New South Wales Court of Criminal Appeal CITATION: GJ v R [2005] NSWCCA 447 HEARING DATE(S): 13 December 2005 JUDGMENT DATE: 16 December 2005 JUDGMENT OF: Grove J at 1; James J at 2; Simpson J at 3 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: application for leave to appeal against severity of sentence - aggravated form of a charge of inciting a person under the age of 16 to commit an act of indecency - plea of guilty - finding of special circumstances - subjective circumstances - discount on sentence following plea of guilty - whether sentence manifestly excessive - whether necessary to show exceptional circumstances for non-custodial sentence - whether custodial sentence called for - whether starting point of sentence too high - whether motivation for offence was an aggravating feature - general deterrence Crimes Act 1900, s61O(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s44(2) R v Baxter (unreported, NSWCCA, 26 May 1994) CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 The Queen v de Simoni [1981] HCA 31; 147 CLR 383 GJ - Applicant PARTIES: Crown - Respondent FILE NUMBER(S): CCA 2005/1840 Ms N Noman - Crown COUNSEL: Ms C Salsone - Applicant S Kavanagh - Crown SOLICITORS: TA Williams - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0646 LOWER COURT JUDICIAL OFFICER: Kinchington DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1840 GROVE J JAMES J SIMPSON J Friday 16 December 2005 GJ v R Judgment 1 GROVE J: I agree with Simpson J. 2 JAMES J: I agree with Simpson J. 3 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court by Kinchington DCJ on 1 February 2005, following his plea of guilty to the aggravated form of a charge of inciting a person under the age of 16 years to commit an act of indecency. The circumstance of aggravation was that the complainant was under the applicant's authority (she was his daughter). 4 Pursuant to s61O(1) of the Crimes Act 1900, the offence carries a maximum penalty of imprisonment for five years. Kinchington DCJ sentenced the applicant to imprisonment with a non-parole period of fifteen months, and a balance of term of fifteen months. In so structuring the sentence, his Honour found that special circumstances within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act 1999 existed, justifying departure from the proportion between the non-parole period and the head sentence therein specified. facts 5 The offence was committed on 25 September 2003. The applicant was at home with his two daughters. His wife was out. The complainant, then 11 years of age, and her younger sister were watching television. The applicant called the complainant into his bedroom. He was lying on the bed naked. He told the complainant to shut the door and undress. She complied. The applicant told the complainant to sit on the side of the bed and touch his penis. She again complied. She masturbated the applicant to ejaculation. He told her to return to the living room and watch television, which she did. subjective circumstances 6 The sentencing judge had the benefit of a pre-sentence report, a Department of Corrective Services psychological report, and a medical report, all relevant to the applicant, and a Victim Impact Statement. From these the following emerged. 7 The applicant was born in Iraq, of Armenian and Assyrian parents, on 31 August 1957. He was 46 years of age at the time of the offences. He came to Australia with his parents at the age of 11. They provided a good, and apparently happy, upbringing. He entered into an arranged marriage with a cousin in 1991. The applicant felt that the marriage deteriorated from about 1997, when some of his wife's family members also migrated to Australia. The couple had two daughters, of whom the complainant is the older. 8 The applicant had a criminal record that was relatively significant in terms of the number of entries, but which contained no conviction for any comparable offence, and no convictions since 1992. His record largely consisted of drug-related offences. 9 He had in fact been heroin addicted between the ages of 22 and 28, but had long since overcome his addiction. He continued to use marihuana, but did not regard this as problematic. 10 To a Probation and Parole officer, the author of the pre-sentence report, the applicant explained his offence by saying that it was "a silly experiment" to hurt his wife, and that he had told the complainant to tell her mother what had happened. He denied committing the offence for sexual gratification. He was experiencing dissatisfaction with the level of support he was receiving from his wife. He gave a similar account to the Department of Corrective Services psychologist; the source of his dissatisfaction with his wife was, on this occasion, explained as suspicions about her sexual behaviour, with hints at an improper relationship between her and her brother, or between her and her female friends. 11 Both the Probation and Parole officer and the psychologist considered that the applicant showed little insight into his offending behaviour, and little, if any, appreciation of the impact the offence would have had upon the complainant. 12 After the offence the applicant left the matrimonial home and returned to live with his parents who continue to be supportive. 13 By the time he was interviewed by the Probation and Parole officer, the applicant was diagnosed as suffering from major depression and was under the care of a psychiatrist and taking prescribed medication. No psychiatric evidence was, however, tendered. 14 The psychologist considered that he was in need of treatment in order to reduce the risk of re-offending. The applicant had been assessed as suitable for a programme conducted by the Department of Corrective Services in the event that he was given a non-custodial sentence. In the event of a custodial sentence being imposed, he would have to be assessed for a similar programme available internally. Generally, the psychologist said, assessment of suitability for such a programme would depend upon the existence of a sentence of approximately two years to the earliest release date. 15 The applicant's general practitioner provided a short report, saying that he had suffered from hepatitis C and diabetes as well as reactive depression following his separation from his wife and the prospect that he might not be able to see his children again. The applicant has not in fact had any contact with the family since leaving the home, and an apprehended violence order was in existence restraining him from making contact with them. 16 The impact of the offence upon the complainant was spelled out in a Victim Impact Statement prepared by a sexual assault counsellor. She said that the offence had had a profound affect upon the complainant, that she was very emotional, tearful and reluctant to engage in counselling. She did not allow herself to trust people and became distressed when the applicant was mentioned. She found it difficult to predict how long it would take for the complainant to recover and thought she might require ongoing counselling, although she appears to have ceased the counselling sessions with the author of that report. the remarks on sentence 17 Judge Kinchington set out the factual basis of the charge. He considered the explanation given by the applicant to provide no excuse, and that, if anything, it probably made it "a little bit worse". He accepted the plea of guilty as a sign of remorse and contrition and, by reason of that remorse and contrition, together with the utilitarian value of the plea, determined that, pursuant to the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, the applicant was entitled to a discount on sentence of approximately 25%. He did this notwithstanding that the plea was entered on 15 October 2004, the applicant having been charged on 10 February of that year, and a trial, which did not proceed, having been fixed to commence on 20 July. It was conceded by counsel for the applicant on sentencing that the plea was not entered at the earliest opportunity. 18 The judge considered that general and specific deterrence were "of paramount importance" in cases such as this. Contrary to the express submission of counsel who appeared for the applicant, his Honour concluded that he was called upon to impose a sentence of full-time imprisonment, and that to do otherwise "would be sending the wrong message out to the public at large ...". 19 He found that there were special circumstances warranting variation in the ratio between the non-parole period and the total sentence and imposed the sentence I have already mentioned. He added that he had taken into account that the applicant would probably serve his sentence in protective custody, and, indeed, recommended that he be accorded that custody status should he so request. 20 Certain passages in the remarks on sentence attracted specific attention from counsel who appeared for the applicant in this Court. It is convenient to set them out here. His Honour said: "I now turn to a consideration of the sentence I must subject him to in this case. His counsel, Mr Ritchie, in the course of his submissions to me has contended that this is an exceptional type of case that does not require me to subject the offender to a full-time custodial sentence ... Having given considerable thought to the words of Hunt CJ [a reference to which I will shortly return] and to the submissions of Mr Ritchie, I have come to the conclusion that I am unable to agree with him that this is an exceptional case of the nature that Mr Ritchie referred to. I have come to this conclusion particularly because of the objective facts herein. I have taken into account his stated reason for acting in the way he did and even accepting those reasons at face value it seems to me that this does not bring this matter into the type of case that would allow me to come to the conclusion that a custodial sentence is not appropriate .... To my mind not to subject the offender to some form of full-time custodial sentence would be sending the wrong message out to the public at large in a case such as this." the application for leave to appeal 21 Initially, the only ground advanced was that the sentence imposed is manifestly excessive. However, at a later stage and after a change of counsel, the grounds were amended to include complaints to the effect that his Honour erroneously believed that unless the case were shown to be exceptional, he was compelled (by precedent and authority) to impose a full time custodial sentence, and proceeded to sentence on that erroneous basis; and that the sentencing starting point, before reduction referable to the plea of guilty, was too high in the circumstances and that the judge failed to give sufficient weight to the need for the appellant to undergo treatment for his offending behaviour. These additional grounds could well be seen as an explicit specification of the ground that the sentence was manifestly excessive, and, in substance, reflect what was contained in the written submissions filed in support of the original ground. In the context both of the original and the additional grounds, the submission made at sentencing was repeated that, in all of the circumstances of the case, it was not necessary that a full-time custodial penalty be imposed; and that, even if such a penalty were to be imposed, that the sentence selected was manifestly excessive. 22 The reference to "Hunt CJ" in the passage from the remarks extracted above was a shorthand reference to a decision that had been urged upon the sentencing judge as authority for the proposition that it is not necessary, in all cases of offences against s61O, that a full-time custodial sentence be imposed. That was a decision in R v Baxter (unreported, NSWCCA, 26 May 1994). 23 There, dealing with three charges of committing an act of indecency (as distinct from, but of the same genre as, inciting a complainant to commit an act of indecency) upon his 10 year old daughter, the offender, who had also faced similar charges in Victoria, was given the benefit of a deferred sentence. The acts of indecency involved fondling the complainant's vagina, and having her wash his penis in the shower whilst he washed her vagina. On a Crown appeal against asserted inadequacy, Hunt CJ at CL, with whom Finlay and McInerney JJ agreed, said: "The present case did not involve even indecent assault charges. The charges were only for committing acts of indecency. The difference is not insignificant, in that the maximum sentence prescribed for an indecent assault committed with or towards a person under the authority of the prisoner was one and a half times that for an act of indecency in similar circumstances. I do not believe that it is appropriate for this Court to lay down a requirement that a custodial sentence should ordinarily be imposed in relation to the lesser charge. " (emphasis added) 24 Counsel's argument was that the passages extracted above indicate that Kinchington DCJ misunderstood the effect of Baxter, interpreting it as holding that only in an exceptional case of an offence against s61O would it be appropriate to impose a non-custodial sentence. Counsel who appeared for the Crown on appeal agreed that, if that were the effect of those passages, and that his Honour could be shown to have been under that impression, the passages are indicative of error in the approach taken by the judge. However, counsel pointed to other aspects of the remarks on sentence that would point to a contrary construction of what was said. In between the two passages I have already extracted, the following appears: "In particular Mr Ritchie referred me to the observations made by Hunt CJ at CL in the case of Regina v Baxter ... In that case Hunt CJ, in delivering the judgment of the court, made the following comments about this type of offence: 'I do not believe that it is appropriate for the Court to lay down a requirement that a custodial sentence should ordinarily be imposed in relation to this lesser charge.' - In that regard he was comparing this type of charge to the charge of sexual assault. As I understand what Hunt CJ is saying in that case is, that a court sentencing a person on a charge such as this, must not inevitably come to the conclusion that a custodial sentence is called for and he does not overrule a court coming to that conclusion but says that it is within the range for this type of offence with in certain circumstances may justify a non-custodial sentence." 25 This would indicate to me that Kinchington DCJ was fully aware of what was held in Baxter. Counsel for the applicant, however, argued that the words to "in certain circumstances" in the closing part of the passage last extracted, was further support for the proposition that his Honour was under the misapprehension that exceptional circumstances had to be established before a non-custodial sentence could be imposed. That would involve reading the word "certain" as "exceptional" – a reading I do not think is open on the material. 26 There is, in my opinion, another interpretation of the passages under consideration that is equally open. That is that Kinchington DCJ had in mind the serious objective nature of the circumstances of the applicant's offence, and considered that, against that objective seriousness, it would be necessary to show exceptional ameliorating or countervailing circumstances before a non-custodial penalty could be imposed – that is, that in these remarks his Honour was focussing upon the particular circumstances of the offence with which he was dealing, and, importantly, on the objective gravity of the offence itself. In my opinion, that is a correct analysis of the remarks. The objective circumstances of this offence were such that only something exceptional in the subjective circumstances or other material would justify the imposition of a non-custodial sentence. And, as counsel for the Crown pointed out in the relevant passages, there were a number of references to "this matter" or "a case such as this". His Honour was, correctly, focussing upon the case that was before him, both the objective circumstances, and the subjective circumstances. 27 I am satisfied that his Honour did not misunderstand Baxter, and did not misdirect himself with respect to the necessity to impose a full-time custodial sentence. 28 But even if he had, in my opinion, this was not a case that would have warranted the imposition of any sentence other than one of full-time custody. The applicant's subjective circumstances were by no means exceptional. Counsel for the applicant urged that his need for rehabilitation was of paramount concern. Two answers may be made to this. The first is that, while an offender's need for rehabilitation is a relevant sentencing consideration, it does not take paramountcy over other sentencing objectives, such as denunciation, punishment, and general and specific deterrence. The second answer is that the evidence suggested that the treatment of the kind required by the applicant could have been available in prison. On the evidence before his Honour, it was not a case of the applicant having treatment available to him only if he were given a non-custodial sentence. 29 A further submission that was made was that his Honour treated the explanation given by the applicant as an aggravating feature. This was a reference to his Honour's observation that the explanation in no way excused his conduct, but if anything "probably makes it a little bit worse". I do not know that inflicting sexual abuse upon an 11 year old child for the purpose of punishing her mother is worse than inflicting sexual abuse on the same child for the purpose of sexual gratification. However, I do not think his Honour treated the explanation as an aggravating feature in the sense that it had an adverse (to the applicant) effect on the selection of sentence. 30 A further argument was put that, by reason of the applicant's explanation for his conduct, the need for the sentence to reflect considerations of general deterrence was diminished. In my opinion, this denotes a misunderstanding of the role of general deterrence in sentencing. Sentences are required, in appropriate cases, to contain a component referable to general deterrence for the express purpose of deterring others from committing the same crime, or type of crime. They are not required to contain a deterrence component for the purpose of deterring others from committing the same crime for the same reason, or motivation. Motivation is irrelevant to issues of general deterrence. 31 I would reject these bases of the application. 32 In written submissions it was urged upon the Court that the applicant: "...has been punished to some real extent by reason of the loss of his family reputation and self esteem." Reference was made to the disintegration of the applicant's family. This may be so, but it would be so in the vast majority of such offenders coming before the courts. Commission of crime almost invariably carries with it loss of family reputation and self-esteem. 33 In my opinion, his Honour was correct in concluding that a custodial sentence was called for. This was a very serious manifestation of the aggravated offence of inciting an act of indecency on a person under the age of 16. The applicant may well have found himself charged with something more serious; that is, of course, not to say that he should be sentenced for a more serious offence, but merely to recognise that the objective gravity of the offence to which he pleaded guilty has to be seen in the context of the scale which applies to offences against that section. 34 A final argument concerned the effect of the 25% discount referable to the applicant's plea of guilty. Bearing in mind the timing of the plea, this was generous. It was argued that, when the 25% is factored in to the sentence imposed, the starting point of the head sentence was three years and four months, against a statutory maximum of five years. That is 66% of the maximum sentence available. It was submitted that this was too high, having regard to the objective criminality, and the fact that the offence was an isolated event. This aspect of the application has given me pause for thought. However, I do not think that the complaint can be sustained. As I have already indicated, the offence was a serious one of its kind. It was not suggested that the applicant was sentenced for a more serious offence than that with which he was charged (cf The Queen v de Simoni [1981] HCA 31; 147 CLR 383). The applicant was sentenced for a very serious manifestation of an offence against s61O. In the scale of objective gravity of such offences, and factoring in the subjective circumstances, the starting point was not disproportionate. 35 The sentence imposed was not manifestly excessive. 36 Against the possibility that this Court might find error and proceed to re-sentence the applicant, some additional affidavit was received, both from the applicant and the Crown. Since I am of the view that no error has been established, it is unnecessary further to refer to that material. 37 I would grant leave to appeal but dismiss the appeal. ********** 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.