DPP (Cth) v Haynes
[2017] VSCA 79
•6 April 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0160
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| CONNOR HAYNES | Respondent |
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| JUDGES: | REDLICH, WEINBERG and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 March 2017 |
| DATE OF JUDGMENT: | 6 April 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 79 |
| JUDGMENT APPEALED FROM: | DPP v Haynes (Unreported, County Court of Victoria, Judge Quin, 18 July 2016)) |
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CRIMINAL LAW – Sentence – Crown appeal – Sexual offending or harassment via the internet – Offences under the Criminal Code (Cth), ss 474.25A and 474.26 – Use of false identity – Use of social media to blackmail children into sexual activity – Total effective sentence of 30 months with 10 months pre-release period under recognisance release order (‘RRO’) – Whether manifestly inadequate – Individual sentences and total effective sentence low but not egregiously so – Pre-release period manifestly inadequate – Residual discretion to dismiss appeal – Tector v The Queen (2008) 186 A Crim R 133; R v Gajjar (2008) 192 A Crim R 76; DPP (Cth) v Hizhnikov [2008] VSCA 269; R v Fuller [2010] NSWCCA 192; R v Leask (2013) 236 A Crim R 1; DPP v Chatterton [2014] VSCA 1; DPP (Cth) v Walls [2014] VSCA 323; R v Engeln [2014] QCA 313; R v Tahiraj [2014] QCA 353; DPP v Watson [2016] VSCA 73; DPP (Cth) v Boyles [2016] VSCA 267, discussed
.
CRIMINAL LAW – Crown appeals – Obligations on prosecution during plea in mitigation – Sentence not in excess of 3 years – RRO mandatory – Failure of prosecution to oppose disposition of RRO or likely pre-release period – Whether Director should be permitted to challenge sentences imposed – Whether amendment to ground of appeal to attack pre-release period of 10 months should be allowed – Nature of pre-release period discussed – Burden on Crown on plea not lessened by Barbaro v The Queen (2014) 253 CLR 58 – Obligation to explain relevance of statistics and tables of cases – DPP (Cth) v Thomas [2016] VSCA 237, discussed – Leave to amend refused – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms M Fox QC with Ms S Keating | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For the Respondent | Mr P J Doyle | Slater and Gordon |
REDLICH JA
WEINBERG JA
McLEISH JA:
The respondent pleaded guilty in the County Court to nine charges relating to sexual offending or harassment via the internet. He was sentenced to 30 months’ imprisonment on a recognisance release order (‘RRO’) with a pre-release period of 10 months. The Commonwealth Director of Public Prosecutions appeals against the sentence on the ground that the individual sentences and total effective sentence are manifestly inadequate. The Director seeks leave to amend her ground of appeal to also challenge the pre-release period.
Summary of conclusions
We would dismiss the appeal on the existing ground for the following reasons. The individual sentences and the total effective sentence are properly to be described as low, but not manifestly inadequate. Further, the prosecution did not take issue on the plea with the submission that a RRO was an appropriate disposition, accepting in effect that the total effective sentence could not exceed three years. The failure of the prosecution to take issue with that disposition stands in the way of the Director now challenging the total effective sentence or the individual sentences on grounds of manifest inadequacy.
Having regard to the failure of the prosecution on the plea to challenge the appropriateness of a RRO and to make any submission at all as to the period before which the recognisance could take effect (the pre-release period), along with the lateness of the application to challenge the length of the pre-release period, we would refuse the application to amend the ground of appeal to now assert the pre‑release period is manifestly inadequate. Had we allowed the amendment we would have exercised the residual discretion to dismiss the appeal against the pre‑release period. Nevertheless, for the purpose of future guidance as to sentencing principles and standards, we should state that the immediate term of imprisonment of the pre-release period of 10 months is manifestly inadequate.
Overview of Charges
Following a plea on 16 June 2016, the respondent was sentenced as follows:
Charge Complainant[1]
Offence Maximum Sentence Commence date (Cumulation) 1 Jennifer Hughes
Use a carriage service to menace, harass or cause offence [Criminal Code (Cth) s 474.17(1)] 3 years [Criminal Code (Cth) s 474.17(1)] 6 months 18 August 2017
(4 months)2 Jake Bridges
Use a carriage service to transmit an indecent communication to a person under 16 [Criminal Code (Cth) s 474.27A(1)] 7 years [Criminal Code (Cth) s 474.27A(1)] 4 months 18 August 2018
(2 months)3 Debra Morris
Use a carriage service to procure a person under 16 for sexual activity [Criminal Code (Cth) s 474.26(1)] 15 years [Criminal Code (Cth) s 474.26(1)] 6 months 18 August 2017
(2 months)4 Kathleen James
Use a carriage service to procure a person under 16 for sexual activity 15 years 6 months 18 July 2016 (N/A) 5 Kathleen James
Use a carriage service to engage in sexual activity with a child under 16 [Criminal Code (Cth) s 474.25A(1)] 15 years [Criminal Code (Cth) s 474.25A(1)] 15 months 18 July 2016 (Base sentence) [1]Pseudonyms as used in Sentencing Remarks, DPP v Haynes (Unreported, County Court of Victoria, Judge Quin, 18 July 2016) (‘Reasons’).
| Charge | Complainant | Offence | Maximum | Sentence | Commence date (Cumulation) | ||
| 6 | Abbie Davidson | Use a carriage service to procure a person under 16 for sexual activity | 15 years | 6 months | 18 December 2017 (2 months) | ||
| 7 | Diane Smith | Use a carriage service to procure a person under 16 for sexual activity | 15 years | 6 months | 18 February 2018 (2 months) | ||
| 8 | Leonie Young | Use a carriage service to menace, harass or cause offence | 3 years | 1 month | 18 December 2018 (1 month cumulation) | ||
| 9 | Angela Jackson | Use a carriage service to procure a person under 16 for sexual activity | 15 years | 6 months | 18 April 2018 (2 months) | ||
| Total Effective Sentence: | 30 months’ imprisonment | ||||||
| Pre-release Period and Recognisance | Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), ordered to be released after having served 10 months on a recognisance of $1,000 to be of good behaviour for a period of 2 years. | ||||||
| Pre-sentence Detention Declared: | Nil | ||||||
| 6AAA Statement: | 4 years imprisonment, with a non-parole period of 2 years | ||||||
| Other orders: Supervision by Corrections for 2 years. To be assessed for suitability and, if suitable, attend treatment for sex offender programs as directed. | |||||||
Charge 5, the most serious charge, formed the base sentence. Orders as to the commencement date of each sentence were made in accordance with s 19 of the Crimes Act 1914 (Cth) (‘the Act’).[2]
[2]The Act stipulates, in s 19(2), that where: (a) a person is convicted of 2 or more federal offences at the same sitting; and, (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
All of the offences, save for s 474.17(1) (charges 1 and 8), fall under the subheading of ‘Offences relating to use of carriage service for child pornography material or child abuse material’ (Subdivision D) in the Criminal Code Act 1995 (Cth) (‘the Code’). The offences of using a carriage service to engage in sexual activity with a child under 16 (s 474.25A) and using a carriage service to procure a person under 16 for sexual activity (s 474.26(1)) are the most serious offences, each attracting a maximum penalty of 15 years’ imprisonment. Despite its seriousness, using a carriage service to menace, harass or cause offence (s 474.17(1)) carries a maximum penalty of only three years’ imprisonment, while using a carriage service to transmit an indecent communication to person under 16 (s 474.27A(1)) carries a maximum penalty of seven years’ imprisonment.
Circumstances of the offending
The sentencing judge set out the background to the respondent’s offending as follows:
This offending relates to your on-line communications and SMS messages with one boy and five girls under 16 years or aged between 12 and 15, and with two adult females … You set up an account on an adult dating website, oasis.com, using your own details but had little success. On 7 May 2014 you created a false profile with the name ‘Mason Evans’. You also used a false photograph depicting a man more attractive than yourself. You spoke with a number of females, using this false identity. You created a Facebook profile in the name and using that photograph. You also included false details as to your age, 24, suburb and job. At this time you were in fact aged 28 and employed as an administrative officer with Victoria Police. During the course of this offending communication with each individual was via SMS, Facebook or Skype. Adopting these means of communication meant that your true identity was not revealed to them.[3]
[3]Reasons [2]-[4].
Charge 1 related to the adult victim, Jennifer Hughes, who engaged in consensual sexual conversations with a person she believed to be ‘Mason Evans’ but was in fact the respondent. Hughes willingly provided the respondent with nude photos and videos of herself performing sexual acts. When she received a true photo of the respondent, however, she became ‘very concerned about who she’d been communicating with’ and asked the respondent to delete the photos and videos she had sent him.[4] The respondent refused and attempted to blackmail the victim into having sex with him for money. He threatened to ‘destroy her reputation’ and to ‘show all the photos and videos of her to friends, family and work colleagues’ unless she agreed to ‘fuck Connor Haynes’.[5] As the learned sentencing judge observed, while the offending occurred over a period of almost two months, the most disturbing exchanges took place on 5 July 2014. Hughes subsequently spoke to the police on 17 July 2014 and provided them with the details of these exchanges.
[4]Ibid [5]-[6]
[5]Ibid [7].
Charge 8 related to the other adult victim, Leonie Young, who met ‘Mason Evans’ on oasis.com around April 2014. She too engaged in consensual sexual conversations with the respondent under the false pretence that he was ‘Mason Evans’. These conversations came to a halt, two months later, on 24 June 2014:
On this day you requested that she Skype you with pictures of her naked breasts and of her masturbating. She became suspicious of your identity and asked you to Skype her to show her who you were. You then revealed your true identity to her, showing a photo of yourself whilst wearing a police polo top. When she realised your deceit she was angry. You threatened to put her recordings that she had provided to you, on Skype, out in the public. You later told her that you would not but she did not believe you. You told her your name was Connor and that you had deleted all the pictures and videos of herself. She told you to stop contacting her and you had no further contact.[6]
[6]Ibid [8].
Charge 2 relates to the 14 year old Jake Bridges, who met ‘Mason Evans’ on Facebook, and between 21 May and 22 June 2014 was encouraged to recruit female friends for him. The respondent proposed various sexual activities that he and Bridges might engage in with girls as young as 13. He told Bridges he could furnish older women with whom both could engage in sexual activity and described at length his ‘insight into how to control women’.[7] Two of his other victims, namely Abbie Davidson and Kathleen James, were discussed during these conversations.
[7]Ibid [9].
Between 21 May and 27 July 2014 the respondent’s Facebook friendship with Bridges led him to befriend Debra Morris, aged 12, Abbie Davidson, aged 15, Diane Smith and Angela Jackson, both aged 13, and Kathleen James, aged 15.[8] Each Facebook request, sent out as ‘Mason Evans’, was accepted.
[8]These were the ages of the victims at the time of the offending.
Charge 3 relates to Debra Morris, whom the respondent contacted between 21 May and 27 July 2014, encouraging her to provide photos of herself (‘bra pics’). She did not provide the requested photos. The respondent inquired as to the nature of, and progress of, her sexual relationship with Jake Bridges.[9] He asked her to go on a date with him, for her mobile number, and for phone sex. She replied that her phone was broken and cut off contact.
[9]Reasons [10].
Charge 6 relates to Abbie Davidson, whom the respondent befriended on 19 June 2014, lying that he was aged 19. On 20 June 2014, over Facebook and Skype, he was informed that Davidson ‘cut herself’ and that she ‘did not want to do anything sexual with [him]’.[10] Despite this, he repeatedly encouraged her to engage in sexual acts with him, seeking to gain her trust and confidence. These exchanges ended with the respondent abusing her and Davidson revealing that she was scared of him.
[10]Ibid [12].
Charge 9 relates to Angela Jackson, whom the respondent befriended on 7 July 2014, lying that he was aged 17. He informed her that he wanted to meet her in person and engage in sexual activity with her. He asked her to upload nude photos of herself for his gratification. A few days later, he again requested nude photos, which she refused. There was no further communication between them.[11]
[11]Ibid [13].
Charge 7 relates to Diane Smith, whom the respondent befriended between 20 June and 27 July 2014, lying that he was aged 17 and then later 18. He asked her to send him a photo of her without her skirt and to have phone sex with him. She declined these requests.
Charges 4 and 5 relate to Kathleen James, whom the respondent befriended between 22 May and 7 July 2014, lying that he was 19. He contacted her 11 times on Facebook and asked her four times to contact him via Skype or Facetime. He asked her ‘for sex’ and, several times, ‘for a sexy pic’; she sent him ‘about four or five photos of her breasts’.[12] They then engaged in a Skype call in which he successfully directed her to video herself masturbating. He requested further video calls of this nature and, when she refused to comply, abused her, telling her to ‘get on Skype and prove u love me’, calling her a ‘fucking liar’, a ‘fat lying bitch’ and a ‘stupid slut’ who ‘deserves to die alone’. The victim did not respond. As the sentencing judge correctly noted, the objective gravity of the respondent’s offending in relation to Ms James was greater than that in relation to the other underage victims, all of whom rejected his lewd requests.
[12]Ibid [15].
On 26 June 2014 the second adult victim, Ms Young, went to the police to discuss the exchanges she had had with ‘Mason Evans’ and Connor Haynes. She provided police with a photo the respondent had earlier sent her of himself posing in his police polo shirt. The first adult victim, Ms Hughes, then came forward on 17 July 2014 to complain about ‘Mason Evans’ and allowed police to analyse her mobile phone.[13]
[13]Ibid [16].
On 15 August 2014 the respondent was arrested at his place of work. His mobile phone, tablet device and home computer were seized. It was subsequently discovered, upon examining these devices, that he had been interacting with children online. The scope of the investigation then widened to include the underage victims.
On 28 October 2014 the underage complainant Kathleen James went to the police and participated in a VARE. She described the increasingly sexual and aggressive exchanges she had had with ‘Mason Evans’ and said that she had done things that she did not wish to do. She said she had asked to see the respondent several times but he had repeatedly given the excuse that his camera was broken.[14]
[14]Ibid [18].
The respondent was interviewed in December 2014 and provided a full explanation for his offending in relation to the adult victims. He did not, however, offer an explanation in relation to the underage victims. He claimed not to remember many of the online communications he had had, due to the large number of conversations he had participated in simultaneously.[15] He further claimed to have been suffering from long-term depression and indicated that his behaviour towards the adult victims was designed to make them angry rather than coerce them into having sex with him.[16] Significantly, as her Honour noted in her sentencing reasons, he attempted to rationalise his behaviour by way of his immaturity and lack of real-world experience:
You had had bad experiences with women and no confidence about forming relationships with them. You were sexually inexperienced. [‘Mason Evans’] was everything that you were not. He was attractive in the photo. This identity began to take over your life. The on-line conversations became an addiction, having people to talk to and receiving countless messages. You said you that you did not want to stop as you felt desired and wanted.[17]
[15]Ibid [19].
[16]Ibid [20]-[21].
[17]Ibid [21].
The respondent was referred to the social worker Mr Bruce Perham who was called by the respondent on the plea. Mr Perham began to see the respondent in August 2014. At first the respondent ‘referred to [the fact that] he had been terminated from the police … and that there were criminal investigations going on’ but ‘didn’t really say a lot about the full nature of them’. It was only later on that there were ‘more conversations’ about ‘what had actually happened and the situation that he was in’. Perham considered that the respondent continued to show a lack of insight into his offending. It was only 20 months later, according to Perham, that he was able to ‘recognise … [that] this behaviour has had an impact on … other people’.
The respondent tendered a report by and called the forensic psychologist, Mr Patrick Newton, on the plea. Despite the respondent’s persistent depression, it was not suggested that he was suffering from a ‘major depressive disorder’ that would enliven the principles in R v Verdins.[18] Mr Newton testified that the respondent had initially claimed to have ‘very little specific recollection of his contact with underage individuals’ but that, ‘as I found that, frankly, not believable’, he had pressed him further. This led him to discover a disjunction between the respondent’s claims of ‘I don’t recall’ and ‘I didn’t directly target [children]’ and other statements such as ‘I thought they would be more likely to do what … I wanted’. The respondent, according to Mr Newton, now acknowledges the ‘issue around … [the] age of the children’. He recommended that this be ‘targeted directly’ in treatment, namely in the ‘specific specialist sex offender’ programme, and that this would ‘reduce the risk of recidivism’. Mr Newton assessed the respondent as being at the ‘moderate level’ in terms of his risk of reoffending. It was also submitted by counsel for the respondent on the plea that, in general, ‘those who engage in procuring are less likely to engage in further contact-based offences subsequent to their first prosecution for procuring.’ It was submitted on the plea and repeated on appeal that, unlike in more serious cases of procuring, the respondent had had no physical contact with his victims.
[18](2007) 16 VR 269 (‘Verdins’).
Ground of appeal
The Director appeals on the following ground:
The individual sentences imposed on charges 1 to 9 and the total effective sentence imposed on the Respondent are manifestly inadequate.
Particulars
The individual sentences do not adequately reflect the nature and circumstances of the offending, including the maximum penalties prescribed for the offences; and
The sentences do not adequately reflect the principles of general deterrence, punishment and denunciation; and
The sentences do not give due regard to totality in sentencing in accordance with Pearce v The Queen (1998) 194 CLR 610; and
The degree of cumulation ordered between the sentences imposed on charges 1, 2, 3, 6, 7 and 9 and the absence of any order for accumulation between the sentences imposed on charges 4 and 5, does not adequately reflect the distinct instances of offending and different forms of criminality; and
The sentences do not adhere to the requirement for national sentencing standards for federal offences; and
The sentences demonstrate that too much weight was placed on the guilty plea.
During the course of senior counsel for the Director’s oral submissions on appeal, attention was drawn to the fact that the ground did not address a contention that the Director apparently wished to pursue, namely that the pre-release period of 10 months’ immediate custody was wholly inadequate. Senior counsel then sought leave to add the pre-release period to the ground of manifest inadequacy. The Court heard argument as to whether leave should be granted to so amend the ground and reserved its decision.
It is convenient to first address the ground as presently formulated before turning to the application to amend.
There are a number of factors relevant to the making of a RRO and the fixing of a pre-release period before which the recognisance will take effect. First, s 16A(1) and (2) of the Act governs the making of a RRO, requiring that it be of a severity appropriate to the offence. Secondly, under s 19AC(1), a RRO can only be made if the aggregate sentence does not exceed three years. Thirdly, under ss 19AC(1) and 19AC(3)(b), a RRO must be set where the sentence is more than six months but does not exceed three years. The recognisance release may be ordered to take effect at any time within the period of the sentence, ‘from the time at which the sentence is imposed to a very short time before it expires’.[19] Fourthly, the principles that relate to the fixing of a non-parole period are generally applicable to a RRO, namely the pre-release period must be the minimum period which, according to accepted principles of sentencing, the prisoner should serve in custody before his punishment is mitigated in favour of his rehabilitation.[20] The rationale applicable to the determination of a non-parole period is substantially applicable to the ascertainment of the proportion of the sentence, if any, which should be suspended.[21] The unsuspended portion of the sentence must be the period ‘before the expiration of which, release of the offender would be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify’.[22] Sixth, necessary deterrent and punitive principles must be reflected in both the head sentence and the provision for early release, although they will generally be afforded different weight.[23]
[19]Hili v The Queen (2010) 242 CLR 520, 529 [27] (‘Hili’).
[20]Power v The Queen (1974) 131 CLR 623, 627; Deakin v The Queen (1984) 54 ALR 765, 766; Hili (2010) 242 CLR 520, 533 [40].
[21]R v Groom [1999] 2 VR 159.
[22]Ibid 169 [38] (Batt JA).
[23]Bugmy v The Queen (1990) 169 CLR 525, 532; R v Ruha (2010) 198 A Crim R 430, 443 [45].
Whether the individual sentences and total effective sentence are manifestly inadequate ?
It is well settled that 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. It must be demonstrated that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which she did if proper weight had been given to all the relevant circumstances of the offending and the offender.[24]
[24]DPP v Karazisis (2010) 31 VR 634, 662–3 [127].
Senior counsel for the Director submits that the sentences are such that her Honour must have erred in principle even though specific error is not apparent from her sentencing reasons. Counsel drew attention to the fact that general deterrence is the paramount sentencing consideration for online offending against children. She referred to R v Gajjar[25] and Director of Public Prosecutions (Cth) v Hizhnikov[26] where this Court reiterated the primacy of deterrence, both general and specific, in sentencing for this kind of offence. It was said that the recent decision of this Court in Director of Public Prosecutions (Cth) v Watson,[27] though concerned with offending of a more serious order, underlined the primacy of denunciation and deterrence in sentencing offenders who use the internet for the purposes of receiving and transmitting pornographic material involving children.
[25](2008) 192 A Crim R 76 (‘Gajjar’).
[26][2008] VSCA 269 (‘Hizhnikov’).
[27][2016] VSCA 73 [33] (‘Watson’).
Counsel for the Director made particular reference to the following aspects of the respondent’s offending. First, that online offending is hard to detect and that the respondent had used a false identity. Secondly, that his offending was over a prolonged period and involved eight victims, six of whom were children, and that his victims were real rather than undercover police officers.[28] Thirdly, that the respondent was much older than his victims. Fourthly, that the offending under charges 4 and 5 called for a substantial sentence and substantial cumulation. Fifthly, that the respondent did not cease offending until he was caught. Sixthly, that he lacked insight as to the seriousness of his offending, particularly with the child victims. It was submitted, based on these features, that his conduct was objectively serious despite the fact that he did not meet any of his victims.[29]
[28]Many of the cases cited in support of the Crown case involve undercover police officers posing online as teenagers and young children: see, eg, R v Fuller [2010] NSWCCA 86 (‘Fuller’); Hizhnikov (2008) 192 A Crim R 69; R v Poynder (2007) 171 A Crim R 544; Tector v The Queen (2008) 186 A Crim R 133 (‘Tector’); Gajjar (2008) 192 A Crim R 76.
[29]Gifford v The Queen [2016] NSWCCA 302 [106]; Fuller [2010] NSWCCA 86.
Senior counsel submitted in oral argument that the prosecutor had said during the plea that an immediate and substantial term of imprisonment was required. A reading of the transcript discloses only that the prosecutor said that there should be an ‘immediate’ term of imprisonment without any elaboration. In his written submissions the prosecutor submitted that a ‘substantial custodial sentence’ was appropriate.
It was also submitted in the Director’s written case that, having regard to the s 6AAA statement, her Honour had discounted the head sentence by almost 40 per cent for the plea of guilty and almost 60 per cent in fixing the RRO. Thus it was said that the sentencing judge must have given too much weight to the respondent’s plea of guilty and its ‘utilitarian benefit’. In Director of Public Prosecutions (Cth) v Garside,[30] this Court repeated its earlier observation in R v Burke,[31] that a complaint about the sentence discount can only be a complaint about the weight attributed to one particular sentencing consideration. It is now well settled that the s 6AAA statement cannot be used to establish a specific error in the discount for the plea of guilty. The Director does not in any event allege specific error in her ground. In the context of a ground of manifest inadequacy, as with any argument about weight, the question is whether the sentence imposed was one that was reasonably open to the sentencing judge.[32]
[30][2016] VSCA 74 [46]-[47] (‘Garside’).
[31](2009) 21 VR 471.
[32]Ibid 477 [31]-[32].
The sentencing judge plainly attached considerable weight to the expert evidence, particularly that of the forensic psychologist, Mr Newton. In her reasons she carefully explained that the purpose of making the RRO was, in light of the respondent’s prospects for rehabilitation, to give him the earliest possible access to the Sex Offender Treatment Program so that he might ‘continue to work on his issues’ and ‘ultimately make a valuable contribution to society.’[33] The prosecutor provided her Honour with a chart of tables and cases, although he said that none were ‘particularly on point’.[34] The importance of the practice of providing cases to assist the judge was recognised by the majority in Barbaro v The Queen.[35] But the prosecutor did not explain the relevance of the tables or the individual cases and said nothing as to the respondent’s lengthy submission to the effect that her Honour should impose a RRO.
[33]Reasons [67].
[34]Ibid.
[35](2014) 253 CLR 58 (‘Barbaro’).
Comparable cases play an important role in advancing the underlying value of equality under the law and the search for unifying principles in the task of sentencing. Gleeson CJ, in Wong v The Queen,[36] emphasised that the criminal justice system must be systematic and fair and that this systematic fairness necessitates reasonable consistency:
The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner.[37]
[36](2001) 207 CLR 584.
[37]Ibid 591 [6] (emphasis added).
The plurality in Hili and the Court in Elias v The Queen[38] repeated these observations. In R v Pham,[39] French CJ, Keane and Nettle JJ further observed that comparable cases serve a twofold purpose, namely they provide ‘guidance as to the identification and application of relevant sentencing principles’ and may ‘yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.’[40] Hili, Barbaro and Pham reiterate that comparable cases do not mark the outer bounds of the sentencing discretion, although they may ‘establish a range of sentences which have been imposed’ and serve as ‘a “yardstick” against which to examine a proposed sentence.’[41] Drawing upon these observations, Redlich JA (with whom Tate and Whelan JJA agreed) said in Nguyen v The Queen:
Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases.[42]
[38](2013) 248 CLR 483.
[39](2015) 256 CLR 550 (‘Pham’).
[40]Ibid 558 [26].
[41]Nguyen v The Queen [2016] VSCA 198 [71].
[42]Ibid [72].
It was acknowledged in oral argument that, as this Court observed in Director of Public Prosecutions (Cth) v Thomas,[43] statistics and tables of cases can only be of assistance to a sentencing judge if they are spoken to by counsel; that is, if their precise relevance for the sentencing task is actually explained.[44] It was accepted that the limited number of relevant comparable cases did not lessen the need for the prosecution to make clear its position as to where the sentencing range fell. That could be done by reference to broadly ‘like’ or ‘unlike’ cases. Such a submission would have been of particular significance if the prosecutor had intended to submit, as the Director effectively contends, that the disposition of a RRO was inappropriate.
[43][2016] VSCA 237.
[44]Ibid [184]-[186].
With these considerations in mind we turn to relevant cases, some of which were relied on in the present appeal. Reference was made on appeal to what appears to be the only two intermediate appellate decisions concerning ‘engaging’ under s 474.25A: R v Leask[45] and Watson. The respondent in Leask pleaded guilty to five charges under s 474.25A and four under s 474.17 (the basis for charges 1 and 8 in the present appeal). He received a total effective sentence of three years and six months’ imprisonment, wholly suspended, conditional upon his entering into a three year recognisance. The offending in that case took place over an 18 month period. It was objectively more serious than the conduct the subject of the present appeal. For example, over Skype, one of the victims was persuaded to insert a hairbrush into her vagina and observed the offender masturbating and ejaculating. Other victims were harassed and blackmailed into sexual performances. They were told that photos and videos would be released to their families, friends and schools. The sentence was challenged by the Director on grounds of manifest inadequacy. Mazza JA (with whom Buss and Newnes JJA agreed) observed that normally these sorts of offences attract an immediate term of imprisonment because of the paramount public interest in protecting children from sexual abuse:
For my part, because of the seriousness of the offending and the need for general deterrence, if I had sentenced the respondent at first instance I would probably have ordered him to serve some of the sentence in prison. His Honour’s decision to release the respondent immediately was a lenient, some would say very lenient, disposition. However, I have not been persuaded that his Honour’s decision was erroneous, particularly having regard to the respondent’s age, immaturity, naivety and mental state at the time he committed the offences. These factors very much reduced the respondent’s appreciation of the inappropriateness of what he had done and diminished his culpability. His Honour’s order, which included supervision and community work, was carefully crafted to the respondent’s particular circumstances.[46]
There were particular mitigating circumstances which contributed to the conclusion that the sentence was not manifestly inadequate despite the duration of the offending and its seriousness.[47]
[45](2013) 236 A Crim R 1 (‘Leask’).
[46]Ibid 15-16 [97].
[47]The offender in Leask had specific mitigating circumstances. He had been ‘cyber bullied’ in a manner similar to what he subsequently inflicted upon his victims [26].
The offending in Watson took place over a period of almost three years and attracted 27 charges in relation to 71 child victims. The offender used fake social media accounts to make contact with his victims, procured child pornography from 43 of those victims, solicited child pornography from 10 victims and harassed a further 18 victims in an effort to obtain child pornography from them. He also continued to offend while on bail. He was sentenced to 7 years’ imprisonment with a non-parole period of 4 years and 8 months. On appeal the total effective sentence was found by the majority (Redlich and Beach JJA) to be manifestly inadequate and he was resentenced to 10 years’ imprisonment with a non-parole period of 7 years and 3 months. On the sole charge of ‘engaging’ the offender was sentenced at first instance to 3 years and six months’ imprisonment with nil cumulation. Under the revised sentence, the term of imprisonment remained the same, but three months’ cumulation was ordered.
As there are only two appellate decisions concerned with ‘engaging in sexual activity’ it cannot be said that there is a current sentencing practice or an identifiable range for this offence.
There is a spread of cases concerning ‘procuring’ under s 474.26, some of which involve conduct very similar to that which forms the basis of ‘engaging’ under s 474.25A. Both offences carry the same maximum term. Director of Public Prosecutions v Chatterton,[48] Fuller, and R v Tahiraj[49] are concerned with the offence of ‘procuring’ and may provide some guidance as to an appropriate sentencing range for ‘engaging’ in sexual activity over the internet.
[48][2014] VSCA 1 (‘Chatterton’).
[49][2014] QCA 353 (‘Tahiraj’).
Chatterton involved a 36 year old offender who used online chat rooms to converse in a sexually explicit manner with young males under the age of 16. He spoke on Skype with one boy and they masturbated for each other to see. He then arranged a meeting with this victim in order to have a threesome with him, but was arrested before this could take place, having been reported to the police by a vigilante. He was considered a ‘high risk’ of reoffending. He faced a total of nine charges (eight indictable, one summary) of which two were Commonwealth charges (ss 474.27A and 474.26) and seven were State charges. His total effective sentence, at first instance, was three months’ imprisonment with a three year community correction order (‘CCO’) concurrent on all charges. This was increased, on appeal, to four years’ imprisonment with a non-parole period of two years and six months for the State charges; the Commonwealth sentences were to be served wholly concurrently with the State sentences so as to avoid ‘the extraordinary complexities associated with achieving cumulation between Commonwealth and State sentences.’[50] The Court also noted that the individual sentences had been ‘adjusted downwards somewhat in order to avoid the risk of double punishment.’[51] The individual sentence for procuring contrary to s 474.26 was six months’ imprisonment.
[50]Chatterton [2014] VSCA 1 [111]-[112].
[51]Ibid [113].
The offender in Fuller was a 61 year old Catholic priest, who transmitted video of himself exposing his penis and masturbating to a ‘13 year old girl’, who was in fact an undercover police officer. Conversations with the ‘victim’ took place over a period of approximately three weeks. The offender arranged a meeting with the victim and was immediately arrested. He received a sentence of six months’ imprisonment, which was increased on appeal to 18 months’ imprisonment, to be released on recognisance after six months. By the time of the appeal the original sentence had expired such that, when the RRO was taken into account, he would not have to spend any further time in custody.
Tahiraj involved a 19 year old offender who met his 13 year old victim online. He used malicious software to activate her webcam remotely and then coerced her into baring her breasts and masturbating while he watched. He further recorded the incident. He pleaded not guilty and was convicted after a trial. His prospects of rehabilitation were said to be not promising. Nevertheless, his total effective sentence for a number of offences was reduced on appeal from 12 years’ imprisonment with a six year non-parole period, to eight years with a four year non‑parole period. The sentence was described as crushing and manifestly excessive in light of the offender’s youthful immaturity and prior good character. On the charge of procuring his sentence was reduced from three years and four months’ imprisonment to three years’ imprisonment to be served concurrently with the other offences.
Several aggravating factors have been identified in these cases of procuring which may also be present in the offence of engaging in sexual activity. They include the period of time over which the offending took place, the existence of a real victim, attempts to sexualise the child victim, the nature of the sexual acts proposed, attempts to establish, and success in establishing, actual contact with the victim, the age difference between the victim and the offender and attempts by the offender to conceal his identity. Some of those factors are present in the present appeal, but when all of the circumstances affecting the respondent’s degree of criminality are considered, we are unable to say that the sentence of 15 months’ imprisonment for engaging contrary to s 474.25A, although lenient, is manifestly inadequate.
We now turn to the offence of procuring contrary to s 474.26 (Charges 3, 6, 7 and 9). There are fourteen intermediate appellate decisions concerning this offence. Most resulted in sentences substantially higher than that imposed on the respondent. Four decisions, namely Hizhnikov, Director of Public Prosecutions (Cth) v Walls[52] and Director of Public Prosecutions (Cth) v Boyles (a pseudonym)[53] and Chatterton, discussed above, point to the impugned sentences falling within the range of sentences available to the judge. In Hizhnikov the offender had pleaded guilty to one charge of procuring and one charge of knowingly possessing child pornography. He received a sentence of 22 months’ imprisonment on the charge of procuring but was released on recognisance forthwith. There was psychological evidence stating that he was ‘very unlikely’ to reoffend.[54] This Court dismissed a Director’s appeal, although the Court stated that it would have sentenced the offender to a term of imprisonment had it been in the position of the primary judge.[55] The respondent had been in the community since being sentenced and had been continuing his treatment programs since then.[56] The Court described the respondent as ‘extremely fortunate’.[57]
[52][2014] VSCA 323 (‘Walls’).
[53][2016] VSCA 267 (‘Boyles’).
[54]Hizhnikov (2008) 192 A Crim R 69, 72 [15].
[55]Ibid 74 [28].
[56]Ibid 75 [30].
[57]Ibid 75 [31].
Chatterton, discussed above, concerned eight charges of sexual offending against children, including five charges of sexual penetration of a child under 16. The offending took place over approximately nine months and involved use of webcams showing children masturbating, self-penetrating and the like. The offender, who had pleaded guilty, was said to have limited insight and to be at a ‘high risk’ of reoffending. He had relevant prior child sexual offences and had breached his recognisance release order. He had also not been given access to the Sex Offender Treatment Program during his previous period of incarceration. The Court of Appeal allowed a Director’s appeal against a sentence of three months’ imprisonment with a three year CCO. The Court noted that, as in the present appeal, the suspension of the sentence had been granted so as to allow the offender the earliest possible access to Sex Offender Treatment Program.[58] Unlike the respondent, however, Chatterton had relevant priors and had served a prior term of imprisonment:
Somewhat paradoxically, the respondent appears to have been treated with extraordinary leniency largely because, in her Honour’s view, the Corrections authorities had let him down when they failed to provide him with suitable treatment during or following his previous term of imprisonment. Normally anyone who has re-offended, as the respondent did, shortly after his release from prison, whilst still undergoing both a suspended sentence and a CBO, would expect to receive heavier punishment, rather than greater leniency. In this case, the respondent’s previous criminal history appears to have operated as a mitigating factor in his favour.[59]
The Court concluded that the total effective sentence of three months’ imprisonment was manifestly inadequate and resentenced him to four years’ imprisonment with a non-parole period of two years and six months. The offending in this case was extremely serious and involved five separate charges against s 45 of the Crimes Act 1958 (sexual penetration of a child under 16), which makes its utility as a comparable case somewhat limited. We may, however, observe that the charge under s 474.26 was increased from three months’ imprisonment combined with a three year CCO to six months’ imprisonment.
[58]Chatterton [2014] VSCA 1 [63].
[59]Ibid [70].
Walls, a case relied on extensively by counsel for the respondent in his oral submissions, involved one offence against s 474.26, two charges of using a carriage service to transmit indecent communications, and one charge of soliciting child pornography. The offender, who had pleaded guilty, sent sexually explicit messages to his victims over a period of approximately six months. At first instance he was sentenced to a total effective sentence of 22 months’ imprisonment, with 18 months’ imprisonment on the s 474.26 offence serving as the base offence, but was to be released forthwith on a recognisance release order. The sentencing judge had observed that the offender’s ‘prospect of rehabilitation and reclamation [is] good’.[60] As against this there was the aggravating factor that ‘a meeting did occur with one victim although she left shortly thereafter with no sexual activity taking place and he asked her to meet him on other occasions.’[61] The Court of Appeal described the sentence as ‘very lenient’ but held that the ground of manifest inadequacy was not made out.[62] It said, in comments relevant to the present appeal, that:
The fact that it can be said that in cases of this kind one ordinarily expects a term of immediate imprisonment does not mean that it was not open to the judge in all of the circumstances of the matter before him to impose the sentence he ultimately pronounced.[63]
[60]Walls [2014] VSCA 323 [12].
[61]Ibid [17].
[62]Ibid [23].
[63]Ibid [24].
The offender in Boyles, who had bipolar disorder and had offended whilst in a manic state, had pleaded guilty to one charge against s 474.26 and one charge of using a carriage service to solicit child pornography material. He was sentenced to a CCO of two years and six months, with conditions involving 250 hours of unpaid community work, mental health treatment, participation in programs that addressed factors relating to his offending and judicial monitoring. The principles enumerated in Verdins were enlivened in this case. This Court, in reviewing all of the relevant factors, stated that a custodial sentence of ‘relatively short duration’ would have been appropriate but exercised the residual discretion in the offender’s favour.[64] It noted that the offender had not used ‘predation or deceit’ and that he had engaged well with his CCO conditions.[65] It also gave weight to a subsequent psychological assessment which showed that the appeal process had contributed adversely to the respondent’s moderate depression and bipolar disorder.
[64]Boyles [2016] VSCA 267 [62].
[65]Ibid [59].
As against Hizhnikov, Walls and Boyles, there is the fact that several cases concerning s 474.26 involved sentences far greater than the present appeal, most notably Tector, Gajjar and R v Engeln.[66]
[66][2014] QCA 313.
Tector concerned conduct via the internet over an approximately three week period giving rise to three charges against s 474.26. As in the present appeal, the offender made full use of the anonymity allowed by the internet, posing under a false identity to procure persons under the age of 16. He was aged 41 at the time of the offending (over ten years older than the present respondent) and, although he expressed a desire to meet his victim, these plans were never carried out. An important part of this case was that the offender was tricked by the complainant’s mother into thinking that he was communicating with the complainant. The complainant’s online identity was subsequently taken over by the police. It was relevant that the offender had offered money to the complainant as an inducement to sexual activity. He also had six prior convictions for child sex offending. These matters were tempered by his genuine remorse and acceptance of responsibility. He was sentenced on first instance to 11 years’ imprisonment with a seven year non-parole period (on each count and to be served concurrently). The Court of Appeal, on the ground of manifest excess, substituted a total effective sentence of eight years’ imprisonment with a five year non-parole period.
Gajjar similarly concerned offending against an undercover police officer. The offender pretended to be 20 years old and female, whereas he was 27 and male. He spoke to what he thought was a 14 year old girl called ‘Lisa’ on a chat room. They made arrangements to meet the next day at Flinders Street Station. The offender offered to pay for ‘Lisa’s’ train ticket. He used ‘explicit and salacious language’ in describing what he would do to her, and her to him, and indicated that, at a later time, he would give her an iPod.[67] He was almost arrested at the meeting place, but managed to elude police, after which he was arrested at his place of residence. He was not forthcoming about his offending until confronted with a record of his online conversations. Born in India, he had migrated to Australia with his Indian wife, neither of whom were Australian citizens. He had no prior convictions. He was charged under s 474.26 and pleaded guilty in the County Court after which he was sentenced to two years and six months’ imprisonment to be released on recognisance after eight months. This was described, on appeal to this Court on the ground of manifest excess, as ‘squarely within the range of sentences typically imposed for like offences under both Commonwealth and State law.’[68]
[67]Gajjar (2008) 192 A Crim R 76, 78 [8].
[68]Ibid 83 [43].
Engeln concerned a 33 year old offender who had spoken to two undercover police officers posing as 14 year old girls. He sought to set up a meeting with each of these ‘girls’ but his plans did not come to fruition. Psychological evidence was tendered that he was of a ‘low risk’ of reoffending despite his lack of awareness or insight into his conduct.[69] He pleaded guilty to six Commonwealth sex offences involving the use of a carriage service and one State offence of knowingly possessing child exploitation material. On three separate procuring charges as against 474.26 he received three years’ imprisonment, to be served concurrently, meaning that the head sentence on each charge was one year’s imprisonment. He was ordered to be released after nine months on recognisance. The Court of Appeal found that this was not manifestly excessive and dismissed the prisoner’s appeal.
[69]Engeln [2014] QCA 313 [24].
Conclusion as to individual sentences of procuring (s 474.25A) and engaging (s 474.26)
The above survey of comparable sentencing decisions suggests that the sentences of six months’ imprisonment imposed on the respondent on each of the three charges of procuring contrary to s 474.26, while lenient, were not manifestly inadequate. We have concluded that, whilst the individual sentences for the engaging and procuring offences and the total effective sentence were low, they were not so low as to be beyond a sound exercise of the sentencing discretion.
If contrary to our view, the sentences were manifestly inadequate, then because of the position adopted by the prosecutor on the plea, discussed below, the Director cannot now be heard to complain that the total effective sentence of 30 months’ imprisonment or the individual sentences were manifestly inadequate. It was not submitted on the plea that a RRO was not an option reasonably open to the sentencing judge.[70] Yet acceptance of the Director’s argument of manifest inadequacy would, by definition, lead to a total effective sentence excluding the possibility of a RRO. The prosecution was obliged to advance a clear submission that a RRO was not open and to explain that this was because of the maximum term of imprisonment that could be imposed along with a RRO. We shall return to this prosecutorial obligation in dealing with the Director’s further contention that a RRO of 10 months’ immediate imprisonment was manifestly inadequate.
Should the amendment be allowed so as to permit the Director to challenge the pre-release order of 10 months’ immediate imprisonment?
[70]The maximum sentence for which is three years: see [26] above.
The defence prepared a written submission some days before the plea in which it argued strongly for a RRO that would allow the respondent to be released forthwith. On the morning of the plea the prosecutor provided the judge with an outline of his sentencing submission, which took issue with particular aspects of the defence submission, but said nothing as to the defence contention that a RRO should be made. In that submission the prosecutor said only that a ‘substantial custodial sentence’ was called for; he did not say how much of the custodial sentence should be served. To the contrary, in the following paragraphs, he baldly recited the mechanics of the RRO and non-parole periods and the three year dividing line without any suggestion that the case fell on one side of that line or the other. He further submitted, vaguely, that ‘some cumulation’ would be required given the several victims.
On the plea in mitigation defence counsel developed at length her submission that a RRO with a wholly suspended sentence was appropriate. After calling expert evidence as to the respondent’s prospects for rehabilitation it was said that no time, or minimal time, in custody was necessary to give the respondent the earliest possible access to the Sex Offender Treatment Program. A RRO was urged as the vehicle through which this could be achieved. The rationale for this submission was ultimately accepted by the sentencing judge in ordering a RRO with the recognisance to take effect after only 10 months.
In the prosecutor’s oral submission in reply, he took issue with some factual matters which are for present purposes irrelevant, but again made no response to the proposed disposition of a RRO. The prosecutor, when asked by the judge, accepted the experts’ evidence as to the respondent’s prospects for rehabilitation and the efforts he had already made to that end. In closing the prosecutor indicated only that the prosecution opposed the recognisance taking effect forthwith. He said: ‘Your Honour, typically these cases do require an immediate custodial sentence and, in my submission, today we are seeking an immediate term.’
Senior counsel for the Director, in her oral submissions, submitted that leave should be granted to amend her ground so as to enable an attack to be made on the pre-release period under the RRO. The respondent opposed that application and submits that the Director is now seeking to advance a submission that had not been raised before the sentencing judge. He relied upon DPP v Oversby[71] to support the proposition that the amendment should not be allowed because it would unfairly expose him to the additional risk of an attack on the pre-release period in circumstances where there is a need to preserve the sentencing judge’s objective of enabling very early access to the Sex Offender Treatment Program. It will be necessary to revisit these submissions when considering the residual discretion later in these reasons.
[71][2004] VSCA 208.
The joint reasons of the High Court in Barbaro make clear that, although the prosecution should not express an ‘opinion’ as to the numerical terms of the appropriate sentencing range, it has a duty to assist the sentencing court to avoid appealable error and may do so in a variety of ways.[72] That duty includes identifying ‘the kind of sentence disposition that is appropriate or inappropriate’.[73] Thus, in both Malvaso v The Queen[74] and Everett v The Queen,[75] the Crown was precluded from challenging a suspended sentence on appeal given that the prosecution had not opposed it at the time of sentencing.[76]
[72](2014) 253 CLR 58.
[73]Justice Phillip Priest, ‘Prosecutors’ Duties in the Wake of Barbaro’ (2014) 88 Australian Law Journal 386, 387. The prosecution’s duty to avoid appealable error was outlined by the Full Court of the Federal Court in R v Tait (1979) 46 FLR 386 (Brennan, Deane and Gallop JJ).
[74](1989) 168 CLR 227 (‘Malvaso’).
[75](1994) 181 CLR 295.
[76]See especially, in Malvaso, the joint judgment of Deane and McHugh JJ. They cite with approval the comments of King CJ (with whom Mitchell and Williams JJ agreed) in R v Wilton (1981) 28 SASR 362, 367-8 to the effect that an appellate court ‘should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances’.
Contrary to a perception in some quarters, Barbaro has not reduced the burden on the prosecution to identify any sentencing disposition that is said to be inappropriate. In Matthews v The Queen[77] the majority (Warren CJ, Nettle and Redlich JJA) observed that ‘nothing said in Barbaro detracts from the Crown’s obligation to make clear what type of sentencing disposition, whether imprisonment or otherwise, it contends is necessary or appropriate.’[78] The majority also said:
The Crown’s duty also extends to making appropriate submissions on relevant questions of law, including statutorily prescribed maximum penalties, principles of sentencing reasonably thought to be applicable and comparable and other relevant cases. If it is submitted for an offender that he or she should receive a non-custodial disposition or a suspended term of imprisonment, the Crown should make clear whether it contends, and if so why, a disposition of the kind proposed would not be a proper exercise of sentencing discretion.[79]
[77](2014) 44 VR 280.
[78]Ibid 292 [27].
[79]Ibid (citations omitted) (emphasis added).
In Director of Public Prosecutions v O’Neill,[80] a Director’s appeal against sentence, the Court (Warren CJ, Redlich and Kaye JJA) affirmed the notion that the Crown should not be allowed to contest an issue on appeal that had not been contested on the plea:
As we have said, the Crown may not pursue an argument on a Crown appeal that was not distinctly pursued at first instance. At no point during the course of the plea did the prosecutor challenge the respondent’s contention that Verdins was engaged and that moral culpability was thereby to be reduced. At best, the prosecutor was equivocal in his submissions as to whether the respondent’s personality disorder did play a role in diminishing his culpability. On sentence, the Crown has an obligation to identify for the sentencing judge any erroneous legal or factual submission made by the respondent. Failure to do so precludes the Crown from raising such arguments in a Crown appeal.[81]
[80](2015) 47 VR 395 (‘O’Neill’).
[81]Ibid 419 [93].
It was accepted by senior counsel for the Director in oral submissions that appeals mounted by the Director must be held to a high standard. Those standards apply to the discharge of the prosecutorial obligation on the plea and on an appeal. The prosecutor failed to submit that a RRO was not a disposition reasonably open to the sentencing judge. As such, the judge was entitled to assume that the prosecutor’s reference to an ‘immediate term’ of imprisonment indicated only that the Crown was opposed to the contention that the recognisance take effect forthwith, resulting in the respondent’s immediate release. No suggestion was made that a pre-release period under a RRO was inappropriate. As we have said, the duration of the pre-release period falls to be determined by the application of the same principles as are applied to a non-parole period. That further implies that the sentencing judge was entitled to assume that a pre-release period, very substantially less than the total effective sentence under the RRO, would have been within the Crown’s contemplation or, at the very least, that the Crown did not oppose such a disposition.
The Director’s application to amend the ground to challenge the pre-release period before which the recognisance may take effect must be refused.[82] Even if complaint about the pre-release period had been raised within the existing ground of manifest inadequacy the Crown would not have been allowed, on its appeal against sentence, to advance a contention which was not put to the sentencing judge (unless some exceptional circumstances could be shown to justify that course). We are, however, mindful that one of the primary purposes of Crown appeals is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’[83] That purpose can be achieved if we express our view as to the adequacy of the period that was fixed before the RRO could take effect.
[82]R v Harris [2015] (2015) 70 MVR 412, 427–8 [65]. See also DPP v Zhuang [2015] VSCA 96 [47]-[49].
[83]Green v The Queen (2011) 244 CLR 462, 465 [1], 477 [36].
The respondent submitted that, if the total effective sentence was unexceptionable, then it would be a rare thing to say that a pre-release period of 10 months was manifestly inadequate. He submitted that this was supported by the observations of Nettle JA (as he then was) in Director of Public Prosecutions v Malikovski.[84] That, however, was a case where the total effective sentence was only 16 months’ imprisonment wholly suspended.
[84][2010] VSCA 130.
Director of Public Prosecutions (Cth) v Page[85] is more on point. The Commonwealth and State Directors of Public Prosecutions had appealed, inter alia, against the period of immediate custody that Page was required to serve. On the State charges, having been sentenced to an aggregate sentence of three years’ imprisonment, he was ordered to serve four months of the sentence imposed. On the Commonwealth charges he was sentenced to four years’ imprisonment and was ordered to serve four months before release on a recognisance. It was submitted that if the Court concluded that the head sentences were within range, it would then be difficult to challenge the time of actual imprisonment, as a suspended sentence and a RRO are both sentences of imprisonment, and have a deterrent effect, especially when the offender must serve some time in prison. Eames JA, with whom Vincent and Redlich JJA agreed, said:
Where a period of three or less years of imprisonment is within the range of sentences that are open, a decision to suspend all or part of that sentence may involve sentencing error which will be amenable to correction on a Crown appeal. In some circumstances, it will not be open to the sentencing judge in a sound exercise of the sentencing discretion, to make an order for suspension of all or part of the sentence. The objective gravity of the offence and the need for general deterrence together with circumstances personal to the offender are factors which will limit the appropriate range for the exercise of the discretion as to how much of the term of imprisonment should be served in custody.
In this case I am persuaded that the orders made as to the periods to be actually served by Page are so disproportionate to the aggregate sentences imposed, and so low, as to manifestly fail to reflect the need for general deterrence of such offending.[86]
[85][2006] VSCA 224.
[86]Ibid [53]-[54].
As we explained earlier, the principles which apply to minimum sentences are in the broad those that apply to the period before which a recognisance may take effect. Giving due allowance to the prospects for rehabilitation and mitigating circumstances, we are of the opinion that an immediate period of custody of 10 months for offending of this nature is plainly disproportionate to the head sentence, which we have said was itself low. It does not adequately reflect the respondent’s degree of criminality. The release of the respondent after 10 months does not fall within a sound exercise of the sentencing discretion. A period of 18 months’ custody would have been appropriate given the head sentence that was fixed.
Residual discretion
For completeness we should state that, had we allowed the Director to amend her ground to challenge the pre-release period, then notwithstanding our conclusion that the pre-release period is manifestly inadequate, we would have upheld the respondent’s submission and exercised the residual discretion to dismiss the appeal.
As we have said, the sentencing judge was evidently much attracted to the opinion of the forensic psychologist Mr Newton, who said that that the single most important treatment needed for the respondent was the Sex Offender Treatment Program. He considered, taking account of the respondent’s psychological makeup, that successful completion of the programme would be important in preventing recidivism and should be undertaken at the earliest opportunity. The sentencing judge’s stated purpose in fixing a release date of 10 months was to allow the respondent the earliest possible access to this programme.
Although the respondent is only due to be released in some six weeks, senior counsel for the Director accepted that rehabilitation whilst in custody could be taken into account when considering whether the discretion should be exercised. That said, it was submitted that it was not clear that his rehabilitation would be adversely affected were his release date to be extended.
It was submitted on the respondent’s behalf that he has maximised his opportunity to progress his rehabilitation. Reliance was placed upon the affidavit of the respondent filed in these proceedings, which shows that he has completed the Grow course and Healthy Relations programme in prison, the latter being an eight-week course designed to help offenders to re-establish themselves in the community after their release and take advantage of the supports that are available. The respondent’s rehabilitative progress is likely to be impeded if his expectations as to his release date and his ability to commence the Sex Offender Treatment Program are delayed. In this context we would also take into account that the Director’s intention to challenge the pre-release date was belatedly raised during the hearing of the appeal.
The appeal must be dismissed.
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