Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Kertai v R [2013] NSWCCA 252
• Hearing dates: 16 October 2013
• Decision date: 08 November 2013
• Before: Hoeben CJ at CL at [1]; Johnson J at [42]; Bellew J at [43]

Decision

Application for extension of time by the applicant dismissed.

• Catchwords: CRIMINAL LAW - Application for extension of time for leave to appeal against sentence - sexual intercourse with a child under 10, contrary to s68A(2) Crimes Act 1900 - whether "Muldrock error" occurred - two year delay - principle of finality - relevant considerations for grant of extension of time - whether error in assessment of objective gravity of offence - whether sentence manifestly excessive - insufficient prospects of success - application for extension of time dismissed.
• Legislation Cited: Crimes Act 1900 (NSW) - s66A(2); Crimes (Sentencing Procedure) Act 1999 (NSW) - s54A(2); Criminal Appeal Act 1912 (NSW) - s6(3)
• Cases Cited: Abdul v R [2013] NSWCCA 247; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Mulato v R [2006] NSWCCA 282; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Perry v R [2006] NSWCCA 351; 166 A Crim R 383; R v Dang [2005] NSWCCA 430; R v Fisher [2008] NSWCCA 103; R v Ronald King [2009] NSWCCA 117; R v Way [2004] NSWCCA 131; 60 NSWLR 168; Stanford v R [2007] NSWCCA 73; Zarakas v R [2013] NSWCCA 144; Zreika v R [2012] NSWCCA 44
• Category: Principal judgment
• Parties: John Kertai - Applicant; Regina - Respondent Crown
• Representation: Counsel: Ms R Burgess - Applicant; Ms T Smith - Respondent Crown; Solicitors: S O'Connor, Legal Aid NSW - Applicant; S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
• File Number(s): 2010/029489

Decision under appeal

• Date of Decision: 2011-06-24 00:00:00
• Before: Berman DCJ
• File Number(s): 2010/029489

Judgment

1 HOEBEN CJ at CL:

The applicant was convicted after trial by jury of sexual intercourse with a child under 10, contrary to s66A(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the child was under his authority. The maximum penalty is life imprisonment. By virtue of s54A(2) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) that offence attracted a standard non-parole period of 15 years. On 24 June 2011 the applicant was sentenced by Berman DCJ to 12 years imprisonment with a non-parole period of 7 years. The earliest date he is eligible for release on parole is 1 February 2017.

2 The applicant relies upon three grounds of appeal.

Ground 1: His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

Ground 2: His Honour erred in his assessment of the objective gravity of the offence.

Ground 3: The sentence is manifestly excessive.

FACTUAL BACKGROUND

3 The offence occurred when the applicant was aged 69. The victim was a young girl aged 5. The offence occurred on 22 January 2010 when the offender took the victim fishing.

4 For many years the applicant was a friend of the victim's father. He would buy her gifts and had taken her fishing on other occasions. On 22 January 2010 the applicant asked the victim's father if he could take her fishing once more and permission was given.

5 Together they went to a beach at Sans Souci. After fishing for a while and the victim playing in the sand, they got back in the car. In the words of the victim, the following occurred:

"He wanted to have a look at my wee-wee so I said no. He said please, I said no. He said please. He was bothering me and so I said okay because it was bothering me."

When the victim was asked what happened next, she said:

"He touched it. He touched it too inside and he hurt me."

6 The victim made it clear that the applicant actually penetrated her genitals with his finger causing her to say "ouch". From other things that the victim told the police, it appears that the applicant kept his finger inside her genitals for about five seconds. The applicant then drove the victim home.

7 The victim said nothing to her father about what had occurred but that evening while she was being bathed by her mother she told her what had happened. The victim's mother complained to the police and the victim was examined by a doctor. He found nothing abnormal, but gave evidence at trial that this was not surprising given the circumstances of the assault. The victim's mother said that when she examined the victim, she observed some slight swelling of the victim's genitalia.

8 In the course of the sentence proceedings, the sentencing judge said:

"There is no Victim Impact Statement in this matter but of course that does not mean that the victim has not been harmed. She was not at that very young age where juvenile amnesia might operate to spare her memories of what occurred. I will sentence the offender on the basis that it is quite likely that while the complainant was not physically harmed, she will be emotionally affected by what he did to her." (ROS 3.2)

9 The applicant had been convicted of a similar offence in the past. On 19 April 2001 he received a 2 year suspended sentence for sexual offences against a child under 16. The victim was the 9 year old daughter of a family friend. The offences occurred between 1983 and 1986 but the applicant was not arrested for them until 1998. The applicant denied those offences and was convicted after a jury trial. Otherwise the applicant's criminal record contained minor offences including stealing, entering enclosed lands and a low range PCA.

10 The applicant came to Australia from Hungary at the age of 16. The applicant completed school when he came to Australia but experienced some difficulty in that regard and was suspended from several schools. He studied architectural drafting and building but did not pursue either career. Over the years, he engaged in a number of employments and until the 1990's when he went on welfare benefits, was regularly employed.

11 The applicant had been married but the relationship broke up. He was not married at the time of the offending. He has no children.

12 In relation to the severity of the offending, the sentencing judge said:

"Of course because the offence carries with it a standard non-parole period it is important that I make a finding as to where the offence falls as far as its objective gravity is concerned. I find that it is slightly below the middle of the range of objective seriousness for offences of this kind. Working in the offender's favour is the fact that the form of sexual intercourse involved, digital penetration, is in the circumstances of this case, much less serious than other forms of sexual intercourse covered by the offence. That penetration was only of short duration too, around five seconds it would seem, and it was an isolated offence, not repeated. Apart from swelling perhaps noticed by the complainant's mother, no injury was caused." (ROS 4.8)

13 The sentencing judge noted that the victim was significantly younger than the 10 year cut off for the offence and was an unwilling participant in what occurred which the applicant clearly knew. His Honour also took into account that some pain had been caused to the victim. The applicant displayed no remorse for what he had done and continued to deny any wrongdoing during the sentence proceedings. His Honour noted that the offence involved a significant breach of trust.

14 The sentencing judge took into account that the applicant had a number of health issues, but observed that most of those health issues had been placed before the court when he was sentenced in 2001. His Honour said:

"It needs to be emphasised that ill health is not a licence to commit crime but with that qualification, I do note and take into account that the offender will do his time in custody harder than a person who does not suffer from the conditions which afflict the offender." (ROS 5.3)

15 His Honour took into account that it was likely that the applicant would serve the entirety of his sentence in protection and that there was at least a risk that those conditions of custody would be harder than those which would otherwise be found in the general prison population.

16 His Honour made a finding of special circumstances because of the applicant's age and because this would be the first time that he had actually gone to prison. The commencement of the sentence was backdated to 2 February 2010, being the date when the applicant first went into custody.

Background to this application

17 After having been sentenced, the applicant filed a Notice of Intention to Appeal in relation to sentence and conviction on 15 July 2011. On 21 September 2011 Legal Aid NSW received an application for legal aid from him. On 20 June 2012 he was refused legal aid because the application was not considered to have reasonable prospects of success in accordance with the Legal Aid merit test. This was well after the decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

18 Between 21 August and 20 November 2012 the applicant's file was reviewed by Legal Aid NSW to determine whether the sentence contained "Muldrock-type errors". The applicant completed a further application for legal aid which resulted in these proceedings coming before the Court.

19 For a general background to applications of this kind and "Muldrock error", this judgment should be read with Abdul v R [2013] NSWCCA 247.

Delay

20 The sentence was imposed on 24 June 2011. A Notice of Intention to Appeal was filed within time on 15 July 2011 but was not pursued and lapsed. Accordingly, an extension of time of just over two years is sought. By comparison with other matters involving alleged "Muldrock error", the extent of the delay is not particularly great. Nevertheless, the principles relating to delay and finality will need to be considered.

21 If "Muldrock error" is not made out, there is no explanation for delay and no basis for a submission that had s54B(1) of the CSP Act been correctly applied, a lesser sentence would have been imposed. Moreover, the absence of "Muldrock error" gives greater force to the principles of delay and finality when considering Grounds of Appeal 2 and 3.

22 The Crown does not accept that "Muldrock error" has occurred. In the alternative, if "Muldrock error" is found to have occurred, the Crown does not accept that in accordance with s6(3) of the Criminal Appeal Act 1912 (NSW) a lesser sentence should be imposed. The Crown opposed any extension of time being granted.

Was there Muldrock error?

23 The applicant submitted that the sentencing judge erred by:

(a) Adopting a two stage approach to sentencing and

(b) Giving determinative weight to the standard non-parole period.

24 In support of that submission, the applicant relied upon that part of the sentencing judgment where his Honour said:

"Of course because the offence carries with it a standard non-parole period it is important that I make a finding as to where the offence falls as far as its objective gravity is concerned. I find that it is slightly below the middle of the range of objective seriousness for offences of this kind." (ROS 4.8)

25 The applicant submitted that the degree of specificity in the finding of objective seriousness, i.e. "being slightly below mid-range" indicated that the sentencing judge was mindful of the line of authority in R v Way [2004] NSWCCA 131; 60 NSWLR 168. The applicant submitted that such an approach was contrary to the "instinctive synthesis" approach described by McHugh J in Markarian v The Queen [2005] HCA 25; 228 CLR 357 which was expressly approved in Muldrock.

26 I am not satisfied that "Muldrock error" has occurred as submitted by the applicant. The only part of the remarks on sentence which deals with the application of the standard non-parole period is the quotation relied upon by the applicant at [24] hereof. Nowhere else is it referred to. The remarks on sentence are otherwise quite unexceptionable in that they summarise the facts of the offending, the applicant's subjective case and set out sentencing principles.

27 It is not an error for a sentencing judge to make a finding of objective seriousness (Zreika v R [2012] NSWCCA 44 at [45] - [46]). On the contrary, Muldrock emphasised the importance of an assessment of "objective seriousness" in the sentencing process (at [27]). There are a number of decisions in this Court that post-date the decision in Muldrock to the effect that it is not an inappropriate exercise for a sentencing judge to make an evaluation of the objective seriousness of an offence (Zarakas v R [2013] NSWCCA 144 at [35]).

28 In my opinion the finding of objective seriousness "slightly below" the midrange did not disclose a precision indicative of an approach which was unduly prescriptive and that indicated that the standard non-parole period played a greater role on sentence than that of a legislative guidepost. Most importantly, the sentencing judge did not engage in a two-step process, but rather identified all the factors which were relevant to sentence, discussed their significance and then made an assessment of what was the appropriate sentence.

29 A proper reading of the sentencing remarks does not demonstrate the errors identified in Muldrock. As already indicated, the sentencing judge applied an instinctive synthesis approach consistent with Markarian whereby he determined the appropriate sentence after identifying all relevant factors and their significance. His consideration of the objective gravity of the applicant's offence was part of that process of instinctive synthesis leading to the formulation of the sentence which was imposed.

30 This ground of appeal has not been made out.

Ground 2: His Honour erred in his assessment of the objective gravity of the offence.

Ground 3: The sentence is manifestly excessive.

31 The rejection of the first ground of appeal gives rise to a significant difficulty for the applicant when relying upon these grounds of appeal. The extent of the delay, while not as long as in some other of these cases, is still substantial, i.e. in excess of 2 years. That delay has not been explained. The only explanation offered was that which related to the handing down of the decision in Muldrock. Accordingly, the principles of delay and finality operate even more decisively against an extension of time being granted for the hearing of an application for leave to appeal against sentence based on these grounds.

32 The relevant principles have been discussed in Abdul v R at [31] - [53]. To the extent necessary those paragraphs are incorporated into this judgment.

33 The factors identified in that discussion do not assist the applicant in his application for an extension of time. They all point to an extension of time being refused. This leaves as the only issue to be considered whether a refusal to extend time would result in a substantial injustice.

34 An assessment of objective seriousness of an offence has always been regarded as a discretionary exercise by the sentencing judge. There have been a number of statements by this Court to the effect that the Court should be slow to depart from a sentencing judge's conclusion as to objective seriousness of an offence: (R v Dang [2005] NSWCCA 430; Perry v R [2006] NSWCCA 351; 166 A Crim R 383; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103).

35 In Mulato v R [2006] NSWCCA 282 Spigelman CJ (Simpson J agreeing) said at [37]:

"37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised.

In a separate judgment Simpson J added at [46]:

"46 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."

36 The type of intercourse is not determinative. On that issue, McClellan CJ at CL (with whom Grove and Howie JJ agreed) said in R v Ronald King [2009] NSWCCA 117:

"35 ... It is unnecessary to enter into a debate about the significance in sentencing of different types of penetration that fall within the concept of sexual intercourse: see R v Hibbert [2009] NSWCCA 20. The simple fact is that the respondent inserted his finger into the child's vagina for however brief a period of time so as to cause her a physical injury with pain at least of a transient nature. He did so notwithstanding that the child awoke and told him to stop.

36 The respondent argues that it was open for his Honour to find that digital penetration was less serious than penile penetration and this was a very significant fact in the assessment of the degree of criminality. But it has been made clear that it is not a case of simply considering the nature of the penetration in isolation as being ranked in some form of hierarchy: R v AJP [2004] NSWCCA 434; 150 A Crim R 575. What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is. The simple fact is that had the intercourse in this case been penile penetration it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case the seriousness of the offence may have been above mid range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range."

37 In my opinion, no error in this part of the sentence process has been identified. By reference to the matters identified by his Honour at [13] hereof, the assessment of objective seriousness was well open to him.

38 The test for whether a sentence is manifestly excessive is whether the sentence ultimately imposed was "unreasonable or plainly unjust". In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

"59 As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"."

39 The sentencing judge fully reviewed the facts of the offending in this matter. The salient features were that the complainant was only 5 years old, the applicant was solely in charge of her at the time he procured a situation where she could not avail herself of the protection of her parents. She was in a confined and restricted place with him when he initiated the offending. She was extremely young and very vulnerable. In the circumstances of this offence, I am not satisfied that the sentence imposed was "unreasonable or plainly unjust".

Conclusion

40 It follows that even if an extension of time were granted and leave to appeal against sentence was granted, Grounds of Appeal 2 and 3 have not been made out. It would be futile to grant an extension of time in such circumstances.

41 The order which I propose is that the application for an extension of time by the applicant be dismissed.

42 JOHNSON J: I agree with Hoeben CJ at CL.

43 BELLEW J: I agree with Hoeben CJ at CL.

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Decision last updated: 08 November 2013