New South Wales Court of Criminal Appeal CITATION : REGINA v Andrew Robert MANNERS [2004] NSWCCA 181 HEARING DATE(S) : 4/6/04 JUDGMENT DATE : 2 July 2004 JUDGMENT OF : Bell J at 1; Howie J at 36; Hislop J at 37 DECISION : Appeal dismissed Child Protection (Prohibited Employment) Act 1998 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Everett v R (1994) 181 CLR 295 R v Baker [2000] NSWCCA 85 R v Burchell (1987) 34 A Crim R 148 CASES CITED : R v Fitzgerald [2004] NSWCCA 5 Regina v Kain [2004] NSWCCA 143 R v Totten [2003] NSWCCA 207 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Veen (No 2) v The Queen (1988) 164 CLR 465 PARTIES : REGINA (Appellant) Andrew Robert MANNERS (Respondent) FILE NUMBER(S) : CCA 60031/04 COUNSEL : E Wilkins (Crown) A P Cook (Respondent) SOLICITORS : S Kavanagh S O'Connor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0653 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60031/04 BELL J HOWIE J HISLOP J Friday 2 July 2004 REGINA v Andrew Robert MANNERS Judgment 1 BELL J: This is an appeal brought by the Director of Public Prosecutions against the inadequacy of a sentence imposed by his Honour Judge Nield (the Judge) in the Sydney District Court on 18 December 2003. 2 The respondent was sentenced to a term of 6 years' imprisonment to date from 8 February 2003 for an offence of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900. A non-parole period of 4 years and 3 months was specified. 3 The Judge sentenced the respondent upon the following facts: "The facts relied upon by the Crown to prove the offender's commission of the offence are these: 1. On a day between 28 March and 3 April 2002 the offender kissed the complainant on her lips and, after inserting one of his hands inside her pants, rubbed her buttocks with his hand. At this time the complainant was aged nearly ten years, her tenth birthday being on 3 April 2002. 2. On 5 May 2002 the offender again kissed the complainant on her lips and, after inserting one of his hands inside her pants, rubbed her buttocks with his hand. 3. On 27 July 2002 the offender exposed the complainant's external genitalia by moving her pants to one side of her genitalia and, using a digital camera, photographed her genitalia and then displayed the photographs to her on his computer. 4. On occasions on a Saturday morning or a Thursday evening between 3 May and 23 October 2002 the offender kissed the complainant on her lips and, after inserting one of his hands under her pants, rubbed her external genitalia, her buttocks or her bottom with his hand. 5. On an occasion on a week day, other than a Thursday, between 3 May and 23 October 2002 the offender, after sitting the complainant on his lap and inserting one of his hands inside her pants, rubbed her external genitalia with his hand. The offender was arrested by police on 8 February 2002 and he was taken to Bathurst police station where he was interviewed by police. The interview was recorded. The transcript of the interview is Exhibit J. During the course of the interview the offender admitted that on numerous occasions he had the complainant sitting on his lap, he kissed the complainant on her lips and hugged her and he touched the complainant on her external genitalia, which he called her vagina, her buttocks and her bottom and that on one occasion he inserted one of his fingers between the lips of her external genitalia when touching her on her genitalia and he took digital photographs of her external genitalia and displayed the photographs of her to her on his computer. He admitted that he did these things to her for his sexual gratification as he was attracted sexually to children aged nine, ten and eleven." 4 The offences occurred over a period of 8 months between March and October 2002. They commenced when the respondent was 26 years of age. 5 The Judge found the respondent to be a paedophile who is sexually attracted to pre-pubescent girls. He referred to the respondent's criminal history. In January 1998 the respondent was convicted by the Brisbane District Court of three charges of aggravated indecent dealing with a child under the age of 12 years. The offences were committed upon a child aged 3 years. The respondent was then aged 23 years. He was sentenced to imprisonment for a term of 1 year and 4 months with a recommendation that he be considered for parole after having served 5 months. Each of the sentences was directed to be served concurrently. 6 It appears that the discovery of the offences for which the respondent was dealt with in January 1998 led to him being charged with further sexual offences involving children. In December 1998 he was sentenced in the Brisbane District Court for a further series of sexual offences committed over the same period as those for which he had already been dealt with. These offences were related to five complainants aged between 6 and 9 years. By the time the respondent was dealt with for these offences he had been in custody for 10 months. He was sentenced to imprisonment for 4 years with a recommendation that he be considered for parole after serving 9 months. 7 The respondent was released to parole on 14 February 2000 subject to the supervision of the Queensland Community Corrections Department. Arrangements were made for his supervision to be transferred to the New South Wales Probation and Parole Service and he returned to this State and resumed living with his family. 8 The respondent was to his knowledge "a prohibited person" within the meaning of the Child Protection (Prohibited Employment) Act 1998. As such he was prohibited from teaching children. He was required to disclose his employment in the event that it brought him into contact with children. 9 After the respondent resumed living with his parents he commenced to teach Scottish dancing to children at a dance studio operated by his mother. He taught children aged between 5 and 17 years. He did not disclose his employment because he knew that he would be prevented from teaching children if he did so. 10 The complainant was one of the respondent's students. She was aged 9 and 10 years at the date of the various offences. 11 His Honour allowed a 25% discount on sentence to reflect the utilitarian value of the respondent's early plea of guilty before the Local Court. 12 The Judge took into account the contents of a number of reports including pre-release assessment reports and a pre-sentence report. He considered that the most significant factor in the respondent's upbringing was the fact that he had been sexually abused twice during his childhood. The evidence in this regard was that the respondent was abused at the age of 6 years by a family friend. This abuse involved mutual genital touching. At the age of 12 years the respondent had been regularly abused by the headmaster of his school. The abuse involved mutual masturbation but had progressed on one occasion to penetration of the respondent's anus. 13 His Honour also took into account that the respondent suffers from bilateral hearing loss and wears hearing aids. He found him to be a person lacking self-esteem and self-confidence, who was socially inept and unable to form relationships with people of his own age, preferring instead the company of pre-pubescent children. 14 The Judge adverted, in terms, to the purposes of sentencing as stated in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). He referred to the aggravating and mitigating factors set out in s 21A of the Act. In this respect he noted as factors that aggravated the offence the following: · The offence was planned; · The offender, as he had done before, ingratiated himself with the complainant's parents so that he may prey upon the complainant; · The complainant was vulnerable because of her age; · The respondent abused the trust of the complainant and her parents; · The respondent abused his position of authority over the complainant; · The respondent did not commit a single isolated act of sexual abuse rather the abuse had taken place on numerous occasions over the six months period particularised in the indictment; · The emotional effect of the respondent's conduct upon the complainant had been substantial as was revealed by her statement; · The respondent was a person with convictions for offences involving the sexual abuse of children; · The respondent was on parole in relation to earlier offences of sexual abuse of children when he committed the subject offence. 15 The mitigating factors identified by the Judge were: · That the respondent did not harm the complainant physically; · The respondent admitted his offences when he was interviewed by the police; · The early plea of guilty; · The pleas of guilty had relieved the complainant of the need to give evidence. 16 The Judge went on to observe that additional factors had been identified on the respondent's behalf as mitigating his offence. In this respect reliance was placed on: (i) a letter written by the respondent to the complainant as demonstrating remorse; (ii) that he was not likely to re-offend; and (iii) that he had good prospects of rehabilitation. The Judge rejected these submissions. He found the respondent's plea of guilty to be recognition of the inevitable and not a show of remorse. He considered the letter written to the complainant to be the act of a manipulative man and not a show of remorse. He observed that the respondent's conduct following his release from prison until the date of his arrest demonstrated his unpreparedness to accept the restrictions placed upon him as a child sex offender. The commission of the offence whilst on parole for like offences demonstrated that it was likely that the respondent would re-offend if given the opportunity. Evidence of the respondent's good intentions outlined in the Exit Report for the Sex Offender Intervention Program and the pre-release assessment were found by the Judge to have been quickly forgotten or rejected following his release from custody. 17 The Judge considered that there was a need to reflect both personal and general deterrence in the sentence. 18 The Judge took into account the likelihood that the respondent would serve his sentence as a protection prisoner. In this respect he observed that prison life would be more onerous for him than for other prisoners. 19 His Honour accepted that the respondent was a person who required long-term psychotherapy. He rejected this as a basis for a finding of special circumstances for the purposes of s 44(2) of the Act. However, he took into account that the respondent had served a sentence of 3 months imprisonment for related offences (remaining in child related employment and failure to comply with reporting requirements) concurrently with the balance of his parole. He found this to be a special circumstance justifying a non-parole period of 4 years and 3 months, together with a parole period of 1 year and 9 months. 20 The incidents particularised as the sexual offences committed on three or more separate occasions were indecent assaults committed in circumstances of aggravation. The first such offence took place when the complainant was a child under 10 years. This offence is provided for by s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years' imprisonment. The two further indecent assaults occurred when the complainant was aged 10 years. These offences are provided by s 61M(1) of the Crimes Act and carry a maximum penalty of imprisonment for 7 years. 21 This Court considered the approach to sentencing for offences contrary to s 66EA in R v Fitzgerald [2004] NSWCCA 5. Sully J (in a judgment with which the other members of the Court agreed) concluded that there was nothing to suggest that the Parliament intended sentencing for a course of conduct that had crystallised into a s 66EA conviction to be more harsh than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences (at paragraph 13 (6)). 22 Before turning to the submissions advanced by the Crown in support of the appeal it is appropriate to refer to the observations of McHugh J in Everett v R (1994) 181 CLR 295 at 306: "If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ." The circumstance that his Honour was dealing with the provisions of the Criminal Code (Tas) which require the Attorney-General to obtain leave to appeal against the inadequacy of sentence, does not mean that his observations are without application to the determination of Crown appeals under the Criminal Appeal Act 1912 (NSW). 23 In written submissions the Crown contended that the Judge had erred in that the sentence failed to reflect the objective seriousness of the offence. In support of this submission the Crown pointed to the serious circumstance that the offence had been committed while the respondent was on parole for like offences. As I have noted, the Judge identified as a factor aggravating the commission of the offence that it had been committed while the respondent was on parole for earlier offences involving the sexual abuse of children. This submission amounts to no more than a contention that the sentence is manifestly inadequate. It is necessary to keep in mind the observations of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [19]: "The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process. The Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." 24 Next the Crown contended that the Judge had made no mention either of the protection of the community or of the need for the sentence to adequately punish the offender. The Judge directed himself to the provisions of s 3A of the Act. The purposes of sentencing are there set out and include: "(a) To ensure that the offender is adequately punished for the offence, … (c) To protect the community from the offender." I do not consider that his Honour's failure to recite the terms of the section to which he referred to betray error. 25 The Crown went on to submit that the Judge had failed to impose a sentence that reflected the circumstance that the offence was not an isolated incident but that it was part of a long-standing and entrenched pattern of criminal behaviour. In written submissions the Crown contended that his Honour had not approached the question of the respondent's prior convictions conformably with the joint judgment in Veen (No 2) v The Queen (1988) 164 CLR 465. 26 In Veen (No 2) Mason CJ, Brennan, Dawson and Toohey JJ said at 477: "[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 27 The Judge took into account the respondent's convictions for like offences in assessing the submission that he was not likely to re-offend. In light of his criminal history the Judge rejected this submission and concluded that it was appropriate to give particular weight to personal deterrence. There is no basis for the contention that his Honour did not have regard to the relevance of the respondent's criminal history consistently with the statement of principle in Veen (No 2). Again, this submission is no more than an assertion of manifest inadequacy. 28 The Crown identified two matters that were said to evidence patent error in the Judge's reasons for sentence. Firstly, it was contended that he misapplied the principles in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267. 29 The passage that is the subject of this challenge is: "4. The offender's character. Putting aside the stealing offences committed during 1996, which I disregard, and the child sex abuse offences, to which I have referred already, and which I do not disregard, the offender is well-liked by people who know him, as evidenced by the testimonials (Exhibits 3 to 6 inclusive) and I take his character into account as the decision of the High Court in Ryan requires me to do but it does not entitle him to much leniency or reduction in sentence." (ROS 8). 30 The Crown's submissions were posited upon the basis that the Judge made a finding that the respondent was a person of prior good character. In the Crown's submission his Honour erred in so finding. Nothing in Ryan is said to have required his Honour to make such a finding. So much may be allowed. While his Honour's reference to Ryan may be elliptical I do not understand him to have found the respondent to be a person of prior good character. He did not say that he was. He said that he would take the respondent's character into account. He referred in this context to the respondent's record of prior sexual offences. He went on to note that that the respondent is a person who, despite his criminal antecedents, has favourably impressed members of the community. I do not propose to detail the contents of the testimonials. Each one gave an account of the respondent as a person possessing a number of favourable personal qualities notwithstanding his admission of being a child sex offender. The circumstance that the respondent has in other respects in his life impressed those who know him as having positive qualities is not irrelevant to the exercise of the sentencing discretion. It is material that bears on the consideration of the respondent's prospects of rehabilitation. For the reasons that his Honour gave, in the circumstances of this case, there could be little allowance by way of mitigation of sentence in this regard. 31 The second suggested patent error related to the Judge's finding that it was likely that the respondent would serve his sentence on protection. The Judge observed that the experience of custody for a prisoner on protection is recognised as being more onerous or harsh than it would otherwise be. This was a factor that he took into account. His Honour's approach was consistent with the decision in R v Burchell (1987) 34 A Crim R 148 per Hunt J at 151. This Court has on a number of occasions in the recent past drawn attention to the circumstance that conditions for prisoners on protection may vary from one institution to another and that it should not necessarily be assumed that a prisoner whose status is that of a protection prisoner will experience conditions that are more onerous than those applicable to other prisoners. The authorities in this respect are collected in Regina v Kain [2004] NSWCCA 143 per Levine J at [61] – [65]. 32 The note of caution that has been sounded concerning the ready acceptance of a submission, unsupported by evidence, that a sentence should be reduced because of the supposition that the prisoner will spend the whole of it in protective custody does not demonstrate that the Judge was in error in the approach he took in this case. His Honour considered that there was a likelihood of the respondent serving his sentence as a protection prisoner. He took this factor into account in a conventional way: R v Totten [2003] NSWCCA 207 at [44]. 33 I am not persuaded that the Crown has identified any error in the Judge's findings of fact or in his application of principle to those facts. 34 As Mr Cook, who appeared on the respondent's behalf, submitted, s 66EA is capable of applying to a wide range of conduct constituting sexual offences against children. At one end of the scale are offences under s 61JA that carry life imprisonment as a maximum penalty and at the other end of the scale are offences under s 61N(2) that carry a maximum penalty of 18 months' imprisonment. The individual acts particularised in support of this count involved aggravated indecent assaults on a young child. The acts themselves were not in the worst category for offences of this description although the age of the child does not admit of them being viewed as other than serious. The sentence may be thought to have been a lenient one. Particularly is this so when it is recalled that it was committed while the respondent was on parole for like offences. However, I have concluded that it cannot be said that it is one, taking into account the 25% discount for the early plea of guilty, that falls outside the range of the Judge's discretion. 35 For these reasons I would dismiss the appeal. 36 HOWIE J: I agree with Bell J. 37 HISLOP J: I agree with Bell J. ********** Last Modified: 07/12/2004 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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