Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: EJDG v R [2012] NSWCCA 251 Hearing dates: 5 November 2012 Decision date: 30 November 2012 Before: McClellan CJ at CL at [1] Latham J at [34] Fullerton J at [35] Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIMINAL LAW - appeal - sentence - misstatement of correct maximum penalty - error in applying standard non-parole period - whether some other sentence was warranted at law - no lesser sentence warranted - appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act Cases Cited: Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549 Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newton v R [2009] NSWCCA 128 R v Ivimy [2008] NSWCCA 25 R v Way [2004] NSWCCA 168; (2004) 60 NSWLR 168 R v Zakaria [2002] NSWCCA 450 Smith v R [2007] NSWCCA 138 Category: Principal judgment Parties: EJDG (Applicant) Crown Representation: Counsel: D Barrow (Applicant) N Adams SC/J Dandson (Crown) Solicitors: Legal Aid of NSW (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2010/136596 Decision under appeal Date of Decision: 2011-07-21 00:00:00 Before: Johnstone DCJ File Number(s): 2010/136596 Judgment 1McCLELLAN CJ at CL: The applicant was tried for three offences contrary to s 61M(1) of the NSW Crimes Act 1900. Count 1 alleged that he assaulted RC between 1 May 2003 and 1 September 2003 and that at the time of the assault committed an act of indecency on RC in circumstances of aggravation, namely that RC was under his authority. Count 2 was pleaded in similar terms and was alleged to have been committed between 1 July 2003 and 4 April 2004. Count 3, in respect of which the applicant was acquitted, was alleged to have been committed some five years after the time in which count 2 was alleged to have occurred. 2RC was the applicant's step-daughter. At the relevant time she was ten years of age. 3The maximum penalty for each of counts 1 and 2 is seven years imprisonment. There is a standard non-parole period of five years in respect of the offence. 4The applicant was sentenced as follows: Count 1: a non-parole period of 3 years imprisonment dating from 3 May 2011 with an additional term of 2 years dating from 3 May 2014. Count 2: a non-parole period of 2 years six months dating from 3 August 2011 with an additional period of 18 months dating from 3 February 2014. Accordingly the total sentence was comprised of a non-parole period of 3 years with a further term of 2 years. 5Accordingly, the sentence for count 2 was made wholly concurrent with the sentence for count 1. 6The sentencing judge made factual findings. 7The victim's mother, who had formed a relationship with the offender some years previously, moved into his house on a permanent basis as his de facto partner around the middle of 2003 together with her two young children, the victim, then aged about ten, and her younger brother, then aged about nine. The victim was in Year 5 at primary school. 8Initially the victim slept in the front bedroom, which she shared with her brother, in a bunk bed. She slept on the top bunk. One evening, not too long after they had moved in, the victim had gone to bed and was asleep. She was wearing a nightie and underpants. 9Later that night she woke up to find the offender touching her inner thigh with his hand which he then moved up and stroked her vagina. He next put his hand inside of her underwear and felt around, touching her on the outside of the vagina. 10She stated that she felt him touching her thigh for at least a couple of minutes, but the touching of her vagina, skin on skin, could have lasted only a matter of seconds although it felt to her like a really long time. The victim deliberately made a noise pretending to wake up and the offender then left the room. 11The victim said she felt shaky, sick, disgusted and shocked. She had never been touched on that part of her body before. 12Those are the facts as they relate to the first count on which the offender was found guilty. 13The second event occurred a few months after when one night the victim left her bed after she had had a nightmare and was scared. She went to her mothers' bed, which she was sharing with the offender, and got in. 14The victim lay on her left side between her mother and the offender facing her mother's back. She was wearing a nightie and underpants. Her mother went to sleep but the victim could not get to sleep straight away due to the nightmare. 15The offender who was lying behind her, rolled over and put his arm around her placing his hand inside her underwear and held it against her vagina, cupping it, skin on skin. After some ten minutes the victim was able to shift her body down so that the offender's hand was on her stomach. Eventually she fell asleep. 16When the victim got out of the bed the next morning she told her mother about the incident. 17The applicant relies on 2 grounds of appeal: Ground 1: that the sentencing judge erred by misdirecting himself as to the correct maximum penalty for the offences and so fell into error in arriving at an appropriate sentence for the offences; Ground 2: that his Honour erred in his application of s 54A - 54D of the Crimes (Sentencing Procedure) Act 1999 in the manner in which he had regard to the standard non-parole period provided for the offences. 18The applicant did not give evidence at the sentencing hearing. However, the sentencing judge had the benefit of a pre-sentence report and a psychological pre-sentence assessment conducted by Forensic Psychology Services within the Corrective Services Department. The applicant also tendered the report of a clinical psychologist. 19His Honour found that each of the offences was objectively serious and concluded that general deterrence was of major significance. His Honour identified the fact that the offences carried a standard non-parole period and said that "it is intended for middle range offences where the offender is convicted after trial. Even if not applicable that period acts as a guide post." His Honour referred to the decision of this Court in R v Ivimy [2008] NSWCCA 25 where an offender who touched the outside of the victim's vagina when she was using the shower was described as committing an offence "close to the worst class of case" for this offence. 20His Honour determined that both offences fell within the middle range of objective seriousness having regard to the nature and degree of physical contact involved. His Honour then said that "the standard non-parole period is to be set unless the court determines that there are reasons for not doing so: s 54B of the Crimes (Sentencing Procedure) Act 1999". This was, of course, a reflection of the approach required of the sentencing judge when sentencing in accordance with R v Way [2004] NSWCCA 168; (2004) 60 NSWLR 168 rather than the approach later determined to be appropriate by the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. 21However, his Honour determined that because the applicant was well below average intelligence, will spend a significant portion of his sentence in protective custody and has been in regular employment since leaving school with good prospects of rehabilitation "the standard non-parole period was not appropriate." 22His Honour observed that because the offences were two separate and distinct acts, the criminality of one was not comprised in the criminality of the other and, accordingly, wholly concurrent sentences would not be appropriate. However, this finding was not reflected in the ultimate sentences, the sentence for count 2 being wholly concurrent with the sentence for count 1. 23The respondent conceded that his Honour was mistaken when identifying the maximum penalty for each offences as ten years imprisonment. It would seem that his Honour was led into this mistake by the submissions of the Crown prosecutor. The maximum penalty is in fact seven years imprisonment. 24Notwithstanding that his Honour stated the incorrect maximum penalty it does not follow that the sentence should automatically be reduced. An error by a sentencing juge in relation to the maximum penalty for an offence will not necessarily require this Court to uphold an appeal and resentence: Smith v R [2007] NSWCCA 138 at [34] per James J (Campbell JA and Smart AJ agreeing); Newton v R [2009] NSWCCA 128 at [21] per RA Hulme J (Grove and Howie JJ agreeing); Minehan v R [2010] NSWCCA 140 (2010) 201 A Crim R 243 at 255-256 [70] per RA Hulme J (Macfarlan JA and Johnson J agreeing); see also R v Zakaria [2002] NSWCCA 450 at [15] per Bell J (Wood CJ at CL and Dowd J agreeing); Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549 at 554 [20] per Latham J (McClellan CJ at CL and Howie J agreeing). 25Section 6(3) of the Criminal Appeal Act still requires this Court to be satisfied that some other sentence is warranted in law and should have been passed. 26Before this Court the Crown acknowledged that his Honour had referred to the wrong maximum penalty and had erred by following the sentencing approach provided by the decision in Way. The Crown also accepted that it was not necessary for the applicant to establish that the sentence was manifestly excessive in order for the error to have materially affected the sentence. However, it was submitted that notwithstanding the errors made by the sentencing judge, having regard to relevant matters no lesser sentence was warranted. 27I am in no doubt that the sentencing judge was correct when he described the first count as a serious offence. The applicant, in a deliberate and premeditated way, entered the complainant's bedroom and assaulted her while she was asleep. This Court has previously said that an act of this character may come within the worst class of case of an offence of aggravated indecent assault: see Ivimy at [42]. 28To my mind this offence warranted characterisation as being at the upper end of the range of objective seriousness. I am also satisfied that the sentencing judge was correct to determine that the second count was also a serious offence notwithstanding its opportunistic character. The fact that the applicant committed the offence on 2 separate occasions required a sentence which adequately reflected his overall criminality. 29There are a number of favourable features in the applicant's subjective circumstances. He had no relevant previous convictions and, although of below average intelligence, he has maintained regular employment since leaving school. The sentencing judge found that notwithstanding the fact that the applicant has not demonstrated remorse or contrition he had good prospects of rehabilitation and was unlikely to reoffend. His Honour found that the applicant had made significant contributions to the welfare of the Aboriginal community. His Honour recognised that the applicant had received support from members of the community who provided testimonials to the court. 30Notwithstanding these favourable subjective matters to my mind having regard to the serious nature of the offences a total sentence of 5 years imprisonment with a non-parole period of 3 years was appropriate in all the circumstances. The offences were two separate acts of serious criminality, one a deliberate and calculated act and the other more opportunistic. Notwithstanding that the sentencing judge appears to have made a slip when imposing the sentences, his Honour was correct to identify that the separate nature of the offences warranted a period of accumulation. Having regard to the sentences which his Honour thought appropriate for each offence this could only have been achieved by commencing the sentence for the second count before the sentence for the first count commenced. 31Although this error would have justified this Court in resentencing it would be of no practical utility to do so. In my judgment the sentence for the individual offences was appropriate. However, more importantly, I am satisfied that no other overall sentence was in all the circumstances required. 32I have not overlooked the fact that his Honour misstated the maximum penalty for the offences. However, I am not persuaded that this error has materially affected the sentences which his Honour imposed. Although the correct maximum sentence was a term of imprisonment of 7 years, the standard non-parole period provided by the legislature is 5 years. As I have indicated given the serious nature of these offences the guidance provided by both the maximum sentence and the standard non-parole period confirm my opinion that the individual sentences and the overall sentence is appropriate. 33Although I would grant leave to appeal, the appeal should be dismissed. 34LATHAM J: I agree with McClellan CJ at CL. 35FULLERTON 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: 24 January 2013