Gaunt v The Queen

[2019] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0068

AARON GAUNT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2019
DATE OF JUDGMENT:	29 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 241
JUDGMENT APPEALED FROM:	R v Gaunt (Unreported, County Court of Victoria, Judge Lacava, 19 April 2018)

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CRIMINAL LAW – Application for leave to appeal against sentence – Possess and transmit child pornography and drug trafficking offences – Proposed ground expressed as totality – Proposed ground concerned non-parole period – Ratio of non-parole period to head sentence invites scrutiny – Proposed ground arguable – Non-parole period justified by poor prospects of rehabilitation and moral culpability – Leave granted but appeal dismissed – Romero v The Queen (2011) 32 VR 486, Cummins (a pseudonym) v The Queen (2013) 40 VR 319 referred to.

CRIMINAL LAW – Sentencing – Sentenced as serious sex offender on Commonwealth offences – Serious offender provisions not applicable to Commonwealth offences – Order amended – Sentencing Act 1991 s 6F – Criminal Procedure Act 2009 s 325 – McKenzie v The Queen [2018] VSCA 34 applied.

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APPEARANCES:	Counsel	Solicitors
Applicant	Mr C K Wareham	Valos Black & Associates
Respondent	Mr C T Carr	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

1. On 15 February 2018 the applicant pleaded guilty in the County Court to eleven charges on an indictment containing Commonwealth and State offences, and to four related summary charges.  He was sentenced on 19 April 2018 to a total effective term of imprisonment of 4 years 8 months.[1] On 17 May 2018 the sentences on certain of the offences were amended under s 104A of the Sentencing Act 1991 so as to include a declaration that the applicant had been sentenced as a serious sexual offender.[2]

   [1]R v Gaunt (Unreported, County Court of Victoria, Judge Lacava, 19 April 2018) (‘Reasons’).

   [2][2018] VCC 910.

1. Pursuant to s 279 of the Criminal Procedure Act 2009 an application for leave to appeal against sentence is to be commenced by filing a notice of application for leave to appeal within 28 days after the day on which the person is sentenced or any extension of that period granted under s 313 of the Act.  Section 313 empowers the Court of Appeal or the Registrar of Criminal Appeals to extend time, and provides that where the Registrar of Criminal Appeals refuses an application to extend the applicant is entitled to have the Court of Appeal determine the application. 

1. By an application dated 1 April 2019 the applicant sought an extension of time within which to file an application for leave to appeal his sentence.  The Registrar of Criminal Appeals refused the application.  The applicant elected to have the application to extend time determined by the Court of Appeal.

The extension of time

1. Shortly prior to the hearing of the application to extend time, the solicitor for the respondent advised the Court that the respondent considered that an error had been made in the amending order of 17 May 2018.  The amendment made was to add a declaration that the applicant had been sentenced as a serious sexual offender on five specified offences (charges 3, 6, 7, 9 and 11).  Four of those offences were Commonwealth offences (charges 3, 6, 7 and 9).  The respondent pointed out that the declaration made in relation to the Commonwealth offences was inconsistent with this Court’s decision in McKenzie v The Queen.[3]  There it was held that the serious offender provisions of the Sentencing Act 1991 do not apply when an offender is being sentenced on Commonwealth offences. The respondent advised that it was ‘desirable’ that the error be corrected, and that if the extension of time were granted then the error could be corrected, either by a new sentence if leave to appeal were granted and the appeal succeeded, or pursuant to s 325 of the Criminal Procedure Act 2009.[4]

   [3][2018] VSCA 34, [22].

   [4]In that connection reference was made to Ha v The Queen (2014) 44 VR 319, 333 [96] where it was held that the addition of a declaration could not fall within s 325. What is sought here is not the addition of a declaration but rather the setting aside or variation of an ancillary order which was made, that being a course expressly provided for by s 325(2).

1. At the outset of the hearing this matter was raised.  Counsel for the respondent agreed that the error could not be corrected unless an extension of time were granted.  In the circumstances, an order was made extending time for the application for leave to appeal against sentence.  The hearing continued in relation to that application on the basis that should leave be granted, the appeal would be determined forthwith. 

The proposed ground of appeal

1. The proposed ground of appeal is expressed to be in relation to totality.  The proposed ground reads:

The learned sentencing judge erred by imposing a total effective sentence and non-parole period which offends the totality principle.

1. The submissions put in support of that proposed ground addressed only the issue of the non-parole period.  The written case conceded that ‘no criticism’ could be made of the head sentence imposed in the case.  Given the very confined ambit of the proposed ground, the circumstances of the offending, the applicant’s personal circumstances and criminal history, the sentence imposed, and the judge’s Reasons, can be dealt with succinctly.     

The offending

1. The eleven charges on the indictment were five charges of using a carriage service to transmit child pornography (charges 1, 3, 6, 7 and 9), one charge of possession of child pornography (charge 2), one charge of possession of child abuse material (charge 11), two charges of obtaining financial advantage by deception (charges 4 and 5), one charge of trafficking in a drug of dependence (charge 10) and one charge of publishing a document containing instructions for trafficking or cultivating a drug of dependence (charge 8).  The four summary offences were failing to answer bail (charge 4), committing an indictable offence whilst on bail (charge 8), intentionally distributing an intimate image of another person (charge 12) and contravening a family violence intervention order (charge 13).

1. The offending occurred between September 2016 and August 2017.

1. The child exploitation material included images of a particularly serious kind, involving the penetration of pre-pubescent females.  In November 2016, the applicant was arrested, interviewed, charged with child pornography offences (charges 1 and 2), and released on bail.  Thereafter, between 23 April 2017 and 10 August 2017 the applicant committed five further child pornography offences (charges 3, 6, 7, 9, and 11).

1. The summary offence of intentionally distributing an intimate image was an image of the applicant’s former domestic partner and the summary offence of contravening a family violence intervention order was also against her.

1. The drug offences concerned the production of ‘amphetamine type substances’. 

1. The two charges of obtaining financial advantage by deception were constituted by two cheques for $520 and $500 respectively which the applicant cashed forging his father’s signature.

Applicant’s personal circumstances and criminal history

1. At the time of the offending the applicant was aged between 36 and 37 years.  He was 38 years old at the time of the sentence.  His background and upbringing are unremarkable.

1. On the plea a ‘psycho-sexual report’ by the clinical and forensic psychologist, Dr Simon G Kennedy, dated 15 July 2016, was tendered.  The report had not been prepared for the purpose of the criminal proceeding.  It had been prepared for the purpose of family law proceedings.  Amongst Dr Kennedy’s conclusions were the following:

Currently, Mr Gaunt presents as a man with a Personality Disorder with Antisocial features.  He has a long history of substance addiction. 

The evaluation is suggestive of the likelihood of Mr Gaunt continuing to utilise substances. 

The Violence Risk Evaluation rates him at High risk for re-offending with respect to violence. 

The RSVP rated Mr Gaunt at Low-Moderate risk for sexual offending, taking into account that there is no clarity regarding the allegations concerning sexual offending.  If the allegations against him are correct, the chances of him re-offending would be significantly higher. 

1. As matters have transpired, the allegations of sexual offending against him were correct. 

1. The applicant has prior convictions for drug related offences, crimes involving violence, and driving offences, but no prior convictions for sexual offences.  He has previously received non-custodial dispositions (which, on at least one occasion, he has breached) and has previously been sentenced to terms of imprisonment. 

The sentence

1. The five charges of using a carriage service to transmit child pornography (charges 1, 3, 6, 7 and 9) were each Commonwealth offences.  The other charges were State offences.  The difficulties and complexities which confront a sentencing judge when required to sentence on multiple State and Commonwealth offences were set out in some detail by this Court in DPP v Swingler.[5]  Recognising the ‘extraordinary difficulties’ associated with complying with the applicable legislation, this Court set out three possible ways in which a sentencing judge might proceed.  The second of those possibilities was the following:

The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.[6]

[5][2017] VSCA 305, [63]–[87].

[6]Ibid [78].

1. In the Reasons the County Court judge said that he proposed to adopt the approach set out above from DPP v Swingler, and in due course he did so.  The sentences which he imposed are set out on the annexed schedule.

1. The effect of the sentences imposed was as follows:

·The total effective State sentence was 4 years’ imprisonment, with a non-parole period of 2 years 8 months.  That sentence commenced (subject to pre-sentence detention) on the date of sentence.

·The total effective Commonwealth sentence was 2 years’ imprisonment.  One year of that two year period was the subject of a recognizance release order.  The two year Commonwealth sentence (one year of which was the subject of a recognizance release order) commenced on expiration of the State non-parole period.

·Accordingly, the total effective sentence was 4 years 8 months’ imprisonment and the applicant would be eligible for release (on parole and a recognizance release order) after 3 years 8 months.

·There is an ‘overlap’ period of 4 months (after 3 years 8 months) where the State sentence has four months yet to run, where the applicant will be eligible for State parole, and where the recognizance release order is running. 

The Reasons

1. The sentencing judge referred to DDP v Swingler and the approach which he proposed to adopt.[7]

   [7]Reasons [5].

1. He outlined the circumstances of the offending and referred to the applicant’s prior convictions.[8]

   [8]Reasons [6]–[31].

1. The sentencing judge indicated that the applicant’s guilty pleas had both utilitarian value and also represented evidence of remorse.[9]

   [9]Reasons [33]–[35].

1. The judge set out the applicant’s personal history and referred to psychological reports which had been obtained in relation to other proceedings, including Dr Kennedy’s report.[10]

   [10]Reasons [37]–[44].

1. The sentencing judge expressed considerable doubt as to whether the applicant would be able to remain drug free after release from prison and expressed the conclusion that his prospects for rehabilitation were ‘poor’.[11]

   [11]Reasons [45].

1. The Reasons do not contain any explanation for the non-parole period and the recognizance release order period fixed by the sentencing judge.

Submissions

1. The applicant’s written case addressed the ratio between the total effective sentence and the non-parole period.  The following submission was made:

As a consequence of his Honour’s orders, the applicant’s minimum non-parole period is 91.6% of the total custodial portion of his sentence.

A footnote to that sentence reads:

The applicant would be required to serve in the order of 73% of his total sentence before becoming eligible for release on parole.

1. The 91.6 per cent figure was arrived at by ignoring the recognizance release order period.  In oral submissions the applicant’s counsel accepted that if the recognizance release order period were to be equated with parole the relevant percentage was 78.5 per cent.

1. The applicant relies upon authorities of this Court to the effect that, whilst there is no usual or standard non-parole period, a ratio of more than 75 per cent between the head sentence and the non-parole period would normally require an explanation.[12]  It was submitted that no such explanation was to be found in the Reasons, and that the proportion here was excessive. 

   [12]Romero v The Queen (2011) 32 VR 486, 493 [25] and Cummins (a pseudonym) v The Queen (2013) 40 VR 319, 333 [80].

1. The respondent submitted that the total effective term is 4 years 8 months’ imprisonment and that the applicant will be eligible for release after 3 years 8 months, which is 78.5 per cent of the total effective term.

1. The respondent accepted that the Reasons contain no explanation for the non-parole period and recognizance release order period.  It was submitted, however, that the explanation was readily apparent.  The judge had to consider what was the minimum period of custody which was required to be served in the circumstances of the case.  It was submitted that the minimum period imposed here was warranted by the applicant’s very high moral culpability and his poor prospects of rehabilitation.

1. In relation to moral culpability reference was made to the nature, diversity and persistence of the applicant’s offending, in particular his offending after he had been arrested, charged and bailed in November 2016.  It was submitted that the judge’s finding that the applicant had poor prospects of rehabilitation was fully warranted by the applicant’s criminal history, the nature of the offending, the fact that he had offended after having been arrested and whilst on bail, and the fact that he had demonstrated insight into the nature and causes of his offending when interviewed in November 2016.  Reliance was placed upon Dr Kennedy’s report concerning the risk of the applicant re-offending.

1. The respondent submitted that in all the circumstances it was justifiable to require that a high proportion of the sentence be served before being eligible for release.

Analysis

1. It cannot be repeated often enough that the position created by the applicable legislation when a judge is required to sentence on Commonwealth and State offences is entirely unsatisfactory and requires legislative attention by the Commonwealth Parliament.  The matter has been addressed often in the past, and, in particular, by this Court in DPP v Swingler.  Even calculating the effect of the sentences imposed in this case is an exercise of significant complexity.

1. The exercise having been undertaken, however, it seems to me that there is no proper basis to interfere with the sentence imposed by the sentencing judge in this case.  It is true that the proportion of the sentence that must be served before the applicant becomes eligible for release is high.  In the absence of an explicit explanation, it is high enough to justify the grant of leave to appeal, as it is arguable that the proportion is excessive.  When the particular facts are considered, however, the proportion imposed is not outside the range reasonably open to the sentencing judge for the reasons advanced on behalf of the respondent.  The applicant’s prospects of rehabilitation are poor.  His moral culpability in relation to the offending is very high. 

1. I would grant leave to appeal but dismiss the appeal. 

Correction of the error

1. In my view the serious offender declaration made does need to be corrected.  The order should be varied accordingly. 

PRIEST JA:

1. I agree with Whelan JA.

SCHEDULE

Charge	Offence	Maximum	Sentence	Cumulation
Indictable offences
1.	Use carriage service to transmit child pornography material	15 years’ imprisonment	18 months’ imprisonment	To commence at the expiration of the State non-parole period
2	Possess child pornography	10 years’ imprisonment	12 months’ imprisonment	Concurrent with the sentence imposed on charge 11
3	Use carriage service to transmit child pornography material	15 years’ imprisonment	3 months’ imprisonment	To commence at the expiration of the State non-parole period
4	Obtain financial advantage by deception	10 years’ imprisonment	1-month imprisonment	Concurrent with the sentence imposed on charge 11
5	Obtain financial advantage by deception	10 years’ imprisonment	1-month imprisonment
6	Use carriage service to transmit child pornography material	15 years’ imprisonment	12 months’ imprisonment	To commence 12 months after the expiration of the State non-parole period.
7	Use carriage service to transmit child pornography material	15 years’ imprisonment	1-month imprisonment	To commence at the expiration of the State non-parole period
8	Publication of document containing instructions for trafficking or cultivation of a drug of dependence	10 years’ imprisonment	9 months’ imprisonment	Concurrent with the sentence imposed on charge 11
9	Use carriage service to transmit child pornography material	15 years’ imprisonment	9 months’ imprisonment	To commence at the expiration of the State non-parole period
10	Traffick drug of dependence	15 years’ imprisonment	2 years’ imprisonment	1 year cumulated on charge 11
11	Possess child abuse material	10 years’ imprisonment	3 years’ imprisonment	Base
Related Summary charges
1	Failure to appear in accordance with bail undertaking	2 years’ imprisonment	1-month imprisonment	Concurrent with the sentence imposed on charge 11
8	Commit indictable offence whilst on bail	3 months’ imprisonment	1-month imprisonment
12	Intentionally distribute intimate image of another	2 years’ imprisonment	3 months’ imprisonment
13	Breach family violence intervention order	2 years’ imprisonment	3 months’ imprisonment
Total State Sentence:		4 years’ imprisonment
State Non-Parole Period:		2 years and 8 months’ imprisonment
Total Commonwealth Sentence:		2 years’ imprisonment commencing upon expiration of State non-parole period
Recognizance Release Order:		After serving 12 months of Commonwealth sentence
Total Effective Sentence:		4 years 8 months
Period before earliest release:		3 years 8 months
Pre-sentence detention declared:		252 days
6AAA Statement:		8 years’ imprisonment with a non-parole period of 6 years
Other orders:		Sex Offender Registration: Life Declaration as a Serious Sex Offender on charge 11