Cranfield v The Queen
[2018] ACTCA 3
•21 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Cranfield v The Queen |
Citation: | [2018] ACTCA 3 |
Hearing Date: | 13 February 2018 |
DecisionDate: | 21 February 2018 |
Before: | Murrell CJ, Elkaim and Wigney JJ |
Decision: | See [52] |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the primary judge erred in providing a sentencing discount of 5% for the pleas of guilty – relevance of the offender’s mental health issues and prospects of rehabilitation – whether the sentence imposed was manifestly excessive |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 35 |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 CX v The Queen [2017] ACTCA 37 |
Parties: | Adam Cranfield (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms M Jones (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 23 of 2017 |
Decision under appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 26 May 2017 Case Title: R v Cranfield Citation: [2017] ACTSC 171 |
THE COURT:
The appellant was due to face trial on 21 November 2016. However, on 16 November 2016, the appellant entered pleas of guilty to eight counts in an amended indictment.
He was sentenced by Mossop J on 26 May 2017 (R v Cranfield [2017] ACTSC 171). The offences and the sentences he received were as follows:
(a)The appellant was convicted on each charge.
(b)Count 1, contravene a protection order: 2 years, 10 months and 6 days commencing on 13 December 2015 and ending on 18 October 2018.
(c)Count 2, sexual intercourse without consent: 7 years, 7 months and 5 days commencing on 14 September 2017 and ending on 18 April 2025.
(d)Count 3, sexual intercourse without consent: 7 years, 7 months and 6 days commencing on 13 March 2018 and ending on 18 October 2025.
(e)Count 4, sexual intercourse without consent: 7 years, 7 months and 5 days commencing on 2 July 2022 and ending on 6 February 2030.
(f)Count 5, sexual intercourse without consent: 7 years, 7 months and 6 days commencing on 1 January 2023 and ending on 6 August 2030.
(g)Count 6, recklessly inflict grievous bodily harm: 3 years, 9 months and 17 days commencing on 2 July 2022 and ending on 18 April 2026.
(h)Count 7, sexual assault in the third degree: 1 year, 10 months and 24 days commencing on 26 May 2017 and ending on 18 April 2019.
(i)Count 8, making a threat to kill: 1 year, 10 months and 24 days commencing on 14 March 2029 and ending on 6 February 2031.
(j)Possessing a drug of dependence (CC 2016/1916): convicted and fined $400. (This charge had been transferred from the Magistrates Court).
A Notice of Appeal was filed on 13 June 2017. There are four stated grounds of appeal, but it is apparent that the appellant also complains about the overall severity of the sentences. The appellant was legally represented at the sentencing hearing. He now represents himself. He also remains in custody. This has meant that he was not able to prepare his appeal in the manner stipulated by the rules.
Nevertheless, as a result of orders made by Murrell CJ on 1 February 2018, the appellant was permitted to pursue his appeal without the need for written submissions. He was also permitted to pursue his application to adduce further evidence orally.
During the hearing, the appellant sought to rely on further evidence from two sources. Firstly, he wished to tender some medical records regarding his mental health. Secondly, he wished for Dr Farrar, a psychiatrist, to give oral evidence. Both applications were rejected for the reasons given by Murrell CJ in the course of the hearing. It is noted that a report authored by Dr Farrar was tendered during the sentencing hearing.
The four grounds of appeal stated in the Notice of Appeal are:
(a)His Honour erred in dismissing the evidence of mental health issues;
(b)His Honour erred in dismissing the evidence of rehabilitation and counselling;
(c)His Honour erred in dismissing the evidence of rehabilitation in relation to illicit drug use; and
(d)His Honour erred in only providing a 5% sentencing discount for a guilty plea.
At the commencement of his submissions, the appellant provided a written summary of the matters he wished to put before the Court (MFI 2). The document has been prepared well and covers a number of matters which might be seen as going beyond the grounds of appeal. The appellant said he had been assisted in its preparation.
The appellant was specifically asked whether he wished to expand his grounds of appeal in accordance with the contents of this MFI 2. He said he did not. Accordingly, the Court has not taken into account those parts of MFI 2 which do not sit under the chapeau of the Notice of Appeal.
The Sentence
The total period of imprisonment imposed by Mossop J was 15 years, 1 month and 25 days. A non-parole period of 9 years and 6 months was set. Consequently, the appellant will be eligible for release on parole from 12 June 2025. The non-parole period is 63% of the head sentence.
The facts behind the offences were comprehensively set out by his Honour and are also contained in the Statement of Facts tendered by the Crown. The following is a brief summary.
On 14 July 2015, the appellant attended the victim’s residence. He had previously been behaving in a bizarre fashion at a gymnasium. He was anxious for his relationship with the victim to be reinstated. A request to this effect was rejected, as was a request for sex.
The appellant then took hold of the victim and over the next two or three hours subjected her to an unremitting barrage of sexual degradation, humiliation, unwarranted sexual intercourse, assaults and threats. The counts in the indictment reflect ‘rolled up’ charges. There were many more individual offences committed than there were counts. The original indictment contained 18 counts.
His Honour accurately summed up the appellant’s behaviour in this way, at [4]:
The circumstances of this case are quite confronting. They represent what, in layman’s terms could be described as a woman’s worst nightmare — a methylamphetamine-affected former partner attending her house in breach of a protection order, confining her and raping and assaulting her over a number of hours in circumstances where she justifiably feared for her life.
The victim was injured both physically and mentally. She read a Victim Impact Statement detailing the continuing effects of the assaults, some of which were still affecting her at the date of sentencing and likely to continue to affect her for many years into the future. His Honour observed, at [75]:
Because of the gravity and depravity of the conduct I have set the events out in some detail as any simple summary formulation of the conduct of the offender would fail to fully express its awfulness or adequately bring home the likely impact of that conduct upon the victim.
The Victim Impact Statement concluded with this paragraph:
I take medication to sleep, to relax and to stay relatively sane. I live as a corpse with no visible future to aim for. What I experienced was like looking into the eyes of Satan himself. I am not a religious person but I know that I have seen the very depths of hell. And daily I am left with the battle scars physically, emotionally and mentally from the hands of this man.
His Honour listed a number of aggravating features that had been involved, at [76]:
(a)The course of conduct involved a sustained violent and sexually degrading series of assaults upon the victim.
(b)They were undertaken with force and over at a substantial period.
(c)The offender exploited his superior physical capacity to physically and mentally harm the victim.
(d)The sexual acts themselves were performed in a degrading manner.
(e)Each of the acts of sexual intercourse was unprotected and the offender ejaculated carrying with it the risk of disease and pregnancy.
(f)The threats and abuse made to the victim were such that they would be taken seriously.
(g)The offences occurred when the victim was home alone, minding her own business and entitled to feel safe. The offender obtained access to her home only because of the previous relationship with the victim.
(h)The nature of the conduct is such that is likely to have a significant impact upon the victim for the whole of her life.
(i)The offences were committed when the offender was subject to a suspended sentence of imprisonment and a good behaviour order as a result of orders made by the Supreme Court on 1 August 2013.
Each sentence of imprisonment was reduced by 5% to reflect the “utilitarian value” of the pleas of guilty.
Ground 1: Mental Health Issues
MFI 2 states:
It is my contention that the sentencing judge erred in that he failed to take into account the evidence relating to my mental health relating firstly to my diagnosis with Attention Deficit Hyperactivity Disorder (ADHD), then my severe injuries including head injuries, my subsequent history of hallucinations and other delusions, a number of identified disorders, my pain medication addiction and the resultant descent into drug abuse. There was medical evidence in the form of an expert assessment by Dr Anna V. Farrar and other reports held, but the significance of which was not appreciated and given appropriate emphasis at the hearing.
The report of Dr Farrar does describe the many aspects of the appellant’s mental health history. In addition, it gives details of his drug taking, his use of and need for medication, his past psychiatric history (including diagnoses of Post-Traumatic Stress Disorder (‘PTSD’), Attention Deficit Hyperactivity Disorder (‘ADHD’) and a Borderline Personality Disorder). In addition, the report deals with physical injuries, including the gunshot injury on 12 March 2015, which not only had physical effects but also generated the PTSD and the use of antidepressant medication. The appellant’s family and social history is described. His remorse is dealt with, noting that the appellant could not remember the events but acknowledged his wrongdoing and said that “he wanted to spare the victim the pain of a trial”.
There was also a report from another psychiatrist, Dr Knox. This doctor had seen the appellant before the subject events. He was mostly concerned with the effects of a motor vehicle accident on the appellant. The report had obviously been prepared in support of litigation seeking damages arising from the accident. The doctor diagnosed a PTSD together with an aggravation of a pre-existing ADHD.
His Honour dealt with the evidence of mental health issues under the heading of “Personal Circumstances”, commencing at [83] of his reasons. His Honour first listed the various sources of information concerning the appellant’s mental health condition (and other matters). His Honour records the various diagnoses and the history of the commencement of the respective disorders. He discusses the opinion of Dr Farrar at [100].
When discussing sentencing, his Honour refers to the appellant’s mental health problems, but in doing so specifically notes that “[n]either party submitted that intoxication with methylamphetamine could be a mitigating factor in this case”. His Honour then continued, at [109]:
…However it is certainly a factor that explains the context of the crime. The evidence in the report of Dr Farrar permits a conclusion that the effects of methylamphetamine were to increase his alertness, sexual drive aggression and disinhibition at the time of the offences. It also impaired his judgment and decision-making skills…
In the view of this Court, and in the absence of submissions to the contrary, his Honour was correct in not regarding the mental health issues as providing a lawful excuse for the appellant’s conduct. His Honour did, however, acknowledge that these issues were an integral part of the appellant’s history and, together with his drug use, provided a degree of explanation for the appellant’s conduct.
It cannot, therefore, be said that the appellant’s mental health issues were dismissed.
Grounds 2 and 3: Rehabilitation
MFI 2 deals with the two grounds concerning rehabilitation together. That approach will be adopted here. The appellant’s submission begins in this way:
With clear implications for the sentence to be given, Dr Farrar assessed me as having (on page 17):
“good rehabilitation prospects, having consideration for his risk of violence according to Historical Clinical Risk Management 20 Version 3(HCR-20v3), which included his history, progress, treatment response and presentation at assessment”
A little later in MFI 2, the appellant states:
I believe that my time in custody has seen very significant, documented and sustained improvement on all of these indicators, such that I am substance abuse free and well on the way to dealing with the other identified areas of concern.
His Honour specifically dealt with the appellant’s endeavours in custody. He said at [111]:
I accept that the offender has taken steps whilst in custody to rehabilitate and educate himself. Having regard in particular to his Borderline Personality Disorder and Antisocial Personality Disorder whether or not he is able in the long-term to get himself into a position where he can lead a law-abiding life is not clear. The report of Dr Farrar indicates significant risk factors for reoffending as well as some positive prognostic indicators. It is not possible to say at this stage what his prospects of rehabilitation are. That will only be able to be better assessed when his conduct in detention is assessed over a longer period. Further, it will really only be tested when he returns to the community and is confronted with the challenges of living and socialising in the community. Thus the steps that he has taken so far whilst in detention can only be considered as tentative steps indicating a positive attitude rather than clear indicators of the prospects of long-term rehabilitation.
It is evident that his Honour has far from dismissed the evidence of the appellant’s attempted rehabilitation but has instead examined it and given it full effect. It is also significant to observe that Dr Farrar’s optimistic assessment of rehabilitation was not shared without qualification in the Pre-Sentence Report (Exhibit C). The report states:
Mr Cranfield has many criminogenic risks, including illicit substance abuse, mental health issues, uncertainty around future accommodation, family violence and sexual offending, unemployment and financial issues. Should he commit to addressing these issues, his risk of further offending may reduce. It is positive that he has continued to develop insight into the need to address his behaviour and he appears to be taking advantage of the programs and services offered to him whilst on remand.
Grounds 2 and 3 have not been established.
Ground 4: Discount for the Plea of Guilty
The Court considers that this ground has merit. As noted above, a discount of 5% was applied by his Honour to each of the prison sentences. Commencing at [103], his Honour set out a brief history of the matter’s progress towards trial. He noted that, a week before the trial, on 16 November 2006, following negotiations, the appellant pleaded guilty to eight counts in an amended indictment.
There is no evidence before the Court concerning the course of the negotiations nor is there any evidence to substantiate the appellant’s statement during the hearing that he had always been prepared to plead guilty. The Court can only proceed on the basis of there being a plea of guilty one week prior to the hearing.
In arriving at the 5% his Honour said this, at [105]:
There is clearly utilitarian value in his plea due to it sparing the victim the necessity to relive the events during a trial. However having regard to the physical and forensic evidence corroborating the evidence of the victim, the Crown case was an extremely strong one. Because of the lateness of the plea of guilty and the strength of the Crown case I consider that only a modest discount of 5% upon the custodial sentences than would otherwise have been imposed is appropriate.
Two issues arise. Did the sentencing judge conflate or confuse the issue of utilitarian value with the way in which the appellant should be given credit for sparing the victim the need to relive the events during a trial? If so, how should these matters have been reflected in the discount for the pleas of guilty?
In R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 (‘Borkowski’), Howie J, in the New South Wales Court of Criminal Appeal, made these observations about the discount for utilitarian value at [32]:
It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application and are subject to the scheme set out in Criminal Case Conferencing Trial Act 2008 and regulations made under that Act:
1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].
2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].
3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.
4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.
5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the “Ellis discount”; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.
6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291
7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.
8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.
9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.
10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129
11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.
12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.
The last of these principles is derived from the present judgment and is included for completeness.
It is immediately apparent that there is a conflict between the third principle stated by Howie J and the approach taken by his Honour. This does not, however, bespeak error on his Honour’s part. There are different legislative considerations that apply as between the Australian Capital Territory and New South Wales. The sentencing legislation in New South Wales does not have an equivalent of s 35 the Crimes (Sentencing) Act 2005 (ACT). This section states:
S 35 Reduction of sentence – guilty plea
(1)This section applies if –
(a) an offender pleads guilty to an offence; and
(b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment.
(2)In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:
(a) the fact that the offender pleaded guilty;
(b) when the offender pleaded guilty, or indicated an intention to plead guilty;
(c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
(d) the seriousness of the offence;
(e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.
Note For who may make a victim impact statement, see s 49.
(3)The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.
(4)However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
(5)For subsection (2)(b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
(6)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(7)In this section:
available documents, in relation to the offence, means any of the following:
(a) any written statements or admissions made for use as evidence at a trial that would have been admissible as evidence at the trial for the offence;
(b) depositions taken at any committal proceeding for the offence;
(c) any written statements or admissions used as evidence in any committal proceeding for the offence;
(d) any other relevant written documents.
defence means –
(a) the offender; or
(b) any lawyer representing the offender.
established facts means facts established by –
(a) evidence given at the trial; or
(b) available documents; or
(c) admissions by the offender; or
(d) submissions made by the prosecution or defence.
Section 35 poses significant difficulties in interpretation, as discussed in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103. However, it is reasonably clear that the relevant consideration concerning victims (s35(2)(e)) addresses “the effect of the offence” on the victims of the offence, not the effect of the trial on the immediate victim of the offence. The sentencing judge confused the issues of utilitarian value (which is largely concerned with the timing of the plea and related benefit to the justice system) and sparing the victim (a consideration that is primarily relevant to an assessment of the offender’s remorse).
The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47]:
The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in Borkowski.
This Court is of the view that the 5% discount applied in the present case should be increased to 10% to reflect the utilitarian value of the pleas. Although the pleas were entered late, they nevertheless had significant utilitarian value.
Having decided that the discount should have been 10%, the next question that arises is the appropriate manner to implement the discount. Had there been only one offence, the mathematical process would have been simple. However, because of the appropriate applications by his Honour of periods of concurrency and accumulation the task becomes more difficult.
The intent of the Court is that the current head sentence should be reduced by 5%. However, if the individual sentences were reduced by a further 5% and the same formula of concurrency and accumulation was applied, the result would be a head sentence that had been shortened by a very short period, in the order of about a month.
In order to achieve what the Court considers to be a just result, namely an appropriate reflection of an original discount of 10% for the pleas of guilty, it is necessary to also adjust the periods of concurrency and accumulation. The Court has endeavoured to maintain the general pattern used by his Honour but to shorten periods of accumulation to achieve the final result, namely a head sentence of 14 years.
Roughly consistent with his Honour’s approach, the Court will set a non-parole period of 9 years.
Manifest Excess
Although not a specific ground of appeal, it is clear that it is part of the intent of the Notice of Appeal to assert that the overall sentence is manifestly excessive. No argument was put to suggest that any of the individual sentences should be interfered with.
Other than to the extent affected by the increase in the discount for the pleas of guilty, the Court does not consider that the head sentence was manifestly excessive.
The principles relating to whether or not a sentence is manifestly excessive are well-known and often repeated. The following three recent cases re-emphasise the approach to be taken on this issue.
In CX v The Queen [2017] ACTCA 37 (‘CX’) the Court made the following observations at [25]:
A claim of manifest excess or manifest inadequacy calls into question what is a quintessentially discretionary decision, preservation of which is of vital importance to the administration of criminal justice: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. Whether a sentence is “manifestly excessive” must be considered in the context of the legislated maximum penalty that applies to the “worst possible case” and provides a “yardstick” for assessing the appropriate penalty in a particular case; the objective seriousness of the particular offence and the subjective circumstances of the offender are also critical to deciding whether a sentence lies within the available range: Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [20]–[23]. See also Dalton v The Queen [2015] ACTCA 48 at [18].
A number of authorities were summarised, again by this Court, in Samani v The Queen [2017] ACTCA 23 at [15] – [16]:
In Zdravokovic v The Queen [2016] ACTCA 53, the ACT Court of Appeal, at paragraphs [51] and [52], made the following remarks about identifying manifestly excessive sentences:
A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
In R v AB [2017] NSWCCA 88, the New South Wales Court of Criminal Appeal, at paragraphs [57] and [58], described the principles in this way:
The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].
In Barrett v The Queen [2016] ACTCA 38, the Court made these practical observations at [32] – [34]:
When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen (2005) 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including ss 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT)) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.
Applying the principles set out above and in particular taking into account the objective seriousness of the offences and the appellant’s subjective circumstances, it cannot be said that the head sentence is manifestly excessive. Any suggestion to the contrary is immediately met with the reduction that has flowed from the increase to the discount for the pleas of guilty.
Final Orders
The Court will therefore set aside the orders made by his Honour on 26 May 2017, other than the sentence for possession of a drug of dependence.
The following orders are made:
(a)The appeal is allowed.
(b)The orders made by Mossop J on 26 May 2017, other than in relation to the offence of possessing a drug of dependence (CC 2016/1916), are set aside.
(c)The appellant is re-sentenced as follows:
(i)In respect of Count 1, contravene protection order, the appellant is sentenced to 2 years, 8 months and 12 days commencing on 13 December 2015 and ending on 24 August 2018 (reduced by 10% from 3 years).
(ii)In respect of Count 2, sexual intercourse without consent, the appellant is sentenced to 7 years, 2 months and 12 days commencing on 28 August 2016 and ending on 8 November 2023 (reduced by 10% from 8 years).
(iii)In respect of Count 3, sexual intercourse without consent, the appellant is sentenced to 7 years, 2 months and 12 days commencing on 24 February 2017 and ending on 5 May 2024 (reduced by 10% from 8 years).
(iv)In respect of Count 4, sexual intercourse without consent, the appellant is sentenced to 7 years, 2 months and 12 days commencing on 15 June 2021 and ending on 26 August 2028 (reduced by 10% from 8 years).
(v)In respect of Count 5, sexual intercourse without consent, the appellant is sentenced to 7 years, 2 months and 12 days commencing on 15 December 2021 and ending on 26 February 2029 (reduced by 10% from 8 years).
(vi)In respect of Count 6, recklessly inflict grievous bodily harm, the appellant is sentenced to 3 years, 7 months and 5 days commencing on 15 June 2021 and ending on 19 January 2025 (reduced by 10% from 4 years).
(vii)In respect of Count 7, sexual assault in the third degree, the appellant is sentenced to 1 year, 9 months and 16 days commencing on 9 May 2016 and ending on 24 February 2018 (reduced by 10% from 2 years).
(viii)In respect of Count 8, making a threat to kill, the appellant is sentenced to 1 year, 9 months and 16 days commencing on 27 February 2028 and ending on 12 December 2029 (reduced by 10% from 2 years).
(ix)The overall sentence is 14 years commencing on 13 December 2015 and ending on 12 December 2029.
(x)The non-parole period is 9 years commencing on 13 December 2015 and ending on 13 December 2024.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Elkaim and Justice Wigney. Associate: Date: 21 February 2018 |
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