R v TJ [2004] NSWCCA 59

New South Wales Court of Criminal Appeal

CITATION : R v TJ [2004] NSWCCA 59 HEARING DATE(S) : 17/03/2004 JUDGMENT DATE : 17 March 2004

JUDGMENT OF : Hodgson JA at 1; Shaw J at 2; Smart AJ at 13 DECISION : 1) Leave to appeal dismissed

CATCHWORDS : Appeal against severity of sentence - Sexual assault - Conditions of imprisonment CASES CITED : De Simoni v R (1981) 147 CLR 383; Regina v JCW (2000) 112 A Crim R 466 PARTIES : Regina - Crown TJ - Appellant FILE NUMBER(S) : CCA 60428/03 COUNSEL : B. Knox SC - Crown C. Bruce - Appellant SOLICITORS : S. Kvanagh - Crown S. O'Connor - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/1134 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60428 of 2003

HODGSON JA SHAW J SMART AJ

17 March 2004 REGINA v TJ

Judgment

1 Hodgson JA: I agree with the observations of Shaw J. Mr Bruce for the applicant submitted that the case of JCW (2000) 112 A Crim R 466 was a case involving substantially greater criminality than this case, so that the sentence in this case was disproportionate. In my opinion, this overlooks the circumstance that in JCW the offender was being sentenced for two offences only, and that the background history was taken into account, not as a circumstance of aggravation, but only for the purpose of rejecting mitigation. 2 Shaw J: TJ seeks leave to appeal to this Court against the sentence imposed upon him by Judge O'Reilly on 28 March 2003 in the District Court of NSW for a number of counts of sexual assault. I have considered his Honour's careful and detailed observations on sentence, which includes findings of the offence of buggery committed by the appellant on his young son (aged 9) when the family lived at Yagoona. Another incident alleged, and found, arose in 1988 when there was penile intercourse by the appellant with his daughter. Thirdly, an incident is referred to in 1989 where the offender, with knife in hand, directed his daughter to go to her bedroom and had anal intercourse with her. 3 The trial judge rightly focussed his attention on the three counts in the indictment, which I have summarised, and observed that there were 2 matters set out on the Form 1, indicating that these were not isolated incidents. The trial judge correctly said that he could not punish him for events other than those charged specifically on the indictment but could take into account the Form 1 matters. 4 Some 9 years passed between the incidents alleged and the complaint, because apparently the appellant's wife told police that she did not wish to pursue the complaints by her children because she would not be able to cope financially if her husband went to gaol. However, the appellant was eventually arrested in February 2001. The trial judge carefully considered a pre-sentence report dated 25 March 2003. Psychological evidence was given of a family history of sexual abuse of siblings and indications of a "narcissistic personality disorder." The psychologist, Dr John Baron, recorded that the appellant had indicated that he could remember having sexual contact with the children. There is some further psychiatric evidence from Dr T.O. Clarke who has proffered the opinion that the appellant is not at current risk of recidivism and not a threat to the community, but would need long term supervision and psychotherapy. 5 In these circumstances, the trial judge made a finding of "special circumstances" particularly emphasising that this was the appellant's first time in custody, that he will need to serve it in strict protection and that he needs long-term supervision on release. The sentence in relation to the first count was one of full-term imprisonment of 6 years expiring on 27 March 2009, with a non-parole period of 4 years, leading to eligibility for release to parole on that count on 27 March 2007. On the second count of the indictment, the sentence was a full-term of imprisonment of 8 years expiring 27 March 2014, with a non-parole period of 4 years so that there would be eligibility for release on parole on 27 March 2010. In relation to the third count of the indictment the full-term of imprisonment was 4 years, expiring 27 March 2010 with a non-parole period of 2 years, so that the appellant would be eligible for release to parole on 27 March 2008. The trial judge correctly referred to the principle of "totality" whilst taking due note of the degree of criminality. In summary, the earliest release date is 27 March 2010. In addition, the trial judge directed that upon release of the offender, the police be informed of the nature of the offences and the fact of his release. 6 The appellant (who at the date of his trial was 51 years of age) pleaded guilty on each count. 7 His appeal to this Court depends upon a short point. It is said that the sentencing proceedings miscarried when the report of Dr Baron was placed before the sentencing judge, and when that report included allegations from TJ's son that: