Blinco v Regina [2006] NSWCCA 105

New South Wales Court of Criminal Appeal

CITATION: Blinco v Regina [2006] NSWCCA 105

HEARING DATE(S): 5 April 2006 JUDGMENT OF: Grove J at 1; Simpson J at 27; Howie J at 28

EX TEMPORE JUDGMENT DATE: 04/05/2006

DECISION: APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - ERROR IN SETTING NON PAROLE PERIOD INDEPENDENTLY OF BALANCE TERM - IMPERMISSIBLE FACTORS TAKEN INTO ACCOUNT IN ASSESSING OBJECTIVE SERIOUSNESS - RESENTENCE REQUIRED - ASSESSMENT OF SENTENCE AND NEW SENTENCE IMPOSED

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

O'Connell v R [2006] NSWCCA 82 R v GDR (1994) 35 NSWLR 376 R v Jammeh [2004] NSWCCA 32 CASES CITED: R v Moffitt (1990) 20 NSWLR 114 R v P [2004] NSWCCA 218 R v Way (2004) 60 NSWLR 168 R v Wickham [2004] NSWCCA 193

PARTIES: Shane Stephen Blinco v Regina

FILE NUMBER(S): CCA 2006/24

COUNSEL: T. Gartelmann (Appellant) V. Lydiard (Crown/Respondent)

SOLICITORS: S. O'Connor (Appellant) S. Kavanagh (Crown/Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1236

LOWER COURT JUDICIAL OFFICER: Bishop DCJ

THE COURT OF CRIMINAL APPEAL 2006/24

GROVE J SIMPSON J HOWIE J

5 April 2006 SHANE STEPHEN BLINCO v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Bishop DCJ at Penrith District Court. The appellant had pleaded guilty in the Local Court to a single count of indecent assault on a person under the age of ten years. His Honour's imposition consisted of (as stated) imprisonment for four years and nine months with a non parole period of two years and nine months. In a written submission the Crown conceded "that the sentencing judge erred in determining the parole period that the appellant is to serve" and acknowledged that "the parole period will require adjustment." Leave to appeal should be granted. 2 A statement of facts was tendered at the sentencing proceedings and there is no challenge to his Honour's summary namely: "The prisoner is the natural father of the victim who was nine years old at the time of the offence. She is one of four children of a ten year relationship between the prisoner and the mother of the victim. On 29 February 2004 the prisoner came home at about 12.50am. His partner, the mother, was asleep on the lounge because she knew he had left the key behind and she would have to let him in. She did this and went back to sleep. She was woken by the sound of the radio and when she opened the closed door of the bedroom she shared with the prisoner she found the victim awake and naked on the bed with the prisoner sitting on the bed wearing only boxer shorts with his hand on the victim's vagina. The mother dressed the victim and left the home with her and the other children. There is no medical assessment of the victim who was said to be too upset. There is no evidence of any similar behaviour by the prisoner to the victim. At about 5.40 am on the morning the prisoner was arrested. He had been drinking and his initial interview, when arrested was somewhat vague however at the electronically recorded interview later that day he admitted rubbing the victim's legs and vagina but there was no suggestion of any form of penetration." 3 It can be mentioned that, had there been penetration, a more serious offence would have been committed and the last statement, which did not appear in the tendered document, was an irrelevant gloss upon the facts. 4 The relationship between the appellant and the victim's mother commenced when he was aged sixteen and the victim was the eldest of the four children. 5 The offence carries a prescribed maximum penalty of ten years imprisonment: Crimes Act s 61M (2). Pursuant to the table incorporated in s 54D of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) there is specified a standard non parole period of five years. Somewhat surprisingly, a consequence of this prescription is, if it is applicable, the total term for an offence in the middle of the range of objective seriousness (an expression in s 54A(2) of that Act) would necessarily be more than half the available maximum term. 6 The appellant was arrested on 29 February 2004 and refused bail. He later obtained bail and was conditionally released on 11 May 2004. He had therefore been in custody to that point for ten weeks and two days. Bail was revoked on 18 February 2005. Bishop DCJ ordered the sentence which he imposed to commence from the lastmentioned date. 7 From the remarks on sentence it can be deduced that his Honour constructed the sentence and orders in this fashion. Adverting to the standard non parole period specification of five years, he assessed a non parole period of four years. He reduced this by 25 percent to reflect the plea of guilty at the earliest opportunity. The resultant three years was reduced to two years nine months to allow for presentence custody which he approximated at three months. 8 He stated that there was "a case for varying the proportion with regard to parole supervision" and, although he ultimately expressed a total term, it is plain that he assessed the balance term of sentence of two years independently of setting the non parole period. Hence he imposed a total sentence of four years nine months. 9 He ordered the release of the appellant to parole upon expiry of the non parole period on 17 November 2007 although the power and obligation of the Court to make such an order is limited to sentences where the term is three years or less: see s 50 of the Sentencing Act. 10 The appellant's notice of appeal sets out five specific grounds and a sixth ground asserting that the sentence is manifestly excessive. As I have reached the conclusion that this Court should intervene and proceed to resentence, beyond the Crown concession to which I made earlier reference, I will express my reasons incorporating the complaints comprehended in the grounds without dealing with them seriatim. 11 It was erroneous to set the non parole period independently of consideration of the total sentence. In R v P [2004] NSWCCA 218 Hulme J (Ipp JA and Hislop J agreeing) said: "Notwithstanding the temptation, provided by the terms of s44 of the Crimes (Sentencing Procedure) Act , to think that his Honour's approach of fixing the non-parole period and then independently fixing the balance of the term is the correct approach, in fact it is not. That was decided in R v Moffitt (1990) 20 NSWLR 114 at 134 in respect of earlier legislation but in R v Way (2004) 60 NSWLR 168 the court indicated that R v Moffitt should be followed in relation to the current wording of s44." 12 The relevant observations in Way are: "The way that was taken in R v Moffitt in relation to the former s 5 of the Sentencing Act did not require the sentencing judge to first determine a minimum term, which was thereafter immutable, notwithstanding a subsequent finding of special circumstances. In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole. While there are separate considerations involved for s44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously. To this end the sentencing principles approved in R v Moffitt (at 117-118, 121-122 and 134-135) and also in R v GDR (1994) 35 NSWLR 376 at 381-382 will provide guidance." 13 See also O'Connell v R [2006] NSWCCA 82. It appears that his Honour accepted that the appellant's offence was classifiable as below the middle of the range of objective seriousness for the offence, but his finding was reached, at least in part, by impermissible reasoning. The contribution by counsel to these errors is patent in this extract from the remarks on sentence: "The legislature has prescribed a standard non-parole period of five years. For the prisoner it was submitted that this offence was not in the middle range of seriousness due to the early plea of guilty and the absence of any form of penetration. The Crown did not dissent, nevertheless it seems to me that this offence was a gross breach of trust, even though it was impulsive." 14 The appellant's plea of guilty cannot be a factor in the assessment of the place in which the offence falls in a range of objective seriousness. An offence finds its place in the range by reason of its objective ingredients and not by reflection, even in part, of the plea of an offender. I have already mentioned the irrelevance of the absence of penetration yet these two matters appear to have been the reasons for the finding that the offence was not at mid range. Whilst there could be no legitimate criticism of his Honour's finding that the offence was a gross breach of trust, he did not advert to objective facts which were pertinent to classification except to the extent that the reference to impulse implied that it was not an incident within a wider pattern of misconduct. 15 Complaint is made of his Honour's remarks: "As far as matters of aggravation are concerned the Crown stressed that the victim was the offender's own child and that the effects on the family were extensive and that there was clearly emotional harm to a very vulnerable victim who was at home asleep." 16 It has been assumed that his Honour was referring to the matters set out in s 21A(2) of the Sentencing Act as, indeed, it appears that he was responding to submissions made by counsel in this regard. In its terms the extract manifests a recitation of the Crown submission rather than a finding but it can be approached on the basis that his Honour accepted the Crown proposition: R v Wickham [2004] NSWCCA 193. 17 It is contended on behalf of the appellant that, other than recording that shortly after the offence the victim was too upset to allow medical examination and the appellant's statement to police that he thought she was scared at the time, there was no direct evidence of impact on the victim or the family. The immediate result of the commission of the offence was the separation of the appellant from the family. 18 The contention ignores the evidence of the appellant who gave evidence in the sentencing proceedings, when, inter alia, he said: "….I understand what I have done and the damage I've caused and the impact it could have had on her as she grows older – yes, I mean, its something I can't take back but I want to do whatever I can to make things right." 19 The Crown observes that his Honour's remarks do not extend to a description of the harm as being substantial which is the requisite criterion to fulfil s 21A (2)(g). Statute aside, it was appropriate for Bishop DCJ to recognize that harm was done to the victim, that recognition is a fundamental purpose of sentencing: R v Jammeh [2004] NSWCCA 32. 20 I would not uphold these complaints, however, I have already indicated that in my view this Court should intervene by reason of the errors earlier mentioned. It is to be borne in mind that whilst the standard non parole period provides "a reference point, or benchmark, or sounding board, or guidepost, along with other extrinsic aids….." (Way @ p 192), in this case the use was apparently infected by using the plea of guilty and the absence of penetration in assessing where the offence stood in the range of seriousness. 21 Principally for that reason and for the error to structural approach which I have earlier mentioned, I am of opinion that intervention by this Court should occur. 22 I do not accept the Crown submission that no less severe sentence should have been imposed. In resentencing I would, like his Honour, find that the crime involved a gross breach of trust but I would also take into account that the behaviour was isolated and occurred in circumstances where it was easily able to be detected simply by his wife entering the room. The latter adds credibility to the appellant's claim that he was markedly affected by his over indulgence in intoxicating liquor. His immediate expression of sorrow can be taken to display remorse as it was confirmed by his frank admissions to police and the plea of guilty at the very first opportunity. 23 Although my reasons differ from his Honour's, I would classify the offence below the middle of the range of seriousness for such. In any event, the standard non parole period is potentially applicable after trial which was not held as a result of the appellant's plea of guilty: see Way. The appellant had a minor prior record which included no offence of a sexual nature nor the use of violence against a person. 24 Taking into account all matters with the exception of utilitarian value of the plea of guilty at the earliest opportunity I would assess an appropriate sentence at a total of four years imprisonment. For the plea of guilty I would reduce that period by 25 percent to a period of three years. I would find special circumstances particularly to enable the supervision of the appellant to gauge the effects of any counselling that he undertakes concerning his alcohol problem. On the issue of resentence we have his affidavit affirmed 30 March 2006 which shows that he is making the best of his opportunities whilst in custody and has undertaken some appropriate courses particularly with respect to drug and alcohol use and anger management. He has no gaol offences and this is reflected in the circumstance that he has already achieved C2 classification. 25 I would set a non parole period of one year six months commencing on 28 November 2004 which is ten weeks and two days prior to the commencement of his continuing custody on 18 February 2005 and gives credit for the period of custody prior to bail being refused. 26 I propose the following orders: