New South Wales Court of Criminal Appeal CITATION : Regina v Thomas Taig Lynn [2004] NSWCCA 222 revised - 28/07/2004 HEARING DATE(S) : 1 July 2004 JUDGMENT DATE : 1 July 2004 JUDGMENT OF : Studdert J at 20, 22; Dunford J at 1; Howie J at 21 DECISION : Appeal allowed - applicant re-sentenced CATCHWORDS : Criminal Law - Sentencing - late pleas of guilty - discount for utilitarian value - need for transparency - additional matters on Form 1. LEGISLATION CITED : Crimes Act 1900 s 61 Crimes (Sentencing Procedure) Act 1999 s 33 Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518, 56 NSWLR 147 R v Barton [2001] NSWCCA 66, 121 A Crim R 185 CASES CITED : R v Mako [2004] NSWCCA 90 R v Perese [2001] NSWCCA 475, 126 A Crim R 508 R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 PARTIES : Regina v Thomas Taig Lynn FILE NUMBER(S) : CCA 60067/04 COUNSEL : Dr P J P Power SC - Crown P Byrne SC - Applicant SOLICITORS : S Kavanagh - Crown W R Ghioni - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0586 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER : - 1 - IN THE COURT OF CRIMINAL APPEAL 60067/04 STUDDERT J DUNFORD J HOWIE J THURSDAY, 1 JULY 2004 REGINA v THOMAS TAIG LYNN Judgment 1 DUNFORD J: This is an application for leave to appeal against the severity of the sentences imposed by his Honour Judge Patten in the District Court at Sydney following the applicant's pleas of guilty to three counts of indecent assault on a person under 16 years of age and under his authority contrary to s 61E(1A) of the Crimes Act 1900, since repealed, which carried a maximum penalty of 6 years imprisonment. The applicant was arraigned on eight counts in identical terms relating to different dates over approximately three years from 28 September 1987 to 11 October 1990. He pleaded not guilty and the trial proceeded. 2 On the second morning of the trial, the applicant was re-arraigned and pleaded guilty to the first three counts and asked that the remaining five be taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999. His Honour subsequently sentenced the applicant to concurrent fixed terms of imprisonment of 2 years on counts 1 and 2 and on the third count (and taking into account matters on the Form 1) to a wholly cumulative sentence of 4 years with a non-parole period of 2 years. The overall effect of the sentences was therefore imprisonment for 6 years with a non-parole period of 4 years. 3 The facts of each of the offences were essentially similar. The applicant was the de facto partner of the complainant's mother and the complainant was the third member of the household. On occasions when the mother was away from the house at work or otherwise, the complainant, who was aged 9 years at time of first offence, went into the applicant's bedroom seeking to play with him and have a cuddle. On each of these occasions, the applicant appears to have been lying on his bed wearing pyjamas. 4 During the course of the games which the applicant devised, and which to a 9 year old girl seemed innocent enough, and during the cuddling, his penis became erect and protruded through the fly of his pyjamas whilst the complainant was lying face down on top of him. He then gyrated against her whilst cuddling her tightly on her back and bottom, asked her to hold his penis and eventually ejaculated into a tissue, of which he kept a box nearly, often asking her to get and hold the tissue whilst he did so. Although only 8 counts were charged, the complainant said that these were not the only occasions but it happened very frequently. The complainant said that at the time she did not believe there was anything wrong with what was happening. There was no penetration, violence or coercion, but the applicant took advantage of a young child who treated him as her father for his own sexual gratification. His Honour correctly described the offences as follows: "They occurred over a lengthy period; they involved a gross breach of trust and they deprived (the complainant) of the right to a normal childhood and adolescence. In my view the community expects the Courts to impose severe sentences on persons who use children for sexual gratification. The sentences must be such as to operate not only as a punishment and mark of the community's revulsion, but as a deterrent against repetition of the conduct by this prisoner and as a general deterrence to like minded persons". 5 The applicant was born on 10 October 1951 and at the time of sentencing, was aged 51. He was born in Scotland and migrated to this country with his parents when aged 14. He enjoyed a happy normal childhood without any neglect or abuse. He completed 5th form at high school, passed the Public Service Entrance Examination and since then, had been in constant employment as a Clerical Assistant in the Police Service until accepting voluntary redundancy shortly before his trial. The applicant had no criminal convictions, had never married and his relationship with the complainant's mother was his first sexual relationship, although he claimed that the sexual aspect of their relationship did not continue beyond one year, although he stayed in the relationship until 1991. 6 A Victim Impact Statement from the complainant disclosed a most disrupted life involving severe depression, interrupted education, drugs, suicide attempts and promiscuity which she attributed to these offences by the applicant, but she also apparently had a difficult relationship with her mother (in turn partly due to the latter permitting these offences to occur) and her subsequent difficulties may not be wholly attributable to the applicant's conduct. 7 A psychiatric report from Dr Olav Nielssen who examined the complainant contained the following: "There were no objective features of psychotic illness and no delusional beliefs or overvalued ideas were elicited. No impairment in cognitive performance was detected and his intelligence was assessed to be within the normal range… There was no evidence of a development disorder, brain damage, psychotic illness or any kind of personality disorder. He did not meet the accepted criteria for the diagnosis of any kind of paraphilic disorder (disorders of abnormal sexual interest, including paedophilia)… My Lynn's offences fall into the category of opportunistic, heterosexual, non-coercive offences. This group of offenders carry a relatively low risk of re-offending and generally have a better response to treatment. It is unlikely that Mr Lynn would find himself in a situation similar to the one in which the offences occurred and I believe he would be unlikely to offend again in the same way. Mr Lynn was assessed as someone who would respond well to a sex offender treatment program, especially training in assertiveness and social skills that could help form more equal relationships". 8 In sentencing the applicant, his Honour noted the late pleas as evidence of contrition and having utilitarian value but observed that they did not save the complainant from having to give evidence. He indicated a discount for the pleas of 10-15 percent and found special circumstances in it being the applicant's first time in gaol, his prospects of rehabilitation and that the sentence would probably be served in protection. 9 There are two grounds of appeal: 1. The overall sentence imposed is in all the circumstances excessive. 2. His Honour erred in assessment of the sentence on count 3 and in ordering the sentence imposed on that count to be wholly cumulative on the sentences on counts 1 and 2. 10 In particular it was submitted that this was not one of the more serious category of offences of this type because there was no penetration, but that overlooks the fact that if there had been penetration, he would have been charged with more serious offences. These were very serious cases of assault with acts of indecency involving not merely touching and exposing himself, but extending to ejaculation and involving the complainant in such ejaculation with the tissues. 11 It was further submitted that it is unusual for a sentence for multiple counts for same offence to be structured in such a way that the overall sentence is either equivalent to or exceeds the statutory maximum for an individual offence, but this must depend on the nature and number of the offences and I am not aware of any principle to the effect that in the case of sexual offences, sentences in the higher range are usually reserved for cases where there is more than one victim. 12 In my opinion, it was not inappropriate to make the sentences on counts 1 and 2 concurrent as they were committed within days of each other and were essentially similar. However, the offences referred to count 3 and on the Form 1 were later offences, spread over nearly 3 years, and count 3 was a discrete offence committed some time after the other 2 counts, namely shortly before Christmas, so it was not inappropriate to make the sentence for that count cumulative to those on counts 1 and 2. Moreover, to do otherwise would not have reflected the total criminality involved. I can therefore see no error in the sentence on count 3 being accumulated on the sentences for the earlier counts. 13 I am concerned however with one aspect in respect of the sentences imposed for counts 1 and 2. His Honour indicated he would allow a discount in the range of 10-15 percent for the utilitarian value of the pleas of guilty, but he does not appear to have done so, unless he started with notional sentences of 26.6 months to 28.23 months, which seems unlikely. As pointed out in R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [162], the purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. See also R v Mako [2004] NSWCCA 90 at [21]. It would therefore have been preferable for the Sentencing Judge to have first identified notional sentences for counts 1 and 2 and then reduced those sentences by a specific percentage or period so that it could be clearly seen that the discount had been allowed. In the present case this requirement can be accommodated by allowing a discount in respect of the overall sentences. 14 In Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518, 56 NSWLR 147 at [42], Spigelman CJ said: "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 other offences for which no punishment has in fact been imposed. These elements are entitled to which this is so. The express provision in section 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another". 15 Taking into account matters on a Form 1 must therefore result in a longer sentence than would have been the case if sentencing only for the primary offence: R v Barton [2001] NSWCCA 66, 121 A Crim R 185 at [62]; but such sentence should not be only slightly increased if the offences on the Form 1 are serious in their own right (as these were) and the sentence imposed must reflect the totality of the person's criminality: R v Perese [2001] NSWCCA 475, 126 A Crim R 508 at [81]. 16 Having regard to these principles, I am satisfied that the sentence for count 3 (with the Form 1 matters) needed to be longer than the sentences for counts 1 and 2, and although double the sentences imposed on counts 1 and 2 might appear at first glance to be excessive, one must also have regard to the total criminality involved. However once again, his Honour appears to have in effect neglected to give any discount for the plea of guilty. 17 In my opinion, the sentences of 2 years on counts 1 and 2, and 4 years on count 3 (with the Form 1 matters), making a total of 6 years should stand as the notional starting point, but I would then allow a discount of 10 percent which I would round off to 5 years and 5 months, and to give effect to this adjustment, I would confirm the sentences on counts 1 and 2 and reduce the sentence on count 3 to 3 years and 5 months. 18 I would not interfere with his Honour's finding of special circumstances and to maintain the ratio of non-parole period to head sentence indicated by his Honour, I would reduce the non-parole period in respect of count 3 to one year and 7 months. 19 I therefore propose the following orders: 1. Grant leave to appeal. 2. As to the sentences on counts 1 and 2, dismiss the appeal. 3. As to the sentence on count 3, and taking into account matters on the Form 1, allow the appeal, quash the sentence. 4. In lieu, sentence the applicant to imprisonment for 3 years and 5 months to commence on 19 December 2004 and to expire on 18 May 2008 and fix a non-parole period of 19 months to commence on 19 December 2004 and to expire 18 July 2006. The earliest date on which applicant will be eligible for release on parole will be 18 July 2006. 20 STUDDERT J: I agree. 21 HOWIE J: I also agree. 22 STUDDERT J: The orders will be as indicated by Dunford J. ********** 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. 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