Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: LG v R [2012] NSWCCA 249 Hearing dates: 26 October 2012 Decision date: 30 November 2012 Before: McClellan CJ at CL at [1] Price J at [29] Barr AJ at [30] Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIMINAL LAW - appeal - sentence - whether sentencing judge erred by imposing cumulative sentences - whether sentence was manifestly excessive - where applicant convicted of four offences - where all offences were part of one sequence of events - where each offence involved a different sexual act - sentencing judge did not err in imposing cumulative sentences - sentence was not manifestly excessive. Cases Cited: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 R v MMK [2006] NSWCCA 272; 164 A Crim R 326 Category: Principal judgment Parties: LG (Applicant) Crown Representation: Counsel: C Davenport SC (Applicant) T Smith (Crown Solicitors: Katsoolis & Co Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/246046 Decision under appeal Date of Decision: 2011-08-12 00:00:00 Before: Zahra DCJ File Number(s): 2010/246046 Judgment 1McCLELLAN CJ at CL: The applicant pleaded guilty in the Local Court to four charges involving sexual offences carried out on the same victim. Each offence was committed in the company of the applicant's partner. The complainant was a girl aged 14 at the time. 2The applicant was sentenced to a total non-parole period of 4½ years with a total overall sentence of 7½ years. The individual sentences, maximum penalties and standard non-parole periods for the relevant offences are set out in the following table: Offence Max penalty SNPP Sentence Aggravated act of indecency towards a child under 16 yrs (in company) (seq 8) 5 years N/A Fixed term 18 months to date from 30 July 2011 Sec 610(1) Crimes Act Aggravated indecent assasult (child under 16 yrs) (seq 2) 10 years 8 years Overall 4 years to date from 30 October 2011 Sec 61M(2) Crimes Act NPP 2 yrs to date from 30 October 2011 to 29 October 2013 Aggravated sexual intercourse with a child between 14 and 16 years (being in company) (seq 7) 12 years N/A Overall 4½ yrs to date from 30 April 2012 NPP 2½ yrs to date from 30 April 2012 to 29 October 2014 Aggravated sexual intercourse with a child between 14 and 16 years (being in company) (seq 5) 12 years N/A Overall 6 years to date from 30 January 2013 Sec 66C(4) Crimes Act 12 years NPP 3 years to date from 30 January 2013 to 29 January 2016 Form 1: 10 years Aggravated sexual intercourse with a child between 14 and 16 years (seq 6) Aggravated indecent assault (under 16 years) 3The facts were agreed before the sentencing judge. They can be summarised in the following manner: 4The complainant (MC) was aged 14 years at the time of the offences. The applicant and her co-offender (her then boyfriend, now husband, Thomas Franklin) had been friends with the complainant's parents for a period of three years. They had met through the Air League, which is a youth organisation similar to the Royal Australian Air force cadets but concerned with civil aviation. At the time of the offences in September 2009 the co-offender was a senior member of the Air League. The complainant's father was the second in command. Both the applicant and the co-offender were involved in the instruction of children within the Air League. The complainant was a member of the Air League. 5The complainant went to the home of the applicant and her co-offender on two occasions. The first occasion occurred some time prior to September 2009. The co-offender provided alcohol to the complainant whilst the applicant was at the movies. At some stage during the evening the co-offender and the complainant went for a walk. Whilst walking the co-offender had a conversation with the complainant in relation to sexual matters, including asking the complainant if she "touched herself." When the complainant said that she did not, the co-offender asked the complainant, "why not?" The co-offender told the complainant that a boy that she was interested in liked girls who were "good with their hands". He also spoke to the complainant about his desire to be her "first kiss" and told her that he was prepared to give her a "lesson" on sex if she wanted it. 6Some time later the applicant returned. She and the co-offender then showed the complainant pictures of an adult dating website and a picture of each of them naked. 7A few weeks after the first visit, and prior to the complainant's 15th birthday, the complainant again attended at the applicant's home. The complainant went with her older sister who also slept the night there. The co-offender again took the complainant for a walk. He reminded her of his offer to give her a "lesson" on sex and said that "we always do this" and that the complainant's sister had done it and she was fine with it. 8When they returned home the co-offender went outside for a cigarette and the complainant joined him. The co-offender again applied pressure to the complainant asking her if he could be her first kiss. He touched the complainant on the breasts. 9The complainant went back inside and had a shower. She was told to meet the applicant in the bedroom. The complainant, who was terrified, walked into the bedroom where she saw the applicant in bed. The co-offender then entered the bedroom, took off his clothes and also got into the bed. 10The co-offender removed the complainant's top and started to touch her breasts. The applicant also touched the complainant's breasts with her hands. Both offenders began to touch the complainant's breasts with their mouths. These acts were the subject of the Indecent Assault of a child under 16 years old charge (sequence 2). 11The co-offender pulled down the complainant's pants and inserted his finger into her vagina. This continued for a short period of time. This act was the subject of the charge of Aggravated Sexual Intercourse with a child aged between 14 and 16 years (sequence 5). 12The offenders then produced a silver bullet style vibrator which the co-offender inserted into the complainant's vagina. This act was the subject of the charge of aggravated sexual intercourse with a child aged between 14 and 16 years which was placed on a Form 1 to the sequence 5 offence (outlined in the paragraph above). 13The co-offender then performed oral sex on the complainant during which time the applicant was touching the complainant's breasts. The act of cunnilingus was the subject of the aggravated sexual intercourse with a child aged between 14 and 16 years offence (sequence 7). 14The co-offender then suggested that the applicant perform oral sex on him, which she did. As that occurred the co-offender asked the complainant to touch his penis and lick his nipples. The victim did not comply. These acts formed the basis of the aggravated act of indecency towards a child under 16 years charge (sequence 8). 15Whilst the applicant was performing oral sex on the co-offender, the co-offender touched the complainant's breasts. The touching of the breasts was the subject of an aggravated indecent assault charge which was placed on a Form 1 to the sequence 5 offence of aggravated sexual intercourse charge. 16The sexual encounter ended when the co-offender ejaculated. The complainant then got dressed, left the room and went to sleep in the lounge room. The next day the offenders drove her home and were invited to stay by the complainant's parents, which they did. 17The complainant disclosed the events constituting the various offences to her older sister in July 2010. The applicant and her co-offender were arrested on 23 July 2010. When interviewed by the police the applicant admitted to carrying out certain sexual acts upon the complainant. She stated that she had a sexual conversation with the complainant that progressed into her and her co-offender suggesting they move into the bedroom. She stated that she knew what she was doing was illegal and wrong. She said that she and her co-offender were aroused by the sexual acts and were further aroused when later discussing what had occurred. The applicant told the police that she and her co-offender were members of an online swingers club and that she may have shown that website to the victim. 18The application for leave to appeal was filed out of time. However, the Crown raised no objection to an extension of time being granted and in my opinion this is appropriate. 19There are two grounds of appeal, although they significantly overlap. The applicant submitted that the sentencing judge erred by imposing cumulative sentences in relation to each offence with the consequence that the overall sentence that was imposed was manifestly excessive. 20The sentences that his Honour imposed were structured so that there is a partial accumulation of each of the sentences. This resulted in an overall period of accumulation of 18 months. The degree of accumulation in the case of sequence 2 (the touching of the victim's breasts with hands and mouths) was only 3 months. For sequence 7 (the cunnilingus on the complainant) it was 6 months. For the sequence 5 (the digital penetration that had the serious matters on the Form 1 attached to it) there was a period of 9 months accumulation. 21The applicant submitted that because all of the offences were part of a single discrete episode of criminality and had many features in common, a high degree of concurrency was called for. The applicant emphasised that the sentencing judge found that, although there were a number of separate acts upon the complainant, they were part of the one sequence of events that occurred in a relatively short time and that the incident was an isolated one. It was also submitted that the offence of aggravated indecent assault was the only offence that was subject to a standard non-parole period (8 years) and that his Honour considered that the objective gravity of that offence fell below the middle range of objective seriousness. The applicant emphasised the fact that his Honour also accepted that the applicant was entitled to the maximum available discount for her early plea of guilty. 22The applicant also emphasised that the offences were committed when she was aged 22; she came from a supportive family background and had no prior criminal history; she had been diagnosed with a major depressive disorder and dependent personality disorder. The applicant also emphasised that her husband was her first sexual partner. 23The applicant also emphasised that although both her pre-sentence report and a psychiatrist's report recommended that she undergo extensive treatment to address her offending behaviour, the only prospect of her receiving treatment would be upon her release. 24This Court has said on many occasions that the decision as to whether to accumulate in respect of multiple sentences is fundamentally an exercise within the discretion of the sentencing judge. As Simpson J observed in R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7] "There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong." 25The issue of totality, particularly in a case involving sexual offending, was discussed by this Court in R v MMK [2006] NSWCCA 272; 164 A Crim R 326 at [13] where Spigelman CJ, Whealy and Howie JJ stated: "In some case the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending ... This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion... The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326." 26In Gorman Sperling J said at [57]: "Relevantly the offences in the present case were committed in the course of the same episode. His Honour so found. However, each offence contributed to the total criminality involved and care had to be taken to ensure that the overall effective sentence was appropriate having regard to the offences which were committed in the course of that episode." 27Similar observations are appropriate in the present case. The applicant was involved with her co-offender in a variety of sexual acts upon the complainant. Each act involved separate criminality of varying degrees of significance. Although part of an overall event, the sentencing judge was required to identify a sentence appropriate for each separate act. No complaint is made about the term of any of the individual sentences. The sentencing judge was mindful of the matters to which I have referred in [21], [22] and [23] above. The sentencing judge was then required to determine how the sentences should be structured ensuring that the overall sentence was appropriate for the total criminality involved. In my opinion, although I may have provided a different structure, his Honour's structure of the sentences was open to him and I am not persuaded that the sentencing discretion has miscarried in a manner that would require the intervention of this Court. 28Although I would grant leave to appeal, the appeal should be dismissed. Orders 1. Grant leave to appeal. 2. Dismiss the appeal. 29PRICE J: I agree with McClellan CJ at CL. 30BARR AJ: I agree for the reasons given by McClellan CJ at CL that the sentences imposed and the total effective sentence fell within the range of discretion resting in the sentencing judge. I agree with the orders proposed by 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: 24 January 2013