Director of Public Prosecutions v P
[2007] TASSC 51
•26 June 2007
[2007] TASSC 51
CITATION: Director of Public Prosecutions v P [2007] TASSC 51
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
P, K J
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 8/2007
DELIVERED ON: 26 June 2007
DELIVERED AT: Hobart
HEARING DATE: 22 May 2007
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal against sentence – Applications to increase sentence – Offences against the person – Rape – Whether term of imprisonment inadequate.
R v S [1991] Tas R 273, followed.
Aust Dig Criminal Law [1023]
REPRESENTATION:
Counsel:
Appellant: T J Ellis SC
Respondent: T K Jago
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2007] TASSC 51
Number of paragraphs: 23
Serial No 51/2007
File No CCA 8/2007
DIRECTOR OF PUBLIC PROSECUTIONS v P
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
EVANS J
26 June 2007
Orders of the Court
Appeal allowed.
Sentencing order of two years' imprisonment quashed along with non-parole order.
P sentenced instead to imprisonment for three years from 9 February 2007 and ordered not to be eligible for parole until he has served 18 months of the imprisonment.
Serial No 51/2007
File No CCA 8/2007
DIRECTOR OF PUBLIC PROSECUTIONS v P
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
26 June 2007
The respondent pleaded guilty to one count of rape and on 22 February 2007, he was sentenced to imprisonment for two years from 9 February 2007 and ordered not to be eligible for parole until he had served half the sentence. The Director appealed against the sentence on one ground, that it was manifestly inadequate.
The respondent had been in a relationship with the complainant for about ten months. It ended about two months before the crime. She had tried to maintain a friendship with him only, but he could not accept that the relationship had ended and constantly asked why they could not get back together. He kept coming to her home and staying for extended periods and he would try to kiss and cuddle her. She would often try to say no, but on some occasions she would relent to avoid an argument. She was 17 weeks' pregnant with his child at the time of the crime. She also had a two year old daughter living with her.
At about 9pm on 30 May 2006, she was at home when he arrived in an intoxicated condition. Upon his knocking on the door, she allowed him to enter. Her daughter was asleep in another room. They sat in the lounge room watching television. Every now and then he rubbed her back and asked for a cuddle and a kiss. She gave him a cuddle and a quick peck on the lips. He continued to want more and she said, "Aren't you cuddled out?" He was very drunk, slurring his words and not listening to her.
At about 11pm, after he had been there for about two hours, she asked him to leave. She wanted to go to bed. She told him so, and that she was tired. He said he was not leaving and did not care what she had to say. She got up, went to her room and to her bed. He came in and climbed into bed with her. She asked him to leave and told him that she wanted to go to sleep, but he would not go and continued to lie there, saying "Too bad, I'm not going anywhere". After an hour of lying there, she rose and went into the lounge room. He followed her. Again, she asked him to leave. She said she would telephone a friend and see what she had to say. He grabbed hold of both her mobile and fixed telephones, and told her she was not calling anybody.
She returned to her bed and he followed once again. He asked for a kiss and a cuddle and she said "No". He then asked if he could have sex and she said "No". He then said he would cuddle her anyway, even if she said no. He took off his jeans, underwear and tee-shirt and got under the doona on the bed. She got out of the bed, saying she was going to the toilet, but he grabbed hold of her arm and pulled her back into the bed, saying "You're not going out there". He pushed her down. She was on her back. He laid on top of her and started kissing her. She tried to push him away and told him to stop. He began to hold her wrists. She tried resisting and struggled. He tried to take her pyjama bottoms off and, with a free hand, she tried to hold them up. He ripped them. He then held her left hand above her head with his right hand and pinned her to the mattress. He tried to hold both of her hands with his right hand. She managed to slap him in the face. Eventually, he was able to pin both of her hands above her head with his right hand. He then forced her legs apart and inserted his penis into her vagina. He kept moving back and forth while on top of her. She was trying to fight him off. She managed to free one hand, but he had her pinned down with his body. After a few minutes of trying to fight him, she gave up. After about five minutes, he stopped. His reason for stopping was not stated to the sentencing judge. She broke into tears. He got off her. She ran to the bathroom and closed the door. She screamed for him to leave and eventually he did, driving away in his car.
Two days later, the complainant told a female friend about what had happened. That evening, the friend told the appellant that he had raped the complainant, to which he replied, "I fucked up, I admit that". He asked what he was going to do about his kid. The friend said she could not think they let rapists see kids. He said, "I deserve it". He also said, "I feel like shit, I know I shouldn't have done it, my life's over, I feel like killing myself, I should just jump off a cliff". He also said, "I know I shouldn't have done it".
Police interviewed the appellant on 4 June 2006. At first he declined to be interviewed further when asked what he had done at the complainant's home, and the interview ended. However, he then said to the officers, "I know I'm guilty of what I've done". He agreed to be interviewed again. When asked what he was guilty of, he admitted to "sexually assaulting" the complainant, but did not specifically mention rape. Asked why he was making admissions, he said, "Because I'm guilty, I know what I've done".
He pleaded not guilty in a magistrates court and required the taking of depositions. The complainant's friend was deposed. On 13 November 2006, he was committed for trial. The indictment was filed on 11 December 2006. He pleaded guilty on 9 February 2007.
The complainant subsequently gave birth to their daughter. In a victim impact statement, she said that she believed she had become overprotective of her daughters because of what had happened. She had not been able to tell family or friends about the details of what had happened on the night of the rape nor how she felt about it. If she heard a noise at night, she stayed awake wondering if anyone was there. For two months after, she had almost no sleep at night. She still had one or two nights a week when she lay in bed going over everything. It hurt her to look at her baby daughter because she looked like him and reminded her of what had happened. She still felt annoyed, angry, sad and frightened as a result of what he did. She had trusted him. He was not someone she could avoid in the future, as with a stranger. She worried about having to deal with their daughter's questions in the future.
At the time of the crime, the respondent was 22 years old. He had a record of offending. Between 1998 and 2000, in children's courts in Port Macquarie, New South Wales, he was dealt with for offences of dishonesty, for behaving in an offensive manner and using offensive language. On 15 May 2000, when aged 16, he was fined for common assault. He breached a community service order. On 13 May 2004, the Port Macquarie Local Court sentenced him to wholly suspended imprisonment for six months for possessing implements to enter or drive a conveyance. On 26 August 2005, he was placed on a bond for intimidating a police officer in the execution of the officer's duty. He committed a number of driving offences, particularly unlicensed driving and drink driving and is currently disqualified from driving in New South Wales until 30 August 2013. He moved to Tasmania from New South Wales in about 2004 or 2005. On 11 June 2006, only about 12 days after this crime, he breached a police family violence order, and on 3 August 2006, he breached requirements of bail, but it appears that those two offences were not regarded as serious ones because in each case, the proceedings were adjourned for 12 months on a condition of good behaviour.
At the time of sentence, he was 23 years old. He was raised in the Port Macquarie area by his mother and stepfather. He had three siblings. His education ended half way through year 8, when he began working for 12 months for an uncle, splitting and cutting firewood. He had been employed for most of the time since. He worked for about 4 years as a floor sander in Sydney. He returned to Port Macquarie. He moved to Tasmania to make a fresh start, having got into trouble, as his record shows. He obtained employment on a fishing boat for a year, which ended with the death of his employer. Since then he had a number of casual jobs that included floor sanding and broccoli cutting.
His counsel said that he met the complainant six months after arriving in Tasmania and they immediately formed a relationship. He was living with his grandparents and she moved in with him. They then moved to a flat. He claimed that it was a very happy relationship until she terminated it. That came as a shock to him. They were apart for about a week and then resumed their relationship. However, thereafter the relationship fluctuated, but essentially headed downhill. They had periods of separation and reconciliation. Over the last three months, he was in a highly emotive state and took to alcohol as a coping mechanism.
The respondent did not dispute that at the time of the crime the relationship had ended, but he still hoped that a reconciliation was possible. Earlier that night he had participated in a pool competition and drank heavily. He was grossly intoxicated when he went to the complainant's home.
His counsel said that he was extremely remorseful and regretful for what had taken place, and in support of that submission, relied on what he said to the complainant's friend two days later, what he said to the police, and his eventual, but late, plea of guilty. Counsel asked the learned judge to have regard to his young age and to the fact that his plea of guilty had saved the complainant from giving evidence. Counsel concluded with a claim that the respondent was a very confused and emotionally immature young man at the time of the crime.
In comments on passing sentence, the learned judge commented that until the respondent changed his plea, the complainant would have assumed that she would be required to give evidence. The respondent's state of intoxication on the night, while perhaps an explanation, did not excuse his behaviour. The learned judge continued:
"I accept that you regret what you've done, and that this act arose out of a particular set of circumstances in which you found yourself, that is, being upset, to an extent intoxicated and obviously frustrated at [the complainant's] refusal to continue a relationship with you, physical or otherwise. But (sic) I accept that by reason of these circumstances you are unlikely to re-offend in this particular way. However, rape is a serious crime and there remains the need for a sentence to act as a deterrent to others who might believe they can escape punishment for this type of act."
Undoubtedly, the sentence of two years imprisonment was a low one for the crime of rape. In most cases the sentence should be much more severe. It is commonly, as it was here, a crime of violence, domination and degradation and it usually causes great psychological trauma to the victim. It requires a substantial sentence of imprisonment in most cases. Leniency may be extended in exceptional circumstances, but there were none in this case. If the crime is committed during the currency of a sexual relationship it is conceivable that the circumstances might allow some leniency to be extended to the offender. But merely because there was a prior sexual relationship between the two people is not a mitigatory factor. R v S [1991] Tas R 273. The appellant's disappointment over the breakdown of his relationship with the complainant was immaterial to the exercise of the sentencing discretion. In no sense was his crime an act of unrequited love.
An offender's good character and antecedents may justify a court alleviating the severity of the sentence in some cases. However, having regard to the appellant's poor record so far as offending is concerned, he was not entitled to a consideration of that kind.
It was correctly submitted by the respondent's counsel that particularly because this is a prosecution appeal, it is not the function of the Court to overturn a sentence merely because it is light and that before it does so, the sentence must be shown to be manifestly inadequate to the point of clear error. However, this is such a sentence. Ultimately sentencing standards and levels are set by this Court and it can only do so when appropriate cases come before it on appeal. A concern of the Court should be that if it allows the sentence to stand it will lower the standard for the future and encourage sentencing levels for the crime that are lower than is desirable. Notwithstanding favourable considerations, such as the offender's remorse and plea, this is a case that requires intervention to ensure that condign punishment is imposed by judges for the crime.
I would allow the appeal, quash the sentence and re-sentence the appellant to imprisonment for three years from 9 February 2007. Because he is still a relatively young person who has not served time in prison before, I would order that he not be eligible for parole until he has served the minimum permissible time, that is 18 months of the imprisonment.
File No CCA 8/2007
DIRECTOR OF PUBLIC PROSECUTIONS v P
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
26 June 2007
I have had the benefit of reading the reasons for judgment prepared by Crawford J and agree with both his reasoning and conclusion in upholding the appeal. The sentence he proposes is consistent with those imposed on persons who have committed sexual crimes against former partners (R v S [1991] Tas R 273; Radcliffe Underwood J (as he then was) 10 July 1996; Armstrong Wright J 18 June 1996). In this case the appeal by the Director of Public Prosecutions ought be upheld on the basis of demonstrated error (Griffiths (1997) 137 CLR 293; Malvaso (1989) 168 CLR 227; Dinsdale (2000) 202 CLR 321; Osenkowski (1982) 30 SASR 212; Attorney-General (Tas) v McDonald (2002) 11 Tas R 221; Attorney-General v O R L [2004] TASSC 53). The Court retains a limited discretion, following appellate intervention, to ameliorate an otherwise appropriate sentence (Harland-White 23/1997; Meers and Moles v R (1998) 101 A Crim R 329). While the Criminal Code, s402(4), permits an unfettered discretion to vary the sentence, it does not follow that the Court is required to ignore on re-sentencing, that the appeal was made by the State. I repeat what I stated in Attorney-General (Tas) v McDonald (supra) at pars24 – 30:
"The reasoning of Kirby P permits resolution of the critique advanced on behalf of the appellant. The State has a general interest in the administration of justice and ought not pay particular regard to a specific individual unless that sentence impacts on public policy. The State, through either its executive officers or its judicial arm, ought not allow special or transient interests in a particular outcome distort that desired state of affairs. An individual offender has a specific (and legitimate) interest in a particular outcome and the principles governing those separate interests ought differ. There remains, despite historic anachronism, a proper need to accommodate the dichotomy.
There ought remain a distinction between the approach to appeals brought by the Crown and those of a citizen. The distinction can be justified in two ways. The first applies to a Crown appeal on the ground of manifest inadequacy. When an appeal court upholds an appeal on this ground it is entitled to re-sentence so that the sentence is no longer "manifestly inadequate". That might, in some circumstances, permit the imposition of a fresh sentence at the lower end of the appropriate range. The second distinction, grounded in policy, impacts at the stage of a grant or refusal of a Crown appeal and accords with the reasoning stated in cases such as Malvaso; Griffiths and Everett and Phillips (supra).
In the event of a successful Crown appeal, the fact that it is a Crown appeal ought not, of itself, constitute a basis for a reduction in sentence. But for the reasons given by Kirby P, it can be taken as a factor if it can be shown that the nature of the appeal has adversely impacted on the respondent.
In Dowie (supra), Underwood J cited an extract from an article Dismissal of Crown Appeals Despite Inadequacy of Sentence by F Rinaldi (1983) 7 Crim LJ 306, in which having analysed decisions in New South Wales where, despite identification of error, the court had refused to intervene, he concluded at 241:
'For convenience of exposition factors which courts have invoked to justify their refusal to disturb lenient sentences can be divided into five overlapping groups: (1) where there has been delay; (2) where an unappealed sentence imposed on a co–offender is seen to create a penalty ceiling; (3) where imposition of an appropriate sentence would offend the so called "totality" principle; (4) where the inadequate sentence is seen to have a significant prospect of "rehabilitating" the offender; (5) where imposition of the inadequate sentence was contributed to by lack of challenge by the Crown of sentencing facts submitted by the offender or seen to exist by the trial judge.'
Factors 2, 4 and 5 would be relevant to the initial test governing the allowance or refusal of the appeal. Factors 1 and 3 might properly be determined at the stage of re-sentencing when the usual sentencing factors become relevant. In addition, the matters identified by Kirby P in Hayes and Anderson would be matters appropriate for the re-sentencing process.
The critique advanced on behalf of the appellant might go to the automatic allowance of discount solely by virtue of the nature of the appeal, a course followed in accordance with the Crown's submission, in Attorney-General v B [2002] TASSC 63.
In my opinion, a successful Crown appeal giving rise to a re-sentencing need not of itself warrant a reduction in the appropriate sentence, but an appellate court is permitted to take the nature of the appeal into account during the re-sentencing process."
Here the previous record of the appellant, which included acts of violence or threatened violence in 2000 and 2004, is relevant to the assessment of "re-sentence". The conduct of 20 May 2006 was neither isolated nor committed completely out of character. Convictions recorded on 21 June and 8 August 2006 related to violent conduct occurring on 11 June and 3 August 2006, respectively. I would not ameliorate the penalty proposed by Crawford J because of the nature of the appeal.
I would uphold the appeal, quash the sentence and re-sentence the appellant to imprisonment for three years, with the minimum non-parole period.
File No CCA 8/2007
DIRECTOR OF PUBLIC PROSECUTIONS v P
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
26 June 2007
I have read, and agree with, the reasons for judgment prepared by Crawford J and I agree with the orders he proposes. For my part it is significant that the respondent's criminal conduct cannot be categorised as an impetuous response to the break-up of his relationship with the complainant and a manifestation of his love for her. His conduct over the period of in excess of an hour after she first asked him to leave bears all the hallmarks of an assertion of physical and sexual dominion over the complainant. His response to her initial request that he leave was that he was not leaving and did not care what she said. Having followed her to her bedroom and entered her bed, he responded to her further requests that he leave by saying, "Too bad, I'm not going anywhere". When she went to the lounge room to telephone a friend, implicitly for assistance, the respondent grabbed both her home phone and her mobile phone and said she was not calling anyone. Thereafter, in the face of her repeated rejections of his sexual advances, he used significant physical force to overcome her resistance and rape her. His conduct did not allow for any leniency arising from his previous sexual relationship with the complainant.
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