Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: EG v R [2015] NSWCCA 21 Hearing dates: 23 February 2015 Decision date: 03 March 2015 Before: Hoeben CJ at CL at [1] Harrison J at [49] R A Hulme J at [50] Decision: The sentence imposed by the District Court on applicant on 5 March 2014 is quashed. In lieu thereof, applicant sentenced to imprisonment with a non-parole period of 1 year, commencing 5 March 2014 and expiring 4 March 2015, with a balance of term of 1 year expiring 4 March 2016. Applicant to be released to parole on the expiration of the parole period. Catchwords: CRIMINAL LAW – sentence appeal – aggravated sexual intercourse with a child under 10 years – whether too much weight given to Victim Impact Statement – harm asserted in statement well beyond that which might ordinarily be expected – unusual facts – no sexual motivation – applicant affected by mental disability – assistance to authorities – genuine remorse – sentence manifestly excessive – need to re-sentence. Legislation Cited: Crimes Act 1900 – s66A(2) Crimes (Sentencing Procedure) Act 1999 – s21A(3)(a) Cases Cited: DBW v R [2007] NSWCCA 236 Dinsdale v R [2000] HCA 54; 202 CLR 321 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 R v Ellis [1986] 6 NSWLR 603 R v Gavel [2014] NSWCCA 56 R v MJB [2014] NSWCCA 195 R v Tuala [2015] NSWCCA 8 RP v R [2013] NSWCCA 192 RR v R [2011] NSWCCA 235 SW v R [2013] NSWCCA 255 Category: Principal judgment Parties: EG – Applicant Regina – Respondent Crown Representation: Counsel: T Molomby SC – Applicant K McKay – Respondent Crown Solicitors: Elizabeth Fleming & Associates – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2013/63057 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 5 March 2014 Before: Wells DCJ File Number(s): 2013/63057 Judgment 1. HOEBEN CJ at CL: Offences and sentence The applicant entered a plea of guilty in the Lismore District Court for the following offence: Aggravated sexual intercourse with a child under 10 years of age and under his authority, contrary to s66A(2) of the Crimes Act 1900. This offence has a maximum penalty of imprisonment for life and a standard non-parole period of 15 years. 1. On 4 March 2014 the applicant was sentenced to imprisonment with a non-parole period of 2 years and 6 months commencing 5 March 2014 and expiring 4 September 2016 with a balance of term of 2 years and 6 months expiring 5 March 2019. 2. The applicant seeks leave to appeal from that sentence on the following grounds: Ground 1 – The sentencing judge erred in giving too much weight to the Victim Impact Statement. Ground 2 – The sentencing judge erred in giving inadequate weight to the assistance provided to the police by the applicant in the circumstances of the case. Ground 3 – The sentence imposed by the sentencing judge was manifestly excessive in the circumstances of the case. FACTUAL BACKGROUND 1. The applicant is the paternal grandfather of the complainant, who at the time of the offence was aged 2. On 27 February 2013 the police spoke to the applicant and informed him that the complainant had made an allegation about him to her mother. The complainant made no disclosures to the police concerning him. The police officer informed him that there was no evidence and that she (the police officer) was not going to prosecute him. 2. After a sleepless night, the applicant telephoned a Family and Community Services worker and made admissions to her. As a result, the applicant was interviewed by the police and made admissions of the offence to which he has pleaded guilty. 3. He told the police that on or about 5 or 6 February 2013 he was looking after all four of his grandchildren (aged 14, 12, 4 and 2) until his daughter-in-law arrived home to collect them. It had been a difficult afternoon with the children in that one of them was being quite demanding. It was at this point that the complainant told him that she needed to have her nappy changed. The applicant said that at the time he was stressed and having difficulty coping with the circumstances of looking after the children. 4. The applicant said that he changed the complainant's nappy and cleaned her. While she was on the change table with no clothing on the lower part of her body, he said that he bent down and licked her on the outside of her vagina with his tongue. The applicant said that he had no idea why he did it. He said that it lasted a few seconds and that he put underpants on the complainant and left the room. 5. The applicant gave evidence in the sentence proceedings and repeated that evidence. He said that he had never done anything of that kind to that child or to any other child. 6. When the applicant was asked to explain what happened he said: "When she was lying there I just knelt down and licked her." He confirmed that he had bent down while she was lying on her back and licked her vagina. He said that it was just on the outside, rather than penetrating the lips of the vagina or anything of that kind. He said that he was sure about that. None of the other children were present at the time. Sentence proceedings 1. Her Honour reviewed the applicant's subjective circumstances. He was born in 1947 and until this incident, had led a blameless and positively contributing life. He had no previous criminal convictions. He had children of his own who were grown up and over the years he and his wife had fostered other children. 2. The applicant had worked over the years, being involved in various employments. After marrying and having three children, he was employed at a piggery, as a cleaner, in a small business and in a mail delivery business. He had a number of health issues relating to his age including some mild dementia. 3. A report of Dr Nielssen, psychiatrist, was before the court. Dr Nielssen opined a diagnosis of a significant depressive illness following a life event. The applicant took care of his wife for a couple of years when she became unwell until she was placed in a nursing home in 2007. She died in 2011. In 2009 he was diagnosed with prostate cancer and had a radical prostatectomy. This left him with incontinence and a complete loss of sexual function. 4. Dr Nielssen's alternative diagnosis was that of mild dementia. Dr Nielssen noted that an MRI scan of brain showed widespread small vessel disease, as well as a stroke, affecting the temporal and parietal lobes of the brain. Dr Nielssen noted that the abnormal slowness of the applicant's answers, his torpid emotional responses and his difficulty in spontaneous generation of a sentence despite prompting were consistent with this diagnosis. 5. Dr Nielssen concluded that any connection between those conditions and the commission of the offence was not clear, although he noted that the applicant reported changes in his usual behaviour which included neglect of the home and garden and feelings of stress and emotional problems after treatment for prostate cancer. Dr Nielssen formed the opinion that the applicant may have had a loss of judgment and inhibition as a result of the effects of the stroke and widespread cerebrovascular disease on his information processing and judgment. Dr Nielssen particularly noted [as her Honour observed when the applicant was giving evidence] that he appeared perplexed by his own behaviour and recognised that what he had done was wrong. Her Honour accepted that the applicant had tried to understand why he did what he did, but remained at a loss to explain his actions with respect to his grandchild on that day. 6. Her Honour took into account that the applicant had placed himself in the hands of a psychologist to be treated for an adjustment disorder with anxiety and depressed mood. She noted that as a result of his actions, the applicant had lost contact with a number of members of his immediate and extended family, not to mention the ostracism that confronted a person who is faced with charges of this kind. 7. Her Honour accepted that the applicant had acknowledged the offence at an early point of time. She found this to be rare in offences of this type where, even in the face of very strong evidence, offenders would often continue to deny their behaviour and would expose complainants, often young complainants, to the trauma of giving evidence and all the matters associated with that. Her Honour concluded that the matter could not have been prosecuted without the applicant's assistance through his admissions to police. 8. Her Honour next assessed the objective seriousness of the offending. She noted that the offence was clearly very serious, as was made obvious by the maximum penalty and the lengthy standard non-parole period. She noted the breach of trust involved in that the applicant was the victim's grandfather. 9. Her Honour then spent a substantial part of her remarks on sentence (two and a half pages out of ten) setting out the contents of the Victim Impact Statement (VIS) read to the court by the complainant's mother on her behalf. 10. Her Honour found that the offence had had serious consequences for the complainant and her family. She took into account those decisions (SW v R [2013] NSWCCA 255 and RR v R [2011] NSWCCA 235) to the effect that sexual abuse of children of very tender years will inevitably give rise to psychological damage, emanating at least from the confusion in the young mind of the victim of abuse. Her Honour noted that this could be so even in the case of a single act of sexual abuse. 11. Her Honour found: "In this case the very young victim has sustained significant adverse psychological consequences which may be traced back to the applicant's crime … although only time will tell how far-reaching the psychological consequences upon the complainant child will be." (ROS 6.2) 1. Her Honour summarised the VIS and made findings in accordance with its content. She found that the family had been turned upside down by learning of this offence. She accepted that all members of the family, including the complainant's older siblings, had experienced "lengthy emotional trauma". She accepted that the complainant spoke about the abuse almost daily in the weeks after it occurred. Her Honour accepted that both parents had to take leave from work to deal with the emotional trauma. 2. Her Honour accepted in full the detail of the effect this had had upon the applicant's son (the complainant's father) including the breakdown in his relationship with the applicant and difficulties which it had caused in his relationship with the complainant. Her Honour accepted that the complainant had developed and was demonstrating what the mother described as "sexualised behaviour" which was confronting and difficult for the parents to understand and deal with. Her Honour found that this "sexualised behaviour" had also adversely affected the complainant's siblings. 3. Having made those findings based on the VIS, her Honour took into account the following when considering the objective seriousness of the offending: "The nature of the conduct is clearly an important or significant matter to take into account. The conduct amounted to licking her on the outside of her vagina for a few seconds. There is no evidence that there was insertion of any object or exposure of the offender to the child. There was no force, threats or physical pain inflicted. As noted this was of brief duration and an isolated instance. There was no suggestion and I accept that the offence was not premeditated or planned, it has, on all the evidence available to this Court the hallmarks of an opportunistic spontaneous act. In the circumstances it is very difficult and indeed a finding cannot be made that the motivation was some form of sexual gratification. It was of very short duration. I accept the offender's account in his sworn evidence that he has honestly tried hard to understand his behaviour and does not know why he acted as he did. He can only consider that it was an accumulation of the circumstances that day, the pressure of minding the children and it not being a very easy day. Against a background of upheaval for the offender it had not been many years since his wife had died. It seems his own physical and mental wellbeing was on a downward slide. For all of those reasons, I have determined that for an offence of this kind, in particular having regard to the nature of the conduct, the duration and that it was isolated, that it falls at the low end of objective seriousness." (ROS 7.7 – 8.5) 1. Her Honour found that it was necessary to impose a sentence which took into account general deterrence to deter others from acting in a similar way and personal deterrence, even though her Honour accepted that there was very little chance that the applicant would re-offend. Her Honour was not prepared to give less weight to the principles of deterrence, denunciation and protection of the community. She observed: "There has been undoubtedly some considerable harm done to this very young child in the commission of the offence and therefore to her family and the broader community … I regard what occurred as a very short-lived aberrant instance of wrong yet very serious criminal behaviour with significant ramifications for the child in the wider community. In some ways the offence is unique and unusual as submitted on his behalf. Nevertheless the court is required not to lose sight of the objective seriousness of the offence despite the subjective matters in formulating the sentence." (ROS 8.9 – 9.3) 1. In relation to the applicant's admissions, her Honour said: "I have had regard to the plea of guilty that was entered at an early stage. In addition to the plea and its utilitarian benefit, I have regard to the fact that his admission in the absence of any evidence available to the prosecuting authorities at the time of the revelation or complaint by the child is strong proof of his genuine remorse. That stands him in a very strong position in terms of the regard that might be had for his prospects of rehabilitation which are very high." (ROS 9.4) 1. Her Honour accepted that due to the applicant's advanced age and his physical and mental infirmity, and the nature of the offence, his time in custody would not be easy. She noted that this was his first time in custody. THE APPEAL Ground 1 – The sentencing judge erred in giving too much weight to the Victim Impact Statement. 1. The VIS by the mother of the complainant, dated 18 December 2013, was tendered by the Crown over objection. The penultimate paragraph of the statement was rejected but the remainder was before the court. Counsel for the applicant made it clear that she was not making any concessions that the events described in the VIS had happened. The Crown pressed the tender of the balance of the VIS on the basis that it provided evidence of the impact on the family. Her Honour admitted the VIS saying: "Those paragraphs do describe what the complainant or what is observed of the complainant and the impact on the family and I have regard to it only to that extent". (18.12.2013 – T.14.46) 1. The matter was adjourned and both the Crown and the defence provided further written submissions. In its original outline of submissions and in the further submissions, the defence submitted that there was no injury to the complainant. No submission by the Crown traversed that assertion of "no injury" or "no substantial emotional harm" as a mitigating factor under s21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999. Nor did the Crown make any submissions in support of the proposition that "the injury, emotional harm, loss or damage caused by the offence was substantial" as set out in s21A(2)(g) of that Act. It would, of course, have been necessary for the Crown to establish that aggravating feature beyond reasonable doubt. 2. Apart from the VIS, when her Honour came to consider the issue of harm to the complainant and her family, the evidentiary position was this. The agreed facts did not allege an injury to the complainant. There was no material by way of a psychological/psychiatric report in relation to actual or anticipated future psychological or emotional harm to the complainant. She was aged 2 years when the offence occurred and she had made no disclosure to the police. The offence had not involved any penetration and had occupied a few seconds. 3. When her Honour dealt with this issue in her sentence judgment, she observed that the offending had "serious repercussions" and referred to the cases of SW and RR noting in the latter case that the very young victim had sustained significant adverse psychological consequences. Her Honour found "the same might be observed in the circumstances here although only time will tell how far-reaching the psychological consequences upon the complainant child will be". Her Honour then set out what had been said in the VIS concluding: "And clearly a child of such tender years will be affected for an ongoing period. … There has undoubtedly been some considerable harm done to this very young child in the commission of this offence and therefore to her family and the broader community … very serious criminal behaviour with significant ramifications for the child and the wider community." 1. It is accepted that a victim of child sexual abuse will usually suffer some emotional harm and that this is not a matter which the Crown is required to prove beyond reasonable doubt (DBW v R [2007] NSWCCA 236 at [39] per Spigelman CJ; R v MJB [2014] NSWCCA 195 per Adamson J). There does, however, need to be a reasonable factual basis for conclusions such as were arrived at by her Honour in this case. The facts in SW were significantly different. There was much more serious sexual offending which occurred on numerous occasions to a much older child. In RR the victim was aged 5 and again had been subjected to significantly more serious offending over a longer time. 2. As was explained by Price J (with whom Simpson and R A Hulme JJ agreed) in RP v R [2013] NSWCCA 192) there can be error where a judge attributes excessive weight to a VIS. At [27] Price J said: "27 It 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. 28 As 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."" 1. The circumstances of this case are to be contrasted with those discussed by the Court (Leeming JA; Johnson and Hall JJ) in R v Gavel [2014] NSWCCA 56 where the Court said: "104 The sentencing Judge referred to the victim impact statement, noting that it was "an eloquent and insightful testimony to the serious psychological consequences that these offences have had upon [the victim]". Her Honour then stated that, without seeking in any way to trivialise or minimise the effect of the offences upon the victim, "this is not a matter where the harm is a matter of aggravation". 105 In so concluding, the sentencing Judge was addressing the statutory aggravating factor in s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999 as to whether the injury, emotional harm, loss or damage caused by the offence is substantial. 106 This Court has stated that sentencing Judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences and that, as a result, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm: Stewart v R [2012] NSWCCA 183 at [61]. 107 In the area of sex offences committed against young children, s.66A(2) provides for a very substantial penalty. It may be taken that a factor which contributes to the setting of this penalty (and the standard non-parole period) is the expectation that substantial harm will result to a young child victim of sex offences. 108 The victim impact statement in this case pointed to many of the adverse psychological consequences affecting an eight-year old girl who had been subjected to a course of sexual abuse by a trusted person over a period of months. 109 The exposure of an eight-year old girl to images and conduct of the type described earlier over a period of months must inevitably have a significant and long-term effect upon her. The victim impact statement made clear that a once "bubbly, outgoing and fun loving eight-year old girl" had become confused and apprehensive in home and school settings, with friends and others. By the time the victim impact statement was prepared on 8 March 2013, extensive psychological support had been undertaken, with the victim continuing to manifest anxiety, confusion, mistrust, shame, anger and guilt." 1. The weight to be given to a VIS in sentence proceedings was comprehensively examined by Simpson J (with whom Ward JA and Wilson J agreed) in R v Tuala [2015] NSWCCA 8 where her Honour said: "What do these decisions establish? 77 By s 28 of the Sentencing Procedure Act, victim impact statements are part of the landscape in the sentencing process. That is not in issue. What is here in issue is the extent to which a victim impact statement can be used to prove an aggravating factor of the kind specified in s 21A(2). Almost invariably the aggravating factor in question is that specified in s 21A(2)(g). It is to be remembered that such aggravating factors must be proved beyond reasonable doubt. … 79 Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents. 80 Difficulties can arise, for example, where: the facts to which the victim impact statement attests are in question; or the credibility of the victim is in question; or the harm which the statement asserts goes well beyond that which might ordinarily be expected of that particular offence; or the content of the victim impact statement is the only evidence of harm. RP is an example of the third of these. 81 In these cases, considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard." 1. While her Honour did not in terms find that the matters in the VIS gave rise to an aggravating factor of the kind specified in s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 her treatment of that material had the same effect. In my opinion her Honour erred in doing so. 2. As her Honour accepted, the circumstances of this case were "unique and unusual". The offending was at the bottom level of seriousness for offences of this kind. The consequences described in the VIS, both in relation to their effect on the complainant and the family, went beyond that which would normally be expected. For full weight to be given to those matters, more than an uncritical acceptance of the VIS was required. Some additional support of the kind discussed in RP v R and R v Tuala was required. 3. Given the very different factual circumstances of the offending in this case, the age of complainant and the untested nature of the VIS from a person other than the complainant, I have concluded that this ground of appeal has been made out. Ground 2 – The sentencing judge erred in giving inadequate weight to the assistance provided to the police by the applicant in the circumstances of the case. 1. Her Honour found in the applicant's favour that the matter could not have been prosecuted without his assistance through his admissions to the police. Her Honour accepted that although he did not approach the police in the first instance, or acknowledge the offence immediately, he did so soon after and that this in her experience very rarely occurred. She referred to the more common scenario of offenders in child sexual abuse cases continuing to deny their offending in the face of strong evidence, thereby exposing the complainants to the trauma of giving evidence and associated problems. 2. While accepting that the very young age of the complainant presented difficulties to the prosecution in adducing evidence, the Crown submitted that this did not entitle the applicant to an allowance in terms of the principle in R v Ellis [1986] 6 NSWLR 603. I agree that the facts of this case are different to those in Ellis, most particularly because they involved a question of proof rather than an offender making admissions where there was no suspicion of any offending on his or her part. In that regard, her Honour took into account the applicant's admissions as strong proof of his genuine remorse, which supported her conclusion that his prospects of rehabilitation were very high. 3. Remorse is a separate factor to assistance, and her Honour does not appear to have specifically considered the question of assistance. Accordingly, there is some force in this ground of appeal. I have concluded that in the circumstances of this case, it is not necessary to reach a final decision in relation to this ground. The issue is better taken into account when considering the third ground of appeal. Ground 3 – The sentence imposed by the sentencing judge was manifestly excessive in the circumstances of the case. 1. Although the maximum penalty for this offence is life imprisonment with a standard non-parole period of 15 years, the facts and circumstances of the case make it "unique and unusual". Both the nature of the act which constituted the offending and the subjective features of the applicant support that conclusion. Her Honour found that by reference to the nature of the conduct, its duration and that it was isolated, it was at the lower end of objective seriousness. Not only was the applicant's action unplanned, there was no sexual motivation. It constituted a one-off and brief aberration on the part of the applicant. There was no penetration. Her Honour accepted that the applicant had tried with the help of professional experts to understand why he acted in the way he did in that brief moment. The medical evidence was all one way and fully supported those conclusions. At the time of the offending he was suffering from an adjustment disorder with depressed mood or mild dementia. The latter diagnosis was supported by the MRI scan of the brain which showed widespread small vessel disease, as well as a stroke affecting the temporal and parietal lobes of the brain. This condition could have adversely affected his judgment. The medical evidence and that of the applicant (which her Honour accepted), was that this was a one-off event which would not be repeated. 2. General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment. In this case, the applicant's mental condition and his inability to explain or understand his actions (which her Honour accepted) meant that general deterrence had little part to play in his punishment. Similarly, the one-off nature of the offending and the very high unlikelihood of him re-offending meant that specific deterrence and protection of the community were not significant issues. 3. Denunciation, however, does remain an important principle despite the many extenuating features of the applicant's case. It is for this reason that a custodial penalty for this offending was inevitable. There is a need to denounce the actions of those who would prey on vulnerable children and who intentionally molest them. That having been said, unlike most cases of this kind, this matter is distinguishable because of the absence of any sexual gratification element. 4. A further ameliorating consideration is that custody for the applicant is more onerous because of his age, his deteriorating physical and mental health and the nature of his offence which has led to him being kept in "protection". It was on this basis that her Honour found special circumstances in the applicant's favour. 5. The onus of establishing that a sentence is manifestly excessive is a high one and what has to be made out is that the sentence was "unreasonable or plainly unjust" (Dinsdale v R [2000] HCA 54; 202 CLR 321 at 325). By reference to the matters referred to above, however, I am satisfied that the sentence imposed on the applicant in this case was unreasonable and plainly unjust and that the sentencing discretion has miscarried. 6. The factual circumstances of this case are so unusual as to render comparisons with other cases involving offences against s66A(2) of little or no assistance. As was pointed out by the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [60]: "60 … But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal." 1. By reference to those matters, the intervention of this Court is warranted. Taking into account all relevant matters, including evidence of events which have occurred since the sentence hearing, I have concluded that a lesser sentence is warranted in law. Conclusion 1. The orders which I propose are as follows: 1. The sentence imposed by the District Court on the applicant on 5 March 2014 is quashed. 2. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 1 year, commencing 5 March 2014 and expiring 4 March 2015, with a balance of term of 1 year expiring 4 March 2016. 3. The applicant is to be released to parole on the expiration of the parole period. 1. HARRISON J: I agree with Hoeben CJ at CL. 2. R A HULME J: I agree with Hoeben 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: 03 March 2015