Reported Decision: 185 A Crim R 178 New South Wales Court of Criminal Appeal CITATION: RJA v R [2008] NSWCCA 137 HEARING DATE(S): 10 June 2008 JUDGMENT OF: Spigelman CJ at 1; Price J at 59; McCallum J at 60 EX TEMPORE JUDGMENT DATE: 10 June 2008 1 The sentences are quashed. 2 The following sentences are imposed: DECISION: Count 1 – Imprisonment for a non-parole period of 12 years to commence on 18 August 2006 and expire on 17 August 2018 with a balance of term of 4 years to commence on 18 August 2018 and to expire on 17 August 2022. Count 3 – Imprisonment for a non-parole period of 6 years to commence on 18 August 2012 and expire on 17 August 2018 and a balance of term of 2 years to expire on 17 August 2020. Count 4 – Imprisonment for a non-parole period of 10 years to commence on 18 August 2009 and conclude on 17 August 2019 and a balance of term of 4 years to commence on 18 August 2019 and conclude on 17 August 2023. CATCHWORDS: Criminal law – Sentence – Statutory aggravating factors – Double counting of age of victim – Crimes (Sentencing Procedure) Act 1999, s 21A. - Criminal law – Sentence – Standard non-parole period – Middle range of objective seriousness – Degree of penetration – Sexual assault of child under 10 years – Crimes Act 1900, s 66A. - Criminal law – Sentence – Statutory mitigating factors – Risk of re-offending – Crimes (Sentencing Procedure) Act 1999, s 21A. - Criminal law – Sentence – Whether error in greater sentence for less serious offence LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Daniels v R [2007] NSWCCA 372 Hughes v R [2008] NSWCCA 48 JAH v R [2006] NSWCCA 250 CASES CITED : MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim A 575 R v Pearce [1998] HCA 57; (1998) 194 CLR 610 R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 Shannon v R [2006] NSWCCA 39 PARTIES: RJA (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2006/5303 COUNSEL: S J Odgers SC (Appellant) D M L Woodburne (Respondent) SOLICITORS: Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0470 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 18 August 2006 IN THE COURT OF CRIMINAL APPEAL 2006/5303 SPIGELMAN CJ PRICE J McCALLUM J Tuesday 10 June 2008 RJA v REGINA Judgment 1 SPIGELMAN CJ: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 18 August 2006 following his conviction after trial on three counts of sexual intercourse with a child under the age of ten years. The child in question was the applicant's own daughter aged eight (Count 1) and nine (Counts 3 and 4). On the findings of the sentencing judge the offences were, respectively, committed in February 2004, August 2004 and September 2004. The victim turned nine between February and August. 2 The offences for which the applicant stood to be sentenced were offences committed in contravention of s 66A of the Crimes Act 1900, which provides for a statutory maximum penalty of imprisonment for 25 years. In addition, pursuant to the provisions of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 ("the Act"), offences in contravention of s 66A of the Crimes Act attract a standard non-parole period of imprisonment for 15 years. 3 The sentencing judge found that both Counts 1 and 4, which involved penile penetration, were offences which fell within the middle range of objective seriousness. His Honour determined, however, that there were reasons for setting a non-parole period shorter than the standard non-parole period of 15 years. His Honour found that Count 3 (digital penetration) whilst serious, was not an offence falling within the middle range of objective seriousness. 4 With respect to Count 1 his Honour set a non-parole period of 13 years with a balance of term of 4 years and 4 months. The non-parole period was ordered to commence on 18 August 2006. With respect to Count 4 his Honour set a non-parole period of 13 years with a balance of term of 5 years. The non-parole period was ordered to commence on 18 August 2009. With respect to Count 3 his Honour set a non-parole period of 7 years with a balance of term of 2 years and 4 months. The non-parole period was ordered to commence on 18 August 2013. The overall effective non-parole period is 16 years with a balance of term of 5 years. 5 There is no dispute with respect to the findings of fact by the sentencing judge. Paragraphs [9]-[22] should be taken to be set out herein. I will refer to the facts relevant to a particular ground of appeal when I deal with it. 6 The first ground of appeal is: "The sentencing judge erred in finding that the offences committed by the applicant were aggravated on the basis that the victim was vulnerable because she was very young." 7 His Honour made a finding that two of the three offences were in the middle range of seriousness and, said that, in accordance with s 54B of the Act, he could only impose a sentence that varied from the prescribed standard non-parole period for the reasons set out in s 21A of the Act. One of the matters identified as an aggravating factor by s 21A(2)(l) is: "The victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as taxi driver, bus driver or other public transport worker, bank teller or service station attendant)". 8 In his remarks on sentence Finnane DCJ said: '"[26] Of the matters mentioned in section 21A, I am of the opinion that there are some aggravating factors, namely that the offender abused a position of trust or authority in relation to the victim, and that the victim was vulnerable because she was very young." 9 Counsel for the applicant emphasised that the offences found to have been committed were against s 66A of the Crimes Act, which applied to acts of sexual intercourse with a child under the age of ten years. As noted above, the maximum penalty for such an offence is 25 years by comparison to s 66C, where the maximum sentence for an equivalent offence against a child aged between ten and fourteen years is 16 years. 10 Section 21A(2) of the Act provides expressly: "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence." 11 This section is reinforced by s 21A(4) which provides that the court is not to have regard to an aggravating factor if it would be contrary to any Act or rule of law to do so. 12 It is well established that with respect to a matter such as age, which is an element of the relevant offence, that a sentencing court must avoid the possibility of double counting when determining the existence of, and degree of, an aggravating factor. (See eg R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740; JAH v R [2006] NSWCCA 250 at [25]-[26].) 13 As quoted above, s 21A(2)(l) refers to the fact that "the victim was very young". His Honour adopted that very terminology in [26] of his remarks on sentence. There is work for this part of s 21A(2)(l) to do even in the context of an offence which contains the age of the victim as part of the offence. The younger the victim the more serious the offence. 14 As Howie J said in Shannon v R [2006] NSWCCA 39: "[28] … 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 …" 15 In written submissions counsel for the applicant referred to the trial judge's finding of vulnerability and said: "He did not explain this finding. Bearing in mind that the offence only occurs if the victim is 9 years or younger at the time, and the fact that the victim was 9 years old in respect of counts 3 and 5, and 8 years old in respect of count 1, it is difficult to discern the basis on which the sentencing judge made this finding." 16 The issue is whether the trial judge ought not have found that the victim in the present case could be categorised as "very young" for the purposes of an offence that required the victim to be under the age of ten years. 17 The Crown responded to the submission by invoking a passage in the course of the sentencing hearing which occurred on 9 June 2006, over two months before the sentence was handed down on 18 August 2006. As the Crown submitted, this passage indicated quite clearly that his Honour recognised the dangers of double counting in this very respect: "HIS HONOUR: He had a relationship with her on the evidence that continued over a period and he has been convicted of three offences occurring at different periods during the course of this relationship if one could call it that. I have to take into account her age, her relationship to him. JAUNCEY: The relationship to him is an aggravating feature of 21A because he's obviously a person in authority, the question of age is not an aggravating feature. HIS HONOUR: No it's not an aggravating factor because I take into account her age, the charge requires me to because she's under the age of ten but it doesn't aggravate, you don't get an extra aggravation because the offence itself. JAUNCEY: No, but it is something that your Honour quite right takes into account, the question as to whether this specific offence is more serious for example the younger the child." 18 As this passage makes clear, Mr Jauncey, who appeared for the applicant at the sentence hearing, acknowledged that his Honour was entitled to take into account age on the basis that the younger the child the greater the degree of vulnerability, even for an offence which requires the victim to be under a specified age. Nevertheless, the clarity of his Honour's statement that there was no additional aggravation by reason of being under the age of ten suggests that it is unlikely that his Honour would determine the sentence contrary to this basis. 19 This is a case in which it is appropriate to have regard to his Honour's remarks during submissions in order to assess his remarks on sentence, even though the latter were not delivered ex tempore. (See Daniels v R [2007] NSWCCA 372 at [13]-[14]; Hughes v R [2008] NSWCCA 48 at [33]-[35].) 20 There is some difficulty, as counsel for the applicant submitted, in determining the precise basis on which his Honour made the finding expressed at [26] of his remarks on sentence. There is less difficulty with respect to the offence committed at the age of eight. However, his Honour did not distinguish between the two periods of offending. 21 It is the express reference to vulnerability because of age with respect to the two later offences that leads me to conclude that his Honour did overlook the matter at the time of sentence, being a matter about which he had earlier indicated a clear understanding. It may have been open to make some adjustment for the additional vulnerability of an eight year old. I do not see how that can be said for a nine year old. 22 This ground of appeal has been made out. 23 The second ground of appeal is: "The sentencing judge erred in determining that counts 1 and 4 were in the middle of the range of seriousness." 24 Counts 1 and 4 involved acts of penile penetration whereas the other count, which his Honour held was below the mid-range of seriousness, involved digital penetration. 25 The applicant submits that the judgment formulated by the sentencing judge in this regard miscarried, in part on the basis that he had assessed the vulnerability of the victim in an impermissible way, being the subject of the first ground of appeal. 26 The way his Honour approached the matter was to first express the conclusion that these two offences were in the middle range of seriousness and then to turn to s 21A. He did so expressly by reason of the requirement under s 54B(3), that he was not entitled to depart from the prescribed standard non-parole period save on the basis of, inter alia, s 21A(2)(l). 27 His Honour, nevertheless, did appear to take into account the aggravating factor here identified when he went on to say: "[29] I have come to the conclusion that the two offences of penile penetration, having regard to the aggravating factors and the context of their having been committed against the victim, along with 20 or 30 other similar offences, means that each of them is at least, a middle range offence. Whilst I consider, for reasons which I have already given that the first such offence was worse than the other, I am unable to conclude that this means that the offence is greater than a middle range offence. These offences are middle range offences, because they are committed by a father, against his daughter. The wilful invasion for sexual purposes of the body of a child, who is less than 10 years old, is one of the most appalling crimes that could be committed. In my opinion it is much worse when it is committed by a father." [Emphasis added] 28 The first sentence of this paragraph expressly refers to his having had regard to the aggravating factors. Although, there is no reference of that character in the last three sentences of this passage. Nevertheless, his Honour's express statement in the first sentence does suggest that the above finding on Ground 1 does affect Ground 2. 29 The applicant also submits that with respect to Counts 1 and 4 there was no penetration of the hymen or vagina of the victim. The penetration was of the genitalia, by the applicant rubbing his penis against her labia. Counsel for the applicant submitted that his Honour's failure to make reference to this distinction was of significance particularly in a context where there were no threats or coercion involved. 30 A judgment of this character involves the exercise of a broad discretion with which this Court is reluctant to interfere. The nature and extent of penile penetration is a relevant consideration in determining the objective seriousness of the offence. However, I am not satisfied that his Honour failed to take the matter into account. His Honour was clearly aware of the evidence which identified the precise nature of the act of penetration. In describing Count 1 he said: "[11] … He then placed his penis between her legs from the back into her vulval opening." 31 Although there was no express reference of this character with respect to Count 4 his Honour was clearly attentive to the nature of the penetration. It was open to his Honour to regard penetration of the character identified in the evidence as being in the mid-range of seriousness. 32 With respect to the issue of vulnerability by reason of age, Kirby J said in MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93: "[22] Unquestionably, the age of the victim is an important consideration in determining the objective seriousness of the crime and whether it falls within the mid range. But it does not follow that, because age is relevant and because the section contemplates a range of ages, an offence against a child approaching the age of 10 cannot be regarded, or should not be regarded, as being within the mid range. The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable. Whilst the age of the victim was a matter for his Honour to consider (which he obviously did) his remarks do not betray error." 33 This analysis is equally applicable to the issue of extent of penetration. A limited degree of penetration is not necessarily indicative of a lower level of objective seriousness. 34 Accordingly, in my opinion, this ground is made out only on the basis upon which I would uphold Ground 1, by reason of the fact that his Honour, perhaps unnecessarily, expressly linked the two. 35 Ground 3 in the appeal is: "The sentencing judge erred in failing to sentence the applicant on the basis that he was unlikely to re-offend." 36 This matter is expressly identified as a possible mitigating factor in s 21A(3)(g) of the Act. Counsel for the applicant submitted that in view of his Honour's finding that it was unlikely that he could re-offend against his daughter and that there was no evidence to suggest that the applicant had a general interest in abusing young girls, his Honour ought to have found that the applicant was unlikely to re-offend. 37 There were references of this character in his Honour's reasons particularly in the context of assessing an expert report on the issue of rehabilitation by Dr Lennings a psychologist. His Honour dealt with this matter in some detail and the factual findings to which the applicant refers were made in the context of this overall assessment. 38 The following passages of his Honour's remarks about this evidence are pertinent: "[4] He maintains his innocence and thus I must regard him as showing no contrition and no remorse. Notwithstanding the report of Dr Lennings, I am unable to form any view that he is likely to rehabilitate himself. This is because he continues to maintain his innocence, he has given no evidence before me at any time and I simply lack any evidentiary basis for coming to the conclusion that he is likely to rehabilitate himself. [5] Dr Lennings has expressed the opinion that there was a low likelihood of a risk of re-offending. His opinion is based on his application of a test known as 'STATIC 99'. [6] I have no confidence in the accuracy of this test, and I am unable to accept that Dr Lennings' expertise as a psychologist enables him properly to express an expert opinion about re-offending. In my opinion it is not possible to determine whether the offender is likely to offend again. Certainly it is unlikely that he would ever be able to offend against his daughter. She lives in another State and she will be an adult before he is released from gaol. There is no evidence to suggest that he has any general interest in abusing young girls or that he has ever previously done so. … [23] Dr Lennings is of the opinion that there is little risk of his offending again. As I have said before, I am not prepared to come to the same conclusion because he has given no evidence and the test, which Dr Lennings applied, obviously involved the assessment of a number of subjective factors. I do not have the same confidence in him as is expressed by Dr Lennings. In his report Dr Lennings asserts that 'it is probably the case that Mr A's situation is a product of a heightened opportunity to offend and in the main, such opportunity can be addressed by appropriate supervision strategies.' I am unable to accept that this is a valid assessment of the situation at all. The offender chose the bed in which his children slept and he chose deliberately to sleep in that bed and to sexually abuse his daughter. A normally protective parent would not have engaged in conduct of this type." 39 These findings were open to his Honour. The absence of evidence that the applicant had a general interest in abusing young girls is not of itself such as to require a finding that the offender is unlikely to reoffend. His Honour gave cogent reasons for refusing to draw the inference. The mitigating factor had not been established. 40 This ground should be rejected. 41 Ground 4 is: "The sentencing judge erred in increasing the overall sentence in respect of count 4 in order to achieve an appropriate ratio between non-parole period and head sentence." 42 This ground of appeal is based on the fact that his Honour found the first act of penile penetration (Count 1) was "worse than the other act of penile penetration" (Count 4). However, he actually imposed a head sentence for Count 4 of 18 years which was longer than the head sentence for Count 1 of 17 years and four months. Furthermore, the non-parole period was the same for each. 43 Counsel submitted that his Honour did not explain the distinction, but it appears that he reduced the ratio in respect of Count 1 from 75 percent to 72.2 percent in order to produce an overall effective ratio of about 75 percent. Mr S J Odgers SC submitted that it was reasonable to infer that the sentencing judge actually increased the term in respect of count 4 to overcome the impact of partial accumulation on the overall sentencing ratio. 44 Ms D M L Woodburne, who appeared for the Crown, submitted that what his Honour had said with respect to the seriousness of Count 1 was that the act of penile penetration was more serious by reason of the fact that ejaculation occurred on the first but not on the subsequent occasion. The Crown submitted that it could be that his Honour considered that Count 1 was the first in time whereas Count 4 occurred after a long period of abuse and, accordingly, "could not be regarded as spontaneous and opportunistic". 45 The sentences imposed by his Honour on the respective counts were as follows: Count 1 – 13 years non-parole period commencing on 18 August 2006 until 17 August 2019 and a balance of term of 4.4 years ending on 17 December 2023. Count 3 – 7 years non-parole period commencing on 18 August 2013 concluding on 17 August 2020 with a balance of term of 2.4 years concluding on 17 December 2022. Count 4 – 13 years non-parole period commencing on 18 August 2009 and concluding on 17 August 2022 and a balance of term of 5 years concluding on 17 August 2027. 46 The critical question is the interrelationship between the sentences imposed on Count 1 and Count 4. The sentence for Count 3 overlaps with each, and to a certain degree both, of the other offences and the balance of term for Count 3 overlaps for all but 4 months with the non-parole period for Count 4 and otherwise overlaps with the balance of term for Counts 1 and 4. 47 The non-parole period for Count 1 is effectively for a period of 3 years, before overlapping with the non-parole period for Count 4. The non-parole period for Count 4 continues after the end of the non-parole period for Count 1 for a period of 3 years of which one year overlaps with the non-parole period for Count 3. The head sentence for Count 4 continues for 3 years and 8 months beyond the expiry of the head sentence for Count 1 of which 4 months overlaps with the parole period for Count 3. 48 The Crown's submission is speculative. To a similar extent so is that of the applicant. Nevertheless, in view of the clear, and justifiable, finding of fact as to the greater objective seriousness of Ground 1, it appears that something has gone wrong. The applicant's submission is, perhaps, the more likely explanation. This reflects the difficulty which sentencing judges now frequently encounter when seeking to comply with the technicalities of sentencing legislation which attempts to micro regulate a broad discretion in the context of the sentencing principle identified in R v Pearce [1998] HCA 57; (1998) 194 CLR 610. 49 This ground of appeal has also been made out. 50 In my opinion, the element that his Honour referred to as an aggravating factor identified in terms of vulnerability because of age was, in accordance with his Honour's analysis, of comparatively little significance in the determination of the overall sentence. 51 Nevertheless, by reason of the grounds of appeal that have been upheld it falls to this Court to redetermine the sentence. 52 I would reach the same conclusion as his Honour reached with respect to identifying each of Counts 1 and 4 as being in the middle level of seriousness. The abuse of position of trust by a father, in the overall circumstances of each offence, is entitled to significant weight. The helplessness of a young girl in such a family situation is apparent. The circumstances of the two offences are such that each of the two offences should be found to fall within the middle level of seriousness for purposes of applying the standard non-parole period. In this regard I agree with the substantial emphasis his Honour gave to the fact that these were offences committed by a father against a daughter, in a context where the appellant could not fall to be sentenced on the basis of committing an isolated offence. (See R v AJP [2004] NSWCCA 434; (2004) 150 A Crim A 575 esp at [20] and [25] and JAH v R supra at [31].) 53 His Honour identified reasons for imposing a non-parole period less than the 15 year standard non-parole period because, as he put it at [31]: "The offender has never previously committed any serious offence, and…he was in many respects a good father and a good citizen". I accept this analysis. 54 I would also add that in my view there is a low probability of re-offending in this regard. Although, as I have indicated above, I do not find that his Honour erred in refusing to draw that conclusion, in my own view significant weight should be given to the fact that it is simply not conceivable, as Mr Odgers submitted, that the applicant will ever be able to sexually assault his daughter again. It was the element of the father/daughter relationship that was of particular significance in determining the objective seriousness of the offence. The absence of that element is also entitled to be taken into account when determining to impose a non-parole period less than the standard. 55 His Honour expressly took into account s 21A(3)(e) and (f) which identify as mitigating factors the absence of a record and being a person of good character. However, in my opinion, this Court should also take into account s 21A(3)(g) namely that the offender is unlikely to re-offend. I say that with respect particularly to the inconceivability of any ability to offend against his daughter. 56 I am also of the opinion that his Honour erred in imposing the same non-parole period for each of Counts 1 and 4 and a longer balance of term for Count 4. His Honour's finding that Count 1 was a more serious offence was correct. 57 This Court should vary the non-parole period for Count 1 by reducing it to 12 years and the non-parole period for Count 4 by reducing it to 10 years, in each case reducing it from the standard non-parole period. In order to retain the balance between the respective counts I would also reduce the non-parole period for Count 3 to 6 years. 58 The orders I propose are as follows: 1 The sentences are quashed. 2 The following sentences are imposed: Count 1 – Imprisonment for a non-parole period of 12 years to commence on 18 August 2006 and expire on 17 August 2018 with a balance of term of 4 years to commence on 18 August 2018 and to expire on 17 August 2022. Count 3 – Imprisonment for a non-parole period of 6 years to commence on 18 August 2012 and expire on 17 August 2018 and a balance of term of 2 years to expire on 17 August 2020. Count 4 – Imprisonment for a non-parole period of 10 years to commence on 18 August 2009 and conclude on 17 August 2019 and a balance of term of 4 years to commence on 18 August 2019 and conclude on 17 August 2023. 59 PRICE J: I agree with the Chief Justice and the orders proposed. 60 McCALLUM J: I agree with the Chief Justice and the orders proposed. 61 SPIGELMAN CJ: The orders are as I have indicated. ********** 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.