Namarnyilk v The Queen [2013] NTCCA 17

PARTIES:	NAMARNYILK, Bundy

	v

	THE QUEEN

TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	CA 14 of 2013

DELIVERED:	8 November 2013

HEARING DATE:	30 October 2013

JUDGMENT OF:	RILEY CJ, BLOKLAND AND BARR JJ

APPEALED FROM:	KELLY J in proceedings
	No SCC 21207806

CATCHWORDS:

SENTENCING — Maintaining sexual relationship with a child — Relevance of comparable sentences for constituent offences — Sentencing standards — Starting point of imprisonment for 18 years not manifestly excessive.

SENTENCING — Aboriginal offender — Relevance of social disadvantage — Age — Life expectancy — Evidence — General statistics insufficient — Evidence specific to offender required.

SENTENCING — Non-parole period — Relevant considerations — Seriousness of offending — Rehabilitation not considered — Non-parole period of 11 years reduced to 10 years and 1 month — Sentencing Act 1995 (NT) s 55A. 

Bugmy v The Queen (1990) 169 CLR 525; Bugmy v The Queen (2013) 87 ALJR 1022, applied.

Braham v The Queen (1994) 73 A Crim R 353; R v Hitanaya [2010] NTCCA 3; R v Hunter (1984) 36 SASR 101; R v Tennyson [2013] NTCCA 2, referred to.

Criminal Code (NT) s 131A; Sentencing Act 1995 (NT) s 53(1), s 55A.

REPRESENTATION:

Counsel:
	Appellant:	J C A Tippett QC
	Respondent:	M W Nathan

Solicitors:
	Appellant:	Northern Territory Legal Aid Commission
	Respondent:	Office of the Director of Public Prosecutions (NT)

Judgment category classification:	B
Judgment ID Number:	Ril1320
Number of pages:	18

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Namarnyilk v The Queen [2013] NTCCA 17
No CA 14 of 2013

	BETWEEN:

	BUNDY NAMARNYILK
	Appellant

	AND:

	THE QUEEN
	Respondent

CORAM:	RILEY CJ, BLOKLAND AND BARR JJ

REASONS FOR JUDGMENT

(Delivered 8 November 2013)

The Court:
[1]	The appellant has been granted leave to appeal against the sentence imposed upon him on 14 February 2013. He pleaded guilty to having maintained a sexual relationship with a child under the age of 16 years. The offence was aggravated by the fact that in the course of that relationship he had sexual intercourse with the child without her consent. The maximum penalty is imprisonment for life. The appellant was sentenced to imprisonment for a term of 14 years and four months with a non-parole period of 11 years.
[2]	Leave was granted to advance two grounds of appeal:  first, that the sentence was manifestly excessive; secondly, that the sentencing judge erred in fixing a non-parole period longer than the 70% minimum required by the Sentencing Act 1995 (NT). The appellant also seeks leave to appeal in relation to a further ground being that the sentencing judge erred in not giving sufficient weight to the appellant’s plea of guilty.
The offending
[3]	The offending occurred between 1 June 2006 and 31 December 2008 at Goulburn Island when the victim was aged between 11 and 13 years. The appellant was in a relationship with the mother of the child and they lived together with other family members in the family house on Goulburn Island. Throughout the period of the offending the appellant occupied a position of trust in relation to the child. He was an adult who had responsibility for caring for the child.
[4]	In mid-2006 the mother of the child had employment which necessitated her being absent from home for periods of time. During such absences between 1 June 2006 and 31 December 2008 the appellant maintained a sexual relationship with the child involving sexual fondling, digital penetration, cunnilingus and penile penetration of her vagina. At the commencement of the relationship the child was prepubescent at the age of 11 years.
[5]	A number of particularised incidents supported the charge of maintaining a sexual relationship. The appellant admitted that the particularised incidents were not isolated but, rather, represented the general sexual relationship which occurred between himself and the child over the relevant period.
[6]	The specific incidents were described in summary form in the sentencing remarks. 
[7]	The first occurred between 1 June 2006 and 31 July 2006 when the appellant had sexual intercourse with the mother of the child whilst the mother was intoxicated. The 11-year-old victim came into the room and the appellant made her engage in sexual activity with her drunken mother and with the appellant by forcing the victim to masturbate the appellant and rub and penetrate her mother's vagina. This was particularly perverted conduct. It was a dreadful and disturbing experience to inflict upon such a young child. Unsurprisingly, the victim was so distressed by what was required of her that she became physically ill.
[8]	Between 1 December 2006 and 28 February 2007, when the child was still 11 years of age, the appellant entered the bathroom whilst the child was having a shower. He locked the door and kissed and fondled her and then performed cunnilingus upon her on the bathroom floor. He removed his pants and attempted to put his penis into her vagina but was unsuccessful. He used his finger to assist with penile/vaginal sexual intercourse which he then performed upon the girl. He ejaculated and then let the victim wash herself and get dressed.
[9]	Between 1 April 2007 and 31 December 2007, whilst on a trip looking for crabs, the appellant and the child became separated from the group. The appellant had penile/vaginal sexual intercourse with her until he ejaculated. He did not wear a condom on this or any other occasion of sexual assault upon the child.
[10]	Between 1 April 2007 and 31 December 2007, whilst her mother was absent, the appellant entered the child’s room, shut the door and then proceeded to have penile/vaginal intercourse with her until he ejaculated. The incident lasted some 30 minutes.
[11]	On another occasion, between 1 January 2008 and 31 January 2008, the victim, who was then aged 13 years, was at home and alone with the appellant. The appellant insisted she remove her clothing but she refused. He then removed her clothing and engaged in protracted penile/vaginal sexual intercourse until he ejaculated. He then left the victim to shower and go to her bedroom in a distressed state.
[12]	It was acknowledged by the appellant and it must be emphasised that these were not the only incidents of sexual abuse of the child. They were examples of a continuing course of conduct over a period of approximately two and a half years. 
The victim
[13]	The victim impact statement was compiled in February 2013 when the child was 17 years of age. She advised that the appellant was the first person to have sex with her and that she ‘didn't want him to do that and he kept holding [her] and doing it anyway’. She said she was very scared of the appellant and did not know what to do regarding his conduct. She described suffering ‘lots of pain’ before she came to a point where she could look to the future. She clung to her mother seeking protection. She would get angry if her mother left her. She suffered nightmares. She said that the conduct of the appellant made her life ‘very miserable’. She contemplated self-harm.
The appellant
[14]	The appellant was arrested on 27 February 2012. He made early admissions to the police and his subsequent plea had considerable utilitarian value. The child did not have to give evidence. However, the appellant has shown no remorse and whilst making admissions tried to attribute blame to the child, saying that she had pressured him to have sex with her.
[15]	The appellant has a criminal history for alcohol-related offences and traffic offences. He has a conviction for causing bodily harm but the penalty imposed was a fine, suggesting a less serious example of this kind of offending. He had not been imprisoned before.
[16]	The sentencing judge was informed that the appellant grew up in Oenpelli. He had a happy childhood although he sometimes got into trouble and suffered punishment. He attended Kormilda College in Darwin and completed year 10. He was proficient in English and the local language. After leaving school he worked in many occupations including in the council gardens at Oenpelli, as a grader driver, dozer driver and a driver of front-end loaders. He spent three or four years as an assistant teacher and then went back to doing council work. He stopped working in about 2007.
[17]	The appellant was aged 58 years at the time of sentence. The only health problem of which the sentencing judge was informed was that he had been diagnosed with Type II diabetes. No further information regarding this illness was provided. The judge was not informed of any health or lifestyle issues which may impact upon the longevity of the appellant.
[18]	Her Honour noted that the appellant had shown no remorse and had not demonstrated empathy for the victim. He consistently sought to minimise his culpability by blaming the victim. Her Honour proceeded to sentence on the basis that she did ‘not know’ whether the appellant was ‘likely to reoffend or not’.
The sentence
[19]	The sentencing judge described the offending as ‘extremely serious’. It was noted that the offending was aggravated by the disparity in ages between the appellant and the victim and the fact that the offending was a course of conduct carried out over a period of two and a half years. Her Honour described the offending as:
...a deliberate and persistent course of conduct. It is aggravated by the fact that actual sexual intercourse occurred on a number of occasions, only four of which are detailed in the Crown facts. It is aggravated by the fact that you had sexual intercourse without the child's consent. Reckless as to her lack of consent, you just didn't care. It is aggravated by the extreme breach of trust involved. It is aggravated by the fact that the conduct involved both physical and psychological coercion and it is aggravated by the fact that there was a significant degree of perversion. I am referring here to the incident with the mother.
[20]	In determining an appropriate sentence her Honour placed ‘greatest weight on denunciation, general deterrence and punishment’. Community protection was also a relevant factor.
[21]	The judge made reference to the decision of the Court of Criminal Appeal in R v Tennyson where the Mildren ACJ and Blokland J observed that, although there is no fixed range or tariff in relation to serious offences of sexual intercourse with a child without consent, ‘this Court has set a standard for this kind of offending where the starting point at first instance is usually somewhere between 12 years and 16 years’. Her Honour noted that in the present matter the appellant had been charged and pleaded guilty to the one offence, being the maintenance of a sexual relationship, but the physical element of the offence consisted of five different sexual offences committed on five separate occasions. Four of those involved penile/vaginal sexual intercourse without the consent of the child and one involved an extremely serious incident of procuring the child to perform an indecent act which, as her Honour observed, was so disgusting that it made the child physically sick.
[22]	The judge noted that she was not to consider a separate sentence for each of the particularised events and then accumulate them but, rather, was required to consider the circumstances of the offence that was charged and impose a single sentence.
[23]	The starting point for the sentence imposed by her Honour was imprisonment for 18 years which was reduced by a little over 20% for the plea of guilty. The appellant was sentenced to imprisonment for 14 years and four months.
[24]	In relation to the non-parole period her Honour observed:
The minimum non-parole period for crimes of this nature is 70% of the sentence. In fixing a non-parole period, I need to determine the minimum period of time which, in my view, justice requires that you actually serve. In my view, a non-parole period longer than the minimum is required in your case, having regard to the overall seriousness of the offending and I fix a non-parole period of 11 years.
Proposed ground 2: the plea of guilty
[25]	The sentencing judge reduced the head sentence by a little over 20% to reflect the benefits flowing from the plea of guilty. In so doing her Honour noted that the appellant made early admissions to police and that the plea had considerable utilitarian value including that it saved the child from the further trauma of having to give evidence. However, it was also noted that the plea did not demonstrate remorse and did not reveal empathy because the appellant tried to place blame for the offending upon the child.
[26]	It was submitted on behalf of the appellant that the admissions, cooperation and the early plea should have led to a discount greater than that allowed. It was acknowledged that the allowance for such a plea may vary but, it was argued, the value of the plea in a case of historical sexual offending required that the plea be accorded greater weight.
[27]	The extent of mitigation reflected in a plea of guilty will depend upon the circumstances of the particular case. A plea may evidence a desire to facilitate the course of justice by sparing the community the expense of a contested trial, a desire to protect a victim from the need to give evidence and may also be accompanied by remorse and a desire to accept responsibility for what has taken place. Some of those considerations may not be present. The plea may reflect some or all of those aspects to a greater or lesser extent. The strength of the case for the prosecution may be a factor to be taken into account along with the time at which the plea was offered. Each case must be considered on its merits.
[28]	In the present matter the sentencing judge considered the surrounding circumstances and concluded that a discount in the order of 20% was appropriate. In our opinion no error has been demonstrated in the approach adopted by her Honour. The discount allowed was comfortably within the acceptable range.
[29]	We decline to grant leave to appeal on this ground.
Ground 1: The sentence was, in all the circumstances of the offence and the offender, manifestly excessive.
[30]	The appellant submitted that the sentence was manifestly excessive in all the circumstances of the offence and of the offender. It was argued that the sentence of 18 years was too high a starting point.
[31]	The principles applicable to such an appeal are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously and not just arguably excessive.
[32]	In support of the submission that the sentence was manifestly excessive specific reference was made to the failure of the sentencing judge to take into account the age of the appellant and to the reference by her Honour to the ‘starting point’ referred to in the judgement of Mildren ACJ and Blokland J in R v Tennyson as being errors contributing to ultimate error.
(a) The age of the appellant
[33]	At the time of sentence the appellant was aged 58 years. Counsel referred to the life expectancy of Aboriginal males in the Northern Territory as being significantly less than the life expectancy of other males and characterised this as ‘an area of Aboriginal disadvantage’. It was submitted that the appellant was ‘old for an Aboriginal man’ and that this factor should have been taken into account by her Honour. Reference was made to the recent decision of the High Court in Bugmy v The Queen.
[34]	Advanced age may be a consideration when sentencing. A sentencing judge may afford leniency to an offender of advanced age because each year of the sentence represents a substantial proportion of the period of life which is left to the offender. The serving of the term of imprisonment may be a harsh experience for an elderly offender. However, some offences are so serious that long sentences of imprisonment are called for whatever the age of the offender. There will often be ‘a tension between the principle of proportionality and humanitarian considerations in the sentencing of such offenders’.
[35]	In the present case it was submitted that, by reference to the reduced life expectancy of Aboriginal males in the Northern Territory, the appellant should be regarded as a man of advanced age and that this was an area of Aboriginal disadvantage which should mitigate penalty. The appellant referred to general statistics. However, there was no information provided to the sentencing judge or to this Court regarding the appellant himself which suggested he had health problems of a kind which would reduce his life expectancy.
[36]	In Bugmy v The Queen it was observed:
Nonetheless, the appellant’s submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.
[37]	In the present case there was no evidence as to any likely reduction in the life expectancy of the appellant and nothing to indicate that such a reduction provided a basis for extending mercy to the appellant.
[38]	The submission cannot be sustained. 
(b) Sentencing standards
[39]	In the course of her reasons for decision the sentencing judge stated that the Court of Criminal Appeal had recently affirmed that ‘the starting point for serious sexual offences against a child is a term of imprisonment of between 12 and 16 years’. This was a reference to the decision in R v Tennyson where the Mildren ACJ and Blokland J reviewed a range of sentences and observed: 
These cases demonstrate that, although there is no fixed range or tariffs, this Court has set a standard for this kind of offending where the starting point at first instance is usually somewhere between 12 years and 16 years.
[40]	The appellant was being dealt with for the offence of maintaining a sexual relationship with a child with the circumstance of aggravation that in the course of that relationship he had sexual intercourse with her without her consent. It was submitted that the cases to which reference was made in R v Tennyson were offences of sexual intercourse with a child and were therefore of a different nature from the present offending and did not assist.
[41]	This issue was addressed by this Court in R v Hitanaya where it was said in relation to the offence of maintaining a relationship of a sexual nature with a child:
In addition to having regard to previous sentences to the crime under consideration, it is appropriate to have regard to sentences imposed for other sexual assaults against children such as indecent dealing with a child under the age of 16 years and unlawful sexual intercourse with a child under the age of 16 years. Sentences imposed for the latter crime are of particular relevance because, in the present case, the crime of maintaining a sexual relationship with a child under 16 years is comprised of the individual acts of unlawful sexual intercourse with the child. The essence of the crime is not the maintenance of the sexual relationship. It is ‘the doing, as an adult, of an act defined to constitute an offence of a sexual nature in relation to a child on three or more occasions’. In the case of the respondent, the actus reus of his offence was a commission of acts of unlawful sexual intercourse with a child on three or more occasions. 
[42]	Her Honour did not err in referring to the observations of the Court of Criminal Appeal in R v Tennyson.
[43]	In the present case the particulars of the incidents which support the charge included four counts of sexual intercourse with the victim without her consent, a count of disturbingly indecent conduct in relation to the child and an acknowledgement that these incidents were not isolated but were representative of the general sexual relationship between the appellant and the child over the period from June 2006 until 31 December 2008.
[44]	The prosecution proceeded with a single offence of maintaining a sexual relationship with a child but the seriousness of that offending is reflected in the conduct of the appellant in committing an ‘offence of a sexual nature in relation to the child on three or more occasions’. The more serious each ‘offence of a sexual nature’, the more serious the offence of maintaining a sexual relationship. In this case the particularised offences were very serious.
[45]	It has not been demonstrated that the sentencing judge misdirected herself as to the facts or the law. The offending warranted the sentencing judge finding that it was at the higher end of seriousness for crimes of this kind. In our opinion the ‘starting point’ was at the top of, but not outside, the range of appropriate sentences for offending of this kind. We see no error on the part of the sentencing judge.
Ground 3: The non-parole period
[46]	The appellant complained that the sentencing judge erred in fixing a non-parole period longer than the 70% minimum required by s 55A of the Sentencing Act. It was contended that her Honour failed to take into account matters personal to the appellant and, in so doing, placed disproportionate weight on the objective seriousness of the offending in determining the minimum period that justice required the appellant to remain in prison. 
[47]	The mitigatory matters referred to by the appellant included the age of the appellant, his lack of any history of sexual offending, that he had not previously been imprisoned, his prospects for rehabilitation, and the lack of any suggestion that he was a danger to the community or had a propensity to re-offend in a similar way. Further, it was pointed out that there was no evidence that he could not be successfully rehabilitated, particularly given his likely age upon release.
[48]	Reference was made to the following passage quoted in Bugmy v The Queen: 
The intention of the legislature in providing for the fixing of a minimum term is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
[49]	In Bugmy it was confirmed that the non-parole period is the minimum term before the expiration of which ‘release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit the public may justify’. 
[50]	Her Honour expressed the view that a non-parole period longer than the minimum was required having regard to ‘the overall seriousness of the offending’ and then fixed a non-parole period of 11 years, which is a little over 76% of the head sentence.
[51]	Her Honour’s sentencing objectives were summarised by her as denunciation, general deterrence and punishment, with community protection also a relevant factor. In relation to the latter, her Honour indicated she would have little or no regard to the opinion of a psychologist that the appellant was at a low risk of re-offending because the psychologist had not adequately exposed her process of reasoning. In addition, her Honour said that the opinion was at odds with the content of another part of the report of the psychologist to the effect that the appellant showed no remorse or empathy for the victim and that he had consistently tried to minimise his moral culpability by falsely blaming the victim.
[52]	We agree that denunciation, general deterrence and punishment remained proper matters to be taken into account in fixing the non-parole period, just as they were in determining the head sentence. However, community protection was a less relevant consideration, not only because the appellant was a 58-year-old with no prior history of sexual offending, but also because the non-parole period of 11 years was such a long period as to make the prospects of reoffending ‘beyond even speculation’. The appellant would be almost 70 before the likelihood of his re-offending would become a matter for assessment by the Parole Board. It might also be assumed that he would participate in one or more sex offender rehabilitation programs before being considered for parole. 
[53]	Even when denunciation, general deterrence and punishment are properly taken into account, as they must be in fixing a non-parole period, they ought not be permitted to dominate the considerations to the exclusion of rehabilitation. We consider that her Honour erred when she fixed a non-parole period of 11 years because, in doing so, she placed too much emphasis on the overall seriousness of the offending and did not take into account the appellant’s prospects for rehabilitation. We adopt with respect the following remarks of Crockett J, which were quoted with approval in Bugmy:
... it seems to me to be inappropriate, and possibly counter-productive, to a prisoner’s possible rehabilitation, and so to the community interest, if an inordinately long period, every day of which must be served, is fixed as a non-parole period. This, of course, is not to say that in fixing a minimum term the elements of deterrence and retribution are to be disregarded. 
[54]	In our view, the minimum non-parole period of 70% of the head sentence, as required by s 55A of the Sentencing Act, would adequately ensure that the release of the appellant would not be ‘in violation of justice according to law’. 
[55]	Accordingly, we allow the appeal on ground 3 alone. We set aside the non-parole period of 11 years and substitute a non-parole period of 10 years and one month. 
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