Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RP v R [2013] NSWCCA 192 Hearing dates: 2 August 2013 Decision date: 22 August 2013 Before: Simpson J at [1] Price J at [2] RA Hulme J at [34] Decision: Catchwords: Criminal Law - sentencing - indecent assault contrary to s 76 Crimes Act 1900 (now repealed) - whether error in assessment of objective seriousness - whether too much weight afforded to victim impact statement - whether sentence manifestly excessive - re sentence Legislation Cited: Crimes Act 1900 s 66A, s 61J, s 66L, s 61M(2), s 91H(2), s 76 Criminal Appeal Act 1912 s 6(3) Cases Cited: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Nelson v R [2007] NSWCCA 221 O'Kell v R [2013] NSWCCA 162 Ollis v R [2011] NSWCCA 155 Pearce v R (1998) 194 CLR 610; [1998] HCA 57 R v Baker [2000] NSWCCA 85 R v Berg (2004) 41 MVR 399; [2004] NSWCCA 300 Category: Principal judgment Parties: RP (Applicant) Regina (Respondent) Representation: Counsel: B Brassil (Applicant) T Smith (Respondent) Solicitors: Peter Murphy Solicitor (Applicant) Department of Public Prosecutions (Respondent) File Number(s): 2010/5716 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-02-06 00:00:00 Before: Armitage DCJ File Number(s): 2010/5716012 Judgment 1Simpson J: I agree with Price J. 2Price J: The applicant pleaded guilty in the District Court to two indictments and was sentenced by Armitage DCJ (the judge) on 6 February 2012. The first indictment contained a single count of Indecent Assault Female then under the age of 16 years contrary to the now repealed s 76 of the Crimes Act 1900. The offence, having been committed between 28 April 1978 and 29 April 1980 carried a maximum penalty of 6 years imprisonment. The judge was asked to take into account on sentence another offence contrary to s 76 of the Crimes Act that had been included on a Form 1. This offence had been committed between 1 October 1979 and 29 April 1980. Both offences involved the indecent assault of LS who was then about 11 years old. 3The applicant was sentenced by the judge, taking into account the Form 1 matter, to a fixed term of imprisonment for one year to date from 7 January 2010 and to expire on 6 January 2011. The applicant seeks leave to appeal against this sentence. 4The second indictment contained seven offences that were committed between 2002 and 2009 and involved the applicant's granddaughters SP and JM. The offences were two counts of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act, two counts of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act, one count of sexual intercourse with a child between the ages of 10 years and 16 years contrary to s 66C(2) of the Crimes Act, one count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act and one count of possession of child pornography contrary to s 91H(2) of the Crimes Act. The overall sentence imposed for the offences on the second indictment by the judge was 13 years 6 months with a non-parole period of 9 years 6 months. The applicant does not complain about these sentences and his appeal is confined to the sentence imposed for the single count on the first indictment. 5I should mention that the sentence for count 1 on the second indictment was backdated to commence from 7 July 2010. As a result, the effective sentence for the offence on the first indictment is one of 6 months. The overall effective sentence for the offences on the first and second indictments was a non-parole period of 10 years commencing 7 January 2010 and expiring 6 January 2020 with a balance of term of 4 years commencing 7 January 2020 and expiring 6 January 2024. The earliest date the applicant is eligible to be released on parole is 6 January 2020. 6The facts of the offence on the first indictment concerned LS, the daughter of the half-sister of the applicant's wife. LS was at the time about 11 years of age and visited the applicant and his wife at their home. On an occasion when LS and applicant were alone in the house, the applicant took LS to the lounge room, obtained some cream and rubbed it into her face and upper chest area, using both hands for a couple of minutes. The applicant remained clothed at the time. 7The matter on the Form 1 also took place when LS was 11 years old when she visited the applicant's house. On this occasion, the applicant took LS to the lounge room and rubbed some cream into her face and upper chest area for a couple of minutes. The applicant remained clothed at the time. 8The applicant was born on 22 June 1949 and had no previous offences. The judge allowed a discount for the utilitarian value of the applicant's plea of guilty to the offence on the first indictment of 12.5 per cent. Hence, the undiscounted starting point of the sentence was 14 months. Ground 1 9In the first ground of appeal, the applicant asserts that the judge misdirected himself as to the objective seriousness of the offence (and an identical offence on a Form 1) in the first indictment in holding that they were not at, or near the lowest end of the criminality formerly covered by the provisions of s 76 Crimes Act. 10The Crown submits that the applicant's counsel in the District Court made a concession that it was open to the judge to find that the offence on the first indictment (and Form 1) was not at the very bottom of the range. The Crown argues that the judge in his sentencing remarks referred to the exchange with the applicant's counsel and made findings that were clearly consistent with the discussion. The Crown contends that what was said by the judge reflects his view that while the offence was not at the very bottom of the range it was near the bottom. 11In order to appreciate the submissions of the parties it is necessary to refer to the sentencing proceedings of 3 February 2012. The following exchange took place between Mr Grogan, the Crown Prosecutor, and the judge (T03/02/12 T 29 L 6-12): "Grogan: ...I expect my friend's going to put to your Honour that that is a very low echelon example of that offence and I don't - - His Honour: I'll hear your submissions in due course. Grogan: Yes but when it comes to that you can accept from the Crown that I don't take any issue with that ..." 12Mr Watts, the applicant's counsel, drew the judge's attention to Nelson v R [2007] NSWCCA 221 where Latham J said at [17]: "In the absence of evidence of the sentencing practices prevailing in 1972 for offences under s 76, his Honour was to be guided by the maximum penalty, as an expression of the legislature's view of the gravity of such offences at that time, and by the nature of the conduct proscribed by the offence : R v Moon (2000) 117 A Crim R 497 at 511 ; R v MJR (2002) 54 NSWLR 368 ; AJB v Regina [2007] NSWCCA 51. His Honour did not have regard to the latter consideration, namely, that offences under s 76 in 1972 were not confined to non-consensual touching of the breasts and external genitalia of a female over the age of 16 years. There was no extended definition of "sexual intercourse" that allowed for acts such as fellatio, cunnilingus or anal intercourse to be charged as "rape". Sexual assaults other than penile/vaginal intercourse came under the umbrella of "indecent assault". A very broad range of very serious conduct by male offenders against female victims could not be prosecuted under any other provision of the Crimes Act 1900 as it then stood." 13Mr Watts put to the judge that the applicant's conduct in rubbing the cream on the face and chest of LS was "at the absolute lowest end of the range of ... criminal conduct captured by that section at that time" (T03/02/12 T 30 L 26-27). The following exchange then took place between the judge and Mr Watts (T03/02/12 T 30 L 33-45): "His Honour: If I say to you that while it doesn't strike me as at the very bottom of the range it's near the bottom, would you disagree? Watts: Certainly. You Honour no I wouldn't cavil with that your Honour, I wouldn't seek to be heard any further. His Honour: I have of course read the victim impact statement and it's quite obvious that the conduct was very distressing to the victim and I don't leave that out of count by any means. Watts: Your Honour, in that regard our submission would be that it is the objective criminality of the offending that would be the primary consideration in ascertaining the appropriate sentence in relation to that offence..." (italics added). 14During his remarks on sentence, the judge said (at ROS 25): "Mr Watts made written submissions which I hope to summarise equally briefly. He drew attention to Nelson v The Queen [2007] NSWCCA 221 at [17] and said in that light, the rubbing of [the] cream on the face and chest of the victim, in relation to the offences in the first indictment, was at the lowest end of the criminality covered by the section. I have already said that I do not agree with that submission, but I think it was considerably less serious than criminality one often sees in offences of this type, although of course extremely distressing to the victim. Mr Watts did not disagree with that when I put it to him." (italics added) 15What was said by the judge in the passage quoted in the previous paragraph, did not precisely accord with his discussion with Mr Watts but there is no reason to consider that his Honour no longer adhered to his characterisation of the offence being "near the bottom" of the range. The applicant does not submit that the characterisation of the offence being near the bottom of the range was not open to the judge on the circumstances of the offence before him. 16I would dismiss Ground 1 of the appeal. Ground 2 and Ground 3 17It is convenient to deal with Grounds 2 and 3 together. In Ground 2 the applicant asserts that the judge "erred in principle in sentencing [him] for the offence referred to in the First Indictment ("the sentence") and thereby sentenced [him] to a period of imprisonment in which the non-parole period was disproportionately long when compared to the offences which were covered by the provisions of section 76 of the Crimes Act,1900 at the time of this offending." 18The principal complaint is that the judge gave inordinate weight to the contents of the victim impact statement such that his Honour's assessment of the criminality in the offence involved error. The applicant submits that the judge appears to have treated the content of the victim impact statement as sworn evidence before him, which would necessarily have involved the witness being subject to cross-examination. Another submission is that the statement contains what can be properly viewed as a severe reaction to two relatively minor indecent assaults on a young girl and should not have had "a multiplier effect" on the sentence. 19The Crown submits that the victim impact statement was tendered without objection and no submission was made to the judge that he was unable to rely on it or take it into account. The Crown contends that in the exchange between Mr Watts and the judge that has been quoted at [13] above, Mr Watts acknowledged that whilst it was not a primary consideration, the contents of the statement were a relevant consideration for the judge to take into account on sentence. 20In Ground 3 the applicant asserts that "the Sentence imposed ... in all the circumstances [is] manifestly excessive." In support of this ground the applicant relies upon the decision in Nelson. 21As to the assertion of manifest excess, the Crown referred to the circumstances of the case being readily distinguishable from those in the case of Nelson. The Crown argues that the applicant was to be sentenced on the basis that this was not an isolated incident as evidenced by the offence on the Form 1 and a 12 month fixed term was not so far outside the range available that there must have been error. 22In my opinion, there is little benefit in comparing the sentence imposed in Nelson with the present case as there are important matters of difference which the applicant acknowledged during the hearing of the appeal. The facts in Nelson concerned a single count of indecent assault contrary to s 76 upon a complainant who was, in 1972, 16 years of age. No offence was included on a Form 1. The maximum penalty for the offence at that time was 3 years imprisonment and a discount of 22 per cent was allowed for the utilitarian value of the plea. A sentence of 14 months imprisonment was quashed on appeal and the applicant was re-sentenced to a fixed term of 4 months imprisonment. 23In any event, it has been often said that appellate intervention is not justified because a sentence is markedly different to sentences imposed in other cases: O'Kell v R [2013] NSWCCA 162. To establish that the sentence is manifestly excessive, the applicant must demonstrate that the sentence is manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v R (2005) 228 CLR 357; [2005] HCA 25. Each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence: Pearce v R (1998) 194 CLR 610; [1998] HCA 57. 24The applicant's submission on the use by the judge of the victim impact statement essentially asserts that the judge gave too much weight to its contents. Questions of weight are matters for the discretion of the sentencing judge and will not usually justify intervention upon appeal: R v Baker [2000] NSWCCA 85. I am of the opinion, however, the weight that his Honour gave to the contents of the victim impact statement led to a sentence that was plainly unjust. 25LS wrote in her victim impact statement of the effect of the applicant's offending on her. She stated that his abuse had impacted on every relationship throughout her life. Her ability to trust and communicate with others was destroyed. Her childhood memories had been stolen. Since her thoughts were consumed with the horror of the abuse, she was not able to function as a parent or a person. She would distance herself from everyone and at times was unable to connect with her sons. She hates having her photo taken and did not even want to be photographed at her wedding. She had never looked herself in the eyes because she hated what she saw because of the applicant. She had tried to kill herself at the age of 11 in the hope that his abuse would be stopped. She had wishes she would die so that she had no memory of what he did to her. She described living with the shame as unbearable. She could not count the amount of times she had sobbed when her thoughts were consumed with the pain he had inflicted upon her. She would hide under a blanket and cry uncontrollably whilst her children were playing. The pain never goes away and will be with her for the rest of her life. The applicant made her physically and emotionally sick. 26In referring to the victim impact statement, the judge said (at ROS 4-5): "I interpolate that I have, as part of exhibit A - the crown bundle in relation to these offences - the victim impact statement from the victim, LS. I trust I shall be forgiven if for reasons of space and time I do not repeat these remarks but it is enough to say that I have read them and they show that despite what is on the scale of sexual offending less serious offending than was involved in many offences in the second indictment the victim has suffered profoundly as a result of what happened to her and has experienced psychological problems throughout her entire life as a result of it. She has my profound sympathy. (italics added). 27It is evident from the judge's discussions with Mr Watts and his sentencing remarks that the judge uncritically accepted LS's statement and considered the harm to be substantial. LS undoubtedly suffered harm, however, the contents of her statement went well beyond what might be regarded as the type of harm expected from the circumstances of the applicant's offending. 28As the victim impact statement raised harm that was more deleterious than could generally be expected from the circumstances of the offence, the judge was obliged to approach the statement with caution. The harm that LS described was not supported by other evidence: In R v Berg (2004) 41 MVR 399; [2004] NSWCCA 300, Wood CJ at CL said at [48] - [49]: "...I would sound a note of caution in relation to the proper approach to fact-finding concerning the impact of a crime upon other members of the community or, upon the victim. If that is to be achieved by way of victim impact statements, then an injustice may occur in relation to a person standing for sentence, in so far as the maker of the statement would not normally be available for cross-examination. I add that caution in support of the general proposition that extreme care needs to be taken by those who prosecute and defend these cases, and also by trial Judges in always ensuring that there is a proper evidentiary basis for any findings of fact which go towards aggravating or mitigating a sentence." 29Although in the present case LS's victim impact statement was tendered without objection, Mr Watts put to the judge that the objective criminality of the offending was the primary consideration. This was a submission as to the weight that the judge would attribute to the content of the victim impact statement. This was not a case such as Ollis v R [2011] NSWCCA 155, where the victim impact statement was admitted into evidence without objection and no submissions were made that the statement should be limited or that less weight should be attributed to it. Furthermore, in Ollis, the jury had accepted the evidence of the victim and it was open to the sentencing judge to find, by reference to the victim impact statement, that the victim suffered harm that went beyond that which was expected. 30In my view, the excessive weight that the judge placed upon the victim impact statement is reflected in the undiscounted starting point of 14 months imprisonment. The act of indecency for the principal offence and the matter on the Form 1 involved the rubbing of cream into the upper chest area of an 11 year-old girl. At the time of the commission of the offence, the applicant was about 29 years old and had no prior offences which was a mitigating factor. Although the similar offending in the Form 1 matter emphasised the additional need for personal deterrence and retribution, a fixed term of 12 months imprisonment went beyond the legitimate exercise of his Honour's sentencing discretion. 31I would uphold Grounds 2 and 3 of the appeal. 32The considerations upon which the applicant is to be re-sentenced are disclosed from what I have written to this point. Taking into account the Form 1 matter, I would impose a fixed term of two months imprisonment. In keeping with the judge's approach to the principle of totality, the sentence for count 1 on the second indictment is to be partially accumulated by one month on the sentence for the offence on the first indictment. It will be necessary to adjust the commencement and expiration dates in each of the sentences on the second indictment. As a result the total term of the overall sentence imposed for the offences on the first and second indictment will be 13 years 7 months with a non-parole period of 9 years 7 months. Orders 33I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed 3. The sentence imposed by Armitage DCJ on 6 February 2012 for the single count on the first indictment is quashed. 4. In lieu thereof, the applicant is sentenced to two months imprisonment commencing 7 January 2010 and expiring 6 March 2010. 5. Adjust the commencement and expiration dates for the sentences imposed by Armitage DCJ on 6 February 2012 for the seven offences on the second indictment as follows: (i) Count 1: a fixed term of 2 years commencing 7 February 2010 and expiring 6 February 2012. (ii) Count 2: a fixed term of 4 years commencing 7 August 2010 and expiring 6 August 2014. (iii) Count 5: a non-parole period of 3 years commencing 7 February 2011 and expiring 6 February 2014 with a balance of term of 2 years commencing 7 February 2014 and expiring 6 February 2016. (iv) Count 7: a non-parole period of 4 years commencing 7 August 2011 and expiring 6 August 2015 with a balance of term of 2 years commencing 7 August 2015 and expiring 6 August 2017. (v) Count 3: a non-parole period of 5 years commencing 7 February 2012 and expiring 6 February 2017 with a balance of term of 3 years commencing 7 February 2017 and expiring 6 February 2020. (vi) Count 4: a non-parole period of 6 years commencing 7 August 2012 and expiring 6 August 2018 with a balance of term of 4 years commencing 7 August 2018 and expiring 6 August 2022. (viii) Count 6: a non-parole period of 6 years 6 months commencing 7 February 2013 and expiring 6 August 2019 with a balance of term of 4 years commencing 7 August 2019 and expiring 6 August 2023. The earliest date the applicant is eligible for release to parole is 6 August 2019. 34RA Hulme J: I agree with Price J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2013