New South Wales Court of Criminal Appeal CITATION: Sheehan [No 2] v Regina [2006] NSWCCA 332 HEARING DATE(S): 12/07/06 JUDGMENT DATE: 3 November 2006 JUDGMENT OF: Handley JA at 1; Kirby J at 2; Hoeben J at 29 DECISION: (1) Appellant granted leave to appeal against sentence in respect of count 10. (2) Appeal allowed. (3) The sentence in respect of count 10 set aside and, in lieu thereof, the appellant sentenced to imprisonment for 6 years commencing on 22 November 2004 and expiring on 21 November 2010, with a non parole period of 4 years commencing on 22 November 2004. The first date upon which the appellant will be eligible for parole is 21 November 2008. CATCHWORDS: Criminal Practice & Procedure - application for leave to appeal against sentence after appeal against conviction allowed on some counts and new trial ordered - conviction confirmed on one count - old offence - judge adopted global approach to sentence - whether sentence on remaining count anomolous and excessive - jurisdiction of Court of Criminal Appeal - re-sentence - sentence reduced. LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912 Sheehan v Regina [2006] NSWCCA 233 Shore (1992) 66 A Crim R 37 CASES CITED: MJR (2002) 130 A Crim R 481 R H McL v The Queen (2000) 203 CLR 452 Ryan v The Queen (1982) 149 CLR 1 PARTIES: Ronald John Sheehan (App) Regina (Resp) FILE NUMBER(S): CCA 2006/701 COUNSEL: H Dhanji (App) P G Ingram (Resp/Crown) SOLICITORS: J Pearson - LAC (App) S Kavanagh (Resp/Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/61/116 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ LOWER COURT DATE OF DECISION: 08/06/05 IN THE COURT OF CRIMINAL APPEAL 2006/701 HANDLEY JA KIRBY J HOEBEN J Friday 3 November 2006 Ronald John SHEEHAN [No 2] v REGINA Judgment 1 HANDLEY JA: I agree with Kirby J. 2 KIRBY J: On 12 July 2006 this Court heard an appeal by Ronald John Sheehan against convictions recorded after a jury trial in relation to the following charges: Count 1 : That between 14.7.81 and 31.12.81 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 6 years (s61D(1) Crimes Act 1900). Count 2 : That between 1.5.82 and 31.5.82 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 7 years (s61D(1)). Count 3 : That between 1.5.82 and 31.5.82 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 7 years (s61D(1)). Count 4 : That between 29.11.82 and 12.12.82 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 7 years (s61D(1)). Count 5 : That between 29.11.82 and 12.12.82 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 7 years (s61D(1)). Count 6 : That between 1.3.85 and 31.3.85 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 10 years (s61D(1)). Count 7 : That between 1.3.85 and 31.3.85 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 10 years (s61D(1)). Count 10 : That between 1.1.86 and 30.6.86 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 11 years (s61D(1)). 3 There was no appeal against sentence. On 16 August 2006 the Court published its reasons for the following orders (Sheehan v Regina [2006] NSWCCA 223): 1. Appeal allowed in respect of counts 1 to 7 inclusive. 2. In respect of counts 1 to 7, the convictions are quashed and the sentences set aside. There should be a new trial in respect of such counts. 3. In respect of count 10, the appeal is dismissed and the conviction confirmed. 4. The appellant and the Crown have leave to make further submissions in writing concerning sentence. The appellant should file and serve such submissions within 14 days and the Crown respond within a further 14 days. The submissions should indicate whether the parties seek to supplement their submissions by oral submissions. 4 Helpful written submissions have been received from Mr Dhanji of counsel for Mr Sheehan and from the Crown. Neither party sought to make oral submissions. Jurisdiction of the Court of Criminal Appeal. 5 The sentencing Judge, Coolahan DCJ, in the course of his remarks, identified the approach he intended to take when sentencing the appellant (cf Shore (1992) 66 A Crim R 37 at 42; MJR (2002) 130 A Crim R 481): (ROS 14) "Whilst it is always difficult to determine what sentencing practice was that long ago, from my own experience the one thing I can say is that accumulation was rare indeed. For those reasons I am of the view that concurrent sentences should be imposed. In relation to all but count 10 I am of the view that those sentences should be fixed terms of imprisonment which should reflect the objective seriousness and escalating conduct of the offender in debauching a young girl who should have been able to rely on him for protection, not the sort of abuse that he perpetrated upon her." 6 His Honour adopted a "global" approach, imposing fixed terms on all but count 10, each term being less than the non parole period fixed in relation to count 10. The sentences imposed were as follows: Count 1: Fixed term of 3 years imprisonment to date from 22 November 2004; Count 2: Fixed term of 3 years and 3 months imprisonment to date from 22 November 2004; Count 3: Fixed term of 3 years and 6 months imprisonment to date from 22 November 2004; Count 4: Fixed term of 3 years and 9 months imprisonment to date from 22 November 2004; Count 5: Fixed term of 4 years imprisonment to date from 22 November 2004; Count 6: Fixed term of 4 years and 3 months imprisonment to date from 22 November 2004; Count 7: Fixed term of 4 years and 6 months imprisonment to date from 22 November 2004; Count 10: Fixed term of 7 years 6 months imprisonment with a non parole period of 5 years to date from 22 November 2004. 7 This Court, having quashed all but count 10, and having ordered a new trial in respect of such counts, the remaining sentence was arguably anomalous and excessive. Submissions were therefore invited. 8 Both the appellant and the Crown submitted, and I accept, that this Court has jurisdiction to resentence, either under s5(1) (where there is error) or s7(1) of the Criminal Appeal Act 1912. Section 7(1) of the Act is in these terms: "s7(1) If it appears to the court that an appellant on an appeal under section 5(1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefore as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted." 9 The power conferred by s7(1) "is a power to resentence the accused de novo" (R H McL v The Queen (2000) 203 CLR 452 per McHugh, Gummow and Hayne JJ at [51]). Brennan J, in Ryan v The Queen (1982) 149 CLR 1 said this, in the context of the Victorian equivalent of s7(1) (quoted by Gleeson CJ, Gaudron and Callinan JJ in R H McL v The Queen at [32]): (at 22-23) "When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted. If the offences are founded on the same facts, it is necessary to ensure that the appropriate penalty for the same act or omission is not imposed twice; if the offences are part of a series, the entirety of the criminal conduct of the same or similar character, rather than the several acts or omissions constituting the separate offences, may determine the appropriate overall sentence to be imposed. In pronouncing sentence, however, the trial judge imposes separate sentences in respect of the several offences of which the accused has been convicted, effecting the appropriate overall sentence by adjusting the severity of the separate sentences and, when custodial sentences are imposed, by ordering that they be served either concurrently or cumulatively. On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569(1) of the Crimes Act 1958 allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands." 10 In these circumstances, counsel for the appellant made the following submissions which the Crown conceded were correct: "11. It is submitted that, in the light of the quashing of the convictions, it is no longer appropriate that the sentence with respect to count 10 'should reflect the ... escalating conduct of the offender'. That is, the fact that the sentence remains unchanged after the quashing of the convictions on counts 1-7 produces an anomaly which may be addressed by s7(1). 12. To leave the sentence unadjusted would result in an effective increase in sentence for the remaining count despite all but one conviction having been quashed. This would leave the appellant with a legitimate sense of injustice - cf R v Gilmore (1979) 1 A Crim R 416." 11 I accept that quashing the convictions in respect of counts 1 to 7 has produced an anomaly which should be addressed under the power provided to this Court in s7(1). It is unnecessary to consider error. Matters relevant to resentencing. 12 The circumstances giving rise to the offence, the subject of count 10, are set out in the Court's judgment of 16 August 2006 (para [6]ff). The complainant "Theresa" was a child aged between 10 and 11 years. She was the stepdaughter of the appellant. The appellant had a reputation for violence and anger, such that the complainant was frightened of him. Between 1 January 1986 and 30 June 1986 he directed her to go to a workshop under the house. Her mother was at home. Although the complainant knew what was about to happen, because it had happened before, she did as she was told because she was frightened. On this occasion, however, the appellant failed to take a precaution which he ordinarily took. He omitted to latch the door. He lay the complainant on the ground. His jeans were around his ankles. He inserted his erect penis inside her vagina. The judgment on appeal described what then happened in these terms: (para [40]) "The complainant then saw her mother walk into the workshop. The appellant pulled back. He supported himself on his knees. Her mother pushed him and he fell to one side. She yelled at him: "What do you think you're doing?". She told her daughter to go to her room. Once in the house, the complainant heard the appellant say, angrily: "... Just because I fucked your daughter." Her mother came into the complainant's bedroom. She did not talk about what had happened. She simply told her daughter to forget about it." 13 The effect upon the complainant of her stepfather's conduct has been profound. A psychologist gave evidence before the sentencing Judge of her findings on examination of the complainant. The emotional consequences were substantial and on-going. 14 The sentencing Judge, in his remarks, described at some length the subjective case of the appellant. He was born on 10 April 1945. He is 61 years old. He has been in custody since 22 November 2004. He had a significant criminal record, including a number of periods of imprisonment in respect of various offences of dishonesty. However, he had not offended, or not offended in any significant way, for almost 20 years. Although he had previously been convicted of assault, he had not been convicted of any sexual offence. I adopt the conclusion of the sentencing Judge that he is unlikely to re-offend. 15 A great deal of material was placed before the sentencing Judge concerning the health of the appellant and whether, by reason of poor health, his sentence was likely to be more onerous. Mr Sheehan was examined by Dr Jill Roberts who provided a report of 12 April 2005. He underwent back surgery in the 1980s, but still had back pain. He had a number of health problems which included angina, glaucoma, nocturia, indigestion, tinnitus and cerebrovascular disease. The physical examination by Dr Roberts, however, was reported in these terms: (ROS 6) "Dr Roberts said that the offender's physical examination was basically normal, apart from evidence of lung disease and prostate enlargement. She said that there was evidence of emphysema although she said that the offender's spirometry indicated reasonable respiratory function." 16 Mr Sheehan was also examined by Dr Greenberg, a psychiatrist. In his report of 20 April 2005, Dr Greenberg noted that the appellant had had a troubled and traumatic upbringing. He appeared "mildly depressed". He added the following comment in relation to his other complaints: (ROS 8) "Physically Mr Sheehan is receiving treatment for his gastric ulcer, emphysema and osteoarthritis of his back. I have no further comments to make at this stage." 17 Coolahan DCJ noted that, because of concern expressed by Mr Sheehan's counsel as to the state of the evidence concerning Mr Sheehan's physical health, the matter was then stood over. Dr Roberts was asked to prepare a further report. She did so on 19 May 2005. She said that Mr Sheehan was accommodated in the hospital area of Long Bay Hospital. His Honour summarised the substance of her report in these terms: (ROS 12) "She said the centre accommodates inmates who are either waiting for external appointments at Prince of Wales Hospital or have need of a higher level of medical review. She said that the offender was presently waiting on a number of specialist medical appointments at the Prince of Wales Hospital. Dr Roberts said that the offender was reviewed on 3 May 2005 when he complained of some difficulty swallowing solid foods, however, she said that the offender's condition was essentially unchanged from her previous report." 18 His Honour continued: " ... the offender has appointments with the eye clinic at the Prince of Wales Hospital later this month, with the urology clinic at the Prince of Wales Hospital in the middle of next month, and is awaiting appointments at a hearing clinic, a gastro clinic and an ophthalmology clinic." 19 Nonetheless, at the time of sentencing (8 June 2005) his Honour noted that there were unresolved issues concerning Mr Sheehan's health. 20 The appellant has provided an affidavit on this appeal in which he refers to many of the same problems. He asserts that, by reason of osteoarthritis, he has difficulty climbing stairs. He said that a hip replacement operation was contemplated before he entered custody, but has not been pursued. His eyesight is poor, such that he has difficulty in reading a newspaper. He does not state whether glasses have been prescribed. He made the following further complaint, which had not previously been canvassed (apart from a reference to a difficulty in swallowing): "(c) My teeth are a problem. A dentist visits the gaol, although it can be hard to get a booking. I have had a number of teeth removed while in custody. I have six teeth left. They are all on my lower jaw. I have three teeth on each side. I have asked the dentist to remove all my teeth so I can get dentures but he seems just to remove them one at a time. I have difficulty eating. I cannot eat any of the gaol food with the exception of custard, although recently they have started giving me Sustagen as well. Apart from that I buy cornflakes. When I came into gaol I was 84 kilograms, I am now 62 kilograms. I am 5 foot 11 inches tall." 21 The Crown, in its submissions in response, drew attention to the absence of expert reports in support of any of the assertions made by the appellant. It submitted that the affidavit material should be given little weight. 22 Certainly the evidence referred to by the sentencing Judge does confirm that Mr Sheehan has been seen from time to time by various specialists, although whether he has been seen in the last year is unknown. The description provided by him of his dental problems is unusual and one would imagine that, with appropriate care, it could be addressed without undue difficulty. This judgment, after sentence, will be drawn to the attention of gaol authorities so that these matters can be properly investigated and addressed. 23 I accept, as did the sentencing` Judge, that to some degree Mr Sheehan's age and health are likely to make his sentence more onerous. 24 The offence which is the subject of count 10 is, nonetheless, extremely serious. It involved penile penetration of a victim who was very young and was his stepdaughter. She was threatened with violence to ensure her silence. The offence was committed in the context of other similar abuse. As mentioned, the emotional toll upon the complainant has been profound. There is no remorse. Mr Sheehan still insists that he was innocent. 25 The Court has been provided by the Crown with statistics from the Judicial Commission. The offence under s61D(1) of the Crimes Act has since been repealed. In its old form it covered a wide range of conduct. The sample of cases is not particularly large and, of course, one has no appreciation of the precise facts of each case. I do not find the statistics, in these circumstances, particularly helpful. The maximum penalty for the offence, at that time, was 10 years imprisonment. The fact of delay in prosecution is a relevant consideration. 26 I find special circumstances for the same reasons as the sentencing Judge, although, again adopting the reasons of Coolahan DCJ, the adjustment I would make is relatively small. The order. 27 The orders I propose are as follows: 1. The appellant be granted leave to appeal against sentence in respect of count 10. 2. The appeal be allowed. 3. The sentence in respect of count 10 be set aside and, in lieu thereof, the appellant be sentenced to imprisonment for 6 years commencing on 22 November 2004 and expiring on 21 November 2010; with a non parole period of 4 years commencing on 22 November 2004. The first date upon which the appellant will be eligible for parole is 21 November 2008. 28 A copy of the Court's judgment should be sent to the person in charge of prisoner health at the gaol at which Mr Sheehan is held. 29 HOEBEN J: I agree with Kirby J and the order he proposes. ********** 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.