Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: NG v R [2017] NSWCCA 161 Hearing dates: 02 May 2017 Date of orders: 05 July 2017 Decision date: 05 July 2017 Before: Johnson J Beech-Jones J Fagan J Decision: 1. Leave to appeal is granted. 2. The sentences imposed in the District Court by Acting Judge Delaney on 19 August 2016 are quashed. 3. In lieu thereof, the applicant is sentenced to an aggregate sentence of imprisonment of 12 years and 7 months comprising a non-parole period of 9 years and 6 months commencing on 17 February 2016 and expiring on 16 August 2025, with a balance of term of 3 years and 1 month commencing on 17 August 2025 and expiring on 16 September 2028. 4. The earliest date upon which the applicant will be eligible for release on parole is 17 August 2025. Catchwords: CRIMINAL LAW – appeal against sentence – offences against ss 66A, 66C Crimes Act 1900 – where trial judge considered incorrect maximum penalty for s 66A offence CRIMINAL LAW – appeal against sentence – five counts of historical offences against ss 76, 76A Crimes Act 1900 – three offences charged with two on Form 1 – whether trial judge erred in determining objective seriousness of offences – where trial judge confused substantive count with Form 1 count when determining sentence CRIMINAL LAW – appeal against sentence – resentencing for historical offences – s 76 Crimes Act 1900 contemplates a broad range of offending conduct – lesser maximum penalty than subsequently enacted provisions that encompass the same conduct – historical sentencing patterns for sexual offences – non-parole periods for historical offences Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Andreata v R [2015] NSWCCA 239 BP v R [2010] NSWCCA 303 Donaghey v R [2015] NSWCCA 119 Henderson v R [2016] NSWCCA 8 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Magnuson v R [2013] NSWCCA 50 MPB v R [2013] NSWCCA 213; 234 A Crim R 576 Panetta v R [2016] NSWCCA 85 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Ellis (1986) 6 NSWLR 603 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 RR v R [2011] NSWCCA 235; 216 A Crim R 489 TO v R [2017] NSWCCA 12 Category: Principal judgment Parties: NG (applicant) Regina (respondent) Representation: Counsel: Ms Jane Paingakulam (applicant) Ms Helen Roberts (respondent) Solicitors: Legal Aid NSW (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2014/251890;2016/051689 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 19 August 2016 Before: Delaney ADCJ File Number(s): 2014/251890; 2016/051689 Judgment 1. THE COURT: NG applies for leave to appeal against an aggregate sentence imposed on him in the District Court for two groups of sexual offences. The first group (counts 1, 3 and 4 and two more offences on a Form 1) were committed in the mid 1970s, when the applicant was aged about 18 years, against a girl who was then 8 years old. The second group of offences (counts 6 and 7) were committed between 2010 and 2012 against the daughter of the applicant's then de facto partner. This complainant was aged between 9 and 10 years during the second charge period and the applicant was then about 53 to 54. He pleaded guilty to all charges. The applicant is not named in this judgment as publication of his name may serve to identify the young victim of the 2010-2012 offences: s 578A Crimes Act 1900 (NSW); s 15A Children (Criminal Proceedings) Act 1987 (NSW). 2. There was no indictment in the District Court because the pleas of guilty had been entered in relation to Court Attendance Notices in the Local Court. This has led to confusion in the Remarks on Sentence as to which charge the learned sentencing judge was referring to in some passages of the Remarks. Adopting as nearly as possible the numbering used in the Agreed Statement of Facts upon which the pleas were entered, the charges, their particulars, the indicative sentences nominated by the learned sentencing judge and the maximum penalties provided for in the Crimes Act were as follows: 1. Count 1: about 1975, indecent assault on a girl under 16 years, namely an 8-year-old girl contrary to s 76 of the Crimes Act. The applicant was in the complainant's family home, he being a friend of the complainant's 17-year-old brother. Whilst the complainant was in her nightie after having had a bath the applicant lifted the garment and licked her vagina, using his hands to achieve penetration with his tongue. Maximum penalty 6 years; indicative sentence 1 year and 10 months. Two offences (counts 2 and 5) on a Form 1 were taken into account. 2. Count 2 (included on a Form 1 and taken into consideration on count 1): about 1975, act of indecency towards a girl under 16 years, contrary to s 76A of the Crimes Act. When the same complainant was sitting on the toilet in her home, the applicant masturbated in front of her. Maximum penalty 2 years. 3. Count 5 (included on a Form 1 and taken into consideration on count 1): about 1975, act of indecency towards a girl under 16 years, contrary to s 76A of the Crimes Act. The applicant walked into the bathroom in the same complainant's home when she was naked in the shower and he remained there. Maximum penalty 2 years. 4. Count 3: about 1975, indecent assault on the same 8-year-old girl referred to in count 1, contrary to s 76 of the Crimes Act. The applicant sat with his penis outside the top of his jeans, placed the complainant's hand on it and when she pulled her hand away he put his own hand on the back of her head and pulled her towards his penis. She pulled away. Maximum penalty 6 years; indicative sentence 1 year and 6 months. 5. Count 4: about 1975, indecent assault on the same 8-year-old girl contrary to s 76 of the Crimes Act. The applicant carried the girl in a "piggyback" at the rear of the family home. Whilst her legs were spread at his back he reached behind himself and touched her vagina. Maximum penalty 6 years; indicative sentence 1 year and 8 months. 6. Count 6: between January 2010 and January 2011, having sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act. The applicant had known the complainant since she was two years old. She normally resided in Sydney with her father but during school holidays visited her mother in Coffs Harbour. The applicant was in a de facto relationship with the mother. When the child was 9 years old and staying with her mother and the applicant, she was awoken in bed at night to find the applicant with his finger in her anus. He left his finger there for a number of seconds. Maximum penalty 25 years, standard non-parole period 15 years. Indicative sentence 9 years with 6 years non-parole period. 7. Count 7: between January 2011 and January 2012, having sexual intercourse with a child older than 10 years but less than 14 years, contrary to s 66C(1) of the Crimes Act. About one year after the events charged in Count 6, when the same complainant was 10 years old, the applicant digitally penetrated her vagina for 2 or 3 seconds during a game of hide and seek. Maximum penalty 16 years. No standard non-parole period was legislated for this offence until 2015. Indicative sentence 5 years and 6 months with a non-parole period of 3 years and 9 months. 1. These individual sentences were indicated after allowing a 25% discount for the applicant's early pleas of guilty. On 19 August 2016 his Honour imposed an aggregate sentence of 14 years with a non-parole period of 10 years. It was ordered that the aggregate sentence should date from 17 February 2016 to take account of time on remand in custody. Grounds of appeal 1. The proposed grounds of appeal, if leave should be granted, are: 1. The sentencing judge erred in determining the objective seriousness of the historical offences. 3. The sentence was manifestly excessive. 4. The sentencing judge erred by applying an incorrect maximum penalty to the offence pursuant to s 66A(1) of the Crimes Act [ie Count 6]. Two additional grounds alleged infringement of the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31; that is, treating an offence as aggravated for sentencing purposes by a circumstance that would if charged have constituted a different offence with a higher penalty. Those grounds were abandoned during oral argument. Ground 4, taking into account the wrong maximum penalty 1. The Crown conceded ground 4. At the date of commission of the offence in Count 6 s 66A(1) of the Crimes Act provided for an offence of sexual intercourse with a child under the age of 10, carrying a maximum penalty of 25 years. Section 66A(2) created an aggravated form of this offence which would be committed if any of a list of nine aggravating circumstances should be present. The maximum penalty for this latter offence was life imprisonment. The applicant was charged under subs (1). As a result of information provided to him by the Crown, his Honour erroneously referred to s 66A in the form to which the section was subsequently amended, wherein the distinction between the common and aggravated forms of the offence was removed and the maximum penalty of life imprisonment was specified for any breach. 2. The Crown accepted that because the incorrect maximum penalty was taken into account the sentencing discretion miscarried: Donaghey v R [2015] NSWCCA 119 at [19] – [20]; Andreata v R [2015] NSWCCA 239. It also conceded that it is therefore necessary for this Court to exercise the sentencing discretion afresh and determine whether a lesser sentence is warranted in law: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] – [43]. Ground 1, error in determining objective seriousness 1. Notwithstanding the Crown's concession on ground 4, it is necessary to consider ground 1 as it bears upon the re-determination of sentence by this Court. The detail of ground 1 is that the applicant submits the Sentencing Remarks reveal confusion on his Honour's part between the particulars of one of the substantive counts and the particulars of an offence which was taken into account on the Form 1 in determining the sentence for count 1. 2. This submission is made good by reference to pages 11 and 12 of the Sentencing Remarks. At page 12 his Honour wrongly identified, by "sequence number", the two offences which were to be taken into account on the Form 1. Namely, of the offences particularised and described at [2] above, he identified items (3) and (5) whereas this should have been (3) and (2). This was not merely an error in the identifying numbers. His Honour stated that the facts of the two Form 1 offences had been volunteered by the appellant without any accusation having been made by the complainant and that they attracted a discount in accordance with R v Ellis (1986) 6 NSWLR 603. See also Panetta v R [2016] NSWCCA 85 and s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That was the case with only one of the Form 1 offences (count 5, as described at item (3) in the list at [2] above). It otherwise applied to count 4 (described at item (5) in the list at [2]) but not to count 2 (the other Form 1 offence, as described at item (2) in the list at [2]). Applicant's subjective circumstances 1. As consideration must be given to whether a lesser sentence is warranted in law it is necessary to take into account the applicant's subjective circumstances. They were presented in the sentence proceedings through a psychiatric report from Dr Jonathan Adams. The applicant gave evidence and thus exposed himself to cross examination on the history he had given Dr Adams. 2. The applicant's criminal record contained no material entries. His early family history was unremarkable except that he claimed to have been indecently touched by an adult male family friend on one occasion when he was 6 years old. In a second interview with his psychiatrist, six months after the first, he claimed also to have been sexually assaulted at the age of 15 or 16 years by an older man from whom he had purchased drugs. He said he had used hashish, amphetamines, LSD, mandrax and heroin extensively from the age of 14 up to his mid twenties. He had moved out of his parents' home soon after he turned 20 and had lived in a series of relationships with females since that time. Each relationship had lasted for between 5 and 13 years. He had worked fairly continuously as a labourer and as a barman and bar manager. 3. The applicant was unable to offer an explanation for his offending but expressed concern about the sexual urges he had felt. Resentencing for the historical offences 1. In re-exercising the sentencing discretion with respect to counts 1, 3 and 4 allowance must be made for the fact that s 76 (since repealed) comprehended a very wide range of criminal sexual conduct towards females under 16 years. That range extended to crimes objectively much more serious than these three counts and which, at the present day, would constitute offences against a subsequently enacted provision carrying a much higher maximum: BP v R [2010] NSWCCA 303 at [158]; MPB v R [2013] NSWCCA 213; 234 A Crim R 576 at [12], [87]; Henderson v R [2016] NSWCCA 8 at [80]. That consideration is relevant to determining where the applicant's offences lay on the scale of objective seriousness comprehended by s 76, for the purpose of determining what full term sentence would be appropriate on the scale from zero to a maximum of 6 years, keeping in mind, in this case, that the victim was only 8 years old, well below the applicable age limit of 16 years contained in the section. 2. In relation to these first three counts it is also necessary to have regard to the sentencing practices and patterns applicable in about 1975: R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129; AJB v R [2007] NSWCCA 51; 169 A Crim R 32; and MPB v R at [8] – [19] and [78] – [93]. It has been accepted in this Court that the levels of penalty imposed for this kind of offence were significantly less in the late 1970s than would be the case today: Magnuson v R [2013] NSWCCA 50. In addition to having accepted that head sentences or overall sentences were lower, this Court has also identified that at the time which is relevant for the redetermination of sentence for counts 1, 3 and 4 non-parole periods were usually fixed, at least for first time offenders, at between one third and one half of the head sentence: AJB v R [2007] NSWCCA 51 at [36], [39]; GRD v R [2009] NSWCCA 149 at [20]; BP v R; R v BP [2010] NSWCCA 303 at [154] – [156]; Magnuson v R; MPB v R at [93]. 3. This Court has on a number of occasions had to consider appropriate head or overall sentences for offences against s 76, sometimes involving objective seriousness comparable to that of counts 1, 3 and 4 in the present case and sometimes of lesser or greater seriousness. A number of those previous decisions of the Court have concerned offences committed in the late 1970s and early 1980s. Those decisions include BP v R; MPB v R; Henderson v R. 4. Consideration of the Court's earlier decisions concerning historical s 76 offences, with allowance for the degree of comparability of objective seriousness and of the offenders' subjective circumstances, enables the Court in the present case to determine appropriate head sentences, degree of accumulation or concurrence and non-parole period without making an independent inquiry into sentencing patterns at the relevant time. Such inquiry has been undertaken for the purposes of the Court's previous decisions and need not be repeated. 5. In due course, the Court proposes to impose an aggregate sentence for all offences. It will be necessary to nominate indicative sentences to comply with s 53A(2) and s 54B(4A) of the Crimes (Sentencing Procedure) Act 1999. 6. As the 1975 offences are to be assessed by reference to a number of different sentencing principles to those applicable to the 2010-2012 offences, it is useful to state, at this point, the indicative sentences for these offences, together with the notional full sentence which would have been passed by way of aggregate sentence if the Court was sentencing for these offences only. 7. In the following indicative sentences, the applicant's subjective circumstances are taken into account, the discount of 25% for his early plea of guilty is applied and a discount of a further 5% is allowed, where applicable, upon the considerations referred to at [8]. 1. For count 1 (taking into account the two Form 1 offences), the indicative full term of imprisonment is 2 years. 2. For count 3, on the same basis, the indicative sentence is 18 months. 3. For count 4, also on the same basis, the indicative sentence is 20 months. 1. In considering the proper level of penalty for these offences account has been taken of the circumstance that, having regard to the number of charges, each must be regarded as part of a pattern of criminal conduct rather than as isolated and aberrant events. 2. If the Court had been imposing an aggregate sentence for these offences only, the aggregate sentence would have comprised a head sentence of 4 years imprisonment with a non-parole period of 2 years. Resentencing for the offences of 2010 to 2012 1. In sentencing the applicant for the 2010-2012 offences, it must be kept in mind that he had committed sexual offences against a different female child victim in 1975. This aspect does not assist the applicant on sentence for the 2010-2012 offences. 2. The starting point sentence for count 6 would be significantly greater than for the other counts considered thus far, having regard to the maximum of 25 years and the standard non-parole period of 15 years. Although the offending (inserting his finger in the child's anus) was below the mid-range of seriousness, it is material that this was not an isolated instance but is to be considered with the other offending against the same complainant as charged in count 7. It is also to be considered in the context that the applicant admitted there had been yet further instances of the same sort of conduct, albeit he did not accept that his other uncharged acts went as far back as 2006 when the child was aged 5, as she alleged. 3. Count 6 is to be viewed as an instance of digital sexual intercourse with a child in the setting of a pattern of such behaviour, where the victim was preyed upon during visits to her mother, the applicant having repeated contact with her by virtue of his de facto relationship with the mother, so that he abused a position of trust towards the young victim: s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999. In all the circumstances of the case, including the examination of sentences in other cases (TO v R [2017] NSWCCA 12 at [262] – [278]) the Court would regard a starting point sentence in the order of 10 years as appropriate, reduced to 7 years and 6 months upon application of the 25% discount for his early plea, with a non-parole period of 5 years and 8 months. 4. The applicant's criminal acts charged in count 7 were in objective terms comparable in seriousness with those of counts 6. The sexual contact was of a similar degree and was, again, perpetrated in the context of a course of similar conduct committed as an abuse of trust towards the child victim. However the maximum penalty for this offence was 16 years as opposed to 25 years for the offence in count 6 and no standard non-parole period is applicable. The fact that the complainant was at the lower end of the age range to which s 66C(1) applies (that is, she was 10 years old in a range of 10 to 14 years) makes count 7 more serious than if she had been at the upper limit of that range: RR v R [2011] NSWCCA 235; 216 A Crim R 489 at [101] and [147]. 5. For count 7 the starting point for an appropriate indicative sentence would be 7 years and 6 months, reducing to 5 years and 9 months on application of the 25% discount, with a non-parole period of 4 years and 4 months. 6. We have already set out the indicative sentences for the 1975 offences at [18] above. The indicative sentences for counts 6 and 7 (which must include the non-parole period) are as follows: 1. Count 6 - imprisonment for 7 years and 6 months with a non-parole period of 5 years and 8 months; 2. Count 7 - imprisonment for 5 years and 9 months with a non-parole period of 4 years and 4 months. 1. The aggregate sentence will have regard to the principle of totality and the substantial level of notional accumulation having regard to the fact that there are different victims and different offences, together with other factors relevant to the determination of the effective minimum term including the subjective circumstances of the applicant. 2. The aggregate sentence will comprise a head sentence of 12 years and 7 months with a non-parole period of 9 years and 6 months to date from 17 February 2016. Orders 1. For these reasons the orders of the Court are: 1. Leave to appeal is granted. 2. The sentences imposed in the District Court by Acting Judge Delaney on 19 August 2016 are quashed. 3. In lieu thereof, the applicant is sentenced to an aggregate sentence of imprisonment of 12 years and 7 months comprising a non-parole period of 9 years and 6 months commencing on 17 February 2016 and expiring on 16 August 2025, with a balance of term of 3 years and 1 month commencing on 17 August 2025 and expiring on 16 September 2028. 4. The earliest date upon which the applicant will be eligible for release on parole is 17 August 2025. ********** 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: 05 July 2017