New South Wales Court of Criminal Appeal CITATION: G A T v R [2007] NSWCCA 208 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 24/01/2007 JUDGMENT DATE: 17 July 2007 JUDGMENT OF: Adams J at 1; Howie J at 27; Price J at 28 DECISION: 1. Leave to appeal is granted; 2. The sentence imposed on charge 3 is quashed and substituted in lieu thereof is a non-parole period of one year and six months commencing on 24 May 2008 and ending on 23 November 2009 and a balance of term of one year and one month commencing on 24 November 2009 and concluding on 23 December 2010; 3. As to charge 4, the sentence is quashed and in lieu thereof the appellant is sentenced to a fixed term of one year commencing on 24 May 2008 and ending on 23 May 2009; 4. As to charge 6, the non parole period is varied from four years to two years to commence on 24 May 2010 and end on 23 May 2012, and the balance of term from three years and six months is varied to commence on 24 May 2012 and end on 23 November 2015 CATCHWORDS: sentencing - multiple offences - need to ensure utilitarian discount is reflected in overall sentence - nature of abstract case for consideration of standard minimum non-parole period. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v AJP (2004) 150 A Crim R 575 CASES CITED: R v Dang [2005] NSWCCA 430 R v Thompson (2005) 156 A Crim R 467 R v Way (2004) 60 NSWLR168 PARTIES: G A T REGINA FILE NUMBER(S): CCA 2006/2122 COUNSEL: Applicant: Mr B. P. Hancock Respondent: Mr P. G. Ingram SOLICITORS: Applicant: S O'Connor Respondent: S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0297 LOWER COURT JUDICIAL OFFICER: Freeman DCJ LOWER COURT DATE OF DECISION: 3/3/2006 IN THE COURT OF CRIMINAL APPEAL 2006/2122 ADAMS J HOWIE J PRICE J 17 JULY 2007 G A T v REGINA Judgment 1 ADAMS J: The applicant pleaded guilty on 28 September 2005 to six sexual offences as follows – Charge 1: Between 1 June 1985 and 1 January 1986, carnal knowledge of TT (aka TG) then above the age of 10 years and under the age of 16 years namely 13 years, contrary to s71 of the Crimes Act 1900 carrying a maximum penalty of 10 years' imprisonment; Charge 2: Between 28 March 1985 and 1 January 1986, indecent assault of TT (aka TG) who was then a person under the age of 16, namely 13 years contrary to s61E(1) of the Crimes Act 1900 carrying a maximum penalty of 6 years' imprisonment; Charge 3: That between 1 January 2004 and 1 June 2004, indecently assaulted MH then being under the age of 16 years namely 11 years, an offence contrary to s61M(1) of the Crimes Act 1900 carrying a maximum penalty of 7 years' imprisonment and a standard minimum non-parole period of 5 years' imprisonment; Charge 4: Between 1 January 2004 and 31 December 2004, an act of indecency with ATE then being aged under 16 years, namely 13 or 14 years in circumstances of aggravation namely that he was under the authority of the applicant, an offence contrary to s61O(1) of the Crimes Act 1900 carrying a maximum penalty of 5 years' imprisonment; Charge 5: Between 30 November 2004 and 31 December 2004, sexual intercourse with ATE then a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely that ATE was under the authority of the applicant, being an offence under s66C(4) of the Crimes Act 1900 carrying a maximum penalty of 12 years' imprisonment; and Charge 6: Between 1 January 2004 and 31 December 2004, sexual intercourse with MH then a person above the age of 10 years and under the age of 14 years, namely 11 or 12 years in circumstances of aggravation namely that MH was under the authority of the applicant, an offence contrary to s66C(2) of the Crimes Act 1900 for which the maximum penalty was imprisonment for 20 years. 2 On 3 March 2006 the applicant was sentenced to the following terms of imprisonment – Charge 1: A non-parole period of 4 years commencing 24 May 2005 and expiring 23 May 2009 with a balance of term of 2 years expiring on 23 May 2011; Charge 2: A fixed term of 3 years to commence on 24 May 2005 and expire on 23 May 2008; Charge 3: A non-parole period of 3 years commencing on 24 May 2008 and expiring on 23 May 2011 with a balance of term of 2 years expiring on 23 May 2013; Charge 4: A fixed term of 18 months to commence on 24 May 2009 and expire on 23 November 2010; Charge 5: A non-parole period of 3 years commencing 24 May 2009 and expiring on 23 May 2012 with a balance of term of 18 months expiring on 23 November 2013; Charge 6: A non-parole period of 4 years to commence on 24 November 2010 and expire on 23 November 2014 and a balance of term of 3 years and 6 months to commence on 24 November 2014 and expire on 23 May 2018. It will be seen that the overall sentence was thirteen years with a non-parole period of nine and a half years. TT was the applicant's daughter and MH and ATE his grandchildren. Grounds of Appeal 1. The learned sentencing judge erred in not indicating starting points of the sentences prior to taking into consideration any discount for pleas of guilty or where he did indicate a starting point of a sentence prior to taking into consideration any discount for the plea of guilty he structured the total effective sentence in a manner that gave no effect to his intention to allow a discount or he set too high a starting point for the total effective sentence. 2. The learned sentencing judge erred in his application of s44 of the Crimes (Sentencing Procedure) Act in that having found special circumstances existed and in fixing partly cumulative and partly concurrent sentences he did not consider whether or not to structure the total effective sentence in a way that gave real practical effect to his intention or alter the statutory ratio. 3. The learned sentencing judge erred in giving insufficient consideration to the overall effect of the partly concurrent and partly cumulative sentences in his application of the principles of totality. 4. Having regard to grounds 1, 2 and 3 the overall sentence, in all the circumstances of the case it is manifestly excessive as the starting point is too high and insufficient regard was had to all relevant and mitigating factors. 3 As ultimately crystallised in the written and oral submissions of the applicant, it is contended that the identified specific errors require the individual sentences and the overall sentence imposed on the applicant to be reconsidered by this Court. At the hearing of the appeal, the error of attribution to which I refer below was also relied on by the applicant, as was the failure of the learned sentencing judge to have proper regard to the standard minimum non-parole period in relation to charge 3. Since there is significant overlapping in the grounds of appeal, it is convenient to deal with them together. The Facts 4 These were not in dispute and were the subject of a statement of agreed facts from which the following brief summary is extracted. The first charge occurred when TT was 13 years of age. On one evening, TT having been asked to come into his bedroom, the applicant requested her to massage first his back and then his stomach. He then had her fellate him. The facts giving rise to the second charge occurred shortly after those giving rise to the first charge. TT had left the bedroom to help her mother in the kitchen and the family then had dinner. Following this the applicant called TT back into the bedroom and he had her lie on the bed and he then digitally penetrated her and then had penile/vaginal intercourse. The applicant admitted to police that the assaults on his daughter had commenced during 1985 and that eventually this developed into a sexual relationship that continued into her twenties. 5 So far as the offences against ATE are concerned, they happened when he was about 14 years of age. The facts giving rise to charge 4 were that the applicant and the boy were tickling and cuddling and progressed to the applicant masturbating the boy's penis. The facts giving rise to charge 5 occurred just before Christmas 2004 when AE was still aged 14 years. Commencing with a request to massage his back, the applicant eventually placed the boy's hand on his penis and then caused him to fellate him to the point of ejaculation. The applicant admitted that on one other occasion he masturbated AE and AE had masturbated him whilst fellatio occurred on "maybe four" other occasions. So far as MH is concerned, charge 3 arose in early 2004. Again using the device of asking of MH for massage, the applicant had MH massage an area near his penis, the applicant got an erection and ejaculated into his own hand. Charge 6 arose at some other time during this year when again he asked MH to massage him. The applicant commenced to fondle MH's genitals and suck his penis. MH was then aged about eleven years. Occasions of this kind occurred a number of times, more than three but, according to the applicant, less than ten. 6 The offences came to light in January 2005 when MH reported the abuse to his stepfather. AE disclosed that the applicant had also sexually assaulted him. As it happened, whilst the police investigation was underway, but before statements had been made to police by the complainants, the applicant was admitted to hospital for a mental state assessment following his distress and suicidal ideation after surgery for a heart condition which required him to cease drinking alcohol. It appears that when he did so he became severely depressed because of his bad feelings about many years of sexual abuse against his daughter and two grandsons. He told treating doctors on several occasions about these sexual assaults. The applicant was arrested on 24 May 2005 and made comprehensive and apparently candid admissions. 7 It is important to note that the counts were not put by the Crown as representative of the applicant's criminal conduct. The only way in which the admissions of other misconduct could properly have been used was to demonstrate that the offences charged were not isolated offences but were part of continuing sexual misconduct. This certainly has an impact on the objective seriousness of the offences charged. However, the applicant could not be punished for the uncharged acts. This is fundamental. Referring to this aspect of the matter the learned sentencing judge said – "What must be said, however, is that these offences occurred over a very prolonged period, beginning with his own daughter in the mid-eighties and continuing until the end of 2004, spanning the generations of his daughter and his grandchildren and covering both sexes…That represents a panoply of extremely wicked behaviour over a very prolonged period of time and it is accepted by counsel for the prisoner and by the prisoner himself that these offences must be marked with the imposition of very substantial periods of incarceration. [Dealing with the first count of carnal knowledge]…This is not put as a representative count, but it is one which must be gauged as having been part of a series of predations. It is not an isolated aberration but…one of a repeated and continuing series of offences over a period of years, perhaps as long as a decade." His Honour also noted, in respect of the offences involving AE, that the applicant admitted other occasions of oral sex with him. 8 Though strong, it does not seem to me that the learned sentencing judge's description of the impact of the applicant's continuing sexual misconduct went so far as to show any error of principle. However, it might explain what seems to me to be an error as to the extent of the accumulation, which I discuss below. Subjective features 9 The applicant was born on 9 November 1950 and was, accordingly, about 35 years of age when the offences commenced. He is now 56 years of age. It is unnecessary to dilate upon his background. A psychiatrist, Dr Brown, whose report was tendered, took an extensive history which certainly shows, to use the sentencing judge's language, an emotionally sterile and damaging childhood, the applicant's frail personality and some physical disabilities. His Honour accepted that the applicant had a difficult background but commented that whilst this "operates as some partial form of explanation, it certainly provides no excuse for his activities". The history obtained by Dr Brown goes somewhat further than the matters referred to by the learned sentencing judge. In particular, it seems that the applicant developed severe emotional difficulties following his mother's death from cancer in 1977, becoming depressed and developing anxiety attacks which led to his attending a psychiatrist at a local clinic for treatment with different types of medication. He began to drink alcohol heavily, very heavily for about three years but then, even though his intake was reduced somewhat, he continued to drink excessively throughout the years until early 2005. He explained that he used his heavy drinking behaviour as a way of obliterating feelings of guilt and remorse about the sexual contact with his daughter. 10 As I have mentioned, it was when he stopped drinking because of his need for hospital treatment (undergoing a Valium detoxification regime) that the applicant began to experience overwhelming feelings of guilt about sexual contact with his daughter and grandsons. 11 The applicant was assessed by Mr Warren, a psychologist, when he was admitted to hospital. Mr Warren said that in his session he saw "little evidence of insight into his behaviour" and was focused upon "the 'why' of his behaviour rather than the possible damaging consequences on another person". Nevertheless, the doctor added, "This said, his thoughts of suicide in the face of his recall of the history of offending against his daughter and grandchildren does again suggest a degree of remorse and acceptance that he had been engaged in significant wrongdoing" noting, however, that the applicant "would seem to have quite a way to go towards genuinely accepting responsibility for the damage he may have done and in bringing his impulses under control." 12 The later report of Dr Brown contains a history of sexual abuse of the applicant by a neighbour which, however, did not seem to be (at least directly) relevant to his offending. Amongst other things the doctor said – "Somewhat in contrast, the style of minimisation noted in [Mr Warren's report] [the applicant] did not impress as attempting to diminish his offending behaviour and he rather expressed feelings of puzzlement about the motivation behind his behaviour. Moreover, he did not impress as particularly seeking to blame his own behaviour on his childhood experiences of sexual abuse." This latter observation is important. There appears to be no suggestion by the applicant that the extent of his wrongdoing was in any way lessened by his childhood difficulties and there was no attempt made to rationalise or excuse his conduct by using that kind of reasoning. Dr Brown, however, noted – "Whilst [the applicant] did not impress as seeking to attribute his offending behaviour to his own childhood experiences, the inappropriate sexualisation this exposed him to, in combination with feelings of guilt and remorse about his involvement may well be one of a multiple underpinnings which have ultimately contributed to his offending behaviour." 13 Dr Brown opined that, although for a considerable time the applicant suffered from alcohol abuse/dependence and a chronic depressive disorder, the former was in remission and the latter in partial remission with the use of anti-depressant and anti-psychotic medication. She considered that "both of these conditions, in combination with [the applicant's] passive and insecure personality style, are likely to be relevant to consider in attempting to understand his sexually offending behaviour". Dr Brown thought that the applicant appeared to have made progress since his involvement with Mr Warren in early 2005 and that he impressed as an individual likely to receive at least some benefit from treatment of the type available in the sexual offender programmes able to be provided in prison. 14 His Honour found, I think fairly, that the psychiatric reports showed a developing insight by the applicant into the character of his wrongful behaviour. His Honour seems to have accepted the genuineness of his expressions of regret and remorse although his Honour concluded that, at least at the early stages, the applicant "at times gave the impression that somehow his first victim, his daughter, was in some way to blame". He commented that this was not an uncommon feature of the attitudes adopted by those who engage in child sexual abuse and went on to say – "The prisoner should be totally disabused of any belief that the fault for any of these grievous offences lies anywhere except on his shoulders. He should not comfort himself in any way with the belief that these children were either ready for it or willing to engage in it or accepting of it, to use them as vessels for his own sexual gratification. It is totally his fault and is nothing short of appalling". 15 Had the applicant expressed any such rationalisation, no doubt this stern remonstrance would have been entirely justified. However, examination of the relevant report demonstrates that his Honour mistakenly attributed to the applicant a view apparently expressed to Mr Warren not by the appellant but by Y, the victim's mother who, at that stage, was very defensive of her husband. It is clear that the learned sentencing judge considered that the sentences needed to impress on the applicant his own personal responsibility for the offences and that this aspect of personal deterrence and denunciation required emphatic vindication. In my view, the error of attribution made by his Honour coloured his entire approach to the sentencing exercise. 16 Although the learned sentencing judge did not discuss the psychological material in detail, I would not conclude that his Honour did not take it all into account: I think that he simply highlighted the particular matters that struck him as being important. 17 The sentencing judge accepted that most of the facts upon which the Crown relied for the purposes of the charges came from the applicant and concluded that he and "been reasonably frank and accurate". Discussion 18 The learned sentencing judge thought that the applicant was entitled to what his Honour called "the benefit of a softer approach" because he had no prior criminal record and, accordingly, could rely upon his good character. His Honour noted, rightly in my opinion, that although he was not known to the police he was known to his daughter and his grandchildren as a sexual predator for something like twenty years of his life and his good character was therefore more apparent than real. Nevertheless, his Honour accepted that because this was the applicant's first experience of prison he would need to serve in protection and "prison will impact harshly upon him". He accepted also that the applicant had long-term need for counselling and supervision. His Honour identified these matters "as justifying a departure from the statutory formulation of sentencing, that is, special circumstances which permit at least the finding that he should serve a longer period on parole than would otherwise be provided". 19 I am sceptical that the matters identified by his Honour, in light of the severe sentences which were required to be imposed, really amounted to special circumstances that justified a variation of the statutory ratio. However, I think that the applicant is entitled to the benefit of his Honour's findings in this respect. At all events, some variation to the ratio was called for to maintain an appropriate proportion between the head sentence and non-parole period in light of the accumulation of the sentences. If the statutory ratio of 75% is applied to the overall head sentence of thirteen years, the resulting non-parole period is nine years and nine months. The non-parole period imposed was nine years and six months. It seems to me that the contention that the learned judge's findings were not substantively carried onto effect is a reasonable one. 20 The learned trial judge said that, in the circumstances, a utilitarian discount of 25% should be afforded to the applicant for his early plea. It is not submitted here that this was inappropriate. However, it is submitted that the accumulation had the effect of nullifying or largely nullifying the discount in the result. Having regard to the starting point to be inferred from the overall sentence of thirteen years, namely something over seventeen years, I think that the applicant's submission should be accepted. The learned sentencing judge made no reference to this issue when adjusting the extent of concurrency. The reasons for sentence refer to the subjective factors, the prospects of rehabilitation, the special circumstances, the fact that his pleas saved the victims the ordeal of giving evidence and then goes on to say: "For those reasons, I have determined that there should be some accumulation but some concurrency as well". His Honour did not advert to the issue of totality at all. With respect, it seems to me that the learned sentencing judge either omitted to consider the overall sentence in light of the totality principle or failed to take into account the need to carry through to the overall sentence the entirely appropriate utilitarian discount that had been applied to the individual offences. Whatever the explanation, I would, with respect, conclude at all events that the overall sentence is manifestly excessive. 21 I now move to the sentence imposed in respect of charge 3. The learned sentencing judge referred to the standard minimum non-parole period applicable to this offence as follows – "The Crown points to the fact that, in relation to the third count, the aggravated indecent assault upon the victim MH, there is a statutory non-parole period, but the prisoner's plea of guilty has avoided the automatic application of that provision although one could not have found his offence was anything less than the middle of the range." With respect, it is difficult to see how there could ever be an automatic application of a standard minimum non parole period. Even where there is conviction following trial, the court must impose the sentence that is proportionate to the crime and takes into account all the subjective features of the offender. Whether the particular objective features of a case demonstrate that it is in the mid-range of objective seriousness is a matter requiring careful consideration of all the material facts and, amongst other things, the positing of an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence: see R v Way (2004) 60 NSWLR168, R v AJP (2004) 150 A Crim R 575, R v Dang [2005] NSWCCA 430 and R v Thompson (2005) 156 A Crim R 467. In no case could one start with the standard minimum non-parole period. One of the most important points made in Way at paras [117]ff especially [121] and [122] – and frequently since – is the fundamental importance of appreciating that the standard minimum non-parole period is but one of the significant inputs to the measurement of the sentence. In my respectful view his Honour erred as to the significance of the standard minimum non-parole period and by not adopting the approach enjoined by Way and AJP , or something like it. 22 It is not easy to hypothesise an offence within the middle of the range of objective seriousness, especially where the objective features can vary markedly, as with indecent assault. So far as charge 3 is concerned, the victim was eleven years of age and thus at the low end of the age range covered by s61M(1). That the offender was in a position of authority is one of the specified aggravating features and thus unremarkable. The element of incest is an aggravating circumstance that would not be a feature of an abstract middle-of-the-range-case. That the offence was not isolated and involved some planning are, I think usual features of such a case. Of considerable significance in assessing objective seriousness is the actual character of the assault. The victim did not actually touch the offender's genitals, the offender ejaculated into his own hand, and there was no physical force, pressure or threat. One would expect a middle-of-the-range case to have a markedly greater degree of physical contact. In attempting to undertake the difficult (and, with respect, logically impossible) task of positing an abstract case, I have assumed a case broadly reflecting the general features of the present case except for those features that strike me as differing, one way or another, from a case in the middle of the range of objective seriousness. 23 Of course, it is not appropriate, even if it were possible (which it is not), to attempt to give distinct weight to each of these elements and measure the result against the standard non-parole period. And it is especially important not to use the standard non-parole period as a starting point or as a fulcrum around which the various relevant features – objective and subjective – oscillate. Rather, all the objective and subjective features of the case must be brought together in a synthesis giving rise to the ultimate appropriate sentence. For the purpose of undertaking this exercise, the standard non-parole period is one of a number of matters to be considered, bearing in mind the ways in which the objective features of the case differ from an abstract case in the middle of the range. 24 With these factors in mind, using the standard minimum non-parole period of five years as a marker, and placing into the scales the subjective features to which I have referred, I would impose a head sentence on charge 3 of three years and six months. Reducing this sentence by 25% yields two years and seven months (rounded down slightly) with a non-parole period (applying the statutory ratio) of one year eleven months. Applying the learned sentencing judge's view of special circumstances I would impose a non-parole period of one year and six months. Conclusion 25 I would therefore grant leave to appeal and make the following orders – 1. Leave to appeal is granted. 2. The sentence imposed on charge 3 is quashed and substituted in lieu thereof is a non-parole period of one year and six months commencing on 24 May 2008 and ending on 23 November 2009 and a balance of term of one year and one month commencing on 24 November 2009 and concluding on 23 December 2010. 3. As to charge 4, the sentence is quashed and in lieu thereof the appellant is sentenced to a fixed term of one year commencing on 24 May 2008 and ending on 23 May 2009. 4. As to charge 6, the non parole period is varied from four years to three years to commence on 23 May 2010 and end on 22 May 2013, and the balance of term from three years and six months is varied to two years to commence on 23 May 2013 and end on 22 May 2015. 26 The result of these changes is to reduce the present overall sentence of thirteen years with a non-parole period of nine years and six months to an overall sentence of ten years and six months with a non-parole period of seven years, which is the earliest date upon which the appellant may be released on parole. 27 HOWIE J: I agree with the orders proposed by Adams J for the reasons given by him. 28 PRICE J: I agree. ADDENDUM TO JUDGMENT - 24 October 2008 1 ADAMS J: In this matter the overall sentence of 13 years with a non-parole period of 9 years and 6 months was reduced to one of 10 years and 6 months with a non-parole period of 7 years. The appellant had been sentenced on six charges. The sentences on charges 3, 4 and 6 were reduced. Regrettably, because of an error in calculations in respect of charge 6 the resulting overall sentence (subject to an error of one day which my proposed orders corrects) gives an aggregate sentence of 10 years with a non-parole period of 8 years. 2 Charge 6, an offence under s66C of the Crimes Act 1900, originally attracted a sentence of 7 ½ years commencing on 24 November 2010 with a non-parole period of 4 years expiring on 23 November 2014. I propose that instead of the sentence imposed on appeal of 5 years commencing 23 May 2010 (which should have been 24 May 2010 anyway) a sentence of 5 years and 6 months from 24 May 2010 should now be substituted. This will have the effect of giving an aggregate sentence of 10 ½ years, which was the intended outcome. The non-parole period must be reduced from the present 3 years to a term of 2 years commencing on 24 May 2010. 3 This will result in an aggregate sentence of 10 ½ years and an aggregate non-parole period of 7 years. 4 HOWIE J: I agree. 5 PRICE J: I agree. ********* 27/10/2008 - Addendum added - Paragraph(s) 1-5 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.