Director of Public Prosecutions (NSW) v Burton

[2020] NSWCCA 54

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54

Hearing dates:

20 March 2020

Date of orders:

31 March 2020

Decision date:

31 March 2020

Before:

Basten JA at [1];
Rothman J at [47];
Cavanagh J at [64]

Decision:

Dismiss the appeal

Catchwords:

CRIME – sentencing – mitigating factors – sexual intercourse without consent – community correction order imposed – offender’s self-induced intoxication taken into account in mitigation – error conceded – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)

 

CRIME – sentencing – aggravating factors –whether offender in a position of trust or authority in relation to the victim – victim was niece of offender and heavily intoxicated – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)

  CRIME – sentence appeal – appeal against inadequacy by Director of Public Prosecutions – error conceded – whether custodial sentence required –– discretion not to re-sentence

Legislation Cited:

Constitution, ss 75(iv), 73, 80
Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8, 21A
Crimes Act 1900 (NSW), ss 61HE, 61I
Criminal Appeal Act 1912 (NSW), s 5D
Judiciary Act 1903 (Cth), s 79

Cases Cited:

CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
Cowling v R [2015] NSWCCA 213
MAH v R; R v MAH [2006] NSWCCA 226
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Peiris v R [2014] NSWCCA 58; 240 A Crim R 114
R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
R v Mooney (unrep, CCA Vic) 21 June 1978
Rizeq v State of Western Australia (2017) 262 CLR 1; [2017] HCA 23
Suleman v R [2009] NSWCCA 70

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (Appellant)
Malcolm James Burton (Respondent)

Representation:

Counsel:
T Smith SC / M Kumar (Appellant)
A Karim (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Appellant)
Navado Lawyers (Respondent)

File Number(s):

2018/313547

Publication restriction:

Non-publication order in relation to complainant and anything that would identify the complainant.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

31 October 2019

Before:

Huggett DCJ

File Number(s):

2018/313547

Judgment

1. BASTEN JA: On 31 October 2019, Malcolm James Burton was convicted and sentenced in the District Court for a single offence of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offence had occurred in the early hours of 14 October 2018, following the wedding of the offender’s son, which had been attended by the victim, who was the offender’s niece. The offender was arrested at the hotel in which the family were staying, and provided a full statement to police, admitting the offending, when interviewed the following morning. He entered a plea of guilty in the Local Court at the earliest opportunity.

2. After giving detailed consideration, in a clear and comprehensive judgment, to the issues relevant to the sentencing exercise, the sentencing judge, Huggett DCJ, imposed a community correction order for a period of 3 years, pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act).

3. The present appeal, brought by the Director of Public Prosecutions (NSW) pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW), challenges the adequacy of the sentence.

4. The sentencing judge recognised that the imposition of a non-custodial sentence was extraordinary and required justification of “exceptional circumstances”. [1] That factor alone would not warrant the intervention of this Court on an appeal by the Director. However, the Director alleges, and the respondent concedes, that the judge made a significant error. The error was to take into account, in diminution of the moral culpability of the offender, the fact of his self-induced intoxication at the time the offence was committed. Section 21A(5AA) of the Sentencing Procedure Act states that self-induced intoxication is “not to be taken into account as a mitigating factor.”

   1.    Sentencing judgment, pp 19-20.

5. The Director contended that there was a further error, namely the failure to take into account (as an aggravating factor) that the offence involved an abuse of a position of trust held by the offender with respect to the victim. That circumstance arose from the fact that the offender (61 years of age at the time of the offence) was the uncle of the victim (then barely 18 years of age). The respondent disputed the claim that the judge had not taken that factor into account.

6. On one view, the second error, if established, is of limited weight once it is accepted that another material error was committed. The power of this Court to intervene and resentence the offender is engaged by any material error. On the other hand, resentencing is in the discretion of the Court and a further error may be material to the exercise of that discretion.

7. For the reasons set out below, in my view this is not a case in which the Court should exercise its powers under s 5D to vary the sentence.

Jurisdiction

8. While there is no doubt that the Court has jurisdiction to hear and determine the appeal, it should be noted that the Court is exercising federal jurisdiction. That is because the matter arises between a State (New South Wales) and a resident of another State, the offender being resident in Western Australia. The matter therefore constitutes part of the diversity jurisdiction, pursuant to s 75(iv) of the Commonwealth Constitution.

9. It is nevertheless true, as senior counsel for the Director submitted, the offending and sentencing were to be determined under State, not federal, law. That follows from the reasoning of the High Court in Rizeq v State of Western Australia. [2] The facts in this case were the reverse of those in Rizeq, where the offender was resident in New South Wales and the prosecutor was the State of Western Australia.

   2. (2017) 262 CLR 1; [2017] HCA 23 at [38].

10. The fact that the Court (and the trial judge) are (and were) exercising federal jurisdiction is of no immediate consequence; however, the fact that Mr Burton is a resident of Western Australia is relevant, for reasons discussed below in considering the exercise of the discretionary power.

Non-publication order

11. As the sentencing judge noted, there was, in that Court, a non-publication order in relation to the name of the complainant and any matter which might identify the complainant. It is conventional to make such an order in relation to the victim of sexual assault, even where the victim is an adult, to prevent prejudice to the proper administration of justice and to avoid causing undue distress or embarrassment to the victim. [3] To the extent possible, it is both appropriate and necessary that the courts avoid aggravating the harm done to the victim of a crime and avoid publicity of a kind which may discourage other victims from reporting offences. The suppression of the victim’s name does little to impair the public interest in open justice.

    3. Court Suppression and Non-publication Orders Act 2010 (NSW), s 8(1)(a) and (c).

12. The outline of the circumstances of the offending set out below will avoid, to the extent possible, recording circumstances which might tend to reveal the identity of the complainant.

Circumstances of offending

13. The offending took place in the early hours of a morning in October 2018 following the wedding of the offender’s son at a venue in north-eastern Sydney. The offender and his wife (the victim’s aunt) and the victim’s parents had booked rooms for the night at a hotel near the wedding venue.

14. The wedding commenced at about 4.40pm and took about an hour. The reception ended at around 11pm. Some of the guests, including the victim and her uncle and aunt, then went to a bar adjoining the hotel. Her mother later joined the group, at least in part to persuade the victim to leave and come to bed. The victim refused and her uncle and aunt told her she should stay and spend the night in their hotel room. The judge continued the account in the following terms:

“[The victim] did not leave but continued to mingle with the group in the bar she had been chatting to and with wedding guests. She was also dancing and drinking.

On occasion in the bar the offender bought [her] a drink and at some point [her] mother told the offender not to buy her more alcohol. The offender said ‘It’s okay I’ll watch her.’

…

Shortly before [the victim] and the others left the bar, which was at approximately 2.14am [her] mother saw the offender rub [her] buttocks and said to him ‘Get your hand off her ass.’ The offender removed his hand but did not say anything.

At approximately 2.14am [the victim] walked out of the bar supported by the offender and [her aunt], her mother was walking just in front of them and said to [the victim], ‘You are sleeping in my room, that’s the end of it.’”

15. The victim then entered the hotel lobby, clearly heavily intoxicated, and supported by her uncle, who was also intoxicated, and her aunt. Her mother left to speak to some guests outside the hotel. For about three minutes the three stayed in the foyer, with the victim clearly unsteady on her feet and swaying from side to side; at one point she nearly fell over backwards. At 2:18am, the offender walked the victim from the foyer towards the lifts to the rooms, while her aunt went to locate her mother. Within a minute or two, the aunt and mother returned to the hotel foyer and walked towards the lifts.

16. In the meantime, the offender and the victim had reached the hotel room and the offender had placed her on the bed. The judge’s account continued:

“[The victim] recalls being on the bed in a hotel room with her knees bent and spread shoulder width apart and her feet flat on the bed. Her dress was up over her knees. The lights were on and she could see the offender positioned at the edge of the bed between her legs. ... She immediately felt that something was wrong and believed the offender had just ‘gone down’ on her. She quickly got off the bed and ran to the door. …

[The victim] ran from the room crying and calling for her mother who had just hopped out of the lift with [the aunt]. She ran towards her mother saying ‘Mummy, mummy he tried to go down on me, he tried to go down on me, he pulled my legs apart, why would he do that, he’s my uncle.’”

17. The police were called and the offender was arrested.

18. The next morning he participated in an interview with police and made “immediate admissions”. He stated that he “kissed the lips of [the victim’s] vagina for approximately 15 seconds and thought she may have been consenting. He described the incident in the hotel room … as ‘45 seconds of madness’. He admitted what he did was stupid, wrong and repeatedly described his conduct as a ‘bad error of judgment’.”

19. At the sentencing hearing, the prosecutor submitted that the offence was the culmination of a planned and predatory attack. It was submitted that the offender had demonstrated a sexual interest in his niece and ‘navigated’ her to his hotel room in order to assault her, believing he would be alone.

20. The judge rejected this submission. There was no doubt that the offender’s conduct in the bar had been open to more than one interpretation; nevertheless the judge was satisfied that the offender took her to his room “because he had access to that room and because he was genuinely concerned for her wellbeing and she clearly needed to lie down.” [4] The judge further noted:

“Both [her mother and her aunt] were in the immediate area and were concerned about [her] wellbeing because of the alcohol she had consumed and both or either women [sic] could well have come to that room – as indeed they were in the process of doing.”

4.    Sentencing judgment, p 9.

21. Although the sentencing judge was affirmatively satisfied that the offender acted as he did out of genuine concern for her wellbeing, that finding went further than was necessary. It would have been sufficient to reject an allegation that there was planned and predatory attack on the basis, which was entirely open, that such an inference had not been established beyond reasonable doubt. As the judge had correctly directed herself in the opening paragraphs of her judgment, the finding of such aggravating factors must be proved beyond reasonable doubt. [5]

    5.    Sentencing judgment, p 2.

22. Thus, on the basis of the proven circumstances, the judge summarised the offending in the following terms: [6]

“The act of sexual intercourse committed by this offender was an act of cunnilingus, more specifically kissing the lips of his niece’s vagina for between approximately 10 to 15 seconds.

The conduct was of very short duration and appropriately described as being momentary and I am satisfied that in kissing [her] vagina, the offender used his lips and mouth rather than his tongue.

I am satisfied the offence was impulsive, spontaneous and opportunistic. I am further satisfied the offender did not take his niece to his hotel room intending to sexually or indecently assault her but rather the intention he formed to commit cunnilingus upon his niece was formed there and then and at the very time he committed that act.”

6.    Sentencing judgment, p 8.

Errors in sentencing

23. Having set out the factual circumstances, the sentencing judge turned to identify the offender’s state of mind with respect to lack of consent. She concluded that she was “satisfied beyond reasonable doubt that the offender was reckless in that he realised the possibility she was not consenting but went ahead regardless.” [7] In addressing that issue, the judge was careful to disregard the offender’s self-induced intoxication, as required by s 61HE(4)(b) of the Crimes Act 1900 (NSW). The judge concluded that the offence fell “toward the lower end of seriousness for an offence of its type.” [8] There was no challenge to that finding.

    7.    Sentencing judgment, p 11.

    8.    Sentencing judgment, p 11.

24. The judge then considered the personal circumstances of the offender, in the course of which she addressed a submission by the prosecutor that “there was a wickedness in the way the offender exploited [the victim] and that the nature of the relationship between [them] makes his moral culpability high.” The judge rejected that submission, as she was entitled to do; it was not suggested otherwise on appeal. However, she continued with the following passage, which gave rise to the conceded error: [9]

“The evidence reveals that the offender was very intoxicated when he committed the current offence. While his intoxication in no way excuses the serious offence he committed upon his niece, I have no doubt at all that it acted to lower his inhibitions and clouded his judgment and thinking, and explains why a man in his 60s who was otherwise a good man who had never behaved in a sexually inappropriate way to any other person made the grave error of judgment he did. In my view, this factor reduces his moral culpability to a not insignificant extent.”

9.    Sentencing judgment, p 14.

25. This statement, and particularly the last sentence, was said to contain error.

26. Section 21A of the Sentencing Procedure Act sets out aggravating, mitigating and other factors to be taken into account in sentencing. There was no doubt that there were a number of mitigating factors which the judge was entitled to take into account, including the fact that the offender had no previous convictions, was a person of good character, was unlikely to reoffend, had good prospects of rehabilitation and had shown significant remorse. However, s 21A also includes the following provisions:

21A   Aggravating, mitigating and other factors in sentencing

...

(5AA)   Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(5B)   Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

27. These provisions have been in effect since January 2014 and it is most unlikely that the judge did not have them in mind. Indeed, the second sentence of the passage set out above noting that “his intoxication in no way excuses the serious offence” suggests that she may have done. Indeed, s 21A(5AA) was expressly referred to by counsel for the offender in written submissions on sentence and in the course of oral submissions. [10] If, as counsel had submitted, the judge was entitled to have regard to the offender’s state of intoxication to explain what was otherwise inexplicable conduct, that may have been permissible; however, there was a fine line between that and accepting the explanation as an excuse, in the sense of a mitigating factor. It must be accepted that the judge overstepped that line. Further, it is clear that the finding was material to the outcome. The judge expressly addressed the terms of s 5(1) of the Sentencing Procedure Act, which require that a court “must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.” In that respect, the judge stated: [11]

“In my view there are compelling and exceptional circumstances present in this sentencing exercise warranting a finding that the s 5 threshold has not been met. These factors include the offender’s clouded judgment at the time of the offence and the effect that had upon his moral culpabilities, the findings I made regarding objective gravity, the findings I made regarding the offence being an aberration on an otherwise good life. While I recognise that powerful subjective circumstances cannot lead to the imposition of an inadequate sentence, I am firmly of the view that a term of imprisonment is not required in this case and would in fact be detrimental for this offender’s ongoing rehabilitation and therefore counterproductive.”

10.    Tcpt, 24/10/19, p 37(18).

11.    Sentencing judgment, p 19.

28. Although it was one of several factors, it is clear that the “clouded judgment”, which was the consequence of self-induced intoxication, was relied upon as having reduced his moral culpability. It therefore constituted a material error, which was capable of affecting the determination that a non-custodial sentence should be imposed.

Abuse of trust

29. The second ground relied upon by the Director was that the judge erred in not finding that an aggravating factor under s 21A(2)(k) of the Sentencing Procedure Act had been established. That provision identifies the aggravating factor as being that “the offender abused a position of trust or authority in relation to the victim”. That factor is treated as separate from the vulnerability of the victim, referred to in s 21A(2)(l). There is no doubt that the judge accepted that the victim was “vulnerable” due to her state of intoxication. Thus the judge stated: [12]

“Quite clearly she was vulnerable and she was entitled to feel safe, given she was with her uncle [whom] she trusted and who had assured her mother he would ‘watch her’. … When he gave that assurance to his sister I am satisfied that it was well intended and was aimed at ensuring [the victim’s] safety in her intoxicated state.”

12.    Sentencing judgment, p 10.

30. Section 21A(2)(k) refers to the offender abusing “a position of trust … in relation to the victim”. The term is used by way of alternative to a position of “authority”. As the cases indicate, it should be understood as referring to an established relationship, rather than simply a situation in which the victim asserts trust in the offender, or a social arrangement involving a close knit group. [13] As Howie J had explained in Suleman v R [14] the aggravating factor “is not made out simply because the victim trusted the offender for some reason or other.”

    13. MAH v R; R v MAH [2006] NSWCCA 226 at [69].

    14. [2009] NSWCCA 70 at [22].

30. The judge was taken to this authority in the course of submissions. Accordingly, the fact that the passage relied upon referred to the victim trusting her uncle implies no finding was made as to the aggravating circumstance. Further, the judge was fully aware that a finding as to an aggravating circumstance required satisfaction beyond reasonable doubt and significantly, did not adopt the language of the statute namely abuse of “a position of trust”. A position of trust is not a precise term, but may be understood as covering relationships involving an obligation of care and protection, as compared with relationships involving authority over another. Thus, parents, child minders, health workers and other similar relationships may constitute positions of trust. [15] Accordingly, the Director’s submission that the sentencing judge did not find the aggravating factor made out should be accepted. However, it would take reasonably clear circumstances to allow this Court to conclude that the judge was in error in failing to be satisfied beyond reasonable doubt as to the elements of the aggravating factor. No doubt a position of trust could arise between an uncle and niece, but that might depend upon the circumstances attending a particular relationship, rather than the simple fact of it. Little is known in that regard. As counsel for the offender submitted to the sentencing judge, all that was known was that he resided in Western Australia and she in Sydney. There was no evidence as to the extent of the relationship. Indeed, the “letter of apology” tendered on behalf of the offender stated that he had been a project manager of a company in Perth for the last 20 years and was therefore resident in Perth well before the victim was born.

    15. See also Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 at [52]-[57] (Leeming JA, Button J and R S Hulme AJ agreeing); Cowling v R [2015] NSWCCA 213 at [10]-[12] (Leeming JA, Hamill and Fagan JJ agreeing).

31. In these circumstances, and despite the fact that counsel for the offender took the forensic step of submitting that the judge had made a finding in relation to that aggravating factor, I would be satisfied that she did not make the finding and that no error has been demonstrated in that regard. It follows that, for the purposes of resentencing (and for the purposes of considering the exercise of discretion to resentence) that aggravating factor should be disregarded.

Manifestly inadequate sentence

33. Although the Director alleged as a third ground that the sentence was manifestly inadequate, it is not necessary to consider that ground in circumstances where a specific material error has been identified. On the other hand, the potential inadequacy of the sentence is, of course, a factor to be addressed both in resentencing and considering whether to resentence.

Discretion to intervene

34. As noted in CMB v Attorney General for the State of New South Wales,[16] to speak of a “residual discretion” in the court is accurate only in the sense that the discretion is engaged once the Director (or the Attorney General) has established error on the part of the sentencing judge. The Court approved the principles stated by Heydon JA in R v Hernando [17] that the second hurdle for the Director to surmount is “to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.” [18] The Director’s submissions in this respect rested on three propositions.

    16. (2015) 256 CLR 346; [2015] HCA 9.

    17. (2002) 136 A Crim R 451; [2002] NSWCCA 489 at [12].

    18.    CMB at [33] (French CJ and Gageler J) and [54], [66] (Kiefel, Bell and Keane JJ).

35. First, reliance was placed upon the fact that the sentencing process “was marked by clear error”. [19] However, that by itself was only sufficient to engage the first limb of the Director’s statutory task. The error itself did not demonstrate the need for this Court to intervene to establish any matter of general principle. There was a breach of a statutory provision, the terms of which are not in doubt. If there are cases in which its application may give rise to the need for guidance, this was not one and it does not provide a suitable vehicle for discussing any potential issue.

    19.    Written submissions, par 80.

36. Secondly, the Director identified the error as leading to the imposition of “an unreasonable or plainly unjust sentence”. That was said to be because the sentence imposed was inadequate to demonstrate the need for “strong denunciation of sexual abuse offences and the need for general deterrence.”

37. One must be careful to avoid circularity in considering such matters: they tend to assume the result for which they contend. This was not a case in which the prosecution accepted in submissions to the sentencing judge that anything less than full custodial imprisonment would be appropriate. As noted in CMB, “[a] prosecution concession that a non-custodial sentence is an available disposition is a powerful consideration weighing against intervening to impose a sentence of imprisonment on appeal.” [20] However, when considering intervention on appeal, it is also relevant to ask whether it might be open to impose a non-custodial sentence for such offending. Counsel for the Director did not dismiss that possibility. It may be said, as the sentencing judge expressly recognised, that the sentence was exceptionally lenient, but it was also merciful. The personal circumstances of the offender, which were fully explored in the sentencing judgment, warranted a significant degree of leniency, based in part on compassion.

    20.    CMB at [64] (footnote omitted).

38. Denunciation and general deterrence are usually important elements in sentencing for an offence of sexual intercourse without consent. Nevertheless, particular circumstances may provide better vehicles in which such objectives hold sway than others. Questions of general deterrence and denunciation derive from the objective seriousness of the offence. As explained in Muldrock v The Queen:[21]

“Under common law sentencing practice, factors that do not affect the assessment of the relative seriousness of the offence may nonetheless be relevant to the determination of an appropriate sentence.”

21. (2011) 244 CLR 120; [2011] HCA 39 at [19].

39. In Muldrock, approval was given to statements in the Victorian Court of Criminal Appeal that “[g]eneral deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others” and that “[a] sentence imposed with deterrence in view will not be acceptable if its attributed effect on the offender is felt to be inappropriate to his situation and to the needs of the community.” [22]

    22.    Muldrock at [53] quoting R v Mooney (unrep, CCA Vic) 21 June 1978 at 5 (Young CJ) and 8 (Lush J).

40. Thirdly, senior counsel submitted: [23]

“The Crown submits in this particular instance that it’s an opportunity for the Court to provide guidance on the issue of when the s 5 threshold would be crossed in respect of s 61I offences, particularly in circumstances your Honours where there’s been an amendment in late 2018 which means that once that s 5 threshold is crossed the only alternative sentencing option is full-time imprisonment. Prior to September 2018 there used to exist an alternative to full-time imprisonment, so an alternative custodial option and that was in the form of a suspended sentence. That is no longer the case.”

23.    CCA Tcpt, 20/03/20, p 12(40).

41. The changes in 2018 to which senior counsel referred were not of major significance for present purposes. One purpose of the reforms, which commenced on 24 September 2018, [24] was to vary the availability of intensive correction orders. However, neither intensive correction orders, nor home detention orders (a form of custodial sentence which was abolished), were available with respect to prescribed sexual offences, including s 61I. More relevantly, the 2018 reforms replaced two forms of non-custodial orders (community service orders, good behaviour bonds) with community correction orders. In addition, the power to suspend a sentence of imprisonment was removed. It is not apparent that these latter reforms require this Court to revisit the guidance available with respect to sentencing for offences under s 61I.

    24.    See Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), Sch 1.

42. There is a further consideration. Accepting that if this were not a case where fulltime imprisonment was the necessary punishment, and the only plausible non-custodial alternative was a community correction order, it is of some importance to identify what conditions may be imposed on such an order.

43. The standard conditions (not to commit any offence and to appear before the court if called on to do so), found in s 88(2) of the Sentencing Procedure Act, provide no real constraint on the liberty of the offender. Additional conditions may be imposed under s 89; the available conditions are set out in s 89(2). These include a curfew (par (a)), a requirement to perform community service work (par (b)), and a requirement to submit to supervision, by a community corrections officer (par (g)). The most likely of these to be imposed in the present case, and one providing a serious intrusion on the liberty of the individual, was the last. However, the Court “must not impose a supervision condition … in respect of an offender who resides … in another State or Territory unless the State or Territory is declared by the regulations to be an approved jurisdiction”: s 89(4A). Note 3 to Pt 3 of the Crimes (Sentencing Procedure) Regulation 2017 (NSW) asserts that “[n]o States or Territories are currently declared by the regulations to be approved jurisdictions for the purposes of section ... 89 … of the Act.” As a result, a supervision condition could not have been imposed on this offender, who was resident in Western Australia.

44. Although on its face this result may appear beneficial to an inter-state offender, it is possible that such an offender may be less likely to be the subject of a community correction order, and more likely to be imprisoned, than a resident of New South Wales. Such differential treatment invites attention to the terms of s 117 of the Commonwealth Constitution, providing that a resident of one State “shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were … resident in such other State.” This potential concern cannot be addressed further because it was not foreseen by the parties prior to the hearing of the appeal. However, it provides a further factor militating against the Court intervening in the present case.

45. It was appropriate for the trial judge to have regard to the psychological effects of the offending conduct, and the shame and destruction of his family life which followed, as factors warranting some amelioration of the usual sentencing practice with respect to such offences. It was open to the Court not to impose a sentence of custodial imprisonment which would otherwise be justified by the objective circumstances of the offending. Although the judge approached the sentencing exercise on a legally erroneous basis, for the reasons noted above this is not a case in which the Court should intervene to resentence.

46. Accordingly, the appeal by the Director against the sentence imposed by the District Court should be dismissed.

47. ROTHMAN J: On 20 March 2020, the Court heard an appeal by the DPP in this matter. I join in the orders proposed by Basten JA.

48. I do so, because I am not satisfied that the Court should exercise its residual discretion to intervene. I consider that the residual discretion should only be exercised rarely.

49. I have had the benefit of reading, in draft, the Reasons for Judgment of Basten JA, with which I agree. There are some matters on which I wish to comment.

50. Basten JA refers to the judgment in Rizeq v State of Western Australia. [25] As his Honour points out the circumstance with which the High Court dealt in Rizeq was whether s 80 of the Constitution applied to a matter of federal jurisdiction under s 75(iv) of the Constitution, in which the accused was charged under State law. The Court there held it did not.

    25. (2017) 262 CLR 1; [2017] HCA 23.

51. The issue before the Court in these proceedings is also a federal matter under s 75(iv) of the Constitution, which, unlike its US counterpart, creates a unified Australian common law and an integrated national court system. That effect is one of the purposes of s 73(ii) of the Constitution.

52. Fundamentally, the judgment in Rizeq turned on the conclusion that the offence with which the accused was charged was a State offence; not a Commonwealth offence. In other words, s 79 of the Judiciary Act 1903 (Cth) did not operate so as to render the State offence, where charged against a resident of a different State, a Commonwealth offence to which s 80 of the Constitution applied.

53. Apart from the factual reversal in these proceedings, being NSW law applying to a WA resident, there has been no issue raised that this is a Commonwealth offence. Rather, the Court has been told that the NSW Court, exercising Federal jurisdiction, is incapable of enforcing certain of its orders, being orders as to supervision and the like on a resident in another State.

54. In the absence of full submissions from the parties on this issue, the Court should neither accept nor reject such a proposition. The Sentencing Court, because of the interstate residence of the Respondent, did not impose any such conditions. Such conditions, if ordered and implemented, would have affected the leniency of the Sentence.

55. Since the hearing of the appeal, the DPP has filed a note on the issue raised by the Court. As stated, the issue of the capacity of the sentencing court to impose additional conditions on the respondent under the Community Corrections Order does not arise. The judge did not impose any such conditions. Further, neither party complains about his failure to do so.

56. The issue that the note from the DPP does not seek to discuss is whether the capacity to impose such a condition is procedural and, therefore, “picked up” by s 79 of the Judiciary Act and, if it were, whether as a Commonwealth law (or even if it continued as a State law) could it prohibit a judge, exercising federal jurisdiction, from certain conduct, based solely on the residence of an offender in one or other different State.

57. Further again, and even more complex, is the question of whether an officer of a State, or more accurately the State, can refuse to perform a function required of the State by an order of a court exercising federal jurisdiction. As earlier stated, none of these issues arise because the sentencing judge did not purport to make any such order and neither party challenges that aspect.

58. On another issue, the submissions by both the appellant and respondent did not deal adequately with the meaning of a position of trust and whether one, who is not ordinarily in a position of trust, can, without a delegation from an appropriate person, undertake voluntarily a responsibility which places that person in such a position. I have in mind the following hypothetical.

59. Co-workers, who are away from home for work, go for a drink after work. One of the co-workers becomes extremely drunk. Another takes responsibility to ensure the person is safely taken to his or her room. Perhaps, even taking responsibility from another worker, who had initially volunteered.

60. If, on taking the worker to his or her room, a sexual assault occurs, I see no reason to assume the assailant was not in a position of trust, having undertaken that responsibility and been “delegated it” by the other co-workers. Previous judgments to the contrary need some consideration. No party has sought to have the principles in those judgments re-assessed.

61. As to the leniency, I consider that the Sentence imposed is lenient. Whether or not the Respondent was in a position of trust, the Sentence is lenient. But it is not, given the subjective circumstances pertaining to the Respondent, outside the pattern of sentences that has hitherto applied. If this were an appropriate vehicle, I would comment on the leniency of that pattern of sentences.

62. It is not an appropriate vehicle for such a discussion. Moreover, even if it were, and I were minded to increase the severity of the sentences that should, ordinarily, be imposed, I would not impose that new pattern on the current Respondent. I agree, as a practice, with the implied admonition in the dissenting judgment of Bell J in Munda v The State of Western Australia [26] that any newly determined pattern or guideline should not readily be imposed on a respondent in the appeal that sets it.

    26. (2013) 249 CLR 600; [2013] HCA 38.

63. With those foregoing reservations or comments, I agree with Basten JA and for all of those reasons join in the orders proposed.

64. CAVANGAH J: I have had the benefit of considering the draft judgments of both Basten JA and Rothman J. I agree with the orders proposed by their Honours.

65. I would only add that I too do not consider that this is a case in which the Court should exercise its residual discretion to intervene. I also adopt the observations of their Honours in respect of the leniency of the sentence. However, in view of the sentencing regime and, in particular, the personal circumstances of the respondent the sentence was open to the sentencing judge.

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Endnotes

Decision last updated: 31 March 2020