DPP v Hardy
[2011] VSCA 86
•4 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0140 |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY JOHN HARDY |
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JUDGES: | BUCHANAN, NEAVE and MANDIE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 February 2011 | |
DATE OF JUDGMENT: | 4 April 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 86 | |
JUDGMENT APPEALED FROM: | R v Hardy (Unreported, County Court of Victoria, Morwell, Judge Lawson, 7 April 2010) | |
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CRIMINAL LAW – Crown appeal – Indecent act with a child – Child pornography offences – Effect of abolition of principle of double-jeopardy – Appellant limited by stance of prosecutor at plea – Plea of guilty – Offender mentally retarded – Concurrency – Overlapping of offending – Total effective sentence of three years’ imprisonment with a minimum term of one year and six months’ imprisonment not manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Rapke QC with Mr M Roper | Office of Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Mr G Casement | Victoria Legal Aid (Bairnsdale) |
BUCHANAN JA:
The respondent was arraigned in the County Court and pleaded guilty to a presentment containing two counts of an indecent act with or in the presence of a child under the age of 16 years (counts 1 and 7), two counts of procuring a minor for the purpose of producing child pornography (counts 2 and 5), two counts of producing child pornography (counts 3 and 6), a count of possession of child pornography (count 4) and a count of using an online information service to transmit objectionable material (count 8). The maximum penalty for each of the counts save that of possession of child pornography was ten years’ imprisonment. The maximum penalty for possession of child pornography was five years’ imprisonment.
After a plea, the respondent was sentenced to be imprisoned for a term of six months on each of counts 1 to 4, for a term of 24 months on each of counts 5, 6 and 7 and for a term of 12 months on count 8. The sentencing judge cumulated three months of each of the sentences on counts 5 and 6 and two months of each of the sentences on counts 1, 2 and 8 on each other and on the sentence on count 7. The total effective sentence was three years’ imprisonment. The sentencing judge fixed a minimum term of one year and six months’ imprisonment.
The Director has appealed against the sentence.
The victim of the offending was a 15 year old girl, who met the respondent when she frequented a bicycle shop in Bairnsdale where the respondent was employed as a mechanic. The proprietor of the shop was convicted on a count of maintaining a sexual relationship with the same girl for some two years when she was aged between 13 and 15 years.
The complainant, who was homeless, stayed at the respondent’s flat on a number of occasions in December 2008 and January 2009. The respondent was then aged 29 years.
One night in December 2008, when the complainant was staying at the respondent’s flat and sitting on the bed in his spare room, he came into the room and sat beside her. The respondent hugged the complainant and pestered her for sex. She refused. The respondent fondled her breasts over the top of her bra. The complainant pushed the respondent away. There was no skin to skin contact. Similar conduct took place on three or four other occasions in December 2008. The conduct constituted count 1, a representative count.
In mid January 2009, when the complainant was staying at the respondent’s flat, she became drunk. The complainant went into the bathroom and the respondent followed her. He told her to pull down her pants and pull up her top. She was so drunk that she complied. The respondent took photographs of the complainant’s body on his mobile phone. The conduct constituted counts 2, 3 and 4.
Later in January, when the complainant and a girl, who was her friend, were staying with the respondent at his flat, the respondent purchased alcohol and made both girls drunk. The complainant went into the bathroom. She was followed by the respondent, who told her that he wanted to take photographs of her fingering herself and that she could have more alcohol if she did so. The complainant removed her pants and sat on the bathroom floor. Following instructions by the respondent, the complainant pushed her fingers into her vagina. The respondent told her to move her thumb for a better photograph and to pull her top up further. That conduct constituted counts 5, 6 and 7.
The respondent sent the images on his mobile phone to the proprietor of the bicycle shop (count 8).
The respondent is 33 years’ old. He was an only child, who was raised in Bairnsdale. He had difficulties at school, repeating grades 5 and 6. He can only read and write at a very basic level. He left school during year 9 and obtained spasmodic work as a labourer, in a slaughter yard and as a bicycle mechanic.
The respondent began drinking at the age of 18 and was in the habit of engaging in binges. The respondent was engaged to be married when he was sentenced. His fiancée gave evidence during the course of the plea and said that the respondent had significantly reduced his drinking in the time that he had been with her.
The respondent had previous convictions on counts of sexual penetration of a child under the age of 16 years and an indecent act with a child under the age of 16 years. The offences were committed when the respondent was aged 26 years. The girl was aged 15 years and six months. The respondent also inserted his finger into the vagina of a friend of the first victim and touched her breasts under her clothing. As a result of these convictions, the respondent was sentenced as a serious sexual offender in respect of the counts the subject matter of this appeal. The respondent also had a prior conviction for theft.
Reports by a psychiatrist and three psychologists were tendered in the course of the plea.
The psychiatrist said that the respondent had limited social skills and was mildly mentally retarded. The psychiatrist was of the view that the respondent did not fit the diagnostic criteria for paedophilia, but said that the respondent required treatment as a sexual offender. One of the psychologists reported that the respondent was of below average intelligence and said that he was of the opinion that the respondent satisfied the criteria for paraphilia, which was exhibited by a preference for sexually arousing fantasies and urges involving pubescent girls. He associated that with the respondent’s delay in development of appropriate sexual relationships, and emotional and mental mood patterns which justified sexual contact with teenagers. He said that the respondent had an open and forthcoming attitude when he was interviewed, but thought he would be able to benefit from the sex offender programs. Another psychologist agreed with the conclusion that the respondent was of below average intelligence. She noted the respondent’s willingness to participate in treatment programs. The third psychologist said that the respondent was of borderline intelligence and that his capacity to recognise the consequences of his actions was limited. He thought that the respondent’s level of insight into his behaviour was limited.
On the basis of the psychiatric and psychological material, the sentencing judge said:
I am satisfied having regard to your known level of cognitive functioning, with limited verbal skills and only a basic awareness of social expectations and norms, that your judgment at the time of this offending was impaired and did contribute to the offending to an extent, and I am prepared to moderate to a degree the need to emphasise both general and specific deterrence.
There are two grounds of the appeal. The first is that the sentence on each count, the total effective sentences and the non-parole period are manifestly inadequate. The usual particulars have been supplied, alleging that the sentencing judge failed to give sufficient weight to aggravating factors and sentencing considerations such as deterrence and denunciation and gave too much weight to mitigating factors.
Counsel for the respondent contended that, in order for the appeal to succeed, the appellant was required to establish that the sentence revealed such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle.[1] He submitted that the principle, that something more than manifest inadequacy was required for a Crown appeal to succeed, had survived the statutory abolition of double jeopardy.[2] In my opinion, the submission flies in the face of the decision of this Court in DPP v Karazisis.[3] In that case it was held that s 289 eliminated double jeopardy when considering whether there had been sentencing error.[4] The notion that Crown appeals should be ‘rare and exceptional’ no longer applies.[5]
[1]See Everett v R (1994) 181 CLR 295 (‘Everett’); R v Clarke [1996] 2 VR 520 (‘Clarke’); DPP v Bright (2006) 163 A Crim R 538 (‘Bright’).
[2]See ss 289 and 290 of the Criminal Procedure Act 2009.
[3]DPP v Karazisis; DPP v Bogtstra; DPP v Kantoklotsis [2010] VSCA 350.
[4]Above, [52].
[5]Above, [120]. See also Hili v The Queen (2011) 85 ALJR 195, 207-8 in which the High Court dealt with manifest inadequacy of a sentence in terms of the principles discussed in House v The King (1936) 55 CLR 499, 505.
Although the appellant in a Crown appeal is not required to satisfy a test of greater stringency to establish that a sentence is manifestly inadequate than an offender must meet in order to establish that a sentence is manifestly excessive, Crown appeals are not mirror images of appeals by offenders. There are issues that only arise on Crown appeals and there is a residual discretion to refuse to intervene even if sentencing error has been shown, which survived despite the removal of double jeopardy as one of the bases upon which it can be exercised.[6] Matters such as damage to reputation, legal costs, hardship to third parties, the completion by the respondent of the sentence, the imminent release of the respondent from custody, delay by the Crown, the adoption of a position by the prosecutor at the plea that may have led the sentencing judge into error and an appropriate exercise of mercy by the sentencing judge can lead to an appeal being dismissed.
[6]DPP v Karasisis, above, [100].
The offending was serious. It involved a victim, who was vulnerable by reason of her age and homelessness and who, on two occasions, was rendered helpless by alcohol, which on one occasion was supplied by the respondent. The sentencing judge took these matters into account, saying:
I have already stated that the offending is serious, involving as it does the abuse of a trust of a young and vulnerable person who sought refuge at your flat. You were aware of her difficulties with accommodation and took advantage of her when she stayed with you. On at least one occasion she was drunk with alcohol that you had supplied.
Count 1 was a representative count; the conduct being repeated on perhaps as many as three other occasions, demonstrating a degree of persistent and predatory conduct on the part of the respondent.
At the hearing of the appeal, the Director sought to rely upon matters that appeared in the depositions. The plea was conducted on the basis of a summary prepared by a member of the police force and given to the sentencing judge by the prosecutor. This Court ruled that the appellant could not rely upon material which was not referred to in his outline of submissions and not supplied to the Court or to counsel for the respondent.
The Director also sought to travel beyond the case advanced by the prosecutor at the plea in characterising the respondent’s position vis-à-vis the complainant as in loco parentis. The prosecutor did not suggest to the sentencing judge that the respondent assumed responsibility for the complainant’s welfare and I do not think that it is to be inferred that he did so because he offered occasional accommodation to the complainant.
In her sentencing remarks, the sentencing judge referred to a victim impact statement of the complainant and said that -
these events have in part contributed to her great emotional upset and humiliation. She has lost her ability to trust others. She has low self-esteem and has difficulty processing these events.
In fact, it appears from the victim impact statement that, while the abuse of the complainant by the respondent was a factor contributing to her low self-esteem and behavioural and psychological difficulties, there were other contributing factors such as her inability to live with her mother, dropping out of school, being housed in a motel with a social worker and living in a small town and being the subject of rumours.
The nature of the respondent’s previous convictions had a particular relevance to the need for protection of society. On the other hand, a sentence should not be increased beyond what is proportionate to the crime to extend the period of protection of society from the risk of recidivism by the respondent.[7] The protection of society was also invoked by the respondent’s status as a serious sexual offender. The legislature requires the Court to regard protection of the community from the offender as the principal purpose for which the sentence is imposed.[8] The sentencing judge recounted that a psychologist was of the opinion that without treatment the respondent belonged to a group with at least a moderate, and likely a high risk of re-offending in a sexual manner. In this respect, however, it is also relevant that the respondent exhibited an interest in and willingness to undergo treatment for his deviant sexual desires. Two of the psychologists thought that the respondent would respond positively to treatment. The respondent is now engaged to a 30 year old woman.
[7]Veen v The Queen (No 2) (1988) 164 CLR 465.
[8]See s 6D of the Sentencing Act 1991. See also R H McL v R (2003) 203 CLR 452, [76] (McHugh, Gummow and Hayne JJ).
The respondent could rely upon mitigating factors of some weight. He pleaded guilty at the earliest opportunity. He was co-operative with the police. By his plea, the respondent spared the victim the hardship of giving evidence and facilitated the course of justice. The sentencing judge accepted that the plea was evidence of remorse. There was some delay in proceeding against the respondent. He was initially interviewed in January 2009, but the plea did not take place until December 2009. The respondent is in protective custody, which will render his incarceration more onerous. The respondent took steps towards his rehabilitation while he was on bail in that he significantly modified his drinking habits. The respondent’s mental retardation had an effect upon the offending, and the principles referred to in R v Verdins[9] were applicable.
[9](2007) 16 VR 269.
The sentencing judge emphasised on several occasions in the course of the plea the importance of the respondent’s ‘assessment as to suitability for sex offender’s treatment program so as to place him in the best possible situation upon his ultimate release’. In this connection, her Honour noted that the respondent did not receive any treatment while in prison for the earlier sexual offences.
In my opinion, the sentence imposed upon the respondent was lenient, even when regard is had to the significant mitigating factors that were present. I do not consider, however, that the sentence exhibited error which requires intervention by this Court.
The second ground of appeal is that the lack of cumulation in respect of
counts 2, 3 and 4 was an error and thereby the sentencing judge failed to properly apply the principle of totality and reflect the fact that multiple separate offences had been committed.
The offending in question occurred over a relatively short period of time and contained similar elements. In my view, a measure of concurrency was required in order to ensure that the respondent was not doubly punished for the overlap in the nature of the offending in counts 2, 3 and 4.
In the course of the plea, the sentencing judge remarked that there was a degree of overlapping in the child pornography counts and said:
I did raise this directly with [the prosecutor] on the previous occasion because it does confirm it and he sought instructions, as I understand it, from the permanent Crown prosecutor and he came back and agreed that the fact circumstances were within a very short time frame and the outcome can be dealt with by way of concurrency between the sentences, that was my understanding.
The prosecutor responded:
That’s so, your Honour.
I do not think that the sentencing judge can now be criticised for adopting a course in which the prosecutor acquiesced.[10]
[10]See DPP v Avci (2008) 21 VR 310, 317 (Maxwell P).
For the foregoing reasons, I would dismiss the appeal.
NEAVE JA:
I agree with Buchanan JA that the principles in Everett v The Queen,[11] R vClarke[12] and Director of Public Prosecutions v Bright[13] no longer apply to Crown appeals, as a consequence of the statutory abolition of double jeopardy in ss 289 and 290 of the Criminal Procedure Act 2009.
[11](1994) 181 CLR 295.
[12][1996] 2 VR 520.
[13](2006) 163 A Crim R 538.
In Director of Public Prosecutions v Karazisis[14] a majority of the Court[15] said that:
The notion that Crown appeals should be ‘rare and exceptional’ no longer applies as a sentencing principle to which this Court must have regard. The legislature, by excluding double jeopardy from consideration by the Court has placed the sole responsibility with the Director for ensuring that Crown appeals are only instituted in those circumstances which meet the criteria for such appeals. As we have said, the principles which lie at the heart of the double jeopardy rule continue to have operative force. Those principles are to be taken into account by the Director in determining whether it is truly in the public interest for an appeal to be brought. The filter has shifted from the Court, to the Director, who must, in accordance with the Act, turn his mind to the considerations which lie at the heart of double jeopardy as part of the requirement that he have regard, when deciding whether to institute an appeal, to whether it is really in the public interest to do so.[16]
[14][2010] VSCA 350.
[15]Ashley, Redlich and Weinberg JJA.
[16][2010] VSCA 350, [120].
The majority went on to say that Crown appeals against inadequacy of sentence were not to be regarded as simply the other side of the coin of an offender’s appeal against a manifestly excessive sentence.[17] This remark appears to reflect both the majority view that the removal of the double jeopardy principle remains relevant to the Director’s discretion as to whether to institute an appeal, and the view of all members of the Court that, even when a sentence is shown to be manifestly inadequate, there is a residual discretion to decline to re-sentence an offender. Warren CJ and Maxwell P took a different view of the effect of the removal of double jeopardy on the Director’s role, but also held that Everett, Clarke and Bright no longer apply. After describing the development of jurisprudence in the High Court which differentiated between Crown appeals and offender appeals against sentence, because of the double jeopardy principle applicable to the former, they said:
[17]Ibid [123].
The High Court’s decisions in Malvaso[18] and Everett,[19] and their emphasis on double jeopardy and rarity, occasioned a shift at the State appellate level away from treating Crown and offender appeals as subject to the same
principles for the purposes of identifying error.[20] As set out in R v Clarke,[21] and later in DPP v Bright,[22] such appeals were now subjected to a more stringent analysis at the stage of identifying error, rather than simply at the stage of deciding whether a different sentence should be imposed.
As the reasons of the majority demonstrate, however, the enactment of the Criminal Procedure Act 2009 … means that double jeopardy considerations have no longer any role to play at any stage of the appellate consideration of a Director’s appeal against sentence.[23]
[18]Malvaso v The Queen (1989) 168 CLR 227.
[19](1994) 181 CLR 295.
[20]A position which was itself based on traditional principles of legislative interpretation.
[21][1996] 2 VR 520.
[22](2006) 163 A Crim R 538.
[23][2010] VSCA 350, [12]-[13] (emphasis added).
With considerable hesitation I would also dismiss the appeal. In my opinion, some of the individual sentences and the total effective sentence were very lenient. However, I would accept that the sentences fell just within the range of those sentences which could be imposed, having regard to the applicant’s borderline intellectual capacity and the other matters to which Buchanan JA refers.
MANDIE JA:
I agree with Buchanan JA.
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