Director of Public Prosecutions v M
[2005] TASSC 14
•23 March 2005
[2005] TASSC 14
CITATION: DPP v M [2005] TASSC 14
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
M
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 77/2004
DELIVERED ON: 23 March 2005
DELIVERED AT: Hobart
HEARING DATE: 1 November 2004
JUDGMENT OF: Slicer, Evans and Blow JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Totality – Maintaining sexual relationship with a person under the age of 17 years – Victim impact statement – Whether four years' imprisonment manifestly inadequate.
R v JCW [2000] NSWCCA 209, considered.
R v D (1997) 69 SASR 413; R v SBL [1998] VSCA 144, followed.
Siganto v R (1998) 194 CLR 565; R v De Simoni (1981) 147 CLR 383, referred to.
Sentencing Act 1997 (Tas), s81A.
Aust Dig Criminal Law [838]
REPRESENTATION:
Counsel:
Appellant: T J Ellis SC
Respondent: R Mainwaring
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Legal Aid Commission
Judgment Number: [2005] TASSC 14
Number of paragraphs: 41
Serial No 14/2005
File No CCA 77/2004
DIRECTOR OF PUBLIC PROSECUTIONS v M
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
EVANS J
BLOW J
23 March 2005
Order of the Court
The sentence of four years' imprisonment is quashed and in lieu a sentence of six years' imprisonment to commence on 12 August 2004, with a non-parole period of four years, is ordered.
Serial No 14/2005
File No CCA 77/2004
DIRECTOR OF PUBLIC PROSECUTIONS v M
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
23 March 2005
The Director of Public Prosecutions appeals against a sentence of imprisonment of four years, with a three year non-parole period, upon the conviction for the crime of maintaining a sexual relationship with a person under the age of 17 years, contrary to the Criminal Code, s125A. Central to the appeal is the approach which ought be taken to a crime proscribed by Parliament as a reform of the law of sexual misconduct involving young persons and a means of remedying historic evidentiary and substantive difficulties in obtaining criminal convictions for the form of misconduct. The appeal also involves consideration of the use to which a victim impact statement might be used by a sentencing court following plea. Although this sentencing hearing occurred before the amendment to the Sentencing Act 1997, by the addition of s81A (25 of 2002, applied 29 December 2004), some of the applicable issues remain.
Indictment and plea
The indictment alleged that the respondent:
"… at [G] and [B] in Tasmania between the 1st day of January, 1984 and the 26th day of October, 1988 maintained a sexual relationship with [I], a person under the age of 17 years."
The Code, s125A, relevantly provides:
"(1) In this section, 'unlawful sexual act' means an act that constitutes an offence under section 124, 126, 127, 127A, 133 or 185 whether committed before, on or after the commencement of this section.
(2) A person who maintains a sexual relationship with a young person who is under the age of 17 years, and to whom he or she is not married, is guilty of a crime.
Charge:
Maintaining a sexual relationship with a young person under the age of 17 years.
(3) An accused person is guilty of having committed an offence under subsection (2) if, during a particular period when the young person was under the age of 17 years ¾
(a)the accused committed an unlawful sexual act in relation to the young person on at least 3 occasions; and
(b)the young person was not married to the accused.
(4) For the purposes of subsection (3) ¾
(a)it is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed; and
(b)the unlawful sexual act that was committed on any one of the occasions need not have been the same as the unlawful sexual act that was committed on each or any of the other occasions.
(5) …
(6) An indictment charging a person with having committed an offence under subsection (2) ¾
(a)is to specify the particular period during which it is alleged that the sexual relationship between the accused and the young person was maintained; and
(b)is not to contain a separate charge that the accused committed an unlawful sexual act in relation to the young person during that period.
(7) A prosecution for an offence under this section is not to be commenced without the written authority of the Director of Public Prosecutions."
The provision affords a potent power to the prosecution (Emery v R [1999] TASSC 141) and ought be employed with care, a matter recognised by Parliament in its enactment of subs(7). The plea of the respondent represented acknowledgement that he had committed at least three of the acts defined by subs(1). Doubtless, given the time frame specified in the indictment, the respondent was admitting a course of conduct which represented more than three acts. It is irrelevant to the determination of this appeal whether or not there had been some agreement between counsel as to the basis of the plea, since the assertions made by counsel for the prosecution, absent challenge by the respondent, governed the sentencing hearing. (See generally GAS and SJK v R (2004) 78 ALJR 786 at 793 – 795.) The statement of facts as presented by counsel was that:
"… during the period of the indictment, the complainant was aged 12 through to 16 and the accused was aged 32 through to 27 [sic] years.
The accused was married to the complainant's mother and was the complainant's stepfather. In January 1984 the complainant's mother started a job at a dry cleaner's, which meant she was not at home as much as she had previously been. During this period, the accused would walk around the house naked and quite often the complainant would wake up during the night to find the accused sitting on her bed naked.
In 1984 the complainant would come home from school and the accused would be laying on his bed. He would call her into the bedroom and ask her to lay on the bed with him and tell him about her day at school. After a while, the accused started putting the complainant's hand on his penis, he would remove his penis from his trousers and his penis would be erect. During this time he started kissing her and telling her it was their little secret and that no one would believe her if she told anyone.
Then, in about March or April of 1984 the accused started placing his finger in the complainant's vagina for the first time and he also showed the complainant how to masturbate his penis. This then occurred on many occasions during the relevant period. It would happen most days after school and the complainant hated it and would stare at the wardrobe and pretend that it wasn't happening – this was happening in the bedroom.
The complaint's younger sister would be either outside playing, or have been sent to the shop and the sexual contact started to develop and the accused started to put his penis in the complainant's mouth and he would ejaculate in her mouth. The sexual contact then progressed to the accused licking the complainant's vagina – the first time this happened was one night in April 1984 when the complainant's mother wasn't home.
After this incident, the oral sexual intercourse and the accused licking her vagina would occur very regularly and to the complainant, it seemed like it happened very [sic] day.
In October 1984 the complainant turned 13 and was wetting the bed most nights. She didn't disclose what was happening and felt very afraid and confused. A particular incident that she recalls is one when she was fourteen and the complainant was in the accused's bedroom and put his penis in her mouth until he ejaculated.
Other incidents also occurred on [B], as the family had a shack. On [B] the accused would take the complainant fishing and on occasions would put his penis in her mouth, lick her vagina, and put his finger or fingers in her vagina. These incidents would occur in the car.
The sexual assaults continued up until Christmas 1988 when the complainant told the accused, if he ever touched her again she would kill him. And there were no further incidents after this. However, the indictment is for a period shorter than that, as the complainant turned seventeen in October 1988.
In September 2002 the complainant made a statement to police, and the accused was interviewed on the 31st of March 2003, after the matter had been investigated. The accused denied having any form of sexual relationship with the complainant."
The record of convictions tendered were of little import, except to confirm a further statement by counsel that alcohol was a part of the respondent's life during the period encompassed by the indictment. Counsel for the prosecution then tendered a medical report pertaining to the complainant and a victim impact statement correctly described by counsel as "a fairly powerful document, given the impact that she has described". Counsel for the respondent did not challenge the assertions of fact in his plea in mitigation. He did however refer to an authority of this Court in Her Majesty's Attorney-General v C [2001] TASSC 107 in support of a submission of consistency or parity. In answer to that submission, counsel for the prosecution replied in the following terms:
"… that that case is quite different to the one that's before you now, because when you look at the nature of the sexual relationship that C was sentenced for, one of the girls was aged between six and ten and it was – the case was put before the Judge on the basis that there were fifteen separate occasions of indecent assault, which were putting the fingers in the vagina, and there was one occasion of rubbing his penis all over her face. And then the other girl, it was six occasions of an indecent assault, which involved rubbing her vagina.
Now the sexual assaults that your Honour is sentencing [Mr M] for are numerous, they're occurring extremely regularly over a five year period, which involved licking her vagina, putting his fingers in her vagina, and putting his penis in her mouth, and ejaculating each time he put his penis in her mouth. And in my submission, the fact that there isn't any vaginal sexual intercourse, and it's confined to oral sexual intercourse, carries very little weight, because your Honour will note from the victim impact statement of [Mrs I], she says, one of the things that sticks in her mind is him straddling her face, coming in her mouth, and how every time he could touch her he would, and she could still smell his breath and see his face, and that's something that stayed with her through all these years. And in my submission, the oral sexual intercourse is just as repugnant to her as if it may have been vaginal sexual intercourse.
… it was, that it was absolutely vile for her, and continues to be a memory that she has in her mind to this day, which she finds quite repulsive. So I really don't think the case of C is particularly helpful to your Honour in considering the sentence. And the other consideration, as your Honour has discussed with Mr Mackie, is that it was an appeal, there were double jeopardy considerations, and the sentence could have been anywhere between three and four years when you look at the views of the Judges."
Sentence
The learned sentencing judge accepted much of what had been put to him, relevantly stating in his comments in passing sentence:
"The victim is your step-daughter. You married her mother and came into her life when she was about nine years old. You were then about thirty years old. She called you 'dad'. Three years later, when she was twelve, you commenced a persistent course of criminal conduct. It lasted until she was sixteen, and only stopped because she said she would kill you if it continued. All this happened about sixteen years ago.
At first there were indecent assaults, when you touched her vagina, and got her to touch your penis. You then got her to masturbate you. This conduct soon became rape when you put your penis in your stepdaughter's mouth while you licked her vagina. By the time your step-daughter was thirteen, oral rapes were a regular occurrence. You ejaculated in her mouth.
In her statement read to the Court, your victim says this criminal conduct was so frequent it seemed as if it was a daily occurrence, and she can vividly recall you straddling her face and ejaculating into her mouth. You bound her in your criminal complicity, and no doubt made her feel guilty, ashamed and isolated, by telling her 'it was our little secret', and that no one would believe her if she told them what you were doing.
It must not be forgotten that the commission of this crime involves the commission of at least three unlawful sexual acts. In your case I'm satisfied that you committed the crimes of rape and indecent assault on very many occasions, and you must be sentenced for that. Your wicked conduct has robbed a child of her childhood, and deprived her the joys and pleasures in life that it was your duty as a step-father to provide. That loss continues today, and will continue into the future.
…
The word sexual abuse is frequently used to describe this crime, but I think that is often an euphemism that masks the gravity of the criminal conduct. The reality of this crime in your case is repeated multiple rapes and indecent assaults over a long period during the critical development years in the life of a young female who was in your care for the purpose of being nurtured, supported and taught proper values in a secure and loving environment. In breach of all that your criminal conduct destroyed the emotional life of this female."
The learned sentencing judge recognised the nature of the crime and its frequency of occurrence. However he was obliged to sentence on the basis of the plea to the crime proscribed by the Code, s125A.
Basis of appeal
The Director of Public Prosecutions claims error on the grounds that:
"1 The learned Judge erred in law in that he constrained his sentencing discretion by incorrectly applying a tariff principle, or alternatively by mistaking the 'tariff' for one too low.
2 The learned Judge erred in law by imposing a sentence that was less than the sentence required had individual crimes been charged.
3 The learned Judge erred in law in reducing the sentence he would have otherwise imposed by a mistaken consideration of consistency, whereas on a proper consideration of consistency no such reduction was required.
4 The learned Judge erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case."
Tariff principle
The word "tariff" is referred to by the learned Director both in his grounds of appeal and his written submission. At no time did the learned sentencing judge refer to the term or purport to have regard to the concept. He referred to the principle of consistency, which is a different matter (Lowe v R (1984) 154 CLR 606; Griffiths v R (1977) 137 CLR 293) and specifically did not equate the circumstances of the case with those which were the subject of Attorney-General v C (supra). There is no tariff applicable to a crime of this nature, especially given the variables of its components, any more than in relation to the crime of rape (Bowdon v R 46/1968; R v Woore 30/1997; R v S (No 2) [1991] Tas R 273). Sentences imposed in relation to this crime vary enormously as a reflection of the particular ingredients and the wide range of misconduct proscribed by Parliament. The ground ought be rejected.
Equivalence with components of crime charged
The submission of the appellant is that the sentence ought to have reflected the sum of the components, especially rape, discounted only by reason of the principle of totality. On his calculations presented at the hearing, a term of imprisonment longer than the life expectancy of the respondent or someone much younger, ought establish the commencing point. Accepting that in Australia, as in the United Kingdom, there has been a change of policy by the Executive in relation to sentencing appeals (see The Rise and Rise of Crown Appeals in Victoria, Crim LJ (2004) No 6, December 2004, Edney, 351), the method suggested by the learned Director is wrong in principle and unhelpful in practice. Sentence is governed by the nature of the crime charged (R v De Simoni (1981) 147 CLR 383) and the plea or verdict. The respondent was not charged with 100 or 200 separate acts of rape. The definition of rape has been altered by Parliament so that it now encompasses a wide range of human sexual misconduct. Comparison with sentences imposed on historic laws has become well nigh impossible, except in the most obvious of cases. Here Parliament enacted, for good reason, a special crime to deal with historic anomalies in recognition of the problems associated with memory, events long ago and inability to specify an occurrence. The reform was utilitarian and sought to provide balance between the interests of a victim and the community at large and the capacity of a person charged to identify and meet the allegations made. It does not operate as a vehicle to circumvent other procedural or limitation laws (R v J [2004] UKHL 42, reported [2005] 1 All ER 1). There is a utilitarian purpose in providing for youthful, timorous or reluctant witnesses, especially in cases of multiple child sexual assault matters when:
"In such circumstances a plea to some only of the charges might be preferable to proceeding on all with the possibility of an entire acquittal. In such cases there should be careful consideration of which charges are pleaded to. If the offences occurred over a considerable period it would usually be preferable to select representative charges that indicated the span of that period. It might also be appropriate in such a matter to include in the agreed facts reference to some or all of the other incidents. Multiple offences can also be encountered in corporate crime and fraud. Such trials are often complex and lengthy and a charge agreement could therefore have considerable public benefit." [Negotiating with the Director of Public Prosecutions, Especially Under the Samuels Report, Cowdery QC, Criminal Law Seminar, 15 March 2003. Review of the New South Wales Director of Public Prosecutions' Policy and Guidelines for Charge Bargaining and Tendering of Agreed Facts]
In some jurisdictions in Australia and the United Kingdom, the method of specimen counts has been employed. That the method might produce anomaly has been recognised by the English courts (Jones [2003] 2 Cr App R 8; Figg [2004] Crim LR 386; Cronshaw [2004] Crim LR 1044) but retreat to the historic position not advocated. Rather, Recommendation 25 of the Report of the Home Office (Setting the Boundaries Reforming of law on sex offences, July 2000), proposes that:
"An offence of the persistent sexual abuse of a child reflecting a course of conduct should be introduced."
The learned sentencing judge was conscious of the anomaly when he observed during an exchange with counsel for the respondent:
"I've often wondered about this, you know, Mr Mackie. You get a rape case where the victim and the perpetrator know each other, and say there are one or two rapes, nobody would raise an eyebrow if a sentence of four years was imposed. If there are aggravated circumstances then five years is not uncommon. But somehow, when there are multiple rapes, appear gathered together on this charge, the sentence comes back, doesn't it? I've just never been able to figure out why that should be so."
The Criminal Law Consolidation Act 1935 (SA), s74(7), requires a sentence imposed on a person convicted of persistent child abuse to be assessed in the same manner as representative counts. In R v D (1997) 69 SASR 413, the South Australian Court of Criminal Appeal had cause to consider the effect of that legislative change on a case of multiple sexual assaults on a young girl. In that case:
"… it was the submission of counsel for the Director that all offences that are part of the course of conduct were to be taken into account, and that the relevant maximum punishment is arrived at by accumulating the maximum punishment attributable to each separate offence. On that basis, she argued, the maximum in the present case was a number of years that exceeded the likely life expectancy of the appellant."
In response to that suggested approach, Doyle CJ, with whom Millhouse and Bleby JJ agreed, stated at 419 - 420:
"There is nothing in the terms of s74, apart from subs (7), to suggest that Parliament intended that the courts should change the approach that they have taken when sentencing in respect of a course of conduct. The terms of subs (7), and the reference to life imprisonment in particular, are explicable on the basis that some of the sexual offences with which s74 deals attract life imprisonment.
One would not expect a provision, which appears to be directed at what might be called procedural problems, to be intended to require a new approach to sentencing. If the Director's submission is accepted, it would seem to follow that a person charged with three separate offences, and sentenced on the basis that they were part of a course of conduct involving similar behaviour, might well receive a lesser penalty than a person charged with persistent sexual abuse in respect of the same course of conduct. Of course, in subs (7) Parliament has referred to '... a term of imprisonment proportionate to the seriousness of the offender's conduct ...'. But, in the context of s74, I incline to the view that that is a reference to the seriousness of the conduct as it would be assessed by the court if so-called representative counts were laid in accordance with established practice, rather than to a new and different concept of seriousness."
As to general principle Doyle CJ, stated at 420:
"In my opinion, the approach to be taken under s74, in a case like the present one, is this. The court should identify the different offences involved and the maximum punishment that they attract. In the present case the offences are unlawful sexual intercourse with a child above the age of twelve years, that attracts a maximum punishment of 7 years' imprisonment, and indecent assault on a child above the age of twelve years, that attracts a maximum punishment of 8 years' imprisonment. It is not necessary to identify the number of offences committed with any precision, although if that can be done readily, there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision, would simply reintroduce the very problem at which s74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences, as distinct from under s74, and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct.
In this way, the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima."
The approach to "representative counts" was considered by the Victorian Court of Appeal in R v SBL [1998] VSCA 144. Having reviewed the procedures and approaches taken in other jurisdictions, Ormiston JA stated, at par63:
"Where counts charging sexual offences have been charged, the same principles apply so that frequently on a plea hearing specific counts are said to be representative. Such a practice is both practical and beneficial, especially to an accused. Of the decisions relating to representative counts for these offences, there is only one in which comment was made as to the method of sentencing and the factors to be taken into account. In Leinkauf at 9, Vincent, AJA on behalf of the Court consisting of Hayne, JA, himself and Coldrey, AJA said (at p8-9):
'The present case presents a complication in this context in that the plea of guilty was entered to a limited number of a representative counts after an initial denial of responsibility. By reason of that circumstance the applicant has already been substantially advantaged. Although he has admitted the commission of a large number of offences, the sentencing judge could only impose sentences in respect of the offences contained in the presentment and which were appropriate for those offences. He was not entitled to increase the severity of the sentences imposed by reference to the commission of other admitted criminal acts and could only have regard to those acts for very limited purposes when imposing sentence upon the applicant. However, it would be legitimate for a sentencing judge to take into account the substantial practical benefit already received by an offender through such an arrangement when considering the extent of that to be derived by the entering of a plea of guilty to other acts.'
What precisely occurred on the hearing of the plea in that case is not clear. It seems unlikely that he had pleaded guilty at the committal stage to all the charges then made, but it is not clear in what way and to what extent the accused acknowledged at the sentencing hearing that the counts were representative for the purposes of his plea. However, the description of the facts represented by each count was apparently not objected to, so that it was clear that the counts for the plea hearing had been described as representative where appropriate. Though no discussion of authority appears in the judgment, it would seem that it was held that the extent to which account may be taken of the representative nature of each count is very limited, seemingly more limited than would be allowed in other jurisdictions. Moreover it seems inconsistent with Wright, a case of many years' standing, which permits the accumulation of the sums admittedly obtained for the purpose of determining what is an appropriate sentence on each count."
That limited recourse is a consequence of the particular legislation, but does not run counter to the general principle that it is the totality of a course of conduct considered as a crime charged which governs the appropriate sentence.
New South Wales now has legislation similar to the Code, s125A. Previously it employed the method of "representative counts" which restricted the use of other matters to the negation of claimed mitigatory matters and the placing of conduct in context. The enactment of the amendment to the Crimes Act 1900 (NSW), s66EA, permitted the bringing of a general charge. In relation to the effect of the amendment, Sully J, with whom Barr J and Newman AJ agreed, said in R v Fitzgerald (2004) 59 NSWLR 493 at 501:
"1 In a case of the present kind the Crown must make a practical decision. Either it will prosecute upon the basis that the particular complainant can be expected to give evidence which, if accepted, demonstrates the occurrence of some offence(s) of child sexual abuse, the relevant particulars of which are sufficiently precise to avoid the S v The Queen problem; or it will prosecute upon the basis that it cannot expect reasonably to make out so precisely drawn a case, but can expect reasonably to produce evidence which, if accepted, will establish beyond reasonable doubt a generalised pattern of abuse on at least three occasions such as will fall within the ambit of the new statutory offence created by section 66EA.
2 I can see no reason why the terms of section 66EA would prevent the Crown's charging such an offender as the present respondent with seven individual counts, should it happen that there is, in the judgment of the Crown Prosecutor who presents the indictment, prospective reliable evidence sufficient to establish those seven charges with the precision required by S v The Queen; but charging additionally, and in the alternative, a section 66EA offence. This proposition contemplates, of course, what is legally permissible, rather than what is forensically viable. The latter point needs no present particular examination.
3 If the Crown elects to prosecute only for a section 66EA offence and secures a conviction; or if the Crown elects to charge a section 66EA offence as an alternative charge, and secures a conviction on that alternative charge; then what has been established is not a miscellany of substantive offences contravening such statutory provisions as sections 61J, 61M and 61N of the Crimes Act. What has been established is, rather, one offence contravening section 66EA.
4 When that position has been reached, and when the particular offender stands for sentence accordingly, the ultimate question for the sentencing Judge is where a sentence that is just according to proper sentencing principles should stand on a statutory scale, the highest point of which is a sentence of imprisonment for 25 years.
5 It does not seem to me to be logical to answer that question by considering what sentence(s) might or might not, or could or could not, or should or should not, have been passed had the offender been convicted of precisely particularised contraventions of such sections as section 61J, 61M or 61N, those contraventions having been charged as isolated offences.
6 Is it any more logical to consider what might have been the sentencing outcome had the offender been convicted of such precisely particularised contraventions, those conventions having been charged and proved as representative offences rather than as isolated offences?"
Having analysed and approved of the reasoning employed in R v D (supra), Sully J concluded, at 503:
"I respectfully agree with this reasoning and with the sentencing approach which it approves. In my opinion, there is nothing in the New South Wales section 66EA, just as there is nothing in the South Australian section 74, to suggest that Parliament intended that the sentencing for a course of conduct which has crystallised into a section 66EA conviction, should be more harsh in outcome than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences."
Although there are differences in legislation applying to different jurisdictions (see R v D [1996] 1 Qd R 363, R v H [1980] 3 A Crim R 53 (NSW); Langridge v R (1996) 17 WAR 346) there has been no approach taken in terms as suggested by the appellant.
Ground 2 is not sustained.
Victim impact statement
The victim impact statement was powerful, articulate and compelling in conveying the effect of the criminal conduct on the complainant. It was properly used by the learned sentencing judge. Although the hearing pre-dated the legislative amendment, its reception was permitted by virtue of s81, although here it had not been requested by the Court. During the course of this hearing, the learned Director claimed that its contents could be used as providing particulars of the crimes committed. If that assertion was intended to mean that further occurrences or an additional type of crime specified in addition to those stated by the prosecution in its presentation of the facts, then the contention ought be rejected. A crime such as the one here considered lacking specificity, is one which must be carefully considered and not used as a procedural tactic. In Siganto v R (1998) 194 CLR 565, Gleeson CJ, Gummow, Hayne and Callinan JJ stated in their joint judgment at par22:
"A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence."
The Sentencing Act, s81A, relevantly provides:
"81A ¾ Court may receive victim impact statement
(1) In this section ¾
…
'indictable offence' means –
(a) an offence that is punishable on indictment even though in some instances it may be dealt with summarily; or
(b) any other offence that is prescribed for the purposes of this section;
'victim', in respect of an offence, means –
(a) a person who has suffered injury, loss or damage as a direct consequence of the offence; and
(b) a member of the immediate family of a deceased victim of the offence.
(2) If a court finds a person guilty of an indictable offence, a victim of that offence may furnish to the court a written statement that –
(a) gives particulars of any injury, loss or damage suffered by the victim as a direct consequence of the offence; and
(b) describes the effects on the victim of the commission of the offence.
(3) ...
(4) If the court finds a person guilty of an offence, the court must, if the victim has so requested on furnishing a statement under subsection (2), allow the victim to read the statement to the court.
(5) If no such request is made, the court must cause the statement furnished by the victim to be read to the court.
(6) …
(7) This section does not derogate from section 81 and subsections (2) and (4) of that section apply to a statement furnished under this section."
Section 81(2) and (4) provides for notice to be given to the offender (subject to discretionary withholding of information provided by a medical practitioner) and the procedure to be followed if the material be challenged.
Problems associated with the appropriate use of victim impact statements have been identified (Wilson, 3 December 2004; The Effect of the Provision of Victim Impact Statements on Sentencing in the Local Courts of New South Wales, Baptie (2004) 7 TJR). Here the plea was to the crime stated in the indictment and the circumstances and particulars as provided by Crown counsel. The accused might challenge the statement, in part or whole, which might require a "disputed facts" hearing. But the disputation is with the state, not the victim. The victim impact statement ought not be used as a vehicle to aver further crimes or types of crimes alleged.
Consistency
The course of conduct as stated by the prosecution was prolonged and involved acts of degrading penetration and ejaculation into the mouth. A particular incident occurring when the complainant was aged 14 was referred to in the statement of facts. The nature of the sexual misconduct and its duration places the appropriate sentence at the higher end of the range. I do not regard the approach taken by the learned sentencing judge as necessarily being inconsistent. Rather, the Court as a whole is still engaged in a process of analysing and responding to legislation which raises complex, competing and social issues. In some cases courts are responding to events which occurred relatively long ago, either because of a change in policy or changing social attitudes which permit victims to come forward. In some cases courts are dealing with breaches of trust involving apparent acquiescence through love or naivety; in others force and violence. Victims might have similar experiences but differing outcomes. In some cases the victim comes forward as a child whilst in others as an adult or, as one complainant recently said at trial in explaining delay in making complaint, "the man came forward to protect the child of years ago". Appellate cases such as Attorney-General v B [2002] TASSC 63 and Attorney-General v C [2003] TASSC 8 are not contradictory. Nor do they set parameters. The judicial response is evolutionary, not fixed by mathematics. Nevertheless consistency is the desired outcome but it might take some time before there is sufficient data for comparison. To that limited extent I accept the proposition that the learned sentencing judge felt himself to be unduly constrained. I would accept his stated intuitive response of six years' imprisonment, discounted for a plea of guilty as not inappropriate. I would uphold this ground of appeal.
Manifest inadequacy
I have had the advantage of reading in draft form the reasons for judgment of Evans J and accept his analysis of cases recorded in the sentencing database. I accept that there have been sentences imposed for like circumstances which are more severe than here imposed (G 14 February 2000; AJK 15 June 2004; D 14 August 2003; H 28 August 2002; L 14 September 1994; E 6 April 1992; H 30 May 2002, are but examples). But it does not follow, as the appellant contends, that they necessarily demonstrate inadequacy. It may be that harsh sentences imposed for crimes historic will operate as a form of future deterrence, although research and experience suggests such not to be the case. It is more likely that the paramount factor in the imposition of sanction is warranted by retribution. If such be correct, then greater weight ought be given to the circumstances of the harm caused to the victim and the subsequent conduct of the offender than would ordinarily be warranted. Simplistic comparison by reason of the nature of the crime confuses retribution with vengeance, and social engineering with deterrence. Complexity cannot be simply answered by response to abhorrence. (See generally problems raised by the Sexual Offences Act 2003 (UK); Child and Family Offences (2004) Crim LR, Spencer at 347.) It is consistent with sentencing principles that an offender is entitled to be sentenced in accordance with the approach and mores existent at the time of the occurrence of the crime (R v Moon (2000) 117 A Crim R 497; R v MJR (2002) 54 NSWLR 368; (2002) 130 A Crim R 481; R v RS (2003) 142 A Crim R 322). I would not agree that the sentence here imposed necessarily manifests inadequacy. Given my conclusion in relation to ground 3, it is not necessary for the purpose of this appeal to further consider this ground but, if it stood alone, I would be minded to dismiss it, not because I would have imposed a longer term, but as a consequence of the appellate process.
Resentence
I would accept the intuitive response of the learned sentencing judge and impose a term of imprisonment of six years, discounted by reason of plea. Since this matter involves an appeal by the state, I would further discount the substituted sentence and impose a sentence of five years' imprisonment. I am, however, comfortable in joining in the order proposed by my colleague Evans J.
File No CCA 77/2004
DIRECTOR OF PUBLIC PROSECUTIONS v M
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
23 March 2005
The Director of Public Prosecutions appeals against a sentence of four years' imprisonment, with a three year non-parole period, imposed on the respondent upon his plea of guilty to one count of maintaining a sexual relationship with a young person under the age of 17. A ground of appeal is that the sentence was manifestly inadequate.
The offence was committed between 1 January 1984 and 26 October 1988, a period of about four years ten months. During this period, the respondent was aged 32 through to 37 years, and the complainant, his step-daughter, was aged 12 through to 16 years. When the complainant was 12, the respondent began the practice of calling her into his bedroom upon her return from school and requesting her to lie next to him on his bed and tell him about her day. As she did so, the respondent placed her hand on his penis and kissed her. Within about three or four months, the respondent's abuse of her developed to placing his finger in her vagina and showing her how to masturbate his penis. Within a short time of this progression the respondent began licking the complainant's vagina, putting his penis in her mouth, and ejaculating into her mouth. For a period of about four years six months oral sexual intercourse associated with the respondent licking the complainant's vagina occurred very regularly; to the complainant, it seemed like it happened every day. The abuse occurred in the family home, at the family shack, and in the respondent's vehicle. In the course of the sentencing hearing, counsel for the respondent acknowledged that of the unlawful sexual acts that constituted the respondent's crime, the principal act was rape.
To maintain the complainant's silence, the respondent told her that if she made complaint, she would not be believed and she would thereby lose her mother's love. When about 14 years of age, the complainant, in her words, "built up the courage to request him to stop". He did not and his abuse continued until she was 17 years of age, when she told him that if he ever touched her again she would kill him.
The material provided to the Court on the impact of the respondent's criminal conduct on the complainant included information that: her memory of the period of his abuse seems like only yesterday; she relives the experience daily to the point that her whole life seems to pivot around it; she still remembers the respondent straddling her face and ejaculating into mouth and she was unable to cope with this particular form of his abuse by "chilling out"; her feelings of shame and stress during and since the abuse have frequently caused her to contemplate self harm; she has tried to drown herself and cut her wrists; she has sat in a bath full of water holding a hairdryer with a view to electrocuting herself, but could not bring herself to drop it; she has contemplated shooting herself; and, more recently, she has contemplated driving her vehicle in front of an oncoming truck.
The respondent has no prior convictions and a good employment history. When confronted with the complainant's allegations, he denied them. He did not plead guilty until after a committal hearing. Consistent with the Justices Act 1959, s57A(1)(a), the complainant was not examined in the course of the committal hearing. Accordingly, the respondent’s delayed plea of guilty saved the complainant from the trauma of giving evidence. However, the delay meant that for some time she suffered the anxiety of anticipating the need to give evidence. The respondent has undergone a discectomy in his cervical spine which continues to be troublesome and he suffers from a variety of complaints that will make his imprisonment more arduous than it would be if he was in good health. The learned sentencing judge's comments on passing sentence included the following:
"It must not be forgotten that the commission of this crime involves the commission of at least three unlawful sexual acts. In your case I am satisfied that you committed the crimes of rape and indecent assault on very many occasions and you must be sentenced for that. Your wicked conduct has robbed a child of her childhood and deprived her the joys and pleasures in life that it was your duty as her stepfather, to provide. That loss continues today and will continue into the future. Those who heard her victim impact statement read in Court could not help but be saddened by her losses which include several attempts to take her own life, loss of self esteem, depression and impoverished relationships with others. The only encouraging note arises from the fact that she finally found the courage to stand up against you and make this complaint. It is to be hoped that your conviction and your imprisonment will help close an appalling chapter in her life and improve the quality of her future.
…
The word sexual abuse is frequently used to describe this crime, but I think that is often a euphemism that masks the gravity of the criminal conduct. The reality of this crime in your case is repeated multiple rapes and indecent assaults over a long period during the critical developmental years in the life of a young female who was in your care for the purpose of being nurtured, supported, and taught proper values in a secure and loving environment. In breach of all that your criminal conduct destroyed the emotional life of this female.
…
Were I not constrained by the principle of consistency in punishment I would impose a sentence of at least 6 years discounted for the plea of guilty. However, for some reason that perhaps the Court of Criminal Appeal will examine one day, sentences for this crime have attracted lesser penalties than those that have been imposed when the 'unlawful sexual acts' that go to make up the crime are charged separately."
The circumstances of convictions for the crime of maintaining a sexual relationship with a young person under the age of 17 years can vary markedly in relation to a number of factors including: the nature of the unlawful sexual acts involved; the number of those acts; the length of the period of abuse; the presence of a trust relationship; the use of force; the ages of the perpetrator and the victim; the plea; and the perpetrator’s prior convictions. Differences in relation to circumstances such as these make it difficult to compare the sentences imposed for convictions with a view to assessing the sentence that a particular offender should receive on the basis of parity.
There are 66 sentences on the Court's sentencing database in respect of offenders whose primary crime was maintaining a sexual relationship with a young person under the age of 17 years. The longest sentence imposed on an offender is nine years' imprisonment. Ten of the sentences are for six or in excess of six years' imprisonment. Four of the sentences are for five years' imprisonment and one is for five years 6 months' imprisonment.
My review of the circumstances of the convictions that brought about these sentences satisfies me that the principle of consistency referred to by the learned sentencing judge did not require the imposition of a sentence on the respondent of less than six years' imprisonment. His crime involved numerous unlawful sexual acts over a very long period, the gravest sexual act, oral sexual intercourse, occurred over a period of about four years six months. Oral sexual intercourse of the nature of that perpetrated by the respondent is amongst the worst forms of conduct that can constitute the crime. The respondent’s conduct was a most serious breach of trust, he being the complainant's stepfather.
The respondent's conduct warranted a sentence in the upper end of the range of sentences for the crime. In my view the sentence of four years' imprisonment that he received is sufficiently below that range as to be manifestly inadequate.
This being so, it is not necessary for me to deal with the other grounds of appeal. However, I will address some comments to ground 2:
"The learned judge erred in law by imposing a sentence that was less than the sentence required had individual crimes been charged."
This ground appears to flow from the learned sentencing judge's comments to the effect that sentences for the crime of maintaining a sexual relationship have attracted lesser penalties than those that have been imposed when the unlawful sexual acts that go to make up the crime are charged separately. If that observation is correct, that outcome is not by design or a manifestation of any legal principle. A person convicted of three unlawful sexual acts should ordinarily suffer the same penalty whether they are the basis of a charge of maintaining a sexual relationship or are charged separately. However, whilst it is possible to identify every unlawful sexual act that is the subject of a person's conviction for maintaining a sexual relationship where particulars of the same have been provided, in most cases this is not so. Particulars of this nature are rarely provided before a plea of guilty is taken. In result, it is often not possible for the sentencing judge to do more than sentence on the basis of a very general estimate of the number of sexual acts involved in excess of the requisite three. In these circumstances, it is unreal to endeavour to compare the sentence imposed on a charge of maintaining a sexual relationship with the sentence that would have been imposed had the prosecution been able to identify every one of the offender's unlawful sexual acts and obtain separate convictions for the same. Where the number of sexual acts in excess of three is vague, the sentencing exercise is much the same as that which is undertaken where an offender is convicted of a number of crimes involving specific unlawful sexual acts and the evidence warrants the sentencing judge in taking into account, as a surrounding circumstance, the fact that the crimes were committed as part of a sustained course of sexual abuse. It is to be remembered that the purpose of the enactment of this crime was to address the difficulties of providing particulars of each offence in cases of prolonged child sexual abuse. When a charge of this crime is laid, it is not necessary to require the complainant to undergo the harrowing task of describing and separating out each individual incident and it is not necessary to require a jury to adjudicate on more than the requisite three incidents. A perhaps unintended outcome of the enactment of this crime is that, as the Director of Public Prosecutions has suggested, offenders are more inclined to plead guilty to a charge of this crime than to separate charges for each of the unlawful sexual acts that form the basis of a charge for this crime. These desirable outcomes would be put in jeopardy if the Court was to adopt an approach to sentencing for this crime that unduly focused on the precise number of the offender's unlawful sexual acts.
In re-sentencing the respondent, I am mindful of the matters canvassed as to the re-sentencing of an unsuccessful respondent to a prosecution appeal against sentence in Attorney-General (Tas) v McDonald (2002) 11 Tas R 221. I consider that the appropriate sentence is one of six years' imprisonment with a non parole period of four years.
Serial No 14/2005
File No CCA 77/2004
DIRECTOR OF PUBLIC PROSECUTIONS v M
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
23 March 2005
I agree with Evans J that the sentence under review in this appeal was manifestly inadequate, for the reasons stated by him. I also agree with his remarks concerning sentencing for the crime of maintaining a sexual relationship with a young person. I regret that I am unable to agree that the appropriate sentence for this Court to impose is one of six years' imprisonment with a non-parole period of four years.
The appellant's crime involved multiple oral rapes of his step-daughter, commencing when she was 12 years old. If the same offender had committed only one such rape upon the same victim, when she was 12 years old, had been charged with rape, and had pleaded guilty, I think a sentence in the vicinity of five years, probably with the shortest possible non-parole period, would have been appropriate. This was a case that involved frequent oral rapes over several years. In my view, this Court should sentence the appellant to eight years' imprisonment, with effect from 12 August 2004, with a non-parole period of five years six months.
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