Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rainbow v R [2018] NSWCCA 42 Hearing dates: 7 February 2018 Date of orders: 21 March 2018 Decision date: 21 March 2018 Before: Beazley P: [1] Garling J: [2] Hidden AJ: [3] Decision: Leave to appeal granted. Appeal allowed. Quash the sentence passed in the District Court and, in lieu, sentence the applicant to a non-parole period of 2 ½ years, commencing on 27 November 2015 and expiring on 26 May 2018, and a balance of term of 1 ½ years, commencing on 27 May 2018 and expiring on 26 November 2019. The applicant would be eligible for release on parole on 27 May 2018. Catchwords: CRIMINAL LAW – sentence appeal – aggravated sexual intercourse with a child between the ages of 14 and 16 – circumstance of aggravation victim's cognitive impairment – whether sentencing judge erred in describing applicant's conduct as a breach of trust – whether sentence manifestly excessive. Legislation Cited: Crimes Act 1900 ss 61M, 61H, 66C Crimes (Sentencing Procedure) Act 1999, s 21 Cases Cited: Cowling v R [2015] NSWCCA 213 Hili v The Queen, Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 R v JF [2017] NSWCCA 217 R v Nelson [2016] NSWCCA 130 Veen v The Queen [No. 2] (1987-88) 164 CLR 465 Wakeling v R [2016] NSWCCA 33, and R v JF [2017] NSWCCA 217 Category: Principal judgment Parties: Regina Trevor John Rainbow Representation: Counsel: Ms H Roberts – (Crown) Mr D Carroll – (Applicant) Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid Commission NSW File Number(s): 2015/349703 Publication restriction: No Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 December 2016 Before: Buscombe DCJ File Number(s): 2015/349703 Judgment 1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Hidden AJ. I agree with his Honour's reasons and proposed orders. 2. GARLING J: I agree with Hidden AJ. 3. HIDDEN AJ: The applicant, Trevor John Rainbow, pleaded guilty in the District Court to a charge of aggravated sexual intercourse with a child between the ages of 14 and 16 years old, the circumstance of aggravation being that the victim had a cognitive impairment. This is an offence under s 66C(4) and (5)(f) of the Crimes Act 1900, carrying a maximum sentence of imprisonment for 12 years and a standard non-parole period of 5 years. He was sentenced to imprisonment for 6 years, comprising a non-parole period of 4 years and a balance of term of 2 years, commencing on 27 November 2015. In passing that sentence, the sentencing judge took into account a related offence of aggravated indecent assault, an offence under s 61M(2) of the Crimes Act, carrying a maximum sentence of imprisonment for 10 years and a standard non-parole period of 8 years. (Although it is not specified in the Form 1, presumably this circumstance of aggravation was again that the victim had a cognitive impairment: s 61M(3)(e).) 4. The applicant seeks leave to appeal against that sentence. Facts 1. The victim was a 14 year old girl who suffers from an intellectual disability. She was living with her mother and grandmother in the Central Coast area. In 2015 she had become friends on Facebook with Ms Sarah Butler, who was 20 years old at the time. 2. In late November of that year, she contacted Ms Butler and asked her to pick her up from her home because she was having problems with her mother. Ms Butler did so on 23 November, and apparently organised her movements thereafter. Put shortly, that evening the victim spent the night at the home of a friend of Ms Butler in Berkshire Park. The following evening, 24 November, she stayed at a house occupied by the applicant, whom Ms Butler also knew, at Riverstone. Ms Butler introduced her to the applicant. Also at the house were the applicant's 10 year old son, and a friend of the son known as "Curley". The applicant, Ms Butler, the victim and Curley began consuming alcohol and using drugs, although the applicant only consumed alcohol. 3. At about 5.00am on 25 November, the victim lay down on a mattress in a bedroom located at the rear of the house. Some time later the applicant entered the room, removed his clothes and the victim's lower clothing and had penile/vaginal intercourse with her. She felt a "weird" sensation in her vagina and told him to stop. This was the offence of aggravated sexual intercourse. 4. The applicant stopped when asked to and rolled off the victim onto the bed. Immediately afterwards, however, he pulled her towards him and rubbed her vagina. She felt "weird and uncomfortable." This was the offence of aggravated indecent assault on the Form 1. He then rolled over and went to sleep in the same bed. 5. The victim recovered her clothing and went to another bedroom, where she found Ms Butler. She told Ms Butler that the applicant had touched her but this elicited no response. She lay down next to Ms Butler and fell asleep. Some hours later she woke, feeling pain and discomfort in her vagina. 6. That afternoon she contacted her mother by mobile phone. She was tearful, and she told her mother where she was and that she had been "hurt the night before", and asked her mother to arrange for her to be picked up. Her mother could tell by her voice that she was scared. The mother arranged for police to attend the applicant's home and she travelled there herself. 7. The applicant was arrested on 27 November 2015. He was interviewed after a delay because of his state of intoxication. He told police that he was aware of the victim's age and her intellectual disability, saying that it was evident that she "wasn't all there." However, he denied her allegations. Subjective case 1. The applicant was 36 years old at the time of the offence, and is now 38. He has a criminal record although, as the sentencing judge noted, it is not particularly lengthy. It does include some offences of violence, and on some occasions he was sentenced to imprisonment, but there are no sexual offences. 2. His background was before his Honour through a comprehensive psychological report. His upbringing, as the sentencing judge noted in his reasons was not one which could be considered deprived or disadvantaged. He did not do well at school, although he progressed to year 12 without obtaining his higher school certificate. He completed TAFE courses and had had employment in the past, but it was sporadic in more recent times. 3. He had two significant relationships with female partners, the first of whom died about 3 years before the offence. Their first born children, twins, also died, one in utero and the other very shortly after birth. Two sons survived from that relationship, aged 14 and 11 at the time of the sentence proceedings. They were then in the care of his mother and sister. In 2014 he entered into another intimate relationship, but by the time of the sentence proceedings that had been terminated. 4. The psychologist recorded that he did not appear to have any unconventional sexual interests. He apparently had an understanding of the potentially adverse impact upon the victim of his conduct, and to the psychologist he expressed remorse and empathy for the victim, which appeared to her to be genuine. 5. He has had a serious problem of alcohol abuse since the age of 17, and from the same age he had used a variety of illicit drugs, mainly cannabis. He did not give evidence in the sentence proceedings, but in a handwritten statement to the court he said that he was heavily intoxicated at the time of the offence and that he regretted what he had done, adding that if he had not been drinking "it would not have happened as I would have been more aware of my behaviour which has caused the victim great trauma, stress and fear." He also wrote that he never wanted to drink alcohol again, that he had learnt his lesson, and that he was sorry for what he had done to the victim. 6. The psychologist did not consider him to be intellectually impaired, but described him as "an amiable individual of low, but functional, intellect." She saw his long history of substance abuse as likely to have contributed significantly to his impulsivity and irresponsibility. She noted a history of his association with people much younger than himself, who were also engaged in drug and alcohol abuse. She saw that association as the product of his immaturity and irresponsibility. Risk assessment concluded that he presented with a moderate risk of sexual reoffending. As one might expect, the psychologist recommended that he engage in drug and alcohol counselling. 7. The sentencing judge accepted the remorse the applicant had expressed to the psychologist and in his written statement as genuine. His Honour considered that he had reasonable prospects of rehabilitation provided he engaged in the alcohol and drug counselling recommended. His Honour found special circumstances warranting a departure from the statutory proportion between sentence and the non-parole period. He discounted the sentence by 25% to reflect the utilitarian value of the plea of guilty. The application 1. There are two grounds of the application: 1. The sentencing judge erred in finding that there was a breach of trust by the applicant. 2. The sentence is manifestly excessive. 1. Comprehensive written submissions on behalf of the applicant had been prepared by Mr Pararajasingham of counsel, but at the hearing of the application a colleague, Mr Carroll, appeared. He adopted the written submissions but condensed them in oral argument. Breach of trust 1. In determining the objective seriousness of the offence, his Honour noted that it would appear to have been unplanned and opportunistic, and that the applicant stopped the act of intercourse when the victim told him to. He saw the offence of aggravated and indecent assault on the Form 1 as serious in itself, in that the applicant rubbed the victim's vagina after she had told him to stop the intercourse. His Honour noted the distress caused to the victim by the offences, adding that the incident could well cause long term psychological and emotional injury to her. He saw the considerable age gap between the applicant and the victim as significant. He added that there was "a breach of trust involved as the victim was staying at the offender's house, she being a child spending the night in his home." He assessed the objective seriousness of the offending as "a little below the mid-range." 2. The focus of this ground of the application was upon his Honour's finding of a breach of trust. Section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 provides as an aggravating feature to be taken into account in determining the appropriate sentence that "the offender abused a position of trust or authority in relation to the victim..." His Honour made no reference to that provision, and it appears that he was not applying it when he referred to a breach of trust in the present case. This is clear enough in the light of the way the Crown had presented its case. 3. In written submissions the Crown's representative (who did not appear in this Court) wrote that it "should be noted that although the Crown does not submit that the offender was in a position of authority viz-a-viz the victim, it is submitted that the Court could find that there was an element of trust." Reference was made to the age gap between the applicant and the victim and the fact that she was staying at his house with a friend after running away from home. It was argued that, as she was staying for at least the one night, it was her temporary home where she should have been entitled "to an expectation of safety." In this context R v Nelson [2016] NSWCCA 130 was cited. 4. Elsewhere in the written submissions there are references to "breach of trust" and "position of trust held by the offender", but there is no reference to s 21A(2)(k). The submissions refer to Nelson without specifying any particular passage from it. It is likely that the relevant passage was in the judgment of Basten JA at [26]: Secondly, the judge noted that the events all took place in the home of the offender, which was also the temporary home of each of the victims. ... He noted, correctly, that it was a place where "each victim should have had an expectation of safety." Whilst not erroneous, that proposition failed to take account of the consequences for the victim of a breach of such security. A young person (especially one who has left her family home) will often seek (whether consciously or not) protection from whatever adults may be seen as parent surrogates. This will mean accommodating terms on which such protection may be offered. If that involves a sexual relationship, that relationship should be seen as exploitative. The fact that in each case there was a repeated course of conduct carried out over a considerable period of time exacerbates the level of exploitation involved. 1. In written submissions for the applicant in the present case, it was put that if the Crown were relying on Nelson as a factually analogous case, that would be erroneous. In that case the victims had been residing at the offender's home as their primary place of residence for a period, whereas here the victim had spent one night only with her friend, Ms Butler at the applicant's house. However, I do not understand the Crown to have been relying on Nelson in that way, and his Honour made no reference to that case in his reasons. It seems to me that Nelson was referred to only as the source of the form of words used in the submissions that the victim "should have been entitled to an expectation of safety." 2. A similar issue arose in Cowling v R [2015] NSWCCA 213. That was a case of sexual intercourse without consent committed by a 22 year old offender upon a 20 year old victim, who had been known to each other for some years. The sentencing judge, in assessing objective seriousness, included "the breach of trust involved...": [8]. In dealing with the submission that this was an application of s 21A(2)(k) although that provision had not been referred to, Leeming JA (with whom Hamill and Fagan JJ agreed) said at [10]-[11]: 10. It is well-settled law that more must be established than a mere breach of trust in order for the statutory factor to be made out. In Karl Suleman v R [2009] NSWCCA 70 at [22], Howie J, with the agreement of McClellan CJ at CL and Hislop J, said of the factor that: "This aggravating factor is not made out simply because the victim trusted the offender for some reason or other[.] ... The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to 'a position of trust'. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings." See further Peiris v R [2014] NSWCCA 58 at [52]-[54]. 11. Her Honour did not refer to s 21A(2)(k) in terms. Nor did her Honour use the language of the paragraph. No submission framed in terms of the paragraph was advanced by the Crown at the sentencing hearing. If her Honour's language were to be read as amounting to a finding that that factor was made out, then plainly enough there would be error. However, on a fair reading of her Honour's remarks, I would not regard her Honour as having found that statutory aggravating factor to have been established. 1. However, it was argued for the applicant in the present case that no finding of breach of trust in any sense was available. In Cowling, after the passage just cited, appears the following at [12]: 12. On a fair reading of the sentencing remarks, I consider that her Honour was merely concluding that the fact that the offender and the complainant were friends and trusted each other meant that the offending conduct was objectively more serious. That reflected the Crown's submission at sentencing ("Your Honour, there's a significant breach of trust, breach of friendship here in these facts"). Nevertheless, that reasoning discloses error. The friendship between victim and offender supplied the occasion and the opportunity for the assaults. That is why the victim got into a car driven by the offender and travelled with him and her former partner to the latter's house at 11.30 at night. But those circumstances did not increase the seriousness of the offender's conduct. 1. In oral argument, Mr Carroll submitted that the objective gravity of the offence was encompassed within the circumstance of aggravation specified in the charge, that is, the victim's cognitive impairment. He noted that that expression is defined in s 61H(1A) of the Crimes Act. Five types of cognitive impairment are specified, including an intellectual disability, but each of them must be of a category "that results in the person requiring supervision or social habilitation in connection with daily life activities." Thus, Mr Carroll argued, the measure of the applicant's criminality was that he sexually assaulted a person who had a cognitive impairment of that order, knowing that she was impaired in some way. There was no additional factor of breach of trust rendering the offence more serious. 2. However, as the Crown prosecutor in this Court pointed out, his Honour's finding was that there was a breach of trust "as the victim was staying at the offender's house, she being a child spending the night in his home." He rightly distinguished Cowling on its facts, as it involved two young adults of much the same age. Here, the applicant was a mature man and a parent, and the victim was a girl in her early teens. He had been told how old she was. He also told police that at one stage she went "down the road" with his son, having asked his permission to do so. There is force in the Crown prosecutor's argument that the relationship appears to have been regarded by both the applicant and the victim as one of adult to child. 3. The applicant knew that the victim had left home, and the reason she had done so. He knew that she had consumed alcohol and, perhaps, drugs. When he went to the room where she was sleeping, he knew she was alone, believing that she was in a safe place. 4. All of these factors are additional to the victim's cognitive impairment and the applicant's awareness of it. All of them contributed to an assessment of the objective gravity of crime. These matters together could fairly justify a description of the applicant's conduct, in ordinary parlance, as a breach of trust. It is in that sense that I understand his Honour to have used the expression. This ground is not made out. Manifestly excessive? 1. For the purpose of the ground that the sentence is manifestly excessive, reference was made in the applicant's written submissions to a number of authorities: Nelson (supra), Wakeling v R [2016] NSWCCA 33, and R v JF [2017] NSWCCA 217. Of those, the only case dealing with an offence under s 66C(4) of the Crimes Act is Wakeling, although the circumstance of aggravation in that case was different from the present case. It also involved an offence under s 61M(2). The other cases involved offences under s 66C(1) and s 66C(3), and in his dissenting judgment in Nelson, Fagan J reviewed three other cases involving one or other of those offences. 2. Those cases must be approached recognising their limitations as guidance: Hili v The Queen, Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] (537). The facts and subjective circumstances in those cases vary widely, consistently with the ambit of conduct embraced by these offences, as well as the varied backgrounds and circumstances of the offenders. The case closest to the present case is Wakeling, in which the sentence, as adjusted by this Court, was close to the sentence in the present case even though the objective facts of that case could be seen as significantly more serious. However, the offence being dealt with in that case predated the introduction of the standard non-parole period of 5 years, which applies to offences committed on or after 29 June 2015. Generally, from that case and the others there cannot be discerned any pattern of sentence which might provide guidance to the Court in this case. 3. That said, the primary submission for the applicant in writing, and developed by Mr Carroll orally, has force. The sentence passed was 6 years with a non-parole period of 4 years, the non-parole period being two-thirds of the sentence after the finding of special circumstances. The sentence was discounted by 25% for the plea of guilty, indicating a starting point of 8 years. Maintaining a proportion of two-thirds, that sentence would lead to a non-parole period of 5.3 years. In the result, the starting point of 8 years is two-thirds of the maximum sentence of 12 years, and the notional non-parole period of 5.3 years exceeds the standard non-parole period of 5 years. 4. It is difficult to reconcile those figures with his Honour's finding that the objective gravity of the offence was a little below mid-range. Nor could such a high starting point be required by considerations of denunciation or deterrence. 5. No one could deny his Honour's observation that offences of this kind are "abhorrent to the community" and that sentences "of considerable severity need to be imposed on persons who commit sexual offences against children, in particular where the child suffers from a cognitive impairment." Nevertheless, the applicant's subjective case was not unfavourable and his criminal history did not suggest any "dangerous propensity" on his part towards offences of this kind, or a need "to impose condign punishment" to deter him "and other offenders from committing further offences of a like kind:" Veen v The Queen [No. 2] (1987-88) 164 CLR 465 at 477. 6. True it is, as the Crown prosecutor pointed out, the sentence embraced the criminality of the aggravated indecent assault on the Form 1. However, it does not appear to me that that could justify a sentence of this order. The Crown prosecutor submitted that the sentence, while it might be "considered stern", fell within the proper exercise of his Honour's sentencing discretion but, in all the circumstances, I am persuaded that it is manifestly excessive and that this Court should intervene. Resentence 1. The facts and the applicant's subjective circumstances are set out earlier in this judgment and are not in dispute. I accept his Honour's assessment of the gravity of the offences at a little below mid-range. Any sentence for an offence of this kind must reflect the need for general deterrence. In the present case, regard should also be had to personal deterrence although, as I have said, it is a less important factor. Appropriate weight should be given to the favourable aspects of the applicant's subjective case. Like his Honour, I would reduce the sentence by 25% for the plea of guilty, and I agree that special circumstances should be found to foster the applicant's prospects of rehabilitation. 2. I consider the appropriate starting point for sentence to be imprisonment for 5 ½ years. A 25% reduction reduces that period to 4 years and little over 1 month, which I would round down to 4 years. I would fix a non-parole period of 2 ½ years. Orders 1. I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court and, in lieu, would sentence the applicant to a non-parole period of 2 ½ years, commencing on 27 November 2015 and expiring on 26 May 2018, and a balance of term of 1 ½ years, commencing on 27 May 2018 and expiring on 26 November 2019. The applicant would be eligible for release on parole on 27 May 2018. ********** 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: 21 March 2018