Regina v C E S [2003] NSWSC 1289 (5 September 2003)

REGINA v C E S

60570/96

Tuesday, 26 November 1996

IN THE COURT OF CRIMINAL APPEAL

PRIESTLEY JA, SMART J, SIMPSON J

JUDGMENT

PRIESTLEY JA: This is an application for extension of time for applying for leave to appeal against sentence. The applicant pleaded guilty on 6 September 1995 before his Honour Taylor DCJ in the District Court to the ten counts in an ex officio indictment presented that day. Five of the counts charged the applicant with having sexual intercourse with a female, whom I will call A, while she was aged eleven. The maximum penalty for each offence was eight years penal servitude. The other five counts charged the applicant with assaulting A and at the time of each assault committing an act of indecency upon her, she then being eleven years of age. The maximum penalty for each of these offences was seven years imprisonment.

The ten charges covered the period from 8 July 1994 to a date in February 1995. On one of the sexual intercourse charges the applicant was sentenced to a minimum term of penal servitude of six years commencing on 6 September 1995 and ending on 5 September 2001, and an additional term of two years commencing on 6 September 2001 and ending on 5 September 2003. On the other four sexual intercourse charges he was sentenced to fixed terms of penal servitude of four years commencing on 6 September 1995 and ending on 5 September 1999. On the indecent assault charges he was sentenced to fixed terms of imprisonment, one for twelve months, two for 18 months and two for two years, all commencing on 6 September 1995.

As his Honour said in his Remarks on Sentence, the Court in sentencing for multiple offences was concerned with the end result of the sentencing process rather than the individual sentences. He added:

"On sentencing the Court's primary responsibility is to produce an end result that is of reasonable relationship to the total criminality involved and the offences for which the prisoner is being sentenced."

The effective sentence, for most practical purposes, was the sentence of a minimum term of penal servitude of six years with an additional term of two years.

The applicant's counsel has made two chief submissions in support of the application. The first is that the effective sentence was manifestly excessive, the second was that the sentencing Judge did not deal with special circumstances under s 5 of the Sentencing Act in circumstances which called for special circumstances to be dealt with.

Section 5 subs 3 requires the Court, if it sets an additional term exceeding one-third of the minimum term, to state the reasons for the decision. The sentencing Judge simply set an additional term of one-third of the minimum term without reference at all to the question whether there should be any alteration to that statutory ratio.

In regard to the first ground of complaint the situation is similar in some respects to one discussed by this Court in H (1994) 74 A Crim R 41. The Chief Justice, who delivered the principal judgment in that case, referred to the fact that the appellant there had been unable to point to any explicit error of fact or sentencing principle in the reasons given by the sentencing Judge. In the present case, with the exception of the argument about special circumstances, very much the same position obtains. The Chief Justice continued that in the end in that case the argument had come down to the contention that the total sentence was manifestly excessive and that that contention was developed by reference to a detailed comparison of the sentences imposed in other reasonably similar cases.

A similar comparison was undertaken in the present case. In H the Chief Justice said that the undertaking of such a comparison is a legitimate and potentially useful exercise which serves the interest of promoting consistency in sentencing. This is the accepted approach. However, when the schedule of approximately comparable offences and the sentences imposed in respect of them, which were relied upon by the applicant in this case, is examined it does not seem to me that what emerges in the way of patterns and ranges (if it is permissible to speak in those terms) from the schedule demonstrates that there is such a discrepancy between the sentence imposed in the present case and those in the other cases we were asked to look at with all their varying circumstances, as to warrant the conclusion that any difference or any departure from the range was sufficiently noticeable to justify the conclusion that the sentence in the present case was manifestly excessive .

Counsel drew distinctions, which were to some extent valid, between the present case and some of those in the schedule which he relied on to indicate that some of the factors present in the cases in the schedule were not present in the case now before the Court and made the pertinent submission that when the sentences, to be seen in the schedule, were discounted to allow for the difference in circumstances from the present case, and the absence of some particularly unfavourable features from the present case present in some of those in the schedule cases, the result, in terms of a figure, would be demonstrably outside what would be expected as within proper discretionary limits.

Although I think there is something in that submission I do not think that the differences and discrepancies that can be extracted from the comparisons are sufficiently marked to warrant the conclusion that counsel was proposing. Thus, if the only count upon which the application was put had been that the sentence was manifestly excessive, I would not, on that ground alone, have been of the view that the sentencing Judge's decision should be interfered with.

The ground about special circumstances seems to me to be a different matter. One thing noticeable in the present case is that the sentencing Judge had little assistance, in the difficult task of sentencing, in the way of material showing exactly what it was that had taken place between A and the applicant. A Statement of Facts was put before the sentencing Judge which did little more than repeat what was contained in the indictment. Some details of place and circumstances of a minimal nature were added in the Statement of Facts together with the information that the applicant had first met A in circumstances themselves innocent enough, when he found himself with the child while her stepfather and mother were engaged in other activities in the house where they met. Other information, additional to what was in the indictment, simply consisted of bare details of the indecent assault and of the sexual intercourse which was both vaginal and anal. The other matter that was added in the Statement of Facts was that the conduct between the applicant and A had sometimes occurred between once and three times a week in the period from July 1994 to February 1995. The only other information the sentencing Judge had about the circumstances as they existed over this period, between the applicant and A, was a video film which had been taken in circumstances (inadequately explained, but nevertheless the inadequacy is quite irrelevant to the actual sentencing process), in the course of which a third person had set up a video camera in a place where the applicant and A were apparently accustomed to go and, without their knowledge, had filmed the applicant having sexual intercourse with A.

The Judge viewed this film and his comment on it was that it led him to conclude the conduct of the prisoner was designed to corrupt the child into co-operative sexual relationship. There was nothing otherwise in the evidence before the sentencing Judge in the way of a statement by the child or evidence indicating the effect upon her of the applicant's criminal conduct towards her. The objective facts of the offences were very bare. No statement from A was in evidence.

In these circumstances, and in the further circumstance that it does not appear, from the material the Court has, that the representative of the applicant drew the attention of the sentencing Judge to the desirability of considering whether the statutory ratio should be varied in the light of special circumstances, it is easy to see how the Judge came to complete the sentencing process without turning his mind to this question.

But, in some contrast to the absence of evidence concerning the effect upon the child of what had been done to her by the applicant, was evidence put forward on his behalf concerning what can be stated very shortly as his prospects of rehabilitation following his arrest upon the charges to which he later pleaded guilty. In his sentencing remarks, Taylor DCJ had referred to a number of subjective matters relating to the early history of the applicant and his way of life and problems in life from his early boyhood until this charges were brought against him when he was aged fifty-seven. His Honour seems to have appreciated the difficulties and problems which the circumstances of his life had brought to the applicant but he did not refer to the prospects of rehabilitation more than cursorily. Those prospects appear from a long report given by Mr Andreasen, a consulting clinical psychologist, from a report from the Tweed Valley Health Service, by a social worker, and a certificate from the Reverend Father Thomas Chapman with whom the applicant had been working in a humble capacity following his arrest.

Without going through the details which these documents reveal, it is sufficient to say that they were before the sentencing Judge and no challenge was made by the Crown to their contents. On the face of them they indicate that there was a real prospect of the state of mind, in which the applicant was at the time when he committed the offences to which he pleaded guilty, being significantly changed for the better, and that there was a significant chance of his a-social behaviour being considerably improved in the future. In particular, improvements in his attitude to sexual matters and his understanding of the kind of wrong that he did to the child appear, on the material that was before the sentencing Judge, to have been real and not merely the kind of hopeful prognostications without much basis that one frequently sees in cases such as this. When that is taken into account, together with his age, his past history and the desirability of a long period of supervision once he is released from custody, it seems to me that there were special circumstances existing in this case which, in my view, required the sentencing Judge to give consideration to them. It also seems to me that had he given consideration to that matter he would have set an additional term that exceeds one-third of the minimum term. There thus seems to me to have been a sentencing error made by the Judge in arriving at the final sentencing result.

So this Court in a formal sense really needs to consider the resentencing of the applicant and in doing so I would trace very much the same path as the sentencing Judge did in his remarks on sentence, with the one exception I have mentioned. Subject to that he dealt with all the matters which were required of him in the circumstances and his observations upon them seem to me to have been sound and reasonable.

However, as on resentencing, and bearing in mind the pattern of sentencing which we have been shown today in the schedules put forward by the applicant's counsel, and bearing in mind the special circumstances some details of which have been mentioned, my conclusion would be that the overall sentence in the sense of the total of the minimum and additional term periods should be made the same as that fixed by the sentencing Judge, but that there should be a minimum term of four years and six months and an additional term of three years and six months, the reason for the variation from the statutory ratio being the special circumstances, the general nature of which I have already indicated.

Put into formal terms, the result that I would arrive at would be that the sentences on all the counts in the indictment should remain the same as those fixed by the sentencing Judge, with the exception of the sentence upon the fourth count in the indictment, which I would propose should be a minimum term of penal servitude for four years and six months commencing on 6 September 1995 and terminating on 5 March 2000, and an additional term of three and a half years commencing on 6 March 2000 and terminating on 5 September 2003.

In order to arrive at this result it will be necessary first to grant the extension of time for bringing the application which has been asked for, and I would grant that extension of time; then to grant leave to appeal, which also I would grant; then to uphold the appeal and set aside the sentence on the fourth count for the reasons already mentioned and substitute for it the sentence I have just given the details of, leaving the other sentences to stand as they are.

SMART J: I agree.

SIMPSON J: I agree.

PRIESTLEY JA: The court therefore makes the orders as I proposed them.