New South Wales Court of Criminal Appeal CITATION: I.F.G. v Regina [2007] NSWCCA 6 HEARING DATE(S): 22/01/2007 JUDGMENT OF: Adams J at 36, 38; Howie J at 1; Price J at 37 EX TEMPORE JUDGMENT DATE: 22 January 2007 DECISION: Application for leave to appeal granted, appeal allowed and the sentences in each case quashed. In lieu the applicant is sentenced as follows. In relation to the first count, imprisonment for 6 years with a non-parole period of 4 years to date from 29 July 2005 and to expire on 28 July 2009. He is eligible to be released to parole on this date if not for the sentence to be pronounced. In relation to the second count, imprisonment for 6 years with a non-parole period of 3 years to commence on 29 July 2007 and to expire on 28 July 2010, the date he is eligible to be released to parole. The recommendations made by Judge McGuire are to be continued that being that the applicant be afforded psychiatric and psychological treatment whilst in custody and that he be supervised by the Probation and Parole Service whilst on parole and that he accept all directions with regard to any ongoing psychological or psychiatric counselling. CATCHWORDS: Criminal Law - Sentencing - Delay in prosecuting child sexual offences in NSW after applicant charged and sentenced in Queensland - whether insufficient account taken of the delay and effect of it upon the applicant - whether in light of the delay partially accumulating sentences were warranted - formal defect in pronouncement of sentences. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 21A, 44 CASES CITED: R v Todd [1982] 2 NSWLR 517 PARTIES: I.F.G. v Regina FILE NUMBER(S): CCA 2006/1989 COUNSEL: R.A. Herps - Crown Applicant - in person SOLICITORS: S. Kavanagh - Crown Applicant - in person LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/51/0154 LOWER COURT JUDICIAL OFFICER: McGuire DCJ LOWER COURT DATE OF DECISION: 29/07/2005 IN THE COURT OF CRIMINAL APPEAL 2006/1989 ADAMS J HOWIE J PRICE J MONDAY 22 JANUARY 2007 I.F.G. v REGINA Judgment 1 HOWIE J: The applicant is unrepresented before this Court. He seeks leave to appeal against sentences imposed upon him in the District Court by McGuire DCJ (the Judge). On 29 July 2005, the applicant was sentenced for two offences of sexual intercourse without consent of a child under the age of 16 years. The complainant in each case was his stepdaughter aged respectively 12 and 13 at the time of the offences. The first offence was committed between January and April 1992 and the second between February and July 1992. 2 The applicant today raised questions about the sentences imposed by his Honour, their correctness at the time of being pronounced and recorded on the indictment in the District Court and how those sentences were conveyed to the Department of Corrections by warrant. I will deal with these matters shortly. It is enough to say that, although there seems to have been some unfortunate errors in the recording of his Honour's sentences and in having those sentences conveyed to the Department of Corrections, there is no error in the pronouncement of the sentences apart from a technicality to which I shall refer shortly. 3 In respect of the first offence, the applicant was sentenced by his Honour to a term of imprisonment comprised of a non-parole period of 4 years with a balance of term of 2 years to date from 29 July 2005. In respect of the second offence, he was sentenced to a term of imprisonment comprising a non-parole period of 3 years with a balance of term of 3 years to date from 29 July 2007. This is an overall sentence of 8 years with a non-parole period of 5 years to expire on 28 July 2010, the date upon which the applicant is eligible to be released to parole. This is the way in which the sentences were pronounced by his Honour. 4 There is an error in the way those sentences were recorded on the indictment in the District Court. Further, the sentences as pronounced do not accord with section 44 of the Crimes (Sentencing Procedure) Act 1999 as it applied at the date of the commission of the offences. The sentences were pronounced in accordance with that section as it was at the time of sentence. However, this is a technical defect in the pronouncement of the sentences. It does not indicate that his Honour's discretion miscarried and it does not itself enliven the jurisdiction of this Court to interfere with the sentences imposed by his Honour. However, it will require the Court to re-sentence the applicant in order to comply with the relevant statutory requirements. 5 One matter raised by the applicant during his oral submissions to the Court today was the fact that he had been led to believe, during the course of his sentences when he applied to be transferred to Queensland, that he was serving a sentence of 4 years with a non-parole period of 2 years. That was the sentence that was set out on the warrant dated 29 July 2005. That warrant contains a reference to only one offence, being the first offence for which the applicant was sentenced. The sentence as set out in that warrant was incorrect as it indicated that the term of the sentence was 4 years and the non-parole period was 2 years. 6 Although there was some confusion in the pronouncement of the sentence by his Honour by his use on two occasions in relation to that offence of the term "non-parole period", it is clear that what his Honour intended was that there would be a non-parole period of 4 years in respect of that sentence with a balance of term of 2 years. 7 It is unexplained how it was that only one of the offences for which the applicant was sentenced came to be on the warrant of commitment and how it was that the sentence in respect of that offence was misstated. However, the terms of the warrant cannot, in my view, determine the outcome of this appeal. 8 Because of the confusion or apparent confusion as to the sentences that were imposed upon the applicant, the matter was brought back before his Honour on 4 May 2006. On that date, the Judge made it clear that he had intended, in respect of the first offence, to fix a non-parole period of 4 years with a balance of term of 2 years. His Honour also made it clear on that day, although it was unnecessary to do so, that in relation to the second count, the applicant had been sentenced to imprisonment for a non-parole period of 3 years with a balance of term of 3 years, that sentence to commence during the course of the term for sentence in the way I have already indicated. 9 It is unfortunate that, at one stage during the course of his sentence of imprisonment, the applicant was misled as to the sentence which he was serving, but, again, that does not seem to me to be a matter that could determine the outcome of this application. 10 Before his Honour there was a statement of facts in evidence. The complainant was born on 2 April 1979. The applicant married her mother in 1991 when he was aged 47 years. The facts describe a course of sexual misconduct by the applicant against the complainant in 1990 when she was aged 11 during which he would regularly come to her bedroom and fondle her breasts and place his fingers in her vagina. The first count relates to an act of penile/vaginal intercourse that occurred after the applicant had got into bed with the complainant and pulled down her panties. According to the facts, the complainant was crying continuously and the applicant withdrew after a few minutes without ejaculation. The second offence occurred about a month later. Again, the applicant had got into bed with the child and placed his penis in her vagina. He withdrew after a couple of minutes and ejaculated on her stomach. He attempted to put his penis into her mouth but she refused to allow him to do so. The facts state that sexual activity against the complainant continued until 1998. 11 In January 1998, the complainant provided a statement to police outlining her allegations of offences committed by the applicant in both this State and in Queensland. The applicant was spoken to later that month and conceded that the allegations were true. He acknowledged having intercourse with the child when she was aged between 12 and 13. When asked by police why he did so, he answered: "Just for the sexual pleasure of it, I guess". 12 The applicant was arrested and in December 1999 appeared in the District Court of Queensland. He pleaded guilty to two counts of indecent assault and one count of indecent treatment of a child under the age of 16 years. The applicant was sentenced to imprisonment for 12 months, which term was to be suspended after he served 4 months. 13 On 23 March 2000, the complainant's mother informed the police that the child no longer wished to continue with the complaints. According to material before his Honour, this statement was made without authority from, or to the knowledge of, the child. Before us the applicant has stated that he believes that that statement was made at the child's behest because the complainant was at that time living with, and under the care and control of, the mother. On 8 August 2002, however, the complainant made a further statement to police. The applicant was then interviewed on 27 March 2003 but refused to comment on the further allegations. Proceedings were commenced for these matters on 16 June 2004 and the applicant was committed for trial on 19 October 2004. He pleaded guilty to the two offences on 25 July 2005. 14 The transcript of the sentencing remarks of Judge Newton in the Queensland District Court was placed before the judge. It indicates that the offences dealt with in that court involved the digital penetration of the complainant when she was aged 14 and fondling her breasts when she was aged 18 and 19. 15 There was a psychological report before Judge McGuire dated 9 April 2005. The applicant was then aged 61 years. The applicant told the psychologist that the offences occurred when the complainant got into her parent's bed naked unbeknown to her mother who was also in the bed. He said that the complainant made her allegations known to her mother when he and the mother were considering being reunited after separating because of marital difficulties. The applicant said that he was raised in circumstances of poverty. He met the complainant's mother in 1989 and married her in 1991. This was the applicant's third marriage. In 2002 they renewed their wedding vows. He told the psychiatrist that their plans had been "cut short". 16 The applicant indicated to the psychologist that the child was provocative and very sexually aware at the time. However, he expressed remorse for his conduct and had an appreciation for the fact that he was an adult and responsible for his conduct. The psychologist thought that his developmental background had failed to provide him with the "emotional skills and recourses necessary for a satisfying life". She believed that he was a depressed and emotionally limited child and that his problems touched all aspects of his later life. His underlying problems remained throughout his marriages and that they "set the scene" for his sexual involvement with the complainant. His anxiety and depression were seen as pivotal problems in relation to his offending. 17 The psychologist believed that the applicant would benefit from psychological intervention to "resocialise his attitudes and beliefs by addressing the problems of his childhood, youth and adulthood". He needed to continue medication to address his anxiety and depressed states. The psychologist considered that he was unlikely to re-offend. 18 There was also in evidence a psychiatric report dated 21 April 1999. The report indicates that at that time the applicant was being treated for depression by medication and psychotherapy. The psychiatrist thought that the risk of repetition was minimal. There was also in evidence before his Honour testimonials from members of the community and other documents as to the applicant's behaviour in the community. 19 The Judge commented in his sentencing remarks upon the fact that he had heard no evidence from the applicant and had received no personal statements of remorse or contrition. He expressed scepticism of the expressions of remorse given to the psychologist and the account he had reported of the circumstances surrounding the offences. His Honour noted that the statement of facts referred to further offending after 1992 and he saw that fact as relevant to the lack of remorse by the applicant for his conduct in that he continued to molest the child for another 6 years after the offences for which he was being sentenced. 20 In particular, the Judge indicated that he was "singularly unimpressed" with the psychologist's explanation for the offending having regard to the whole of the applicant's conduct. His Honour was disbelieving that the child was provocative or sexually aware having regard to the material before him as to her behaviour when she was being assaulted. He thought the applicant was seeking to put blame on the child and that this was "hardly consistent with genuine remorse or contrition and demonstrates lack of insight". He thought that he simply used the child "to satisfy his lust". 21 The Judge referred to the history of the matter and the fact that the applicant had been sentenced in Queensland for indecent assault against the complainant. However, he referred to the maximum penalty for the offences before him, being imprisonment for 20 years, the seriousness of the activity contained in the counts to which the applicant had pleaded guilty and the need for general deterrence. The Judge indicated that he was prepared to consider the applicant as a person of good character at the time of the offending. He discounted the sentence by 25 per cent in recognition of the utilitarian value of the pleas. He noted the delay in the matters coming before the court and accepted that it would have subjected the applicant to anxiety and strain. He also said that he took into account that the offences occurred some 13 years before sentencing. 22 The Judge considered s 21A of the Crimes (Sentencing Procedure) Act and found that it was an aggravating factor that the child was as young as 11 when the first offence was committed and hence particularly vulnerable. His Honour referred to a number of matters of mitigation, including the fact that the applicant was of good character and did not have a criminal record. He was not prepared to find that the applicant was unlikely to re-offend or had good prospects of rehabilitation in light of what the Judge saw as a lack of insight into his offending. The Judge found special circumstances by reason of the accumulation of sentences. In fact, the overall non-parole period is less than the statutory relationship of 75 per cent notwithstanding that the Judge gave no reasons to justify this outcome. 23 The applicant filed a document entitled "Submissions" and dated 22 August 2006. It contains the following: If a court does not impose a sentence suited to the seriousness of the crime it fails to act as a deterrent to other offenders. On the other hand, justice and humanity both require that the previous character and conduct and probable future life and conduct of the individual offender and the effect of the sentence on these should also be given careful consideration. 24 The applicant also filed what purported to be grounds of appeal. In effect, this document sets out the history of the proceedings from the complaints in 1999 through to the date of sentencing in July 2005. The applicant submitted that had the offences been dealt with at the appropriate time, presumably in 1999, "it would all be over by now". The applicant expressed the hope that the sentences would be served concurrently. He also stated that, contrary to the views expressed by the Judge, he had genuinely expressed his sorrow and regret for his actions and apologised to the complainant. 25 In oral submissions before us today, the applicant again stressed the time that had elapsed from 1998 in Queensland until these matters were proceeded against him in 2002. He also again stressed before us that he was contrite and had sent a letter to his daughter and wife apologising for his behaviour. 26 It is not unusual, unfortunately, that there is an extensive delay between the commission of child sexual offences and the finalisation of the charges by sentencing. This matter is, however, unusual in that there is a significant period of delay that, on the material before his Honour, was a result of the conduct of the wife rather than that of the complainant or the applicant. This delay was because the wife, in effect, withdrew the complaints, although she had no authority to do so. Even if it be accepted that the complainant at the time was not prepared to continue with the allegations that gave rise to these offences, it is still to be taken into account that the offences were extremely serious even though there was the further delay before the complainant changed her mind and decided to continue with her allegations against the applicant. There was also the unexplained delay between the making of the further statement by the complainant and the commencement of the proceedings by the New South Wales police. 27 The Judge stated that he was taking that delay and its possible effects upon the applicant into account. This was a case where the principles expounded in R v Todd [1982] 2 NSWLR 517 applied to some extent, although it was not simply the operation of the legal system in different States that brought about the delay in the finalisation of the proceedings in this State. However, the offences before the Judge were very much more serious than those before the District Court in Queensland. They were offences of sexual impropriety of the utmost gravity involving as they did acts of non-consensual sexual intercourse of a young child by a stepfather. In my view, they required condign punishment notwithstanding the delay and its effects upon the applicant. 28 In my opinion, the Judge was completely justified in imposing partially cumulative sentences as the appropriate sentence for one of the offences could not comprehend the totality of criminality reflected by both. It would have been an error to impose totally concurrent sentences notwithstanding the delay. The applicant was given the benefit of a 25 per cent discount even though the pleas of guilty came after he was committed for trial. That was, on one view, a very generous approach. The applicant's good character and lack of criminal record was of little significance having regard to the fact that the offences were part of a course of criminal conduct that stretched over many years. 29 The Judge reduced the overall non-parole period to about 65 per cent of the total term because he found special circumstances by reason of the cumulation of sentences. However, finding special circumstances on that basis is usually only done where the Court is intending to retain the statutory relationship overall by reducing the non-parole period of the sentence being served cumulatively. There is no valid reason for finding special circumstances to reduce the overall non-parole period simply because sentences are to be served cumulatively. 30 Once the Judge found that he was not persuaded to accept the opinion of the psychologist because it was inconsistent with the facts upon which the applicant was being sentenced, it is difficult to see how a longer period on parole than would result from the statutory proportion could be justified. The Judge was entitled to form the view that the applicant was not truly contrite and lacked insight into his offending. 31 In light of those findings and being unpersuaded that there were good prospects of rehabilitation, it is difficult, in my view, to see why there should have been a finding of special circumstances to lessen the overall non-parole period. In my opinion, the Judge gave no adequate reason to justify reducing the overall non-parole period but this was an error in the applicant's favour. 32 The applicant must understand that this is a Court concerned with the correction of errors. It does not simply interfere with a sentence imposed because this Court might have imposed a different sentence. In my opinion, any error in the exercise of the sentencing discretion was in favour of the applicant and no lesser sentence is warranted. The overall sentence imposed was a long one but fully justified because of the offences committed by the applicant notwithstanding the delay before the sentences were imposed. 33 As I have already indicated, however, the actual pronouncement of the sentences was not in accordance with the statutory scheme that existed at the time that the offences were committed and applied in this particular case. As I have already indicated, it is a necessary consequence that this Court must re-sentence the applicant even though it has found no error was made in the exercise of discretion which would warrant the reduction of the sentences imposed. 34 For the purpose of correcting the pronouncement of the sentences, I would grant the applicant leave to appeal and allow the appeal. The sentences in each case are quashed. In lieu thereof, the sentence on the first count is one of imprisonment for 6 years with a non-parole period of 4 years to date from 29 July 2005. The non-parole period is to expire on 28 July 2009. But for the sentence to be next pronounced, the applicant would be eligible to be released on that day. The sentence on the second count is one of imprisonment for 6 years with a non-parole period of 3 years to commence on 29 July 2007, the date upon which the sentence commences and which is to expire on 28 July 2010, the date upon which the applicant is eligible to be released to parole. 35 The judge made certain recommendations which will be continued, that being that the applicant be afforded psychiatric and psychologist treatment in custody and he be supervised by the Probation and Parole Service whilst on parole and accept the directions in regard to ongoing psychological and psychiatric conditions. 36 ADAMS J: I agree. 37 PRICE J: I agree. 38 ADAMS J: The orders of the Court will therefore be as proposed by Howie 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. 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