GJ v R [2014] NSWCCA 292

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: GJ v R [2014] NSWCCA 292 Hearing dates: 20 November 2014 Decision date: 04 December 2014 Before: Simpson J at [1] Price J at [2] McCallum at [26] Decision: Leave to appeal out of time refused Catchwords: CRIMINAL LAW - appeal - sentencing - totality - adequacy of reasons Legislation Cited: Criminal Appeal Act 1912 (NSW) s5(1)(c) Crimes Act 1900 (NSW) s61J(1), s61M(1), s91G(1)(a), s91G(2)(a) Cases Cited: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Wilson [2005] NSWCCA 219 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 Category: Principal judgment Parties: GJ Crown Representation: Counsel: R Sweet (applicant) J Girdham SC (respondent) Solicitors: M Carr (applicant) J Phelis (Director of Public Prosecutions) File Number(s): 2011/152975 Decision under appeal Citation: R v GJ Date of Decision: 2012-02-16 00:00:00 Before: Sweeney DCJ File Number(s): 2011/052975

Judgment 1SIMPSON J: I agree with Price J. 2PRICE J: GJ, the appellant, seeks leave to appeal out of time pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by Sweeney DCJ on 15 March 2012. 3The appellant had pleaded guilty in the Local Court to the following offences: (i) Sequence 1: An offence of aggravated sexual intercourse without consent, contrary to 61J(1) of the Crimes Act 1900 (NSW), which occurred between 16 September 2000 and 16 September 2002, with a victim who was under the age of sixteen years, namely aged seven or eight years. This offence carried a maximum penalty at the time of the commission of the offence of 20 years imprisonment. (ii) Sequence 9: An offence of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act, being an offence that occurred between 16 September 2005 and 16 September 2006, when the victim was under sixteen years, namely aged twelve years. The maximum penalty for an offence contrary to s 61M(1) is 7 years imprisonment with a standard non-parole period of 5 years. (iii) Sequence 16: An offence of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act, being an offence that occurred between 16 September 2006 and 16 September 2007 when the victim was under sixteen years, namely aged thirteen years. (iv) Sequence 7: An offence of aggravated indecent assault contrary to s 61M(1) of the Crimes Act, being an offence that occurred between 16 September 2007 and 16 September 2008, when the victim was under sixteen years, namely aged fourteen years. (v) Sequence 11: An offence of using a child under fourteen years of age for pornographic purposes, contrary to s 91G(1)(a) of the Crimes Act, during the period 16 September 2005 and 16 September 2007, when the victim was twelve and thirteen years of age. The maximum penalty for this offence is 14 years imprisonment. (vi) Sequence 8: An offence of using a child above fourteen years of age for pornographic purposes, contrary to s 91G(2)(a) of the Crimes Act, during the period between 16 September 2007 and 16 September 2008, when the victim was fourteen years of age. The maximum penalty for this offence is 10 years imprisonment. 4All of the above offences were committed by the appellant on his youngest daughter. 5When adhering to his pleas of guilty in the District Court, the appellant asked her Honour to take into account on sentence four offences contrary to s 61M(1) of the Crimes Act that had been placed on a Form 1. 6The appellant was sentenced as follows (ROS 10): (i) Sequence 9; a non-parole period of 1 year's imprisonment, commencing on 20 January 2012, with an additional term of 1 year's imprisonment. (ii) Sequence 16; a non-parole period of 1 year's imprisonment, commencing on 20 January 2012, with an additional term of 1 year's imprisonment. (iii) Sequence 11; a non-parole period of 2 year's imprisonment, commencing on 20 January 2012, with an additional term of 1 year's imprisonment. (iv) Sequence 8; a non-parole period of 1 year's imprisonment, commencing on 20 January 2012, with an additional term of 1 year's imprisonment. (v) Sequence 7; a non-parole period of 3 year's imprisonment, commencing on 20 January 2013, with an additional term of eighteen months imprisonment. (vi) Sequence 1 (taking into account the four offences on the Form 1); a non-parole period of 4 years imprisonment, commencing on 20 January 2014, with an additional term of 3 years imprisonment. 7The total effective sentence imposed by the Judge was 9 years imprisonment commencing on 20 January 2012 and expiring on 19 January 2021, with a non-parole period of 6 years commencing on 20 January 2012 and expiring on 19 January 2018. The earliest date the appellant is eligible to be released on parole is 19 January 2018. 8The Judge had reduced the sentence by 25 per cent for the utilitarian value of the pleas of guilty. FACTS 9An agreed statement of facts was tendered which the Judge summarised in her sentencing remarks. The appellant was born in 1960 and married his wife in 1988, having three children. The youngest child was the victim of the appellant's offending. The offences took place between 2000, when she was 7 or 8 years old and the middle of 2008, when she was 14 years old. 10Shortly stated the facts are: Sequence 1: This offence occurred when the victim was 7 or 8 years old. The appellant went into her bedroom (which she shared with her older sister). The victim was asleep but awoke when he pulled her legs to the side of the bed. He pulled down her underpants, knelt on the floor and held her legs in the air. He licked her vagina for about two minutes. Sequence 11: On three separate occasions in March, May and July 2006 when the victim was 12 years old, the appellant photographed her naked body and vagina with his mobile telephone. He told her how to position her body before he took the photographs. On two other occasions, in October 2006 and June 2007, when she was 13, he engaged in the same conduct. All of this conduct was dealt with as one charge. Sequence 9: On one of the occasions in sequence 11 in 2006, the appellant took the victim's hand and moved it along the shaft of his penis. Sequence 16: On one of the occasions in sequence 11, in 2006 or 2007, when she was 13, the appellant touched her vagina with one of his hands. Sequence 8: On two occasions in January 2008 and August 2008, when the victim was 14, he used his mobile phone camera to photograph her body and vagina. This conduct was dealt with as one count. Sequence 7: When the victim was 14 and having a shower, the appellant got into the shower with her, kissed her on the lips and put his tongue in her mouth (Form 1 offence - sequence 4). He told her to put her hand on his penis and guided her hand along the shaft for about 10 minutes (Form 1 offence sequence 5). He then positioned her against the wall and stood behind her, rubbing his penis against her vagina and bottom, moving backwards and forwards for three to four minutes (sequence 7). The other Form 1 offences involved the appellant rubbing his penis against the victim's vagina (sequence 14) and moving her hand along the shaft (sequence 17). The appellant's subjective circumstances 11At the time he committed the offences, the appellant was aged 40 - 48 years. He was 52 years old when sentenced. 12The appellant had worked all of his adult life as a coach driver and had no prior convictions. 13In a report dated 21 November 2011, Dr Olav Nielssen, a psychiatrist, observed that the appellant did not have a psychiatric disorder, nor did he have any substance abuse issues. The Judge noted that Dr Nielssen reported that the appellant acknowledged his offences and expressed remorse for his behaviour. Her Honour stated (ROS 7): "Although [the appellant] did not give evidence in the sentence proceedings, I accept Dr Nielssen's professional opinion and accept [the appellant] is remorseful, as also indicated by his early pleas of guilty." 14The Judge related Dr Nielssen's dismissal of paedophilia and characterisation of the appellant's offences as "intra-familial, opportunistic offences that do not appear to be the result of a primary disorder of deviant sexual interest". Her Honour noted Dr Nielssen's opinion: "that this category of offence is typically associated with a lower risk of re-offending" (ROS 9). Her Honour observed (ROS 9): "Dr Nielssen's opinion bodes well for [the appellant's] prospects of rehabilitation." The adjournment application 15The application for leave to appeal was filed on 11 September 2014 some 2 years 6 months after the appellant was sentenced. An affidavit of Malcolm Douglas Carr, the appellant's solicitor, was filed in Court, which sought to explain the delay in instituting the appeal. As Mr Carr was not instructed prior to 4 December 2013, there was no material before the Court as to what may have occurred prior to that date after the appellant was sentenced. Mr R Sweet, the appellant's counsel recognised the difficulties that created for the appellant and sought an adjournment of the hearing of the appeal. 16The application for the adjournment was refused, as the Court considered that the proposed appeal had no merit and there were no prospects of success, even if the appellant was able to provide in the future a satisfactory explanation for the substantial delay in commencing the appeal. The Court was of the opinion that the rejection of the appellant's application did not cause any injustice to him. Grounds of Appeal 17The Notice of Appeal identifies two grounds, namely: 1. Sweeney DCJ erred in law, causing her sentencing discretion to miscarry, in that she failed to apply the totality principles, having added up the sentences for each of the offences. 2. Sweeney DCJ erred in law, causing her sentencing discretion to miscarry, in that she failed to give any or any adequate reasons as to why she had ordered some of the sentences to be served cumulatively upon other sentences imposed. 18The two grounds of appeal may be conveniently dealt with together. 19The appellant submitted that, having reached the conclusion after sentencing the offender on six separate offences, that the total effective sentence was 9 years imprisonment, with a non-parole period of 6 years, her Honour erred "in that she failed to record that she had considered and/or clearly failed to comply [with] the totality principle" (AWS 2.1.1). The appellant referred to the totality principle having two limbs, the first being that the total effective sentence must "bear a proper relationship" to the "overall criminality" involved in all the offences and the second limb being that the "total effective sentence imposed on an offender" should not constitute a "crushing sentence" (AWS 2.1.3). 20A further contention was that, having reached the conclusion that it was appropriate for there to be "partial accumulation" of the sentences, her Honour fell into error in giving absolutely no reasons at all as to why it was that she imposed sentences that were "partly concurrent and partly accumulated", other than stating she had done so to "achieve an appropriate total sentence" (AWS 3.1.1). 21The Crown referred to the Judge's findings in her remarks on sentence and submitted that it was obvious that she had considered the principle of totality. The Crown pointed out that an accumulation simpliciter of the individual non-parole periods would have resulted in an effective non-parole period of 12 years. The Crown contended that the Judge clearly took into account totality in reaching an effective non-parole period of half that length, and only two-thirds of the effective head sentence, having appropriately found special circumstances in order to adjust the ratio of individual non-parole periods to head sentences (CWS 35). Consideration 22As the appellant was being sentenced for more than one offence, the Judge was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. The total sentence imposed must properly reflect the totality of the criminality: R v Wilson [2005] NSWCCA 219. Subject to the application of established principle, questions of accumulation or concurrence are discretionary: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA1; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115. 23It is evident from her Honour's sentencing remarks that she carefully considered each of the offences and separately assessed their objective seriousness. After recounting the appellant's subjective case and determining that the sentences would be reduced by 25 per cent for the pleas of guilty, her Honour said (ROS 10): "To achieve an appropriate total sentence, the sentences will be partly concurrent and partially accumulated. I found special circumstances in the partial accumulation of the sentences to vary some of the non-parole periods" (italics added) 24In the exercise of her discretion, the Judge commenced the sentences for offence sequences 8, 9, 11 and 16 on 20 January 2012. The sentence for offence sequence 7, was partially accumulated on the non-parole period of offence sequence 11, as the sentence commenced on 20 January 2013. The sentence for offence sequence 1 (including Form 1 offences) was partially accumulated on the non-parole period of offence sequence 7 as the sentence commenced on 20 January 2014. 25It is plain that the Judge undertook the task of separately determining the starting points and lengths of each of the sentences in order to give effect to the principle of totality. Her Honour was not obliged to otherwise explain the structure of the sentence. In my opinion, the total effective sentence was appropriate for all of the appellant's offending and was not a crushing sentence. Accordingly, I propose that leave to appeal out of time be refused. 26McCALLUM J: I agree with Price J.