New South Wales Court of Criminal Appeal CITATION : Regina v JMP [2003] NSWCCA 369 HEARING DATE(S) : 11 November 2003 JUDGMENT DATE : 18 December 2003 JUDGMENT OF : Barr J at 1; Miles AJ at 2 DECISION : (a) grant leave to appeal; (b) allow the appeal; (c) quash the sentence on count 8 and set aside the non-parole period on count 8 and in lieu thereof, substitute (i) a period of imprisonment of eight years to commence on 3 October 2001 and expire on 2 October 2009 and (ii) a non-parole period to commence on 3 October 2001 and expire on 2 April 2007, and; (d) set aside the non-parole period on counts 6 and 7 and, in lieu thereof, substitute, on each count, a non-parole period to commence on 3 October 2001 and expire on 2 April 2007. CATCHWORDS : application for leave to appeal against severity of sentences - sexual assault on own children - form 1 offences - history of offences - assistance to authorities - parity of sentences of co-offender - concurrency of sentences - totality principle LEGISLATION CITED : Crimes Act 1900, s 61E, s 66C(1) Crimes (Sentencing Procedure) Act 1999, s 33 Attorney-General's Application No 1 [2002] 56 NSWLR 146 Pearce v The Queen [1998] 194 CLR 610 CASES CITED : R v El-Kotob [2002] VSCA 109 R v Henderson [1999] 1 VR 30 R v Musso [2002] NSWCCA 487 R v Nagy [2002] QCA 175 PARTIES : Crown - Respondent JMP - Applicant FILE NUMBER(S) : CCA 60315/03 COUNSEL : M Grogan - Crown A Haesler - Applicant SOLICITORS : CK Smith - Crown S O'Connor - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0929 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60315/03 BARR J MILES AJ Thursday 18 December 2003 REGINA v JMP Judgment 1 BARR J: I agree with Miles AJ. 2 MILES AJ: This is an application for leave to appeal against the severity of sentences imposed on the applicant by His Honour Judge Gibson QC on 31 January 2003 after she continued her pleas of guilty in the Sydney District Court to eight counts involving sexual assault on her own children. 3 The eight counts, omitting the naming of the children, were: Count 1: Between 1 January 1986 and 31 December 1986 in the State of New South Wales she did have sexual intercourse with R, a person then under the age of sixteen years, namely ten or eleven years, without her consent and knowing she was not consenting; Count 2: Between 22 June 1988 and 27 June 1990 at Sydney in the State of New South Wales, she did have sexual intercourse with J, a person under the age of sixteen years, namely ten or eleven years and under her authority; Count 3: Between 27 June 1988 and 27 June 1990 at Sydney in the State of New South Wales, she did have sexual intercourse with J, a person under the age of sixteen years, namely ten or eleven years and under her authority; Count 4: Between 27 June 1989 and 27 June 1992 at Sydney in the State of New South Wales, she did have sexual intercourse with J, a person under the age of sixteen years, namely ten, eleven or twelve, and under her authority; Count 5: Between 27 June 1989 and 27 June 1992 at Sydney in the State of New South Wales, she did have sexual intercourse with J, a person under the age of sixteen years, namely ten, eleven or twelve years, and under her authority; Count 6: Between 1 January 1987 and 31 December 1987 at Sydney in the State of New South Wales, she did have sexual intercourse with F, a child then under the age of ten, namely six or seven years; Count 7: Between 1 January 1987 and 31 December 1987 at Sydney in the State of New South Wales, she did have sexual intercourse with F, a child then under the age of ten years, namely six or seven years; Count 8: Between 1 January 1987 and 4 October 1988 at Sydney in the State of New South Wales, she did have sexual intercourse with F, a child then under the age of ten years, namely six, seven or eight years. 4 In addition, in relation to count 8, four other related offences admitted by the applicant and set out in a list (form 1) were taken into account under s33 of the Crimes (Sentencing Procedure) Act 1999. They all arose out of indecent assaults on or acts of indecency with one or other of the children, J and F, contrary to section 61E of the Crimes Act 1900 as it was in force at the time of the offences. 5 Counts 1 to 5 each carried a maximum sentence, at the time of the offences, of 10 years imprisonment. Counts 6 – 8 each carried a maximum of 20 years. The matters on form 1 carried a maximum of sentences ranging from four to six years. 6 The following sentences were imposed: Count 1: Terms of imprisonment of four years commencing on 3 October 2001 and expiring on 2 October 2005 with a non-parole period of three years commencing on 3 October 2001 and expiring on 2 October 2004; Counts 2, 4, 5: Terms of imprisonment of five years and seven months commencing on 3 October 2001 and expiring on 2 May 2007 with a non-parole period of four years and two months commencing on 3 October 2001 and expiring on 2 December 2005; Count 3: Term of imprisonment of six years and five months commencing on 3 October 2001 and expiring on 2 March 2008 with a non-parole period of four years and ten months commencing on 3 October 2001 and expiring on 2 August 2006. Counts 6 and 7: Term of imprisonment of eight years commencing on 3 October 2001 and expiring on 2 October 2009 with a non-parole period of six years commencing on 3 October 2001 and expiring on 2 October 2007; Count 8: Terms of imprisonment of nine years and seven months commencing on 3 October 2001 and expiring on 2 May 2011 with a non-parole period of seven years and two months commencing on 3 October 2001 and expiring on 2 December 2008. Facts 7 The facts of the offences were presented to His Honour in a statement prepared by the Office of the Director of Public Prosecutions. His Honour stated that he had read the statement but did not recite the facts. They may be summarised as follows. 8 The applicant was born on 11 April 1948. She is now 55 years old. She is the mother of five children. Three of them, R, the elder daughter born 15 April 1975, J, a son born 27 June 1979, and F, the younger daughter born 4 October 1980, were victims of the offences for which she was sentenced. There are two older sons with whom the present proceedings were not concerned. 9 The applicant separated from her husband, the father of the children, in about 1980 and went to live with her brother in suburban Sydney. There she met a neighbour, KS, with whom she formed a relationship. They maintained separate households. From time to time KS would stay at the house of the applicant and from time to time the children would sleep over at the house of KS. 10 The offences occurred over a period of some three years and six months. The children were subjected to sexual abuse in episodes in which both the applicant and KS participated. The offence on count 1 was committed at the applicant's home some time in 1986 when the elder daughter was 10 or 11 years old. The applicant woke the child and took her into the bedroom where she was placed on the bed. KS penetrated the child with his penis and performed other acts of sexual assault on the child while the applicant lay naked on the bed. 11 The offences on counts 2 to 4 were committed between mid 1988 and mid 1990 when the boy was under the age of 16. The applicant took him from the bed in the house belonging to KS and into the main bedroom where she removed his clothes. KS and the applicant were also naked. KS performed fellatio on the boy (count 2). The applicant kissed the boy in the mouth with her tongue (item 2 on form 1) and with her encouragement, the boy performed fellatio on KS (count 3). On another occasion when the boy was 11 or 12, there was a similar incident where KS performed fellatio on the boy (count 4). The boy was required to reciprocate (count 5) with the applicant kissing the boy in the mouth with her tongue (item 3 on form 1). 12 When the younger daughter was six or seven years old and staying at the house of KS, she woke up in the study to see the applicant performing fellatio on KS. She was instructed to do the same and did so (count 6). KS then penetrated the child with his penis. She was on the couch at the time. The applicant was also on the couch, naked and watching (count 7). The applicant told the child to stop crying. The child went to the bathroom and cleaned herself. On a similar occasion in 1987 or 1988, when the child had been asleep in the lounge room, she saw the couple on the floor naked. She was told to join them. She touched the penis of KS (item 4 on form 1) whilst the applicant performed cunnilingus on her (count 8). 13 The incidents were not reported to police until June 2001 by which time the elder daughter was 26 years, the son 22 years and the younger daughter 20 years. 14 On 26 September 2001, the applicant was arrested on the North Coast. She participated in a recorded interview on 21 November 2001. When the allegations were put to her, her response was that whatever the children said was correct. At the Local Court on 29 July 2002, she indicated that she would plead guilty and did so when first arraigned on 7 November 2002. Applicant's History 15 The applicant spent her early years in modest circumstances in the eastern suburbs of Sydney. She left school early and after sporadic employment married at age 20. After 13 years of marriage, during which she claims to have been the subject of violence, she returned to Sydney with the children. After some further years she commend the relationship with the co-offender. It was also marked by violence on his part. It came to an end in about 1993. 16 She has a history of convictions going back to 1993 for various offences of a relatively minor nature, but including at least one non-sexual assault on one of the children. At the time of the offences under consideration she had no convictions at all. His Honour expressly referred to the long history of prior offences but made no reference to the absence of history prior to 1993. The relevance of the offences committed in recent years is that they are illustrative of deterioration in her ability to control her own life and the continuing, if not increasing, addiction to alcohol and even, as the evidence suggests, brain damage. By 2001 she was living on and off the streets in a coastal town. 17 By 1991 the applicant and the children had come under the notice of the Department of Community Services. It was remarked that "their poverty sticks out amongst the affluence". Complaints of sexual abuse by the children were noted but not considered sufficiently strong to justify reporting to police. It was considered that there was need for professional intervention in a very dysfunctional family but that experience over the previous four years suggested that the family would not allow appropriate intervention. No such intervention appears to have been attempted. Co-offender 18 KS was tried on indictment alleging offences corresponding broadly with the offences in counts 2 to 5 on the indictment presented against the applicant in relation to the child J. The jury found him guilty on the four counts. He was also tried on a further indictment corresponding with counts 6, 7 and 8 in relation to the child F and found guilty on all counts. Judge Graham, who presided over both trials, sentenced KS for all offences on 25 July 2001. KS received a total effective sentence of eight years imprisonment with a non-parole period of five years and six months. He had a record of drink driving offences and minor offences committed previously, but was able to rely on evidence of steady employment and charitable work in the community. 19 Following the sentencing of KS, the Director of Public Prosecutions declined to proceed further in relation to the elder daughter. In the result, KS was not convicted of an offence corresponding to that in count 1 on the indictment presented against the applicant. 20 The applicant, as had been indicated to Judge Gibson, gave evidence on oath in the prosecution case against KS. Her willingness to tell the whole truth and the extent to which she was of assistance to the prosecution case was the subject of some dispute in the present application. That is a matter which in my view does not require precise resolution by the Court. The fact is that she gave evidence and the man was convicted. He might not have been convicted of one or more offences if she had not. I do not accept the submission on behalf of the respondent that she must have been dissembling when she claimed in the witness box not to remember certain events which were the subject of her own pleas of guilty. This aspect is discussed further below. 21 KS has appealed against his conviction and applied for leave to appeal against the severity of the sentences imposed on him. That does not make the task of this Court any easier. There was no application by either party to postpone the hearing of the present application until after the KS appeal or to have the matters regarding sentence of both offenders heard together in this Court. 22 It will be necessary to go to the considered reasons of Judge Graham in the sentencing of KS, since disparity with that sentence is proposed as a ground of the appeal by the present applicant. Further evidence before the Court 23 An affidavit sworn by the solicitor for the applicant on 3 November 2000 was admitted into evidence for the purposes of the application. The basis of its admission was limited. In so far as it was relevant to the ground of disparity with the subsequent sentences imposed on KS, it did not constitute new evidence and was admitted without the need to satisfy the usual tests in that regard. Otherwise its relevance is limited to the matters this Court should take into account in the event of re-sentencing the applicant, should that become necessary. Excessive sentence on count 8 24 The first and fifth proposed grounds of appeal may be dealt with together, as they raise the same or similar issues. 25 In sentencing for the offence in count 8 (cunnilingus on the younger daughter), His Honour said: "Count 8 is the count which I take into consideration, the matters in the schedule, and to which I allot the total criminality in the overall consideration of these matters. " 26 It was submitted on behalf of the applicant that this remark indicated that His Honour was in breach of the principle enunciated in Pearce v The Queen [1998] 194 CLR 610 where McHugh, Hayne and Callinan JJ said at [45]: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 27 That statement has been accepted and acted upon by this Court, not as advice only, but as "imperative and authoritative direction from the High Court to sentencing judges": R v Musso [2002] NSWCCA 487 at [31]. 28 As counsel for the applicant submitted, and counsel for the respondent seemed to agree, it follows from the principle in Pearce, that it is an error of law for a sentencing judge, having notionally fixed individual sentences for each of the offences charged in the indictment, to then increase the sentence on any one or more of the offences in order to reflect the overall criminality of the offender's conduct. The proper course is to allow the overall criminality to be reflected in accumulation of one or more sentences on another. 29 It may be noted that elsewhere in Australia, Pearce has not been interpreted as laying down so strict a principle as appears from the words quoted: see for instance R v Nagy [2002] QCA 175; R v Henderson [1999] 1 VR 30, R v El-Kotob [2002] VSCA 109. Further, the High Court judgments say nothing about how a sentencing court is to take into account further offences, not charged on the indictment, which have been admitted by the offender in written form and which the court may take account under statutory provisions such as those in s33 of the Crimes (Sentencing Procedure) Act. These provisions were the subject of a guideline judgment of the Court, post Pearce, in Attorney-General's Application No. 1 [2002] 56 NSWLR 146 where Spigelman CJ said at para 42: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence." 30 Thus, Judge Gibson, when sentencing the applicant and requested by her to do so, without opposition by the prosecution, had no option but to assign to the one of eight offences in the indictment the four further offences which the applicant admitted and asked to be taken into account. He had to weigh up the criminality of that offence in the light of the four further matters, in contemplation of increasing the sentence that would otherwise have been appropriate, giving particular consideration to personal deterrence and what Spigelman CJ described as the "community's entitlement". There was also, one might add, the position of not one, but several, victims to be considered. See R v El-Kotob, at [47] per Callaway JA. 31 No complaint is made that His Honour was in error in choosing count 8 for this purpose and nothing turns on this aspect. In fact the relevant portion of His Honour's remarks may have been intended to be restricted to the aggregate criminality in relation to the offence on count 8 in conjunction with the matters on form 1 (and not the total criminality involved in the course of conduct involved in all eight counts in conjunction with the matters in form 1). That is consistent with the sentence in fact imposed in the count 8, namely nine years and seven months imprisonment which is well below the maximum sentence of 20 years and compares with sentences of six years for counts 6 and 7 where the form 1 matters were not relevant. 32 Whilst it may have been preferable for His Honour to have ordered some of the sentences to be served by partial accumulation on one or more of the others (if only to make it clear that His Honour had Pearce in mind), it has not been shown that His Honour was in breach of the Pearce principle by increasing the sentence on count 8 (or on any count) by reason of the offences the subject of any other count, or that he simply took a global view of the overall criminality on all counts and fixed the sentence on the count 8 accordingly. 33 It may be implicit in what has already been said that the sentence on count 8 was not excessive. However, the other issues raised on the application need to be considered. They are matters to which the sentencing judge was not able to give attention since they arose only after the date of sentence. Assistance to authorities 34 The first relates to the extent to which His Honour took into account, as a mitigating factor, assistance the applicant had rendered to law enforcement and the administration of justice and any further assistance that might be anticipated. Counsel for the prosecution put to His Honour that this was and would be "minimal". His Honour seems to have taken it into account only in so far as it had potential for additional hardship whilst in custody, which of course it did. That potential has been realised accordingly to the affidavit material before the Court and may be expected to continue. 35 It is true that in her interview with police on 21 November 2001, the applicant did not condescend to reveal sufficient information to corroborate all the allegations made by the children, but her account was powerful support of the general nature of the allegations and of opportunity on the part of HS. Further, after being sentenced, she gave a statement to the police and was called to give evidence before the prosecution in both trials on 28 February 2003 and 11 March 2003. It is unlikely that she would have been called a second time if she was of no assistance on the first occasion. 36 A reading of the transcript of the trials indicates that the applicant, at best, had an uneven memory, even for events encompassed by her own pleas of guilty. Prosecuting counsel applied for, and was granted, leave to ask her questions as if in cross-examination. The fact that the prosecution felt the need to cross-examine her does not necessarily show deliberate lack of co-operation or even equivocation. A report dated 1 October 2002 from Ms Robilliard, psychologist, stated that "her ability to give a cogent and organised personal history seemed genuinely limited", and suggested alcohol induced organic brain damage at the time of examination as well as likely intoxication at the times of the offences. Whilst it may be that the jury did not consider her an impressive witness, I have formed the view that she was of greater actual assistance to the prosecution in the trials of KS, and showed herself more willing to be so, than His Honour anticipated would be the case. Parity 37 First it is necessary to be specific about the respective sentences. In relation to the child J, HS was convicted on four counts under s66C(1) of the Crimes Act, each carrying a maximum of 8 years. He received concurrent sentences of five years each to commence on 6 March 2003 and a non-parole period of three years. 38 In relation to the child F, he was convicted on two counts under s66A of the Crimes Act, each carrying a maximum of 20 years, and also on a further count under s61E(2), carrying a maximum of two years. H received concurrent terms of eight years for the former, to commence on 6 March 2003, and a non-parole period of five years and six months. He received a fixed term sentence of 15 months for the latter, to commence on the same date. 39 Obviously, as counsel for the appellant urged, the offences for which the two offenders were sentenced, were different. Notably the applicant pleaded guilty to three counts carrying 20 years, whereas HS was convicted of only two. On some counts against her it was an ingredient of the offence that it was committed by a person in authority over the victim. That aggravating factor was omitted from the counts against KS. 40 If it is useful to say so, she was liable to imprisonment for a total of 110 years, he to only 74. 41 Minds will differ as to the relative degrees of culpability of the two offenders. It is by no means clear to me, as was submitted for the respondents, that "on any objective assessment her criminality was greater than that for which HS was sentenced". 42 One may accept Judge Gibson's assessment: "There can be no greater [betrayal] of trust than to act in the way this prisoner did to her own children. It was not just a case of passive neglect, it was a case of actual participation." It is not so easy to dismiss the submission on behalf of the applicant that from the material in the applicant's case including the psychological and psychiatric reports and the documents from the Department of Community Services, HS was "clearly the dominant and domineering partner". It appears to me that he probably was. Judge Gibson did not make a finding one way or the other, and did not need to do so. On the issue of disparity, however, this Court ought to look at that issue carefully and make findings accordingly. 43 Judge Graham, on the other hand, was concerned to sentence HS in a way which would not give rise to a complaint of disparity on the part of HS, a difficult task which, according to His Honour's remarks on sentence, he carried out in a very careful and comprehensive manner. However, it is the outcome which is decisive. She received sentences on her pleas of guilty which were heavier than those he received after pleading not guilty. Whilst on analysis, as the respondent emphasises, the offences were different, I do not think that her criminality has been shown to be so much greater than his that she should have received a substantially heavier sentence than he did. 44 Judge Gibson did not appear to consider that there was any real contrition apart from what was indicated by the plea of guilty itself. Certainly the limited assistance she had given at that stage would support lack of contrition. On the other hand Ms Robilliard had reported: "… she feels serving a term of imprisonment is the only way she can demonstrate practical remorse for whatever injuries or neglect she fears her children may have suffered during their formative years under her care." 45 As His Honour otherwise accepted Ms Robilliard's report without criticism, it is not clear why he would have rejected the opinion quoted. Furthermore, a report from Dr Bruce Westmore, psychiatrist, dated 26 August 1994, said that she was despondent and expressed what appeared to be genuine remorse and regret over another, non-sexual, assault on the younger daughter committed whilst intoxicated, presumably one of the matters for which she was placed on a recognisance and ordered to perform community service by the Penrith Local Court on 10 March 1995. 46 Judge Gibson gave her a 20 per cent discount for the utilitarian value of her plea from which it would appear that on counts 6 and 7, at least, he took 10 years as a notional starting point and possibly a longer term on count 8. On the new material in the appeal I think that a total discount (including 20 per cent for utilitarian value and extending to contrition and the actual assistance in the prosecution of HS) in the order of 30 per cent would have been justified. Using 10 years as a notional starting point, this would have resulted in sentences of some seven years on counts 6 and 7 and, after the form 1 matters were taken into account, no more than eight years on the eighth count. Using eight years (being the head sentence imposed on the co-offender) as a notional starting point, the result would be sentences of substantially shorter duration. On that approach I think that the disparity between the sentences imposed on the two offenders is sufficient to cause a sense of grievance on the part of the appellant which would be well justified in the opinion of the disinterested observer. 47 Accordingly, I would grant leave to appeal and allow the appeal and vary the sentence so that the applicant serves an effective total term of imprisonment of eight years with a non-parole period of five years and six months. This may be done by varying the term of imprisonment on count 8 and the non-parole period on the sentences on counts 6, 7 and 8. This Court should interfere with the sentences below only to the extent necessary. Although, if I had been sentencing at first instance, I would have sentenced differently but with the same result in order to avoid any argument about Pearce, I do not think the course proposed involves any breach of the principle in Pearce. The concurrency of sentences is justified by a combination of the associated nature of the criminal conduct (including the matters on form 1) and a recognition of the totality principle, that is, the need to avoid a crushing sentence on a woman of 54 years of age with no previous record at the time of the offences under consideration. 48 The orders I propose are as follows: (a) grant leave to appeal; (b) allow the appeal; (c) quash the sentence on count 8 and set aside the non-parole period on count 8 and, in lieu thereof, substitute - (i) a period of imprisonment of eight years to commence on 3 October 2001 and expire on 2 October 2009, and (ii) a non-parole period to commence on 3 October 2001 and expire on 2 April 2007; and (d) set aside the non-parole period on counts 6 and 7 and, in lieu thereof, substitute, on each count, a non-parole period to commence on 3 October 2001 and to expire on 2 April 2007. ********** Last Modified: 12/23/2003 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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