Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Erazo v R [2016] NSWCCA 139 Hearing dates: 17 June 2016 Date of orders: 15 July 2016 Decision date: 15 July 2016 Before: Ward JA at [1] Davies J at [8] R S Hulme AJ at [77] Decision: (1) Extend time for the application for leave to appeal to 21 January, 2016; (2) Leave to appeal granted; (3) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence – multiple sexual offences committed by offender against step-daughter – victim aged 12 to 17 years – intercourse resulting in pregnancy – offender arrested but not charged after one incident – continuation of offending - challenges to factual findings by sentencing judge – good character apart from offending – whether such good character could be disregarded - aggregate sentence – whether sentence manifestly excessive – whether offences occurring in family home was an aggravating factor – discussion concerning whether cases holding that commission of offence by family members in the victim's home is not an aggravating factor should be reconsidered – errors established – sentence not manifestly excessive - no lesser sentence warranted Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Aktar v R [2015] NSWCCA 123 AG v R [2016] NSWCCA 102 DC v State of New South Wales [2010] NSWCA 15 Ingham v R [2011] NSWCCA 88 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Knight v R [2015] NSWCCA 222 Melbom v R [2013] NSWCCA 210 R v Comert [2004] NSWCCA 125 R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v MJB [2014] NSWCCA 195 R v Tuala [2015] NSWCCA 8 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Tweedie v R [2015] NSWCCA 71 Category: Principal judgment Parties: Elver Antonio Ruiz Erazo (Applicant) Crown (Respondent) Representation: Counsel: P Little (Applicant) V Lydiard (Respondent) Solicitors: Grays Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/312860 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 09 May 2014 Before: Williams ADCJ File Number(s): 2012/312860 Judgment 1. WARD JA: I have had the advantage of reading in draft Davies J's reasons, with which I agree. 2. As to ground 9 of the grounds of appeal, I share the reservation expressed by Davies J as to the restrictiveness of the view expressed by McClellan CJ at CL in Ingham v R [2011] NSWCCA 88 at [112], following the line of authority since R v Comert [2004] NSWCCA 125, as to the lawfulness of the offender on the premises leading to a conclusion that it will not be an aggravating circumstance when a victim is assaulted in his or her own home. I consider that there is force in the observations made by RA Hulme J in Melbom v R [2013] NSWCCA 210 at [44] and by Wilson J in Aktar v R [2015] NSWCCA 123 at [43]-[63] on that issue. However, for the reasons given by Davies J, I agree that on the present state of the law the finding that it was an aggravating factor that the offender had used the family home "as a means of committing the offences" was in error and that the distinction that the trial judge sought to draw in that regard was not available. 3. As to grounds 5 and 7, which RS Hulme AJ would uphold, I respectfully agree with Davies J that the findings complained of in those grounds were open when regard was had to the Agreed Facts and the Victim Impact Statement. The first was a composite finding that the victim was "at an age when she was battling with puberty, battling with being in a new country and speaking a different language and trying to come to terms with her new school environment". The second was a reference to the victim's traumatic teenage years. It is clear that the offences occurred at and around puberty (not least because of the victim's age when they commenced and the fact that she then became pregnant towards the end of year 10 of her schooling as a result of one of the assaults). The victim referred in her Victim Impact Statement to her difficulties at school (compared to her experience of school in South America), to not having a good command of English and to being a target for bullies. She felt ashamed, guilty and scared that friends, the Catholic school she attended, and the community would find out about the abuse and the termination of her pregnancy; and her embarrassment and shame when she had to ask a school friend how to do a pregnancy test. While I accept that the trial judge used somewhat emotive terms in describing the victim's vulnerable situation at the time of the offences, I would conclude that the inferences he drew were open to him. 4. Moreover, even if the trial judge erred as identified by RS Hulme AJ in relation to the matters the subject of grounds 5 and 7, I agree with RS Hulme AJ that they do not demonstrate that the sentence imposed was manifestly excessive. 5. As to the re-sentencing exercise to be carried out by this Court in light of the errors identified by Davies J, I agree with RS Hulme AJ that the sentence imposed on the appellant was manifestly inadequate. Elsewhere, it has been recognised that the risk of harm to a child exposed to an abusive parent or guardian must self-evidently be very high (see Sackville AJA in DC v State of New South Wales [2010] NSWCA 15 at [52], his Honour there observing that it is difficult to think of a more vulnerable class of persons than children subjected to sexual abuse by such persons). 6. Having regard to the objective seriousness of the offending, the matters referred to in Davies J's reasons (at [71]–[73]), the submissions made by counsel for the appellant, and the material that is before this Court, I am firmly of the view that no lesser sentence than that imposed by the trial judge should be imposed. The manifest inadequacy of the original sentence makes it quite outside the available range. 7. I therefore agree with the orders Davies J has proposed. 8. DAVIES J: The Applicant pleaded guilty on 3 March 2014 in the Campbelltown District Court to six counts of aggravated sexual intercourse without consent. He asked that six other offences be taken into account on Form 1 documents. Three of those counts were also aggravated sexual intercourse without consent, two were aggravated indecent assaults and one was aggravated incite act of indecency. 9. The maximum penalty for the principal offences is 20 years' imprisonment. There is a standard non-parole period of ten years for offences committed after 1 February 2003. The maximum penalty for aggravated indecent assault is seven years' imprisonment with a standard non-parole period of five years for offences committed after 1 February 2003. The maximum penalty for aggravated incite act of indecency is five years' imprisonment. There is no standard non-parole period. 10. On 9 May 2014 the Applicant was sentenced by Acting Judge Williams to an aggregate sentence consisting of a non-parole period of ten years commencing 4 March 2014 and expiring 3 March 2024 with an additional term of four years expiring 3 March 2028. The indicative sentences were these: Count 1 taking into account the Form 1 (aggravated indecent assault) – minimum term of six years with an additional term of three years commencing 4 March 2014; Count 2 taking into account the Form 1 (aggravated indecent assault and aggravated sexual intercourse without consent) – minimum term of six years with an additional term of three years commencing 4 September 2014; Count 3 taking into account the Form 1 (aggravated incite act of indecency) – minimum term of seven years with an additional term of three years commencing 4 March 2015; Count 4 taking into account the Form 1 (aggravated sexual intercourse without consent) – minimum term of seven years with an additional term of three years commencing 4 September 2015; Count 5 taking into account the Form 1 (aggravated sexual intercourse without consent) – minimum term of nine years with an additional term of four years commencing 4 March 2016; Count 6 – minimum term of nine years with an additional term of four years commencing 4 September 2016. 1. The Applicant now seeks leave to appeal on the following grounds: His Honour erred in: the sentence imposed was manifestly excessive finding "when the victim was adjusting to the fact of living in a new country, learning to speak a new language and attending a different school system" as there was no evidence to find that, (page 2.3 of sentence) finding "that she always would have been substantially at a physical disadvantage" as this occurs in almost all cases of having sexual intercourse between an adult male and a complainant of the age of this girl. taking into account charges not proceeding in respect of count 4 finding at page 8.4 "at an age when she was battling with puberty, battling with being in a new country and speaking a new language and trying to come to terms with her new school environment … vital and difficult times to develop..." when there was no evidence to that effect. finding at page 8.7 "I have no doubt that what happened to her will affect her and be with her for the rest of her life. It is to be hoped that appropriate counselling Mr Erazo's appalling behaviour" when there was no evidence to that effect. finding at page 9.2 "throughout her traumatic teenage years" when there was no evidence they were traumatic aside from these offences. finding as aggravating features at page 9.3 that the attentions were "....painful and causative of harm" as that is generic to the offences themselves with the age difference and anal intercourse as well as not being aggravating features included in section 21A (2) Crimes (Sentencing Procedure) Act. finding that using the family home was an aggravating feature when it is unlikely to occur anywhere else. It is generic to most offences of this type, taking into account the pregnancy termination '"her body was physically invaded again .... constituting another emotional and actual assault on her caused by the prisoner" an uncharged criminal offence(s) in failing to take into account his good character. in failing to make a finding as to the discount for the plea of guilty and remorse. in his findings at page 12.5 re physical violence as what occurred is typical and generic to offences of the type committed by the prisoner. in specific deterrence given the findings and evidence of remorse, the evidence from the prisoner and the report of Dr Pusey and his willingness to undergo counselling/treatment and coursed whilst in custody. in finding at page 15.3 that the falling pregnant at the same time as the mother to the same man must have been humiliating as there was no evidence to this effect particularly in the victim impact statement. in failing to warn the prisoner's representative of the findings in these grounds denying the opportunity to be heard (i.e. procedural fairness That the cumulative effects of all of the grounds is such that the appellant was not sentenced according to law. 1. The Notice of Appeal was not filed until 21 January 2016. A Notice of Application for Extension of Time for Leave to Appeal was filed on the same day. The reason given on the Notice was this: Elver Erazo has not been able to raise the funds to appeal this matter until now, he has now the funds available. The Crown opposed an extension of time. The offending 1. The victim in the offending was the Applicant's stepdaughter. 2. The victim's mother migrated to Australia from Peru in 1994. In 1998 she met the Applicant and formed a de facto relationship. Two children were born to that relationship. In June 1998, the victim and her half-brother migrated to Australia with their grandmother. The victim was then aged ten. 3. The offence in count 1 of the indictment took place in October 2000 when the victim was aged 12 years. She was in year 7 at the local Catholic school. The Applicant followed her to the bedroom and shut the door behind them. He said, "Can you do something for me". He quickly pulled his pants down and started rubbing his erect penis with his hand. He grabbed the back of the victim's head, pulled her head forward and pushed his penis into her mouth. She tried to push his hand away from the back of her head and pull away from his penis. The Applicant thrust his penis back and forth for about 30 seconds and then withdrew. He did not ejaculate. This was the first offence committed by the Applicant against the victim. 4. Between 1 January 2001 and 31 December 2003 the Applicant came into the bedroom of the victim's grandmother where the victim was playing a computer game. He unzipped his jeans and took out his penis which became erect. The Applicant grabbed the victim's left hand and pulled it onto his penis. He kept his hand on top of her wrist and forced her hand up and down his penis, masturbating him. The victim tried to pull her hand away but the Applicant held her hand tightly and would not let her do it. The offence lasted for about a minute when the grandmother entered the room. This offence constituted the Form 1 matter relating to count 1. 5. Count 2 took place between 1 January 2002 and 31 December 2002. The victim was 14 years old. The Applicant came into the victim's bedroom and sat on her bed. He forced her to access a porn site on her computer. As he was perusing the images on the screen he started rubbing his crotch. He asked the victim "Do you want to see it?" but she shook her head and said "No". The Applicant took his erect penis out of his pants and forced the victim to rub his penis with her hand while they looked at the pictures. He then grabbed his penis and told her to put it into her mouth. She said that it made her feel sick so he then suggested that they do something else. That constituted the first of the two offences on the Form 1 (aggravated indecent assault) relating to count 2. 6. The Applicant then pulled the victim's underwear down. He forced her legs open and spread her labia open using his fingers. The victim tried to close her legs. The Applicant then put his tongue in her vagina. He kept her legs apart with his hands and was biting and hurting her. That lasted for 15 minutes until the Applicant became frustrated and said to the victim "Why can't you come?" The Applicant then continued to perform cunnilingus on her. That constituted the second offence on the Form 1 (aggravated sexual intercourse without consent) relating to count 2. 7. The Applicant then inserted two fingers into her vagina. After two minutes he stopped and said he would finish himself off in the bathroom. That constituted count 2. 8. In 2003 when the victim was 15 years old the Applicant started to fondle her whilst she was on her bed. He took his erect penis out of his pants and said to her, "Come here and put it in your mouth." The victim said, "It makes me want to throw up", so the Applicant said, "Do it with your hand". He forced her to masturbate him for about five minutes and he then ejaculated in his hand. That constituted the Form 1 offence relating to count 3 (aggravated incite act of indecency). 9. About six months later, somewhere between 1 June 2003 and 12 September 2003 the Applicant came into the victim's bedroom. He took off all of her clothes. He spread the victim's legs and rubbed his erect penis on the outside of her vagina. He then pushed his penis into her vagina. She told him it was hurting but he told her to relax. He continued to push his penis in and out of her vagina. 10. They were interrupted by the victim's half-brother who opened the door slightly. Thereafter the Applicant told the victim to go to her bedroom. She went to the toilet and noticed some bleeding from her vagina. This was the first time she had experienced penile-vaginal intercourse. This constituted count 3. 11. On 13 September 2003 the victim was watching television. The Applicant was present but the rest of the family were in bed. The Applicant placed his hands down the victim's pants and touched the front of her vaginal area. He placed the victim's hand underneath his tracksuit pants against his penis. During this time he was pushing his fingers inside her vagina even though she was sitting down. This constituted the Form 1 matter relating to count 4. 12. The Applicant went upstairs for about 20 minutes and then returned. He led the victim into the kitchen. He pulled her pants down and lifted her onto the dining table. He pulled his own pants and underpants down and put his penis inside her vagina while holding her up. The victim said, "It hurts a lot". The Applicant lifted the victim up and carried her to an adjacent bathroom saying, "So that your mum doesn't hear us". 13. The Applicant continued to move his penis up and down in her vagina for about 90 seconds when one of the bathroom doors opened. The victim's mother was at the door. She called out, "What are you doing?" The Applicant directed the victim to sit on the toilet and pretend she was using it. The Applicant walked out of the bathroom into the garage through the other door. 14. The victim's mother then confronted the Applicant. He denied any wrongdoing. She called the police who attended and arrested the Applicant. The victim was taken by ambulance to Liverpool Hospital in a very distressed state. The doctor who examined her found vaginal tears consistent with the sexual abuse complained of. 15. Charges against the Applicant did not proceed because the victim did not make a statement. She was pressured by her mother not to make a statement and not to talk to the police. The Applicant was allowed to return to the family home. This incident constituted count 4. 16. In early 2005 when the victim was 17 the Applicant entered her bedroom. He told the victim to lie down. As she did so he pulled her clothes off. The Applicant then proceeded to have penile-vaginal intercourse with her over the space of about a minute. This was the Form 1 matter relating to count 5. 17. The Applicant then turned the victim around on the bed and told her to get onto her hands and knees. He then proceeded to have penile-anal intercourse with her. The victim said, "It's really hurting me, stop". Despite her protestations he continued to thrust very hard into her anus for about 30 seconds. This is count 5 on the indictment. 18. The Applicant then pulled his penis out of her anus and penetrated her vagina. After about three minutes he ejaculated inside her vagina. As a result of this act of intercourse the victim became pregnant. This was at the same time as the victim's mother was also pregnant by the Applicant. This incident was count 6 on the indictment. 19. On 16 May 2005 the victim attended a clinic where her pregnancy was terminated. Not long afterwards the Applicant approached the victim to try to have sex with her again. She refused but he persisted for some time in asking for oral sex. 20. From 2000 to mid-2005 the Applicant assaulted the victim on numerous occasions in addition to those occasions referred to above. At no time did the victim consent to these sexual assaults. Subjective matters 1. The Applicant gave evidence at the sentence proceedings but little evidence concerning his background was led from him. Rather, reliance was placed on a psychological report from Dr Paul Pusey, a clinical and forensic psychologist. 2. That report disclosed that the Applicant was born in Colombia being the ninth of 11 children. He lived there for 29 years until he migrated to Australia. He met his wife, the victim's mother, and they married in 1998. 3. His childhood was unremarkable. He had a good relationship with his parents and his siblings. He left school at the age of 16 and completed an apprenticeship in diesel mechanics. He has continued to work as a diesel mechanic both in Colombia and Australia. Until his incarceration he owned and ran a diesel mechanics business in the western suburbs of Sydney. 4. He and his wife have two children, a son aged about 17 and a daughter aged about ten. The Applicant's wife appears to have had two children from prior relationships, one of whom was the victim of the present offences. 5. Dr Pusey, after administering various tests, concluded that the Applicant had a mild degree of cognitive impairment or intellectual disability. He said that there was no evidence, however, that would suggest the offending behaviour was in any way influenced by any degree of neuropsychological or cognitive impairment. His profile for one of the tests suggested that he was likely to demonstrate a degree of impulsivity, a lack of adherence to social standards and that he was likely to engage in rationalisations which support those behaviours. At the time Dr Pusey assessed the Applicant he found him to be experiencing symptoms of depression at a moderate level. Extension of time 1. An affidavit of the Applicant's solicitor, Thelma Gray, was read in support of the application for an extension of time. The affidavit is entirely inadequate in providing any explanation for the delay between the sentence date of 17 October 2014 and the filing of the Notice of Appeal on 21 January 2016. There is a generalised reference to the Applicant's difficulty in contacting Legal Aid to obtain the NIA and Extension forms which were apparently completed and sent to Legal Aid in May 2015. The Court was informed from the bar table that when Legal Aid was refused sometime late in 2015 the Applicant thereafter, at a date unable to be specified, retained his present solicitor, leading to the filing of the Notice of Appeal on 21 January 2016. 2. The file discloses that a Notice of Intention to Appeal was filed on 27 August 2014 with the Registrar granting an extension of time to file that Notice to that date. Thereafter on 24 October 2014 the Applicant's present solicitor wrote to the Court to advise that she was instructed by the Applicant to act for him in the appeal proceedings. Legal Aid then applied for an extension of time for the Notice of Intention to Appeal on 27 February 2015. An extension of the Notice was granted by R A Hulme J until 27 May 2015. That information does not easily accord with what is contained in the affidavit of Thelma Gray. 3. There is in the circumstances an explanation for the delay from August 2014 until February 2015. There is thereafter no explanation from 27 May 2015 until the Notice of Appeal was filed on 21 January 2016. Although the Crown opposed an extension of time being granted it was not able to point to any specific prejudice from the delay. 4. Interests of justice in a particular case might favour permitting an appeal or an application for leave to appeal to be heard notwithstanding that it was not brought within time. The prospect of success if the extension were to be granted is relevant to the determination of the interests of justice on an application to extend time: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [32] and [33]. Grounds of appeal 1. At the hearing of the appeal counsel for the Applicant made it clear that grounds 2 – 16 were, in essence, particulars of the ground that the sentence was manifestly excessive (ground 1). He accepted that establishing any individual ground would not of itself lead to the appeal being upheld. It was the cumulative effect of the matters in grounds 2 – 16 that were said to produce the result that the sentence was manifestly excessive and in that way that the Applicant was not sentenced according to law (ground 17). 2. During the course of addressing each of the grounds counsel abandoned reliance on grounds 4, 13 and 15. Although ground 16 was a ground that asserted a denial of procedural fairness, a ground that could not be regarded as a particular of a manifestly excessive sentence, nothing was said in oral or written submissions about it. Grounds 2, 3, 5, 6 and 7 – factual findings 1. These findings were amply open to the Sentencing Judge when regard is had to both the Agreed Facts and the Victim Impact Statement. The Victim Impact Statement was not challenged in any way. The fact that some of the findings could be made in any case involving similar offending provides no basis for objection to them when they were not taken into account as aggravating factors by the Sentencing Judge. In addition, this Court has said in a number of cases that psychological and emotional damage to children from sexual abuse can be assumed: R v Tuala [2015] NSWCCA 8 at [56]; R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [110]; R v MJB [2014] NSWCCA 195 at [49]. Ground 8 – 'generic" finding as an aggravating factor 1. The ground as framed wrongly describes the finding made by the Sentencing Judge. It is not that the attentions were "painful and causative of harm" which was said to be the aggravating feature but rather the repetition of the offending behaviour over the years when there was evidence from the beginning that his attentions were unwanted, painful and causative of harm. Further, the factors listed in s 21A(2) do not comprise an exclusive list of aggravating factors that may be taken into account: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. Ground 9 – offences in the home of the victim 1. The Applicant's written submissions in relation to this ground said that there was nothing further to add to the ground as expressed. Reliance might have been, but was not, placed on the line of authorities generally commencing with R v Comert [2004] NSWCCA 125. The principle was succinctly expressed by McClellan CJ at CL (with whom James and Davies JJ agreed) in Ingham v R [2011] NSWCCA 88 at [112] where his Honour said that it will be an aggravating circumstance when a victim is assaulted in his or her own home by an unauthorised intruder but it is otherwise when the offender is lawfully on the premises. 2. Although a number of cases have followed Ingham some doubt has been recently cast on the principle by RA Hulme J in Melbom v R [2013] NSWCCA 210 at [44] (with Simpson J agreeing at [1]-[2] and Price J agreeing at [3]); see also the discussion by Wilson J (with whom Hoeben CJ at CL and RA Hulme J agreed) in Aktar v R [2015] NSWCCA 123 at [45]-[63]. 3. Although I was a member of the Court in Ingham I am now of the opinion, in the light what has been said in Melbom and Aktar that the view expressed in Ingham may be a too restrictive view of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the issue should be revisited. However, the present is not an appropriate case in which to do that for two reasons. First, although the Crown provided lengthy and useful submissions on the point, no assistance was provided by counsel for the Applicant, presumably because the ground is said only to be a particular of a ground relating to manifest excess. Secondly, the disagreement with Ingham and Comert and the cases which have followed them would require a bench of five judges to resolve the competing views. 4. On the present state of the law (Ingham and the cases which have followed it) I consider that the Sentencing Judge's finding that it was an aggravating factor that the offence took place in the home is an error. The Sentencing Judge sought to distinguish Ingham in this way. His Honour said this: I agree that the demonstrated criminality is of a high order. In Ingham [2011] NSWCCA 88, it was stated that the aggravating factor in s 21A(2)(EV scil. eb), did not operate in those circumstances. That case involved many counts of sexual depredation, most of which occurred in a domestic environment, but in circumstances which are quite different to the matters before me. Whilst I accept that what was said by McClellan CJ at CL para 111 is binding on me, I do not see the two cases as similar in any way or indeed, similar to the authorities referred to by his Honour in that paragraph. It seems to me that where an offender uses the family home, where he may well be entitled to be, as a means of committing the offences in question, then that does become an aggravating feature. Looked at logically, on the one hand, the victim is supposed to feel secure, safe and in a loving and supportive environment in the family home, in a haven where no malicious harm can come to her. Whereas on the other hand, we have an offender who takes advantage of that very situation in order to commit the offences for which he is charged. That must suggest that such a breach of the sanctity of the home, is an aggravating factor. It is understandable that an unpremeditated assault by one partner on another partner, in the family home, may not be aggravated because it occurs within the family home. But that is a far different situation to the present one where the home becomes the means by which the offending occurs. In those circumstances it seems to me the fact that it occurred in the home, can be regarded as an aggravating factor. 1. The problem with that analysis is that Ingham concerned an offender who stayed in the house of one of the victims because of his friendship with that victim's mother. The offending took place in that house which was not the offender's house. The present is a relevantly stronger case because the house where the present offending took place was also the house of the Applicant, unlike in Ingham. What the Sentencing Judge said of the use of the house by the Applicant was equally applicable, and the more so, to the offender in Ingham. Yet this Court held that offending in the house was not an aggravating factor. 2. Despite Counsel for the Applicant's submission that each of the grounds was a mere particular of a manifestly excessive sentence, the Sentencing Judge's holding that offending in the victim's home was an aggravating factor is an error. The sentencing exercise thereby miscarried. The enquiry is not how that error influenced the sentence imposed. Rather, this Court must exercise the sentencing exercise afresh: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42]. Ground 10 – taking into account the termination of the pregnancy 1. This finding was self-evidently true. The use of the word "assault" is not to be understood in any technical or legal sense, and there is no basis for the assertion that the reference to the termination of the pregnancy in this way amounted to the taking into account of an uncharged criminal offence. Ground 11 – good character 1. The Applicant submitted that although good character does not have the force that it can in other matters it should have been taken into account by the Sentencing Judge. 2. The Sentencing Judge said this: Mr Erazo has no criminal record, but that does little to assist him in the present case. Whilst I am satisfied he did not use his prior good character to assist him to commit the offences as per s 21 (5A), any sort of good character he had at the beginning of his offending in this case, was totally dissipated by his continued offending over many years. 1. The way good character is to be employed in sentencing was discussed by the High Court in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267. 2. In Ryan, the appellant had committed more than 50 offences against young boys over a 20 year period. The sentencing judge found that, apart from the offending charged, the appellant was a man of unblemished character and reputation. Nevertheless, he held that the appellant was not entitled thereby to any leniency whatsoever. The Court of Criminal Appeal upheld that approach. 3. In the High Court McHugh J said at [36]: In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case. See also Kirby J at [112] and Callinan J at [178]. 1. The Crown submitted that the Sentencing Judge had acted in accordance with what was said in Ryan by having regard to and considering the issue of good character although concluding that it was totally dissipated by the continued offending. I do not consider that that submission should be accepted. In Ryan there was continued offending over a 20 year period. In the present case there was offending from 2000 to 2005. The first of the offences charged was the first occasion on which the Applicant offended against his stepdaughter. His otherwise good character prior to that offending should have been a mitigating factor at least to a small extent. 2. Again, although this matter was submitted only to be a particular of a manifestly excessive sentence, error is demonstrated. Ground 12 – discounts for pleas and remorse 1. The Applicant submitted that his Honour's sentencing Remarks were limited "to finding more than 10% at page 11.6 [of his Remarks] but given the sentence handed down this could not have been taken into account". The Applicant submitted that the failure to state the actual discount for the plea and for the remorse shows that either insufficient weight or no weight was given to those matters. 2. At page 11 of his Remarks the Sentencing Judge said: I accept that he has expressed contrition and remorse, both in Court to the victim, to Mr Pusey (sic) and by way of the plea of guilty. There was no finding of any percentage at that stage of the Remarks. On page 14 of the Remarks his Honour said: These indicative sentences take into account the plea of guilty and the Form 1 matters, allowing a discount in the order of 12% for the plea of guilty. 1. No quantified discount should be allowed for remorse by itself or combined with the plea of guilty: R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159. Contrary to the submission of the Applicant his Honour quantified the discount for the plea of guilty at 12%. Ground 14 – specific deterrence 1. The Applicant submitted that the Sentencing Judge's finding in relation to specific deterrence flies in the face of the Applicant's "realisation of his culpability", in his own evidence of wishing to do courses and undergo counselling so as not to fall into similar behaviour again, his apology, his statements to Dr Pusey as well as his low risk of recidivism. 2. The Sentencing Judge said in relation to specific deterrence: It also seems to me that there needs to be a substantial element of specific deterrence, given the failure by the prisoner over many years to recognise that his behaviour was fundamentally wrong. 1. The matters identified by the Applicant do not lead to the conclusion that specific deterrence was not a significant consideration in the matter. Although Dr Pusey said that the Applicant presented with a low risk of recidivism he went on to say: Despite this, he presents with clear factors which have likely influenced his offending behaviour and which in my view should form the basis of any treatment intervention mandated by the court. Those factors are likely to be what Dr Pusey had earlier referred to, namely that he demonstrated a degree of impulsivity, a lack of adherence to social standards and that he was likely to engage in rationalisations which supported his behaviours. 1. The other matter suggesting the significance of specific deterrence was the fact that he was arrested in 2003 after the victim's mother caught him and confronted him. The only reason he was not ultimately prosecuted was because the victim was persuaded not to make a statement. Where, notwithstanding that experience, he continued to offend, and where in any event the offending had occurred over a five year period, specific deterrence assumed considerable significance notwithstanding stated intentions of the Applicant to do something about his problems. Ground 16 – procedural fairness 1. As noted earlier, no written or oral submissions were made in support of this ground. It is difficult to understand its basis. The particular findings (presumably grounds 2, 3, 5, 6, 7, 8 and, subject to what has earlier been said concerning the topic, 9) were all clearly open to the sentencing judge on the basis of the agreed facts, the Victim Impact Statement or as a matter of inference and/or knowledge from that material. It cannot be said that the Applicant's counsel at the hearing was not on notice that such findings were available to be made. Ground 1 – manifestly excessive sentence 1. Since error has been demonstrated in relation to grounds 9 and 11 it is not necessary to consider whether the sentence is manifestly excessive. Rather, the Applicant's submissions in relation to this ground will be considered on the re-exercise of the sentencing discretion. Re-sentence 1. The Applicant submitted that an examination of the statistics in respect of offences against s 61J of the Crimes Act 1900 (NSW) show that the sentence imposed was one of the highest imposed in New South Wales including for cases where there were pleas of not guilty. The submission should be taken to be one that this Court should impose a lesser sentence than the Sentencing Judge imposed. 2. This Court has said in a number of cases that the statistics offer no guidance about the propriety of an aggregate sentence: Tweedie v R [2015] NSWCCA 71 at [47]; Knight v R [2015] NSWCCA 222 at [88]; AG v R [2016] NSWCCA 102 at [92]. Rather than reliance on statistics, two significant starting points in respect of any sentence are the maximum penalty provided as well as any standard non-parole period. Each of the offences carried a 20 year maximum penalty. Four of the offences (those committed from 2003 onwards) carried a standard non-parole period of ten years. Three of the offences on the Form 1 carried a 20 year maximum and two of them had a standard non-parole period of ten years. 3. As the sentencing judge found, the offending demonstrated criminality of a high order. Two matters in particular are significant. The first has already been mentioned. The Applicant was arrested in 2003 and only escaped charges being brought against him because the victim was persuaded not to make a statement. Despite that warning the Applicant continued to offend. Secondly, the last offence and the last occasion of the offending where the Applicant was subjected to painful anal intercourse and became pregnant as a result of the vaginal intercourse that followed immediately thereafter resulting in her having a termination of the pregnancy was offending of a very high order. 4. The findings of the Sentencing Judge concerning the Applicant's subjective matters are accepted. Nothing in Dr Pusey's report explained the offending although the Applicant saw a link between his alcohol consumption and the offending. He did not, however, blame the offending on alcohol as he reiterated in his evidence at the sentence proceedings. 5. The evidence suggested that the Applicant was a person of prior good character. However, since the offending was persistent over the five year period that prior good character counts for very little in the synthesis of considerations relevant to the appropriate sentence. Although his prospects of reoffending are low there are concerns arising from the matters in Dr Pusey's report referred to above at [31] and [59]. 6. I do not consider it necessary to deal further with matters relevant to an appropriate sentence. I consider that no lesser sentence than that imposed by the Sentencing Judge should be imposed notwithstanding the two relatively minor errors his Honour made. Even allowing for pleas of guilty an aggregate sentence consisting of a non-parole period equal to the standard non-parole period for one such offence can only be regarded as a very lenient sentence. This was a shocking course of offending that required condign punishment. No basis whatever has been shown for any lesser sentence than that imposed. Conclusion 1. In the light of the two errors demonstrated an extension of time should be granted and leave to appeal given notwithstanding that the appeal will be dismissed because no lesser sentenced is warranted. 2. I propose the following orders: 1. Extend time for the application for leave to appeal to 21 January, 2016; 2. Leave to appeal granted; 3. Appeal dismissed. 1. R S HULME AJ: I agree with the orders proposed by Davies J and, apart from his Honour's discussion of Ingham v R [2011] NSWCCA 88 and Melbom v R [2013] NSWCCA 210 which I do not need to canvass, and the matters referred to in the immediately succeeding paragraph, with his Honour's reasons. 2. Although the complainant was going through puberty and a teenager through much of the time that the Applicant was abusing her and it is common knowledge that many people experience difficulties at those times, there was no evidence that would justify the somewhat emotive statements that the complainant was "battling" with puberty and that her teenage years were, except in consequence of the Applicant's treatment of her, "traumatic". To this extent I would accordingly uphold grounds 5 and 7. 3. However, as counsel for the Applicant remarked, the only substantive ground of appeal is that the sentence imposed in the District Court is manifestly excessive. 4. It is not. It is manifestly inadequate. 5. Davies J has detailed the six indicative sentences specified by his Honour. Two were of 13 years including non-parole periods of 9 years. Two were of 10 years including non-parole periods of 7 years. Two of 9 years including non-parole periods of 6 years. 6. How his Honour could have progressed from those six indicative sentences, none of which could sensibly be suggested to be excessive, to the sentence he imposed of 14 years including a non-parole period of 10 years, he did not explain. No rational explanation is apparent. 7. Aggregate sentencing was introduced to avoid the complexity of judges having to specify multiple start and finish dates of a number of sentences. It was not introduced to enable judges to avoid the imposition of sentences that properly reflect criminality, aggregation, and totality. In that connection, it is apposite, though it should be unnecessary, to repeat what this Court said in R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [44] – [46]: Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it is an extract from D A Thomas, "Principles of Sentencing" endorsed in Mill v R (1988) 166 CLR at 59 at 63:- "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'." Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples. In this connection the Court endorses the remarks of Sully J, though as a member of a two judge bench, in R v Wheeler [2000] NSWCCA 34. At [36] - [37] his Honour said:- "... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose. It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour." ********** 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: 15 July 2016