New South Wales Court of Criminal Appeal CITATION: Karel EEDENS v R [2009] NSWCCA 254 HEARING DATE(S): 10/09/2009 JUDGMENT DATE: 2 October 2009 JUDGMENT OF: Macfarlan JA at 1; Howie J at 2; Hislop J at 54 DECISION: The application for leave to appeal granted and the appeal allowed. The sentence imposed in the District Court is quashed and in lieu the applicant is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 2 months with a balance of term of 2 years 1 month. The sentence is to date from 14 May 2007 and the applicant is eligible to be released to parole on 13 July 2013. CATCHWORDS: Criminal Law - Sentence - sexual assault of child under 10 - plea of guilty - Form 1 - whether matters on Form 1 appropriate - whether sentence excessive. LEGISLATION CITED: Crimes Act 1900 - ss 66A, 66C Crimes (Sentencing Procedure) Act 1999 - s 33 CATEGORY: Principal judgment R v Todd [1982] 2 NSWLR 517 R v Borkowski [2009] NSWCCA 102 Shannon v R [2006] NSWCCA 39 Attorney General's Application No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 R v Grube [2005] NSWCCA 140 R v Way [2004] NSWCCA 131; 60 NSWLR 168 CASES CITED : MLP v R [2006] NSWCCA 271; 164 A Crim R 93 R v King [2009] NSWCCA 117 R v Knight [2007] NSWCCA 283; 176 A Crim R 338 R v Woods [2009] NSWCCA 55 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 RJA v R [2008] NSWCCA 137 R v Davis [1999] NSWCCA 15 R v PGM [2008] NSWCCA 172 PARTIES: Karel Eedens v Regina FILE NUMBER(S): CCA 2008/1967 COUNSEL: S Dowling - Crown C Davenport - Applicant SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/1967 LOWER COURT JUDICIAL OFFICER: Knight DCJ LOWER COURT DATE OF DECISION: 22/07/2008 IN THE COURT OF CRIMINAL APPEAL 2008/1967 MACFARLAN JA HOWIE J HISLOP J FRIDAY 2 OCTOBER 2009 Karel EEDENS v R Judgment 1 Macfarlan JA: I agree with Howie J. 2 HOWIE J: This is an application for leave to appeal against a sentence imposed in the District Court for an offence of sexual intercourse with a child under the age of 10 years. The offence is contrary to s 66A of the Crimes Act 1900 and carries a maximum penalty of imprisonment for 25 years. There is a standard non-parole period of 15 years. The applicant also asked the sentencing judge to take into account two matters on a Form 1 being an offence contrary to s 66A and an offence contrary to s 66C(1). 3 The applicant was sentenced to a term of imprisonment comprising a non-parole period of 9 years and a balance of term of 3 years. The sentence commenced on 14 May 2007 and the applicant is eligible to be released to parole on 13 May 2016. 4 There are two grounds of appeal as follows: 1. His Honour erred in failing to determine the level of objective criminality in the offence. 2. The sentence was manifestly excessive. 5 The facts can be briefly stated. The three complainants were at the applicant's home to play with his young daughter who was visiting him for the weekend. CO, aged 13, and TO, aged 9, were sisters and the third complainant JW, aged 8, was their friend. 6 At some stage in the afternoon TO and JW went into the kitchen of the house to get a drink. Having given TO a drink, the applicant then pushed her to her knees on the kitchen floor. He exposed his penis, opened the child's mouth and placed his penis inside her mouth. He used one of his hands to move the child's head back and forwards to fellate him. JW was present at the time of this conduct. TO left the kitchen and went into the backyard. This incident gave rise to the offence for which the applicant was to be sentenced. 7 A short time later TO returned into the kitchen where she saw JW kneeling in front of the applicant. He had his penis in her mouth. This incident gave rise to the first matter on the Form 1. 8 On this same afternoon CO also went into the kitchen to obtain a drink. The applicant pushed her to her knees and told her to "suck my dooddle and play with my balls". The applicant exposed his penis and placed it into the child's mouth. He pushed her head back and forwards to fellate him. At the time the applicant was wearing a yellow glove. The child fondled the applicant's scrotum at the applicant's request. The conduct gave rise to the second matter on the Form 1. 9 That evening the children complained about the applicant's conduct to their respective parents. The two mothers went to the house of the applicant and informed him of what the children had said. The applicant responded that it would not happen again. 10 The police were advised and attended on the applicant at his home. When they were in the kitchen they observed a pair of yellow gloves. The applicant was arrested but declined to be interviewed. 11 The applicant was aged 71 at the time of the offence. He had a conviction for assault female in 1975 for which he was placed on a recognizance for one year. In 1991 he was sentenced in the District Court for a number of sexual assault offences and was fined and placed on a bond for 3 years for one offence. The sentencing judge described these offences as arising from "fondling the breasts and the vagina of a fifteen year old girl". 12 There was a psychological report tendered in the sentencing proceedings. There is little of relevance in the applicant's background. He was born in 1936 in Surinam to Dutch parents. He and his family returned to the Netherlands in 1950. He married in 1959 and the couple emigrated to Australia 11 days later. He is divorced from his wife in 1979. He had three sons from that marriage. He remarried in 1997 but at the time of the offending they were separated. He had a daughter from that marriage who lived with her mother. The child was staying at his home for the weekend when the offence occurred. He had not seen her since his arrest. The applicant retired at 65 from a machinery company where he had been employed for 20 years. The applicant described his health as being "reasonably good" apart from some shortness of breath and dizzy spells. His wife and one of his sons had visited him in custody. 13 In relation to the applicant's attitude to the offences the report states: [The applicant] said that, in retrospect, he should not have let the victims play in the yard with his daughter. He expressed the view that he had never "chased any kids". [The applicant] explained his offence by saying he did not have intercourse with any of the victims, and that "they performed oral sex on me". 14 The psychologist assessed the applicant using the Static-99 risk assessment questionnaire. He scored five which was interpreted by the psychologist as indicating a risk of re-offending of 33 per cent over 5 years and 40 per cent over 15 years. The psychologist suggested that the applicant could reduce his risk of re-offending by cognitive-behavioural counselling. 15 The Judge gave the applicant a discount of 25 per cent for his plea of guilty that came in the Local Court and an unspecified discount for saving the children from giving evidence. He found that the applicant's health was not a matter of relevance but he took into account his age on the basis that imprisonment would be more onerous and it reduced the risk of recidivism. His Honour was unable to find that the applicant was unlikely to reoffend but found that he had reasonable prospects of rehabilitation. He also erroneously took into account the delay of 14 months before sentencing on the basis of the decision in R v Todd [1982] 2 NSWLR 517 but see R v Borkowski [2009] NSWCCA 102. 16 In relation to the nature of the offending his Honour stated: The remaining matter to which I wish to refer which was raised in argument and therefore should be dealt with is the type of sexual intercourse involved. It was urged on me that this was not penile/vaginal intercourse and therefore the acts which constitute the offence should be regarded as less heinous than if that had been the case. It seems to me that whilst it may be true that penile/vaginal intercourse does involve a more heinous form of the offence that this offence was nevertheless quite a significant serious offence. The action of requiring a person to have oral intercourse with you and in this case the act of fellatio really degrades the person concerned. I do not regard it as being simply a technical offence. It seems to me that it carries with it very considerable criminality. I think whilst it may not amount to the same criminality as penile/vaginal intercourse it would certainly, in my view, far exceed the criminality involved in digital penetration. 17 Before dealing with the grounds of appeal I should express my view that the course adopted by the Crown, apparently as a result of negotiations in the Local Court, to place two of the offences on a Form 1 appears on the information before this Court to have been inappropriate. These were distinct offences against three vulnerable complainants and each was a separate act of criminality of great seriousness. In fact one of the offences on the Form 1 was objectively more serious than the offence for which the applicant was being sentenced because the child was aged 8 years. The younger the child, the more serious the offence: Shannon v R [2006] NSWCCA 39. Had the applicant been sentenced for each of the offences, there would clearly have been a measure of accumulation as the offence against any one child could not have embraced the criminality involved in the offence against another child. 18 I appreciate that in some cases of child sexual assault there may be concerns about proving a particular charge were it not placed on a Form 1, but in light of the very recent complaints made in this case and the admission allegedly made to the two mothers, a conviction would have been highly likely. The use of the Form 1 reduced considerably the punishment that could be imposed upon the applicant because of the limited use that could be made of the matters being taken into account upon proper sentencing principles in accordance with the guideline judgment on s 33 of the Crimes (Sentencing Procedure) Act 1999, Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. This is notwithstanding that taking offences into account can result in a substantial increase to the sentence otherwise appropriate for the offence for which sentence is passed: R v Grube [2005] NSWCCA 140 and that in a general way the sentence imposed represents the whole of the criminality before the court. 19 But the sentence imposed for one offence even taking the other two offences into account, could not replicate the sentence that would have been imposed had the applicant been sentenced on all three charges. The use of the Form 1 meant that the sentence imposed could not, in my opinion, sufficiently reflect the seriousness of the totality of the applicant's conduct nor could it properly denounce the fact that three children had been abused in the way that they were. This is particularly so having regard to the fact that one of the offences also carried a standard non-parole period. The significance of the standard non-parole provisions loses its impact when the offence is placed on a Form 1. I am of the opinion that generally it is inappropriate to have a matter taken into account that carries a standard non-parole period. Of course, there may be situations where that procedure can be justified, for example where the offender is being sentenced for a number of offences similar to those placed on the Form 1. 20 The first ground of appeal complains that the Judge failed to determine the level of the objective criminality in the offence. The submission is that, as offences under s 66A can cover a wide range of sexual activity and have various aggravating factors, the judge should have found the offending on this occasion to be "well below the mid-range of objective seriousness". It is noted that the only reasons given by the judge for departing from the standard non-parole period were the applicant's age and plea of guilty. 21 I believe the ground has substantial merit. The final paragraph of the sentencing remarks was as follows: There are two final matters to which I wish to refer. The first is that in imposing the sentence I have, of course, taken into account the two offences set forth on the Form 1. The second matter is this, having regard to the fact that this offence carries a standard non-parole period I have considered the question required to be posed by the cases of R v Way and R v Shi, viz: "are there good reasons for not imposing the standard non-parole period?" In my view on the facts of this case there are. Those reasons are as follows; first, there's the plea of guilty which was entered at the earliest reasonable opportunity. Second, there is the fact of your advanced years. So for those reasons I have declined to impose a standard non-parole period. I indicate that I have nevertheless, in accordance with the authorities, used it as a guide post in relation to the sentence that I have imposed. 22 With respect to the sentencing Judge, he did not approach the existence of a standard non-parole period in accordance with the authorities to which he referred in that paragraph. The question that his Honour posed, derived from R v Way [2004] NSWCCA 131; 60 NSWLR 168, is not answered, as his Honour thought, simply by referring to subjective factors. The relevant passage from Way is as follows: [117] In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?" [118] That question will be answered by considering: (i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; [and] (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1). [119] Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. [120] Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. Nowhere in his sentencing remarks did his Honour deal with (i) in paragraph [118]. 23 It is unnecessary for present purposes to indicate yet again in detail the steps that a sentencing court is to take in deriving the appropriate sentence to be imposed where there is an applicable standard non-parole period. They were set out in MLP v R [2006] NSWCCA 271; 164 A Crim R 93 and have been referred to with approval in numerous decisions of this Court. They were recently referred to in R v King [2009] NSWCCA 117 a case involving s 66A and where there were matters on a Form 1. The Court stated: 31 One of the difficulties in this matter is that the Judge did not approach the task of determining the relevance of the standard non-parole period in the way that decisions of this Court have required. There is a staged approach that the Judge failed to follow. That approach was set out in MLP v R [2006] NSWCCA 271; 164 A Crim R 93 at [33] and approved in Mencarious v R [2008] NSWCCA 237. The Judge was first to assess the objective seriousness of the offence, then to consider those matters in s 21A that either aggravated or mitigated the offending. The Judge next should have considered the matters on the Form 1 and the affect that they would have upon the assessment of the appropriate sentence for the offence. Then, having reached that stage and having determined the appropriate sentence with regard to the standard non-parole period, the Judge was to apply the discount for the plea of guilty……………. It is clear that these steps are to be taken whether or not there has been a plea of guilty. 24 This Court has frequently pointed out that the sentencing court must make an assessment of the objective seriousness of the offence with some specificity: R v Knight [2007] NSWCCA 283; 176 A Crim R 338. In R v Woods [2009] NSWCCA 55 this Court stated: 51 In relation to the s 66A offences, the Judge made a finding that they did not fall within the mid-range of objective gravity, but he said no more than that. It was open to him to make that finding, given that the offences were constituted by fellatio. But the extent of the influence of the standard non-parole period on the non- parole period imposed for each of these offences very much depended upon whether the offences were just below, moderately below, or well below the mid-range of objective gravity. A failure to approach the task in this way has resulted in this Court finding that the sentencing discretion has miscarried. Although this has generally resulted in an error being identified upon a Crown appeal, the same must apply to an offender's appeal. 25 As the Crown has pointed out, the Judge did describe the conduct as "quite a significant serious offence" and as comprising "very significant criminal activities". He also embarked upon a consideration of whether the conduct was more or less heinous than other types of sexual conduct falling within the scope of the section. But he never made any attempt to assess where the objective seriousness of the particular conduct fell within the range of offending covered by the section. This of course is not determined simply by the nature of the sexual intercourse. This failure must mean that his discretion miscarried. 26 The Crown submitted that his Honour must have determined that the offending was within mid-range in objective seriousness. I am not prepared to draw that inference. But even if I were, a consideration of the authorities in this Court would suggest that such an assessment would have been erroneous. 27 The relevance of the standard non-parole period in s 66A offences was considered in R v AJP [2004] NSWCCA 434; 150 A Crim R 575. That was a Crown appeal against a sentence imposed after a plea of guilty for an offence of fellatio involving an 8 year old girl. Remarkably neither counsel drew his Honour's attention to what is a leading case on the standard non-parole period and one that was highly relevant to the factual situation that was before his Honour. 28 Counsel for the applicant at the sentencing hearing stated that the only relevant decision he could find was RJA v R [2008] NSWCCA 137, a case that incidentally refers both to MLP and AJP but was concerned with penile and digital penetration. However counsel did not have a copy of the decision but merely "a summary from the Public Defender's Office". Although the Crown offered to obtain a "full copy", it does not appear that one was provided to the judge. His Honour appears to have thought that RJA was a Crown appeal, which it was not. However his Honour referred to the sentence imposed in that case, a non-parole period of 13 years, and expressed the view that it was "a significantly more serious case than this". 29 It is unfortunate indeed that neither of the parties provided the Judge with the assistance to which he was entitled by a proper reference to decisions of this Court that might have informed his Honour first as to the appropriate way to approach the task before him and secondly the relevant matters that he had to consider, for example the relevance of the type of intercourse. Reference was made during addresses to the decision in R v Davis [1999] NSWCCA 15 in relation to the seriousness of different forms of intercourse, but that decision and this issue had been reconsidered in AJP. 30 In my opinion the first ground of appeal is made out and this Court must re-sentence the applicant. 31 On the face of it the sentence imposed by the Judge, taking into account the standard non-parole period and the offences on the Form 1, appears to be within the range available to him. This is especially so having regard to the seriousness of the offences on the Form 1 and the standard non-parole period of 15 years for the offence for which sentence was imposed. A non-parole period of 9 years is a substantial reduction from the standard non-parole period even after a plea of guilty. But an examination of relevant cases in this Court leads strongly to the conclusion that the sentence was excessive. 32 In AJP the complainant's uncle, aged 22 at the time of the offending, had forced the child as punishment for her misbehaviour to fellate him and then to sit on his lap upon his exposed penis. He was sentenced for an offence contrary to s 66A relating to the fellatio and an indecent assault that was taken into account on a Form 1. The Crown appeal was allowed and the respondent sentenced to imprisonment for 5 years with a non-parole period of 2 years 6 months. 33 In that case the judge had concluded that the offence was in the mid-range of seriousness and on the appeal the respondent challenged that finding. As to that challenge Simpson J stated: [19]…………The principal basis for the challenge was that, as his Honour expressly recognised, many, if not most, offences against s 66A are committed in the context of a history of sexual abuse and of multiple and various offences committed against the same victim. An offence against s 66A in the mid range of objective seriousness would be one that was committed as part of a pattern or history of such abuse. Having recognised that such a history is a typical feature of s 66A offences, his Honour nevertheless considered that "not helpful" in determining what might constitute an offence in the mid range of objective seriousness. Senior counsel for the respondent contended that this indicated that his Honour regarded the absence of a history of abuse as irrelevant to the evaluation of the objective seriousness of the offence, and that this was erroneous. [20] Care must be taken, in accordance with Way ([101] — [102]) to avoid characterising a typical or common instance of the offence as necessarily one that falls within the mid range of objective seriousness. However, it is correct that the experience of the courts shows, as his Honour mentioned, that repetitive abuse is frequently associated with s 66A offences. While a pattern of behaviour is not determinative of the evaluation, that a particular offence is an isolated instance is not irrelevant to that evaluation. I accept that his Honour treated it as irrelevant, and that that was an error. [21] Another criticism made of the reasoning process which led the sentencing judge to conclude that the offence was one of mid range gravity was that his Honour regarded as irrelevant the precise nature of the sexual intercourse. His Honour said: I do not think it is appropriate to go into the relative seriousness of whether sexual intercourse takes place by way of oral sex, anal sex or vaginal sex. It seems to me that each of those ways of offending against a young person is equally as bad and to try and suggest that one type of intercourse is less deserving of condemnation than another is I think to really split hairs where it is inappropriate to do so. [22] Senior counsel for the respondent referred this Court to the decision of the High Court in Ibbs v R (1987) 163 CLR 447. The Court wrote: The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. [23] In R v Davis [1999] NSWCCA 15 Wood CJ at CL wrote: [66] In Ibbs v R … the High Court rejected the proposition that each kind of sexual penetration as defined in the section, there under consideration, was to be regarded as neither more nor less heinous than another. The Court said that such a proposition cannot be accepted. It appears to me that any other view would beggar common sense, and that penile/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A … [24] It might be true, as senior counsel suggested, that penile/vaginal intercourse would, in the circumstances, have amounted to a more serious offence. But does that avail the respondent? Let it be supposed that his Honour had not excluded as irrelevant the nature of the sexual activity in question. It is difficult to think that that of itself would have led him to the conclusion that the offence was of something less than mid range gravity. It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A (and defined in s 61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the mid point of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio. Had his Honour considered the nature of the sexual intercourse as relevant, he must, in my view, have come to the view that enforced fellatio falls somewhere in the middle, or towards the upper end, of that scale. [25] Other appropriate areas of inquiry in the consideration of the objective seriousness of a s 66A offence are, for example, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim. Although the sentencing judge was fully conversant with the facts of the offences, he has not explicitly considered these matters in the specific context of the evaluation of objective seriousness. [26] Here, the respondent was not alleged to have used threats or pressure to secure the complainant's compliance, nor to ensure her subsequent silence: there was little if any force or coercion — it seems the respondent relied upon his natural authority as a person in charge of the complainant and her compliance resulted from her acceptance of that authority. The respondent did, however, tell the complainant that she could extricate herself from the trouble she was in for her rowdy behaviour by complying with his demands; and he abused a position of both trust and authority (taking these matters into account does not contravene the principle in R v De Simoni [1981] HCA 31; 147 CLR 383 because there is no aggravated form of the offence which would be constituted by either of those circumstances.) 34 This Court held that the offence in that case was "somewhere below the mid range" of an offence falling within s 66A. It should be noted that in AJP the respondent was both in a position of trust and authority to the child as at the time he was babysitting her while her mother, the respondent's sister, was out. The Court also took into account that the harm to the child was substantial as revealed by the victim impact statement. 35 In MLP the applicant was convicted after trial of one count under s 66A being penile intercourse of the vagina of his daughter aged 9 years. The hymen was torn by the act of intercourse. The offence was treated as an isolated incident. It was held that the offence was of mid range seriousness. Special circumstances were found and the applicant was sentenced by the Court to a term of imprisonment with a non-parole period of 11 years and a balance of term of 5 years. It should be noted that this was a sentence imposed after trial. 36 In RJA this court held that each of two acts of penile intercourse by a father on his daughter who was aged 8 was in the mid range of offending for an offence under s 66A. An offence of digital penetration upon the child was held to be less than mid range. However, the penile penetration was not of the vagina, but of the genitalia, and was committed by the applicant rubbing his penis against her labia. In coming to the opinion that the penile penetration offences were mid range, Spigelman CJ stated at [52]: 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. 37 It should be noted that the Court on allowing the appeal imposed a total sentence of 13 years. But this was a sentence imposed after trial for offences involving two counts of penile penetration by a father upon his daughter. There was no discount for a plea of guilty. 38 R v PGM [2008] NSWCCA 172 the Court was concerned with a Crown appeal in respect of sentences imposed for a number of sexual assault offences committed by a neighbour against a child of the age of 6 or 7. There were three offences contrary to s 66A involving two offences of cunnilingus and one of penile penetration of her vagina to a slight degree. The sentences were imposed after trial. The trial judge found that the offending was less than mid range. Fullerton J stated: 38 Accepting that an assessment of where in a range of notional cases a particular offence might fall is not easy or capable of precise assessment, I am of the firm view that while it was open to his Honour to differentiate between the acts of cunnilingus and penile penetration, and to emphasise the absence of any physical harm that resulted from that offending or the indecent assaults, his Honour failed to give adequate weight to the breach of trust involved in the respondent's sexual mistreatment of the child and to her very young age. However, despite the fact that a proper weighing of these factors would justify a finding of mid range offending I am not persuaded that his Honour's assessment of the objective seriousness in the three counts of sexual intercourse as being less than mid range was an error (see House v R (1936) 55 CLR 499). The Court allowed the Crown appeal and imposed a sentence for each of the sexual intercourse offences comprising a non-parole period of 6 years and a balance of term of 3 years. 39 In King the respondent, an intruder in the home of the complainant, aged 4, digitally penetrated her while she was in her bed. In allowing the Crown appeal the Court stated: 36 The respondent argues that it was open for his Honour to find that digital penetration was less serious than penile penetration and this was a very significant fact in the assessment of the degree of criminality. But it has been made clear that it is not a case of simply considering the nature of the penetration in isolation as being ranked in some form of hierarchy: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575. What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is. The simple fact is that had the intercourse in this case been penile penetration it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case the seriousness of the offence may have been above mid range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range. 40 The Court held that the offence was "only slightly below mid range in seriousness". There were matters under s 21A of aggravation. The Crown appeal was allowed and the respondent sentenced to imprisonment with a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months. 41 In Woods this Court was concerned with a Crown appeal following pleas of guilty to 14 offences with another 7 matters on a Form 1. These were offences committed upon young males, the youngest being aged 8, by the respondent, who was aged 23 and 25 at the times of the offending. There were four offences contrary to s 66A, three involving fellatio. The Court stated: 54 In the present case, we assess all of the s 66A offences as moderately below the mid range of objective gravity. The three offences against ME were committed when the victim was eight years old, a significant factor in the assessment of objective gravity: MLP v R [2006] NSWCCA 271; 164 A Crim R 93. One of them (sequence no. 3) was committed in the presence of another child. The offence against NB (who was just under ten years of age) was committed while the respondent and the victim were watching a pornographic video and when the respondent occupied a position of trust towards him. In addition, it must be borne in mind that these offences were part of a pattern of conduct on the respondent's part, which displayed "grooming" characteristics. 42 The Court upheld the Crown appeal and sentences of imprisonment with a non-parole period of 3 years with a balance of term of 3 years were imposed for the s 66A offences. The aggregate non-parole period for all offences was 6 years and 6 months. 43 It should be noted that s 66A was amended as from 1 January 2009 to include an aggravated offence that carries a maximum penalty of life imprisonment; s 66A(2). One of the circumstances of aggravation is that the child is under the authority of the alleged offender. This amendment should be noted when considering sentences imposed for offences after the section was amended. 44 This review leads me to the opinion that some lesser sentence should be imposed than that determined by the Judge. The offence for which the applicant was to be sentenced involved an isolated act of fellatio upon a 9 year old complainant. Her age was not an aggravating factor as the offence applies to children aged less than 10 years. The applicant was not in a position of authority but there was some breach of trust involved in that the child had been playing in his yard as a neighbour and he should be taken as having accepted some responsibility for her welfare. The offence was aggravated in that there was an element of force involved. The offence was opportunistic but this is not a significant mitigating factor as this is common to child sexual assault offences: King at [43]. 45 Because there was no victim impact statement the Judge held that he could not make a finding about whether there was any continuing harm caused to the child. That was not a mitigating factor. In King this Court held: 40 The fact that the Judge had no evidence of prolonged damage to the child is of no mitigating value……………... 41 No one could know at the date of sentencing what emotional or psychological harm might have been occasioned to the child in the long term. The early complaint makes it obvious that the child knew that the conduct was wrong and that she found it distressing. It is significant that the act was committed by a stranger. It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender. It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious. It was the appreciation of the likelihood of harm resulting that Mason P saw as changing the community attitude to sexual assaults against young children: see R v MJR (2002) 54 NSWLR 368 at [57]. 46 The offence was aggravated by the fact that it was committed in the presence of another child. 47 There are reasons to depart from the standard non-parole period. The offence was significantly below mid range in objective seriousness. The applicant pleaded guilty. I also take into account the findings that his Honour made in respect of the subjective mitigating factors except there was no relevance in the delay between charge and the date of sentencing and the reference to the decision in Todd was unwarranted: see R v Borkowski [2009] NSWCCA 102 at [37] to [42]. 48 In determining the ultimate sentence to be imposed I take into account the matters on the Form 1. I have given particular weight to the s 66A matter. 49 In the event that the Court was required to resentence the applicant an affidavit was relied upon indicating his progress in custody through reports and certificates of achievement. They do not have any great bearing on sentence except to indicate that his Honour's finding that the applicant had reasonable prospects of rehabilitation is supported. 50 Many of the sentences to which I have referred were imposed after Crown appeals and it should be accepted that they were set as the lowest sentence in the available range in order to provide for double jeopardy. In my judgment the appropriate sentence taking into account the matters on the Form 1 but before discount should be 11 years. A discount of 25 per cent for the plea of guilty reduces the sentence to 8 years 3 months. 51 The Judge found that there were no special circumstances. He did so for the following reason: ……..I have given some thought as to whether I should adjust the non parole period and the parole period. Normally in the case of a first offender and particularly one of advance years, one would significantly interfere with the statutory ratio between the non-parole period and the total term of imprisonment. But in this case I have decided not do so because it seems to me that one has to give effect to the two matters which are the subject of the Form 1. Ultimately this incident involved three juvenile victims. 52 With respect I do not understand this line of reasoning. However, it was not argued on behalf of the applicant that the Court should find special circumstances. The simple fact that it is the applicant's first time in custody is not a basis upon which I would find special circumstances. The applicant's age is a matter taken into account in determining the total sentence and does not itself suggest that the non-parole period should be further reduced. 53 I propose the following orders: 1. The application for leave to appeal granted and the appeal allowed. 2. The sentence imposed in the District Court is quashed and in lieu the applicant is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 2 months with a balance of term of 2 years 1 month. The sentence is to date from 14 May 2007 and the applicant is eligible to be released to parole on 13 July 2013. 54 HISLOP J: I agree with Howie J. ********** 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. 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