R v Fong [2002] NSWCCA 320

Reported Decision : (2002) 132 A Crim R 308

New South Wales Court of Criminal Appeal

CITATION : R v Fong [2002] NSWCCA 320 FILE NUMBER(S) : CCA 60328/02 HEARING DATE(S) : 5 August 2002 JUDGMENT DATE : 9 August 2002

PARTIES : Crown - Appellant Kelepi FONG - Respondent JUDGMENT OF : Meagher JA at 1; Simpson J at 9; Howie J at 50

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3274 LOWER COURT JUDICIAL Tupman DCJ OFFICER :

COUNSEL : W Dawe QC - Crown P Berman SC - Respondent SOLICITORS : SE O'Connor - Crown DJ Humphreys - Respondent CATCHWORDS : Crown appeal - aggravated sexual assault - s61J Crimes Act 1900 - asserted leniency of sentence - s22 and s44(2) Crimes (Sentencing Procedure) Act 1999 - plea of guilty - circumstances of aggravation - consistency in sentencing LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383 CASES CITED: R v Brooker, NSW CCA; unreported, 21 February 1996 R v AEM [2002] NSWCCA 66; unreported 12, March 2002 DECISION : (i) appeal allowed; sentence imposed in the District Court quashed; (ii) in lieu thereof the respondent sentenced to imprisonment for thirteen years with a non-parole period of eight and a half years.

IN THE COURT OF CRIMINAL APPEAL 60328/01

MEAGHER JA SIMPSON J HOWIE J

9 August 2002 REGINA v Kelepi FONG Judgment 1 MEAGHER JA: I have had the pleasure of reading in draft the judgment of Simpson J in this matter. I almost, but not quite, agree with it. 2 The facts surrounding Mr Fong's rape of his stepdaughter are too appalling to repeat. They are set out in paragraph 10 of her Honour's judgment. He has almost certainly ruined the child's life. In these circumstances, to sentence him to no more that five years' imprisonment is deplorable; as Simpson J said, the sentence was "manifestly inadequate". 3 The argument raised by learned senior counsel for Mr Fong, Mr Berman SC, although couched in language of customary elegance, was deeply flawed. It was as follows: the trial judge should have chosen a figure in "the range", in order that there be maintained "consistency in sentencing"; as an example of "the range", he referred to R v Brooker NSWCCA, unreported, 21 February 1996. 4 In a case such as the present the trial judge has a difficult task in determining the appropriate sentence to visit on the accused. The first step he or she must take is to consider what Parliament has to say on the matter: in the present case, what Parliament has to say is that the maximum sentence such a crime attracts is 20 years' imprisonment. Doubtless that is a penalty reserved for the most serious kind of offences of this type. The present case could hardly be more serious. There is very little, if anything, to be said in the appellant's favour. Maybe there should be a slight discount from the maximum sentence on account of his plea of guilty, inevitable though his conviction must have been. There is not much else he can be proud of. I should place no reliance on the fact "that he has undertaken an in-custody anger management course which he found helpful". 5 No, said Mr Berman. Brooker's Case has set a "benchmark" and dictates the imposition of a 5 year sentence. That, it is said, is what the trial judge should have considered to be of primary importance. But the Courts must obey Parliament, not a "range" established by other District Court judges, not even by a mercifully weak appellate decision such as Brooker's. The failure of criminal law judges to deliver appropriate sentences can only lead to a clamour, ever increasingly shrill, to introduce mandatory sentencing. 6 There is, of course, a subsidiary factor in the present case: Brooker's is an isolated case, standing on its own. As such, it can hardly be a "range"; nor can it demand that all subsequent cases be modelled on it. 7 For these reasons, I agree with what Simpson J said in paragraph 41 of her judgment: "Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed."

except that I should prefer to say "more important" than "equally important". 8 But, having reached that conclusion, I confess being totally unable to understand how her Honour alighted on a figure as low as thirteen. I would make Order (i) as proposed by her Honour, and Order (ii), but substituting "eighteen" for "thirteen" and "twelve" for "eight and a half". 9 SIMPSON J: This is a Crown appeal against the asserted leniency of a sentence imposed on the respondent in the District Court on 4 April 2002, following his plea of guilty to a charge of aggravated sexual assault committed on 10 March 2001. Pursuant to s61J(1) of the Crimes Act 1900 the offence carries a maximum penalty of imprisonment for twenty years. The respondent was sentenced to imprisonment for five years with a non-parole period of three years, to commence on 19 March 2001, the date he was taken into custody. 10 The offence was a particularly serious one of its kind. The victim was the respondent's six-year-old stepdaughter. The respondent and his wife, the victim's mother, also had a three-year-old son. The respondent's wife worked as a nurse on night shift. On the date of the offence she left for work at about 9.30 p.m. The victim and her brother were in bed asleep, in the respondent's care. The respondent removed the child from her bedroom to the bedroom he shared with his wife. There he tied her hands to the bedhead. He did this, as he said later, to prevent her escape. He gagged her by stuffing a handkerchief into her mouth. As he told the sentencing judge, he did this in order to prevent her from screaming for help. He proceeded to have penile/vaginal sexual intercourse with her. The child was struggling violently and screaming in pain. The respondent told her not to tell her mother what had occurred. The assault was perpetrated with sufficient force to destroy the hymen and tear the tissue, virtually the entire length of the vagina. The injuries caused persistent bleeding. The child was medically examined on 12 March, when the injuries were observed. Because of the persistent bleeding she underwent further examination under general anaesthetic the following day. A laceration was sutured under general anaesthetic. 11 Both wrists were bruised as a result of her being tied to the bedhead. 12 The offence came to light later in the day when the victim's mother came across her blood stained underclothes in a bin, where the respondent had thrown them. She questioned her husband who told her that the child had fallen over and cut herself, causing bleeding. Given the amount of blood, his wife was sceptical about this explanation. Later, she observed more blood on the child's underwear, and had her medically examined. The child then told her what had happened. 13 The respondent's wife again questioned him. This time he claimed that, while she was at work, two men had come into the house and asked to use the telephone. As soon as he admitted them, they put on balaclavas. They said they had a gun with which they threatened the respondent's son. They told him to take the child and put her in his own bedroom, to blindfold and tie her, and they hit him on the back of the head, causing him to become disorientated. Under threat of an attack on his three-year-old son, the respondent perpetrated the assault on the victim. 14 The respondent was interviewed by police on 19 March 2001. He maintained the account he had given to his wife. He also claimed that one of the intruders had held a pillow over the victim's head and had digitally penetrated her before ordering the respondent to have sexual intercourse with her. He said that the digital penetration had been the cause of some, if not all, of the injury to her. He said that when he complied with the instruction to have sexual intercourse with her, he had attempted to do so for only a short time. He said that one of the intruders had told him that he had a gun at his son's head. 15 This account was patently untrue and the respondent made no attempt to persist in it at the sentencing proceedings. 16 It is scarcely necessary to reflect upon the objective seriousness of the respondent's crime. It is difficult to conclude other than that it comes very close to being in the worst class of cases of its kind. Most remarkable, perhaps, is that, to this day, there is no explanation of any kind for the respondent's conduct. There was a suggestion, which emerged in a psychiatric report, that the respondent had earlier in the evening quarrelled with his wife, and was angry as a consequence. Even if this be so, I see it as quite irrelevant to any question of mitigation. The respondent told the psychiatrist that, before the offence, he had consumed two to three bottles of an alcoholic mixer, and was lightheaded. He also said that the victim had woken up crying, and that that was the reason he had gone to her room, and that he had not done so in order to wake her up. He said that she had been irritable and told him to "piss off", and had kicked him, and that this had aggravated his already bad mood. He said that he lost control, anger overtook him, and he acted without thinking. 17 There was some subjective material before the sentencing judge. The respondent was born in Fiji on 31 October 1973 and was twenty-seven years of age at the time of the offence. He lived with his extended family in Fiji until the age of fourteen when he migrated to Australia with some members of his family. He attended school for a time in Australia but encountered some hostility due to his ethnic origin, and left school in year ten. He took on unskilled, labouring type employment. He met the victim's mother and began a relationship with her shortly after the victim was born. They were married late in 2000. 18 He has had no previous conflict with the law. Psychiatric evidence attested that, at the time of the offence, he was probably suffering from depression. Whilst in custody following his arrest, he had been treated with anti-depressant medication to which he had responded. At the time of sentencing he had ceased the medication. He has undertaken an in-custody anger management course which he found helpful. The sentencing judge found nothing in the evidence that established a causal connection between the depression and the commission of the offence. 19 The respondent gave evidence in the sentencing proceedings. He said that he was serving his sentence on protection and anticipated that he would continue to do so for the whole of its term. That was, in my view, a realistic assessment of his position. 20 He expressed deep remorse, which the sentencing judge accepted as genuine. He initially claimed not to know why he had tied the victim's hands, but, when pressed, admitted that it was to restrain her from escaping. The sentencing judge found no features of factual mitigation to take into account in the determination of the appropriate sentence. 21 The respondent was charged on 19 March 2001. He entered a plea of guilty on 8 November 2001. By that time the date for trial had been fixed. Notwithstanding the significant delay in the entry of the plea, the sentencing judge gave the respondent the benefit on the sentence which she otherwise would have imposed, of a reduction of between fifteen and twenty per cent. This is near the top of the range envisaged in R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383 of the credit to be allowed for the utilitarian value alone of a plea of guilty. In Thomson and Houlton a range of between ten and twenty-five per cent is suggested for the utilitarian value of a plea of guilty. 22 I have already referred to the objective seriousness of the offence. It is worth restating the provisions of s61J, and of the indictment. 23 S61J(1) provides a maximum penalty of twenty years for the offence of sexual assault committed in circumstances of aggravation. S61J(2) identifies what "circumstances of aggravation" are. They are: (i) the infliction of actual bodily harm on the victim or another person who is present or nearby; (ii) a threat to inflict actual bodily harm on the victim or any other person who is present or nearby by means of an offensive weapon or instrument; (iii) commission of the offence in company with another or others; (iv) that the victim is under the age of sixteen years; (v) that the victim is under the authority of the offender; (vi) that the victim has a serious physical disability; (vii) that the victim has a serious intellectual disability. 24 The circumstance of aggravation identified in the indictment was the infliction of actual bodily harm on the victim. However, as the sentencing judge was told, there were present also the facts that the victim was under sixteen years of age (and significantly so) and was under the authority of the respondent. Although it does not find its way into the identification of circumstances of aggravation for the purposes of the section, tying the child to the bedhead and gagging her were, for sentencing purposes, additional aggravating circumstances.

the remarks on sentence 25 The sentencing judge carefully recounted the facts of the offence and noted several "circumstances of aggravation", these being the infliction of actual bodily harm, the fact that the respondent was acting in a position of trust and authority, and was a person the child was entitled to look to for protection and support, the age of the child, and the fact of binding her wrists and gagging her. She observed that the child must have been in considerable pain and that the respondent showed "a callous disregard for her, not only in carrying out the offence, but also in not taking her for treatment". She noted that there was little to explain the offence but accepted that it was more probably than not "an extreme act of violence". She accepted evidence that the respondent had been exposed to a number of stressors in his life immediately before the offence. She accepted the evidence of the respondent's alcohol intake on the evening, but noted that that was insufficient to provide any form of defence. She concluded that the respondent knew what he was doing and that there was a degree of planning involved in the obtaining of the restraints to tie the child and the gag to prevent her screaming. She accepted that the respondent had been suffering from untreated depression at the time, but, as I have already observed, saw no causal connection between that and the offence. 26 She considered the circumstances of the plea of guilty, and the reason for its delay and arrived at the discount of between fifteen and twenty per cent to which I have referred. 27 She considered the subjective circumstances, including, importantly, the respondent's prior good character, but she also noted the relatively limited extent to which prior good character affects the determination of the appropriate sentence for offences of this type. She accepted that the respondent experienced genuine remorse and contrition. However, in the absence of any explanation for the offence, her Honour found it difficult to assess the respondent's prospects of rehabilitation. She took the view that those prospects would be improved if he were subject to a relatively lengthy form of supervision in the community with the availability of appropriate counselling and/or treatment. 28 Having considered all of these matters, the sentencing judge found that there were special circumstances within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify imposing a non-parole period less than three quarters of the total term of the sentence. She identified three reasons for this, these being (i) the fact that this would be the first gaol term the respondent will serve; (ii) the fact that the respondent will serve the custodial portion of his sentence in protection, and (iii) the need for a relatively lengthy period of supervision in the community.

the Crown appeal 29 The principal point made on behalf of the Crown was that the sentence imposed was manifestly inadequate, and that, even if no patent error could be identified in the remarks on sentence, the sentence itself was so far out of proportion to the offence as to establish error for that reason alone. Reference was made to the aggravating features I have already outlined, and to the relatively generous allowance for the plea of guilty, although the submission stopped short of suggesting that such an allowance itself represented an error. 30 In fact, on behalf of the respondent, it had been made plain at an earlier stage that consideration was being given to a plea of guilty. The matter was listed before another judge on 27 September 2001, when the respondent's then legal representative advised that he had instructions to obtain a psychiatric report prior to the entry of a plea. In response to questioning by that judge, counsel said that the question of fitness to plead was to be considered. What is of some significance is that he added that, no matter what course was taken in relation to a plea, he proposed to conduct the matter in such a way that it would not be necessary for the child to be called to give evidence. He frankly acknowledged that he was taking this course in order to avoid losing the benefit of a reduction in sentence under s22 of the Crimes (Sentencing Procedure) Act, which gives statutory authorisation to the practice of reducing a sentence where a plea of guilty is entered. 31 These points were made by senior counsel who appeared for the respondent on the Crown appeal. Given the concession of the Crown, that no challenge was to be made to the allowance made for the plea of guilty, I would simply observe that, even having regard to what counsel had told the Court on an earlier occasion, the discount was relatively generous, but not, of itself, appellably so. 32 Senior counsel for the respondent also referred to a delay in the filing of the Crown appeal. Sentence was passed on 4 April 2002, and the Notice of Appeal was signed on 29 May 2002. In my opinion a delay of this length is unacceptable. However, it is not of such a magnitude as, of itself, and again having regard to the circumstances of this case, to permit this Court to exercise a discretion to dismiss the Crown appeal. 33 Senior counsel who appeared for the respondent had, in the circumstances, a difficult task. He pinned a great deal upon what he described as "consistency in sentencing", and which he presented as a desirable end in the criminal justice system. In order to support this proposition, he referred to the content of a speech made by Spigelman CJ at the Opening of the Law Term Dinner 2002, a speech which can, in full, be obtained from this Court's website. During the course of that speech his Honour the Chief Justice said: "Inevitably there will be differences on the part of judges in terms of their philosophical approaches to the exercise of the sentencing task. Nevertheless, it would fundamentally undermine public confidence in the administration of criminal justice if it became widely believed that the result was a complete lottery based on who the judge was. It is, I believe, essential for the maintenance of public confidence in the administration of justice that the outcomes of similar cases are, within reasonable bounds, the same. Consistency in sentencing must be more than empty rhetoric. That is a primary task of the Court of Criminal Appeal." 34 This was put as preliminary to reliance upon the only comparable case senior counsel's researches had uncovered. That was a decision of the former Chief Justice, Gleeson CJ, with whom Ireland J agreed: R v Brooker, NSWCCA; unreported, 21 February 1996. In that case the offender pleaded guilty to a charge of having sexual intercourse with a child under the age of ten years. That offence also carried a maximum penalty of penal servitude for twenty years. The sexual intercourse took the form of digital penetration of a four-year-old girl. She suffered serious physical injury, although Gleeson CJ did not find it necessary to detail the medical evidence. There was, in that case, quite a long delay before a plea of guilty was entered. The offender had a lengthy criminal history which included some offences of sexual indecency towards children. The offence was an impulsive one committed while the offender, an alcoholic, was substantially affected by alcohol. In contrast to the present case, there was no relationship of trust or authority between him and the victim, who was the daughter of a woman he had met while drinking at a hotel. Nor were there present the aggravating features of binding and gagging the victim. 35 Coincidentally, at first instance, that offender was sentenced to penal servitude for five years with a minimum term of three years and an additional term of two years, the same term as that imposed on the respondent. 36 This Court unanimously allowed the Crown appeal, and by majority (Gleeson CJ and Ireland J) it re-sentenced the offender to a total period of seven years with a minimum term of four years and six months. Meagher JA would have imposed a minimum term of at least eight years. 37 Pressing the submission concerning the desirability of consistency, senior counsel for the respondent urged that this Court should, if it allowed the Crown appeal, impose a sentence of a similar term to that to which Brooker was resentenced. Indeed, senior counsel went so far as to urge that the decision in Brooker "sets a benchmark" in relation to offences which may be said to fall into a similar class or category. 38 Perhaps there is something to be thankful for in the unavailability of a large pool of sentences imposed in relation to offences broadly similar to those committed by Brooker and the respondent. I would reject the argument that the decision in Brooker "sets a benchmark". Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case. 39 I do not find the argument in relation to the desirability of consistency in sentencing persuasive in this case. Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach. 40 In any event, I am of the view that, since the decision in Brooker, there has been a significant change in the approach taken by this Court to the assessment of proper sentences in relation to offences of a sexual nature: R v AEM [2002] NSWCCA 66; unreported, 12 March 2002. 41 Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed. 42 This was a particularly abhorrent crime. It is one for which the community may rightly demand retribution. The victim was entitled to rely upon the respondent for nurture and care. Instead she was brutally and scandalously assaulted by him. Her injuries alone are a testament to the violence with which the offence was committed. That there is no explanation for the respondent's sudden departure from his previous law abiding conduct is of little assistance to him. 43 This is not a case, thankfully, where the principles of general deterrence feature prominently. There are, however, cases (and this, in my view, is one) where the nature of the criminality is such as to call for a sentence that includes a substantial component of pure punishment. Members of the community would be entitled to think that the courts were failing in their duty if sentences for crimes such as this did not reflect the revulsion of the community. The sentence imposed lacks any such component. 44 In my opinion the Crown has made good its complaint that, in the circumstances of this case, the sentence imposed was manifestly inadequate. It simply fails to reflect the objective seriousness of the respondent's crime. Accordingly, in my view, it will be necessary to quash the sentence imposed and re-sentence the respondent. 45 Against that possibility the Court received an affidavit sworn by the respondent on 2 August 2002. He deposed that, since being in custody, he has seen a psychologist regularly and has applied for admission into a sex offenders' course. He had also enrolled in some literacy courses in order to improve his reading and writing. His teacher of this course reported favourably upon him. The respondent has undertaken employment whilst incarcerated. He further deposed that, on learning of the Crown appeal, he became depressed, although he had resisted the temptation to resume his anti-depressant medication. Nevertheless, his circumstances so upset him that he made serious mistakes at the work he has undertaken. 46 He said that he thinks every day about his crime and remains very remorseful. 47 It is, of course, necessary to bear in mind the particular principles concerning the imposition of sentence by this Court following a successful Crown appeal. The sentence imposed should be at the lower end of the range reasonably available at first instance. As I said at the outset, this case can properly be seen as a being towards the worst class of offences envisaged by s61J. It would not have been surprising to have seen a starting point of a sentence of a total term of fifteen years. 48 There was no challenge to the finding of special circumstances and, accordingly, I would not disturb it. 49 Having regard to all of the circumstances, and in particular the special principles that apply to re-sentencing after a successful Crown appeal, and to the finding of special circumstances, I propose the following orders: (i) appeal allowed; sentence imposed in the District Court quashed; (ii) in lieu thereof the respondent sentenced to imprisonment for thirteen years with a non-parole period of eight and a half years. 50 HOWIE J: I have received the very substantial benefit of reading in draft the judgments of both the Presiding Judge and Simpson J. I agree generally with the judgment of Simpson J and the orders she proposes. 51 However, I agree with the non-parole period proposed only because the Crown Prosecutor on the hearing of this appeal conceded that the sentencing judge was entitled to find special circumstances and the parties, therefore, were not heard upon what should be the position if the sentence was significantly increased. But the fact that there are special circumstances found in respect of a total sentence of 5 years does not mean that special circumstances will be found to exist in a total sentence of 13 years. The considerations are different, particularly where a finding of special circumstances is based upon a perceived need for the offender to have a longer period on parole than would result from the application of the usual relationship between the head sentence and the non-parole period. That must have been the major factor which influenced the sentencing judge because neither the fact that the respondent was serving his first period in gaol or that he was to serve that period in protection would require, or necessarily justify, a finding of special circumstances by themselves. 52 Like the Presiding Judge, I too would cavil with Simpson J's observation that the public perception that the sentences imposed are appropriate to the nature and seriousness of the crimes committed is as important to the administration of justice as consistency in sentencing. While consistency in sentencing is a goal to which all courts should strive and can be of particular importance when co-offenders are sentenced, it cannot be allowed to overshadow the legislature's policy with respect to a particular crime which is manifest in the maximum sentence specified for an offence. Consistency must give way to the need for a particular sentence in a particular case for any of the reasons for which punishment is imposed. The need for specific deterrence is an instance where consistency or reliance upon the usual range of sentences must give way to the need for a particular sentence to be imposed upon a particular offender. Denunciation of a particularly serious crime is another. 53 In any event that is not the issue in this case, because there is no requirement that this Court impose a similar sentence to that imposed by a differently constituted Court, on a different occasion and on different facts. That was an exercise of that Court's discretion in determining a Crown appeal. The breadth of this Court's discretion is well established both in determining to dismiss a Crown appeal and in deciding what sentence should be imposed when the appeal is allowed.

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