Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DF v R [2012] NSWCCA 171 Hearing dates: 1 August 2012 Decision date: 17 August 2012 Before: HOEBEN JA; at [1] JOHNSON J; at [81] BUTTON J; at [82] Decision: Conviction Appeal (a) In respect of the conviction appeal, leave refused pursuant to r 4 of the Criminal Appeal Rules. Sentence Appeal (b) Appeal allowed. (c) The sentences imposed by his Honour on 25 February 2011 are quashed. (d) In lieu thereof, the appellant is sentenced as follows: (i) Count 1 - A fixed term of imprisonment of 1 year commencing 22 January 2010 and expiring 21 January 2011. (ii) Count 2 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2010 and expiring 21 January 2012. (iii) Count 4 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2011 and expiring 21 January 2013. (iv) Count 5 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2011 and expiring 21 January 2013. (v) Count 6 - A fixed term of imprisonment of 1 year and 6 months commencing 22 January 2011 and expiring 21 July 2012. (vi) Count 7 - Imprisonment with a non-parole period of 3 years commencing 22 January 2012 and expiring 21 January 2015 with a balance of term of 3 years expiring 21 January 2018. (e) The earliest date upon which the appellant will be eligible for parole is 21 January 2015. Catchwords: CRIMINAL LAW - conviction appeal - trial for seven alleged sexual offences committed in 1978-1979 - verdict by direction on one count - appellant convicted on remaining six counts - whether Markuleski direction should have been given arising from acquittal by direction- no such direction sought at trial - no miscarriage of justice - leave refused under rule 4 Criminal Appeal Rules CRIMINAL LAW - sentence appeal - whether sentences imposed failed to reflect sentencing practices in 1978-1979 - whether error in approach to appellant's good conduct since commission of offences - whether sentences manifestly excessive - error established - appellant resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Cao v R [2010] NSWCCA 109 Dousha v R [2008] NSWCCA 263 Mottram v Regina [2009] NSWCCA 210 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 Previtera v R (1997) 94 A Crim R 76 PWB v R [2011] NSWCCA 84 R v Abusafiah [1991] 24 NSWLR 531/ 56 A Crim R 424 R v Baker [2000] NSWCCA 85 Regina v Holyoak [1995] 82 A Crim R 502 R v Humphries [2004] NSWCCA 370 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 Rosenstrauss v R [2012] NSWCCA 25 SKA v The Queen [2011] HCA 13; 243 CLR 400 Ryan v R [2009] NSWCCA 183 Stephens v R [2009] NSWCCA 240 Weiss v The Queen [2005] HCA 81; 224 CLR 300 Zreika v R [2012] NSWCCA 44 Texts Cited: --- Category: Principal judgment Parties: DF - Appellant Regina - Respondent Crown Representation: Counsel: Mr RM O'Brien - Appellant Ms S Dowling - Respondent Crown Solicitors: H Schleiger - Appellant S Kavanagh - Solicitor for Public Prosecutions File Number(s): 2009/354017 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2011-02-25 00:00:00 Before: Bennett DCJ File Number(s): 2009/354017 Judgment 1HOEBEN JA: Offences and sentence On 22 June 2010 the appellant was indicted on the following counts: Count 1 - That between 1 January 1978 and 31 December 1978 at Bowraville in the State of NSW he did assault SH a female under the age of 16 years, namely 10 to 11 years and at the time of such assault did commit an act of indecency upon her. Count 2 - Further that between 1 January 1978 and 31 December 1978 at Bowraville in the State of NSW he did assault SH a female under the age of 16 years, namely 10 years and at the time of such assault did commit an act of indecency upon her. Count 3 - Further that between 1 January 1978 and 31 December 1978 at Bowraville in the State of NSW he did assault SH a female under the age of 16 years, namely 10 years and at the time of such assault did commit an act of indecency upon her. Count 4 - Further that between 1 January 1978 and 31 December 1978 at Bowraville in the State of NSW he did attempt to unlawfully and carnally know SH a girl above the age of 10 years and under the age of 16 years, namely 10 to 11 years. Count 5 - Further that between 1 January 1978 and 31 December 1978 at Bowraville in the State of NSW he did attempt to unlawfully carnally know SH, a girl above the age of 10 years and under the age of 16 years, namely 10 to 11 years. Count 6 - Further that between 1 January 1979 and 31 December 1979 at Bowraville in the State of NSW he did assault SH a female under the age of 16 years, namely 11 years and at the time of such assault did commit an act of indecency upon her. Count 7 - Further that between 1 January 1979 and 31 December 1979 at Bowraville in the State of NSW he did unlawfully and carnally know SH, a girl above the age of 10 years and under the age of 16 years, namely 11 years. 2The matter proceeded to trial before Bennett DCJ and a jury. On 7 July 2010 the appellant was found guilty on counts 1, 2, 4, 5, 6, and 7. The appellant was found not guilty on count 3 by way of a directed verdict. 3The appellant received the following sentences: Count 1 - A fixed term of imprisonment for 2 years commencing 22 January 2010. Count 2 - A fixed term of imprisonment for 2.5 years commencing 22 January 2010. Count 4 - A fixed term of imprisonment for 3.5 years commencing 22 January 2011. Count 5 - A fixed term of imprisonment for 3.5 years commencing 22 January 2011. Count 6 - A fixed term of imprisonment for 2.5 years commencing 22 January 2011. Count 7 - A sentence of imprisonment with a non-parole period of 5 years and 5 months commencing 22 January 2012 and expiring 21 July 2017, with a balance of term of 2 years and 7 months expiring 21 January 2020. 4The effective total sentence was imprisonment with a non-parole period of 7.5 years and a balance of term of 2.5 years. 5The appellant has appealed against his conviction and also against his sentence. Conviction appeal 6The appellant relied upon a single ground of appeal in relation to conviction. Ground of Appeal 1 7That the trial miscarried as the trial judge erred by failing to give an appropriate direction in accordance with the principles set out in Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at 132-135 regarding the effect on the complainant's credibility of the directed verdict of not guilty in respect of count 3 on the indictment. Factual background 8The complainant was a woman aged 43 at the time she gave her evidence. At the time the offences occurred she was aged between 10 and 11. She had moved to the town of Bowraville with her parents, who had acquired a local mixed business. She was something of an outsider and experienced episodes of bullying and was lonely. She ultimately came to know the appellant, who befriended her and offered her companionship and safety against the threat of bullying from other young people in the town. 9In the years that followed, the appellant groomed the complainant and awakened her sexually, beginning with touching and extending to cunnilingus, attempted penile penetration and ultimately penetration of her vagina with his penis in circumstances that caused her pain and consequent bleeding. 10Counts 1 and 2 were based on evidence that the appellant would meet the complainant at an area in Bowraville called "The Junction", a place where two rivers met in the town area. From there the complainant said that he led her to some underbrush and it is there that the appellant placed her on the ground, took off her underwear and commenced rubbing her vagina. The complainant said that the appellant then performed cunnilingus on her. 11Count 3 was based on evidence from the complainant that she and the appellant met at The Junction, where they proceeded to the same spot in the underbrush. She stated that he engaged in the same conduct as in counts 1 and 2, but that this time he pulled his penis out and rubbed it across her mouth and then pushed his penis into her mouth. 12Counts 4 and 5 related to two separate attempts at penetration by the appellant on the complainant. The complainant said that these attempts occurred at the same place at The Junction and that on both occasions, the appellant attempted to gently penetrate her. Upon being asked to stop, the appellant did so. In count 5 she said that the appellant attempted to utilise Vaseline to effect penetration. 13Counts 6 and 7 were based on evidence from the complainant that in the warmer months when The Junction was over-populated, the two met at a toilet block at the complainant's school after school hours. She said that the appellant put his jacket on the ground and then pulled down her underwear and performed cunnilingus on her. The appellant then attempted to penetrate her and did in fact achieve some degree of penetration but stopped upon her wriggling away from him and asking him not to proceed any more. 14In a detailed statement and in her evidence at trial, the complainant described the events which constituted count 3. Part of that evidence was that the appellant was uncircumcised. The important features of that evidence were: "(a) That they met at the same place being The Junction where counts 1, 2, 3, 4 and 5 took place. (b) That in relation to count 3, the same thing happened. It was very similar to other instances, following the same pattern. (c) That the complainant described seeing the appellant's penis stating that it was uncircumcised and that she thought this was odd because she had seen her father and brother's penises which were circumcised. (d) That the appellant asked her to come closer and motioned for her to lean down towards his exposed penis. (e) That the complainant observed that his penis was soft and that he rubbed it across her mouth and pushed it into her mouth. (f) That the complainant said that his foreskin felt soft and that his penis felt dry in her mouth. (g) That the complainant said that his penis and crotch smelt like urine. (h) The complainant thought that the entire situation was odd and wondered why anyone would engage in that behaviour." 15On the sixth and seventh days of the trial, the complainant substantially recanted her evidence in respect of count 3. In the course of cross-examination, she had been reminded of another assault by young persons, unrelated to these offences, which the appellant had witnessed. As a result of that, the complainant expressed some doubt as to the accuracy of her recollection with respect to count 3. In particular, she was no longer sure of the precise details and she was not sure whether the appellant was circumcised or not. 16Following the giving of that evidence by the complainant, his Honour withdrew count 3 from the jury and with the consent of the Crown, his Honour directed the jury to enter a verdict of not guilty in respect of count 3 at the close of the Crown case. 17The fact of the directed verdict was relied upon by both the Crown and the defence in closing addresses. Counsel for the appellant submitted that the unreliability of the complainant's evidence in respect of count 3 in a number of significant respects undermined all of her evidence in relation to the other counts and that her evidence should be disregarded. The appellant's evidence was that he was circumcised at the relevant time. The Crown, however, submitted that the complainant's willingness to admit her lack of certainty in relation to count 3 was a matter which supported her credibility generally. 18The trial judge summed up on day 12. His Honour said: "Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts, if there is a logical reason for that outcome. An example of this has already been given to you. At the close of the Crown case, I directed you to find the accused not guilty of count 3 in light of the concession that was made by Ms H that she was unsure of whether the event that she had initially described in fact occurred. Should you find the accused guilty of any offence you must not say the accused must automatically therefore be guilty of all of the offences. Likewise, should you find the accused not guilty of any of the offences, you must not say that the accused must automatically therefore be not guilty of all of the offences. However, if you were to find the accused not guilty on any count, you must consider how that conclusion might affect your consideration of the remaining charges. In this trial this exercise will be important if your finding that the accused was not guilty of any of the counts charged was because you had doubts about the reliability of the evidence of Ms H or some aspects of it. If that were so, you must consider how that conclusion might affect your consideration of the remaining charges, for in each case the success of the prosecution, the Crown case, depends upon you accepting beyond reasonable doubt the truth and accuracy of the evidence given by Ms H." 19His Honour thereafter warned the jury against returning compromise verdicts. No complaint was raised about his Honour's direction at trial. The jury returned verdicts of guilty on all of the remaining counts. 20The Crown case did not rely entirely upon the evidence of the complainant. The complainant gave evidence that she first disclosed the abuse in about 1986 to a family friend, JP, and a few years later to her father. Both the family friend and the complainant's father gave evidence which supported the complainant's evidence on that issue. 21The complainant reported the matter to the police in 2006. As a result, she wore a listening device to two meetings with the appellant where she confronted him over his sexual abuse of her when she was in primary school. In the course of those conversations, the appellant made various admissions including that he had performed cunnilingus on the complainant when she was in primary school. 22The appellant gave evidence at trial. He said that he did not know the complainant until 1987 when she asked him out of the blue to have sexual intercourse with her. He said that he refused, but that a week later he did have intercourse with her. The appellant said that this was what he had been referring to in the taped conversations. Appellant's submissions on conviction 23The appellant submitted that his Honour should have given a direction regarding the use or impact of the directed verdict on the credibility of the complainant. This was because the Crown's case relied upon a common set of facts. The directed verdict on count 3 would logically have impacted upon the credibility of the complainant in relation to her evidence in respect of all of the counts. This was because the complainant's evidence generally followed a structure of referring to generic common facts and then to additional evidence regarding the specific incident set out in that count. 24The appellant submitted that in those circumstances it was fundamental to the fairness of the trial that the jury be properly directed by the court and that their attention be drawn to the potential use of the directed verdict in assessing the complainant's evidence on the remaining counts. Consideration 25The only matter complained of is a failure to give a direction in accordance with the judgment in Markuleski v R. Importantly, the appellant did not assert that the guilty verdicts were unreasonable or not supported by the evidence. The appellant did not submit that the verdicts were inconsistent in circumstances where there was no logical and reasonable basis for the inconsistency. 26Markuleski was an appeal concerning inconsistent verdicts. It involved multiple counts that were alleged to have occurred over a period of 12 months. Each offence concerned a different event, and the Crown case relied entirely on the uncorroborated evidence of the complainant. A verdict of not guilty on one count necessarily involved a rejection of the complainant's credibility. 27When considering the directions required in that case, Spigelman CJ said: "185 Nevertheless, the case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant's evidence ought to be taken into account when assessing that witness's evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so. 186 In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count." 28In R v Ford [2006] QCA 142 at [124] Keane JA outlined the circumstances in which the giving of a Markuleski direction might be appropriate: " 124 ... In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant's account of what occurred. 125 It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer "to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count." (Markuleski at [121]). The purpose of such a reference is to ensure fairness to the accused "in a word against word case" (Markuleski at [121]) by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count." 29In Markuleski Spigelman CJ observed that such a direction was not required where the facts of the case and the conduct of the trial did not suggest the need for a warning to restore the balance of fairness. His Honour noted that the absence of such a direction was not necessarily fatal (at [187]). 30In Markuleski Wood CJ at CL said: "264 In this regard, I similarly share the concern expressed by McHugh J in KRM v The Queen (2000) 75 ALJR 550, and by Spigelman CJ in this appeal, as to the danger of adding ever more directions and warnings to the repertoire of a trial Judge. It is not to be forgotten that the purpose of a summing up is not to deliver an impeccable and exhaustive lecture on the law, or even upon all matters that might conceivably impact on the fact finding process. Nor is it to state the obvious. Rather, it is to explain the relevant law in the light of the issues which arise, and to give the jury such assistance as they need in determining those issues upon the facts relevant to them." 31The basis for the different verdicts in this case is quite different to that which arose in Markuleski. In Markuleski the not guilty verdict indicated that the jury must have rejected the complainant's evidence on that count. In this case, the complainant herself expressed uncertainty about count 3 and the count was then withdrawn from the jury. Unlike Markuleski, the directed not guilty verdict did not necessarily indicate a rejection of the complainant's evidence or shed any light on the jury's attitude to the complainant's credibility. 32In those circumstances, the direction given by the trial judge was adequate and appropriate. Moreover, the issue of the complainant's credibility and the effect upon it of the directed verdict, was forcefully and somewhat dramatically put to the jury by counsel for the appellant at trial. There was no doubt that the jury was well aware of this challenge to the complainant's credibility. This was not one of those cases where the authority of the judge was required to make sure that the issue was properly considered by the jury. 33It should be noted that when asked, no explanation was provided for why an application was not made to the trial judge for an additional direction. While that may lead to an inference that such a failure was due to an oversight, it also allows the inference that those conducting the trial for the appellant did not consider that such a direction was necessary. As a result, it is necessary for the leave of the court to be obtained pursuant to r 4 of the Criminal Appeal Rules for this ground of appeal to be pursued. 34Leave to rely on an error to which no objection has been taken at trial will be granted only where the appellant can demonstrate that the ground is arguable and that a miscarriage of justice has resulted so that this Court should grant leave to permit the ground to go forward. (R v Abusafiah [1991] 24 NSWLR 531 at 536; 56 A Crim R 424; Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 319 [72]; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at 352 - 353 [22] - [24].) 35For the reasons indicated, I am not satisfied that the applicant has an arguable case that the trial judge made an error of law, nor am I satisfied that the applicant's conviction is otherwise a miscarriage of justice. This ground of appeal has not been made out. 36If I am found to be incorrect in that conclusion, this is an appropriate case for the application of the proviso to s 6(1) Criminal Appeal Act 1912. That section provides: "6(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion ... that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice ... provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 37Guidance as to the application of the proviso has been provided by the High Court in Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [35] - [36] and [39] - [45]; and SKA v The Queen [2011] HCA 13; 243 CLR 400. The Crown case in this matter was extremely strong. The complainant's evidence was cogent and consistent. She endeavoured to provide an accurate rendition of her memories, even to the extent of describing the appellant's treatment of her as "gentle, playful" and "gentle and loving". The concessions made by the complainant in respect of count 3, are consistent with that assessment of her evidence. 38The complainant's evidence was supported by a disclosure to the family friend when she was 16, and to her father when she was 21. It was also powerfully supported by the admissions made by the appellant in the recorded conversations. 39In the first recorded conversation (exhibit C), the appellant accepted that he had performed cunnilingus on the complainant and that sexual contact had occurred when she was in primary school. He agreed with her that she was in "fourth class, fifth class". 40In the second recorded conversation (exhibit D), the appellant agreed that he had performed cunnilingus on her when she was in primary school and had no pubic hair. When she raised the carnal knowledge episode with him, he responded "I am very sorry for what happened but it's never going to happen again with another young kid". And later, when the actual penile penetration was raised with him, he responded "Yeah I'm sorry I done all that to you ...". These admissions were entirely consistent with the complainant's evidence. 41Finally, the appellant's evidence, both in his ERISP and at trial, as to how he met the complainant and how a sexual relationship developed between them strained credulity and was frankly unbelievable. There was a clear inconsistency between the ERISP and his evidence at trial. In the ERISP he denied having any sexual contact with the complainant but agreed that he had done so in his evidence at trial. 42On the basis of my examination of the whole of the evidence, I am satisfied beyond a reasonable doubt that the appellant committed the offences of which he was convicted and that the proviso should apply. Sentence appeal 43The counts on which the appellant was convicted and the sentences which he received have already been set out. The maximum sentences for those offences should be noted. In respect of counts 1, 2 and 6 the maximum penalty was imprisonment for 6 years. In respect of counts 4 and 5, the maximum penalty was imprisonment for 5 years. In respect of count 7, the maximum penalty was imprisonment for 10 years. 44The complainant provided a Victim Impact Statement to the court. His Honour noted from that document that the complainant had a troubled life and that she attributed her problems to what occurred to her at the hands of the appellant. While his Honour was not prepared to accept that all of the complainant's problems were due to the appellant's conduct, he was prepared to accept that some of her difficulties were due to what had occurred to her with the appellant. 45His Honour considered the appellant's subjective case. He was of Aboriginal descent, being born in 1950. He was soon to turn 61. Before these convictions he had a clear record, save for one matter in April 2008 when he was charged with common assault for which he received a bond in the Local Court. The common assault was unrelated to these offences. 46The appellant was the fifth child in a family of 14 siblings raised in Bowraville. His upbringing was enjoyable and stable. He had been in a de facto relationship with his present partner since 1973. They had four children. His partner and the children supported him in relation to these offences. 47The appellant had been in full employment for most, if not all, of his life. In custody he had been well behaved. His Honour was not prepared, however, to find that the appellant was remorseful. In relation to the offences, the pre-sentence report stated: "The offender stated that he vehemently disagrees with the police facts pertaining to the offences. During the preparation of this report, the offender admitted having sexual intercourse with the victim but claimed the victim was 18 years old at the time. He advised that he believes he is innocent. As such the offender's attitude to the offences cannot be ascertained." 48At the time of sentencing, the appellant had some health issues. He had undergone heart surgery during 1996 and had two stents inserted. He underwent a triple bypass in relation to his heart in 2004. He was required to take medication for his heart condition on an indefinite basis. The appellant also had some condition in his foot which caused him to limp. A psychologist's report was before his Honour which indicated that the appellant had a low risk of recidivism. 49Evidence was given on behalf of the appellant by his daughter. She said that there were two siblings and two half siblings born to the appellant's de facto partner. The appellant had raised the half siblings as his own children. She described the appellant as a hard worker and a good provider. He always put his family first. His Honour said that it was quite apparent that she had great affection for her father. 50Despite this strong subjective case, his Honour determined that the criminality involved in the offending was of a high order. His Honour said: "It is deserving of punishment and that punishment must be adequate. There is a need to make clear to the community that the abuse of children in circumstances such as this will not be tolerated and would be dealt with appropriately. There may well be little need to protect the community from the offender in light of the assessment of his risk of recidivism and it might well be that his rehabilitation is to be assessed in that light. ... He is to be made accountable for his actions. This deplorable conduct is to be denounced and the sentences must recognise the harm done to the victim over this extended period of time at such a tender age, where she was groomed and exploited for the sexual gratification that the offender pursued." (ROS 9.9) 51His Honour found that the offences were not spontaneous but were planned and persisted over an extended period of time. He noted that the offences involved the offender developing a trusting relationship with the complainant as a child, which he then abused in a most abhorrent way. There was a significant age difference with the appellant at the time being in his mid twenties. His Honour found that by reason of her age, the complainant was vulnerable. 52In relation to delay, his Honour said: "There has been a significant delay between the commission of the offences and the prosecution and now the punishment that is to be imposed. Of itself this attracts little weight in mitigation. Moreover, notwithstanding the criminal misconduct, the offender has been permitted the opportunity to prosper as well as he might in the community until he was finally exposed. On one view those detected and prosecuted near the time of the offence at a younger age have lost the opportunity to enjoy their youth or middle age in the community at large and return to the community toward the latter part of their life. The offender has not had that burden." (ROS 11.2) 53His Honour did not consider that the appellant's heart condition provided sufficient special circumstances to justify a reduction in the overall non-parole period below the statutory ratio. His Honour did, however, accept that at 60 years of age, the punishment would be more onerous for him than for someone who might be more physically able. His Honour did not place particular weight on that consideration since it was to be balanced against what his Honour had earlier said with regard to the opportunities which the appellant had had to pursue his life in the community until his conviction. 54In relation to s 44 of the Crimes (Sentencing Procedure) Act 1999 his Honour said: "The sentences will be partly accumulated so that an overall sentence will be achieved to reflect the totality of his offending. This will impact on the ratio required by s 44 of the Crimes (Sentencing Procedure) Act. Each sentence of course will be assessed according to the misconduct to which it relates. Because of the time when these offences were committed the repealed form of s 44 of the Crimes (Sentencing Procedure) Act applies and I will need to first set the term of the imprisonment in each case and then the non-parole period." (ROS 10.5) Ground of Appeal 2 The sentencing judge erred by not finding special circumstances in that offence was committed prior to the enactment of s 44 of the Crimes (Sentencing Procedure) Act 1999 55This ground of appeal does not accurately set out the basis upon which the appellant sought to challenge the sentences imposed by his Honour. The submissions in support of the ground were directed to the fact that the offences occurred in 1978 and 1979 and that the sentences imposed by his Honour should have reflected sentencing practices at that time. Accordingly, the appellant should have received a sentence with a non-parole period that constituted one-half to one-third of the head sentence as was the practice at that time. 56The Crown properly conceded that this proposition was correct. In Rosenstrauss v R [2012] NSWCCA 25, Basten JA (with whom RS Hulme J and Schmidt J agreed) said: "5 The ground of the proposed appeal is that although the sentencing judge sought to apply sentencing practices as they operated at the time of the offences, the non-parole period failed in that respect as at that time a relevant non-parole period would have been between one-third and one-half of the overall sentence period. 6 The correct approach, in terms of principle, was established by this Court in R v MJR [2002] NSWCCA 129; 54 NSWLR 368. The Court adopted the principle identified by Mason CJ and McHugh J in Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 at 632: "In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be re-sentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood." 7 Section 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act ") limits the effect of any increase in penalty to offences committed after its commencement. Consistently with that approach, the Court in MJR held that it should take into account sentencing practice as it was at the date of commission of the offence, when sentencing law and practice has changed adversely to an offender: at [27] and [31]." 57In a number of other decisions of this Court that principle has been restated: AJB v R [2007] NSWCCA 51; 169 A Crim R 32; Dousha v R [2008] NSWCCA 263 at [35]; Mottram v Regina [2009] NSWCCA 210 at [41] and PWB v R [2011] NSWCCA 84 at [64]. 58The Crown submitted that there was a countervailing principle which needed to be taken into account. It submitted that the non-parole period, which indicates the minimum period of actual incarceration that the offender must spend in full time custody, must still be proportionate to the objective seriousness of the offence. It submitted that this principle sets the lower limit to any reduction in sentence that might be thought appropriate. 59The Crown submitted that no submissions were made to the court at first instance concerning the reduction of the non-parole period. In that regard, the Crown drew the Court's attention to Zreika v R [2012] NSWCCA 44 where this Court observed that an appeal to a Court of Criminal Appeal is not the occasion for the revision and reformulation of the case presented below and that the Court will not lightly entertain arguments that could have been put but were not advanced on the plea. 60By reference to the decision in Mottram v Regina the Crown submitted that no reduction should be made to the sentences imposed by his Honour. This was because the sentences actually imposed by his Honour involved an unduly lenient application of the principle of totality. The Crown submitted that there was no proper reason why counts 4, 5, 6 and 7, which involved offences which occurred on different occasions, should be served wholly concurrently. 61At the request of the Court, the written submissions of the Crown which were before his Honour were made available. It is clear from those submissions that the Crown specifically brought to his Honour's attention that there was a different sentencing practice at the time of the offence. The Crown specifically referred his Honour to the decisions in Dousha and MJR. Unfortunately the Crown largely dismissed the effect of those cases by submitting to his Honour "that it is not possible to discern a reliable sentencing pattern for the period in question". That was not accurate as the cases clearly indicated lower sentences and non-parole periods in which the ratio to the head sentence was between one-third and one-half. 62I do not agree that circumstances of this case are analogous to those in Mottram. I accept that there was a substantial degree of concurrency in the sentences imposed for counts 4 - 5 and 1, 2 and 6. However, the actual sentences imposed, by reference to the body of case law which is now available and which indicates sentencing practices in the 1970s, are significantly heavier than those which would have been imposed at the time. 63In relation to the sentences for counts 1, 2 and 6 the fixed terms of imprisonment are the equivalent of non-parole periods. Applying the sentencing practices at the time the ratio between the non-parole period and the head sentence would have been between one-third and one-half, i.e. the head sentence at the very least would have been 4 years in respect of count 1 and 5 years in respect of counts 2 and 6. These would have been very heavy sentences for that time when the maximum penalty was imprisonment for 6 years. 64Similarly, in respect of counts 4 and 5 a fixed term of 3 years and 6 months would indicate a head sentence of at least 7 years. That is clearly out of step with the prevailing sentencing practices because the maximum penalty for those counts was 5 years. 65The most significant discrepancy arises by reference to count 7. The non-parole period of 5 years and 5 months would suggest a head sentence of 10 years and 10 months by reference to sentencing practices then prevailing when the maximum penalty was imprisonment for 10 years. 66Of course that analysis focuses only upon the ratio between head sentences and non-parole periods which were reflected in the sentences imposed in the late 1970s. It makes no reference to the question of remissions. Because that question was not specifically argued before us, nor was it raised before his Honour, nothing more need to be said about it. However, it is another indicia of the extent to which the sentences imposed in this case failed to have regard to sentencing practices in the late 1970s despite his Honour's attention being drawn to that fact. 67I am satisfied that error in his Honour's approach has been demonstrated and that the appellant will need to be re-sentenced. Ground of appeal 3 The sentencing in respect of all counts was manifestly excessive as the sentencing judge: (a) Failed to take into account that the evidence regarding all the counts placed the conduct of the offender at the lower end of the spectrum. (b) Failed to take into the good conduct of the offender. (c) Failed to properly take into account the offender's age and health. (d) Failed to find the delay in prosecution as a special circumstance under s 44 Crimes (Sentencing Procedure) Act 1999; and (e) Imposed a crushing sentence. 68The appellant submitted that by reference to the maximum penalty available for these offences the sentences imposed were heavy and could only be consistent with a finding by his Honour that all of these offences were well above the mid-range of seriousness for offences of this kind. The appellant submitted that the facts did not support such a characterisation. There had clearly been a breach of trust in the sense that the complainant was lonely and had sought protection from the appellant. There was not, however, the more serious breach of trust which occurs in families, where the offender is a relative of the victim. 69The appellant submitted that no violence or threats had been involved. On the contrary, as the complainant freely said, the appellant had endeavoured to be loving and gentle. 70The characterisation of the seriousness of an offence is essential to a matter of discretion. In this case, the way in which the appellant sought to groom the complainant was a serious aggravating factor. Nevertheless, having regard to the maximum penalties for these offences and the objective gravity of the applicant's crimes, the sentences imposed were excessive. 71The remaining aspects of ground 3 can be dealt with together. The appellant submitted that for more than 30 years since the offending he had been an exemplary citizen in regular employment and raising and providing for a family who clearly loved him. This was not one of those situations where an offender was promising to rehabilitate himself. The 30 year history of exemplary conduct demonstrated clearly that he had rehabilitated himself. 72The appellant submitted that not only did he have genuine health issues but it was inevitable that they and his age would make his time in prison more difficult than for a younger person. That hardship was exacerbated because of the delay in prosecution and because unexpectedly and late in life, very heavy sentences of imprisonment had been imposed on him. 73The Crown submitted that his Honour was correct to take into account the appellant's 30 or more years of freedom as a negative consideration. The Crown submitted that had justice been properly served at the time, the appellant would have been convicted of these offences within a relatively short time of their occurrence and would not have been able to enjoy all of those years of freedom. 74In relation to the appellant's health and age, the Crown relied upon the observation of Wood CJ at CL (with whom Grove J agreed) in R v Maarbani [2001] NSWCCA 509 where his Honour quoted with approval from R v Sopher [1993] 70 A Crim R 570: "Health and age are relevant to the length of any sentence but usually, of themselves, would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live, or need intense treatment, which cannot be provided in gaol. There may be circumstances where, to keep a person in gaol would probably lead to his early death, and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health, or shortening of life. The Department of Corrective Services has the responsibility of providing for health care, but there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases, what the Department is able to provide will suffice. If gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant matter to take into account." 75In relation to delay, the Crown accepted that a lengthy delay between offending and charging could be taken into account in favour of an offender. The Crown submitted that there was no rule that this must happen. It submitted that each case depended upon its own facts. There was no rule of law that delay was always a detriment to the offender, although it often will be: Regina v Holyoak [1995] 82 A Crim R 502 at 508; R v Humphries [2004] NSWCCA 370 at [19]. 76The Crown submitted that in this case delay had not been a detriment for the appellant. There was no evidence that he had lived in an agony of uncertainty as to whether he would be prosecuted. On the contrary, he still denied that the offences occurred. The Crown did, however, accept that the lengthy delay between the offences and prosecution had demonstrated the applicant's rehabilitation in that he had not offended during that period and that this was a matter recognised by the sentencing judge and one which his Honour properly took into account. 77There are inherent problems in grounds of appeal that argue that a sentencing judge has given insufficient weight to different aspects of an applicant's subjective case. In Stephens v R [2009] NSWCCA 240, Grove J (McClellan CJ at CL and RA Hulme J agreeing) observed that such a ground tacitly concedes that some weight has been placed on the factor by the sentencing judge. If that is so, it is difficult to successfully maintain that the overall sentencing discretion has miscarried. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined - R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]. 78It is clear that his Honour was aware of the appellant's health issues and of his good character and stable family life because he specifically referred to all these matters. In relation to the health issues, no medical evidence was placed before the court. The only information concerning them was in the Pre-sentence Report. Accordingly, other than ground 3(a), I am not satisfied that the other grounds of appeal have been made out. Conclusion 79For the reasons set out above, it is necessary to re-sentence the appellant. The individual sentences and the overall sentence need to be significantly reduced to reflect sentencing practices at the time of the offending. The aggregate head sentence will involve imprisonment for 8 years with a non-parole period of 5 years. 80I propose the following orders: Conviction Appeal (a) In respect of the conviction appeal, leave refused pursuant to r 4 of the Criminal Appeal Rules. Sentence Appeal (b) Appeal allowed. (c) The sentences imposed by his Honour on 25 February 2011 are quashed. (d) In lieu thereof, the appellant is sentenced as follows: (i) Count 1 - A fixed term of imprisonment of 1 year commencing 22 January 2010 and expiring 21 January 2011. (ii) Count 2 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2010 and expiring 21 January 2012. (iii) Count 4 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2011 and expiring 21 January 2013. (iv) Count 5 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2011 and expiring 21 January 2013. (v) Count 6 - A fixed term of imprisonment of 1 year and 6 months commencing 22 January 2011 and expiring 21 July 2012. (vi) Count 7 - Imprisonment with a non-parole period of 3 years commencing 22 January 2012 and expiring 21 January 2015 with a balance of term of 3 years expiring 21 January 2018. (e) The earliest date upon which the appellant will be eligible for parole is 21 January 2015. 81JOHNSON J: I agree with Hoeben JA. 82BUTTON J: I agree with Hoeben JA. ********** 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: 17 August 2012