New South Wales Court of Criminal Appeal CITATION: AWKO v R [2010] NSWCCA 90 HEARING DATE(S): 22 March 2010 JUDGMENT DATE: 7 May 2010 JUDGMENT OF: McClellan CJatCL at 1; James J at 26; Rothman J at 27 DECISION: 1. Grant leave to appeal. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - whether sentencing judge failed to make a proper finding regarding objective seriousness of offence - circumstances where error in sentence may lead to imposition of new sentence in Court of Criminal Appeal - whether sentencing judge erred in reasons for departing from standard non-parole period - whether irrelevant and inaccurate material was taken into account in sentencing - whether sentence was manifestly excessive LEGISLATION CITED: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 CATEGORY: Principal judgment Eedens v R [2009] NSWCCA 254 MLP v R [2006] NSWCCA 271; 164 A Crim R 93 R v Knight, R v Biuvanua [2007] NSWCCA 283 R v Mitchell, R v Gallagher [2007] NSWCCA 296 CASES CITED : R v Pearson [2005] NSWCCA 116 R v PGM (2008) 187 A Crim R 152 R v Russell (unreported, NSWCCA, 21 June 1996) Rawlings v R [2006] NSWCCA 84 RJA v R [2008] NSWCCA 137 PARTIES: AWKO (appellant) The Crown FILE NUMBER(S): CCA 2008/20488 COUNSEL: W Hunt (Appellant) J Girdham (Crown) SOLICITORS: Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/20488 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 8 May 2008 IN THE COURT OF CRIMINAL APPEAL 2008/20488 McCLELLAN CJ at CL JAMES J ROTHMAN J FRIDAY 7 MAY 2010 AWKO v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to one offence of sexual intercourse of a child under 10 years of age contrary to s 66A of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. There is a standard non-parole period of 15 years. 2 The applicant was sentenced to a term of imprisonment consisting of a non-parole period of 8 years 3 months and 13 days (commencing 13 June 2008) with a parole period of 4 years 5 months and 15 days. The non-parole period is 65% of the total term. 3 The applicant was also sentenced for an offence of contravening an apprehended violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. The offence carries a maximum term of imprisonment of 2 years. The sentencing judge imposed a fixed term of 2 months imprisonment which was made wholly concurrent with the principal sentence. 4 The facts of the matter were agreed before the sentencing judge. The applicant was at home with his four children the complainant AO aged 6 years, KO 4 years, ALO 3 years and EO aged 1 year. The applicant's wife, who is the mother of each of the children, was out shopping. The complainant had been asleep on the lounge in the living room. The applicant went and sat on the lounge next to the complainant and started to kiss her on the lips, cheek, neck and shoulder area. The applicant told the complainant to go to her room and having closed the door to the room told her to undress. 5 The complainant was then instructed to lie on the bed with her "bum" in the air. The applicant removed his clothes, stood behind AO and inserted his penis into her anus and moved it backward and forward for some period. He then removed his penis and AO saw him ejaculate into his hand. The applicant left the bedroom to have a shower and AO dressed and returned to watch television. 6 The next day upon AO's mother observing a rash on AO's bottom the latter complained about the assault saying inter alia, "Dad put his bum in my bum. I was screaming and crying because it hurt. He spit on my bum and after he finished milk came out of his bum." The applicant's wife confronted him about the complaint. The applicant made denials and threatened her if the matter was taken up with the authorities. On the same day the complainant was interviewed by the Parramatta Joint Investigation Response team. She told an officer that when the offence occurred "it felt like a sharpened sword and I was crying and crying, I told him to stop." An apprehended violence order was issued on 13 June 2008 which was breached by the applicant on 17 June 2008. He was arrested on 18 June 2008 and has remained in custody ever since. Subjective matters 7 The applicant was aged 33 at the time of the offence. He had been in a relationship with AO's mother for 8 years and was the father of their four children. He worked as a carpenter having migrated to Australia from Lebanon in 2001. The applicant had no criminal antecedents and was otherwise of good character. 8 The applicant did not give evidence. However, there was material before the sentencing judge which established that the applicant had been considered by his sister-in-law, prior to the offence, to have been "an excellent husband and an excellent father." The probation report indicated that since the offence the applicant had been alienated from his wife and children as well as other family members. The appeal 9 There are four grounds of appeal advanced by the applicant. I am not persuaded that any of them justifies the intervention of this Court. It must be remembered that the offence carries a maximum penalty of 25 years imprisonment. Of particular significance in this case is the standard non-parole period of 15 years. 10 It was agreed before the sentencing judge by counsel for the applicant that the applicant had committed a mid-range offence. The consequence would be that allowing, as his Honour did for the maximum discount for the guilty plea but leaving aside any other matters the appropriate non-parole period was of the order of 11 years. This must be compared with the non-parole period which his Honour imposed which was 8 years 3 months and 13 days. Although the applicant was a person of prior good character and his Honour found that he has good prospects of rehabilitation (which was not challenged by the Crown in this appeal) and allowing for the fact that the offence was spontaneous or opportunistic and the applicant has shown remorse, the sentence which his Honour imposed was in my opinion clearly within the appropriate range. 11 The first ground of appeal is concerned with his Honour's characterisation of the offence as being "at least" in the mid-range of objective seriousness. His Honour recorded the concession made by counsel for the applicant that the offence fell within the mid-range but elsewhere in his remarks on sentence said that the offence "is correctly placed in my opinion by both counsel at least in the mid-range of objective seriousness." It was submitted that this statement was not entirely correct, the suggestion being that counsel for the appellant did not accept that the offence may have fallen above the mid-range. 12 The relevant portions of his Honour's remarks are firstly: "This of course is a very serious offence. The Crown has characterised it in the mid-range of objective seriousness. Mr Stewart (for the prisoner) said he could not resile from that and indeed I find that this conduct of this crime is in the mid-range of seriousness." 13 Later he said: "As I said, I have found this (offence) is at least in the middle range of objective seriousness." 14 This Court has previously indicated that a finding expressed as to the objective seriousness of an offence in general terms, without a clear statement as to the level of objective seriousness of the offence is not satisfactory. The statement which his Honour made could suggest that he had concluded that the offence fell above the mid-range but has not identified the extent to which this was the case. When an ambiguous expression is used by a sentencing judge it does not enable the offender or this Court to understand the sentencing judge's conclusion as to the seriousness of the offence which is fundamental to the sentence which was ultimately imposed. In R v Knight, R v Biuvanua [2007] NSWCCA 283 Howie J, with whom both Hidden J and myself agreed, said: "The judge described the objective seriousness of the offence committed by Ms Knight as 'at least in the mid-range of objective seriousness'. The Crown on this appeal conceded that 'her Honour correctly assessed the objective seriousness of the offending.' With respect to both the judge and the Crown Prosecutor, it is impossible to understand how such an assessment fulfils the obligation on a trial judge in applying the standard non-parole provisions to assess the objective seriousness of the offence committed. Presumably the judge thought that the offence was somewhere above midrange but believed that she did not have to assess the exact level of seriousness because it was sufficient that she found it was 'at least mid-range.' But with respect, if that is how her Honour approached the matter, she was clearly in error. Although such an assessment cannot made with absolute precision, it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding." 15 See also R v Mitchell, R v Gallagher [2007] NSWCCA 296 and Rawlings v R [2006] NSWCCA 84. 16 Although his Honour's remarks are ambiguous I do not believe this has occasioned any error in the sentence which was imposed. If his Honour had determined to sentence the applicant for an offence falling above the mid-range a greater penalty than that which he imposed would have been appropriate. 17 The second ground of appeal argues that the sentencing judge wrongly confined himself to the consideration of the plea of guilty as the only reason to depart from the standard non-parole period. 18 The applicant is correct in emphasising that his Honour only expressly identified the plea of guilty as a reason for departing from the standard non-parole period. However, if his Honour had in fact confined his consideration to the guilty plea, as I have indicated, a non-parole period of the order of 11 years would have been the result. The non-parole period which his Honour imposed was significantly less than 11 years and accordingly it is apparent that his Honour, although not expressly indicating that he had taken this course, did have regard to other matters when determining the appropriate sentence. 19 It is important for this Court to again emphasise that it is necessary for sentencing judges to take care in identifying the matters which have been of significance when arriving at the sentence imposed on an offender. Only if this is done will it be possible to understand the judge's reasons for arriving at the sentence and enable effective review by this Court. The obligation to give reasons is fundamental to the judicial process. 20 In support of the third ground of appeal the applicant submitted that his Honour had had regard to irrelevant and/or inaccurate material. In particular complaint was made about the fact that his Honour said when determining the appropriate penalty: "One would have to infer that there is no one who wants to speak on his behalf because the crime is found to be so despicable." 21 It was submitted that this was not an accurate statement because there was evidence before the sentencing judge that his sister-in-law had reported to the officer who had prepared the pre-sentencing report that prior to his arrest the applicant appeared to be "an excellent husband and an excellent father." Although the sister-in-law made this comment there is every reason to accept that since the offence had become known the applicant has been ostracised by his family and the community. This was only to be expected and the finding which his Honour made was in my view appropriate. It was not at odds with the sister-in-law's statement. 22 The final ground of appeal was the general submission that the sentence was manifestly excessive. As I have already made plain in my view this submission cannot be sustained. The applicant drew attention to some previous decisions where offenders have been sentenced for a breach of the same statutory provision. However, two of the cases involved fellatio and the offences were of quite significantly different character (RJA v R [2008] NSWCCA 137; Eedens v R [2009] NSWCCA 254). The applicant also referred to two cases involving penile penetration of the vagina of a young girl (RJA v R [2008] NSWCCA 137; MLP v R [2006] NSWCCA 271) where sentences comparable to that imposed on the applicant were imposed. 23 The offence which the applicant committed involved a gross breach of trust. It is true that the offence was spontaneous and involved a single event. However, the complainant who was only 6 years of age, was told to strip naked and was penetrated when screaming and crying and imploring the applicant not to continue. The age of the applicant was significant confirming her particular vulnerability: see R v Pearson [2005] NSWCCA 116 at [33]-[35]; MLP v R (2006) 164 A Crim R 93 at [22] and R v PGM (2008) 187 A Crim R 152 at [36]-[38]. The offence in the present case was of a degrading nature being one of anal intercourse: R v Russell (unreported, NSWCCA, 21 June 1996). 24 In my judgment the sentence imposed on the applicant was within the sentencing judge's discretion and no error has been identified. Even if I had found an error I am satisfied that no lesser sentence was warranted in law. 25 Although I would grant leave to appeal the appeal should be dismissed. 26 JAMES J: I agree with McClellan CJ at CL. 27 ROTHMAN 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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