Phipps v R [2008] NSWCCA 178

New South Wales Court of Criminal Appeal

CITATION: Phipps v R [2008] NSWCCA 178

HEARING DATE(S): Wednesday 16 July 2008

JUDGMENT DATE: 11 August 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Fullerton J at 16

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: CRIMINAL LAW: - Application for leave to appeal against sentence - sixteen counts of sexual assault - partial accumulation of sentence leading to aggregate sentence and effective non-parole period - finding of special circumstances reflected in individual sentences but not in aggregate sentence - no error

LEGISLATION CITED: Crimes Act 1900 (ss 61M(1), 66C(2))

PARTIES: Rodney Thomas Phipps (applicant) Regina (respondent)

FILE NUMBER(S): CCA 2007/3133

COUNSEL: C Davenport SC (applicant) D Arnott (Crown)

SOLICITORS: Legal Aid Commission (applicant) Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/41/0189

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 14/05/07

IN THE COURT OF CRIMINAL APPEAL 2007/3133

McCLELLAN CJ at CL HIDDEN J FULLERTON J

Monday 11 August 2008 Rodney Phipps v Regina Judgment 1 McCLELLAN CJ at CL:I agree with Hidden J. 2 HIDDEN J: The applicant, Rodney Thomas Phipps, was found guilty at trial in the District Court of 16 counts of sexual abuse of his step-daughter. There were eleven counts of aggravated sexual intercourse, an offence under s66C(2) of the Crimes Act which at the relevant time carried a maximum sentence of ten years imprisonment, and five counts of aggravated indecent assault, an offence under s61M(1) of the Act which, then as now, carried a maximum sentence of 7 years imprisonment. In each case the circumstance of aggravation was that the victim was under the applicant's authority. He was sentenced to terms of imprisonment aggregating 14 years with a non-parole period of 11 years, and he seeks leave to appeal against those sentences. I shall explain shortly how that aggregate sentence was arrived at. 3 The offences were committed over a period between 1998 and 2001, when the victim was aged between twelve and fifteen years. There is no need to dwell on the details of them. It is sufficient to say that they embraced penile/vaginal intercourse, anal intercourse on one occasion, and various incidents of what the sentencing judge described as "sexual touching". The penile/vaginal intercourse was unprotected, but the applicant would withdraw before ejaculating. The offences were part of a wider pattern of abuse, which included cunnilingus, extending over a period in excess of three years. 4 On each of the aggravated sexual intercourse charges, he was sentenced to imprisonment for 9 years, comprising a non-parole period of 6 years and a balance of term of 3 years. On each of the aggravated indecent assault charges, he was sentenced to a fixed term of imprisonment for 4 years. The offences had occurred at four different addresses at which the applicant, the victim and her family were living over the relevant period. For the purpose of sentence, his Honour grouped the offences according to the address where they were living at the time. A number of offences were committed at each of the first three addresses, and the last offence (aggravated sexual intercourse) was committed at the fourth address. As to the first three groups, the sentences were concurrent for the offences within each group but the sentences for each of the second and third groups were directed to commence two years later than the group which preceded it. There was further accumulation by one year of the sentence for the last offence. 5 On the occasion of the first count (aggravated sexual intercourse), the applicant threatened to kill the victim if she made a noise. He was violent towards her mother, and on another occasion she agreed to sexual contact after he promised not to hit her mother anymore. She was in fear of him. At the same time, her natural father having left the household when she was very young, he was the only father she knew. His Honour found that there developed a relationship between them such that she became "almost totally" dependent upon him, and he exploited that situation "to the full". The whole pattern of abuse was described by his Honour as "virtual sexual servitude". His manipulative behaviour was such that his Honour regarded the offences as "amongst the most serious of their kind". 6 A victim impact statement revealed psychological consequences for the victim of a kind which one might expect from such serious and persistent abuse. Moreover, it led to her contracting incurable genital herpes. His Honour noted the physical discomfort and embarrassment which this condition caused her, adding that it was a "complication which is a constant physical reminder of the abuse which she has suffered". 7 If that were not enough, in 2001 the applicant was dealt with in the Local Court for aggravated indecent assaults upon three of the victim's sisters. That occurred before the offences against the victim came to light, and some of those offences were committed while he was on bail for the charges relating to her siblings. 8 The applicant was a man in his thirties at the time of the offences, and is now forty. He had a dreadful upbringing. There is no need to dwell on it either. It is sufficient to say that his natural father, who suicided, was very violent towards his mother. She had two subsequent relationships with men, both of whom abused the applicant physically and one of whom subjected him to persistent sexual abuse. A forensic psychiatrist, who provided a report, was of the opinion that he was suffering from symptoms consistent with post traumatic stress disorder, which his Honour accepted to be a "serious mental affliction". 9 Since late 2002, the applicant had been in a relationship with another woman and they had a daughter, who was three years old at the time of sentence. His partner was supportive of him although, given his history, his Honour entertained some fears for the welfare of the daughter. Applying the Static 99 statistical test (with appropriate caution), the psychiatrist considered that there was a significant chance of his re-offending. Nevertheless, the applicant had been undertaking counselling while in custody and expressed a desire to undertake a sexual offenders program. This, his Honour thought, showed "some insight". 10 In the light of this material, and the fact that the applicant was likely to be held in protection throughout the custodial component of his sentence, his Honour found special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. It is that finding which is at the heart of the present application. 11 Such a departure is to be found in the sentence for each of the charges of aggravated sexual intercourse, 9 years with a non-parole period of 6 years. That non-parole period is a little under 67 per cent of the sentence. However, in the aggregate sentence of 14 years with a non-parole period of 11 years, the effective non-parole period is a little over 78 per cent of the sentence, that is, more than the statutory proportion of 75 per cent. This gives rise to the only submission of Ms Davenport SC, who appeared for the applicant. She argued that the overall sentence fails to reflect his Honour's finding of special circumstances. 12 This Court has sometimes intervened in cases where, a judge having found special circumstances, it appears that the proportion of an effective non-parole period to an overall sentence has failed to give effect to the judge's intention. After careful consideration, I do not think that this is such a case. His Honour had reserved judgment before passing sentence, and his remarks convey that he had given careful thought to the structure of the sentences and to the principle of totality. 13 The applicant stood for sentence for criminality of a high order, which had to be reflected in the effective non-parole period. The aggregate sentence still leaves him with a substantial period of parole eligibility, 3 years. His Honour achieved that outcome by giving effect to his finding of special circumstances in the sentences for the more serious offences. As the Crown prosecutor in this Court pointed out, there is a symmetry in the specification of a balance of term of 3 years in each of those sentences and in the overall term. 14 In the circumstances of this case, his Honour was not required to reflect the finding of special circumstances in the overall sentence as well as the sentence for each of the aggravated sexual intercourse charges. There is no reason to infer that he overlooked the matter, or that the overall sentence is anything other than that which he intended. In any event, it demonstrates no error. 15 I would grant leave to appeal but dismiss the appeal. 16 FULLERTON J: I agree with Hidden J. **********