Regina v J.T.A.C. [2005] NSWCCA 345

New South Wales Court of Criminal Appeal

CITATION: Regina v J.T.A.C. [2005] NSWCCA 345

HEARING DATE(S): 5 October 2005

JUDGMENT DATE: 5 October 2005

JUDGMENT OF: McClellan CJ at CL at 20; Grove J at 1; Hislop J at 21

DECISION: APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - JUVENILE OFFENDER (13 YEARS) - SERIOUS SEXUAL OFFENCES PERPETRATED ON (HALF) SIBLINGS AGED 5 AND 7 - DEALT WITH AT LAW - RELATIVELY SHORT PERIOD OF CUSTODY - NO ERROR IN ASSESSMENT BY JUDGE AT FIRST INSTANCE

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

R v Pearson [2005] NSWCCA 116 CASES CITED: Veen v The Queen (No 2) 1988 164 CLR 465

PARTIES: Regina v J.T.A.C.

FILE NUMBER(S): CCA 2005/1826

P.Miller (Crown) COUNSEL: C. Smith (Applicant)

S. Kavanagh (DPP) SOLICITORS: S. O'Connor (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0280

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1826

McCLELLAN CJ at CL GROVE J HISLOP J

Wednesday 5 October 2005 REGINA v J.T.A.C. Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Freeman DCJ at Coffs Harbour District Court on 3 March 2005. The applicant is a young person born 22 April 1990 who pleaded guilty to an indictment containing four counts. Count 1 charged sexual intercourse with a female child under the age of ten years and counts 2 and 3 charged indecent assault upon the same child who is the applicant's half sister. At the time of all offences, she was aged five years. The fourth count charged sexual intercourse with a male child under the age of ten years. The victim was the applicant's half brother who was at the time of offence aged seven years. 2 The facts were put before the Court in an agreed statement, all the detail of which it is not necessary to recount. Briefly, the first count involved an act of fellatio and counts 2 and 3 involved the applicant rubbing his penis against the victim's bottom and vagina on the respective occasions. The fourth count involved an act of fellatio. 3 Although the applicant was a juvenile he was dealt with at law. The prescribed maximum penalty available for offences such as those charged in counts 1 and 4 was imprisonment for twenty five years, and in respect of counts 2 and 3 imprisonment for ten years. 4 His Honour sentenced the applicant on counts 1 and 4 to imprisonment for two years and six months with a non parole period of nine months to be served concurrently, and on counts 2 and 4, to imprisonment for fixed terms of six months. Although the imposition in respect of count 3 was partially cumulative upon that imposed in respect of count 2, both of the fixed terms were wholly subsumed within the non parole period specified in respect of counts 1 and 4. The sentences were directed to commence upon the date of imposition (3 March 2005) although in fixing the terms his Honour expressly took into account periods of pre sentence custody. He is therefore scheduled for release on 2 December next. 5 After being charged, the applicant was kept in custody for about one month, after which he was granted bail. He was returned to custody following breach of bail conditions. He remained in custody for about another five and half months. Thereafter he was again admitted to bail although he was required to live in premises operated by Marist Youth Care, as it was no longer possible for him to reside in the household with the child victims. 6 The learned sentencing judge expressly indicated that he accepted that the plea of guilty was offered at the earliest possible opportunity and that in addition to a discount of 25 percent against sentence otherwise assessed, he would reduce the period by a further six months to accommodate the pre-sentence periods spent in custody. 7 The first ground of appeal asserts that the sentencing judge erred in regarding as an aggravating factor that the victims were vulnerable. In his remarks on sentence his Honour observed that the Crown had pointed to a number of aggravating elements and he went on to refer to the emotional harm caused by the offences, the tearing of the family fabric and the disturbance to the relationships within it. He then said, "the children were especially vulnerable". The argument of the applicant focuses upon the legislative dictate concerning matters of aggravation set out in s 21A (2) of the Crimes (Sentencing Procedure) Act 1999. S21A (2) provides: "The aggravating factors to be taken into account in determining the appropriate sentence for the offence are as follows: …….. (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant) ….. The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". 8 The applicant submits that his Honour has erred in effectively double counting the aggravating feature of vulnerability in his sentence assessment. Although the exemplars included in the subsection have among them the youth of a victim, the specific element of the offence charged in the present instance is the non-attainment of calendar age. No doubt it can be inferred that the legislature saw fit to enact the provision in the terms selected because of the vulnerability of persons under the age of ten years, but the element of the offence is as I have stated, and I would reject the submission that his Honour has taken into account an aggravating factor which was itself an element of the offence, contrary to the provision above set out. 9 The applicant argues that, even if that distinction be recognized, the effect of what his Honour did was to "double count". His Honour's expression "especially vulnerable" contradicts that submission. It was appropriate for his Honour to consider the degree of vulnerability of the victims, which in this case as I have mentioned, is to be gauged against the ages of five and seven years, and this was a matter which was germane to his Honour's assessment: cf R v Pearson [2005] NSWCCA 116. It is plain that his Honour was saying no more than that the child victims were considerably younger than could be the case when commission of the particular offence is charged. 10 The second ground asserts that the sentencing judge erred in having regard to preventative detention in imposing sentence. 11 This ground has reference to his Honour's remarks which included: "There is a need, identified by him being assessed as a reasonable risk of re-offending to protect the community until such time as he engages in correcting his attitudes. For those reasons it seems to me appropriate that there should be a custodial sentence". 12 It is undisputed that a sentencing judge may not extend the period of sentence for the purpose of preventive detention but that is not to say that the protection of the community is not a material factor in fixing an appropriate sentence: Veen v The Queen (No 2) 1988 164 CLR 465. 13 The applicant's argument focuses upon the qualification in his Honour's remark "until such time as he engages in correcting his attitudes" and submits that this indicates breach of principle. His Honour's remarks, however, need to be understood in their context and that includes the final sentence which I have quoted, in which he refers to his conclusion that a custodial sentence (as distinct from non-custodial) is merited. In particular, his Honour made no reference to the term of sentence and further he made no reference to extending any term which he assessed as otherwise appropriate. 14 Given the facts of the case and observing orders for release of the applicant after service of nine months in custody (in addition to taking into account periods of earlier custody) it seems to me to be impossible to conclude that his Honour has, in any way, breached principle by extending the term imposed in order to preventively detain the applicant. 15 The final ground of appeal asserts that the sentence is manifestly excessive. 16 In support, it is acknowledged that the offences were objectively serious but it is contended that insufficient weight was given to the fact that the applicant was aged thirteen at the time of committing the offences. As his Honour's remarks show, he was acutely aware of this circumstance, and he expressed his acknowledgement of the difficulty of the sentencing exercise upon which he was engaged. It is true that his Honour made no express reference to rehabilitation of the applicant but it is obvious that this is what he had in mind in assessing a head sentence which is a fraction of the available maximum penalty, and a proportion of actual custody to overall sentence which operated considerably in the applicant's favour when compared with the statutory prescription. 17 As his Honour noted there was a considerable volume of material from those who had sought to assist and assess the applicant. That material showed a fluctuating response on the part of the applicant to the endeavours of those who set out to assist him. Included among those is his grandfather, who gave evidence for him and with whom he had previously resided for several years, although he acknowledged that the applicant's growth was such now that he "might have a bit of trouble restraining him at the moment". 18 The whole of the material, both from expert and family sources, contains a mixture of promise and apprehension. As his Honour said, he was indeed faced with a difficult sentencing exercise. In my opinion, neither error nor miscarriage of his Honour's discretion has been shown, and the sentences imposed were well within the range of sound exercise of that discretion. 19 I would grant leave to appeal against sentence but dismiss the appeal. 20 McCLELLAN CJ at CL: I agree with Grove J. 21 HISLOP J: I also agree with Grove J. 22 McCLELLAN CJ at CL: The orders of the Court therefore will be as Grove J has indicated. **********