Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HJWG v R [2011] NSWCCA 50 Hearing dates: 16 February 2011 Decision date: 01 April 2011 Before: McClellan CJ at CL at [1] Johnson J at [36] McCallum J at [37] Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIMINAL - sentence appeal - sexual assault - objective seriousness - manifest excess - appeal dismissed Legislation Cited: Crimes Act Cases Cited: House v The King (1936) 55 CLR 499 R v Eedens [2009] NSWCCA 254 R v Johnson [2004] NSWCCA 140 R v McEvoy [2010] NSWCCA 110 R v Sellars [2010] NSWCCA 133 Category: Principal judgment Parties: HJWG (Applicant) The Crown Representation: Counsel: M Johnston (Applicant) J Pickering (Crown) Solicitors: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2009/142624 Decision under appeal Date of Decision: 2010-02-11 00:00:00 Before: English DCJ File Number(s): 2009/142624 Judgment 1McCLELLAN CJ at CL : The applicant pleaded guilty to 4 charges of sexual assault committed against his daughter. They were: (1)Count 1 - between 11 August 2004 and 10 August 2005 - assault and commit act of indecency complainant under 10 years, namely 7 (Section 61M(2) Crimes Act ). The maximum penalty for this offence is ten years imprisonment. There is a standard non-parole period of 8 years. (2)Count 2 - between 11 August 2004 and 10 August 2006 - sexual intercourse with a person under the age of 10 years, namely 7 or 8 (Section 66A Crimes Act ). The maximum penalty for this offence is 25 years imprisonment. There is a standard non-parole period of 15 years. (3)Count 3 - between 11 August 2006 and 10 August 2008 - assault and commit act of indecency, in circumstances of aggravation, namely under authority (Section 61M(1) Crimes Act ). The maximum penalty for this offence is 7 years imprisonment. There is a standard non-parole period of 5 years. (4)Count 4 - between 11 August 2006 and 10 August 2008 - assault and commit act of indecency, in circumstances of aggravation, namely under authority (Section 61M(1) Crimes Act ). The maximum penalty for this offence is 7 years imprisonment. There is a standard non-parole period of 5 years. 2The sentencing judge imposed the following sentences: (1)Count 1 - imprisonment for 1 year and 10 months and 15 days commencing 3 December 2009 with a non-parole period of 1 year 1 month 15 days. (2)Count 2 - imprisonment for 9 years commencing 3 December 2011 to 2 December 2020 with a non-parole period of 6 years from 3 December 2011 to 2 December 2017. (3)Count 3 - imprisonment for 4 years 6 months commencing 3 June 2010 to 2 December 2014 with a non-parole period of 2 years 8 months 11 days. (4)Count 4 - imprisonment for 4 years 6 months commencing 3 December 2010 to 2 June 2015 with a non-parole period of 2 years 8 months and 12 days. 3Accordingly the aggregate term of imprisonment was 11 years with an effective non-parole period of 8 years. The sentencing judge made a finding of special circumstances and provided a ratio of non-parole period to the head sentence of 72.72%. 4The relevant facts have been summarised by the applicant. "The applicant is the natural father of the complainant, MGS. The complainant was born on 11 August 1997. In 2001 the marriage of the applicant and the complainant's natural mother broke down. The parents remained living under the same roof until the beginning of 2007. In 2007 the applicant moved out to other accommodation but continued to have regular access with the complainant on an informal basis. On 4 January 2009 the applicant brought the complainant back home to her mother following an access visit. The mother observed the complainant was visibly upset. The mother said to the applicant, 'Do you want to run this one by me?' The applicant responded, 'Ooh yeah, it's a biggie, you better take a seat.' The applicant said, 'You have more power than ever, eighteen months to two years ago my head wasn't right and I touched MGS inappropriately.' On 12 January 2009 the complainant attended the Penrith Joint Investigation Response team office at Emu Plains and participated in an electronically recorded interview. Count 1 - The complainant disclosed an incident which occurred when she was around 7 years of age. She stated that the incident occurred at the parents' shared premises at Blaxland. The complainant stated that one evening she went to the bedroom of the applicant where he was reading a book and the television was on. The complainant stated that a television advertisement came on depicting 2 adults kissing in the front seat of a motor vehicle whilst they were being 'watched' by their children who were shocked. The complainant stated that she asked the applicant if she could 'practice' with him. The applicant agreed and a short time later the applicant kissed the complainant on the mouth and put his tongue inside her mouth. The complainant stated that this was 'gross' and tried to keep her tongue away from the applicant's tongue. Count 2 - A further incident was described as occurring when the complainant was 7 or 8 years. The complainant said that she and the applicant were having a shower together and they were both naked. The complainant stated that the applicant started talking about the complainant going out and being raped. The applicant then inserted a finger into the complainant's anus. She states that it 'went right up' and 'really hurt.' Count 3 - During the record of interview the complainant disclosed another incident when she was aged 9 or 10. She stated that she was on an access visit to the applicant's home at Lawson. One morning she lay next to the applicant whilst they watched a children's program on television. The applicant started to rub the complainant's back, then after a while moved his hand to her bottom. He rubbed his hand on the inner cheek of the bottom. He did not penetrate her anus. The complainant stated that the applicant then rubbed his fingers up and down around the complainant's vagina but did not penetrate the vagina. Count 4 - The complainant stated that while Count 3 occurred she asked the applicant if she could touch his penis. He replied, 'Yes, by all means.' The applicant told her to 'squeeze it really hard' . The complainant placed her hand on the applicant's penis and squeezed. The complainant told police she wanted to touch his testicles. She told police that just after that occurred the applicant said he was going to have a nap. The applicant told the complainant she could touch his testicles. The applicant put the complainant's hands on his testicles and said, 'Don't worry you can feel them.' The applicant kept the complainant's hands on his testicles for 2 seconds. Counts 3 and 4 were alleged to have occurred between 11 August 2006 and 10 August 2008 when the complainant was 9 or 10 years old." 5The applicant was aged 54 at the time of sentence. He left school at Year 10 and has worked as a director and producer of television. He gave evidence at the sentencing hearing when he expressed remorse for his actions. 6The applicant has been assessed for his static and dynamic risk factors and has been placed in the low range of risk for sexual reoffending. He participated in a community based sex offender treatment program prior to being sentenced. That program was conducted by the Rev Dr Peter Powell who assessed his risk of reoffending as being in the low range but was assessed as likely to benefit from psychotherapy and treatment. 7The applicant raised four grounds of appeal. Ground 1: The sentencing judge erred by failing to properly assess the objective seriousness of the offences. 8The sentencing judge found in relation to count 1 that "it is an offence which falls below the mid range of objective seriousness for offences of a like nature." 9In relation to count 2 her Honour found that "it is a matter falling below the mid range envisaged by the legislature when regard is had to all the circumstances. It remains however an objectively serious offence and warranting punishment by fulltime custody and nothing else will suffice." 10In relation to count 3 her Honour said "it is an offence which falls above the mid range of objective seriousness envisaged for like offences." 11In relation to count 4 her Honour said "an offence also falling above the mid range of objective seriousness." 12The applicant criticised her Honour's findings emphasising that this Court has said on more than one occasion that greater particularity in defining the objective seriousness of each offence was required. The Crown accepted that although her Honour's general assessment of the objective seriousness of each of the offences was appropriate she did not give sufficient detail of where the matter fell in the range of objective seriousness ( R v Sellars [2010] NSWCCA 133; R v Eedens [2009] NSWCCA 254). 13The approach which her Honour took to these findings was essentially the same approach which she took in R v McEvoy where Simpson J in this Court described her Honour as making an error of process ( R v McEvoy [2010] NSWCCA 110 at [89]). Her Honour's decision in the present matter was handed down before the judgment of Simpson J was published in McEvoy . 14Her Honour should have provided greater detail with respect to her findings. To merely indicate that the offence fell above or below the mid range is insufficient. However, as will be apparent from these reasons, I am not persuaded that error justifies the intervention of this Court. 15I do not accept the applicant's submission that an error of process such as this takes this Court directly into the realm of resentencing the applicant. The decisions of this Court in Douar v R [2005] NSWCCA 455; 159 A Crim R 154 and Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 do not assist the applicant in this respect. Ground 2: The sentencing judge erred in finding that the objective seriousness of count 4 fell above the mid range of objective seriousness. 16I have already related the particular facts with respect to count 4. The offence occurred at the same time as count 3, both counts being offences of aggravated indecent assault. 17It was submitted by the applicant that because count 4 occurred at the same time as count 3 and was essentially a part of the same sequence of events the criminality of both could potentially have been encompassed in a single count. Although the prosecutor elected to proceed with two separate offences it was submitted that it was an error to assess the objective seriousness of count 4 as falling above a mid range offence. It was further submitted that the facts of count 4 are more descriptive of an act of indecency as opposed to an indecent assault. The facts described the complainant asking if she could touch the penis of the applicant, the applicant verbally encouraged that conduct and the complainant complied. It was submitted that these acts standing on their own would not amount to an indecent assault which only occurred when the applicant put the complainant's hands on his testicles and kept them there for 2 seconds. 18The applicant submitted that although each case must be understood on its own facts, there being no fixed hierarchy of seriousness, both the duration of the offence and the extent of sexual invasion placed the offence at the lower end of the scale of objective seriousness. The degree of physical contact was minimal and so it was argued well below the characterisation made by the sentencing judge "as being above the mid range of seriousness." 19The respondent submitted that her Honour's finding was open and emphasised the fact that the charge involved the applicant's natural daughter who was aged 9 or 10 at the time of the offence. The offence was a gross breach of trust committed in the child's home and was an incident in their ongoing relationship. 20This Court has emphasised on a number of occasions that a finding of where an offence lies on the scale of objective seriousness is a finding of fact and only reviewable in this Court on the principles stated in House v The King (1936) 55 CLR 499. In R v Johnson [2004] NSWCCA 140 at [36] Simpson J emphasised that this Court would only intervene if there was an error in the application of a principle, a failure to have regard to relevant matters or that the finding was not open on the evidence. 21Mindful of these considerations I am not persuaded that an error has occurred in the present case. I accept, as the applicant emphasised that the offence was brief in duration, the assault taking place over a matter of seconds. However the act of indecency which the applicant committed makes the offence significantly more serious. The offence was committed on the applicant's natural daughter who was aged less than 10 years. The applicant allowed his daughter to touch his penis, telling her to "squeeze it real hard." Soon after, the applicant told his daughter that she could touch his testicles, with him putting her hand on his testicles saying "Don't worry you can feel them." All of this was done for the purpose of self gratification. Although the assault was unusual in that it did not involve the offender indecently touching the complainant it was nevertheless a serious incident. That offence involved the applicant exploiting the curiosity of his daughter and satisfying his sexual urges by having her touch his genitalia. Although I may not myself have found that the offence fell above a mid range offence I am not persuaded that her Honour's finding was not open. However, it was only slightly above that range. 22I would reject ground 2. Ground 3: The sentencing judge erred by taking into account uncharged acts as an aggravating factor. 23This ground was not pressed on the appeal. Ground 4: In the circumstances of this matter the sentences were manifestly excessive. 24I have previously indicated the sentences which were imposed for the individual offences. The aggregate term of imprisonment was 11 years with an effective non parole period of 8 years. In large part the overall sentence is a result of the standard non-parole periods which the legislature has provided in relation to the individual offences. The sentence for count 2 dominates the effective sentence. This was inevitable given the nature of this offence, the sentence for which is not individually challenged. 25In relation to count 1 the maximum penalty was a term of 10 years imprisonment with a standard non-parole period of 8 years. The Act originally provided a standard non-parole period of 5 years but this was increased in January 2008 for offences "whenever committed." 26The sentencing judge found that count 1 fell below the mid range of objective seriousness. The sentence imposed for the offence was 2 years imprisonment with a non-parole period of 1 year, 1 month and 15 days. This sentence resulted from the application of a discount of 25% for the utilitarian value of the plea to a starting point of the sentence which would have otherwise have been 2 years and 6 months. 27The applicant submitted that the objective seriousness of this offence was at the lowest end of the relevant scale. The offending conduct did not involve touching the genital region of the victim. It was submitted that a kiss between a father and daughter is not of itself "indecent." The indecency arose from the use of the tongue. In the absence of evidence as to the length of the kiss it was submitted that the sentence imposed was excessive. It was further submitted that in the overall structure of these offences and sentences this offence did not warrant six months partial accumulation on top of the other offences. 28Having regard to the penalty which the legislature has defined for this offence it is difficult to conclude that the sentence imposed by the sentencing judge was not appropriate. I accept that the offence fell well below the mid range of objective seriousness and the applicant entered a plea of guilty, but when the standard non-parole period is a term of 8 years the sentence which her Honour imposed could not be considered excessive. 29Count 2 involved a single offence contrary to s 66A which the judge assessed as having an objective seriousness "below the mid range." The offence was committed in the victim's home and involved a breach of trust. The victim said that the applicant inserted his finger "right up" the victim's anus and "it really hurt." 30The maximum penalty for this offence is imprisonment for 25 years and it has a standard non-parole period of 15 years. The applicant submitted that her Honour should have determined that the offence fell moderately below the mid range of objective seriousness. However, her Honour's precise finding was that the matter fell "below the mid range envisaged by the legislature when regard is had for all the circumstances." Her Honour nevertheless found that the offence was objectively serious. 31To my mind the findings which her Honour made were undoubtedly open. Having regard to the maximum penalty and the standard non-parole period provided by the legislature the sentence imposed for this offence was not excessive. 32In relation to counts 3 and 4 the maximum penalty was imprisonment for 7 years. The offence carries a standard non-parole period of 5 years. The penalty which her Honour imposed for count 3 was a term of imprisonment of 4 years 6 months with a non-parole period of 2 years 8 months and 11 days. The penalty imposed for count 4 was also 4 years 6 months with a non-parole period of 2 years 8 months and 12 days. Again, having regard to the 25% discount provided for the utilitarian value of the plea the starting point for the individual sentences was 6 years. 33The applicant submitted that when regard is had to the fact that the maximum term of imprisonment was 7 years a starting point of 6 years was excessive. The sentencing judge allowed a partial accumulation of the sentences for these offences, 6 months was provided. The consequence of this partial accumulation was that the effective sentence for the conduct involved in counts 3 and 4 which occurred on the same day was 5 years for offences carrying a maximum penalty of 7 years. As I have previously indicated her Honour found that both offences fell above the mid range of objective seriousness, although did not make any finding as to the extent to which they were above the mid range. 34The applicant complained that having regard to the fact that they were events which occurred on the same day an overall sentence of 5 years was excessive. I do not accept this submission. Although the offences occurred on the same day they could not be considered to be part of the same sequence of criminality. The circumstances of count 3 involved the applicant touching parts of the victim's body. Count 4 involved the victim touching the applicant in his genital region. 35In these circumstances I am not persuaded that the penalty for the individual offences or the effect of the extent of concurrency provided is excessive to the extent that this Court should intervene. The sentences imposed were severe but not manifestly excessive when the prescribed standard non-parole periods are considered. 36Although I would grant leave to appeal in my judgment the appeal should be dismissed. 37JOHNSON J: I agree with McClellan CJ at CL. 38McCALLUM 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. 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. Decision last updated: 05 April 2011