New South Wales Court of Criminal Appeal CITATION: R v Boulad [2005] NSWCCA 289 HEARING DATE(S): 12th September 2005 JUDGMENT DATE: 12 September 2005 JUDGMENT OF: Mason P at 33; Grove J at 34; Buddin J at 1 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: Criminal law - appeal against sentence - 19 counts of sexual intercourse with a person of or above the age of 14 and under the age of 16 - vulnerability of complainant as an aggravating factor - concurrent terms imposed for multiple offences Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act (1912) Pearce v The Queen (1998) 194 CLR 60 CASES CITED: R v Pearson [2005] NSWCCA 166 Regina PARTIES: Talad Boulad FILE NUMBER(S): CCA 2005/873 P Ingram (Crown) COUNSEL: S Odgers SC (Applicant) S Kavanagh (Crown) SOLICITORS: S O'Connor (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0174 LOWER COURT JUDICIAL OFFICER: Armitage DCJ IN THE COURT OF CRIMINAL APPEAL 2005/873 MASON P GROVE J BUDDIN J MONDAY 12 SEPTEMBER 2005 REGINA v TALAL BOULAD Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. The applicant pleaded guilty to nineteen separate offences of sexual intercourse with a person who was of or above the age of 14 and under the age of 16. The charges, which were brought pursuant to s 66C(3) of the Crimes Act, spanned the period between 22 January 2004 and 14 April 2004. Each offence attracts a maximum penalty of 10 years imprisonment. 2 The applicant requested that four offences on a Form 1 document be taken into account on sentence. The first offence related to a failure to take reasonable precautions to ensure that a firearm was safely kept. The second was an offence of possession of an unregistered air rifle. The final two charges were offences of goods in custody and related to the possession of two street signs. The sentencing judge properly regarded those matters as being of relatively minor significance in the scheme of things and as thus having a minimal impact upon the overall sentences. 3 The applicant was sentenced on each of the nineteen charges to what the sentencing judge described as "a minimum term" of 3 years imprisonment with "an additional term" of 3 years. The sentences were ordered to be served concurrently. The mode of expression which the sentencing judge employed was not in accordance with the statutory terminology but it is clear nonetheless that the total effective non-parole period which was imposed upon the applicant was one of 3 years, with the total effective sentence being one of 6 years. 4 The facts of the matter can be shortly stated. The offender was aged 32 at the time of the offences whilst the complainant was aged 15. She was at the time a ward of the state who was living in a group home. She had been diagnosed "as having an intellectual disability in the moderate range". She was also said to suffer from "an anti-social personality and [to have] a mental illness as defined under the Mental Health Act". The evidence reveals that the complainant required 24 hour a day supervision because of her condition. 5 The complainant's caseworker contacted police on 26 January 2004 and informed them that the complainant had told her that she was having sex with a man named Tony whom she described as her boyfriend. She also told the caseworker that Tony loved her. The caseworker was able to identify that person to police. The caseworker informed the police of other conversations which she had had with the complainant in which the complainant had told her that Tony had shaved "her pubic region" and that he had taken photographs of her whilst she was naked. It seems that in due course the complainant was referred to a family planning clinic where she was diagnosed as suffering from Chlamydia. 6 On 16 April 2004 the police went to the applicant's premises where they found both him and the complainant. The police seized a number of items including the firearms and the street signs which gave rise to the offences on the Form 1 document. They also seized photographs and a notebook labelled "taxi log 2004". There were handwritten entries in the notebook which set out in considerable detail sexual activities which the applicant had engaged in with ten different females. 7 Included in that material were numerous references to the complainant. It is unnecessary to refer to that material in any detail. Suffice it to say that it refers to their sexual activities in a very explicit, and less than sensitive, fashion. It also contains the following references: "I must let her go because she is under age" and "She is 15 years old". The police were able to identify from the entries in the notebook nineteen different instances of sexual assault perpetrated by the applicant upon the complainant. All involved either digital or penile penetration and several also involved cunnilingus. 8 When questioned by the police the applicant declined to answer any questions about the entries in the notebook. He also denied having had any sexual relations with the complainant whom he described as a friend. 9 Although the applicant denied any knowledge of the complainant's intellectual disability, he did admit to police that he knew that she lived in a group house run by the Department of Community Services for girls who had been "abused … in some way". He said that she had told him that she had been sexually abused by either her father or stepfather. The applicant told police that he was concerned for the complainant's welfare in view of her wayward behaviour. Indeed, he said that he saw his role (as the sentencing judge described it) as being one of seeking to protect her "from unwelcome approaches from undesirable people". He described himself at one stage as being a "male presence" in her life and as wanting her to have a "stable family environment". He expressed concerns about her wandering the streets alone at night and thereby exposing herself to the danger that she may be raped or violently assaulted. 10 There was other material before the sentencing judge which confirmed that the complainant had been sexually abused. She was also described by her case worker as being a "child sex offender herself and [as requiring] twenty-four hour supervision". Another caseworker observed that the complainant's behaviour had deteriorated significantly since her relationship with the applicant had begun. She had stopped attending high school and frequently stayed out all night. 11 A consultant psychiatrist expressed the opinion that the complainant was "troubled by wide swings of mood, and would behave quite erratically under the impulses her moods promoted. [She] was cognitively handicapped, and not able to make an informed choice in behaving in the ways that she did". In a psychological report, the view was expressed that "due to [her] disability … she may place herself in situations or associate with people which place her at high risk … Due to her disability, [she] would be unable to comprehend the level of risk associated with this type of behaviour, and would have limited comprehension of the consequences of undertaking actions such as unprotected sex, resultant pregnancy, or exposure to potentially harmful sexually transmitted diseases. Due to her difficulties in social interaction and comprehension of relationships, [she] is considered to be extremely vulnerable, and a significant risk." 12 The offender did not give evidence during the sentence hearing. The evidence which was before the sentencing judge revealed that the applicant was working as a taxi driver at the time of the offences. He was separated from his wife with whom he had had a daughter. He reported having been sexually abused himself by an older male cousin over a five year period commencing when he was in primary school. 13 A clinical psychologist, Ms Langovski, diagnosed the applicant as having a personality disorder and expressed the view that his history of sexual abuse "may well have contributed" to it. It was also, she said, "likely to have created misconceived views [on his part] regarding sexual behaviour and a diminished ability to differentiate between normal and deviant behaviour". She went on to say that the applicant appeared to have "a limited sense of responsibility and little insight into his behaviour". 14 In those circumstances the sentencing judge was prepared to accept that the applicant did not perceive, to the same degree as others may, that "what he was doing was wrong". His Honour nevertheless concluded that the applicant knew that the complainant was a "troubled young woman" who was, as I have said, in need of protection from the "advances of undesirable people". His Honour also said that it would have been "reasonably obvious to a person meeting her that the victim is not a person of great intellectual achievement". 15 The sentencing judge had regard to a number of matters which, pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, had the effect of ameliorating the otherwise appropriate penalty. Prominent amongst those considerations was the fact that the applicant had pleaded guilty. His Honour found that the applicant was entitled to a discount of 25% on account of the fact that the pleas had been entered at the first available opportunity and had obviated the need for the complainant to give evidence. Moreover, given that the complainant was not particularly co-operative with police, the applicant's guilt may otherwise have depended largely upon the entries in his diary. 16 Although the applicant initially denied his guilt to the police in an ERISP, the sentencing judge was nonetheless prepared to find that he was remorseful for his conduct. The fact that the applicant was a person of prior good character who had no previous convictions was also expressly taken into account by the sentencing judge. 17 The sentencing judge also made a finding that, given appropriate psychological treatment, the applicant had good prospects of rehabilitation. This was particularly so given the evidence that he had been gainfully employed and enjoyed the continuing support of his family. His Honour also found that "to a small extent" the applicant was unlikely to re-offend. His Honour further found that "to some extent" the applicant "was not fully aware of the consequences of his actions because of [his own] disabilities" and that as a result, general deterrence was of "marginally less importance" than would otherwise be the case. 18 His Honour also had regard to the fact that the nature of the applicant's offences suggested that he would need to be accommodated in a secure facility to guarantee his protection. The sentencing judge then made a finding of "special circumstances" within the meaning s 44(2) of the Crimes (Sentencing Procedure) Act 1999. His Honour did so in order to reflect his view that the applicant would require a longer than normal period of supervision upon his release from what will be his first time in gaol. 19 The first ground of appeal asserts that the sentencing judge "erred in holding that an aggravating factor of the victim being vulnerable was present because the victim was young". 20 The sentencing judge said that the only relevant aggravating factor was the fact that "the victim was vulnerable in this case because she was young and had a disability". The question of vulnerability arises by reason of s 21(2)(l) of the Crimes (Sentencing Procedure) Act 1999. 21 The applicant concedes that it was appropriate for the sentencing judge to have had regard to the complainant's disability as a matter that rendered her vulnerable in the sense contemplated in the legislation. However, it was contended on his behalf that it was an error for his Honour to have also had regard, in the present context, to the fact that she was young. It was submitted that in having regard to the complainant's age the sentencing judge contravened the injunction contained in the concluding words to s 21A(2), namely that "[a sentencing] court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". A similar kind of error was identified by this Court in R v Pearson [2005] NSWCCA 166. The Crown accordingly, quite correctly in my view, concedes that error has been established. 22 The second ground of appeal is that the sentencing judge "erred in increasing the sentence for each count to reflect the fact that the applicant was being sentenced for multiple counts". 23 As I have said, the sentencing judge imposed entirely concurrent sentences in respect of each of the nineteen offences in relation to which the applicant stood for sentence. Indeed, it would appear that he was specifically invited to take that course by the Crown by reason of the fact that all the offences were committed over a "relatively short period" and involved the same "victim". 24 In other words, the sentencing judge approached the question of sentence in a "global fashion" rather than by giving consideration to what sentence was appropriate for each individual offence. It is conceded by the Crown that in so approaching the matter, the sentencing judge has again fallen into error. Such an approach, it is acknowledged, does not conform with the principles enunciated in Pearce v The Queen (1998) 194 CLR 60. This is not to say that the sentencing of offenders in respect of multiple offences does not present its own challenges. 25 I will return in due course to consider what consequences (if any) flow from the errors which have been identified. 26 The final ground of appeal is that the sentences are manifestly excessive. In advancing this submission Mr Odgers SC, who appears on behalf of the applicant, pointed to a number of features of the case. 27 First, he submitted that given the applicant's favourable subjective features, a starting point of 8 years for each offence (before the discount for the plea of guilty) was such as to suggest appellable error, particularly when regard is had to the fact that the maximum penalty is one of 10 years. Indeed, in oral submissions he went so far as to suggest that a full-time custodial sentence was not required. 28 Secondly, he submitted that although there had clearly been some exploitation of the complainant's vulnerability by the applicant, such exploitation fell at the "lower end of the spectrum" of such conduct. In this respect, he pointed out that the applicant's awareness of the complainant's condition was limited to his knowledge of her "troubled past" and the fact that she had engaged in "risk taking behaviour". Moreover, he submitted that she had come to the relationship with her own history of "highly sexualised behaviour"; and that it was she who had, according to the entries in the applicant's diary, initiated many of the sexual activities by arriving unannounced (often late at night) at the applicant's flat and indicating a desire to have sex. 29 Finally, Mr Odgers observed that the two authorities to which the sentencing judge had referred in his Remarks on Sentence should have led his Honour to have imposed less severe sentences upon the applicant than he did. 30 The purpose of the legislation which creates the offences of which the applicant was convicted is clearly protective. It is designed to shield vulnerable people from being sexually exploited even if they are willing participants in the relevant sexual activities. The touchstone for determining the objective gravity of any such offending lies in an assessment of the nature and extent of the exploitation which is involved. 31 In the present case there was a significant difference in the ages of the applicant and the complainant. Furthermore, the complainant's vulnerability had added significance because of her intellectual disability, moderate though it may have been. Although there was no direct evidence that the applicant was aware of that fact he was nonetheless well aware, from his frequent contact with her, of other aspects of her conduct which rendered her vulnerable, including her age, background and propensity for engaging in risk taking activities. Indeed he professed to be concerned about her welfare because of those very matters. Moreover, the offending conduct continued over a three month period and involved a not insignificant number of separate offences. The applicant thereby engaged in a course of sexual misconduct in which he persisted notwithstanding the fact that he knew that what he was doing was against the law. Accordingly I do not accept, in all the circumstances, that his conduct can be described as falling at the "lower end of the spectrum". In arriving at that conclusion I have had regard to all the material which was before the court, and in particular the contents of the applicant's diary. 32 In my view, notwithstanding the applicant's favourable subjective features, it has not been demonstrated that the sentences are manifestly excessive, at least not in their overall effect. Nor am I disposed to conclude, despite the errors to which reference was made earlier, that some other sentence or sentences are warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act (1912). 33 Accordingly, I propose that leave to appeal be granted but that the appeal be dismissed. 34 MASON P: I agree. 35 GROVE J: I also agree. 36 MASON P: The orders of the Court will be as proposed by Buddin J. ********** 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.