BT v R [2010] NSWCCA 267

New South Wales Court of Criminal Appeal

CITATION: BT v R [2010] NSWCCA 267

HEARING DATE(S): 14 September 2010

JUDGMENT DATE: 23 November 2010

JUDGMENT OF: McColl JA at 1; Hulme J at 2; Latham J at 46

(i) Appeal allowed; (ii) Quash the sentences imposed by Finnane DCJ on the Applicant; DECISION: (iii) In respect of each of the offences of assault accompanied by an act of indecency, sentence the Applicant to imprisonment for a non-parole period of 2 years commencing on 30 October 2009 together with a further term of 1 year; (iv) In respect of the offence of sexual intercourse without consent, sentence the Applicant to imprisonment for a non-parole period of 3 years commencing on 30 October 2010, together with a further period of 2 years; and (v) Record as the date upon which it appears to the Court that the Applicant shall become eligible for parole, 30 October 2013.

PARTIES: BT Regina

FILE NUMBER(S): CCA 2009/5247

COUNSEL: Applicant: T Gartelmann Respondent: D Arnott SC

SOLICITORS: Applicant: S O'Connor Respondent: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Finanne DCJ

- 15 - IN THE COURT OF CRIMINAL APPEAL 200/5247

McCOLL JA RS HULME J LATHAM J

Tuesday, 23 November 2010 BT v R Judgment 1 McCOLL JA: I agree with RS Hulme J. 2 RS HULME J: On 30 October 2009 this Applicant for leave to appeal was sentenced by Finnane QC DCJ in respect of four charges. The first three alleged that during various periods between 15 March and 1 July 2008 he assaulted and, at the time of each assault, committed an act of indecency upon a girl under the age of 16 years, namely 15 years. The fourth charge was that between 30 April and 1 July 2008 he had sexual intercourse with that girl without her consent, she being then under the age of 16 years, namely 15 years. 3 Finnane DCJ sentenced the Applicant in respect of the first three offences to concurrent terms of imprisonment for 5 years including non-parole periods of 3 years commencing on 30 October 2009 and in respect of the fourth charge to imprisonment for 9 years including a non-parole period of 6 years, both such periods commencing on 30 October 2011. The effective sentence imposed was thus of imprisonment for 11 years including a non-parole period of 8 years. 4 The first three offences constituted a breach of s 61M(1) of the Crimes Act 1900 (NSW) 1900 which, at the relevant time, prescribed a maximum period of imprisonment of 7 years if, so far as is presently relevant, the victim was under the age of 16 or under the authority of the offender. 5 The fourth offence was a breach of s 61J(1) which prescribed a maximum period of imprisonment of 20 years. Circumstances of aggravation listed under s 61J(2) included the victim being under the age of 16, and the victim being under the authority of the offender. 6 Pursuant to s 54A et seq of the Crimes (Sentencing Procedure) Act 1999 (NSW) standard non-parole periods of 5 years and 10 years respectively have been prescribed for offences under s 61M and 61J. 7 The circumstances of the offending were as follows. For some 10 years prior to the time of the offences the Applicant was living in a de facto relationship with the victim's mother. Also in the household were two younger sisters of the complainant and a 6 year old boy who was a child of both the Applicant and the victim's mother. The offending, the subject of the first three charges was constituted by the Applicant going to the complainant's bed while she was asleep and placing his hand down inside her pyjama pants and underwear and touching her in the area of her vagina. The fourth offence was constituted by the Applicant on the last of the occasions just mentioned, placing his finger into her vagina. At the commencement of each assault the complainant was asleep. During the first two occasions, according to her, she pretended to remain asleep until the Applicant stopped and left the room. On the third occasion the victim was spoken to by the Applicant prior to the penetration but the victim was uncertain as to what he said. The penetration lasted for a short time and again the Applicant simply left the room. 8 Some weeks after the last of the offences, the complainant's mother had occasion to become concerned at the Applicant's conduct for other reasons and made enquiries of the complainant whether she had been interfered with. The complainant said she had and it was thus that the offences came to light. There was nothing to suggest that the Applicant had used force, threats or pressure to induce the victim's compliance or silence beyond such pressure as was implicit in his relationship with her mother. A Victim Impact Statement prepared with the assistance of a court support assistant provides an account of suffering of the victim and her family which she attributes to the conduct of the Applicant, suffering said to include, blaming herself, feelings of shame, a breakdown of her relationship with others in the family and bad dreams. The statement concludes with an indication of pride in having spoken out and that the victim has found strength to believe in herself again. 9 Finnane DCJ said that the contents of the statement were similar to what most victims of the instant type of sexual assault talked about; he accepted that what was said was true but it would not cause him to add or lessen the sentence from that which he thought was otherwise appropriate. 10 The Applicant was born in May 1973, has no prior criminal history and is of aboriginal descent. He completed his higher school certificate and for some 10 years prior to 2005 was an officer in the New South Wales Police Force. Subsequently he spent some time working for another Government Department. It would seem he had some conflicts within both of these organisations although there is nothing to suggest that those conflicts reflect adversely on him. His Honour said of the Applicant that, until the commission of the offences against the victim, the Applicant was a man of exemplary good character though, as a former police officer, he must have known just how serious his offences were. Finnane DCJ recorded that the Applicant had pleaded guilty at the first opportunity and was entitled to the maximum discount on that account. 11 A report from a psychologist, Mr Terry Smith, that was admitted into evidence detailed a number of psychological or psychiatric problems that the Applicant has suffered in the past. He has been suicidal on a number of occasions and actually attempted suicide in September 2008 after which he was scheduled. He has been diagnosed at various times with major depression, post-traumatic stress disorder, a borderline personality and to be suffering from bipolar mental illness. It would seem that a cause, or at least a focus, of some of the Applicant's problems was the death of a brother in 2000 which the Applicant thinks was the result of murder. The Applicant's mother said that the Applicant had tried to harm himself a number of times. Notes of a treating psychiatrist made in late 2008 talk of complaints of recurrent suicidal ideation although by February 2009, such thoughts seem to have subsided. 12 The grounds of appeal are:- 1. The sentencing judge erred in finding that the offences were representative of "many other occasions in which similar offences were committed." 2. The sentencing judge erred in failing to take adequately into account the mental illness of the applicant. 3. The sentencing judge erred in the assessment of the objective seriousness of the offences for the purpose of considering the reasons for departure from the standard non-parole period. 4. The sentences individually and in their aggregate are manifestly excessive. 13 Shortly prior to the hearing of the appeal, the Court was notified that the second ground was abandoned.