Director of Public Prosecutions v Robert Edward Courtney
[2017] VSCA 233
•1 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0154
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ROBERT EDWARD COURTNEY | Respondent |
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| JUDGES: | KYROU, HANSEN and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 August 2017 |
| DATE OF JUDGMENT: | 1 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 233 |
| JUDGMENT APPEALED FROM: | DPP v Courtney [2017] VCC 799 (Judge Wilmoth) |
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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Indecent act with a child under 16 – Sentence of 3 months’ imprisonment with a 2 year community correction order – Whether sentence manifestly inadequate – Whether sentence reflected gravity of offending against young child – Appeal allowed – Respondent resentenced to 2 years’ imprisonment with non-parole period of 15 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr R F Edney | Doogue O’Brien George |
KYROU JA
HANSEN JA
COGHLAN JA:
On 15 June 2017, following a plea of guilty, the respondent was sentenced in the County Court at Melbourne as set out below:
Charge
Offence
Maximum
Sentence
Indictment 1. Indecent act with a child under 16 [s 47 of the Crimes Act 1958]. 10 years [s 47 of the Crimes Act 1958]. 3 months’ imprisonment followed by a Community Correction Order (‘CCO’) for a period of 2 years. Total Effective Sentence: As above. Non-Parole Period: Not applicable. Pre-Sentence Detention: Not applicable. 6AAA Statement: 5 months’ imprisonment with a CCO of 2 years. CCO special conditions:
· 80 hours unpaid community work;
· supervision; and
· specialised offending treatment and rehabilitation.
By Notice of Appeal dated 13 July 2017, the Director of Public Prosecutions (‘the Director’) appeals against that sentence on the following ground:
Ground 1 - The sentence imposed by the learned Sentencing Judge is manifestly inadequate in all the circumstances.
Particulars: In imposing a sentence of three months’ imprisonment and a Community Correction Order for a period of two years with special conditions, the learned Sentencing Judge:
(a) failed to properly reflect the nature and gravity of the offending;
(b) failed to give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence and specific deterrence;
(c) failed to have sufficient regard to the impact of the offending upon the victims and the breach of trust occasioned;
(d) failed to have sufficient regard to the maximum penalty for the offence;
(e) failed to have sufficient regard to the Respondent’s relevant prior conviction;
(f)failed to have sufficient regard to the Respondent’s lack of insight into his offending as an aggravating factor;
(g) gave excessive weight to the Respondent’s plea of guilty and remorse; and
(h) gave excessive weight to the factors in mitigation, in particular, the impact of a custodial sentence on the Respondent’s business and financial situation, health conditions and the report of Dr Rachel MacKenzie as to the Respondent’s low risk of re-offending.
It is common for the Director to make a complaint against a sentence in this way. The complaint is that the sentence is manifestly inadequate on the basis of the particulars set out. There is no specific error alleged.
It follows that the Director must demonstrate that the sentence imposed is wholly outside the range of sentences open to the sentencing judge in all the circumstances of the case. The Director sets out to make that proposition good by reference to the particulars.
The circumstances of the offending
On the plea, a prosecution opening was provided to her Honour and read into the record of the Court. The parties proceeded on the basis that the opening set out what had occurred.
Counsel for the respondent said to her Honour:
Yes, can I just indicate for the record, Your Honour, if it assists, that in relation to the opening as tendered, the matter resolved following negotiations and there is no dispute at all as to the factual matters that have been relied on by the Crown. Your Honour can properly treat that as an agreed statement of facts.[1]
[1]Transcript of Proceedings, DPP v Courtney (County Court of Victoria, CR 16-01350, Judge Wilmoth, 24 May 2017) 8.
Stated briefly, on 15 March 2016 the respondent was working as a cleaner at the home of the Keller family.[2] He cleaned at the home each Tuesday between 7.15 am and 10.30 am. When he was cleaning the room of the Kellers’ 6 year old daughter (‘the complainant’), he pushed her over onto the bed and pulled down her school shorts and underwear. He then licked her vagina. The complainant said that the conduct stopped when she pushed the respondent away. He did not stop her from going downstairs where she immediately told her mother what had happened.
[2]The surname ‘Keller’ is a pseudonym.
When confronted, the respondent basically said it was a misunderstanding and left. When the mother discussed the matter with the complainant she revealed that there had been an earlier occasion, or occasions, that the respondent had touched her on the vagina on the outside of her clothes.
In the prosecution opening, an event on 1 March 2016 describing such conduct was relied upon as an uncharged act.
The police were contacted and the complainant made a VARE at the Box Hill SOCIT commencing at 9.15 am on 15 March 2016. At 11.00 am she was taken to the Monash Hospital where she was examined and relevant swabs were taken. The complainant told the doctor that the respondent had kissed her on the cheek and mouth that morning, and that he had touched her anus with his fingers.
Analysis of the swabs and clothes produced the following results. The left and right cheek swabs, and inner front panel and gusset area of the complainant’s underpants returned positive results for saliva. Mixed DNA profiles from those same swabs were very strongly indicative of the saliva having been left by the respondent. In relation to a swab of the vulva, a partial single source male DNA profile was obtained. The respondent was not excluded.
When interviewed, the respondent said that the complainant had come into the room and said that her brother had broken her toys. He thought that she had jumped between him and the chest of drawers because she thought he might have vacuumed up part of her toys.
He found part of a toy and gave it to her. He thought that it was necessary to shift her to one side so he lifted her up by placing his hands on her hips.
He did provide a later description of the events to his psychologist, Dr Rachel MacKenzie, who stated in her report:
The account Mr. Courtney provided of his offending was inconsistent with what had been reported to the police. He explained that he would usually attend the [Keller] family home in the mornings in order to complete his cleaning duties. He stated that the young victim would often follow him as he worked and insist on taking the vacuum cleaner off him. He reported that when he would try to get it back she would resist and that it turned into a game in which she would often put the suction against his body. He stated it was not unusual for her to stand in front of him and obstruct his ability to vacuum certain areas, at times requiring him to physically move her aside. He denied that this had ever involved inappropriate or sexually motivated behaviour.
In regards to the events on the 15th March, 2016, Mr. Courtney stated that he had attended the [Keller] household early in the morning, as usual. He had commenced his cleaning duties upstairs when [the complainant] entered the room. She told him that her brother had broken one of her toys and that some of the parts were missing. He said that he listened while continuing to work and when he went to vacuum under the bed, she stopped him, retrieved one of the missing pieces and then jumped up onto the bed. He stated that she was clearly upset and that he pulled up her top and blew a ‘raspberry’ on her abdomen in an attempt to make her laugh and cheer her up. He was adamant that he did not make any genital contact.
When Mr. Courtney’s version of events was challenged on the basis of the findings of forensic [saliva] and DNA testing, he was unable to provide an explanation beyond suggesting that the [complainant] had transferred his saliva from her abdomen when she went to the toilet. He acknowledged that his behaviour had been inappropriate with the daughter of his employer, but remained steadfast in his claim that there had been no sexual contact or intent.[3]
[3]Exhibit 1: Report of Dr R MacKenzie dated 17 May 2017, [28]–[30].
Neither of those versions was persisted with on the plea.
There was a partial committal and after negotiations the respondent pleaded guilty on 19 October 2016. The evidence tested at the committal was the evidence of the complainant’s mother and some of the forensic evidence.
The respondent’s criminal history
The respondent has two prior court appearances. On 24 March 1995, he was fined $350 without conviction for unlawful assault and on 17 March 2000 he was convicted of indecent assault and sentenced to be imprisoned for 4 months. That term of imprisonment was suspended for 18 months.
The first matter, it was said, involved an attempted collection of a debt. The second matter involved the indecent assault of a comatose patient in a hospital where the respondent was working as a cleaner. The respondent told his psychologist that, in that matter, evidence was given by a nurse who said that she had observed him indecently assault the patient.[4]
[4]Ibid [27].
The respondent disputes the finding of guilt on each of those matters.
The plea hearing and sentencing remarks
It emerged on the plea that the respondent does not accept that he was involved in any wrongdoing on this occasion but he was prepared to plead guilty nonetheless.
Both of the complainant’s parents read victim impact statements to the Court on their own behalf, and on behalf of their daughter. They both describe the very significant effects these events have had on them and their daughter. The breach of trust which they have suffered is an important feature of the impact on them.
Her Honour dealt with the victim impact material but did not specifically refer to the already observed effects on the complainant as distinct from the possible effects in the future.
There were a number of matters put in mitigation on the plea and dealt with in the sentencing remarks. In particular, reliance was placed on the fact that Dr MacKenzie found the respondent to be of low risk of reoffending. The other matters relied upon were the respondent’s age, his health and the health of his wife, the fact that he might lose his house and business which he had successfully conducted for many years and the concern he would have about all of these matters when in prison, and the plea of guilty.
Dr MacKenzie expressed the following opinion:
In turning to the referral questions related to Mr. Courtney’s risk of recidivism, the judgement made, based on the information available, the results of the risk assessment tools, and the extant literature, is that he currently poses a low risk of reoffending. Specifically, he has few of the risk markers associated with sexual recidivism and possesses a number of protective factors, including concern over his wife’s welfare and keeping his cleaning business running. It is understandable that there might be some apprehension over Mr. Courtney’s denial of his offending, however research on sex offenders has shown that denying or minimizing their offences is not uncommon among this population and that there is also no link between the denial of sexual offending and recidivism. Although Mr. Courtney may initially be reluctant, I am of the opinion that his risk of recidivism would be further reduced through individual psychological treatment that not only assists him to develop more effective stress management skills, but also helps him to gain greater understanding and insight into his offending. The benefits of such treatment would be dependent on the establishment of good therapeutic rapport.[5]
[5]Ibid [79].
Her Honour referred to the prosecutor’s submissions that this was a serious example of a serious offence which warranted imprisonment. After referring to the victim impact statements, her Honour continued:
There is a high need for general deterrence in a case such as this and also for strong denunciation by the court. The legislature has provided for a maximum penalty of ten years’ imprisonment.
The community regards these crimes with great abhorrence as appalling intrusions on the innocence of young children and they must be severely punished.
I was referred to the case of Soo v R, a case involving indecent assault of a child the same age as the complainant as well as other related charges. The offender in that case was sentenced, after a trial, to four and a half years imprisonment on the individual charge. The issue of trust in that case was of a different nature in that the offender was actually babysitting the child and had done so for a long time. The charges overall are more serious and there are sufficient dissimilarities to distinguish the case. It appears that there are no other comparable cases.
The mitigating circumstances in this case call for some leniency to be reflected by a short prison term combined with a Community Correction Order. This combination provides for punishment which in your circumstances will be deservedly severe, but also provides for further punishment to be carried out while you are once again living in the community and undergoing specific programs to improve your prospects for rehabilitation.[6]
[6]DPP v Courtney [2017] VCC 799 [37]–[40] (citations omitted).
It should be noted that the part of the conduct referred to in R v Soo[7] was very similar to that in this case. The similar conduct attracted a sentence of four and a half years’ imprisonment. The Court in Soo carried out a careful analysis of sentences for this offence. It is true that there are differences between Soo and the respondent. In Soo, the sentence was after a trial and the breach of trust more significant.
[7][2014] VSCA 304 (Weinberg, Whelan and Santamaria JJA).
The importance of Soo in this case was not only that the sentence in Soo was an example of a sentence which had been imposed for similar conduct, but that the analysis of other cases demonstrated how seriously conduct of this kind is to be regarded.
In her reasons for sentence, her Honour placed much emphasis on the conclusions of Dr MacKenzie and on the personal circumstances of the respondent referred to in [23].
Parties’ submissions
On appeal, the Director made submissions relating to each particular but placed emphasis on the gravity of the offending, just punishment, denunciation and deterrence. It was submitted that the sentence imposed was well outside the available range.
The respondent submitted that all of the findings made by the learned sentencing judge were open to her. Although the sentence was merciful, it was within the available range particularly when a two year CCO is taken into account. In relation to what was said on sentencing set out above, her Honour did treat the offending as serious and requiring severe punishment. Her Honour then imposed a sentence which she regarded as severe for the respondent in his circumstances.
Analysis
In deciding the question of whether a sentence is manifestly inadequate, the test to be applied is set out in Director of Public Prosecutions v Karazisis.[8] The Court said:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[9]
[8](2010) 31 VR 634 (‘Karazisis’).
[9]Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (citations omitted).
The reference to the High Court is a reference to Lowndes v The Queen.[10]
[10](1999) 195 CLR 665, 672.
That leaves open the question of what might be regarded as the available range.
In Barbaro v The Queen,[11] the High Court said:
Reference to an ‘available range’ of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court’s order ‘is unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’. In the field of sentencing appeals, this kind of error is usually referred to as ‘manifest excess’ or ‘manifest inadequacy’. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some ‘substantial wrong has in fact occurred’ in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.[12]
[11](2014) 253 CLR 58 (‘Barbaro’).
[12]Barbaro (2014) 253 CLR 58, 70 [26]–[27] (French CJ, Hayne, Kiefel and Bell JJ) (citations omitted) (emphasis in original).
This was a serious example of a serious offence which carried a maximum of 10 years’ imprisonment. The complainant was only 6 years old. The offending occurred in her bedroom. The offence involved a serious breach of trust. The offending had followed the earlier uncharged act which demonstrated that the conduct was not isolated. The respondent has an old, but relevant, prior conviction also involving sexual offending in breach of trust with a vulnerable victim.
Although the respondent did plead guilty and must receive some reduction in sentence because of that, he does not accept he offended as described, demonstrating an absence of remorse and lack of insight. He has a similar attitude to his earlier offending. The matters put as to his personal circumstances and those of his wife did merit consideration when sentencing.
We are mindful of the constraints which are to be applied to appeals by the Director.[13] However, with due allowance being made for the mitigating circumstances, the sentence of three months’ imprisonment is manifestly inadequate because it falls far short of reflecting the gravity of the respondent’s offending. It then must be decided whether the additional requirement of a CCO for two years can bring the sentence within range. We are satisfied that it cannot even remotely do so.
[13]DPP v Zhuang (2015) 250 A Crim R 282, 295–7 [40]–[42].
Just punishment, denunciation and deterrence, even having regard to those matters which can be put in mitigation, required the imposition of a substantial term of imprisonment. While the CCO is punitive in nature, its punitive element is insufficient to reflect the gravity of the respondent’s offending. The combination sentence in the present case is wholly outside the range of available sentences.
As the possibility of resentencing arose, the respondent was given an opportunity to make submissions about anything which might have occurred since sentence which the Court should take into account in deciding whether a different sentence should be imposed. The respondent submitted that:
· he has been assaulted twice whilst in custody;
· his house had now been sold and he will reside with his daughters on release;
· his cleaning business had ceased operation; and
· his marriage was now at an end.
The last three matters were confirmed in an affidavit of Nicole Bennett, the respondent’s daughter, affirmed on 25 August 2017.
The Director agreed to have enquiries made about what had happened to the respondent since he had been in custody. The Director filed an affidavit sworn on 23 August 2017 by Jennifer Hosking, the Acting Assistant Commissioner, Sentence Management Division, of Corrections Victoria. In her affidavit, Ms Hosking swore that:
· When the respondent had been admitted to prison, another prisoner stole some of his belongings. The circumstances of the theft are unknown and the respondent has recently said he has no recollection of the incident.
· As a result of what could be seen on CCTV, a prisoner has been dealt with for the theft of the respondent’s belongings.
· The respondent is being treated as a protection prisoner because of the nature of the offence for which he has been imprisoned.
· The respondent is being held in a minimum security facility.
· The authorities regard his status as a protection prisoner manageable in that facility.
· There is no record of the respondent having been assaulted.
Subsequently, an affidavit affirmed by the respondent on 28 August 2017 was filed. In that affidavit the respondent describes three frightening incidents which had occurred at Melbourne Assessment Prison (‘MAP’) in the first two days he was in custody. They do not appear to have involved any actual violence to him. There have been no further incidents.
We would give some weight to the incidents which occurred at MAP but there is nothing in any of the other material which detrimentally alters the position of the respondent as it was at the time of sentence. If anything, his long term prospects are now clearer.
It was strongly pressed by the respondent that this is a case where the Court should refuse to intervene on the basis of its residual discretion.[14] In our opinion, the sentence imposed in this case is inadequate to such a degree that it would not be appropriate for the Court to exercise that discretion.
[14]Karazisis (2010) 31 VR 634.
We have also considered whether a sentence which imposes a CCO in combination with a term of imprisonment of up to one year is within range. We are satisfied that a sentence in which the maximum custodial sentence would be 12 months is outside the appropriate range.
Having regard to all of the matters put on the plea and the additional matters put on the appeal, we would resentence the respondent to 2 years’ imprisonment and fix a non-parole period of 15 months.
Pursuant to s 6AAA of the Sentencing Act 1991, a declaration will be made that, but for the respondent’s plea of guilty, we would have sentenced him to a total effective sentence of 3 years’ imprisonment with a non-parole period of 2 years.
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