Regina v Ala [1999] NSWSC 1349 (17 March 1999)

REGINA v ALA

60333/96

11 November 1996

COURT OF CRIMINAL APPEAL

Priestley AP, James J, Barr J.

CATCHWORDS: Sentencing - special circumstances under s 5, Sentencing Act 1989 - sentence within discretion of sentencing court but no evidence to warrant adjusting statutory relationship between minimum and additional terms.

RESERVED/EX TEMPORE: Reserved

ALLOWED/DISMISSED: Allowed

JUDGMENT

PRIESTLEY AP: I agree with Barr J.

JAMES J: I also agree with Barr J.

BARR J: This is a Crown appeal against sentences imposed on the respondent in the District Court. The respondent pleaded guilty to charges which may be summarised as follows:-

1. Between 14 August and 7 September 1990 committing an act of indecency with the complainant, she being under twelve years of age and under his authority. The complainant was the respondent's daughter, whom I will call M.

2. In October 1990 assaulting and committing an act of indecency upon M, she then being twelve years old and under his authority.

3. In October 1990 having sexual intercourse with M without her consent and knowing that she was not consenting, she then being twelve years old and under his authority.

4. Between 21 September and 30 October 1990 unlawfully administering an overpowering drug (Diazepam) to M with intent to enable himself to commit an indictable offence, namely indecent assault.

5. In November 1991 assaulting and committing an act of indecency upon another daughter of his, whom I will call L, in circumstances of aggravation, they being her age - twelve years old - and that she was under the respondent's authority.

The sentence imposed on the fourth count was penal servitude for three years, comprising a minimum term of eighteen months and an additional term of eighteen months. The sentences on the other counts were all fixed terms of imprisonment or penal servitude, varying between ten and fourteen months in length. Sentences on all counts were ordered to commence on 18 March 1996. The practical result was a three year term.

The respondent and his wife, the mother of the complainants, lived with the complainants and two other daughters. The children were often left in the care of the respondent. The facts giving rise to the first count were that one night M was sleeping in the respondent's bed (his wife was sleeping elsewhere with a sick child) and woke to find that the respondent had placed her hand on his penis and was using it to masturbate himself. The complainant was afraid and pretended to be asleep. The charge was brought under s 61E(2A) of the Crimes Act and attracted a maximum penalty of four years' imprisonment. The second count related to an incident that took place when the complainant and the respondent were watching television. The respondent touched the complainant's breasts, then opened her pyjama top and sucked them. The relevant section is s 61E(1A), carrying a maximum penalty of six years' penal servitude. Immediately after that incident the respondent touched the complainant's buttocks over the top of her pyjamas and then put his hand inside the front of her clothing and inserted his finger into her vagina, rubbing it for some time. He kissed the complainant as he did so and told her that it would be their secret. The complainant was afraid and was in some pain. That was the third count. The relevant section is s 61D(1A) and the maximum penalty twelve years' penal servitude.

The fourth count concerned an incident in which the respondent put Diazepam (Valium) in the complainant's milk at bedtime. The complainant drank the milk unwillingly, complaining about the taste. She believed that she was being given sleeping tablets. Although the fourth count concerned one occasion only, this administration of the drug took place on a number of occasions, and the investigating police officer asked the respondent why he had given the complainant the drug. His reply was that she used to be very restless. He gave it to her so that she would go to sleep "so I can go and play with her breasts." He was asked whether he did anything else to her whilst she was asleep and he replied that he had not. There was no evidence to suggest that that was an untruthful reply. This count was brought under s 38 of the Crimes Act and attracted a maximum penalty of twenty-five years' penal servitude.

The respondent's child L was about two years younger than M. One night while the children's mother was at work the respondent entered L's room, woke her, put his hand inside her nightdress and played with her breasts. The complainant tried to resist, but the respondent forced her to let him continue. He threatened to "fix (her) up badly" if she told anyone what had happened. The relevant section was s 61M of the Crimes Act, carrying a maximum penalty of imprisonment for seven years.

The acts of the respondent have had an effect upon the complainants. No particular bodily or mental injury was pointed to, but there was acceptable psychiatric evidence to show that the prognosis for each was fair and dependent on the results of therapy. Each complainant felt betrayed, and as his Honour found, there was no possibility of a reconciliation between them and their father.

The Crown attacked the length of the effective sentence imposed and the manner of its division into minimum and additional terms. It was submitted that the sentence did not reflect the objective seriousness of all the charges and that the length of the sentences themselves demonstrated error, particularly in the face of the maximum sentence applicable to the fourth count. It was submitted that the events the subject of the charges took place over a substantial period of time and involved two young girls under the control of the respondent as their father. There was a gross breach of trust. The criminality of the respondent was exacerbated by the premeditated and cunning way he had gone about putting the Valium into M's bedtime drink. It was further submitted that the sentencing judge was wrong in taking into account in mitigation the respondent's feelings of shame following the breakdown of the marriage which his conduct precipitated and wrongly attributing to the respondent a readiness to make complete acknowledgment of his criminality.

It is not necessary in determining this appeal to decide whether the Crown was correct in submitting that the fourth count was the most serious. The learned sentencing judge attempted, appropriately, to devise a total effective sentence which would give effect to the total criminality of the respondent. It seems to me in view of that criminality that little assistance is to be had by looking at the maximum sentence applicable to any of the charges. Taking the fourth charge as an example, s 38 of the Crimes Act encompasses the unlawful application for administration to any person of chloroform, laudanum or other stupefying or overpowering drug or thing with intent to enable the accused or another person to commit or with intent to assist another person to commit an indictable offence. The range of drugs and things contemplated by the section is very wide. It includes highly dangerous substances capable of having a serious effect upon the intended victim, perhaps by occasioning bodily or mental harm. The intent to commit an indictable offence or to facilitate the commission of such an offence must be taken to relate to the whole range of offences indictable in New South Wales. Those offences would include everything from murder or other unlawful killing to the infliction of serious injury or the perpetration of other serious crimes. The substance administered in the present case was a sleeping agent commonly available on prescription and widely used in the community. The intent with which it was administered was to cause the child to sleep more soundly. It appears that that was its actual effect, though it was not completely effective. There is no evidence that the drug itself caused any harm. The relevant intent was, as the respondent told the police officer, to enable him to rub M's breasts as she slept. Although rubbing a young girl's breasts during her sleep is no light matter, and constitutes an offence which may in an appropriate case be punished by the imposition of a period of imprisonment, the respondent's criminality in administering the Diazepam does not seem to me to rate very high in the range of crimes contemplated by s 38.

Apart from the third count, the other offences committed on M comprised indecently acting and touching. They were not offences of the worst kind contemplated by the relevant sections of the Crimes Act. The act of sexual intercourse was a limited act of digital penetration and as such fell into the less serious offences contemplated by s 61D(1A).

The Crown submitted, especially in relation to the fourth count, that the sentencing judge lost sight of the fact that the incidents were not isolated. I do not think that this submission is made out. The sentencing judge's remarks do not suggest that he regarded the respondent's acts as isolated or out of character. What his Honour did find, correctly in my view, was that all the offences the subject of the first four counts were committed over a short period of time.

The last count dealt with an entirely separate occurrence and was punishable as such, but the relevant acts of the respondent were not of the most serious kinds capable of being dealt with under s 61M.

The respondent is fifty years old and for practical purposes entitled to be treated as a first offender. The sentencing judge found that the respondent himself had been badly affected by the break up of the family which he had precipitated and that he was remorseful. The Crown levelled some criticism at those findings, suggesting that his Honour had wrongly taken into account in mitigation the fact that the respondent was suffering from the direct effects of his own criminality and that remorse was far from complete or genuine. I do not think that his Honour intended to regard the respondent's suffering as a mitigating feature as such, but was taking it into account in his assessment of contrition. I think that his Honour was entitled to come to the view that the respondent was genuinely remorseful.

This Court must recognise the wide range of discretion resting in sentencing courts and must not interfere with a sentence imposed within the range of that discretion, even though it might itself have imposed a different one. It seems to me that the effective sentence of three years, though lenient, was within the discretion of the sentencing judge, and I would not disturb it.

However, the Crown also criticised the length of the additional term imposed by the sentencing judge and submitted that it itself demonstrated error. When a sentencing judge finds special circumstances he or she does so in a context involving a decision that there is something about the case that warrants a longer than usual additional term by comparison with the minimum term. "Usual" in this case means nine months, for that is one-third of what would ordinarily be the minimum term of a three year sentence. Sentencing Act 1989 s 5. In finding that there were special circumstances in this case the sentencing judge said:-

"In the sentence I propose to impose I am of the view that in the structure of that sentence, when having regard to the period of time to be served by way of an additional term, the rehabilitation prospects of the prisoner would be considerably assisted and indeed enhanced by appropriate support and counselling, in particular psychiatric counselling which I consider this man needs."

There was evidence suggesting that the rehabilitation prospects of the respondent might be assisted or enhanced by appropriate support and counselling, psychiatric or otherwise, but there was nothing in that evidence suggesting that that support or counselling could not commence before the commencement of the additional term or continue after its expiry. There was no evidence as to how long such counselling or support might take. The reports of two psychiatrists, Dr Roberts and Dr Carne were tendered. Dr Roberts thought that the respondent was suffering from depression arising from the circumstances of his criminality, but not severe enough to be regarded as a psychiatric illness. He speculated upon the possibility that the use of drugs to inhibit his sex drive might be needed in the future. But Dr Roberts did not recommend such treatment. Dr Carne recorded two previous episodes of depression, the first in 1993 and 1994 and the second in 1995, for which the respondent had been given anti-depressant treatment. Dr Carne did not state precisely what treatment had been administered. The first of those treatments lasted for six months. Dr Carne had diagnosed the respondent as suffering from a reactive depression during 1996 and had prescribed a continuation of the anti-depressant treatment. He was of the opinion that the respondent would benefit from continuing psychiatric care. Like Dr Roberts, Dr Carne referred to the possible need to prescribe drugs to inhibit the respondent's libido, but left that measure as a mere possibility. He recommended regular psychiatric follow up to enable the respondent's behaviour to be monitored and, if necessary, his depression to be treated.

None of the evidence of Dr Roberts or Dr Carne demonstrated the need for an additional term on parole greater than nine months. In my opinion his Honour fell into error in finding that the circumstances were special, justifying an increase in what would ordinarily have been the maximum permissible additional term. His Honour had no discretion to select an additional term greater than one-third of the minimum term. Accordingly, I would allow the appeal and propose the following orders:-

In lieu of the sentence on the fourth count the respondent is sentenced to penal servitude for a term of three years commencing on 18 March 1996 and expiring on 17 March 1999, comprising a minimum term of two years and three months commencing on 18 March 1996 and expiring on 17 June 1998 and an additional term of nine months. Direct the release of the respondent on parole on 17 June 1998.

I would not disturb the sentences on the other counts.