Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RJA v R [2014] NSWCCA 89 Hearing dates: 15 May 2014 Decision date: 15 May 2014 Before: Basten JA at [29]; R A Hulme J at [1]; Campbell J at [30] Decision: 1. Allow the appeal. 2. Quash the sentences imposed by the Court of Criminal Appeal on 10 June 2008. 3. Re-sentence the appellant as follows: Count 3 - sentenced to imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 1 year 6 months. The sentence will date from 18 August 2006. The non-parole period expired on 17 February 2011 and the total term expired on 17 August 2012. Count 4 - sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence will date from 18 August 2007. The non-parole period will expire on 17 February 2015 and the total term will expire on 17 August 2017. Count 1 - sentenced to imprisonment comprising a non-parole period of 9 years and a balance of the term of the sentence of 4 years. The sentence will date from 18 August 2008. The appellant will become eligible for release on parole upon the expiration of the non-parole period on 17 August 2017. The total term will expire on 17 August 2021. Catchwords: CRIMINAL LAW - appeal against sentence - referral pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - standard-non parole period remains important guidepost where offence is in mid-range of objective seriousness - when not given determinative significance, lesser sentences warranted - appeal upheld and new sentences imposed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: AB v R [2013] NSWCCA 273 Dousha v R [2008] NSWCCA 263 Filippou v R [2013] NSWCCA 92 Koh v R [2013] NSWCCA 287 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Nguyen [2013] NSWCCA 195 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 R v Way [2004] NSWCCA 131; 60 NSWLR 168 RJA v R [2008] NSWCCA 137; 185 A Crim R 178 RS v R [2013] NSWCCA 227 Ryan v R [2001] HCA 21; 206 CLR 267 Category: Principal judgment Parties: RJA (Appellant) Regina (Respondent) Representation: Counsel: Mr I McLachlan (Appellant) Ms S Herbert (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2004/8249 Decision under appeal Jurisdiction: 9101 Date of Decision: 2006-08-18 00:00:00 Before: Finnane QC DCJ File Number(s): 04/31/0470 Judgment 1R A HULME J: On 18 August 2006 the appellant was sentenced by his Honour Judge Finnane QC to a total term of imprisonment of 21 years with a non-parole component of 16 years in respect of three offences of sexual intercourse with a child under the age of 10 years. Such an offence is contrary to s 66A of the Crimes Act 1900 (NSW) (since amended) and the applicable maximum penalty was imprisonment for 25 years. There was also a standard non-parole period prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW) of 15 years. 2There was an appeal against sentence that was determined by this Court on 10 June 2008: RJA v R [2008] NSWCCA 137; 185 A Crim R 178. It resulted in the total term of the sentences being reduced to 17 years with a non-parole component of 13 years. The individual sentences imposed by the Court were: Count 1 - 16 years with a non-parole period of 12 years dating from 18 August 2006. Count 3 - 8 years with a non-parole period of 6 years dating from 18 August 2012. Count 4 - 14 years with a non-parole period of 10 years dating from 18 August 2009. 3The appeal did not raise a ground, as is now raised, concerning an asserted misapplication of the standard non-parole period provisions of the Crimes (Sentencing Procedure) Act. That was because the appeal predated the clarification of the correct approach to that legislation set out in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 4Post-Muldrock, the appellant sought a review of his sentence pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW). On 19 December 2013, Latham J referred the "whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912": s 79(1)(b). Facts 5There was on the previous appeal, and now, no dispute about the facts found by the sentencing judge. They were set out in his sentencing judgment as follows: "[8] The only mitigating factor which I could find proved was that apart from these offences, the offender should be regarded as a person of good character. He gave no evidence at the trial and gave no evidence at the sentencing proceedings. He was entitled, of course, to decline to give any evidence, but his electing to take this course has meant that I know nothing about his motivation in committing these offences and I can form no opinion about rehabilitation. I must sentence the offender, in my opinion, on the basis that he committed three serious sex offences against his eight-year-old daughter and that he has no contrition for what he has done. Furthermore, these crimes were committed during a period in which he did similar things to his daughter on about 20 or 30 occasions. [9] The offender and TLS, the mother of the child, K, had a relationship of a sexual type during her teenage years and K was born, but at the time of the birth, the offender and TLS were no longer in a relationship. When K was about one year old, TLS contacted the offender and told him that he was the father of a girl. Commendably, he accepted responsibility for this and resumed the relationship with TLS. As a result of the resumption of this relationship, TLS had another child, a little boy, C. The four of them lived as a family until K was five years old, and C was two years old. The parties then split up again, and the offender went back to live in Narrabri. From this time until the 5th of October 2004, both parents shared the custody of the children. This meant that the children would go to live with the offender at his place of residence in Narrabri, on occasions, and with their mother in Shellharbour on other occasions. In 2003, the little boy, C went to live with his father on a more or less full-time basis. [10] In February 2004, the father of the offender died in Narrabri and TLS took the two children to Narrabri to be with their father at the funeral. She left them in Narrabri, for a few days, and it was during this time that the first offence was committed by the offender. [11] On the day of the funeral, the offender, and members of his family went to the funeral and to the wake. It would appear that the offender, and others in his family were drinking heavily. That night, the offender and the two children stayed at the house of one of the offender's brothers. I am satisfied that the evidence establishes beyond reasonable doubt that the two children went to bed in a double bed, and they were joined there quite late at night, by their father, the offender. He slept between the two children. K was asleep, but she felt her father, pulling her pants down the side of her legs. He then placed his penis between her legs from the back into her vulval opening. She felt it go up and down, felt his pubic hair and notice that she was 'yucky' and 'wet inside' the vulval opening. She then got up from the bed went to the kitchen, had a drink and then went [and] slept in another bed. Her father said nothing to her about this, nor did she say anything to him. [12] After a few days the two children went back to their mother, and stayed with her until May of that year. TLS drove the two children back to Narrabri in May and they remained with their father until later in the year. [13] The second offence of which the offender was convicted occurred in late August 2004. The child, K, was able to say that this offence occurred just before a named schoolteacher commenced at her school in Narrabri. It was agreed by the accused that the named schoolteacher came to the school on the 30th of August 2004. During May to August 2004, the children and their father lived with his mother in a house, some distance from Narrabri. One night, when K was in bed, and the offender was there too, he stuck his hands down her pants and pushed his fingernail into her vaginal opening. This caused her pain. [14] The third offence of which he was convicted again occurred when she was in bed with him. This was probably in September of the same year. On this occasion, he pulled her on top of him, so that they were facing each other and he moved her up and down on his penis a number of times. He did not ejaculate. She fell off on the ground and hit her head. [15] She said in evidence that similar sexual episodes occurred on 20 or 30 occasions, and that she had made notes in a diary by marking the days when these events occurred. Despite a search by police, that diary was not found. However, in my opinion, the complainant, K was a truthful, reliable and impressive witness. She was intelligent and definite in her evidence. It is obvious that the jury had the same opinion. ... [18] The offender was interviewed by police on the 6th of October 2004 and denied committing any sexual acts against his daughter. The jury considered those denials, but rejected them. I am certain that the jury was correct in coming to that conclusion. [19] These events came to light on the 5th of October 2004 when the little girl, K was at the home of a friend of her mother and was showing unusual behavioural signs. When her mother inquired further, K told her what had been going on. Police were contacted and she made a video interview with police on the 6th of October 2004. At the trial she was asked why she did not speak of these events before the 6th of October 2004 and she said that she was scared." 6The sentencing judge found that the offences of penile/vaginal intercourse in counts 1 and 4 were more serious than the offence in count 3 involving digital/vaginal intercourse. He also found that the offence in count 1 was more serious than that in count 4 because it involved ejaculation. Personally I am not sure that makes terribly much difference but the count 1 offence occurred when the complainant was aged eight whereas count 4 occurred when she was aged nine so it may be considered more serious on that account as well. In any event, this Court on the previous appeal accepted the findings of the sentencing judge concerning the comparative seriousness of the counts 1 and 4 offences as "justifiable": RJA v R at [48] (Spigelman CJ). Personal circumstances of the appellant 7The appellant was aged 29-30 at the time of the offences and is now aged 39. His criminal history is limited to two drink-driving convictions. The sentencing judge accepted that he was a person of prior good character. He grew up in the Narrabri area and had generally been in employment since leaving school. 8A body of good character evidence was presented at the sentence hearing but the judge discounted its worth on the basis that the sources did not accept the appellant's guilt as the jury at his trial had done. Good character in a sentencing context is concerned with the how an offender has conducted him/herself aside from the offending behaviour and how he/she is otherwise perceived in the community: Ryan v R [2001] HCA 21; 206 CLR 267 at [23] (McHugh J). Good character may be of less significance where there has been sustained offending over a period of time; in other words, the offending is not a one-off or isolated aberration: see, for example, R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [44]; Dousha v R [2008] NSWCCA 263 at [49]; RS v R [2013] NSWCCA 227 at [42]-[48]. The approach of the sentencing judge on this issue is doubtful but nothing really turns on it because he did specifically say that he took "prior good character" into account as a mitigating factor; and no issue was taken on the previous appeal, or now. Assessment of the seriousness of the offences 9The sentencing judge assessed the objective seriousness of each of the offences of penile/vaginal intercourse in counts 1 and 4 as being "at least a middle range offence". The offence involving digital/vaginal intercourse in count 3 was assessed as "not a middle range offence". 10This Court found that the count 1 and 4 offences were "in the middle level of seriousness". Nothing was said about the count 3 offence but it seems safe to assume that there was no disagreement with the primary judge's assessment. The previous appeal 11The previous appeal was successful on grounds contending that the judge had erred in taking into account that the complainant was "vulnerable because she was very young", such a factor being inherent in the offence. Spigelman CJ acknowledged (at [13]) that "the younger the victim the more serious the offence". But the judge had not discriminated between the offences where she was either nine (just within the threshold for the offence against s 66A) or eight (more within that threshold). 12The Court also upheld a ground asserting that there was error in the assessment that the offences in counts 1 and 4 were within the middle of the range of objective seriousness, but only on account of the judge's erroneous inclusion in the assessment of the vulnerability of the complainant. 13Finally, the appellant succeeded in persuading the Court that the judge had erred in imposing a longer sentence in respect of count 4 when he had found that the offence in count 1 was more serious because of the ejaculation involved. As the sentence for count 4 was the final sentence to commence through the process of accumulation, it was contended that the judge had increased it in order to achieve an appropriate ratio in the overall sentence. 14In re-sentencing, the Court accepted the judge's findings as to the objective seriousness of the counts 1 and 4 offences as I have mentioned. Contrary to the primary judge, it was of the view that there was another mitigating factor (aside from good character), that being that the appellant had a low probability of re-offending: s 21A(3)(g) of the Crimes (Sentencing Procedure) Act. Ground of appeal - The Court of Criminal Appeal erred in its consideration of the standard non-parole period in the light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120 with respect to each count 15The ground turns on the passage in the judgment of Spigelman CJ, with whom Price and McCallum JJ agreed, at [52]-[57]. I do not intend to set it out because of its length and also because it is readily available. It is apparent that the Court adopted the approach it had advocated in R v Way [2004] NSWCCA 131; 60 NSWLR 168. In respect of the offences in counts 1 and 4 that were found to be in the middle of the range of objective seriousness the Court considered whether there was justification for departing from the imposition of the standard non-parole period: for example, the reference in [57] to varying the non-parole period imposed for those offences by "reducing it from the standard non-parole period". The reference in [54] to considering a matter "when determining to impose a non-parole period less than the standard" may also be regarded as the Court giving the standard non-parole period determinative significance. 16These two aspects, adopting a two-staged approach to sentencing for standard non-parole period offences and giving the standard non-parole period determinative significance, were identified as erroneous in Muldrock at [25]-[28]. 17The Attorney General conceded "Muldrock error" in submissions concerning the Part 7 application and the Crown now makes the same concession. In my view, the concession is soundly based. Is a lesser sentence warranted: s 6(3) Criminal Appeal Act? 18The finding of error enlivens a consideration of whether a lesser sentence is warranted and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW). 19Affidavit material read in connection with this issue establishes that since being sentenced the appellant has been on protection; he has been well-behaved; he has been employed for most of the time; he has pursued education; he has engaged in some rehabilitation programs and is prepared to do more in this vein; and he has enjoyed few visits from family members for geographical reasons in more recent times. There is also material indicating an assessment of his risk of further sex offending as "low". 20The starting point in consideration of this material is that the primary judge accepted that the appellant was of otherwise good character and the Court found on the previous appeal that he had a low probability of re-offending. In this context the new material provides little more than would otherwise be expected. 21The Crown submitted that the further material provided now does not advance the matter of rehabilitation prospects in the appellant's favour. Given the already favourable finding made by this Court in 2008, I do not think that the appellant has made out a case for much greater mitigating weight to be given on this account. The new material more provides a stronger foundation for the finding he already has in his favour. 22In relation to the appellant being on protection, there is no suggestion in the material of there being anything that has rendered his custodial experience more onerous than for most inmates of correctional centres. Indeed, an affidavit read by the respondent indicates that he is currently allowed out of his cell for 11 hours a day and he has full access to recreational, educational and entertainment facilities. 23I accept the force of the respondent's submission that even after Muldrock the standard non-parole period, like the maximum penalty, prescribed for an offence remain important legislative guideposts in the assessment of sentence: see, for example, AB v R [2013] NSWCCA 273 at [87]; Koh v R [2013] NSWCCA 287 at [106]; and Muldrock itself at [27]. Where an offence is found to be in the middle of the range of objective seriousness the standard non-parole period may have greater significance: Filippou v R [2013] NSWCCA 92 at [116]. In R v Nguyen [2013] NSWCCA 195, a case where there was a finding of "mid-range offending", it was accepted (at [63]) that the standard non-parole period may be a more significant factor in sentencing where there is little operating in the offender's favour. But I am not persuaded that the present appellant can be said to have little operating in his favour. Findings of prior good character and a low probability of re-offending are not insignificant. 24Acknowledging all of that, in my view the individual sentences imposed upon the appellant, and their total effect, are heavy. I am driven to the belief that when the standard non-parole period is not given determinative significance they should be less. 25In re-sentencing I propose that the structure and order of the sentences be changed so as to more appropriately recognise the criminality inherent in each offence. The problem with the original structure of the sentences, replicated in the re-sentencing by this Court on the previous appeal, is the sentence for count 3 is entirely subsumed within the sentences for the other counts and thereby fails to reflect any additional criminality involved in that count. 26The original sentencing structure provided for a potential parole period of 5 years which meant the non-parole component represented 76 percent of the total term. The sentence structure imposed by this Court provided for a 4 year period, also providing a non-parole component being 76 percent of the total term. I am not persuaded that anything more than 4 years of potential parole is called for. The final sentence imposed will have an adjustment to its non-parole/parole proportions so as to achieve that result and for that reason alone I find that there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. 27The total effective sentence I propose is one of 15 years imprisonment with a non-parole component of 11 years. Orders 28I propose the following orders: 1. Allow the appeal. 2. Quash the sentences imposed by the Court of Criminal Appeal on 10 June 2008. 3. Re-sentence the appellant as follows: Count 3 - sentenced to imprisonment comprising a non-parole of 4 years 6 months and a balance of the term of the sentence of 1 year 6 months. The sentence will date from 18 August 2006. The non-parole expired on 17 February 2011 and the total term expired on 17 August 2012. Count 4 - sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence will date from 18 August 2007. The non-parole period will expire on 17 February 2015 and the total term will expire on 17 August 2017. Count 1 - sentenced to imprisonment comprising a non-parole period of 9 years and a balance of the term of the sentence of 4 years. The sentence will date from 18 August 2008. The appellant will become eligible for release on parole upon the expiration of the non-parole period on 17 August 2017. The total term will expire on 17 August 2021. 29BASTEN JA: I agree with R A Hulme J. 30CAMPBELL J: I agree with R A Hulme 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: 20 May 2014