New South Wales Court of Criminal Appeal CITATION : R v Newbigging [2004] NSWCCA 239 HEARING DATE(S) : 14/07/2004 JUDGMENT DATE : 29 July 2004 JUDGMENT OF : Wood CJ at CL; Adams J; Kirby J DECISION : Crown appeal dismissed. CATCHWORDS : Criminal Practice & Procedure - Crown appeal against sentence - indecent assault - stepdaughter - single count - whether can add to minimal findings of trial Judge on facts. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Savvas v The Queen (1998) 183 CLR 1 R v Rapley [1999] NSWCCA 302 CASES CITED : R v Levi (CCA (NSW), 15.5.97) Griffith v The Queen (1975) 137 CLR 293 R v Holder (1983) 3 NSWLR 245 R v George Michael Morris (CCA (NSW), 10.3.89) PARTIES : Regina (App) Angus McLean Newbigging (Resp) FILE NUMBER(S) : CCA 60145/04 COUNSEL : Dr P Power SC (Crown/Appl) J Young (Resp) SOLICITORS : S Kavanagh (Crown/Appl) S O'Connor (Resp) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0084 FILE NUMBER(S) : LOWER COURT Black DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60145/04 WOOD CJ at CL ADAMS J KIRBY J Thursday 29 July 2004 REGINA v Angus McLean NEWBIGGING Judgment 1 THE COURT: This is an appeal against sentence by the Crown. Having heard argument on 14 July 2004, the Court ordered that the appeal should be dismissed. Reasons were not given at that time. We now provide the reasons for that order. 2 On 3 June 2003, Mr Angus Newbigging ("the respondent") stood trial at the Lismore District Court before Black DCJ and a jury in respect of the following charges: Counts 1 to 4: That, between 25 May 2001 and 11 June 2001, he indecently assaulted a person under the age of 10 years, namely, 8 years. (contrary to s61M(2) Crimes Act 1900) (maximum penalty: 10 years imprisonment) Count 5: That, between 1 and 31 August 2001, he indecently assaulted a person under the age of 10 years, namely, 8 years. (contrary to s61M(2) Crimes Act 1900) 3 Mr Newbigging pleaded not guilty. On 12 June 2003 the jury returned a verdict of not guilty in respect of counts 1 to 4, but guilty of count 5. 4 Mr Newbigging was given bail pending submissions on sentence. The submissions, however, were delayed. On 8 August 2003 his bail was revoked. He remained in custody until sentenced on 26 March 2004. On that day, Black DCJ imposed a sentence of 18 months imprisonment, commencing on the date he entered custody (8 August 2003) and expiring on 7 February 2005. His Honour found special circumstances. He fixed a non parole period of 9 months, commencing from 8 August 2003 and expiring on 7 May 2004. Mr Newbigging was released on that day. He was present throughout the hearing of the appeal. 5 The Crown asserted that the sentence was manifestly inadequate. A Notice of Appeal was served upon the respondent on 6 April 2004, a matter of two weeks or so after the sentence had been imposed. The offence. 6 The complainant was born on 16 February 1993. In August 2001, when the offence occurred, she was about eight and a half years old. She was Mr Newbigging's step-daughter. He had known her since she was three years old. He had married her mother in March 1997. He and his wife later had their own child, the complainant's half sister. 7 The trial Judge's task on sentence was not easy. Mr Newbigging had been acquitted on four counts involving the same complainant, and convicted on one count (count 5). The complainant had been interviewed by the police in July 2002. That interview was, in effect, her evidence in chief. She provided a description of the circumstances in which the offence was committed in a house at Kurnell, at a time when her mother was at work on night shift. Her description included an allegation, which the jury plainly accepted, that the respondent had touched and rubbed her vagina. Mr Newbigging denied such conduct. In the course of this appeal, the Court was taken to the complainant's evidence and the submissions made by the Crown in respect of count 5 in his opening and closing addresses. 8 His Honour, in sentencing Mr Newbigging, was obliged to determine those facts relevant to the sentencing discretion, in a manner consistent with the jury verdict (Savvas v The Queen (1998) 183 CLR 1). Where the facts were adverse, he was required to be satisfied beyond reasonable doubt. 9 In his remarks on sentence his Honour referred to the acquittal of Mr Newbigging on four counts. He was plainly conscious of the need to sift the material to isolate those facts relevant to count 5 in respect of which he was satisfied to the necessary standard. He had the advantage of hearing the evidence, including that of the complainant and Mr Newbigging. Ultimately his Honour made findings in the following terms: "The offence, as will be apparent from the particular section, did not involve any penetration of the child, but nevertheless was of a sexual assault upon a young girl, then aged 8, consist(ing) of in essence, the offender touching her and rubbing her in her vaginal area." 10 In the circumstances, it is not appropriate, as the Crown acknowledged, that this Court should, by reference to the evidence and the arguments, seek to expand upon his Honour's brief description. 11 Before turning to the submissions, we should briefly describe the subjective case presented on behalf of Mr Newbigging. Subjective case. 12 Mr Newbigging was born in South Africa on 22 September 1974. He is 29 years old. He came to Australia at an early age. Having obtained the School Certificate, he began an apprenticeship as a boilermaker, which he completed in 1995. Mr Newbigging was required, as part of his apprenticeship, to undertake a TAFE course. For three years in succession he was awarded the College medallion and made Apprentice of the Year. He was twice selected in the TAFE Olympics. 13 Whilst completing his apprenticeship he was employed by a number of companies. After his marriage he began a further course full time to become a mechanical engineer. Whilst undertaking that course, he worked as a taxi driver part time to support his family. He ultimately obtained a Diploma of Mechanical Engineering. 14 In March 2002 he was employed by Adsteam as a quality co-ordinator and marine fitter. Mr Hall, the manager of that company, gave evidence on sentence. He was aware of Mr Newbigging's conviction. He, nonetheless, regarded him highly. He said that his job would be open once he had completed his sentence. 15 Mr Newbigging has no other convictions. He was referred to Dr John Pickering, a psychiatrist, for assessment. A report from Dr Pickering of 18 March 2004 was tendered before the sentencing Judge. That report included the following: "Mr Newbigging does not suffer from any psychiatric disorder and does not have any psychological symptoms other than his apprehensiveness about his present predicament. He gave a history of someone who has come from a loving and supportive family, with a childhood that was characterised by being nurtured in that family, with good relationships continuing to the present time. His school history and his post-school work history including his apprenticeship indicate the he has been an achiever. His performance at TAFE is impressive, being Apprentice of the Year for three years running and being selected for the TAFE Olympics twice. His peer relationships and his current relationship with his girlfriend all are indicative of a stable well-adjusted young man. There is nothing in the history to indicate any sexual deviation or any sexual interest in anything other than adult heterosexual relationships." 16 The report continued: "There was certainly nothing to indicate that Mr Newbigging was likely to commit offences involving children in the future nor indeed any other offences. This writer would not regard him as a threat to society and cannot see any indication that he is likely to commit offences similar to that of which he has been convicted. As there is no psychiatric diagnosis and no psychological problem, no treatment can be recommended. The issue of placing him in an offenders' programme is difficult, as this writer does not believe that he is likely to commit such offences even if he is not asked to participate in such a programme." 17 His Honour dealt with the issue of rehabilitation, referring to certain paragraphs in the Crimes (Sentencing Procedure) Act 1999 which identify matters in mitigation, namely, s21A(3)(g) (the offender is unlikely to re-offend) and (h) (the offender has good prospects of rehabilitation). He said this: (ROS 4/5) "They need a little consideration because of the circumstances of this case, namely he maintains his innocence of the matter of which he has been convicted and the rhetorical question arises, can one say in the light of that that he is unlikely to re-offend, can one say that he has good prospects of rehabilitation? I have thought about that and I have listened and taken into account the views of the crown in relation to Dr Pickering's view. I feel able, having heard all the evidence in this case, in particular the people called in support of the offender and his own evidence, to say that to the requisite standard of proof, I believe he is unlikely to re-offend and I believe he has good prospects of rehabilitation, because of the people who are around him to support him and accordingly I find those two particular mitigating factors made out." 18 When bail was revoked, Mr Newbigging was advised by the gaol authorities to enter protection by reason of the nature of his conviction. The consequence was that for much of the period of his incarceration he was locked up for 23-1/2 hours a day. As mentioned, he completed the non parole period on 7 May 2004 and was released. Submissions by the parties. 19 The Crown drew attention to the serious nature of the charge and the real psychological harm that may be suffered by a victim so young, a matter which his Honour recognised. The Crown then made the following submission: "19. In the Crown submission, inter alia, in light of: · the tender age of the complainant at the time; · the fact that there was no plea and consequently the complainant was required to give evidence in the proceedings; · the fact that the offence represented a gross breach of trust; and · the assaults occurred within the family environment, the inevitable conclusion is that the sentence that was imposed by Black DCJ was manifestly inadequate in all the circumstances and this Court should intervene." 20 In his Honour's remarks, as already mentioned, he addressed issues arising under s21A of the Crimes (Sentencing Procedure) Act. He was obliged to identify both aggravating and mitigating factors. In respect of aggravating factors, his Honour said this: (ROS 4) "First of all I am obliged to look at any aggravating factors, but I have to say that I do not see any there, because of course it is an element of the offence of which he was convicted, that he was in the position that he was and the child was of the age that she was." 21 The charge was brought under s61M(2) of the Crimes Act 1900. Section 61(M) is in these terms: " 61M Aggravated indecent assault (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years. (3) In this section, circumstances of aggravation means circumstances in which: (a) the alleged offender is in the company of another person or persons; or (b) the alleged victim is under the age of 16 years; or (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or (d) the alleged victim has a serious physical disability; or (e) the alleged victim has a serious intellectual disability." (emphasis in original) 22 Under s61M(2) the fact that the child is under the authority of a person who indecently assaults her is not an element of the offence. It is a matter to be taken into account under s21A(2) of the Crimes (Sentencing Procedure) Act which includes the following: " 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors (k) the offender abused a position of trust or authority in relation to the victim." 23 The statement by his Honour was therefore not correct. However, there can be no doubt that his Honour took account of Mr Newbigging's relationship with the complainant, as her stepfather. 24 The Crown drew attention to the authorities which suggested that, in offences of this sort, where general and personal deterrence are so important, the previous good character of an offender is of less importance (R v Rapley [1999] NSWCCA 302, per Handley JA, para 18-20; R v Levi (CCA (NSW), 15.5.97, per Sperling J)). However, these were cases where there were a number of convictions and a course of conduct towards the victim or victims. The offending behaviour was not capable of being regarded as an isolated lapse. However, Mr Newbigging, was convicted on one count only. There was no penetration. The act may be regarded as an isolated act of aberrant behaviour, to be seen in the context of his other life achievements and previous good character. 25 The respondent Counsel, in his submissions, drew attention to the exceptional nature of a Crown appeal (Griffith v The Queen (1977) 137 CLR 293). In R v Holder (1983) 3 NSWLR 245, Street CJ said this: (at 255) "Whilst, as I have earlier said, the approach to the detection of error where the ground relied upon is manifest excess or manifest inadequacy is identical in both cases (cf per Isaacs J in Whittaker v The King ), it is frequently more difficult to detect error in the form of manifest inadequacy. Moreover, courts are understandably more ready to ascribe error where the ground is manifest excess than where the ground is manifest inadequacy." 26 Reference was also made to the useful statement of principle, in appeals such as this, by Hunt J in R v George Michael Morris (CCA (NSW), 10.3.89), where his Honour said this: "It is, of course, important to make it clear that this Court will not interfere with a sentence imposed merely because it is of the view that that sentence is insufficient. It interferes only if it be shown that the sentencing judge was in error by acting on a wrong principle or by misunderstanding or wrongly assessing some salient feature of the evidence. That error may often appear only from the sentence itself, in that some sentences will be shown to be so inadequate as to manifest the existence of such an error by the judge. It is necessary to emphasise that, in the absence of a well demonstrated mistake, this Court should only increase sentences imposed by a judge in the exercise of his sentencing discretion in compelling cases." 27 In addition, the fact of double jeopardy is recognised, that having been sentenced once, the respondent is obliged to face the ordeal again, with the possibility, in the case of Mr Newbigging, that he may be ordered to return to gaol (cf R v Holder (supra) at 255). 28 Both parties drew attention to various decisions involving convictions under s61M(2). However, it was acknowledged that such cases do not provide much assistance. None involved a person convicted of a single count. All involved multiple offences, some of which included penetration. 29 The material placed before the sentencing Judge and before this Court included statistics from the Judicial Commission in respect of persons convicted under s61M(2). The Crown urged caution in respect of that material, first, because the sample of cases was small (thirteen), and secondly, because the section comprehends such a wide range of conduct. Without knowing the detail of each case the statistics may be misleading. 30 Whilst caution is required, the material does, we believe, furnish some guidance. The picture which emerges is not markedly different from the picture, such as it is, to be derived from cases where the offender was convicted of multiple offences, where at least one of the convictions was under s61M(2). The statistics suggest that 46% of offenders received either a fixed term or a non parole of 12 months or less. A further 31% received a fixed term or a non parole period of 2 years. 31 Whilst it may be said that a sentence of 18 months with a non parole period of 9 months was lenient, we do not believe that it can be said to have been manifestly inadequate. It was therefore appropriate that the Crown appeal should be dismissed. ********** Last Modified: 08/06/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.