Reported Decision : 152 A Crim R 482 New South Wales Court of Criminal Appeal CITATION: R v GWM [2005] NSWCCA 101 HEARING DATE(S): 3 February 2005 JUDGMENT DATE: 30 March 2005 JUDGMENT OF: Studdert J at 1; Hulme J at 51 DECISION: Leave to appeal granted; appeal allowed, limited to the sentence imposed in respect of the offence charged in the first count; sentence imposed in respect of the offence charged in the first count quashed; in lieu thereof the appellant sentenced to a term of imprisonment of six years six months to commence on 16 May 2003 and to expire on 15 November 2009, with a non parole period of four years to expire on 15 May 2007; the fixed term sentence of four years imprisonment to date from 16 May 2003 as set by the sentencing judge for the offence charged in the third count is confirmed. Crimes Act ss 61M, 66A LEGISLATION CITED: Crimes (Sentencing Procedure) Act, ss 55 R v Ala (unreported, NSWCCA, 11 November 1996) R v GLB [2003] NSWCCA 210 R v Brackenrig (unreported, NSWCCA, 25 July 1995) R v Campbell [2001] NSWCCA 89 R v Davis [1999] NSWCCA 15 R v SG [2003] NSWCCA 220 R v CDH [2002] NSWCCA 103 R v Hammoud (2000) 118 A Crim R 66 CASES CITED: R v M [2002] NSWCCA 66 R v Mendoza-Torrico [1999] NSWCCA 413 R v Morgan (1993) 70 A Crim R 368 R v Morrow [1999] NSWCCA 64 R v OO [2002] NSWCCA 416 R v Pearce (1998) 194 CLR 610 R v Rapley [1999] NSWCCA 302 R v Smith [2003] NSWCCA 353 Siganto v The Queen (1998) 194 CLR 656 PARTIES: Regina v GWM FILE NUMBER(S): CCA 2004/2578 Ms E. Wilkins (Crown) COUNSEL: Mr P.F. Doyle (Applicant) S. Kavanagh (Crown) SOLICITORS: Marsdens Law Group (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3140 LOWER COURT JUDICIAL OFFICER: Sorby DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2578 STUDDERT J HULME J Wednesday 30 March 2005 REGINA v GWM Judgment 1 STUDDERT J: The applicant, to whom I shall refer only as GWM, seeks leave to appeal to this Court from sentences imposed upon him in the District Court on 30 January 2004. Those sentences were imposed following a trial before judge and jury concerning alleged sexual offences. The subject indictment contained three counts: (i) the first count charged the offence of sexual intercourse with a child under the age of ten; (ii) the second count was to the like effect; (iii) the third count, expressed as an alternative to count two, charged the offence of assault with act of indecency in circumstances of aggravation. 2 The applicant pleaded not guilty to counts one and two, but offered a plea of guilty to count three. The Crown did not accept that plea and the trial proceeded. The jury found the applicant guilty on the first count and not guilty on the second count, and accordingly when the applicant came to be sentenced, sentences were imposed for the offences charged in the first and the third counts. 3 The sentencing judge imposed a fixed term sentence on count three of four years imprisonment to commence on 16 May 2003, the date from which the applicant was in custody for these matters. On the first count the judge imposed a sentence of six years six months to commence on 16 May 2004 and to expire on 15 November 2010. His Honour fixed a non parole period of four years to expire on 15 May 2008. Hence the sentences were partly cumulative. 4 The offence charged in the first count was in a category for which s 66A of the Crimes Act provides a maximum penalty of twenty years imprisonment. The offence charged in the third count is one for which s 61M of the Crimes Act provides for a maximum penalty of ten years imprisonment. 5 The complainant was a nine year old child living with her mother. The applicant was an adult male who was born on 24 November 1963 and who lived in the same street as the complainant and her mother. On 16 November 2002 the applicant visited the complainant's home where the complainant was enjoying the use of the swimming pool there located. The complainant's mother asked the applicant to mind her daughter for a short period whilst she went to the local shop to purchase some cigarettes, partly to satisfy the applicant's request for a cigarette. 6 The complainant's mother was away from the house for a period stated by the sentencing judge to be twenty to thirty minutes. Whilst her mother was away the complainant came back into the house from the swimming pool and lay on the lounge room floor to watch the television. The applicant lay beside her. The applicant pulled the lower part of the complainant's costume to one side and with his tongue licked the complainant on the vagina. This misconduct was the subject of count one in the indictment. The applicant also licked the anus of the complainant, and this misconduct was the subject of count three of the indictment. 7 When the complainant's mother returned from the shops she found the complainant hiding behind the fridge in the kitchen in a distressed state and the complainant told her mother what had occurred. The applicant's misconduct was promptly reported to the police. 8 In his sentencing remarks the sentencing judge correctly described these offences as "reprehensible and despicable". Indeed, they were. This court has, on many occasions, stressed how seriously sexual assaults on children are to be regarded, and that same concern is reflected in the maximum penalties which the legislature has provided in the relevant provisions of the Crimes Act. 9 Objectively the offences merited stern punishment. 10 The applicant is now forty-one years old. At the time these offences were committed, he was living with his widowed mother. The applicant gave no evidence either at his trial or in the later proceedings as to sentence, and the sentencing judge was dependent upon the pre-sentence report, a report of a psychologist, Mr Benad, and reports from Dr Tran, a psychiatrist with Corrective Services, to glean details as to the applicant's subjective circumstances. Relying on these sources, the judge noted that the applicant was raised in Sadleir. His father was deceased and he had little contact with his three siblings. He had an unsuccessful schooling, spending time at two institutions for troubled children, and he did not complete his schooling. After leaving school he was in employment only infrequently, as a factory hand or a labourer. In 1984 he was involved in a road accident, suffering some brain damage. The applicant has severe psychiatric problems, being a schizophrenic, and it is reported that he had attempted suicide three times. 11 According to the Probation and Parole report, the applicant said he committed the offences because Dr Lim, who had been a treating psychiatrist, told him his mother would die if he did not assault the victim. The judge noted that the author of the pre-sentence report wrote: "This allegation is not grounded in fact. It appears to be part of the offender's delusional state. It is noted that when the police interviewed the offender on 12 April 2003 about the offences that occurred on 16 December 2002 he failed to mention that this was the reason for committing the offences." 12 Nor, as the sentencing judge observed, was the assertion made at the trial. 13 Dr Tran wrote two reports which were before the sentencing judge, and it was Dr Tran's view that the applicant's self-reported history was inconsistent and raised doubts as to its reliability. Those doubts were plainly justified. 14 A sentencing court should be very slow to accept the accuracy of any contentious and self-serving matter of history, given to a doctor or a psychologist for the purposes of sentencing proceedings, where the applicant does not give evidence of that history in the witness box. 15 The applicant had criminal antecedents that were extensive, although he had no convictions for sexual offences. 16 The judge noted that the applicant had shown no contrition or remorse for the offence charged in the first count, but his plea in relation to the second matter was taken as some indication of contrition for that offence. 17 The judge found special circumstances, remarking that the applicant would be required to serve his sentence under protection because of the offences and because of his medical problems. The judge considered that the applicant would have difficulty in adjusting to society following his release and perceived the need for an extended period of supervision after release. 18 This brings me to a consideration of the grounds upon which it is submitted on the applicant's behalf that the intervention of this Court is warranted. 19 In written and oral submissions Mr Doyle addressed four grounds: (i) the sentence imposed was manifestly excessive; (ii) there was error in ordering that the sentences be served partly cumulatively; (iii) there was error in treating as an aggravating circumstance the fact that the complainant was required to give evidence at the trial; (iv) insufficient weight was given to the medical condition suffered by the applicant. 20 I deal firstly with ground 3. 21 As the Crown properly conceded in submissions, had the sentencing judge regarded the requirement for the complainant to give evidence as an aggravating circumstance, this would have been an error: see Siganto v The Queen (1998) 194 CLR 656, and in particular the judgment of Gaudron J at para 35. However, I do not read his Honour's remarks as involving the conclusion for which the applicant contends. Whilst the judge did remark upon the necessity for the complainant to undergo the stress of having to give evidence at the trial, what was said was an observation that followed consideration of the impact of the crime upon the young victim. That his Honour recited that the child had to go through the ordeal of giving evidence would not lead me to conclude that his Honour was treating this as an aggravating feature. The observation has to be viewed in the context in which the utterance was made. I do not consider there is substance in this ground. 22 I turn to ground 4. 23 Mr Doyle submitted that having regard to the applicant's mental condition, undue emphasis was placed upon the element of deterrence. It seems to me that it was proper for the judge to act on the opinion of Dr Tran that there was no established link between the applicant's psychiatric condition and the commission of the offences. His Honour plainly rejected the assertion in histories given to the author of the pre-sentence report and to Mr Benad, the psychologist, that the applicant committed the offences under auditory hallucinations. There was lacking in the matter evidence that the applicant committed these offences because of any mental disability. 24 Generally his Honour reviewed evidence from Dr Tran and from Mr Benad and he took the opinions of these experts into account for sentencing purposes. He referred to the applicant's medical problems and the bearing they would have upon the terms of his imprisonment. He did this specifically in the context of referring to special circumstances, but I would not infer that his Honour otherwise overlooked the mental health problems in determining appropriate sentences. 25 I do not perceive that the sentencing remarks in this case warrant the conclusion that the judge failed to pay due regard to the evidence as to the applicant's mental disorder. 26 Ground 4 has not been established. 27 It is convenient to deal with grounds 1 and 2 together. 28 On the hearing of this appeal the researches of counsel had revealed no closely similar cases to the present one and no cases which pointed to a range. Mr Doyle did refer to R v Rapley [1999] NSWCCA 302; R v Ala (unreported, NSWCCA, 11 November 1996); and R v OO [2002] NSWCCA 416, but in doing so properly acknowledged that none of these cases was closely similar to the present one. In any event, as was observed by Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range." 29 The Court reserved its decision to enable counsel to conduct further research as to sentences imposed in other cases concerning offences of a similar nature, and the Crown has presented supplementary submissions identifying nine tabled cases. 30 In only two of the nine cases referred to in the Crown's supplementary submissions did the offender plead not guilty. I shall consider these two cases firstly. 31 In R v M [2002] NSWCCA 66 the offender pleaded not guilty to an offence of aggravated indecent assault and to a further offence of sexual intercourse with a person under the age of ten years. The offender was forty years of age with no prior convictions for sexual offences, although he did have a criminal history. He had not previously been in prison. The offences occurred when the young child was visiting the offender. The offender pulled aside the victim's underpants and rested the nozzle of a vacuum cleaner on her genital area. Thereafter he took hold of the child's wrist and made her rub his penis. He also partly inserted his penis into the child's vagina. In relation to the offence against s 66A, the offender was sentenced to six years imprisonment with a non parole period of three years four months. Concurrent sentences of two years six months by way of fixed term were imposed for each of the aggravated indecent assault offences. An application for leave to appeal against sentence was unsuccessful. 32 In R v Davis [1999] NSWCCA 15 the offender was charged with sexual intercourse with a person under the age of ten years contrary to s 66A, with an aggravated indecent assault contrary to s 61M, and with an offence against s 61O(2) of inciting a person under the age of ten years to commit an act of indecency. The victim was the stepdaughter of a friend of the offender and was nine years of age. The child was invited to stay overnight at the offender's home and during the journey to that place the offender reached up the victim's shirt and touched her breasts. After arriving at the home, the offender removed the child's clothing and placed his penis in her bottom. He inserted his penis into her vagina. Subsequently the appellant attempted to force the child to touch his penis. The offender had not previously been in prison. For the offence against s 66A the offender was sentenced to eight years imprisonment with a minimum term of six years and an additional term of two years. The other two offences attracted concurrent fixed terms of two years. The appeal against the severity of those sentences was dismissed. 33 The offenders in the remaining seven cases referred to in the Crown's supplementary submissions pleaded guilty to the offences charged. 34 In R v GLB [2003] NSWCCA 210 the offender was charged with three counts of sexual intercourse with a person under the age of ten years contrary to s 66A and to an offence of aggravated indecent assault. The victim was the offender's daughter, and was five years of age. The three acts of sexual intercourse were acts of cunnilingus. The aggravated indecent assault occurred when the offender was bathing the child and he placed his hands between her legs and rubbed her vagina. The offender was thirty-five years of age with no prior convictions. He was born with cerebral palsy and received a disability pension from the age of eighteen years. The judge found that the offences may never have been discovered but for the offender's voluntary attendance at the police station where he made a limited admission that he had kissed his daughter on the vulva. The sentences imposed for the sexual intercourse consisted of head sentences of four years with a non parole period for each offence of two years and for the aggravated indecent assault a sentence of one year a fixed term of imprisonment for one year was imposed. All the sentences were to be served concurrently. The appeal against severity was dismissed. 35 In R v Smith [2003] NSWCCA 353 the victim was eight to nine years of age and was the applicant's stepdaughter. The offender pleaded guilty to three acts of sexual intercourse contrary to s 66A and offences of aggravated indecent assault. The offences were committed over a period of about eighteen months. The acts of sexual intercourse were three acts of fellatio to ejaculation, and the aggravated indecent assaults were two acts of touching the child's vagina. The offender had a prior conviction for a sexual offence, albeit for an offence committed after those with which the Court of Criminal Appeal was dealing, had been treated for schizophrenia and had a history of substance abuse. The total effective sentences imposed aggregated eleven years with eight years non parole period. Leave to appeal was refused. 36 In R v CDH [2002] NSWCCA 103 the victim was the offender's four to five year old daughter. The offences charged were sexual intercourse contrary to s 66A, attempted sexual intercourse contrary to s 66B and two counts of aggravated indecent assault. A further offence of aggravated indecent assault was dealt with on a schedule. The offences occurred over a period of about sixteen months and included acts such as licking and touching the child's vagina, the offender placing his penis between the child's legs and rubbing it, masturbation in the child's presence, and pushing the child's face towards the offender's penis. The offender had a previous criminal history and had been sexually abused as a child. He was thirty-one years of age when the first of the offences was committed. He made admissions to the police, without which there would probably have been no case to answer. On appeal the Court of Criminal Appeal determined that a thirty percent discount as allowed by the sentencing judge for the pleas and the admissions was inadequate, and that the offender had not received the benefit of an added element of leniency for the disclosures. Hence the Court of Criminal Appeal allowed the severity appeal and re-sentenced the offender to a minimum term of three years nine months and to an additional term of one year nine months for the sexual intercourse. The court imposed fixed terms of two years six months for the aggravated indecent assaults, confirming the two year fixed term for the attempted sexual intercourse. In all then, the effective head sentence was one of five years with a minimum term of three years three months. 37 In R v Campbell [2001] NSWCCA 89 a grandfather subjected his four year old granddaughter to sexual abuse. There were four counts of sexual intercourse with a child under the age of ten years, five counts of aggravated indecent assault, and two counts of committing an act of indecency with a person under the age of ten years. After being confronted by his daughter, the offender went to the police and made full and frank admissions. He had a previous criminal history. All the offences occurred over a period of some five days. The sexual intercourse charges were of cunnilingus and the acts of indecent assault and indecency related to the offender fondling his granddaughter's genitals directly and through her underpants and having the child fondle his penis. The sentencing judge imposed a head sentence of seven years six months with a non parole period of four years on one of the sexual intercourse offences and in relation to the other offences imposed lesser sentences to be served concurrently. On appeal, the sentences were reduced. The overall effect of the appeal was to imprison the offender for five years with a non parole period of three years. 38 In R v Morrow [1999] NSWCCA 64, the offender was charged with sexual intercourse with a person under the age of ten years. He was twenty-six years of age, had a mild intellectual disability, was considered unlikely to reoffend and had only one prior conviction for a driving offence. Whilst the offender was sleeping the nine year old victim came into his bed other than at the offender's initiative and he had penile-vagina intercourse with the child. The Crown appeal against a five year recognizance under s 558 of the Crimes Act was dismissed. 39 In R v Mendoza-Torrico [1999] NSWCCA 413, the offender was thirty-five years of age and had no convictions. His victim was the niece of the offender's de facto wife, and was nine years of age. The offender was charged with sexual intercourse with a person under the age of ten, and two counts of committing an act of indecency with a person under the age of ten. Not only did the offender pleaded guilty but voluntarily approached the police and made extensive admissions. The sexual intercourse took the form of cunnilingus, and the acts of indecency included kissing the child on the vagina and open-mouthed kissing. The sexual intercourse offence attracted a head sentence of four years with a minimum term of two years and the remaining offences attracted lesser concurrent sentences. An appeal against severity was dismissed. 40 In R v Brackenrig (unreported, NSWCCA, 25 July 1995) the offender's victim was his nine year old stepdaughter. The offender was charged with sexual intercourse with a person under the age of ten years and with a second offence of inciting a person under the age years to commit an act of indecency. The sexual intercourse took the form of oral penetration. The other misconduct took the form that the offender required the child to rub his penis and genital area. For the offence of sexual intercourse, the offender was sentenced to a minimum term of three years with an additional term of two years. The lesser offence attracted a concurrent fixed term of eighteen months. An appeal against severity was dismissed. 41 It is to be observed that of the cases reviewed, only two of the offenders received a more severe penalty than was imposed here upon the applicant. In the case of Smith the offences occurred over a period of about eighteen months, and committed on the offender's stepdaughter they constituted gross breaches of trust. Each offence of sexual intercourse was also more serious than the offence here. In the case of Davis the most serious offence of the three offences was one of penile-vaginal intercourse. 42 Apart from M, the remaining offenders who received less severe penalties than the applicant pleaded guilty and were entitled to a discount for the utilitarian value of their pleas, and of course their sentences have to be regarded with this in mind. M, who pleaded not guilty, committed an act of penile-vaginal intercourse and was sentenced to a head sentence of six years with a non parole period of three years four months. 43 The Crown has properly drawn attention to the fact that in seven of the nine cases above reviewed the offender received a lesser sentence than he would have received had he pleaded not guilty. The Crown has further submitted that there are no cases comparable to the present one and such as establish a sentencing range. To the contrary, Mr Doyle, in his supplementary written submissions, has contended that the cases reviewed assist the applicant on this appeal. 44 It is, of course, proper for the Court to have regard to the prescribed maximum penalty of twenty years for offences under s 66A. It must also be recognised, however, that s 66A relates to all types of sexual intercourse and that a crime involving penile penetration of a young child is a more serious form of sexual intercourse than cunnilingus. In making this observation, I do not, of course, resile from the remark made earlier (at para 9) that these offences committed by this applicant merited stern punishment. However, the cases reviewed influence me in coming to the conclusion that Mr Doyle has made good his submission that the effective overall sentences of seven years six months was manifestly excessive in the circumstances of this case. 45 I observed earlier that it was convenient to deal with grounds 1 and 2 together. As to ground 2, the sentencing judge made specific reference to R v Pearce (1998) 194 CLR 610, but he did not express his reasons for not making the sentences entirely concurrent. Mr Doyle invites the Court (in ground 2) to conclude that the judge fell into error because he did not specifically address the question as to whether the two offences should be regarded as one involving a continuing episode of criminality or as discrete offences. 46 In R v SG [2003] NSWCCA 220 Wood CJ at CL considered in that case that the sentencing judge had fallen into error when sentencing for three separate groups of offences. His Honour said (at para 15): "The proper course for his Honour would have been to have fixed sentences that were individually appropriate, and then to have allowed for totality when determining whether they should be served concurrently or cumulatively, taking into account the question whether they should be regarded as involving a continuing episode of criminality or as discrete offences." 47 The Crown submitted that the judge acted in the exercise of a discretion when deciding upon the question of accumulation. Attention was drawn to s 55 of the Crimes (Sentencing Procedure) Act 1999 and to the dicta of Simpson J in R v Hammoud (2000) 118 A Crim R 66 at 67 (para 7). Her Honour there said: "Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principles. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take different views, but neither view could be said to be wrong." 48 Generally, however, offences arising out of one incident are ordered to be served concurrently. These events occurred relatively quickly and in the course of the one incident, and clearly involved a continuing episode of criminality. It would thus not have been inappropriate to order that the sentences be served concurrently. 49 I am not persuaded that the sentence of six years six months with a non parole period of four years for the principal offence of cunnilingus was outside the range available to his Honour, although in the circumstances of this case it was certainly at the top of the range. However, if that was to be the sentence for the sexual intercourse offence, then the principle of totality required that the two sentences be made concurrent. I consider this Court should intervene to bring about this result. 50 The formal orders I propose are therefore as follows: 1. That leave to appeal be granted; 2. That the appeal be allowed, limited to the sentence imposed in respect of the offence charged in the first count. 3. That the sentence imposed in respect of the offence charged in the first count should be quashed; 4. That in lieu thereof the appellant be sentenced to a term of imprisonment of six years six months to commence on 16 May 2003 and to expire on 15 November 2009, with a non parole period of four years to expire on 15 May 2007. 5. That the fixed term sentence of four years imprisonment to date from 16 May 2003 as set by the sentencing judge for the offence charged in the third count be confirmed. 51 HULME J: I agree with the orders proposed by Studdert J and with his Honour's Reasons. ********** 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.