Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v DKL [2013] NSWCCA 233 Hearing dates: 11 October 2013 Decision date: 18 October 2013 Before: Gleeson JA at [1] RA Hulme J at [2] Adamson J at [3] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW- sentence- Crown appeal- manifest inadequacy- substantial concurrence of sentence with sentence already imposed- effect of delay- provided opportunity for respondent to re-offend- exercise of residual discretion- physical and mental deterioration of respondent since sentence imposed Legislation Cited: - Crimes Act 1900, s 33B(1), s 61M, s 61M(2), s 61O(1), s 66A, s 66C(2) - Criminal Appeal Act 1912, s 5D, s 5D(1) Cases Cited: - Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 - DPP v Karazisis [2010] VSCA 350; 31 VR 634 - Everett v The Queen [1994] HCA 49; 181 CLR 295 - Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 - Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 - Munda v Western Australia [2013] HCA 38 - Postiglione v The Queen [1997] HCA 26; 189 CLR 295 - R v Holyoak (1995) 82 A Crim R 502 - R v MSK [2006] NSWCCA 381; 167 A Crim R 159 Category: Principal judgment Parties: Crown (Appellant) DKL (Respondent) Representation: Counsel: HM Wilson SC (Appellant) HLA Cox (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Matthew Hammond Solicitors (Respondent) File Number(s): 2011/342514 Publication restriction: Nil Decision under appeal Date of Decision: 2013-04-12 00:00:00 Before: Ashford DCJ File Number(s): 2011/342514 Judgment 1GLEESON JA: I agree with Adamson J. 2R A HULME J: I agree with Adamson J. 3ADAMSON J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D(1) of the Criminal Appeal Act 1912 against a sentence imposed upon the respondent by her Honour Judge Ashford on 12 April 2013 in the District Court of New South Wales at Parramatta. 4The sentences imposed were as follows: Count Offence Maximum penalty Sentence 1 Sexual intercourse with child under 10 years: s 66A Crimes Act 1900 20 years' imprisonment (no applicable standard non-parole period) 7 years' imprisonment with non-parole period of 4 years, to date from 27 September 2014 Form 1 with three additional offences of aggravated indecent assault to be taken into account: s 61M(1) and (2) Crimes Act 2 Use offensive weapon with intent to intimidate: s 33B(1) Crimes Act 1900 12 years' imprisonment 5 years and 2 months imprisonment, non-parole period of 3 years to date from 27 September 2013 5The Crown makes no complaint about the individual sentences imposed or the degree of concurrence. The sole basis for the Director's appeal that the sentence imposed was inadequate was that it was insufficient, having regard to the substantial concurrence between it and sentences imposed on 27 May 2011 by Judge Conlon SC in respect of other offences, to reflect the totality of the respondent's offending. The Facts 6The offences for which Judge Ashford sentenced the respondent took place during his marriage to KM whom he met in 1978. They had seven children together: S, a daughter born in 1980, T, a daughter born in 1982, J, a son born in 1983, N, a son born in 1985, R, a son born in 1987, G, a son born in 1988 and U, a daughter born in 1989. The offences occurred prior to the respondent's separation from his wife in 1997. Rosemeadow offences against natural daughter: 1993-1996 (sentenced by Ashford DCJ) 7Between 1993 and 1996 the family lived in Rosemeadow. Every night, the respondent would go to the children's bedrooms to check on them after they had gone to bed. During one of those nightly visits, when T was 11 and S was 13 the respondent came into their bedroom. T pretended to be asleep. He pulled her blanket down, undid the buttons on her pyjama top, slid his hands onto her chest and touched her breasts (the first of the Form 1 offences of aggravated indecent assault (s 61M(1)). The respondent did this regularly. T remained still and continued to pretend to be asleep. He lowered his hand and rubbed her on the outside of her vagina (the second of the Form 1 offences of aggravated indecent assault (s 61M(1)). In order to get the respondent to stop T made a noise. The respondent then left the room. Capertee offences against natural daughter and son: between Christmas Day 1996 and New Year's Day 1997 (sentenced by Ashford DCJ) 8Around September 1996 the family moved to Capertee, between Lithgow and Bathurst. The two counts on the indictment before Ashford DCJ and the third of the Form 1 offences were committed there, between Christmas Day 1996 and New Year's Day 1997. 9Around New Year's Eve, KM took T to Parramatta to see a friend. S was not living with the family at that time. The five younger children stayed with the respondent at home. U was watching television with her brothers, J and N, when the respondent called her into his bedroom. He asked her to come up onto the bed. She complied. He told her that there was a present for her under the bed, it having been her birthday a few days earlier. When she leaned off the bed to look for the present the respondent touched her on the thigh. She looked back towards him and saw that his pants and underpants were pulled down and his penis was exposed. He was touching it. U started to leave the room but the respondent called her back. He grabbed her hand and placed it on his penis and moved her hand up and down on his penis (the third of the Form 1 offences of aggravated sexual assault (s 61M(2)). 10Shortly afterwards the respondent told U to put her mouth on his penis and said, "Pretend it's a lollipop." The respondent then sat on the edge of the bed and U put her mouth onto his penis. He put his hands behind his daughter's head and moved her head back and forth so his penis was going in and out of her mouth. This offence is the first count on the indictment: sexual intercourse with child under 10 years. 11U gagged and pulled away from the respondent. He pulled his pants back up and told her not to tell anyone. 12At some stage when U was in the respondent's bedroom, her brother J, who was then about 13 years old, came into the room and saw his father with his penis in U's mouth. When the respondent saw J he approached him and hit him. He knocked J across the floor. J was crouched on the floor and backed into a corner away from his father, who reached under the bed and pulled out a rifle which he proceeded to load. While he was doing this, he told J to "shut up" and "stop moving". J said, "Please Dad, I won't say anything." 13The respondent pointed the rifle at J and asked him what he had seen, to which J responded, "Nothing." The respondent prodded J several times with the rifle and said, "You say anything to your mother, you say anything to anyone then pow. You got it? You understand?" 14When J confirmed that he understood he was allowed to leave the room. The pointing of the gun at J is the second count on the indictment. 15Later, the respondent fell asleep. 16When KM arrived home from Parramatta, J stopped her before she got inside and told her what had happened. She stayed at the house that night but the following day, while the respondent was working on the farm she had the children pack their clothes. When the respondent returned to the house his wife confronted him about what had happened. He denied it. 17KM put all of the children in the car, except N who wanted to stay with his father, drove to a neighbour's house and called the police. The complaint was not immediately followed up as KM and the children were itinerant for the next few months. In 2005 the matter was again reported to police but police did not take action. 18In 2011 KM and her children renewed their complaint. By this time, the respondent was in custody in relation to other matters that involved the subsequent sexual assault of his stepdaughter, while she was 12 and 13 years of age. These were the matters for which Judge Conlon had sentenced him and which had occurred after the marriage between the respondent and KM had broken up as a result of the respondent's conduct referred to above. Offences against step-daughter: April 2009-March 2010 (sentenced by Conlon DCJ) 19After KM left the respondent, he began a relationship with another woman who had a young daughter who lived with her father and came to stay with her mother for occasional access visits. The offences for which Conlon DCJ sentenced the respondent occurred in the period April 2009 to March 2010. The offences were committed in the school holidays in April 2009, October 2009, December 2009, and March 2010. 20Because there is no challenge to the sentence imposed by Conlon DCJ it is not necessary to recite the facts of each offence committed against the respondent's stepdaughter. The offences involved cunnilingus, sucking the child's breasts, fondling her genitals, digitally penetrating her vagina, forcing her to masturbate him and masturbating himself in her presence. The offences and sentences imposed by Conlon DCJ are set out in the table below. Count Offence Maximum Penalty Form 1 Sentence 1 Aggravated Sexual Intercourse Child 10-16 (Under Authority) s 66C(2) Crimes Act 1900 20 years imprisonment 3 x Aggravated Indecent Assault s 61M(2) NPP 3 years to date from 27.6.2013, expiring 26.6.2016; additional term 3 years expiring 26.6.2019 2 x Aggravated Act of Indecency s 61O(1) 2 Aggravated Sexual Intercourse Child 10-16 (Under Authority) s 66C(2) Crimes Act 1900 20 years imprisonment 3 x Aggravated Indecent Assault s 61M(2) NPP 3 years to date from 27.6.2012, expiring 26.6.2015; additional term 3 years expiring 26.6.2018 Aggravated Act of Indecency s 61O(1) 3 Aggravated Sexual Intercourse Child 10-16 (Under Authority) s 66C(2) Crimes Act 1900 20 years imprisonment NPP 2 years & 6 months to date from 27.6.2011, expiring 26.12.2013; additional term 2 years expiring 26.12.2015 4 Aggravated Indecent Assault s 61M(2) Crimes Act 1900 10 years imprisonment SNPP 8 years imprisonment 12 months fixed term to date from 27.9.2010, expiring 26.9.2011 5 Aggravated Indecent Assault s 61M(2) Crimes Act 1900 10 years imprisonment SNPP 8 years imprisonment 12 months fixed term to date from 27.9.2010, expiring 26.9.2011 21The aggregate head sentence was 8 years and 9 months to date from 27 September 2010 and expiring on 26 June 2019, with an effective non-parole period of 5 years and 9 months. The earliest release date for the overall sentence was 26 June 2016. Subjective circumstances taken into account by Ashford DCJ 22The respondent was 66 years old when sentenced and about 50 at the time of the commission of the offences against his natural children. He had worked as a farm labourer before joining the army in 1965. He worked in catering and the military police. He had served for six months in Vietnam. He was discharged from the army in 1981 and worked until he sustained a back and neck injury for which he was granted a pension on the basis of total and permanent incapacity owing to the back injury, a personality disorder, post-traumatic stress disorder, depression and other conditions. The Sentence hearing before Ashford DCJ 23At the sentence hearing the respondent submitted that the penalties for both counts on the indictment should be wholly concurrent. The Crown submitted that a degree of accumulation was required because the offences were different in their nature, and in the identity of the victim. 24The respondent submitted that any accumulation between the sentences imposed by Conlon DCJ and the sentence to be imposed by Ashford DCJ should be small. The Crown submitted that the criminality of the present offences was entirely separate to, and in no way incorporated within the sentence already imposed by Conlon DCJ. The Remarks on Sentence 25There is no challenge to the discount of 12.5% allowed by Ashford DCJ for the plea on the day after his trial was due to commence. 26Her Honour said that she intended to accumulate the sentences for the two counts to a degree. 27Her Honour referred to the principle of totality when considering the sentences to be imposed in the context of the sentences imposed by Conlon DCJ and said: ". . . whilst the offender is serving sentences already imposed I do not find there to be any basis for making the present sentences concurrent with the sentences already imposed. 28Ashford DCJ ordered the sentences imposed to commence on 27 September 2013, which allowed two years and nine months concurrence with the non-parole period for the sentences imposed by Conlon DCJ. The effect of Ashford DCJ's sentence was to add two years and 3 months to the head sentence imposed by Conlon DCJ and two years and 3 months to the non-parole period. 29Because the sentence for the second count commenced on 27 September 2013, three months after the commencement of the sentence for count 4 imposed by Conlon DCJ, it does not appear that there was any actual as distinct from nominal penalty imposed for the second count relating to the respondent's conduct in intimidating his son J with a rifle so that he would not disclose the respondent's offending conduct. The parties' submissions on appeal 30The Crown relied on Cahyadi v R [2007] NSWCCA 1 at [27] where Howie J (Adams and Price JJ agreeing) said: In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. 31The Crown submitted that the offences against the stepdaughter were a wholly new chapter of offending that followed serious offending against the respondent's natural daughter and son. The Crown submitted that the degree of concurrence between the sentence imposed by Conlon DCJ and the sentence imposed by Ashford DCJ meant that the effective sentence was manifestly inadequate to reflect the total criminality of the offending conduct. 32The Crown also submitted that the factor of delay ought not operate to the benefit of the respondent. The Crown referred to R v Holyoak (1995) 82 A Crim R 502 in which this Court considered the effect of delay between the commission of an offence and sentencing. Allen J, with whom Handley JA agreed, said of delay at 508-509: Whether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case. There is no rule of law that it always is a detriment - although often it will be. It could be, to take a case at one extreme, that the offender has spent years in emotional hell, appalled at what he has done, terrified that the day may come when he is found out, disgraced and convicted, fearing that at any time there will be that knock on the door and never feeling free to remain so long in any community that he comes to be known and his background be of interest to others. At the other extreme the offender may have gone through the years untroubled by his offences, lacking any remorse in respect of them and feeling confident that they will never come to light because the victim never would be prepared to talk about them, his confidence increasing as the years went by with his victim remaining silent - the offender enjoying over the many years unwarranted acceptance by his associates in his respectable and stable lifestyle. The circumstances of the present case are far closer to the second of the extremes than to the first. It is further argued, however, that his Honour failed to appreciate the significance of delay in that it can demonstrate, as it did in the present case, that rehabilitation had occurred. 33The Crown submitted that, far from fearing "that knock on the door" after his offences against his daughter, the respondent used the time and the liberty afforded to him to commit offences against his step-daughter that were similar to those committed against his daughter. Although the respondent knew that his son, despite being threatened with death if he disclosed what he had seen, had in fact told his mother, he also knew that he had not been charged. The Crown submitted that, far from indicating that there was any rehabilitation in the ensuing years, the evidence established that the respondent re-offended with apparent impunity. 34The respondent urged on this Court the limitations that apply to Crown appeals and relied on what McHugh J said in Everett v The Queen (1994) 181 CLR 295 at 306: Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. 35The respondent submitted that the only challenge made by Crown was the adequacy of accumulation and, because the degree of accumulation was a matter for the sentencing judge, this Court ought not interfere. He submitted that, in any event, when the effective sentences imposed by Conlon DCJ and Ashford DCJ are considered together, it could not be said that a total head sentence of 11 years with an eight year non-parole period was outside the limits of the range for the offending conduct. 36The respondent also submitted that the delay was such that it would be unjust to visit upon him any more significant consequences of offending since it occurred so many years before he was brought to trial. 37The respondent submitted that, in the alternative, if this Court finds error it ought decline to intervene on the basis of the residual discretion. The factors that the respondent relied upon in support of the residual discretion were the delay between the offences and the commencement date of the relevant sentences and the respondent's age and infirmity. 38The respondent relied on an affidavit in which he deposed to the deterioration in his mental and physical health since he was sentenced in April 2013. He referred to an increase in the symptoms associated with emphysema, spinal pain and gout. He uses a nebuliser and an oxygen machine to assist him to breathe and a walker to help him to walk. Reasons 39There is no general rule that determines whether sentences ought be deal with concurrently or consecutively. The principle of totality is an overriding principle by reference to which sentences are to be measured. It requires the sentencing judge to consider the total criminality involved not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen (1997) 189 CLR 295 at 308 per McHugh J. 40Where a sentencing judge is imposing a sentence on an offender who has already been sentenced by another judge, the second judge must regard the first sentence as an appropriate exercise of the first judge's discretion and not seek to reduce or increase it by the sentences the second judge imposes: R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [99] per Spigelman CJ, Whealy and Howie JJ. 41Accordingly the principal question for this Court is whether the sentence imposed by Ashford DCJ is manifestly inadequate to reflect the respondent's criminal conduct, in light of the offences for which he was sentenced by Conlon DCJ and the sentence imposed for that offending. 42The effect of the sentence imposed by Ashford DCJ was to add two years and three months to the non-parole period and two years and three months to the head sentence. 43Paying due regard to the discretion of Ashford DCJ and the flexible approach allowed to sentencing judges in structuring sentences, I consider that her Honour failed sufficiently to reflect the totality of the criminality of the offending conduct before her, having regard to the sentences imposed by Conlon DCJ. I consider the sentence imposed to have been so manifestly inadequate that it must have involved error: Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520. 44The offences for which the respondent was sentenced by Ashford DCJ not only involved different victims and a different time period than those for which Conlon DCJ sentenced him, but also the two counts were discrete and involved different offending conduct. The offences of sexual intercourse and aggravated indecent assault over a period with a child under ten involved quite separate criminal conduct from the intimidation of the respondent's son (and victim's brother) with a rifle to prevent him from disclosing what he saw. The latter conduct, by reason of the structure of the sentence, appears not to have been penalised at all, although it substantially increased the totality of the criminal conduct. 45Indeed, the sentence imposed for the second count of five years and two months with a three-year non-parole period was an indication of the seriousness with which her Honour properly regarded the respondent's commission of the offence. However, the structure of the overall sentence deprived the sentence for that offence of any force. 46I do not consider that delay ought operate to the benefit of the respondent. As each day passed from the day on which his son, J, had the courage to tell his mother what he had seen, notwithstanding the respondent's threats to kill him if he did so, the respondent enjoyed his liberty and the opportunity it afforded him to re-offend, of which he took advantage. 47In my view, but for the residual discretion, it would be appropriate to re-sentence the respondent by altering the commencement date of the sentence for the second count from 27 September 2013 to 27 June 2015 and by altering the commencement date of the sentence for the first count from 27 September 2014 to 27 June 2017. This variation would have the effect of increasing the total head sentence for all offences from 11 years to 13 years and 9 months and the total non-parole period from 8 years to 10 years and 9 months. The first date on which the respondent would be eligible for release would be, if he were re-sentenced on this basis, 26 June 2021. The residual discretion 48The primary purpose of a Crown appeal against sentence is to lay down principles for the guidance of sentencing judges: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green v The Queen; Quinn v The Queen) at 465 [1]-[2]. This Court retains a residual discretion in the exercise of the jurisdiction under s 5D to refuse to intervene in a sentence even if error has been demonstrated and manifest inadequacy established. 49The factors relevant to the exercise of the residual discretion in any given case include delay, parity, the totality principle, rehabilitation, fault on the part of the Crown and significant deterioration in the respondent's health or mental well-being in the period between the imposition of the sentence and the hearing of the appeal: DPP v Karazisis [2010] VSCA 350; 31 VR 634 at [104]-[115], cited with approval in Munda v Western Australia [2013] HCA 38 at [72], footnote 71 per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ; see also Green v The Queen; Quinn v The Queen at [43] per French CJ, Crennan and Kiefel JJ. 50The respondent relied on delay, fault on the part of the police in not investigating the offences until 14 years after they were first reported and the significant deterioration in the respondent's health and mental wellbeing in the period between the imposition of the sentence and the hearing of the appeal. 51In the present case, there was a substantial delay between the time the offences were first reported in early 1997 and the time the respondent was sentenced. They were also reported in 2005 but the police took no action. The first time the police took any action in this matter was in 2011 when the victims' mother reported the matter again. By this time the respondent was already in custody as a result of subsequent offences committed against his stepdaughter. 52I do not consider that the delay of itself, or the apparent dilatoriness of the police ought cause this Court to exercise the residual discretion in favour of the respondent for the reasons given above in rejecting delay as a ground for supporting the adequacy of the sentence imposed by Ashford DCJ. It could not be said that there was any delay in the appeal process that might disrupt the respondent's rehabilitation, which is a usual circumstance in which delay grounds an exercise of the residual discretion in the respondent's favour: Green v The Queen; Quinn v The Queen at [43] per French CJ, Crennan and Kiefel JJ at [2]. 53I do, however, consider that it is appropriate to exercise the residual discretion in the respondent's favour to dismiss the Crown appeal on the basis of the deterioration in the respondent's mental and physical health since the commencement of his incarceration. He suffers from poor health and has trouble breathing by reason of emphysema and difficulty walking because of neck and spinal pain. He is in protective custody by reason of the nature of his offending. I accept his evidence that he is required to have an escort whenever he moves around the prison to obtain medication or to see the doctor because of the animosity directed towards him by other prisoners. 54The purposes of providing guidance to sentencing judges and denouncing the respondent's conduct are sufficiently served by these reasons and the indicative sentence as not to warrant extending the respondent's sentence. Although I consider that individual justice in the circumstances of the respondent's parlous physical and mental condition requires the exercise of the residual discretion to dismiss the Crown appeal, the sentence imposed was, for the reasons given, manifestly inadequate to reflect the totality of the respondent's criminal conduct. The respondent's gross abuse of trust and physical abuse of his own daughter and the intimidation of his own son with death threats to conceal his heinous conduct warranted a significantly greater sentence than the one imposed. Proposed order 55The order I propose is: (1)Appeal dismissed. ********** 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: 18 October 2013