Director of Public Prosecutions v Oh Marris
[2023] TASCCA 1
•10 March 2023
[2023] TASCCA 1
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Director of Public Prosecutions v Oh Marris [2023] TASCCA 1 |
| PARTIES: | DIRECTOR OF PUBLIC PROSECUTIONS |
| v | |
| OH MARRIS, Liam Chi Singh | |
| FILE NO: | CCA 3257/2022 |
| DELIVERED ON: | 10 March 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 6 March 2023 |
| JUDGMENT OF: | Pearce J, Brett J, Marshall AJ |
| CATCHWORDS: |
Criminal Law – Particular offences – Sexual offences – Rape and sexual assault – Mens rea, honest and reasonable mistake and recklessness – Honest mistake.
Criminal Code (Tas), s 14A.
SG v Tasmania [2017] TASCCA 12, Director of Public Prosecutions v JSP [2020] TASCCA 3; 282 A Crim R
28 applied.
Aust Dig Criminal Law [2254]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Rape – Home detention order for 18 months – Sentence manifestly inadequate.
Director of Public Prosecutions v JSP [2020] TASCCA 3; 282 A Crim R 28 applied.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: L Pennington Respondent: K Cuthbertson SC
Solicitors:
Appellant: Director of Public Prosecutions Respondent: Dobson Mitchell and Allport
| Judgment Number: | [2023] TASSC 1 |
| Number of paragraphs: | 45 |
Serial No 1/2023
File No CCA 3257/2022
DIRECTOR OF PUBLIC PROSECUTIONS v LIAM CHI SINGH OH MARRIS
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PEARCE J BRETT J MARSHALL AJ 10 March 2023 |
| Orders of the Court: | |
| 1, | Appeal allowed. |
2. | The sentencing orders made by Estcourt J on 17 November 2022 on count 3 on the indictment are set aside. |
| 3. | On that count the respondent is sentenced to imprisonment for 21 months from 10 March 2023. |
| 4. | The respondent is not eligible for parole until having served half of that term. |
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DIRECTOR OF PUBLIC PROSECUTIONS v LIAM CHI SINGH OH MARRIS
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL THE COURT 10 MARCH 2023 |
1 This is a prosecution appeal against sentence. Following a trial conducted before Estcourt J and a jury, the respondent was found guilty of one count of rape and one count of indecent assault. He was acquitted of two other counts of rape. His Honour proceeded to sentence on 17 November 2022. Separate sentences were imposed. For indecent assault the respondent was sentenced to a term of imprisonment of 15 months wholly suspended for three years. For rape the respondent was made subject to a home detention order for an operational period of 18 months and a community correction order with a condition requiring that the respondent perform 240 hours of community service.
2 The notice of appeal challenges the sentence imposed for rape on the ground that it is manifestly inadequate. The sentence imposed for indecent assault is not the subject of the appeal although it is relevant to the assessment of the overall effect of the sentencing orders.
The circumstances of the crime
3 Subject to the verdicts it was for the sentencing judge to determine the factual basis of sentence. His Honour's findings are important in the context of the appeal and the appeal does not involve any challenge to the correctness of the findings. They may be summarised as follows.
4 Both crimes were committed during the evening of 12 April 2020, a couple of weeks after the respondent's 19th birthday. The victim was a female aged 17. We will respectfully refer to her as the complainant because that is how she was referred to by the sentencing judge. She and the respondent had met a few times but were not close friends. She had a boyfriend. However during Easter 2020 the respondent and the complainant spent time together. They visited each other's homes on both Friday 10 April and Saturday 11 April. They used cannabis and magic mushrooms. On Sunday 12 April 2020, the respondent sent the complainant a number of messages on social media asking whether he could visit her home again. Before he arrived he was already intoxicated as a result of the effects of alcohol or illicit drugs, or both, to such an extent that he later told the police he had little memory of the events which then took place. When the respondent arrived at the complainant's unit she was watching a movie on her bed. No-one else was present. They shared a bun containing cannabis which the respondent had brought with him. They also shared some alcohol. His Honour found that the complainant was not intoxicated, "at least to the extent of being unable to give or withhold free consent." Over time they moved around the room. As to what then happened the sentencing judge expressed his findings in these terms:
"The complainant put on another movie and she and the defendant moved back to the bed. The defendant put his arm around the complainant, cuddling her and holding her hand. He told her that he wanted to kiss her and she said she did not want to. He kept asking and trying to kiss her and she was dodging him. He then lifted her shirt and pulled down her bra, kissing and touching her to the breasts. She tried to get him off and away from her. She got up to get changed and as she did, the complainant put his hand onto her bottom and his hand into her pocket, slapping her to the bottom as he did.
They continued to spend time in the room, the defendant kept asking the complainant if he could kiss her. He made sexual comments to her that made it clear that he wanted to have sexual intercourse with her. She told him to stop. Eventually he got on top of
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her and he kissed her. She said the words 'stop' and 'no' a number of times and pulled
his arms away from her.Finally, the accused pulled off his shorts, tried to place the complainant's hand on his penis. He then took the complainant's leggings off and pulled her underwear to one side and he penetrated her vagina with his penis. He continued to have sexual intercourse with her until he ejaculated. He asked if he could ejaculate inside the complainant’s vagina and she did not respond. He wasn't wearing a condom.
The defendant left the bedroom to go to the bathroom and urinated and when he returned the complainant left to go to the bathroom and showered. When she returned she got a spare mattress out and put it on the floor of her room and went to sleep on the floor.
The next morning the complainant would not speak to the defendant until he finally left her unit. When he had left, the complainant first contacted her friend and later her boyfriend, telling them both that she had been raped. "
5 The evidence at trial raised the issues of consent and mistake as to consent. His Honour made some findings relevant to those issues but, to understand what followed from the verdict and the nature and context of the findings, it is first necessary to refer to the law about consent and mistake as to consent in sexual offences.
6 The crime of rape is committed when a person has sexual intercourse with another person without that person's consent: the Code, s 185. The complainant's consent was a defence to indecent assault: s 127, s 124(3). Thus, for both crimes, it was necessary for the prosecution to prove beyond reasonable doubt that the complainant did not consent to the sexual acts. The term "consent" is defined in the Code, s 2A(1), to mean "free agreement." Section 2A(2) further qualifies what amounts to free agreement in these terms:
"S 2(2A) Without limiting the meaning of 'free agreement', and without limiting what may constitute 'free agreement' or 'not free agreement', a person does not freely agree to an act if the person –
(a) does not say or do anything to communicate consent; or
(b) agrees or submits because of force, or a reasonable fear of force, to him or her or to
another person; or
(c) agrees or submits because of a threat of any kind against him or her or against
another person; or
(d) agrees or submits because he or she or another person is unlawfully detained; or
(e) agrees or submits because he or she is overborne by the nature or position of another
person; or
(f) agrees or submits because of the fraud of the accused; or
(g) is reasonably mistaken about the nature or purpose of the act or the identity of the
accused; or
(h) is asleep, unconscious or so affected by alcohol or another drug as to be unable to
form a rational opinion in respect of the matter for which consent is required; or
(i) is unable to understand the nature of the act."
7 The respondent's case at trial included the contention that the complainant did consent to the sexual acts. It followed from the verdicts on the two counts on which the respondent was found guilty that the jury was satisfied beyond reasonable doubt that the complainant did not consent to sexual
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intercourse or the kissing and touching which constituted the indecent assault. On the findings made by his Honour, the complainant not only did not say or do anything to communicate consent, she repeatedly communicated that she did not consent. With one qualification, the circumstances, as found by the sentencing judge, did not leave any room for the assertion that the complainant agreed or submitted to sexual intercourse but that her agreement was not free because the operation of one or more of the factors listed in s 2A(2). The evidence did leave open that the complainant did submit to some sexual touching, not because she consented, but because she had given up telling the respondent to stop.
8 In this State the "defence" of honest and reasonable mistake applies to the issue of consent to sexual intercourse in a charge of rape: R v Snow [1962] Tas SR 271. It also applies to a charge of indecent assault. Thus, where the evidence raises the issue of mistake, the prosecution must prove beyond reasonable doubt that an accused person did not have an honest and reasonable but mistaken belief that sexual intercourse and sexual touching was consented to. As was explained by this Court in Director of Public Prosecutions v JSP [2020] TASCCA 3; 282 A Crim R 28 at [73], a mistake by an accused as to a matter of fact which, if true, would excuse criminal responsibility for the act, may operate as a ground of exculpation by virtue of s 14 of the Criminal Code, or pursuant to the common law: Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; CTM v The Queen [2008] HCA 25, 236 CLR 440 at [8]; Bell v Tasmania [2019] TASCCA 19; Bell v Tasmania [2021] HCA 42. To be exculpatory, a mistake must be both honest and reasonable. Relevant to whether a mistake is honest and reasonable is the Code, s 14A. That section is entitled "Mistake as to consent in certain sexual offences" and provides that in proceedings for certain sexual crimes, including rape and indecent assault:
"14A(1) … a mistaken belief by the accused as to the existence of consent is not honest or reasonable if the accused —
(a) was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or (b) was reckless as to whether or not the complainant consented; or (c) did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act."
9 At trial the respondent's case was also that, even if the complainant did not consent to the sexual acts, he had an honest and reasonable but mistaken belief that she consented. It must follow from the verdicts that the jury was satisfied not only that the complainant did not consent to the sexual intercourse and the sexual touching but that the respondent did not have an honest and reasonable belief that the complainant consented. Subject to those propositions, it was for the sentencing judge to determine the factual basis of sentence.
10 The respondent did not give evidence at trial. His account was given in an interview with the police conducted on 13 April 2020, the day following the crimes. He admitted that he had sexual intercourse with the complainant after other sexual touching but that his memory was very limited by reason of the alcohol and drugs he had consumed with a friend before he arrived at the complainant's home. He told the police that he was "blind drunk." Although the sentencing judge did not expressly say so, his Honour's sentencing remarks proceed on the basis that the respondent did believe, although mistakenly, that the complainant was consenting to sexual intercourse and the sexual touching. However, as was explained in JSP, to be exculpatory a mistake must be both honest and reasonable. It is open for sentencing purposes to find that a mistake is honest but not reasonable. His Honour imposed sentence on the basis that the respondent's mistake was honest but not reasonable. There is no ground of appeal which challenges that finding. Having found that the respondent's mistake was an honest one, the verdict required that the respondent be sentenced on the basis that his mistake was not a reasonable one. His Honour addressed that question by reference to s 14A(1) of the Code. He found, when addressing s 14A(1)(b), that the respondent was not reckless as to whether or not the complainant
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consented. His Honour was satisfied that the respondent "did not appreciate that the complainant may not be consenting", no doubt mindful of the discussion of recklessness in SG v Tasmania [2017] TASCCA 12 and JSP. Independently of the operation of s 14A, recklessness is inconsistent with the existence of honest belief about consent. In light of his Honour's findings about the complainant's protestations indicating the absence of consent, the respondent's admission to the police that there was no discussion of consent, and his statement to the police that the complainant "might not have told him 'no' enough for him to understand because of his intoxication", the respondent was fortunate to have been sentenced on that factual basis, but there is no challenge to the findings.
11 His Honour made no factual finding about the reasonableness or otherwise of the steps taken by the respondent to ascertain the complainant's consent: s 14A(1)(c). His Honour found that the respondent's mistake was not reasonable because it was one "he would not have made had he not been intoxicated": s 14A(1)(a).
The acquittals
12 Both counts of which the respondent was acquitted involved the allegation that the respondent penetrated the complainant's vagina with his finger or fingers. The complainant gave evidence of two occasions on which she said that digital penetration took place. The first occasion she described occurred before the rape. She was on the bed and the respondent was making persistent sexual advances to her. She tried to push him off but he penetrated her vagina with his fingers. She could not remember whether this occurred before or after he took her leggings down or how long the penetration lasted. The second occasion took place, she said, sometime after the rape. She had showered and moved herself to a mattress on the floor. Her evidence was that the respondent continued to make sexual advances including by lying next to her and putting his finger into her vagina.
13 We have considered whether, if at all, the fact of the acquittals sheds light on the culpability of the respondent and the objective gravity of the crimes of which he was found guilty. The acquittals left open the possibility either that the jury was not satisfied beyond reasonable doubt that the penetration occurred, or was not satisfied that the penetration occurred with or without consent or that the respondent was not honestly and reasonably mistaken about consent. The respondent's mistaken belief in consent to sexual acts may have been less unreasonable if the complainant consented to other sexual acts, or acted as if to induce a mistake. In either scenario, the circumstances may be relevant to sentence. When interviewed by the police the respondent seemed to admit that he had touched the complainant on the vagina although there was some uncertainty about his account.
14 The learned sentencing judge made no factual findings about these allegations or how the verdicts were to be reconciled with the guilty verdicts on the remaining counts. However, an exchange with counsel for the prosecution during the sentencing hearing made his Honour's position, at least at that time, tolerably clear. His Honour seemed to accept the proposition that, in light of the guilty verdicts, the "sensible solution" rather than the "perverse explanation" was that the jury acquitted the respondent because it was not satisfied beyond reasonable doubt that penetration had been proved. His Honour's comments suggested strongly that he did not proceed to sentence on the basis that those sexual acts involved penetration which had been consented to. His Honour made no finding that the conduct of the complainant otherwise contributed to the reasonableness of the respondent's belief, and the evidence does not justify a finding that anything other than the respondent's intoxication was the material factor.
Manifest inadequacy and prosecution appeals
15 The principles to be applied to determination of appeals on the ground of manifest excess or inadequacy are not in issue. An appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. The appeal cannot succeed unless
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the appellant demonstrates error in the exercise of the sentencing discretion: that, when all matters relevant to sentence are taken into account, the sentence is plainly unjust or unreasonable: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.
16 The principles on which prosecution appeals on this ground are to be determined were re-stated in Director of Public Prosecutions v Harington [2017] TASCCA 4, 27 Tas R 128 at [94]-[96] and have been applied by this Court in many cases since then:
"95 This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]- [2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]- [116]. In Everett v The Queen, McHugh J said at 306:
'Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.'
96 The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appealable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66]."
The respondent's personal circumstances
17 When sentenced the respondent was 21 and is now 22. His upbringing was unremarkable and he enjoyed the support of his immediate and extended family. He had obtained full time employment as a landscape construction worker and had been working for about 18 months. His employer confirmed that he was a valuable and reliable employee. He had no prior convictions of any nature. He told the author of an assessment report that since the crimes he had become less socially active, ceased using illicit drugs and moderated his use of alcohol. He reported that he suffered from depression. No medical evidence or diagnosis was provided although the author of the report encouraged him to seek medical advice about his mental health. He suggested that his use of drugs had been a form of self-medication. He proposed to live with his grandparents at a regional town.
18 The learned sentencing judge concluded, on the basis of the evidence at trial and the pre- sentence report, that the respondent did not pose a risk of further offending. He declined to make an order under the Community Protection (Offender Reporting) Act 2005. It is to be inferred from that finding that his Honour concluded that there was a limited need for a sentence to address future risk.
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The sentencing judge's approach to sentence
19 In the usual course a sentence for a particular crime should provide a just and proportionate response to the crime for which it is imposed. However, it is obvious from the structure of the sentence imposed by the sentencing judge across both counts that his Honour carefully fashioned a sentence intended to address the respondent's total criminality arising from a single course of events. The combined effect of the sentencing orders made by his Honour was imposition of home detention for 18 months, a three year community correction order requiring 240 hours of community service and a wholly suspended 15 month term of imprisonment. The period of home detention was the maximum which could have been ordered: Sentencing Act, s 42AF(2). The number of community service hours was the maximum which could have been ordered: s 42AS. The proposition that this was his Honour's intended approach is demonstrated by reference to the sentence imposed for indecent assault. Without wishing to understate the seriousness of any indecent assault, the nature of this assault would not ordinarily justify a term of imprisonment of that length, suspended or otherwise. His Honour's stated aim was to impose a total sentence which was "as punitive as it can be without imposing actual imprisonment."
20 The question which arises in this appeal is whether the approach was erroneously lenient. In our respectful view that question is to be answered in the affirmative.
Rape and home detention orders
21 Rape is an inherently serious crime. Any act of non-consensual penetration constitutes invasion of the bodily integrity of the victim and is thus objectively serious, irrespective of the form and the extent of the penetration. It involves infliction of violence and physical, emotional and psychological degradation on victims: Mulholland v Tasmania [2017] TASCCA 2; 25 Tas R 313 at [11], DPP v Mokhtari [2020] VSCA 161 at [41].
22 Rape generally calls for a sentence reflecting the need for punishment, denunciation and retribution, providing the victim with appropriate vindication and protecting the public. It ordinarily requires a sentence which seeks to deter others from similar conduct: Mulholland at [11]. The appellant's written submissions helpfully and accurately summarises aspects of past sentencing practices for rape in these terms:
"It is generally accepted that the crime of rape has no tariff. In Sentencing in Tasmania, 2nd ed, (The Federation Press 2002 Sydney), Professor Kate Warner provides at [11.409] that single counts of rape ordinarily attract a sentence of imprisonment of three to four years, and that a sentence of five years or more is appropriate for serious cases. The August 2015 report of the Sentencing Advisory Council provided that, in the period 2001-2014, 98.7% of sentences for rape were custodial, reflecting that only one offender during that period had received a non-custodial sentence. The median sentence in the period 2008-2014 for a single count of rape was reported to be 46.5 months (just short of four years' imprisonment)."
23 That material is supplemented by the respondent's submission in these terms:
"Sentences falling short of immediate imprisonment have, nevertheless, been imposed in the period covered by the Sentencing Advisory Council's data…Fully suspended and non-custodial sentences accounted for 4.2% of sentences imposed for rape in Tasmania in the period between 2001-2014. A further 5.5% of sentences were partly suspended periods of imprisonment: Sex Offence Sentencing: Final Report, August 2015 at p 15."
24 The material just referred to makes clear that in the great majority of cases the crime of rape attracts a sentence of immediate imprisonment. A question directly raised by this appeal is the extent to which, if at all, that proposition is affected by the introduction of home detention orders as a sentencing option. The principles relevant to imposition of home detention orders were, in the context of
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considering the adequacy or inadequacy of such a sentence, considered by this Court in DPP v King [2020] TASCCA 8; 32 Tas R 156. Home detention orders were introduced in this State on 14 December 2018 upon commencement of the Sentencing Amendment (Phasing Out of Suspended Sentences) Act 2017. A home detention order requires that an offender must, while the order is in force, reside at specified premises and be at those premises for the times specified in the order, generally at all times, without approval. Persons subject to an order are generally required to submit to electronic monitoring.
25 A court may make a home detention order if it considers that, were it not to make a home detention order, the offender would have been sentenced to a term of imprisonment, whether or not wholly or partly suspended: Sentencing Act, s 42AC(1)(b). A court may only make a home detention order "if it is of the opinion that, in all the circumstances, it is appropriate to make the order": s 42AC(2)(a). The following general propositions may be extracted from the reasons of the members of the Court in DPP v King:
• because of the restrictions an order places on the liberty of an offender it may be regarded as a form of imprisonment: Blow CJ at [28]; • home detention is obviously less onerous that actual imprisonment: Blow CJ at [28]; • home detention will be more onerous for some than others and the impact will vary from offender to offender depending on their domestic circumstances: Blow CJ at [31] and [34]; • home detention is punitive and will have efficacy as a general deterrent. It is a tangible sentence with consequences that are visible: Wood J at [63]-[64] 26 Counsel for the respondent argued that home detention, for him, carried punitive elements. He is a single person and had no contact with friends. He was unable to attend family gatherings and could not pursue any of his recreational activities except being permitted to exercise outside on three occasions each week. He was able to continue his employment but, in conjunction with his employer, was required to restrict his duties. The respondent relied on the passage from the reasons of Wood J in DPP v King at [65] in support of the submission that introduction of home detention orders allowed a greater flexibility in sentencing in matters such as this:
"The expansion of sentencing options will involve 'a degree of recalibration of sentencing approach': Lean at [59] per Hinton J. See also, Boulton at [113]. Not only will there be cases which previously would have attracted a suspended sentence but which will now attract a home detention order, there will be cases that would have previously been dealt with in a more punitive fashion by the imposition of immediate imprisonment that will now be dealt with by home detention orders, perhaps coupled with other orders such as community correction orders. Indeed, this is the point of these new orders for 'appropriate' cases: s 42AC(1)(b), (2)(a)." (Citations removed)
27 However, in the immediately following paragraph, her Honour continued:
"However, some offending is so serious as to require that the offender be imprisoned. This question will be decided by sentencing judges or magistrates on a case by case basis. The seriousness and culpability of the offending in a particular case may demand a term of imprisonment. Sentencing goals such as need for adequate punishment, community protection, general deterrence, and denunciation may not be met in a particular case by a home detention order. This is well recognised by the courts in jurisdictions where home detention orders are available: R v Rudd [2015] NTCCA 3, 34 NTLR 131 at [45]; Dell at [57]-[58] per Doyle J; Filipponi at [37]–[38]; Jurisic at 215 per Spigelman CJ. So, while home detention orders carry a considerable measure of deterrence and denunciation, the seriousness of the particular crime may have reached a level that only imprisonment can be effective as a deterrent and in achieving other sentencing goals." (Citations removed)
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28 In our respectful view, this case falls into the second category of cases referred to by Wood J. Counsel for the respondent referred the Court to imposition of a sentence imposed by Wood J for rape and common assault. Her Honour ordered home detention for 18 months and added a community corrections order requiring 119 hours of community service. Although the sentence was similar to the one imposed upon the respondent in this case, the circumstances of the crime were substantially different. The defendant pleaded guilty. The crime involved penetration of the victim's vagina, to a slight degree. The defendant and the complainant had been in a relationship for approximately 10 months. They did not live together but he commonly stayed with her and they slept in the same bed.
29 We do not intend to suggest that the imposition of a home detention order, possibly in combination with other sentencing orders, is never available for the crime of rape, but this is not such a case. That is so for a number of reasons.
The seriousness of the respondent's crime
30 The crime committed by the respondent was a serious example of the crime of rape. It was committed in the complainant's home, after she had agreed to the respondent visiting her for social interaction. A degree of trust was inherent in her agreement to allow him into her home. There are other factors which add to the objective gravity of the crime. The respondent did not wear a condom. He ejaculated into the complainant's vagina. Even on the account he gave to the police he asked the complainant whether he should proceed to ejaculation but continued even though she did not respond. Unprotected penile penetration exposes a female in the circumstances of the complainant to the risk of pregnancy and sexually transmitted disease. They are considerations which add to the trauma and distress of the victim, even where for some reason unknown to the victim there is no risk of pregnancy or transmission of disease and demonstrate the respondent's reckless (in this sense) attitude towards the victim, and disregard for her welfare. There is no evidence that pregnancy or disease resulted.
31 The learned sentencing judge cited with approval the following passage in the reasons of Pearce
J in JSP at [108]:
"There was a distinct need to impose a sentence which gave weight to general deterrence, denunciation and vindication of the victim. As to general deterrence, there was a need to uphold the policy of the consent and mistake provisions of the Code, to make clear to men, especially young men, their criminal responsibility for sexual acts committed against a person so affected by alcohol or drugs as to be unable to freely agree."
32 In JSP a 17 year old youth was found guilty of rape. He was to be sentenced on the basis he had an honest but not reasonable belief that the 15 year old victim consented to sexual intercourse. In that case the perpetrator's belief was held because the victim, a 15 year old girl, had communicated consent. However, in terms of s 2A(2)(h) of the Code, the victim was so affected by alcohol as to be unable to validly consent to sexual intercourse.
33 This case involves the converse situation in which, in accordance with the sentencing judge's findings, the reason the belief of the perpetrator was not reasonable was his self-induced intoxication – in terms of s 14A(1)(a), that the respondent was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated. That circumstance, in our respectful opinion, is not analogous to that considered in JSP. The factor relevant to the reasonableness of the mistake in JSP, the communication of consent by an intoxicated victim, is not present in this case. Whilst, in general terms, the need to uphold the policy of the mistake and consent provisions of the Code exists, there are additional considerations of principle and policy here which are important in the resolution of the appeal. Since this crime was committed the Parliament has, by the Justice Legislation Amendments (Criminal Responsibility) Act 2020, s 6, amended the Sentencing Act to include s 11C which provides:
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"(1) 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."
34 That provision has no application in this case because it did not take effect until 1 July 2020 and the transitional provisions expressly provided that it did not apply to an offence committed before that date. However the terms and context of the provision flag consideration of whether the culpability of the respondent is moderated or reduced by his intoxication. In our view it is not, regardless of the inapplicability of s 11C, because the legislative provision substantially reflects the law which is to be applied independently of the operation of that provision. Australian courts have generally accepted that self-induced intoxication is not a mitigating factor for criminal conduct. It is capable of explaining why an offender of otherwise good character may commit a crime. It may therefore contribute to the courts assessment of sentencing factors such as personal deterrence and rehabilitation. This was explained by Hinton J, with whom Justice Blue and Justice Stanley agreed, in R v Williams [2018] SASCFC 14 at [51]-[53]:
[51] It is commonly understood that drink and drugs disinhibit. Some people become aggressive, some emboldened, some reckless, some despondent. For others again, it numbs the pain. In some cases intoxication will deny any suggestion of premeditation or deliberation, in others the offender may have a history of intoxication and violent conduct. Into the mix must be thrown the community’s expectations. As a general rule violence fuelled by intoxication cannot be tolerated. Neither can sexual offending where the offender is emboldened by drink or drugs to satisfy his or her desires without regard to the other person and whether they are consenting.
[52] The fact of an offender being intoxicated and the reasons for his or her intoxication will be important to the fashioning of a sentence intended to protect, punish, deter and rehabilitate. One need only contrast the circumstances of the applicant in this case who used drugs and alcohol to cope with the consequences of his having been abused with the circumstances of the appellants in The Queen v Sewell and Walsh to demonstrate the point.
[53] At the end of the day sentencing is individualised. Where the offender is intoxicated, to limit the relevance of intoxication to the question of whether it aggravates or mitigates the offending risks misjudging the complexity of the individual and failing to appreciate the forces that impacted upon his or her conduct which will be relevant, in turn, to the assessment of the need to protect, punish, deter and rehabilitate. Put slightly differently, it may be accepted that ordinarily intoxication does not mitigate and that the intoxicated offender cannot expect any reduction because they were intoxicated, and it may be accepted that the offender’s intoxication may in some circumstances aggravate their offending, but mitigation and aggravation aside, the offender’s intoxication will be relevant to any explanation for their offending which, in turn, is important to an assessment of the need to protect, punish, deter and rehabilitate." (Footnotes removed)
35 In serious sexual offences, where the inability of the offender to appreciate the nature and consequences of his actions, mistake or misjudgment arises from self-induced intoxication, the moral culpability of the offender is not reduced. In those circumstances, an offender is generally to be regarded as morally responsible for his or her condition. In this case, given the respondent's prior good character and the sentencing judges finding concerning mistake, his intoxication is capable of explaining his conduct. It also informs the question as to whether he is likely to commit a crime like this again. However, such crimes are commonly committed by offenders who are affected by alcohol or drugs, and have an impaired capacity to correctly judge and assess consent. It is a consideration which lies behind the purpose, in terms of criminal responsibility, of s 14A(1) the Code. It is a factor which strongly informs the need for general deterrence. It is the Court's duty to make clear to those persons who would commit non-consensual sexual crimes that self-induced intoxication will not generally excuse or reduce moral culpability when misjudgment or mistake about consent results from self-induced intoxication. That the blameworthiness of the perpetrator of a serious sexual crime should be reduced by the claim
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that they were too affected by alcohol or drugs to exercise proper judgment is a proposition which must
be strongly rejected.36 In this case, the only basis for the respondent's mistake was his intoxication. His intoxication led him to act despite the complainant's express refusal to consent to sexual intercourse, and her attempts to resist him. He was resolute in achieving sexual gratification, without any real consideration of the welfare or wishes of the complainant.
37 The issue of the respondent's youth is a related one. Although he was a young adult at the time of the crimes, and not a youth, the principles which apply to youthful offenders should properly be applied to him. The principles were stated by Porter J with whom Blow CJ and Wood J agreed, in TAP v Tasmania [2014] TASCCA 5 at [23]-[29] and reviewed in JSP. The imposition of an actual sentence of imprisonment has a dramatic effect on the life of a young person. It exposes a young person to the corrupting influence of prison. Rehabilitation, where the prospects are good, assumes greater emphasis. The majority in JSP, after reviewing the authorities, concluded that youth remains a relevant consideration even in serious sexual crime. However the weight to be attributed to it is to be determined according to the circumstances of each case and the need for it to be balanced with other sentencing considerations. As was also explained in JSP, another reason that the law generally allows lenience to young offenders is they, being immature, are "more prone to ill-considered or rash decisions": R v McGaffin [2010] SASCFC 22, 206 A Crim R 188 at 210, [69]. They "may lack the degree of insight, judgment and self-control that is possessed by an adult" and may not fully appreciate the nature, seriousness and consequences of their criminal conduct: Director of Public Prosecutions v TY (No 3) [2007] VSC 489, 18 VR 241 at 242, [43]. However, as Porter J observed in TAP, where the level of seriousness in the relevant criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth. The weight to be attributed to youth is also reduced when the lack of judgment or insight is substantially contributed to by self-induced intoxication rather than the fact of youth. In our view that is the case here. There is nothing to suggest that, absent intoxication, the respondent was not able to appreciate the wrongfulness of his actions. To re-state but modify the propositions stated in JSP, there was a distinct need to impose a sentence which gave weight to general deterrence, denunciation and vindication of the victim. As to general deterrence, there was a need to uphold the policy of the consent and mistake provisions of the Code, to make clear to men, especially young men, that their criminal responsibility and liability to punishment for sexual acts will not be reduced even if they acted in a way they may not have acted if not affected by alcohol or drugs.
38 The respondent did not plead guilty. The complainant was required to prepare for trial and give evidence during which she was subjected to a lengthy cross-examination and a strong challenge to her account. The respondent is not to be punished for exercising his right to trial. He was acquitted on two counts. However he is not entitled to the significant mitigation a plea of guilty generally carries, especially in cases such as this. His expression of remorse was limited to the statement to the author of the assessment report that he was "sorry for the victim, advising he did not realise she was not consenting at the time." There was no other evidence of remorse, contrition or insight.
39 Sentencing courts are acutely aware that the psychological and emotional impact on the victims of serious sexual crimes is profound and often lifelong. The sentencing judge, when referring to parts of the complainant's victim impact statement remarked that she "seems to have had no lasting effects from the events that occurred that evening." His Honour expressed that view in terms of a comment about lasting impact rather than a conclusion. Considerable care is required. Sometimes the effects on victims emerge immediately and sometimes they emerge over time. In any event, the terms of the complainant's statement speak, although in measured and moderate terms, of what may be taken to be just the type of immediate and continuing impact which is to be expected to result from sexual crime. She spoke of being shocked, confused and ashamed, a fear of not being believed and apprehension about being judged by others. She suffered paranoia and panic attacks, and found it difficult to concentrate on her education. She had the support of her boyfriend to "keep me going emotionally." Although she
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stated that she no longer felt ashamed, she expressed her state of mind at the time of her statement as no higher than "I am coping with what's happened to me as more time goes by with the support of my friends and family and my witness assistance officer."
40 For those reasons, when all matters relevant to sentence are taken into account, imposition of a home detention order, even when combined with the other sentencing orders made by the learned sentencing judge, was not an appropriate sentence. The rape committed by the respondent was so serious that it required a sentence of actual imprisonment so as to adequately serve the need for punishment, general deterrence, denunciation and vindication of the victim. Potential offenders, including young men, must understand that committing the crime of rape will result in severe punishment, which will in most circumstances involve time in prison. It may be accepted that there are countervailing and competing sentencing objectives. In most cases, incarceration will not assist and may be positively harmful to the offender's rehabilitation. However, in our view, the inherent seriousness of the crime of rape, and the gravity of the criminal conduct in this case, required that the considerations of general deterrence and denunciation be given more weight than the respondent's youth and rehabilitation. In the circumstances of this case, this required a sentence of actual imprisonment. A sentence which fell short of requiring actual imprisonment fell outside the range of sentences reasonably open to his Honour and was manifestly inadequate.
The residual discretion
41 In the case of a prosecution appeal, the Court has a residual discretion to dismiss an appeal despite a finding of appealable error. The nature of the discretion and the principles which guide its exercise were stated by Wood J in Director of Public Prosecutions v JSP at [12]-[19]. Those principles should be applied. There is no need to repeat all her Honour said. That was a case in which, for the reasons her Honour expressed, the residual discretion to dismiss the appeal was exercised although it had been demonstrated that the sentence under appeal was erroneously inadequate. However in this case, we are satisfied that the discretion to dismiss the appeal despite error should not be exercised.
42 This is a case in which there is a particular need for guidance to sentencing courts. It does not, in our view, come at too high a cost in terms of injustice to the respondent. The sentence was imposed on 17 November 2022. The appeal has resulted in a prolongation, for about four months, of the stress and anxiety which he experienced prior to sentence, but not such as to distinguish it from the position of any accused person. During that time he has been subject to the home detention order and performed some community service. Issues of totality can be properly addressed in re-sentencing. As has already been explained, rehabilitation is to be subordinated in this case to the need for punishment, denunciation and general deterrence. We are satisfied that the appeal should be allowed and a different sentence imposed.
Re-sentence
43 The factors which led the Court to the conclusion that the sentence imposed upon the respondent for rape was manifestly inadequate are relevant to the re-sentence. Were this Court exercising the sentencing discretion afresh we would impose one sentence for both offences. The indecent assault formed part of the lead up to the rape but was much less serious. We consider that a sentence of imprisonment of no less than three and a half years would have been appropriate as a global sentence. Had the respondent not been a youthful offender a longer head sentence would have been justified.
44 However, two other factors impact on the re-sentencing exercise. The learned sentencing judge imposed a wholly suspended term of imprisonment for the indecent assault. That sentence is not subject to appeal and will remain in place. Secondly, in accordance with s 402(4A), we may take into account any matter relevant to the sentence that has occurred between the imposition of sentence and the hearing of the appeal. The respondent has been subject to the punitive effect of the home detention order since
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17 November 2022. He has been subject to the community correction order during that period and performed 26 hours of community service. Those factors lead us to conclude that the head sentence which otherwise would have been imposed for rape should be reduced.
Resolution and orders
45 The appeal is allowed. The sentencing orders made by Estcourt J on 17 November 2022 on count 3 on the indictment are set aside. On that count the respondent is sentenced to imprisonment for 21 months from 10 March 2023. We order that the respondent not be eligible for parole until having served half of that term. The sentence imposed by the sentencing judge on count 1 on the indictment, for indecent assault, is unaffected by this appeal. The effective result is that the respondent will also remain subject to a term of imprisonment of 15 months wholly suspended for three years from 17 November 2022 on the conditions announced by the sentencing judge.
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