Citation: PH v R [2017] NSWCCA 79
Court: Court of Criminal Appeal (NSW)
Date: 28 April 2017
Judges: Meagher JA, Rothman J, Button J
Background
The applicant pleaded guilty to eight offences in the District Court: six counts of aggravated sexual assault and two counts of aggravated indecent assault, all committed against his three daughters when they were between approximately 12 and 16 years of age. The circumstance of aggravation in each instance was that the daughters were under his parental authority. He was sentenced to an aggregate non-parole period of 14 years, with an additional term of 4 years and 9 months.
The applicant sought leave to appeal against the sentence in the Court of Criminal Appeal. His application raised three proposed grounds, each directed at alleged errors in the sentencing judge's reasoning.
The applicant's identity is suppressed because publication would identify the victims.
Legal Issues
- Whether the sentencing judge erred by failing to make findings of fact about the applicant's claimed history of childhood sexual abuse, which was advanced as a mitigating factor bearing on his moral culpability.
- Whether the sentencing judge erred by failing to give weight to that claimed history, even accepting it as reported to a psychologist.
- Whether a comment in the ex tempore sentence about ejaculation "on each occasion of the charged offences" constituted a factual error that infected the sentencing outcome.
Decision
Grounds 1 and 2: Claimed childhood abuse history
The applicant did not give evidence at the sentencing hearing. His claim to have been sexually abused as a child rested solely on material he reported to a psychologist retained for sentencing purposes. The sentencing judge expressed concern about the applicant's reliability and honesty in giving that history, noting that he had failed to disclose to the psychologist prior charges from 1994 involving daughters from an earlier relationship. The psychologist herself queried whether the applicant had distorted or exaggerated his account of adolescent sexual experiences.
Rather than making a positive finding about whether the abuse occurred, the sentencing judge assessed the submission on the assumption that the history was accurate as reported. Her Honour concluded that, given the applicant's own acknowledgment after the 1994 charges that he appreciated the wrongfulness of his conduct and the risk he posed to his children, any mitigatory weight to be drawn from a connection between childhood abuse and the later offending was not significant. The Court of Criminal Appeal found this approach was open to the sentencing judge. Because her Honour addressed the argument on its best footing, the absence of a formal factual finding was immaterial, and neither ground 1 nor ground 2 was established.
Ground 3: Alleged factual error about ejaculation
The third proposed ground seized on language in the ex tempore judgment suggesting ejaculation occurred "on each occasion of the charged offences." The applicant argued this was incorrect as to sequences 3 and 4, where the evidence was silent on the point, and that accepting the fact to his detriment breached the rule that matters adverse to a defendant must be proved beyond reasonable doubt.
The Court rejected this ground. Rothman J found the comment was a minor infelicity in an ex tempore judgment and that an examination of the indicative sentences revealed it had no effect on the sentence imposed. Button J added that no submission had been made at first instance challenging whether satisfaction to the criminal standard was possible on this point, and that, in any event, a court could readily infer to the criminal standard that a person prepared to offend in the manner established was also prepared to run the risk of impregnating the victims.
Orders Made
- Leave to appeal refused.
Key Takeaways
- A sentencing judge is not required to make a formal finding on a claimed mitigating history if the submission is fully addressed on the assumption the history is accepted: what matters is that the argument is properly engaged with, not that it is resolved by a definitive factual finding.
- Where an applicant does not give evidence at sentencing and relies only on self-reported history given to an expert, and the sentencing judge raises doubt about that reliability with counsel during the hearing, the applicant bears the consequences of that evidentiary choice.
- Even accepting a history of childhood sexual abuse, a sentencing court may reasonably find its mitigatory weight is diminished where the offender had subsequently demonstrated awareness that his conduct was seriously wrong before committing the offences under sentence.
- Minor infelicities of expression in an ex tempore judgment will not ground a successful sentence appeal where they had no demonstrable effect on the sentence actually imposed.
- In dismissing the application, the Court of Criminal Appeal confirmed that a finding adverse to a defendant on a factual matter can, in appropriate circumstances, be inferred to the criminal standard from the nature and circumstances of the offending itself.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J(1) (aggravated sexual assault), 61M(2) (aggravated indecent assault)
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Niketic [2002] NSWCCA 425
- R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54