the decision of this Court in R v Muldoon, (unreported), NSWCCA 13 December 1990. The respondent to the appeal in Muldoon was convicted of an assault upon a young boy involving anal penetration. The sentencing judge in Muldoon imposed a minimum term of imprisonment of two years with an additional term of six months. This sentence was the subject of an appeal against leniency by the Crown. The appeal was allowed and in lieu of the sentence imposed, this Court substituted one comprising a minimum term of four years' penal servitude together with an additional term of one year and three months. It is conventional for a sentence imposed upon a successful Crown appeal to be at the lower end of the range of appropriate sentences. I am not persuaded that the applicant is assisted by the decision of Muldoon in the challenge that he makes to the sentence imposed in the presence case. 21 Judge Price noted that the complainant, RK, was aged fifteen years at the date of the offence. She was a school student. She had been receiving massages from the prisoner for cosmetic reasons for some five months prior to the date of the offences. Usually she had been accompanied to these sessions by her mother. She was not accompanied on the occasion of the offence. His Honour found that the complainant's mother had placed trust in the applicant that he would act in a professional manner towards her daughter. RK had herself placed trust in him. His Honour characterised the offence upon the complainant as one involving a serious breach of trust and he approached the matter upon the basis that the complainant had been seriously affected by the applicant's conduct. 22 Judge Price dealt with the applicant's subjective circumstances at pages 10 to 19 of his careful remarks on sentence. It has not been suggested that his Honour failed to take into account any relevant circumstances in this respect. While his Honour was not persuaded that the applicant fully appreciated the seriousness of his offences with respect to the adult complainants, he did accept that the applicant was remorseful for the offence committed upon RK. 23 The sexual assault charged in count 1, involving as it did the licking of the complainant's vagina, was a serious offence. It is not an answer to say that the conduct was of relatively short duration and that it did not involve penetration of her vagina. It was a significant interference with the bodily integrity of a fifteen-year-old child. Sexual assaults commonly leave the victim with on-going difficulties that may adversely impact on their enjoyment of life for a considerable period. 24 As I have noted, the maximum penalty is one of twenty years imprisonment. I consider that a sentence of three years and nine months with a non parole period of two years to have been well within the range of the sentencing judge's discretion. 25 I would propose that the applicant be granted leave to appeal but that his appeal be dismissed. 26 WOOD CJ at CL: I agree. 27 DOWD J: I also agree. 28 WOOD CJ at CL: The order of the Court will be as Bell J has 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. 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.