Reported Decision: 181 A Crim R 450 New South Wales Court of Criminal Appeal CITATION: Clare v R [2008] NSWCCA 30 HEARING DATE(S): 23 November 2007 JUDGMENT DATE: 28 February 2008 JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 50; Price J at 51 1. Grant leave to appeal. DECISION: 2. Uphold the appeal in relation to the sentence for count 2. In relation to that count impose a non-parole period for a term of 15 years and 9 months but otherwise confirm the sentence. 3. Otherwise dismiss the appeal. 4. As a consequence of order 2 the applicant will be eligible for parole on 16 July 2031. CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - principle of totality in sentencing - special circumstances in setting non-parole period - whether overall sentence was manifestly excessive - whether sentence should be concurrent with previous sentence imposed for related offence - charges of manslaughter and sexual intercourse with a child under 10 years - finding that offence was in the worst class of manslaughter Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes (Serious Sex Offenders) Act 2006 CATEGORY: Principal judgment Close v Regina (1992) 65 A Crim R 55 Mill v The Queen (1988) 166 CLR 59 Qing An v R [2007] NSWCCA 53 R v Adamson (2002) 132 A Crim R 511 R v Cahyadi (2007) 168 A Crim R 41 CASES CITED : R v Forbes [2005] NSWCCA 377 R v Guider [2002] NSWSC 756 R v Hoerler (2004) 147 A Crim R 520 R v Holder [1983] 3 NSWLR 245 R v Ibrahim [2005] NSWCCA 43 R v MMK (2006) 164 A Crim R 481 Simpson v Regina (1992) 61 A Crim R 58 PARTIES: William Thomas Clare (Applicant) The Crown FILE NUMBER(S): CCA 2007/3181 COUNSEL: J Stratton SC (Applicant) P G Ingram (Crown) SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2005/1747 LOWER COURT JUDICIAL OFFICER: Grove J LOWER COURT DATE OF DECISION: 11 August 2006 LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 812 IN THE COURT OF CRIMINAL APPEAL 2007/3181 McCLELLAN CJ at CL HALL J PRICE J THURSDAY, 28 FEBRUARY 2008 CLARE, William Thomas v R Judgment 1 McCLELLAN CJ at CL: The applicant was presented for trial upon an indictment that pleaded two counts. 2 Count 1 was in terms that on or about 13 September 2003 at Croydon the applicant had sexual intercourse with J who was a person under the age of ten years, namely three years of age. This count alleged a contravention of s 66A of the Crimes Act 1900 and attracted a statutory maximum penalty of imprisonment for a term of 25 years. The offence carries a standard non-parole period of 15 years. 3 Count 2 was in terms that on or about 13 September 2003 at Croydon the applicant murdered J. This count alleged a contravention of s 18 of the Crimes Act 1900 and attracted a statutory maximum penalty of imprisonment of life imprisonment (s 19A). A standard non-parole period of 20 years applied to the offence. 4 The applicant pleaded guilty to count 1 and not guilty to count 2. Following a trial the applicant was acquitted of the charge of murder but found guilty of manslaughter. The offence of manslaughter carries a statutory maximum penalty of 25 years pursuant to s 24 of the Crimes Act. 5 The applicant was sentenced on count 1 to a fixed term of 14 years imprisonment commencing on 17 October 2015 and expiring on 16 October 2029. On count 2 he was sentenced to a non-parole period of 18 years and 9 months commencing on 17 October 2015 and expiring on 16 July 2034 with a balance of term of 6 years and 3 months commencing on 16 July 2034 and expiring on 16 October 2040. 6 At the time he was sentenced the applicant was serving a sentence for other offences. The aggregate non-parole period of the other sentences expired on 17 October 2015 which explains the commencement date of the sentences which his Honour imposed for the present offences. 7 The offences for which the applicant had already been sentenced related to the sexual assault by the applicant of the sister of the victim of the present offences. The sister was aged 6 and the offences occurred on the previous day to the present offences. For the other offences the applicant was sentenced to imprisonment for a total of 16 years with a non-parole period of 12 years and 1 month commencing on 18 September 2003 and expiring on 17 October 2015. The facts 8 The Crown case was that in late 2002 the applicant met the mother of the victims J [the victim of the present offences] and B (his sister) in the vicinity of Croydon railway station. They became acquainted. Sometime in 2003 J's mother remarked that she needed help looking after the children and the applicant offered to mind them. 9 An arrangement was made that the applicant would be paid $30 per day to look after the children. The children would stay at the applicant's flat which he shared with Keith Coles. The children would visit their mother in the late afternoon after she returned from work but would then stay overnight at the applicant's flat. 10 On 13 September 2003 the children returned to the applicant's flat. At 12.09 am on 14 September 2003 the applicant telephoned 000. He said that a 3 year old boy was vomiting, had choked, was unconscious and was not breathing. The child had not responded to CPR or to what he described as a "little bit of an electric shock" that he had tried on the boy. 11 An ambulance arrived 7 minutes later. Paramedics described the child's body as cool to the touch. The deceased was taken to Royal Prince Alfred Hospital where resuscitation was attempted without success. A post-mortem examination detected recent tears to the anus of the deceased and bruising to the lining of the rectum. 12 The Crown put its case in the alternative. The first alternative was that the deceased had vomited as a result of the pain of being sexually assaulted by the applicant and choked. The alternative was that the deceased was electrocuted when the applicant applied live electric wires to his body. The applicant did not give evidence at his trial. 13 When sentencing the applicant, his Honour found that death was occasioned by an unlawful and dangerous act by having anal intercourse with the deceased. His Honour accepted expert evidence to the effect that at the time that the applicant applied electrical wires to the deceased in an attempt to revive him he was already dead. His Honour did not find that the applicant intended to kill or inflict grievous bodily harm on the victim. Subjective matters 14 The applicant was born on 27 October 1971 and was 34 when he was sentenced. The applicant had been a ward of the State from when he was 4 or 5 years old and never saw his parents again. A report from a neuropsychologist, Dr Langeluddecke, concluded that the applicant was in the "low average" or "borderline" levels of cognitive ability and placed him within the 4th percentile when compared with other persons of a similar age. 15 When interviewed by Dr Bruce Westmore the applicant gave a history of having been sexually and physically abused by his father from the ages of about 3 to 5. The applicant said he considered himself to be a paedophile in terms of his sexual orientation. Criminal history 16 The applicant was convicted at Blacktown Local Court of two counts of inciting an act of indecency with a person under the age of 18, three counts of committing an act of gross indecency, and one count of sexual assault. The applicant was sentenced for these offences in 1990 and a supervised bond and a community service order were imposed. 17 In 1993 the applicant was convicted of having sexual intercourse with an intellectually impaired person. He was sentenced to a minimum term of 3 months and 21 days with an additional term of 18 months. 18 In 1997 the applicant pleaded guilty to one count of indecent assault of a child under the age of 10 years and one count of committing an act of indecency with a person under the age of 16. 19 The applicant has a number of other convictions which are not relevant to the present matters. The appeal 20 There are 3 grounds of appeal. First, the applicant submitted that his Honour erred in the application of the principles of totality. It was further submitted that his Honour erred in not finding special circumstances permitting a variation in the proportion between the parole period and the non-parole period. The third ground of appeal is that the overall sentence was manifestly excessive. The remarks of the sentencing judge 21 The sentencing judge was conscious of the fact that the applicant had already been sentenced for the sexual assault committed on the victim's sister. The sentence for that offence was imposed in the District Court on 21 October 2004. The applicant was sentenced for the present offences on 11 August 2006. His Honour noted that the sentences which had been imposed in the District Court provided that the applicant would not be eligible for parole until 17 October 2015. He had been sentenced to a total term of 16 years with a non-parole period of 12 years and 1 month for those offences. 22 At an early point in his remarks on sentence the sentencing judge noted that it was "a matter of significance" that the applicant was presently subject to these sentences. Shortly thereafter his Honour noted that it would be "necessary to pay attention to the (sentences in respect of the victim B) in terms of your ultimate total sentence." 23 His Honour was clearly mindful of the need for an appropriate relationship between the sentences imposed for the prior offence and the offence for which his Honour was sentencing. His Honour said: "There are, however, other matters which must be considered including the penalty for the offence for aggravated sexual assault itself, whether a non parole period should be specified and whether there should be cumulation or concurrency with the sentences which you have already received for the offences committed on B." 24 His Honour concluded that the act of causing death "by a forced act of anal penetration upon a small child, whilst this act was not accompanied by an intention to cause serious injury but was accompanied by an intention to gratify a depraved sexual urge, falls within the category of a worst case of manslaughter." His Honour identified the fact that the applicant was a self acknowledged paedophile and concluded that he was "in the class of the worst offenders." His Honour indicated that he reached this conclusion after giving appropriate weight to subjective matters. His Honour was also mindful that although the applicant must be separately and appropriately punished for the crime of aggravated sexual assault upon B he must not be doubly punished for his criminal behaviour. Accordingly, his Honour determined to make the sentences for the aggravated sexual assault concurrent with the sentence for manslaughter. 25 His Honour imposed a sentence of 16 years imprisonment reduced to 14 years to reflect the utilitarian value of the plea in relation to the charge for the sexual assault of J. His Honour did not set a non-parole period because he determined that the sentence should be subsumed by the sentence in respect of the manslaughter charge. 26 His Honour considered the submission that the offences against B and J should be considered as the one episode of criminality. It was submitted that this was an appropriate approach having regard to the fact that the offences occurred within a relatively short time of each other. His Honour said of this submission: "In a sense, that is true but they could only fit the description of a single manifestation of criminality because both children were placed in your care as a result of the one arrangement with their mother. Each child was a separate victim and what you did to B was not allied to what you did to J in any relevant sense. I have read the Judge's remarks on sentence relating to B as victim and they can be referred to for observing the basis for that conclusion." 27 His Honour expressly acknowledged the need to consider questions of overall totality and concluded that having regard to the enormity of the applicant's crime it was appropriate to "cumulate the sentences for the offences in which J was the victim upon the sentences which you have already received for the offences in which B was the victim." 28 Finally, his Honour considered the question of special circumstances. His Honour did not believe that special circumstances existed and decided to set a non-parole period for the manslaughter offence in accordance with the statutory formula. His Honour anticipated that if the applicant was released to parole he would be subject to stringent conditions and supervision to ensure the safety of the community. Ground 1 29 The applicant emphasised that as a result of the combination of the sentence imposed in the District Court and that imposed in the present matter the combined sentence was a head sentence of 37 years and 1 month commencing on 18 September 2003 and expiring on 16 October 2040. The total non-parole period was a period of 30 years 10 months commencing on 18 September 2003 and expiring on 16 July 2034. It was submitted that a sentence of this length was excessive and failed to acknowledge the recognised principles of totality when an offender is being sentenced for a number of offences. The aggregate sentence must be "just and appropriate" which may require amelioration of the individual sentences: see Mill v The Queen (1988) 166 CLR 59 at 62-3. 30 It was submitted that because the offences were committed in a short space of time there should have been some degree of concurrency. Although it was accepted that there were separate victims and the offences were of a significantly different character it was nevertheless submitted that some degree of concurrency was appropriate. 31 The Crown submitted that there was no relevant error. His Honour gave careful consideration to questions of concurrency and accumulation and determined to provide that the sentence for the aggravated sexual assault should be made wholly concurrent with the sentence imposed for manslaughter. Having made this decision his Honour determined to cumulate the former upon the latter having regard to the totality of the criminality for which the applicant was to be sentenced. Consideration 32 The sentencing of an offender for multiple offences can cause difficulties. Although mindful of the need to impose an appropriate punishment for the individual offences, the Court must ensure that the overall sentence remains appropriate having regard to the totality of the offending. The relevant principles were recently considered by this Court in R v MMK (2006) 164 A Crim R 481 and R v Cahyadi (2007) 168 A Crim R 41. 33 In R v Holder [1983] 3 NSWLR 245 at 260; (1983) 13 A Crim R 375 at 389, Street CJ described the principle in these terms: "… The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences …" 34 In R v Cahyadi Howie J (with whom Price J agreed) said: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (at [27]) 35 In the present case, although the overall sentence is lengthy, I am satisfied that his Honour's decision to cumulate the sentence for manslaughter on the sentence imposed in the District Court was within his Honour's sentencing discretion. The overall result is a significant term of imprisonment but in my view, having regard to the enormity of the applicant's crimes, within the appropriate sentencing range. Although committed on successive days, the offences were discrete acts of criminality committed on separate victims. Although each victim was the subject of acts of sexual assault his Honour accommodated these offences by making the sentence for the sexual assault of J wholly concurrent with the sentence for his manslaughter. Ground 2 36 His Honour was not persuaded that there were special circumstances which justified a variation in the statutory ratio between the non-parole period and the period on parole for the manslaughter offence. The applicant submitted that as a consequence of the accumulation of the sentence imposed in the Supreme Court with that imposed in the District Court the total non-parole period was a disproportionate proportion of the total head sentence. The applicant emphasised that because of the manner in which the sentences were structured the applicant had been sentenced to an overall non-parole period of 30 years and 10 months with a parole period of 6 years and 3 months giving a total head sentence of 37 years and 1 month. The proportion which the overall non-parole period bears to the overall head sentence is 83.1%. 37 It was submitted that his Honour had not considered the question of whether the effect of accumulation of the sentences itself produced special circumstances calling for a variation in the proportion between the parole period and the head sentence pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 38 There are many cases in which this Court has recognised that the fact that sentences are made cumulative one upon the other may constitute special circumstances justifying a departure from the "one-third" rule in relation to an individual sentence (see Close v Regina (1992) 65 A Crim R 55; Simpson v Regina (1992) 61 A Crim R 58; R v Ibrahim [2005] NSWCCA 43; Qing An v R [2007] NSWCCA 53 at [107]-[113]) 39 Although his Honour considered the question of special circumstances in relation to count 2 it does not appear that he considered whether the decision to cumulate the District Court and Supreme Court sentences gave rise to a need to consider special circumstances having regard to the overall ratios. It would seem that the matter may not have been drawn to his attention. I am satisfied that consideration should have been given to this issue. It is apparent that the applicant will require both appropriate treatment and a significant period of supervision following his return into the community if he is ever to become a stable and law abiding member of society. I can see no reason to provide a period on parole shorter than the statutory ratio for his total sentence. If consideration had been given to this question in my view a finding of special circumstances was appropriate. 40 It is plain that with the enactment of the Crimes (Serious Sex Offenders) Act 2006 different considerations now arise in relation to the release of an offender at the end of his overall prison term. I am also aware of treatment programs which are provided for sexual offenders and the strict conditions imposed on them if they are released on parole. A variation of the non-parole period in the present case may have no consequence, for unless the appropriate authorities are completely satisfied that it is appropriate the applicant will not be released to parole. Furthermore, unless they are satisfied that it is appropriate for him ultimately to be released into the community the Attorney-General may make an application to this Court to extend the period of the applicant's incarceration beyond the total term of his sentence. By varying the non-parole period in the manner I contemplate an opportunity will be provided at an earlier date to consider whether the applicant should be released to parole. Only if his progress has been satisfactory will this occur. Ground 3 41 The applicant also submitted that the overall sentence imposed in effect the sentence for count 2 was manifestly excessive. His counsel drew attention to a number of decisions. In Regina v Guider [2002] NSWSC 756 the offender pleaded guilty to the manslaughter of a nine year old girl, Samantha Knight. The offender had taken the deceased to an undisclosed location and given her Normison with the assumed intention of taking indecent photographs of her. However, the child stopped breathing and died. At the time he was sentenced Guider was nearly 52 years old having been 36 years of age when the offence was committed. At the time he was sentenced he was serving lengthy sentences for child sexual assault and there was evidence that he was a paedophile. Wood CJ at CL sentenced Guider to 17 years with a non-parole period of 12 years. The sentences were made partly concurrent with sentences which Guider was already serving. 42 In Regina v Hoerler (2004) 147 A Crim R 520 the offender pleaded guilty to the manslaughter of a 7 month old baby, the son of his de facto. A post mortem examination showed that the child had been struck in the jaw with very considerable force and a number of ribs had been fractured. The victim's toes had been crushed by the use of a clamp. The offender had prior offences of violence on his record. He was sentenced to 11 years with a non-parole period of 8 years and 3 months. However, a Crown appeal was allowed and Hoerler was resentenced to 14 years and 4 months with a non-parole period of 10 years 9 months. It must be assumed that the sentence which this Court imposed was at the bottom of the appropriate range. Accordingly, a more significant sentence may have been appropriate when sentencing at first instance. 43 In Regina v Adamson (2002) 132 A Crim R 511 the offender pleaded guilty to one count of manslaughter and two counts of aggravated sexual assault. Adamson had anally and vaginally sexually penetrated the victim at a party. While doing so he had placed his hand over the victim's mouth and blocked her nose to prevent her calling out. This caused asphyxiation and death. Adamson was 19 years old and had prior convictions for malicious wounding and supplying a prohibited drug. He was sentenced to 14 years with a non-parole period of 10 years 6 months. His appeal against sentence was dismissed. 44 The applicant also draws attention to the Judicial Commission statistics for the offence of manslaughter between April 2000 and March 2007. Of the 187 offenders, 172 received full time custodial sentences. The head sentence of 25 years, being the maximum imposed on the applicant in the present case has not been imposed in any other case. The next highest head sentence was 18 years, which was imposed on 3 offenders. The applicant emphasised that from these figures it is apparent that he has received the highest head sentence during this period by 7 years. 45 The applicant submitted that the statistics also reveal that the applicant has received the highest non-parole period of anyone sentenced for manslaughter during this period. The next highest non-parole period revealed by the statistics are two sentences each of 12 years. These were probably the sentences imposed on Hoerler and Adamson. 46 Accordingly, the applicant submitted that the non-parole period imposed on him was more than double that imposed on all other persons (apart from Hoerler and Adamson) imprisoned for manslaughter. It was submitted that a comparison of the objective gravity of the present case with that of Hoerler and Adamson would not suggest that a non-parole period twice as great was called for in the present case. 47 This Court has drawn attention on many occasions to the difficulties of sentencing for manslaughter. In R v Forbes [2005] NSWCCA 377 Spigelman CJ discussed the difficulties in identifying a sentencing trend or pattern for manslaughter, for which "the permissible sentencing range for manslaughter must be regarded as particularly wide" (at [141]). In relation to manslaughter itself, his Honour said at [133]-[134]: "As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]). It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter." 48 In the present case I am satisfied that his Honour was correct in finding that the offence was in the worst class of manslaughter. The abuse of a 3 year old child for sexual gratification by anal penetration resulting in death is a crime of the utmost gravity. Furthermore, the subjective circumstances of the applicant did not justify any amelioration of the sentence. In my opinion the sentence which his Honour imposed for count 2 was within his Honour's discretion. Conclusion 49 Accordingly, I am satisfied that the applicant has made good ground 2 of the appeal but fails on grounds 1 and 3. The non-parole period in relation to the manslaughter offence should be varied so that the statutory ratio for the totality of his sentences is maintained. This would have the consequence that the non-parole period for the manslaughter offence would be reduced to a term of 15 years and 9 months. Orders 1. Grant leave to appeal. 2. Uphold the appeal in relation to the sentence for count 2. In relation to that count impose a non-parole period for a term of 15 years and 9 months but otherwise confirm the sentence. 3. Otherwise dismiss the appeal. 4. As a consequence of order 2 the applicant will be eligible for parole on 16 July 2031. 50 HALL J: I agree with McClellan CJ at CL. 51 PRICE J: I agree with McClellan CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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