New South Wales Court of Criminal Appeal CITATION : Regina v Phillip John HUMPHRIES [2004] NSWCCA 370 HEARING DATE(S) : 19 October 2004 JUDGMENT DATE : 19 October 2004 JUDGMENT OF : Barr J at 1 - 29, 32; Buddin J at 30; Campbell J at 31 DECISION : Extension of time granted to seek leave to appeal; Leave to appeal granted but appeal dismissed. PARTIES : Regina v Phillip John HUMPHRIES FILE NUMBER(S) : CCA 2004/1773 COUNSEL : P Bodor QC P Miller SOLICITORS : Fox O'Brien S C Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0383 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER : - 8 - IN THE COURT OF CRIMINAL APPEAL 2004/1773 BARR J BUDDIN J CAMPBELL AJ 19 OCTOBER 2004 REGINA v PHILLIP JOHN HUMPHRIES Judgment 1 BARR J: This is an application for an extension of time within which to seek leave to appeal and an application for leave to appeal against sentences imposed by Hock DCJ. For one count of indecent assault of a child under the age of sixteen years her Honour sentenced the applicant to a fixed term of imprisonment of twelve months, commencing on 12 September 2003. For a second count in identical terms, and taking into account two further indecent assaults of the same child, her Honour sentenced the applicant to two years' imprisonment and set a non-parole period of twelve months. The sentence was ordered to commence six months after the commencement of the fixed term. In imposing sentence her Honour took into account two further acts of indecent assault on the same complainant. The effective sentence was therefore two years and six months with a non-parole period of one year and six months. 2 The applicant is the father of the complainant, who was born on 2 August 1971. All four offences were committed between the eighth and tenth birthday anniversaries of the complainant. The first offence took place in the house in a suburb of Sydney where the applicant, his wife and their children lived. The complainant was the eldest child. The complainant was in her parents' bed and her mother was out of the house. The applicant placed his hand under her nightdress and masturbated her until she experienced an orgasm. She was then nine years old. 3 The second offence took place during the same year. The complainant was in the kitchen. The applicant came up behind her and put his hands around her, pulled down her pyjama bottom, pulled out his penis and rubbed it on her back. He made sounds of sexual ecstasy and he ejaculated on her back. 4 The first offence taken into account was committed when the applicant lifted the complainant's nightdress and knelt in front of her with his face near her genitals. He moved to a lying position in front of her but kept his head in the same position. He rubbed his penis on the carpet and ejaculated on the floor. The fourth offence, and the second taken into account, took place when the applicant fondled the complainant's breasts. 5 These offences were but four of a series of assaults or indecent acts which the applicant committed on the complainant over a period of five years beginning when the complainant was about eight years old and ending when she was about thirteen years old. Of course, the criminality to be taken into account in sentence was confined to that in the offences charged and taken into account, but those offences were not to be regarded as isolated events. 6 On 28 November 2001 the complainant, who was then resident in another State of Australia, told the police what the applicant had done. It was not until 5 August 2002 that the applicant was arrested and charged by members of the New South Wales Police Service. Her Honour took that delay into account in imposing sentence. 7 At the commencement of the hearing of the appeal there was a single ground of appeal, namely that her Honour erred in failing to accord the fact of delay appropriate weight in the imposition of sentence, resulting in a sentence that was excessive in all the circumstances. 8 Throughout his course of criminal conduct the applicant discouraged the complainant from telling anybody what he had done. He added to the fear which his acts instilled in her by telling her that if her mother found out it would kill her. 9 Early in 1990, when the applicant was eighteen years old, she told her mother what the applicant had done. Her mother confronted the applicant, who admitted his misconduct. She told her sister, Mrs Barron, who lived in Western Australia. Mrs Barron, a woman of strong religious convictions, decided to do what she could to keep the family together. The applicant and his wife had already consulted their general practitioner about the matter and he had advised the applicant that he could either report the matter to the police or see a psychiatrist. The applicant had chosen to see the psychiatrist. The general practitioner made the referral, including a referral for the complainant to see the same psychiatrist. Mrs Barron took the applicant to see the psychiatrist. 10 Mrs Barron remained in Sydney for about a week and during that time discussions took place within the family. It appears that the applicant, his wife, Mrs Barron and the complainant took part. Mrs Barron, who gave evidence before the sentencing judge, said that the conversation was heated at times but that the complainant was "very approachable". A scheme was put into effect by which the applicant would consult and accept the advice of the psychiatrist. The complainant went along with it. 11 After about a week Mrs Barron returned home to Western Australia and took the applicant with her. He stayed with her and her mother for about ten days before returning to Sydney. 12 Towards the end of 1990 the complainant went to live with Mrs Barron in Western Australia. She remained there until July 2001, shortly before she became engaged to be married. 13 The complainant continued to be uneasy about what the applicant had done. At about Christmas 1992, when she was spending a few months in Sydney living in the family home, there was a fight between her and her sister and brother. Her sister said that she did not believe the applicant capable of doing such things. The applicant again admitted his responsibility. 14 In 1997 the complainant was taken ill in Perth and the applicant and his wife went there to see her. The complainant again remonstrated with him about what he had done. He tried to brush her off but she insisted on telling him that as a result of what he had done she had become suicidal and had suffered major depression and had been in therapy for two and a half years. 15 At some substantial time before she finally went to the police, probably in 2001, the complainant telephoned Mrs Barron to tell her that she was intending to report the applicant to the police. Mrs Barron strongly advised her not to do so. The complainant apparently took the advice. The applicant was never told about what had passed between the complainant and Mrs Barron. 16 These matters were put before the sentencing judge and it was submitted that during 1990 appropriate measures were taken to achieve a reconciled result. The applicant had played his part and had agreed to act in a manner that the family then thought appropriate. During the time that had passed since then he had been, in some senses, entitled to expect that the matter was resolved. He had never sought to deny or diminish his responsibility but had, over a very long period of time, approached the matter honestly, apologetically and remorsefully. Accordingly, a significant allowance ought to be made in his favour. The sentencing judge said this: I have considered delay in this matter being brought to finality. Such a time span is not unusual in cases of this sort, as often the child is unable to speak out for many years. I have not overlooked that the complainant did tell her mother some ten years ago and that the matter was not then reported to police. However, given the complainant was only eighteen or nineteen at that time and it seems her family actively dissuaded her from that course, I have not treated that as a mitigating factor. 17 It was submitted on appeal that there was no evidence to support her Honour's finding that the family had actively dissuaded the complainant from reporting the matter to the police. I do not accept that submission. The family actively put into effect a scheme, the components of which were that the applicant would not tell the police but would accept the advice of the psychiatrist; that the complainant would not tell the police and that no other member of the family would tell the police. That was the initial choice presented to the applicant by the general practitioner. It was no coincidence that the applicant and then the complainant went to stay with Mrs Barron. Mrs Barron's active discouragement of the complainant's intended reporting in 2001, even though the applicant never knew about it, was capable of showing the purposeful way in which the several actors were prepared to maintain the scheme which they had devised. The principal beneficiary of the scheme was the applicant. 18 In my opinion it was well open to her Honour to conclude that the family had actively dissuaded the complainant from reporting the matter to police. 19 Then it was submitted that the delay of eleven or so years between the complaint and the charge, during which the applicant had openly and repeatedly admitted his guilt, should not have been ignored by the judge. Although a lengthy delay between finding and charging can be taken into account in favour of an offender, there is no rule that that must happen. Each case depends on its own facts. There is no rule of law that delay is always a detriment to the offender, though it often will be: Regina v Holyoake (1995) 82 A Crim R 502 at 508. 20 One of the incidents of a lengthy delay can be that the offender is left in an agony of mind, not knowing whether or not he will be charged. The applicant was not put into any such frame of mind. He was able confidently to rely, until the police were finally told, upon the complainant's not telling the police, in accordance with the understanding he believed had been reached. 21 Another incident of delay may be that the offender becomes rehabilitated in the meantime. That happened here, though it is appropriate to observe that, as the sentencing judge found, the applicant really lacked any understanding of the grave criminality of his conduct and the devastating effect that it had had on the complainant until he was charged. During interrogation by the investigating police officers the applicant said that he did not consider what he had done to be morally wrong. 22 The sentencing judge made full allowance for the applicant's rehabilitation, acknowledging that he had never sought to deny or play down his offences, that he had pleaded guilty at the earliest opportunity and that his pleas were part of the evidence demonstrating his genuine remorse. In that way the favourable allowance made for rehabilitation took account of delay. 23 It was submitted that the delay in complaint to the police had effectively deprived the applicant of the opportunity of being considered for inclusion in a programme under the Pre-Trial Diversion of Offenders Act 1985. In my opinion there is no substance in that submission. The complainant was already eighteen years old when she could have told the police. The purpose of the programme is to protect children and to encourage them to come forward without the fear of being held responsible for the break-up of families. Given that the offending conduct had ceased a number of years earlier, it seems doubtful whether the programme would have been resorted to. Of course, the applicant himself could have taken his chances of getting into the programme if he had been prepared to tell the police what had happened. In my opinion the applicant has lost nothing. 24 A further ground of appeal was added by leave at the commencement of the hearing. It asserts that her Honour erred in identifying the fact that the offences occurred in the complainant's family home as an aggravating factor to be taken into account on sentence. 25 Counsel for the applicant relied on a judgment of this court in Regina v Gazi Comert [2004] NSWCCA 125. That appeal concerned a sexual assault committed by a man on his wife in their house. The sentencing judge had regarded the fact that the act took place in the woman's house as an aggravating feature in sentencing. The court concluded that the judge fell into error and these words were said - No doubt that would have been an aggravating feature if the offender had been an intruder. However, we are unable to see how a sexual assault of a woman by her husband is rendered more serious because it was perpetrated in the matrimonial home. 26 This is what her Honour said - The offences were isolated but were part of a course of conduct of sexual abuse by the offender of his daughter MH. Aggravating features of the offences are the age of the child and the fact that the offences occurred in her own home. In addition what the offender did involved a gross breach of trust. MH was entitled to look to her father for love and protection, protection in particular from the very conduct in which he engaged. Children in a family situation are virtually helpless against sexual abuse from a parent. 27 It seems to me that what her Honour was really doing was rehearsing a number of circumstances which demonstrated what a gross breach of trust the applicant had committed. The fact that the applicant was her father and that he had repeatedly attacked her within the confines of their home rendered her the more helpless. Seen in context, the remarks of her Honour were permissible. I do not think that anything said in Gazi Comert should lead to any conclusion that her Honour fell into error. I do not think that this ground of appeal has been made good. 28 The offences committed by the applicant were very serious. The complainant was entitled to look to him for protection. Instead he committed a series of gross breaches of trust over a long time. The complainant was a very young child. She was helpless to resist his advances. She was very badly affected by his conduct. 29 In my opinion the sentences were well within the proper sentencing discretion of the sentencing judge. I would make the following orders: (1) Extend until the date of filing thereof the time within which the applicant may bring this application for leave to appeal. (2) Grant leave to appeal but dismiss the appeal. 30 BUDDIN J: I agree. 31 CAMPBELL AJ: I also agree 32 BARR J: The orders of the court are as I have proposed. ************ Last Modified: 10/22/2004 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.