DPP v Abad
[2016] VSCA 279
•22 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0186
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| V | |
| FRANCO ABAD | Respondent |
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| JUDGES | WARREN CJ, WHELAN JA, BEALE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 7 November 2016 |
| DATE OF JUDGMENT | 22 November 2016 |
| MEDIUM NEUTRAL CITATION | [2016] VSCA 279 |
| JUDGMENT APPEALED FROM | DPP v Abad (Unreported, County Court of Victoria, Judge Ryan, 19 August 2016) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Respondent found guilty of sexual penetration of a child under the age of 16 – Sentenced to adjourned undertaking for two years with conviction – Whether sentence manifestly inadequate – Clarkson v R (2011) 32 VR 361 considered.
CRIMINAL LAW — Appeal — Sentence — Crown appeal — Residual discretion to dismiss appeal even where error identified – Position of prosecutor at plea – DPP v Holder (2014) 41 VR 467 and DPP v Karazisis (2010) 31 VR 634 considered.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant | Ms K E Judd QC | Mr John Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr R F Edney with Mr R Slattery, solicitor | Doogue O’Brien George |
WARREN CJ:
The respondent was found guilty of one count of sexual penetration of a child under 16 years.[1] The sentencing judge imposed a sentence of an adjourned undertaking for a period of two years. The respondent was placed on the Sex Offenders Register for a period of 15 years.[2]
[1]In breach of s 45(2)(c) of the Crimes Act 1958 with a maximum penalty of 10 years’ imprisonment.
[2]Sex Offenders Registration Act 2004 ss 6, 7, 34.
The Crown now appeals against the sentence submitting that the absolute minimum sentence that ought have been imposed was a community correction order.
Factual background
At the time of the offence the victim was 14 years of age. She was in the care of the Department of Human Services (DHS). The respondent was 31 years of age.
In July 2015 the victim attended the Melbourne Children’s Court in relation to DHS proceedings. The respondent was employed by Wilson Security as a security guard at the Children’s Court. He was working at the front security entrance to the Court. The respondent gave the victim his phone number. The respondent and the victim maintained regular contact via telephone and text in the days following. The victim told the respondent she was 17 years old.
Shortly after, they commenced a sexual relationship for about six weeks. During this time the respondent believed the victim was 17 years old.
The relationship came to the attention of the police. On 3 September 2015 the respondent was questioned by the police. He denied knowing the victim. The police informed the respondent that the victim was 14 years old and in DHS care. The respondent was warned that it would be a criminal offence if he engaged in sexual activity with her.
The respondent returned home and discussed his police conversation with his sister and then the victim, who came to his house. The discussion lasted over two hours. The victim persisted she was 17 years old, however, in the end the respondent said the relationship was over and he went to bed. Later, the victim joined the respondent in bed and they had sexual intercourse which was the subject of the charge on the indictment. The earlier sexual activities were not charged.
The respondent was tried on one count of sexual penetration of a child under the age of 16 arising from intercourse that occurred between 3 and 4 September 2015. The fact of the intercourse was not in dispute. The only fact in issue was whether the respondent believed on reasonable grounds that the victim was 17 at the time of the offending. The respondent was convicted.
Plea hearing
It must be observed that the plea followed an unusual course. Very early on the judge interrupted the respondent’s counsel and said:
And I can tell you now that the complainant on her VARE appeared years older than her actual age, and the matter of fact way that she spoke about the sexual relationship that she had with [the respondent] demonstrated my mind [sic] a — I was going to use the term ‘mature’, but perhaps that’s not the appropriate word; a worldly attitude might be a better way of expressing her attitude to her sexual relationship with [the respondent].[3]
[3]Transcript of Proceedings (19 August 2016) 2.
Then the judge added after describing some events:
[the respondent] went to bed first, having told the complainant that he didn’t want to have anything further to do with her, and some time later, an indefinite time later, she goes into his bedroom and gets into bed with him.
Now, that’s an unusual factual situation …[4]
[4]Ibid.
The respondent’s counsel quickly embraced the judge’s analysis and then the discussion moved briefly to a psychologist’s report.
His Honour again interrupted the respondent’s counsel and shifted to a different aspect:
The other thing, too, about it is this, that whilst there is accepting the fact, and uncontested fact, that the complainant told [the respondent] that she was 17, he was a man in his early 30’s. Now there’s a pretty big age discrepancy there, but I don’t know that it’s something that I would draw an adverse inference against [the respondent] about. I mean, true it is he was working as a security guard at the Children’s Court, but that court has very wide jurisdiction … there is a very wide range in terms of age of persons who go into the court.[5]
[5]Ibid 5.
The respondent’s counsel accepted the analysis and commenced to address knowledge. Again the judge interrupted:
These things are terribly subject, I know, but I mean she presented as a very worldly young woman in the VARE.[6]
[6]Ibid 6.
A discussion then ensued about belief. His Honour then said:
So at the point in time he’s resolved he’s not going to have any more to do with her. And then he goes to bed and at an indefinite time thereafter he’s joined in bed by a nubile young woman.[7]
[7]Ibid 8.
Counsel agreed and then the judge said:
Well, he’s not made of steel.[8]
[8]Ibid.
Later on the judge, after noting that young persons cannot consent to the subject offending, said:
But the human aspect of it is readily understandable …[9]
[9]Ibid 9.
The respondent’s counsel proceeded to deal with the non-predatory nature of the offending and the respondent’s personal circumstances. Before counsel addressed disposition, without prompting, the judge made plain his intention not to impose a custodial sentence, stated his view that the offending was at the lower end and said he regarded a community correction order as unsuitable. His Honour concluded:
I’m absolutely satisfied that this man has learnt his lesson. I don’t understand — it’s certainly not an offence which — in the circumstances of this offence and the circumstances of the offender do not call for any form of custodial disposition in my opinion.
One then looks to the community corrections order, and there is nothing about this young man that calls for what I regard as the therapeutic aspects of a community corrections order.[10]
[10]Ibid 22.
All this had been said without hearing from the prosecutor. At that stage the respondent’s counsel quickly completed his plea, understandably. When called upon by the judge - going directly to disposition - the prosecutor said five things. First, the offending was at the very low, if not the lowest end of the scale of offending. Secondly, the prosecutor acquiesced to the judge’s ‘finding’ that the behaviour was not predatory and therefore the prosecution did not seek a custodial sentence. Thirdly, that a community correction order would be within range. Fourthly, his Honour’s ‘findings’ were not challenged. Fifthly, the circumstances of the offending were extraordinarily unusual. There the prosecutor’s submissions ended. A short adjournment followed and then the judge delivered the reasons for sentence.
Sentencing judge’s reasons
In his reasons for sentence the judge covered the facts observing that the victim ‘appeared to be much older than her years, and she was extremely matter of fact in her description of [the] sexual relationship’. His Honour set out the personal circumstances of the respondent including aspects of a psychologist’s report. The judge noted the maximum penalty of 10 years’ imprisonment and the need for public denunciation of the offending and for both specific and general deterrence. He then imposed the subject sentence, an adjourned undertaking for two years.
Ground of appeal – manifestly inadequate sentence
The Director advanced one ground of appeal, that the sentence imposed was manifestly inadequate. He contended that an adjourned undertaking was simply not within range and that the absolute minimum sentence that ought have been imposed was a community correction order. The particulars to the ground are:
In imposing the sentence of an adjourned undertaking for a period of two years, the Learned Sentencing Judge –
(a)gave improper weight, or excessive weight, to the Respondent’s purported subjective belief of the victim’s age;
(b)failed to give sufficient weight to the fact that, prior to the commission of the offence, the respondent had been informed by police that the victim was 14 years old;
(c)failed to have regard to the presumption of harm caused to children by the commission of child sexual offences;
(d)failed to properly analyse the moral culpability of the Respondent;
(e)failed to properly reflect the gravity of the offence;
(f)failed to give sufficient weight to the principles of general deterrence, punishment and denunciation;
(g)failed to have sufficient regard to the maximum penalties prescribed for the offence.
The sentencing judge concluded that the respondent’s offending was at the lower end of offending of its kind. In written submissions the Director contended that the primary basis for this conclusion appeared to be that the respondent had a subjective belief that the victim was 17 years old. The Director submitted there was material that overwhelmingly negated the finding as to subjective belief. The Director relied on the evidence that the police told the respondent that the victim was 14 years old, and submitted that it did not matter that the victim forcefully and repeatedly told the respondent she was 17 years old. In oral argument it was accepted by senior counsel for the Director that the judge did not specifically find that the respondent had a subjective belief that the victim was 17.
Next, the Director submitted that the reasons for sentence did not take into account the presumption of harm caused to children by the commission of the offence and further the actual sentence imposed reflected that the presumption was not taken into account.
The Director highlighted the judge’s comments during the plea hearing, and argued that those comments suggested the judge did not proceed on the basis that there was a presumption of harm. It was further submitted that those comments also suggested the judge approached the matter as though the respondent had very little moral culpability. The respondent’s moral culpability arises due to his giving in to sexual desires towards the victim, especially in circumstances where he had been told by police that the victim was 14 years old.
The Director noted that the maximum sentence for the offence is 10 years’ imprisonment. The Director submitted that the judge found that the respondent had a low risk of re-offending, but despite that finding, a number of factors called for a more appropriate and adequate sentence, namely:
(a) the respondent ignored a direct police warning;
(b) the age difference between the respondent and the victim;
(c) the respondent was not entitled to a discount for a guilty plea; and
(d) the need to impose a sentence that incorporated the principles of general deterrence, punishment and denunciation.
Counsel for the Director acknowledged that, before the judge, the prosecutor did not specifically raise the above factors. Rather, before the judge, the prosecutor conceded that the respondent’s offending was at the very low, if not the lowest, end of the scale. Counsel for the Director acknowledged that the Director was bound by the sentencing range submissions made before the sentencing judge,[11] but noted that those submissions were made after the judge had already said during the plea:
He’s not going to gaol. I can tell you that right now … the circumstances … do not call for any form of custodial disposition … Conviction is a punishment in my view.[12]
[11]The prosecutor had submitted that a custodial sentence was appropriate if the respondent’s conduct was found to be predatory, otherwise a community corrections order was within range.
[12]Transcript of Proceedings (19 August 2016) 21.
Counsel for the Director before this Court stated that the instructions to the prosecutor were not that the offending was at the very low, if not the lowest end of the range. It was submitted that the offending was ‘nowhere near the lowest end’.
The respondent argued that in order for the Director to demonstrate that the sentence imposed was manifestly inadequate, he must establish that the sentence was clearly not open or was manifestly outside the range of sentences reasonably open to the sentencing judge. He relied on the following passage from Director of Public Prosecutions v Karazisis:
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.[13]
[13](2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA) (citation omitted).
According to the respondent, the sentencing judge had regard to the numerous matters informing the sentencing discretion, including:
(e) the maximum penalty for the offence;
(f) the need to punish the respondent and publicly denounce his conduct;
(g) the need to impose a penalty that would deter the respondent and others;
(h) the wide range of circumstances in which the offence can be committed;
(i) that the respondent’s offending was at the lower end of offending of its kind, with particular reliance on the respondent’s subjective belief;
(j) the respondent’s antecedents;
(k) the respondent’s background and personal circumstances;
(l) the undisputed findings of the forensic psychologist that the offending was out of character, and the respondent had a low risk of reoffending and a positive prognosis;
(m) that the court proceedings had been a salutary lesson for the respondent;
(n) that the respondent’s prospects of rehabilitation were good; and
(o) the extra-curial punishment the respondent had received, including losing his job as a security guard and adverse media publicity as well as social media harassment.
The respondent submitted that the judge accepted that the respondent had a subjective belief that the victim was over 16 years old, and found that there were some grounds for that belief. Those findings were not inconsistent with the jury’s verdict and they significantly reduced the respondent’s moral culpability. The respondent also noted that the sentencing judge had the advantage of observing the victim in her VARE and during cross-examination and observed her to be ‘much older than her years’.
The respondent also argued that it is clear that orders under s 72 of the Sentencing Act 1991 may be imposed for serious offences in exceptional circumstances, including this type of offence. In support of this argument he relied on interstate authorities[14] where offenders who had pleaded guilty to sexual penetration of a child under 16 or 17 were sentenced to a good behaviour bond. These authorities it was said demonstrated that the judge’s approach was unexceptional and was a principled and proper approach to the unusual facts of the case. The sentence imposed was well within the proper scope of the sentencing discretion; it was not manifestly inadequate.
[14]R v KNL (2005) 154 A Crim R 268; R v Nelson [2016] NSWCCA 130; R v Lomas [2005] SASC 435.
In the event the Court considered the sentence to be manifestly inadequate, the respondent urged the exercise of the residual discretion, namely that the sentence not be changed.
Analysis
In my view manifest inadequacy is made out for four primary reasons.
First, the judge did not find on the balance of probabilities that the respondent subjectively formed the view that the victim was 17 and hence did not sentence the respondent on the correct basis. Once the discussion with the police occurred and the respondent was warned, indeed, was on notice as to the victim’s actual age, such a finding could not be made. It was no answer to say he was overcome by the victim’s misstatements or that he was confused. Plainly, the respondent fell to be sentenced as a 31 year old man who had intercourse with a 14 year old contrary to the Crimes Act 1958.
Secondly, and relevantly to the first point, the judge inappropriately and mistakenly took account of irrelevant matters namely the attitude, demeanour, conduct and nubility of the victim and the effect she had on the respondent. It remains that the offence reflects a presumption of harm. It involves a strict public policy of protecting young persons regardless of subjective impacts on an offender.[15] The sentence was underpinned by observations as to the victim’s presentation and behaviour, demonstrating that irrelevant matters contributed to the manifest inadequacy.
[15]Clarkson v The Queen (2011) 32 VR 361, 364 [3]-[4], 368 [26], 371 [33] (‘Clarkson’).
Thirdly, the judge misconstrued the approach to moral culpability. The remarks as to the complainant’s attitude, demeanour, conduct and nubility and as to the respondent not being ‘made of steel’ reflected a shift of moral culpability to the victim. Again, this approach contributed to the manifestly inadequate sentence. Further, I would observe that the observations made by the judge about the complainant and the descriptions applied were inappropriate, irrelevant and should not have been made.
Fourthly, taking account of the maximum penalty, the sentence imposed did not reflect the gravity of the offending: a 31 year old man having sexual intercourse with a 14 year old girl after having been expressly warned by police as to the girl’s age and that to engage in sexual activity with her would be an offence. Further, such offending raised the express need for denunciation and general deterrence. This was not sufficiently reflected in the two year adjourned undertaking.
It must be said that the judge received limited assistance from the prosecutor. Indeed the submissions on the plea were sparse. Whilst it is open to a judge to give indications of his or her thinking through a plea, here it is plain that the judge became immersed in the respondent’s submissions. His Honour announced his concluded views very firmly as to disposition without having heard from the prosecutor. This was unfortunate. The gravity of the offending warranted at least some consideration of a custodial disposition. Counsel for the Director before this Court stated that but for the concession made by the prosecutor on the plea as to the low level of offending, the Director would have called for a custodial sentence. If a custodial sentence was excluded then, at that stage, the Director would urge that a community correction order fell to be considered.
Unfortunately, the prosecutor did not press any submission against the judge’s early rejection of both a custodial disposition and a community correction order.
As counsel for the Director submitted, a community correction order was now appropriate in all the circumstances of this case, in particular, given the maximum sentence, the gravity of the offending and the need for general deterrence. As explained by this Court in Boulton v The Queen,[16] community correction orders serve a special purpose. The orders are quite different from an adjourned undertaking which imposes far less constraints on an offender.
[16](2014) 46 VR 308.
The prosecutor’s conduct on the plea created large difficulties for the Director. The Director sought to put submissions on the appeal that were not put on the plea both as to the approach to the sentence and the imposition of a community correction order. Ordinarily, and in the circumstances of this case, the Director is bound by the submissions on the plea.[17] It would be inappropriate, indeed quite unfair to the respondent, to permit the Director to so completely change course. It is simply too late on the appeal in all the circumstances. Furthermore, counsel for the Director acknowledged that if a community correction order was imposed then no special or additional conditions would be sought beyond community service. For the reasons expressed I would not impose a community correction order. Further, the respondent has incurred a conviction, lost his employment and is subject to registration as a serious sex offender for 15 years.
[17]DPP v Karazisis (2010) 31 VR 634, 660 [115] (Ashley, Redlich and Weinberg JJA); DPP v Granata [2016] VSCA 190 [81] (Osborn JA, with whom Maxwell P and Redlich JA agreed); Romero v The Queen (2011) 32 VR 486, 489–90 [11] (Redlich JA, with whom Buchanan and Mandie JJA agreed); R v Ioannou (2007) 17 VR 563, 569–70 [23] (Redlich JA, with whom Chernov and Vincent JJA agreed).
Hence, notwithstanding that I find manifest inadequacy made out, I would exercise the discretion and dismiss the appeal.
WHELAN JA,
BEALE AJA:
On 26 May 2016 the respondent, Franco Abad, was found guilty by a jury of one count of sexual penetration of a child under 16 years. On 19 August 2016, after hearing a plea on behalf of the respondent, the trial judge convicted the respondent of the offence and adjourned the proceeding for two years under s 72 of the Sentencing Act 1991 upon the specified statutory undertakings. Such a disposition is sometimes referred to as a ‘bond’. Pursuant to the provisions of the Sex Offenders Registration Act 2004 the conviction and adjournment constituted a sentence (s 3) having the effect of rendering the respondent a registerable offender (s 6) required to comply with the reporting obligations imposed by that Act for a period of 15 years
(s 34).
The appellant (‘the Director’) now appeals that sentence on the ground that it is manifestly inadequate. The notice of appeal gives particulars of the ground asserting that the sentencing judge:
(p) gave improper weight, or excessive weight, to the respondent’s purported subjective belief of the victim’s age;
(q) failed to give sufficient weight to the fact that, prior to the commission of the offence, the respondent had been informed by police that the victim was 14 years old;
(r) failed to have regard to the presumption of harm caused to children by the commission of child sexual offences;
(s) failed to properly analyse the moral culpability of the respondent;
(t) failed to properly reflect the gravity of the offence;
(u) failed to give sufficient weight to the principles of general deterrence, punishment and denunciation;
(v) failed to have sufficient regard to the maximum penalties prescribed for the offence.
The maximum penalty prescribed by s 45 of the Crimes Act 1958 for the offence in a case where the child is aged between 12 and 16 is 10 years’ imprisonment.
The offence is committed where a person takes part in an act of sexual penetration with a child under the age of 16. Consent is not a defence unless the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older.[18]
[18]Crimes Act 1958 s 45(4)(a).
Circumstances of the offending
The circumstances of this offence can be briefly stated.
The respondent and the victim had been in a sexual relationship for some weeks prior to 3 September 2015. Until 3 September 2015 the respondent had believed on reasonable grounds that the victim was 17 years of age. He had met her whilst he was working as a security guard at the Children’s Court. She had told him that she was 17 years old.
The police became aware of the respondent’s relationship with the victim. The respondent attended Sunshine Police Station when requested to do so on 3 September 2015. He was shown a photograph of the victim. He denied knowing her. He was told by police that the victim was 14 years of age and that any sexual act with her would be a criminal offence. Later that same day the victim came to the home that the respondent shared with his sister. He and his sister confronted the victim with what the police had said. Over the course of a long argument the victim continued to maintain that she was 17 years of age. She gave an explanation for what the police had said which was that her mother had lied to the police about her age to get her into trouble.
At the end of the argument, the respondent purported to put an end to the relationship and went to bed alone. Sometime later that night the victim joined him in his bed and the act which was the basis of the offence occurred. At the time the respondent was 31 and the victim was 14.
The respondent pleaded not guilty when arraigned on 23 May 2016. The trial was run on the sole issue of whether the respondent had a reasonable belief that the victim was aged 16 or older.
The plea hearing
Early in the plea hearing the judge stated his view that the victim appeared ‘years older than her actual age’, and had in her evidence exhibited a ‘worldly attitude’ towards the relationship.[19] The judge referred to her evidence in which she had confirmed that she had always maintained to the respondent and to his sister, including when confronted on 3 September 2015, that she was 17 years of age, and that she had given them an explanation for why the police had said that she was 14. Her evidence had been that the respondent went to bed after purporting to end the relationship and that sometime later she had gone into his room and got into bed with him. The judge described this situation as ‘an unusual factual situation’ for this kind of offence.[20] The judge was told early in the plea hearing that the victim had declined to make a victim impact statement.[21]
[19]Transcript of Proceedings (19 August 2016) 2.
[20]Ibid.
[21]Ibid 1.
A psychological report was tendered on the plea.
In the course of the plea the judge observed that the jury’s verdict did not address ‘the subjective aspect’.[22] He said that he had ‘little doubt’ that the respondent’s subjective belief up until the time of the offence was that she was 17, but he observed that that ‘becomes a bit untenable’ after he said he would have nothing more to do with her and went to bed.[23]
[22]Ibid 7.
[23]Ibid 8.
The judge observed that ‘persons of tender years cannot consent to this activity’.[24]
[24]Ibid 9.
The judge was told the only prior convictions were driving matters.[25]
[25]Ibid 11.
The judge referred to the possibility of a bond under s 72 of the Sentencing Act and he also addressed the possibility of a Community Correction Order (‘CCO’). He said that there was nothing about the respondent or the offending which would give rise to a need for ‘the therapeutic aspects’ of a CCO. The judge did observe that CCO conditions were also punitive. He said unpaid community work was a form of punishment. He also said a conviction was a punishment in his view.[26]
[26]Ibid 21–2.
In response to the matters that had been raised, including the observations made by the trial judge in the course of the plea, counsel for the prosecution made the following submission:
It’s a rare case indeed when one can say that we’re right at the lower end of the scale, and in my submission to you I would agree, and I think your Honour’s formed that view, that this is, by virtue of the peculiar nature of how this relationship started and continued and the discovery and then the offending, it is at the very low, if not the lowest, end of the scale.
…
My sentencing instructions, your Honour, and I’ll put them completely, are that the prosecution would seek a custodial sentence if your Honour was of the view that this was predatory in nature. Your Honour’s already made a finding in that regard and I don’t seek to dissuade you from that finding.
…
And the secondary instructions are that a CCO would be within the range.
…
But as I stand here I can’t cavil with any of the findings that your Honour’s at least preliminarily indicated.
…
It’s a situation that is extraordinarily unusual in how it’s been committed and how it’s come about …[27]
[27]Ibid 23–4.
Counsel for the prosecution then agreed with the trial judge that the jury verdict reflected a conclusion about reasonable grounds rather than subjective belief.[28]
[28]Ibid 24.
Reasons for sentence
The judge set out the circumstances of the offending and the basis upon which the trial had been conducted.
In relation to the respondent’s subjective belief the judge said:
Your defence was that you believed on reasonable grounds the complainant was over the age of 16 years.
The jury were not satisfied on the balance of probabilities that this was the case, and to my mind this came as no great surprise. However, it says nothing about your subjective belief, even allowing for doubts that you may have entertained.
I observed that the complainant during her video and audio recorded evidence that was taken on 10 September of 2015 appeared to be much older than her years, and she was extremely matter of fact in her description of your sexual relationship and she told the police that she maintained to you at all times, even after your attendance at the police station on 3 September 2015, that she was 17 years of age.
The judge did not return to the issue of subjective belief again.
The judge set out the respondent’s personal circumstances, which, for present purposes, were unremarkable. He recorded the fact that the respondent had lost his job as a result of the offence. He referred to the psychological report and accepted the opinions in that report that there was no specific psychological disorder present, that the offending was out of character, and that there was a low risk of re-offending and a positive prognosis.
The judge indicated that he regarded the respondent’s prospects for rehabilitation as good and the likelihood of re-offending as ‘remote’.
Submissions
The principal submission advanced on behalf of the Director was that the sentencing judge had overlooked or failed to have sufficient regard to the ‘presumption of harm’, as addressed at some length in relation to this type of offence by this Court in Clarkson.[29]It was submitted that the sentencing judge had failed to adequately address the direct police warning which had been given on the day of the offence, the age difference between the respondent and the victim (31 years compared to 14 years), the fact that the respondent had pleaded not guilty, and the considerations of general deterrence, punishment and denunciation. In oral submissions particular emphasis was placed upon what was said to be a failure of the sentence imposed to properly reflect the need for denunciation and general deterrence.
[29](2011) 32 VR 361.
The Director acknowledged that prosecuting counsel on the plea hearing had conceded that the offending was at ‘the lowest end of the scale’. Senior counsel submitted that that concession had been wrong. But she submitted that, even allowing for that concession, the ‘absolute minimum’ sentence which could have been imposed was a CCO.
The Director’s written submission contained an assertion that the sentencing judge had proceeded on the basis that the respondent had a subjective belief that the victim was 17. In oral submissions senior counsel accepted that no such express finding was made. It was submitted that it was open to interpret the passage in the sentencing reasons quoted earlier as implicitly reaching that finding.
In response to a question from the Court, senior counsel for the Director disavowed reliance upon the fact that the respondent and the victim had met while he was working as a security guard at the Children’s Court. This was because of the failure to rely on that matter at the plea hearing.
On behalf of the respondent it was submitted that the Director could not point to any specific error made by the sentencing judge or any failure by the sentencing judge to have regard to all relevant considerations. It was submitted that all of the Director’s concerns are issues of weight and that a sentence could not be found to be manifestly inadequate unless it was clearly outside the range which was open.
It was submitted that the submissions made by the Director on the appeal were in contrast to those which had been made by the prosecution at the plea hearing.
In relation to this Court’s decision in Clarkson it was submitted that Clarkson itself showed that the facts of each particular case needed to be considered, and that the facts here were most unusual.
The respondent’s submissions cited other cases in which, what was said to be similar offending, had been dealt with by good behaviour bonds.[30]
[30]The cases cited were R v KNL (2005) 154 A Crim R 268; R v Nelson [2016] NSWCCA 130; R v Lomas [2005] SASC 435.
Finally, it was submitted on behalf of the respondent that if manifest inadequacy was established the appeal ought to be dismissed in the exercise of this Court’s residual discretion given the submissions made by prosecuting counsel on the plea.
Counsel for the respondent accepted in oral submissions that what the judge had said concerning subjective belief did not amount to an express finding the respondent had subjectively believed the victim was 17 at the time of the offence.
Relevant legal principles
In DPP v Karazisis[31] the plurality judgment set out the principles to be applied in relation to a ground contending a sentence was manifestly inadequate in the following terms:
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.[32]
[31](2010) 31 VR 634.
[32]Ibid 662–3 [127] (Ashley, Redlich and Weinberg JJA) (citations omitted).
That same plurality judgment described the residual discretion to dismiss a Crown appeal as follows:
Finally, as the Crown readily conceded in this proceeding, the court might well exercise its residual discretion to dismiss a Crown appeal in circumstances where the prosecutor at first instance failed to discharge his or her responsibility to the court adequately. For example, the Crown will not ordinarily be permitted to put submissions on appeal that were not advanced below. Nor will the Crown ordinarily, on appeal, be permitted to resile from a concession made at first instance that a particular sentence would be within the range reasonably available to the sentencing judge. The right given to the Crown to appeal against sentence is not designed to permit it to raise, for the first time, matters that should have been ventilated at first instance.[33]
[33]Ibid 660 [115] (Ashley, Redlich and Weinberg JJA) (citations omitted).
The Director places significant reliance upon this Court’s decision in Clarkson. Relevantly, this Court said:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as ‘apparent’ or ‘ostensible’ consent. References to consent in these reasons should be understood as having that connotation.
We have concluded that a child’s consent can never, of itself, be a mitigating factor. That is, proof that the child consented will not of itself differentiate the case for sentencing purposes from one where the child’s consent cannot be established. (Proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender.)
Proof that the child consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.
Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases — for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner — the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.
At the other end of the scale, there are exceptional cases — for example, in a relationship between a 15 year old girl and an 18 year old boy — where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.
In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.[34]
[34](2011) 32 VR 361, 364–5 [3]–[8] (citations omitted).
Analysis
The judge was well aware that persons under 16 cannot consent to sexual activity of this kind. He said so during the plea hearing. As this Court explained in Clarkson, the relevant issue is not the existence of consent but the circumstances in which the apparent consent came to be given. Often the apparent consent will reflect a significant age difference and/or power imbalance. But there may also be circumstances (the Court gave the example of a 15 year old girl and an 18 year old boy) where the apparent consent was given freely and genuinely. This Court said that in such cases the offence will be less grave.
The circumstances here were unusual, not because there was apparent consent, but because a sexual relationship had been established before the offence was committed which did not involve any offending because the respondent had then believed on reasonable grounds that the victim was 17. Prosecuting counsel submitted on the plea that the reason why this was a case ‘very low’ on the scale of offending was because of how the relationship started and continued.
There were factors which increased the gravity of the offending. The direct and emphatic police warning was one such factor. The age difference was also significant. This was not a situation of a 15 year old girl and an 18 year old boy.
Apart from the pre-existing relationship, but in that context, there were other relevant factors. The fact that it was the victim who sought out the respondent on 3 September 2015 after he had seen the police, that the respondent and the respondent’s sister confronted her about what the police had told him, that she continued to maintain she was 17 and gave an explanation for what the police had said, and that it was the victim who then sought the respondent out again after he had gone to bed saying that he wanted nothing more to do with her, were all relevant matters. If it had been the respondent who had sought her out, the offending would obviously have been more serious. But these relevant factors should not obscure the fundamental character of this type of offending, as described by this Court in Clarkson.
It must be said that the sentencing judge in the course of the plea hearing made some observations which, in the context, were unwarranted and misconceived. To observe, as he did at one point in the plea hearing, that the victim was a ‘nubile young woman’ and that the offender was not ‘made of steel’[35] suggested an approach which is inconsistent with the nature of this offence, as this Court has explained it in Clarkson. They were observations which mischaracterised the responsibility which the law casts on adults when dealing with people who are not over 16. These misconceived observations were not repeated in the sentencing reasons.
[35]Transcript of Proceedings (19 August 2016) 8.
As both counsel accepted in oral submissions, the trial judge did not make any express finding as to the respondent’s subjective belief at the time of the offence. The trial judge did express the view in the course of the plea that he had no doubt that the respondent believed the victim was 17 up until the time of the offence, but he also expressed the view that that became a bit untenable once he said he wanted nothing more to do with her and went to bed alone. In our opinion what the judge said in the reasons for sentence (quoted earlier) left that issue unresolved.
The issue for this Court is whether the sentence that was imposed is outside the range that was open, and, if so, whether the appeal should nevertheless be dismissed in the exercise of the residual discretion.
In assessing the gravity of the offence, on the one hand, there is the fact that a sexual relationship was established before the offence occurred, without any offence having been committed because the respondent did then subjectively believe on reasonable grounds that the victim was 17. This is unusual. On the other hand, there is the substantial age difference between the respondent and the victim, and the direct and emphatic police warning which, as matters eventually transpired, was ignored by the respondent.
The submission made by senior counsel for the prosecution that the sentence imposed simply does not properly reflect the need for denunciation and for general deterrence in relation to offences of this kind must be accepted. Notwithstanding the unusual circumstances of this offence, the substantial age difference combined with the direct police warning mean that this was not a case appropriately dealt with by a bond. Senior counsel for the prosecution’s submission that the minimum sentence that ought to have been imposed was a CCO must be accepted.
Having said that, it seems to us that the reason an inadequate sentence has been imposed is a result of the position adopted by prosecuting counsel on the plea. As this Court observed in Director of Public Prosecutions v Holder (a Pseudonym):
any inadequacy in the sentence is to be explained both by what the prosecutor said, and by what was left unsaid, on the plea. As a matter of discretion, therefore, the appeal must be dismissed.[36]
[36](2014) 41 VR 467, 475 [39].
Further, if a CCO were to be imposed now the only condition which would seem appropriate is unpaid community work. Senior counsel for the Director disavowed the imposition of any further conditions.
Conclusion
The sentence imposed was manifestly inadequate but, in our view, the appeal should nevertheless be dismissed because the only alternative sentence open is a CCO which, in the circumstances of this case would not have conditions beyond unpaid community work, and because the reason why an inadequate sentence was imposed was because of the approach taken by prosecuting counsel at the plea hearing, both in what was said and what was left unsaid.
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