Regina v Martin [2003] NSWCCA 354

New South Wales Court of Criminal Appeal

CITATION : Regina v Martin [2003] NSWCCA 354 HEARING DATE(S) : Wednesday 19 November 2003 JUDGMENT DATE : 19 November 2003

JUDGMENT OF : Handley JA at 31; Grove J at 2; Adams J at 32 DECISION : APPEAL ALLOWED; NON PAROLE PERIOD REDUCED

CATCHWORDS : CRIMINAL LAW AND PRACTICE - SENTENCE - ACCUMULATION - PROPORTIONALITY BETWEEN ULTIMATE EFFECTIVE HEAD SENTENCE AND NON-PAROLE PERIOD - (PER ADAMS J) DISAPPROVAL OF ADVERSE COMMENT DIRECTED AT A PERSON WHO IS NEITHER PARTY NOR WITNESS. PARTIES : Regina v James Charles Martin FILE NUMBER(S) : CCA 60272/03 COUNSEL : E. Wilkins (Crown) P. Hamill (Applicant) SOLICITORS : C.K. Smith (Crown) S. O'Connor (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0262 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60272/03 HANDLEY JA GROVE J ADAMS J Wednesday 19 November 2003

REGINA v JAMES CHARLES MARTIN

JUDGMENT

1 HANDLEY JA: I will ask Grove J to give the first judgment. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by English DCJ at Gosford District Court on 13 December 2002. The applicant adhered to pleas of guilty previously tendered to a Magistrate to two charges of indecent assault and one charge of sexual intercourse with a child aged between ten and sixteen years whilst the child was under his authority. 3 Her Honour was asked to take into account two further similar charges to the last mentioned on a Form 1. The maximum prescribed penalty for indecent assault is six years imprisonment and that for the offence of sexual intercourse of the nature specified is ten years imprisonment. 4 Her Honour structured sentences as follows. On the first charge of indecent assault, imprisonment for one year fixed term to commence on 6 December 2002. 5 On the second charge of indecent assault, imprisonment for eighteen months to commence at the expiry of the previous sentence (6 December 2003) and on the charge of sexual intercourse (taking into account the Form 1 matters) to imprisonment for six years to commence on 6 December 2003 with a non parole period of four years and six months commencing on 6 December 2003. 6 In setting the non parole period her Honour declined to find special circumstances so as to vary the ratio between non parole period and head sentence as mentioned in the statute. 7 The applicant is the victim's natural father. The offences of indecent assault commenced when she was approximately eight years of age. The applicant, who gave evidence in the sentencing proceedings, accepted that his first act of penile/vaginal intercourse with the victim occurred when she was aged twelve to thirteen years. The charges were representative in the sense that it was an agreed fact that he continued to have a sexual relationship with his daughter until she was about twenty one years of age. It ceased then and the victim has later married. 8 The applicant had married the mother of the victim when he was aged nineteen and she aged sixteen. A first daughter born to them survived only into the second day of life. The victim was the next born child and the applicant was aged twenty-two at the time of her birth. Two further children, both boys, were born subsequently. The marriage failed and ended in divorce some years ago. 9 The applicant is now aged fifty-one years. He has formed a new relationship which has been in existence for approximately four years. When that relationship had been in existence for about two years, he revealed to his new partner the history of his depredations upon his daughter and the partner has continued to support him, she herself also giving evidence at the sentencing proceedings. 10 It is obvious that for some time after the cessation of the illicit relationship matters remained in abeyance. However, on 3 April 2000 the victim first attended Police. She returned to make a formal statement and complaint on 13 March 2001. 11 In the meantime the applicant wrote to her regarding, "issues that concern both of us that need to be resolved in order to enable our respective lives to move on". Part of the missive read: "This letter is neither an admission nor a denial of wrongdoing on my part. Only you and I know what did or did not happen". 12 It was about this time that the applicant had made his revelation to his current partner. There is evidence that he sought some counselling. 13 The first ground argued in support of the application challenges findings made by the sentencing judge relating to remorse, which it was contended were not reasonably open on the evidence. 14 The relevant portion of Her Honour's remarks on sentence are as follows: "I find myself faced with considerable difficulty in accepting the offender as being truly remorseful and contrite. I find it curious to say the least that he commences counselling at about the very time the complainant first speaks to police. I find myself unable to accept his evidence that he undertook counselling to be able to assist the complainant. I find he became aware of the complainant's disclosure to the police and other members of the family and was concerned about his future and the effect the disclosure would have upon his employment. Like so many perpetrators of sexual offences against children he has gone through the years untroubled by his offences, lacking in any remorse of any of them and feeling confident that they would never come to light because his daughter was not prepared to discuss them, his confidence increasing as the years went by and she remained silent." 15 It is convenient to deal with a number of issues adverted to on behalf of the applicant which, cumulatively are argued to support the contention of the unreasonableness of her Honour's finding. 16 The first matter is the early plea of guilty. This was acknowledged and reflected in a "utilitarian" discount assessment of 25 percent. 17 Next reference is made to the contents of the electronically recorded interview. It is true that in the course of it the applicant made remarks indicating that he was glad that the facts were becoming known and he expressed a view that his daughter might be able to have a normal sort of life. Nevertheless, the last mentioned remark was preceded by statements which showed considerable focus on the applicant himself or at least including himself such as "everyone can get on with their own thing, you know" and "I don't know how it is affecting her" and "obviously it has affected her differently to what she thought it was going to and to what I thought it was going to". 18 Reference is made to a passage of evidence by the applicant to the sentencing judge. As I have said, she was in an advantaged position to assess the credibility and the sincerity of these claims. 19 I have already extracted some part of the letter of 24 June 2000. It is true that in the letter the applicant provided his daughter with a telephone number for an organization which assists adult victims of child abuse, but it is also noteworthy that in the context of this he asks for, even though he says he does not expect, forgiveness. 20 There were tendered on behalf of the applicant two reports of consulting psychologists. As is apparent, their opinions are very much necessarily based upon what the applicant told them insofar as they speak of his views of his own behaviour as reprehensible, wrong or inappropriate. These opinions are not derived from objective testing but from the applicant's claims. The same might be said of his revelations to his current partner. 21 It is accurate that the applicant described attending for counselling sessions in the year 2000 on some six occasions, but it was open to her Honour to conclude that this was designed to ameliorate the applicant's own feelings or even pangs of conscience rather than assisting his victim. Seeking relief from the pangs of conscience is not synonymous with remorse. 22 Doctor Saxton is a family friend whom the applicant has apparently met through his current partner. The conduct of the applicant has been revealed to him and he was shocked by it. In a letter prepared for sentence purposes he states in relation to the applicant that "his remorse is without question" but his oral evidence showed that his association extended to contact for about four or five times a year and the totality of it did not, in my view, mandate a finding by her Honour that the applicant was in fact remorseful in any significant sense. 23 As the Crown has submitted to this Court, it was an agreed fact that the applicant's sexual offending commenced when the victim was eight years old and continued until she was twenty-one, and I agree that the circumstance that the applicant behaved in that way over a span of thirteen years is relevant on the question of remorse as are the circumstances in which he came to acknowledge his dealing with his child. 24 The next submission is that the sentencing judge erred in failing to take into account the effect of the accumulation of sentences in determining the issue of special circumstances and in setting the non parole period. As I have noted, her Honour made a specific finding on special circumstances negative to the interests of the applicant in this regard. The kernel of the submission is that the failure to refer to accumulation in relation to the proportion between sentence and non parole period suggests that the matter has been overlooked. Of course, her Honour was conscious of the span of sentence as she specified commencing and terminating dates of various periods, including specification of the first date of eligibility of the applicant for release to parole. 25 However, the contention of the applicant is that those expressions give no indication that any attention has been given to the effect of accumulation and the proportionality between the effective total head sentence and the non parole period. It can be observed that the actual effect is to deprive the applicant from eligibility for parole for about 80 percent of the total sentence. I accept that it was within the appropriate exercise of her Honour's discretionary judgment to find that no special circumstances existed, although that is not necessarily a conclusion I would have reached myself. 26 Nevertheless, accepting Her Honour's judgment, I am of the view that the applicant's submission that proportionality appears to have been overlooked should be sustained and the non parole period should be adjusted and applied in accordance with the statutory prescription. 27 In so concluding I should not be taken as asserting some principle that in every case where special circumstances are not found and there has been accumulation of sentences there should be that precise application of statutory proportionality but in this particular case I consider the adjustment should be made in the interests of ensuring that it is made plain that the issue has not been overlooked, and that due regard is paid to assessment. 28 I propose that application for leave to appeal against sentence be granted and the appeal allowed to the extent that the non parole period specified in relation to the third count be quashed, and in lieu thereof a non parole period of four years and one month be specified to commence on 6 December 2003 and to expire on 5 January 2008. 29 The first date of eligibility of the applicant for parole is specified as 5 January 2008. 30 There should be a non publication order of any material which would identify the complainant. 31 HANDLEY JA: I agree. 32 ADAMS J: I agree but I wish to add a comment. Her Honour's judgment included the following passage, speaking of the victim … "a child who had an inkling initially of what he was doing to her was wrong but who was totally disbelieved by a woman who purports to call herself a mother". 33 There was, of course, material which entitled her Honour to conclude that the victim's mother did not believe her allegation. However, the characterization of the mother as someone who purported only to be a mother and by implication was not or had acted with complete irresponsibility in that role should not have been made. The victim's mother was not a witness. There had been no statement from her. She was not represented at those proceedings and had no opportunity to respond to criticism. Proceedings of the kind which were taking place did not involve an examination of the victim's mother's behaviour. 34 It is necessary, I think, that Judges restrain themselves from criticising persons who have no opportunity to respond, however justifiable the Judge might think the observation is. It is contrary, as I see it, to the proper judicial function to make observations of the kind to which I have brought attention when the person being criticised has not had any opportunity to reply. It is simply unfair. 35 Otherwise, I agree with the judgment of his Honour Grove J and his Honour's reasons for it. 36 HANDLEY JA: The orders of the Court will be as announced by Mr Justice Grove. **********