RJP v Regina [2006] NSWCCA 149

New South Wales Court of Criminal Appeal

CITATION: RJP v Regina [2006] NSWCCA 149

HEARING DATE(S): 24 March 2006

JUDGMENT DATE: 16 May 2006

JUDGMENT OF: Hidden J at 1; Kirby J at 2; Hislop J at 11

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal law - Sentencing - Sexual assaults on children - Mitigating factors - Totality - Sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - ss 61D, 66A, 67, 76 Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(g)

Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Dar (unreported NSWCCA 2 October 1997) R v Hearne 124 A Crim R 451

PARTIES: Applicant - RJP Respondent - Regina

FILE NUMBER(S): CCA 2005/2267

COUNSEL: Applicant - Mr L.M.B. Lamprati SC Respondent - Mr C.J.G. Smith

SOLICITORS: Applicant - Mr D. McMillian (solicitor) Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1394

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 05/06/2005

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/2267

HIDDEN J KIRBY J HISLOP J

16 May 2006 RJP v REGINA Judgment

1 HIDDEN J: I agree with the orders proposed by Hislop J, substantially for his Honour's reasons. However, I would respectfully adopt the reasoning of Kirby J in relation to ground 1, as I would his Honour's additional observations in relation to ground 2. 2 KIRBY J: In this matter I have had the advantage of reading the judgment of Hislop J. I agree with the orders proposed (that leave be granted but the appeal be dismissed), substantially for the reasons provided by his Honour. I should like to add certain additional comments. 3 In respect to ground 1, the applicant complains that the sentence imposed on count 1 of the second indictment failed to have regard to the youth of the applicant at the time of the commission of the offence. That count was a charge of carnal knowledge of a girl under the age of 10 years, being the applicant's sister who was then aged 9 years. At the time the applicant was approximately 15 years (there being some uncertainty as to the date of the offence). 4 Having pleaded guilty before Solomon DCJ, the applicant was interviewed by the Probation and Parole Service. At the time of the interview he was 52 years old and recalling the events 37 years earlier. The Probation and Parole Report included the following statement: "In relation to the offences that occurred prior to him turning 14 years of age, he stated that he was unaware that his behaviour towards his sister was wrong. He claimed that by 14 years of age he began to realise that his behaviour was not acceptable." 5 I accept that the reference to the applicant being 14 was an error and that he was differentiating between his state of mind before count 1 and his appreciation of the unacceptable nature of his conduct as he got older. 6 In sentencing on count 1 on the second indictment, his Honour was obliged to take account of the offences on the Form 1. Count 1 itself was plainly a serious offence. It carried a maximum penalty of life imprisonment (s 67 Crimes Act 1900) (since repealed). It involved penile penetration of a girl aged nine years. Nonetheless, the applicant's immaturity, he then being 14 or 15 years old, was relevant. His immaturity was likely to have affected his ability to exercise self control. 7 The second and third offences on the Form 1, however, involving the same victim, were committed by the applicant when he was older. The third offence, for instance, was committed when he was about 18 years old. By then, he well knew his behaviour was unacceptable, as he acknowledged to the Probation and Parole Service. Although I believe the sentence of seven years with a non parole period of three years was high, given the immaturity of the applicant at the time of that offence, nonetheless, taking account of the offences on the Form 1 and the criminality they involved, the sentence was, I believe, within the sentencing range. 8 In respect of ground 2 (the application of s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999), the complaint made against the sentencing Judge was that he was bound to find that the applicant was unlikely to reoffend. 9 Certainly there was, on this issue, material which may have justified such a finding. As mentioned, the applicant was, at the time of sentencing, a man aged 52 years. He was being sentenced in 2005 in respect of conduct which had occurred between 1968 and 1987. He had also been sentenced in Queensland in respect of a similar offence in 1989. He was released in December 1991. There was no evidence of further offending behaviour between 1991 and 2005. 10 On the other hand, the nature of the offences, the length of time over which they had been committed, and the absence of a psychological report providing insight into the applicant's mind, made it unsurprising that his Honour should refrain from making the finding which it is suggested he was obliged to make. Like Hislop J, I find no error upon that basis.