New South Wales Court of Criminal Appeal CITATION: Shannon v Regina [2006] NSWCCA 39 HEARING DATE(S): 24/02/2006 JUDGMENT DATE: 2 March 2006 JUDGMENT OF: Mason P at 1; Barr J at 2; Howie J at 3 DECISION: Leave to appeal is granted but the appeal is dismissed. CATCHWORDS: Criminal Law - Sentence - child sexual offences - whether sentence manifestly excessive - vulnerability of the victim - relevance of delay in prosecution. LEGISLATION CITED: Crimes Act 1900 -s 66C(1) Crimes (Sentencing Procedure) Act 1999 - s 21A CASES CITED: R v Hathaway [2005] NSWCCA 368 R v Barker and Gibson [2006] NSWCCA 20 PARTIES: Robert James Shannon v Regina FILE NUMBER(S): CCA 2005/2165 COUNSEL: Dr P. Power SC - Crown C. Craigie SC - Applicant SOLICITORS: S. Kavanagh - Crown Sydney Regional Aboriginal Corp Legal Service - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3095 LOWER COURT JUDICIAL OFFICER: Marien DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2165 MASON P BARR J HOWIE J THURSDAY 2 MARCH 2006 Robert James SHANNON v REGINA Judgment 1 MASON P: I agree with Howie J. 2 BARR J: I agree with Howie J. 3 HOWIE J: On 1 November 2004 the applicant was arraigned before a jury on an indictment containing nine counts of sexual assault offences against a child. On the third day of the trial the applicant asked to be re-arraigned on a fresh indictment alleging three counts of sexual intercourse upon the complainant. He pleaded guilty to each of those offences and was ultimately sentenced by Judge Marien SC (the Judge) to sentences totalling imprisonment for five years with an overall minimum period of imprisonment of three years. The applicant seeks leave to appeal against the severity of those sentences. 4 The three offences to which the applicant pleaded guilty were identical in form and were each worded as follows: Between 23 April 2030 April 2000, at Rose Meadow in the State of New South Wales, had sexual intercourse with [the complainant] a child then above the age of 10 years and under the age of 16 years, namely 12 years of age. Each of the counts on the indictment alleged an offence contrary to s 66C(1) of the Crimes Act for which a maximum penalty is prescribed of eight years imprisonment. The first and third counts each related to an incident in which the applicant had the complainant perform fellatio upon him and the second count related to an act of penetration of the complainant's vagina by the applicant's penis. 5 In respect of the first count the applicant was sentenced to a fixed term of imprisonment of 18 months to commence on 20 April 2005 and to expire on 19 October 2006. In respect of the second count the applicant was sentenced to a fixed term of imprisonment of two years commencing on 20 April 2006 and expiring on 19 April 2008. In respect of the third count the applicant was sentenced to imprisonment for three years commencing on 20 June 2007 with a non-parole period of 18 months to expire on 19 December 2008, the date upon which the applicant is to be released to parole. 6 A statement of facts was presented to the court for the purpose of sentencing the applicant. They revealed that the complainant was aged 17 years at the time of sentence and 12 years of age of the time of the offences. The applicant was aged 28 at the time of offences and was married with two children. The complainant and the applicant knew each other and had previously lived in close proximity to one another. The complainant first disclosed to police that the applicant had sexually assaulted her on 23 September 2002. She was reinterviewed on 12 August 2003 and made further complaints of sexual abuse by the applicant. The applicant was arrested on 22 August 2003 and remained on bail until sentenced by the judge on 20 April 2005. 7 On Easter Sunday, 23 April 2000, the complainant was at the applicant's home in order to celebrate the eighth birthday of the applicant's daughter. While the complainant was in the kitchen washing a glass she had been using, the applicant approached her from behind and pressed himself onto her back. He then reached around and felt the complainant in the area of her vagina above her clothing. When another person entered the kitchen, the applicant stopped touching the complainant and she left the room. 8 Later in the day the complainant went to the home of a neighbour where the applicant was also present. The complainant, the applicant and two others were in the lounge room of the premises. When the other two persons left the room, the complainant and the applicant were sitting at the dining table. The applicant kissed the complainant on her mouth. The complainant moved back but the applicant placed his right hand on her left leg moving it up to place it under her top and felt her breast underneath her bra. He asked the complainant if she wanted "to go down" on him but she refused. The applicant told her she was hard to get and then undid his jeans and exposed his penis that was flaccid at the time. While masturbating himself, he kept asking her "to go down" on him. The complainant went to stand up but he took her wrist and placed her in a kneeling position on the ground. She then proceeded to suck his penis for a couple of minutes, while the applicant kept his hand on the back of her neck in a non-forceful way. On hearing footsteps the applicant placed his penis back into his jeans and sat back down at the dining table. Other persons then entered the room and a short time later the complainant and the applicant left. This act of fellatio gave rise to the first count on the indictment. 9 Some time in the week between the 23rd and 30th of April 2002 the complainant went to a friend's home in the neighbourhood but found that she was not at home. As she was expected shortly, the complainant waited outside the house. The applicant beckoned to her from his home across the road. He asked her to come inside to see his new computer. She went with him to the upstairs main bedroom where the applicant showed her the computer. She told him that she had to go but the applicant placed her on to the double bed. He kissed the side of her face and lifted up the top she was wearing and kissed her breast. He then placed his hands down her pants and inserted his fingers into her vagina moving them in and out. He did this for some time before he lowered the complainant's pants and inserted his penis into her vagina. This act of intercourse gave rise to the second count on the indictment. 10 The applicant and the complainant then left the room and went downstairs. He went to the front door and locked it and then placed the complainant on her knees and lowered his pants to expose his erect penis. He then asked the complainant to suck his penis and she did. After a while the applicant removed his penis from her mouth and then walked off in the direction of the laundry. He returned a short time later and told the complainant not to tell anyone. She then returned home and showered. This act of fellatio gave rise to the third count on the indictment. 11 At the time of these offences the complainant's father was seriously ill. The complainant stated that she did not disclose these offences to her family at this time because she did not want to cause them any further stress. However she did tell a friend. 12 On 26 May 2000 the complainant's mother found a letter from the applicant to the complainant in her daughter's bedroom. The letter indicated that the applicant was in love with the complainant and asked her to be patient, as the day would come when they would be together. The mother confronted the applicant about the letter the next day. He admitted writing the letter and said, "I wrote it just to make her feel better". A short time later the mother contacted DOCS and attended a police station to make a statement. Apparently the matter was not investigated further either by DOCS or the police. 13 In 2002 a school counsellor notified police but the applicant was not arrested and charged until 22 August 2003. The applicant was committed for trial on 2 April 2004 and a trial was listed for hearing in the District Court on 21 June 2004. On 23 June 2004 the Crown made an application to amend the indictment to include fresh allegations by the complainant. The application was granted but the jury was discharged and the trial adjourned to 1 November 2004. During the trial the Crown had made an offer to the applicant that it would accept pleas of guilty to charges in respect of the two allegations of fellatio. This offer was not accepted. 14 There was a Victim Impact Statement before the court from the complainant. The Judge summarised the contents of that statement as follows: ………. following the offences she feels hopelessness, sadness, guilt and frustration. She says she turned to self-harm for relief. She said that trust is a big issue for her and that she finds it hard to form new relationships, especially with males. She states that she was placed on anti-depressants in 2002 and went to counselling to help her overcome the effect of the offences and self-harming and talk about her thoughts and feelings. She says she still has nightmares about what happened to her and that she is hoping that over time they will get less frequent. The Judge was satisfied that the offending conduct "at least played a very significant role in causing psychological harm to the victim and deterioration in her academic record". 15 The applicant was born on 27 November 1972, being 32 years of age at the date of sentencing. He has a minor criminal record that the Judge disregarded for the purposes of sentencing him. There was a psychological report prepared by Emma Collins. It discloses the following. The applicant is of Aboriginal background. His parents separated when he was very young and he had no further contact with his father. His mother has described his father as being vindictive towards the children when he was intoxicated. The family moved from Western Australia to Queensland where they lived until the applicant was aged 10. The applicant had a "discordant relationship" with his stepfather who he said physically abused his stepchildren particularly when he was drunk. He reported that he sustained broken bones as a result of the abuse. He would leave the house and sleep near the river on these occasions. As a result of stealing food and blankets in order to live, he has a juvenile record for breaking into property. 16 The applicant left home about the age of 14 and lived on the streets for six months before he went to live with his mother and an uncle. He says that he was also abused while living there. He returned to Sydney approximately 6 months later and met his current partner. He lived with her and friends before they gained their own property about 17 years ago. The applicant had a consistent work history mainly in manual positions. At the time of sentencing he had been working for a roof frame cutting company for about five weeks. He had been involved in a de facto relationship from the age of 16 years and had been married about five years at the date of sentencing. He does not use drugs and drinks alcohol socially. 17 The applicant reported to Ms Collins that he was sexually assaulted when he was in gaol on remand for a period of six weeks on a charge of malicious damage. He said that he was physically abused, victimised and was raped by other inmates. He was ultimately acquitted of the charge for which he was in custody. On occasions the applicant takes antidepressant medication but had no other relevant medical history. 18 The applicant told Ms Collins that he had spoken with the complainant prior to the offence and felt some kind of "bond" with her because she had a similar history to his own and he was able to identify with her. He said that he did not understand how he was able to allow it to progress to intercourse. Ms Collins found that the applicant appeared regretful and showed some indicators of empathy in relation to the impact of his conduct upon the complainant. However, she also thought he revealed poor insight into the offending and there was some degree of minimisation of the offence. 19 Ms Collins reported that the applicant presented with considerable psychological disturbance and had difficulties as a result of his previous traumatic experiences. He was vulnerable to depression and had poor social skills. She stated: In considering all of [the applicant's] vulnerabilities given his history, it is clear that he suffered a traumatic reaction to a sexual assault he experienced whilst in gaol. He appears to have developed post-traumatic stress disorder and depression as a result, and this incident further in exacerbation of his interpersonal difficulties. [The applicant] impresses as becoming increasingly suspicious and avoidant of others and reports clear difficulties relating to others. The offence appears to represent his interpersonal difficulties, and not understanding boundaries set around age-appropriate sexual behaviour, but was also affected by his own sexual abuse and general psychosocial vulnerabilities. Intensive treatment needs to occur around these areas by way of a sex offender therapy program, in order to reduce the risk of recidivism and help treat [the applicant's] underlying psychopathology. 20 The psychologist indicated that she had significant concerns with regards to the applicant's ability to cope with incarceration, given the abuse he endured when in custody. She reported that the applicant express "significant distress at the prospect of being placed in main stream gaol, and this would clearly affect his pre-existing poor emotional state and increased suicide potential". 21 There was a presentence report before the sentencing judge the contents of which are set out in detail in the psychological report. In relation to the offending the report contains the following: The offender has stated that he formed a friendship with the victim based on them having similar family backgrounds. He further stated that he felt sorry for her as she seemed to be so unhappy. He also stated that he was separated from his wife, although still residing with her at the time. He maintains he was feeling "lonely and sad" and had hoped that he could form a romantic relationship with the victim when she was older. The offender was unable to say why he committed the offences other than he never thought of the victim as being 12 years old. The offender did not expressed any empathy for the victim or her family and in fact expressed his anger at what has occurred to his family as a result of the commission of the offences………. [The applicant] presents as an emotionally immature man who lacks insight into his offending behaviour and his inappropriate language with children. It would appear that [the applicant] minimises the commission of the offence by stating that he never thought of the victim as being as young as she was. He presents to this Service as being in denial and unable to comprehend the seriousness of his situation and that of the victim. [The applicant's] history of intimate relationships suggest that he has failed to emotionally mature to the point where he can maintain a relationship with an adult partner. 22 A witness who had known the applicant for nine to ten years gave evidence. He described the applicant as "a very kind sincere, honest and a very generous man". He said that the applicant was very obliging and always "willing to go out on a limb to help people". The witness indicated that the applicant's personality had changed after the allegations were made by the complainant and was thereafter very withdrawn and "very hard to incorporate in family… functions". Another witness described the applicant as a "good person" who was always very helpful to her children. 23 The Judge gave lengthy sentencing remarks referring in detail to the evidence before him and the principles that he was to apply. He described the offences as "extremely serious". He stressed the significance of the degree to which an offender is seen to have exploited the youth of the victim in crimes of this nature. He found the level of exploitation to be assessed by a number of matters, the most important of which were, firstly, the age of the child and, secondly, the age disparity between the child and the offender. In relation to this matter, the Judge stated: Included in the material tendered by the Crown on sentence without objection is a diary entry of the victim and a letter from the offender to the victim to which I have already referred. That material discloses, first, that the victim at one time clearly was infatuated with the offender and, secondly, that the offender was well aware of the victim's strong feelings towards him. In his letter to the victim he professed to share the same strong feelings towards her. The offender well knew that he could sexually exploit the victim because of her tender age and because of her strong emotional feelings she held for him. In my view, the very young age of the victim in this case and the great discrepancy in age means that there was a high degree of exploitation of the victim by the offender. It is for this reason that I consider the objective seriousness of the offence to be very great indeed. 24 In relation to the facts, the Judge held: In my view a fair reading of the Agreed Facts at least discloses that Count 3 occurred on a different day to the day or days Counts 1 and 2 were committed. Certainly there is nothing to indicate that Count 1 was other than an opportunistic offence. However, that offence having been committed I do not accept that the commission of Counts 2 and 3 can properly be described as opportunistic and spontaneous. It appears from the facts that the offender inveigled the victim to come into his company and it was he that initiated the sexual activity which took place on those occasions state and, in my view, with respect to those counts there was some degree of planning and the commission of those offences although that planning may not have been over a lengthy period. 25 There is one ground of appeal filed which asserts that the sentences imposed were manifestly excessive. However the written submissions on behalf of the applicant contains an outline of argument which is as follows: The sentences are manifestly excessive on an objective comparison with the notional range applicable to such an offence and having particular regard to: The accumulation of sentences. Delay. A proper appreciation of the applicant's background and its bearing on his offending. A finding of hardship in custody arising from assault upon the applicant during the prior period of custody. This finding is not adequately reflected in the sentencing outcomes. The above matters are not exhaustive of the reasons, which the applicant submits underlie a reasonably available conclusion that the sentences exceed what was required at law. As no patent error is asserted, it is strictly unnecessary to try to find reasons why a sentence might be manifestly excessive. The question is really one of whether the sentence imposed appears to be unreasonable or unjust when regard is had to the objective facts, the subjective matters favouring the applicant and the relevant sentencing principles. 26 The applicant argues that the sentences imposed are at the " upper higher level" of punishment imposed for offences against the section when regard is had to the available statistics and an examination of comparable cases dealt with by this Court. In particular it is argued that there was inconsistency in the Judges remarks in relation to the relevance of the age of the child which led to his Honour wrongly determining the seriousness of this particular offending. The inconsistency is said to arise from the fact that the Judge took into account the "very young age of the victim" in relation to determining the clear degree of exploitation of the complainant by the applicant and yet held that the victim's age should not be taken into account as a factor of aggravation because the age is an element of the offence. 27 With respect this argument misconstrues what the Judge said about the age of the complainant when considering what aggravating or mitigating factors might be present under s 21A of the Crimes (Sentencing Procedure) Act. What the Judge said in that regard is as follows: In my view the victim was clearly vulnerable by reason of her age, namely that she was a child of 12 years of age. However, I have come to the view that I cannot take into account as an aggravating factor that the victim was vulnerable because of the concluding words of s 21A sub-s (2), namely, that a factor is not to be taken into account as an aggravating factor if it is an element of the offence. It is clear that offence under s 66C sub-sec (1) is directed towards the protection of children who are, by the very fact of their age, vulnerable to sexual exploitation. The purpose of the section is to protect the vulnerable, in this case a child……………… However, although I may not take it into account, that is the vulnerability of the victim, as an aggravating factor of the offence, it is still relevant, in my view, to consider the age of the victim in assessing the objective seriousness of the offence and as I have already stated, I regard that objective seriousness to be high. 28 In my opinion, with respect, that passage does not disclose any error unfavourable to the applicant. The age of the child is clearly a relevant consideration and the younger the child, the more serious the offence. It was an element of each of the offences in the present case that the child was between the ages of 10 and 16 at the time of the sexual intercourse, but that does not mean that a judge cannot take into account the age of the child falling within that range. 29 Further, although the section is, as the Judge recognised, concerned to protect the vulnerable, it does not follow that a judge cannot take into account the particular vulnerability of the child by reason of the child's young age or other circumstances other than the child's age. For example, in the present case the judge would have been entitled to find that the complainant was particularly vulnerable by reason of her age, the fact that her father was seriously ill such that she felt she could not complain to her parents, and because the applicant knew that she was susceptible to his sexual advances because of her infatuation with him. By not taking into account the aggravating factor that the child was specially vulnerable the Judge erred in the applicant's favour. 30 However, In my view the judge was right to find that the objective circumstances of the present offence were at a serious level and notwithstanding that the offences could be regarded as isolated occurrences within a relatively short period of time and not being part of a continual abuse of the complainant by the applicant. 31 The delay between the offences and the initiation of proceedings against the applicant does not seem to me to be a matter of any great significance. There is often delay between offences and charges in child sexual assault offences. It is clear that the letter found by the mother would have been insufficient to found charges against the applicant particularly having regard to what he said about it. Then the complainant's mother questioned her about the letter and a diary entry indicating sexual misconduct by the applicant, however the complainant denied that the applicant had done anything more serious than to hug and kiss her. Although the authorities might have spoken to the complainant to investigate whether any misconduct had occurred, the Judge knew nothing about the circumstances surrounding the decision by the police or the Department not to make further inquiries. In any event there is little mitigation by reason of delay where an offender has remained silent in the face of an accusation: R v Hathaway [2005] NSWCCA 368; R v Barker and Gibson [2006] NSWCCA 20. 32 However, Mr Craigie SC, who appears for the appellant, stressed that the delay went to the utility of the plea because it would have affected the complainant's credibility. However, there was no submission that the 15 percent discount chosen by the Judge was inadequate. In any event the judge took into account as "in mitigation of the sentence" what he saw as the significant delay between the time the applicant was confronted by the complainant's mother and the date of charging. The Judge stated: The delay in sentencing the offender in relation to all of the matters sought to be pursued by the Crown was outside the offender's control. The fact of these delays and the resultant uncertainty that the offender would undoubtedly have felt as to the final outcome of the prosecution against him, must, in my view be taken into account to some extent by way of mitigation of the sentences to be imposed. 33 There is no submission that it was not open to the judge to accumulate the sentences, rather the argument is that by the partial accumulation of the sentences the judge misapplied the principle of totality so that the overall sentence is too harsh for the criminality involved having regard to the subjective circumstances of the applicant. These included the fact that the applicant would serve his sentence in more onerous conditions than other prisoners because the applicant had a particular fear of imprisonment as a result of his being abused when in custody on a previous occasion. It was submitted that the Judge did not step back and consider the overall sentence he was about to impose otherwise he would have concluded that it was out of proportion to the criminality involved. 34 Reliance is also placed upon the applicant's background and the resultant emotional immaturity as being the cause of the offences rather than a "pathological tendency" which, it is suggested, is more commonly reflected in offences involving young children. It was pointed out that there was no hint of a tendency on the part of the applicant to prey upon young children. In this regard it is submitted that the Judge placed too much weight on the reference in the psychological and presentence reports to the applicant's lack of insight and his minimisation of his offending. What the judge said about that matter was as follows: First, I accept that his pleas of guilty demonstrate remorse and contrition on his part although it appears, particularly from the presentence report and the psychological report of Ms Collins, that the offender still does not have complete insight into his offending behaviour he still seeking to minimise the effects of his offending behaviour on the victim. But I do accept, in particular by his pleas of guilty, his expressions of remorse and contrition as now being genuine. 35 There is nothing in that passage or elsewhere in the sentencing remarks to indicate that the Judge was placing undue weight on that matter. But rather it seems to me that the Judge was simply noting that, notwithstanding the lack of insight and his tendency to minimise effects of the offending, he was prepared to find that the applicant was truly contrite. There is nothing in what the Judge said that in my view suggests that the lack of insight was being reflected in some form of concern about further offending or dangerousness on the part of the applicant that leave his Honour to impose sentences that were out of proportion to the criminality of the applicant having regard to his subjective features. 36 The applicant relied upon a number of decisions of this Court "not as precedents but as some assistance in assessing where various features would properly place the present matter in an appropriate range". The decisions referred to, the schedule relied upon by the applicant and the statistics maintained by the Judicial Commission indicate that there is a wide variation in the sentences that are imposed for offences of this type. That no doubt reflects the range of activity included within the concept of sexual intercourse and in the varying circumstances surrounding the offending. They are of little assistance in my view except as indicating the sentence imposed by the judge is at the upper end of the range. 37 I agree with the sentencing judge that the objective facts in this matter were particularly serious and notwithstanding the material contained in the psychological report in relation to the effect on the applicant of the abuse he suffered in gaol. I appreciate that particularly with the complainant there is little difference in the criminality of a sexual assault and by reason of the nature of that assault. However with young children it seems to me that penile penetration is the most serious form of sexual assault for the obvious reason that it is the most likely to result in physical injury to the child. In the present case the applicant initiated the sexual activity, he knew that the child was vulnerable to his advances and, despite the complainant's unwillingness to indulge in sexual intercourse either by way of fellatio or penetration of her vagina, the applicant subjected her to that course of conduct. He was well aware of the complainant's age and it was simply no excuse to suggest, as he did, that he did not think of her as a child of those tender years. 38 Although the overall sentence was a high one, it was in my view within the Judge's discretion to impose that sentence. It should be noted that the discount given for the pleas of guilty was 15 percent in this case because of the lateness of the pleas. When consideration is given to the statistics, a court must take into account that generally sentences following guilty pleas would have been discounted by 25 is one having regard to the fact that pleas of guilty have particular value in this type of offence as it saves the complainant from giving evidence. 39 I propose that leave to appeal be granted but the appeal be dismissed. ********** 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.