R v JFR [2002] NSWCCA 9

New South Wales Court of Criminal Appeal

CITATION : R v JFR [2002] NSWCCA 9 FILE NUMBER(S) : CCA 60256/01 HEARING DATE(S) : 26 November 2001 JUDGMENT DATE : 11 February 2002

PARTIES : Regina JFR JUDGMENT OF : Hidden J at 1; Newman AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/51/0193 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : W. Dawe QC (Crown) M. Ramage QC (Appellant) SOLICITORS : DPP (Crown) Pickering Priestley (Appellant) CATCHWORDS : CRIMINAL LAW - sexual offence - appeal against sentence - age and health of appellant - whether appropriate to sentence on standards at time of commission of offence - where long delay between the commission of offence and conviction - statutory trigger for resentencing LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 s6(3) CASES CITED: R v Simpson [2001] NSWCCA 534 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60256/01 HIDDEN J NEWMAN AJ

Monday, 11 February 2002

R v JFR

JUDGMENT 1 HIDDEN J: I agree with Newman AJ. 2 NEWMAN AJ: This is an application for leave to appeal against sentences of imprisonment passed upon the applicant by Ducker DCJ at Lismore Court on 23 April 2001. 3 The applicant had pleaded guilty before the Local Court on 28 November 2000 to six counts of indecent assault pursuant to the then extant s76 of the Crimes Act 1900. He maintained his plea before the learned District Court judge. Section 76 of the Crimes Act as it stood at the time of the commission of the offences provided for a maximum penalty of five years imprisonment for the offence of indecent assault. Section 76 has been repealed for many years and has been replaced by a comprehensive legislative scheme dealing with sexual offences. However, as I have said, at the time of the commission of the offences s76 represented the law. Accordingly, there was no issue in this application that his Honour was correct in applying s76 to the facts of this case when sentencing. 4 The six counts of indecent assault related to events which took place between 8 December 1960 and 11 March 1964. 5 In the event his Honour imposed a sentence constructed as follows: As to counts six and one his Honour imposed a term of imprisonment for 15 months commencing on 23 April 2001 and expiring on 22 July 2002. On those counts he imposed a non-parole period of seven months commencing on 23 April 2001 and expiring on 22 November 2001. On count three he imposed a term of imprisonment of two years to commence on 22 November 2001 and to expire on 21 November 2003. This instance he imposed a non-parole period of 12 months commencing on 22 November 2001 and expiring on 21 November 2002. For counts two, four and five of the indictment his Honour imposed a term of imprisonment of 15 months commencing on 21 November 2001 and expiring on 20 February 2003. Here he imposed a non-parole period of seven months commencing on 21 November 2001 and expiring on 20 June 2002. His Honour directed that the applicant be released to parole on 21 November 2002 and that the parole order was to contain the usual conditions. 6 The offences involved the two natural daughters of the applicant. The elder, SMR, was born on 14 August 1955 and the younger daughter, HMR, was born on 8 December 1956. At the time of the commission of the offences the two children were resident with the applicant and his wife. His Honour in dealing with the offences quite properly in my view concluded that the events surrounding the second count was the first of the offences committed and that in chronological order these offences were followed by the offences which were the subject of counts six, one, three, four and five of the indictment. 7 The facts involved in count two were as follows. The offence took place between 1 January 1961 and 13 August 1962 involving the elder child, SMR. There the applicant took SMR to his parents home and while there SMR was standing in the lounge room of the house. The applicant approached her and commenced to rub his hands through her hair and stroke her softly on the face. He then ran his hands down the front of her dress, under her dress and into her underpants. He then commenced to rub her on the outside of her genitalia in the general vicinity of her vagina with his left hand. This continued for something like two minutes, after which he gave her a cuddle and walked out to where the rest of the family were to be found. 8 The sixth count which his Honour found to have been the second committed in point of time occurred between 8 December 1960 and 8 February 1961 and involved the child, HMR, who would have then been approximately five years of age. 9 Between those two dates the offence occurred in the front room of the house in which the applicant and his family were then living. HMR and her two brothers were running around the front room of the house naked. The applicant took hold of HMR and lifted her onto a tallboy. He then pushed backwards and rubbed her vagina for a few minutes before stopping. The events relating to count one his Honour found occurred between 1 January 1961 and 13 August 1961. The events took place at the family home. There HMR and SMR were playing in a bedroom. The applicant entered the room and having locked the door behind himself continued to chase the children around the room as though he were taking part in some form of game. Eventually he caught up with SMR and commenced to rub her vagina. Initially he rubbed the outside of her underpants but later he slipped his hand beneath her underpants and started rubbing inside her pants in the region of her vagina. After doing this for some time he left the room. 10 The events relating to counts three and four occurred between 13 August and 25 December 1963. Again the events occurred in the family home. SMR was playing in a room when the applicant walked in and told her to take her pants off. She lay across a bed with her head up against a wall after she did so. The applicant then undid the zip of his trousers, took out his penis which apparently was flaccid and commenced rubbing up and down and around her vaginal area. During the course of doing this his penis became erect. SMR was approximately eight years of age at the time. 11 While this was happening HMR entered the room. The applicant said to her 'we're playing the game and you have to join in'. HMR turned to leave but was taken hold of by the applicant who after closing the bedroom door pulled her underpants down and commenced to rub her vagina. Both SMR and HMR were lying side by side at one stage with the applicant rubbing their vaginas simultaneously. This continued for a short time and ended when the applicant stood up, zipped up his fly and left the room. The sixth offence which was represented by count five on the indictment involved SMR at a time between 11 January and 11 March 1964. Again it occurred at the family home. Both SMR and HMR were lying on their backs across a bed and had their underpants pushed down while the applicant was kneeling on the floor in front of them. He then commenced to rub the vaginal area of SMR (who appears to have been about nine years of age at the time). After performing this act for a short time the applicant stood up and walked out of the room. 12 Objectively, as his Honour found, these facts constitute very serious breaches of the criminal law. As his Honour found having committed the first of these offences the applicant continued to carry out a systematic course of deliberate criminal behaviour over an extended period. The fact that the applicant was the father of his victims underscores the seriousness of the offences. Both his daughters were entitled to look to him for support and protection. His actions involved a derogation of his paternal duties. Again, as his Honour rightly pointed out, had the offences come to light within a reasonable time of their commission there is no doubt that the applicant would have faced a certain prospect of a lengthy period of imprisonment even if he had pleaded guilty as he did before his Honour and avoided the necessity for SMR and HMR to give evidence. Again, as his Honour pointed out, the fact that the applicant had no other convictions should not have enabled him to avoid a lengthy sentence of imprisonment if the events had come to light soon after their commission. 13 In his written submissions senior counsel for the applicant identified the following matters as constituting error on his Honour's part: (1) In all the circumstances the sentence was unduly harsh and severe. (2) The sentencing judge erred in :- (a) ordering that the appellant serve a full time custodial sentence; and (b) ordering that the sentences be served cumulatively. (3) The sentencing judge erred in finding that there had been no recurrence of offences for 35 years "partly.. because of lack of opportunity within his own family and possibly because of the inevitable diminution of his sex drive." (4) The sentencing judge erred in :- (a) Failing to give adequate weight to the contrition of the appellant expressed in 1993 and thereafter. (b) Failing to give any weight to the appellant's prior good character. (c) Failing to give sufficient or adequate weight to the appellant's pleas on either a utilitarian basis or the saving of the complainants' having to give evidence. (d) Failing to give adequate weight to the long delay and staleness of the offences. (e) Failing to give adequate weight to the effect of a full time custodial sentence on the appellant at his age of 62. 14 In his oral submissions senior counsel for the applicant was critical of a finding made by his Honour which was in the following terms: 'The passage of time has worked in his favour in this sense that he has proved by his actual behaviour that it is highly unlikely that there will be any recurrence of offences of this type. He has done this partly, it must be recognised, because of lack of opportunity within his own family and possibly because of the inevitable diminution of his sex drive.' 15 It was submitted that to make such a finding his Honour must have used material contained in the victims' impact statements of SMR and HMR which were tendered. It was put that such a use of the material contained in such statements is improper. The purpose of the tender of such material is to assist the court to gauge the impact of the events in question upon the victims not to use the material in order to make adverse findings of fact relating to motivation on the part of an accused person. I do not accept that his Honour did in fact come to the conclusions he did in the paragraph quoted because he improperly used material to be found in the victims' impact statements. It is obvious that the older his daughters became his opportunity to commit offences of a like type would have diminished. Second, his Honour's observation as to the inevitable diminution of the applicant's sex drive is an observation, I have no doubt, drawn from his Honour's knowledge of human behaviour. 16 In his Honour's remarks on sentence he dealt at length with the question of the applicant's contrition, his prior good character, the affect of him pleading guilty, the length of time between the commission of the offences and the fact that to sentence a man of his years - he was 62 at the time of sentence - to a full time custodial sentence would create hardship. In my view his Honour dealt with the subjective elements relating to the applicant in an appropriate and proper manner. 17 I should add that the prime reason for this court reserving its judgment in the matter was the fact of the question of to what extent the sentencing judge should take into account the sentencing attitudes at the time when old offences such as these were committed. This question is currently the subject of a reserved judgment of a five person bench of this court (R v MJR). In this instance his Honour did in fact take into account sentencing attitudes at the time near to the commission of these offences. In so doing he did so to the applicant's advantage. Accordingly, I do not believe it necessary for this court to wait the decision of the five person bench in order to determine this appeal. 18 I should also observe that even if his Honour did err in finding as he did that there had been no recurrence of the offences for 35 years 'partly because of lack of opportunity within his own family and possibly because of the inevitable diminution of his sex drive' this would not lead me to conclude that this court should interfere and re-sentence. I say this because of the provisions of s6(3) of the Criminal Appeal Act. Pursuant to that section this court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. In Regina v Simpson [2001] NSWCCA 534 at para 79 Spigelman CJ observed as follows: '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) 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 (202 CLR 321) to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense.' 19 In my view having regard to the systematic course of sexual assaults carried out by the applicant upon his daughters over a period of over three years that an accumulated term of imprisonment of two years and seven months with a non-parole period of one year and seven months does not lead me to the conclusion 'that some other sentence … is warranted in law and should have been passed', ie, some lesser sentence than that imposed by his Honour. In short, I am of the view that this court should not interfere in this matter. 20 Because of the importance of the matter to the applicant I would grant leave to appeal but would dismiss the appeal. oOo