AIO v The Queen

[2019] SASCFC 121

Supreme Court of South Australia

(Court of Criminal Appeal)

AIO v THE QUEEN

[2019] SASCFC 121

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Doyle and The Honourable Auxiliary Justice David)

8 October 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS

Appeal against sentence following the appellant’s early guilty plea to basic offence of indecent assault. The appellant contends that the sentence imposed is manifestly excessive and that the sentencing Judge had regard to extraneous matters which resulted in a sentence which was disproportionate to the offending.

Held, per David AJ (Peek J agreeing), dismissing the appeal:

1. The seriousness of the offending cannot be seen in isolation of the appellant’s antecedents, prospects of rehabilitation and risk of re-offending.

2. The sentence was not manifestly excessive.

Held, per Doyle J, allowing the appeal:

1. The sentence, arrived at by reference to a notional starting point of 4 years, was in all the circumstances manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 56(1); Criminal Law (Sentencing) Act 1988 (SA) s 23(2); Sentencing Act 2017 (SA) ss 3, 57, referred to.

AIO v THE QUEEN
[2019] SASCFC 121

Court of Criminal Appeal:       Peek and Doyle JJ and David AJ

1. PEEK J:     I have read the draft reasons of Doyle J and David AJ. While I accept that this is a heavy sentence, I do not consider that the sentence was beyond the discretionary range available to the Judge, particularly having regard to the clearly demonstrated need for personal deterrence in this case. 

2. I add that the Judge went to a great deal of trouble in considering this matter, publishing a detailed Judgment (principally for the benefit of the lawyers before her) as well as the shorter sentencing remarks in terms attuned to the ear of the appellant, which she read to him on sentencing. It is made clear in each of those respective documents that “what would in isolation appear to be a disproportionate sentence for a minor indecent assault is the appropriate sentence in this case” and that it “may seem on its own to be a very high sentence, but in your case I have decided it is necessary”.

3. I would dismiss the appeal substantially for the reasons given by David AJ.

4. DOYLE J:   I have had the benefit of reading the draft reasons of David AJ. While I agree with, and gratefully adopt, his Honour’s summary of the facts and circumstances relevant to the disposition of the appeal I have reached a different conclusion as to the outcome.

5. Consideration of whether a sentence is manifestly excessive involves consideration of the entire range of circumstances relevant to the sentencing decision, including the maximum penalty for the relevant offence, and the detail of the circumstances of the offending and the offender. But ultimately the conclusion reached is a matter of impression that often does not permit of detailed analysis or explication.

6. While acknowledging that the notional head sentence of four years for a single count of indecent assault (before the reduction for the appellant’s plea of guilty) was high, David AJ concluded that it was not manifestly excessive.  In so concluding, his Honour emphasised, as the sentencing judge did, that the offending was not trivial and involved subjecting a 14 year old girl to a terrifying experience.  His Honour, and the sentencing judge, also emphasised the appellant’s significant antecedents and poor prognosis. 

7. I agree that in light of these circumstances personal to the appellant, a significant penalty was warranted.  However, in my view, even taking account of the significance of the circumstances personal to the appellant, a starting point of four years imprisonment for what the sentencing judge acknowledged was a relatively minor indecent assault, was manifestly excessive.

8. It follows that I would allow the appeal, and resentence the appellant.  However, as mine is a dissenting view, there is no utility in me proceeding to undertake that task.

   DAVID AJ.

   Introduction

9. This is an appeal against sentence. On 22 February 2019, the appellant was sentenced in the Supreme Court to a term of two years and 10 months imprisonment with a non-parole period of 19 months, having pleaded guilty to a charge of indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The charge was for a “basic offence” and the maximum penalty is eight years imprisonment.

10. The sentencing Judge commenced with a head sentence of four years, but reduced that by almost 30 per cent because of the appellant’s early guilty plea in the Magistrates Court.  The appellant now argues that that starting point of 4 years imprisonment is manifestly excessive, bearing in mind the maximum penalty and the nature of the offending.

    The course of the proceedings

11. The offending took place on 7 July 2017, and the appellant was arrested on 21 July 2017.  He pleaded guilty in the Magistrates Court on 18 October 2017.

12. Because of his antecedents, the matter was referred to the Supreme Court pursuant to s 23(2) of the Criminal Law (Sentencing) Act 1988 (SA) for sentence and for consideration of whether an order should be made for indefinite detention. Subsequently, the Criminal Law (Sentencing) Act 1988 was replaced by the Sentencing Act 2017 (SA). The equivalent section to s 23 of the replaced act is s 57. The application for indeterminate detention was continued pursuant to that section. Reports were obtained and evidence given, by two legally qualified medical practitioners, pursuant to s 57(6), namely Dr Ian Jennings and Dr Paul Furst.

13. After the sentencing Judge heard submissions and considered the expert medical evidence of doctors Jennings and Furst, the sentencing Judge dismissed the application for indeterminate detention and proceeded to sentence. 

14. During the period of time from his arrest until sentence, the appellant has been in custody.

    The offending

15. At the time of the offending the victim (V) was a 14-year-old schoolgirl.  At about 5:00 pm on 7 July 2017, she caught a bus on her way home from school. Once she got on the bus she noticed the bus driver go to the back of the bus and wake up a male person, the appellant, who was sleeping.  According to V, the appellant was “going off” because he did not seem to know where he was.  After about five or ten minutes the appellant came and sat across from V and started asking her numerous questions which she did not answer.  He then placed his right hand on her upper right leg and moved it up and down.  She told him to stop but he kept going and continued rubbing her leg and asking her questions for about 20 minutes before she got off the bus at her stop. As she got off the bus, he exhorted her not to leave and he remained.  She and the appellant were isolated from the only two other passengers on the bus, who were sitting at the front whilst they were in the middle.  It is that behaviour which was the basis of the charge. V and the bus driver observed that he was intoxicated.

    The appellant’s personal circumstances and offending and antecedents

16. The appellant was born in Mogadishu in Somalia in 1972.  He lived there until he was 20 before fleeing the civil war to a refugee camp in Kenya. He came to Australia at the age of 24. His father died in Somalia and as far as he knows his mother still lives there.  He has a brother and sister in Australia with whom he has no relationship.  He has a history of homelessness and a severe problem in relation to the excess use of alcohol.  The expert medical evidence indicates that he has experienced mental health issues relating to the trauma he was exposed to during the Somalian civil war and in the refugee camp in Kenya.

17. Although the application for indeterminate detention was dismissed, nevertheless the opinions of Dr Furst and Dr Jennings were available to the sentencing Judge for the purposes of sentencing.  Dr Furst considered that the appellant’s risk of reoffending is significantly affected by his use of alcohol.  He considered that his risk of re-offending when sober would be less.  He considered that if he were released into the community without any conditions there would be a fairly high risk of similar offending.

18. Dr Jennings was also of the opinion that alcohol use disorder is at the basis of his offending.  He believed that when intoxicated the appellant was at a high risk of re-offending.

19. The appellant has an extensive criminal history.  He has 16 convictions for disorderly behaviour, over 20 convictions for failing to comply with bail and seven convictions for breaches of bonds.  But most importantly, he has three previous convictions for sexual offending.  On 13 February 2007, he indecently assaulted a young woman on a train.  He sat opposite his victim and, in a similar fashion to the present offending, touched her legs.  However, on this previous occasion he tried to force her legs apart and he touched her on the right breast.  It was noted that he was intoxicated at the time.  He was sentenced to a term of imprisonment of 12 months for that offending. 

20. On 2 September 2013, he committed an act of indecent behaviour by exposing his penis to a young man on a bus. He was sentenced to six weeks imprisonment which was suspended upon him entering into a good behaviour bond for two years.

21. On 3 October 2014, he committed an act of gross indecency, having been observed by police of having consensual anal sex with another male at Veale Gardens.  A two month term of imprisonment was imposed.

    The Judge’s sentencing remarks

22. The sentencing Judge quite rightly found that the appellant’s prospects of rehabilitation were very poor and his risk of re-offending very high unless he is prohibited from drinking alcohol and has a place to live where his alcoholism can be managed.  In other words, he needs supervision.  She pointed out that personal deterrence is important, and she was concerned about the protection of the public, especially young females, due to his lack of control when affected by alcohol.  Bearing that in mind, she made these remarks: “what would in isolation appear to be a disproportionate sentence for a minor indecent assault is the appropriate sentence in his case.  The sentence I impose provides for the protection of the community and will give [the appellant] the best prospect of receiving appropriate treatment, review and supervision”.  The sentencing Judge referred the reports of Dr Jennings and Dr Furst to the Department for Corrections and the Parole Board to assist them to determine any conditions of a closely supervised and highly structured release on parole. 

    Appeal

23. There is one ground of appeal, namely that the starting point of four years imprisonment was manifestly excessive.  Allied to that ground is an argument that the sentence was totally disproportionate to the offending.

24. Counsel for the appellant argues that the offending is at the lower end of the scale for this type of offence, and is therefore disproportionate to the sentence imposed. He also submits that the sentencing Judge took extraneous matters into account. The respondent argues that the sentence was appropriate and must be looked at in light of the appellant’s antecedents, including his long history of alcohol abuse and increased tendency to offend when intoxicated, and the poor prognosis in relation to future offending if he remains unsupervised. She points out the significance of s 3 of the Sentencing Act 2017 (SA), which provides that the primary purpose for sentencing a defendant of an offence is to protect the safety of the community. 

    Discussion

25. In my view, the notional head sentence before allowance was made for an early plea of guilty was a high one.  However, the offending itself cannot be seen as trivial or indeed not serious.  A 14-year-old girl on public transport was subjected to what can only be described as a terrifying experience.  She was obviously young and vulnerable, and quite properly demands the protection of the courts.  The seriousness of the offending cannot be seen in isolation, and the appellant’s antecedents and poor prognosis must be taken into account as they were by the sentencing Judge. In all of the circumstances I find the sentence was not manifestly excessive.

26. She carefully crafted a sentence recommending supervision which will benefit both the appellant personally and protect the public. 

    Conclusion

27. I would dismiss the appeal.