Giri v The Queen
[2022] VSCA 64
•8 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2022 0031
| BAILEY GIRI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 April 2022 |
| DATE OF JUDGMENT: | 8 April 2022 |
| DATE OF REASONS: | 12 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 64 |
| JUDGMENT APPEALED FROM: | DPP v Giri (Unreported, County Court of Victoria, Judge M Bourke, 28 February 2022) (Sentence) |
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CRIMINAL LAW – Appeal – Sentence – Sexual and other offending against children under 16 – Three complainants aged 14 and 15 – Applicant aged 18 to 20 – Full scale IQ of 66 and Autism Spectrum Disorder – Imprisonment for 12 months with conditioned CCO of two years’ duration – Applicant disputed facts in Prosecution Opening – Whether sentencing judge erred in taking disputed facts into account – Applicant wrongly sentenced as serious sexual offender – Leave to appeal granted – Appeal allowed – Sentenced to 40 days’ imprisonment with conditioned CCO of two years’ duration.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Boston | Dribbin & Brown Criminal Lawyers |
| For the Respondent | Mr C B Boyce SC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
On 17 September 2021, the applicant pleaded guilty in the County Court to one charge of sexual penetration of a child under 16[1] (charge 1), one charge of using a carriage service for indecent communication to a child under 16[2] (charge 2), one charge of sexual assault of a child under 16[3] (charge 3) and one charge of supplying a drug of dependence to a child[4] (charge 4). Shortly after the plea hearing commenced, the judge adjourned the matter and ordered the provision of a report under s 80(3) of the Sentencing Act 1991 (‘the Act’), directed to the applicant’s suitability for a justice plan.
[1]Crimes Act 1958, s 49B(1). The maximum penalty is 15 years’ imprisonment. By virtue of s 49B(3), the standard sentence is 6 years.
[2]Criminal Code (Cth), s 474.27A(1). At the relevant time the maximum penalty was seven years’ imprisonment. It was subsequently increased to 10 years’ imprisonment. See Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (No 70 of 2020), s 3 and Sch 5, item 21.
[3]Crimes Act 1958, s 49D(1). The maximum penalty is 10 years’ imprisonment. By virtue of s 49D(2A), the standard sentence is 4 years.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 71B(1)(b). The maximum penalty is 15 years’ imprisonment.
When the plea hearing resumed on 22 November 2021, the Summary of Prosecution Opening for Plea (‘Prosecution Opening’), dated 25 August 2021, was received as an exhibit (Exhibit A). The judge ordered under s 8A of the Act that Forensicare[5] provide a pre-sentence report, and the matter was again adjourned part-heard.
[5]Victorian Institute of Forensic Mental Health.
The plea hearing resumed on 2 February 2022, but was once more adjourned part-heard so that the parties could consider De Simoni.[6]
[6]R v De Simoni (1981) 147 CLR 383 (‘De Simoni’).
On 22 February 2022, the plea hearing resumed, at the conclusion of which the judge ordered a further report directed to the applicant’s suitability for a community correction order (‘CCO’).
A week later, on 28 February 2022, the judge sentenced the applicant to 10 months’ imprisonment on charge 1 and to three month’s imprisonment on charge 3 — two months of which was to be served cumulatively — leading to a total effective sentence of 12 months’ imprisonment. Additionally, the applicant was sentenced on all charges to a CCO of two years’ duration, with conditions that the applicant: perform 200 hours of unpaid community work as directed (100 hours of program work to be set off); undergo mental health assessment and treatment; be under the supervision of a Community Corrections Officer; participate as directed in programs and courses directed specifically to his offending behaviour; and be subject to judicial monitoring.[7]
[7]Pursuant to s 6AAA of the Act, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to two years and six months’ imprisonment, with a non-parole period of 15 months.
Initially, the applicant sought leave to appeal against the sentences of imprisonment on charges 1 and 3 on two grounds as follows:
1 The learned sentencing judge erred in sentencing the applicant on the basis of a prosecution opening the accuracy of which the defence did not accept.
2 The sentences imposed on Charges 1 and 3 (including the order for cumulation) are manifestly excessive, having regard to the significant factors in mitigation, including the guilty plea, youth, intellectual disability, and lack of criminal history.
When the application came on for hearing in this Court, counsel for the applicant orally sought, and was granted, leave to add a third ground:[8]
3 The learned sentencing judge erred in sentencing the applicant as a serious sexual offender on Charge 3.
[8]Counsel also sought leave to abandon the first ground. Leave was refused.
At the conclusion of oral argument, we announced that we were of the view that the first and third grounds must succeed. We thus made orders granting leave to appeal and allowing the appeal, and we resentenced the applicant in the manner set out below.[9] These are our reasons for those orders.
[9]At [47].
The offending
At the time of offending, the applicant was aged between 18 and 20 years.[10] He is intellectually disabled, with a full scale IQ of 66.
[10]His date of birth is 12 December 1999.
Although it may not be appreciated from its drafting, the first proposed ground of appeal is concerned solely with the Prosecution Opening’s description of the circumstances of charge 1. As will become clear when we come to consider ground 1, the italicised passages in the Prosecution Opening set out immediately below are significant:[11]
[11]Footnotes omitted; emphasis added.
6. The first victim, [GK], met the [applicant] online via the social media application ‘SnapChat’ in 2018. The victim was aged 14 years old at the time. The [applicant] and the victim engaged in general conversation for a period of 2 – 3 weeks. During this period, the victim told the [applicant] her age. The [applicant] told the victim that he was 1 year older than her.
7. On a date between 1 August 2018 and 31 December 2018, the [applicant] invited the victim to his address one evening. Upon arrival, the [applicant] escorted the victim to his bedroom.
8. As soon as they entered the bedroom, the [applicant] grabbed the victim and began kissing her. He also put his hand under her top and touched her breasts and body. The [applicant] then put his hand down the victim’s pants and began touching her vagina over her underwear. (Uncharged acts – context)
9. The victim was not expecting any sexual contact with the [applicant] and stated she was scared at this point. The [applicant] then placed his hand underneath the victim’s underwear and began to touch her vagina. Without warning, the [applicant] then inserted his fingers into her vagina. The victim pleaded with the [applicant] to stop. However, the [applicant] continued to digitally penetrate the victim’s vagina causing her pain.
[Charge 1 – sexual penetration of a child under 16 (rolled up charge)]
10. The [applicant] then pushed the complaint onto the bed. The [applicant] removed the victim’s underwear and began to lick her vagina. The [applicant] penetrated the victim’s vaginal lips with his tongue.
[Charge 1 – sexual penetration of a child under 16 (rolled up charge)]
11. The [applicant] then, without warning, again inserted his fingers into the victim’s vagina. This act caused the victim pain. The [applicant] withdrew his fingers upon the victim making a noise as a result of the pain.
[Charge 1 – sexual penetration of a child under 16 (rolled up charge)]
12. The victim asked the [applicant] to stop a she was scared and upset. The [applicant] did not reply. He then removed his pants exposing his penis. The [applicant] got on top of the victim and used his arm to pin the victim onto the bed. The [applicant] then inserted his penis into her vagina and began penetrating in a thrusting motion. The [applicant] was not wearing a condom. The [applicant] then withdrew his penis briefly before reinserting it again into the victim’s vagina. The [applicant] continued to penetrate the victim’s vagina in a forceful manner causing the victim extreme pain.
[Charge 1 – sexual penetration of a child under 16 (rolled up charge)]
13. The [applicant] then removed his penis from the victim’s vagina and ejaculated over her vaginal area and jumper. The [applicant] handed the victim a towel to wipe herself. After doing this, the victim told the [applicant] she was leaving. The victim then left the address and has had no contact with the [applicant] since this event.
The Prosecution Opening described the circumstances of charges 2 to 4 as follows:
14. Between January 2019 and December 2019, the [applicant] commenced a friendship with the second victim [BH] via the social media application ‘SnapChat’. The [applicant] told the victim that he was 18 years old. The victim told the [applicant] that she was 15 years old.
15. The victim and the [applicant] spoke online for about 1 – 2 months before the [applicant] requested that the victim send him naked images. The victim refused. The [applicant] called the victim a slut and sent the victim videos via SnapChat of himself masturbating.
[Charge 2 – transmit indecent image to child]
16. The [applicant] removed the victim from the SnapChat friendship group after she refused to send him naked images.
…
17. During April 2020, the [applicant] commenced a friendship with the third victim, [JT], via the social media application ‘SnapChat’. The [applicant] told the victim that he was 20 years old. The victim told the [applicant] that she was 14 years old. They continued to speak online for about 2 – 3 weeks before the [applicant] asked the victim to send him naked images of herself but she refused to do so.
18. The [applicant] again asked the victim how old she was and she replied that she was 14 years old. The victim asked the [applicant] what he wanted from her and he replied that he wanted a relationship. The victim stated she was not interested.
19. On a date between 1 and 31 May 2020 the [applicant] and the victim agreed to meet at a nearby housing estate. They walked around for about 10 minutes. It began raining and the [applicant] began hugging the victim. The [applicant] suggested they go back to his address to ‘hang out’. The victim was reluctant to do so and told the [applicant] that she did not want anything sexual to happen. They both returned to the [applicant’s] address.
20. Upon arrival, the [applicant] and the victim went straight to his bedroom. They sat on the bed and played ‘PlayStation’.
21. After some time, the [applicant] attempted to push the victim backwards onto the bed. He then kissed the victim on the lips. The victim told the [applicant] to stop several times. The victim then pushed back against the [applicant] trying to make him stop.
[Charge 3 – sexual assault of a child under 16 (rolled up charge)]
22. The [applicant] then grabbed the victim’s breasts over her clothing.
[Charge 3 – sexual assault of a child under 16 (rolled up charge)]
23. The [applicant] also placed his hands onto the victim’s bottom and squeezed it over her clothing. The victim continued to tell the [applicant] to stop and eventually he did.
[Charge 3 – sexual assault of a child under 16 (rolled up charge)]
24. The [applicant] then prepared a ‘bong’ from a bowl containing cannabis. The victim smoked 3 bongs of cannabis prepared by the [applicant].
[Charge 4 – supply a drug of dependence to a child]
Ground 1: A sentence on disputed facts
Counsel for the applicant provided written submissions to the sentencing judge which challenged aspects of the Prosecution Summary relating to the first charge. In part, the submissions were as follows:[12]
[12]Emphasis and footnotes as in original.
67. A serious issue arises from the … Prosecution Opening.
68. The facts referable to the Complainant [GK] for Charge 1, plainly read as those that make out much graver offences, namely that of rape. By way of example, the Opening asserts:
(a) That the victim pleaded with the [applicant] to stop, however he continued to digitally penetrate her vagina causing pain.[13]
(b) The [applicant] then pushed the Complainant onto the bed, and licked her vagina.[14]
(c) The Complainant asked the [applicant] to stop again, but he undressed and pinned her to the bed and inserted his penis into her vagina, which ultimately occurred in a forceful manner causing her pain.[15]
69. Despite the objection of the Defence, the Prosecution seek that [the applicant] be sentenced on these facts.
70. Whilst those facts are not agreed for the purposes of the plea, it is submitted that in the approach to sentencing, the court should not take to them into account in any event, as to do so would be to sentence for an offence for which [the applicant] is not charged, infringing the principle in R v De Simoni (1981) 147 CLR 383. Undoubtedly these facts, even if taken into account in aggravation, would have warranted conviction for a more serious offence, namely rape.[16]
71. The consequence of the application of this principle might well result in an artificially restricted view of the facts in this matter.[17]
72. Applying these important principles, it is submitted that the above matters should not form the basis for sentencing [the applicant].
[13]See Paragraph [9].
[14]See Paragraph [11].
[15]See Paragraph [12]. [The Prosecution Opening does not include the word ‘again’.]
[16]R v De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ.
[17]This is precisely what was discussed in R v De Simoni (1981) 147 CLR 383 at page 292, and R v Newman and Turnbull [1997] 1 VR 146 at pages 150 to 152.
In oral submissions on the plea, counsel for the applicant adhered to the contentions set out in his written submissions. Hence, counsel made it clear that the applicant did not accept at least three of the asserted facts contained in the Prosecution Opening (which, as seems to have become the convention, was tendered as an exhibit and read aloud on the plea).
Among others, the prosecutor made the following submissions in the course of the continuation of the plea on 22 February 2022:[18]
The matters raised in the prosecution opening … — the circumstances of offending in relation to the victim [GK] set out in paragraph 6 through to 13,[[19]] my learned friend refers to these matters in paragraphs 67 through to 72 of his written submissions on behalf of the [applicant][[20]] … So the matters that are set out in the prosecution opening are based of course on what [GK] says occurred. And they’re really the particulars of the lack of consent which is there nonetheless just by statutory operation. That’s her description of what happened and it flows that her description of what happened from her perspective is highly relevant to the issue of victim impact. … Now, in terms of what she says happened, that’s the prosecution case. That’s how the prosecution puts its case. My learned friend effectively wants Your Honour to ignore that and the only way that Your Honour could justifiably do that is if there was a contested plea and Your Honour made a finding as to what the facts are.
And I’ve conveyed that position to [defence counsel] on a number of occasions. If that’s what he wants, that’s what he can have. …
[18]Emphasis added to this and following passages.
[19]See [10] above.
[20]See [12] above.
Shortly afterwards, there was the following exchange:
[PROSECUTOR]: The fact is we’ve got [GK’s] account. This is what she says. It’s highly relevant to the question of victim impact and he’s charged with an appropriate offence. We’re not seeking to prove that he knew that she was not consenting, we’re not seeking to prove a charge of rape and we are not seeking that in sentence for a charge of rape.
But we are seeking, having sentenced against a proper factual backdrop as described by the complainant and unchallenged by evidence from the defence at this point, and I repeat my previous - - -
HIS HONOUR: Well, he’s not obliged to challenge it by evidence, but he’s got to challenge it.
[PROSECUTOR]: Well, he could challenge it any way he likes. But he can have his contested plea if he wants it or he can have the summary as it is and in my submission it should sit as it is and it’s relevant for the purpose that Your Honour and I have discussed, highly relevant on the question of victim impact and the other points I was going to make, just to complete that sequence. Not only is it a multiplicity of penetrations but he took advantage of this girl in his own home. He knew she was under 16, he knew that it was wrong. …
It is plain that the applicant’s counsel on the plea continued to challenge the three factual aspects of the Prosecution Opening referred to above, and did not elect to ‘have the summary as it is’. Counsel for the applicant made it clear that the disputed facts were not agreed for the purposes of the plea; the sentencing judge should not take them into account; and they ‘should not form the basis for sentencing’.[21] The prosecution did not, however, seek to lead evidence to establish the disputed facts.[22]
[21]We note that in the respondent’s response to the applicant’s written case, counsel contended that it is ‘apparent’ from the passage extracted in [15] (and others), ‘that counsel [for the applicant] abandoned during oral argument, expressly, any submission to the effect that the prosecution would be required to prove by reference to evidence that acts committed upon the first complainant were committed without her consent’. Counsel for the respondent maintained that position in oral argument.
[22]Presumably, the prosecution could have undertaken the task of establishing the disputed facts by having GK give evidence confirming the accuracy of her VARE (Video and Audio Recorded Evidence) statement to police, where evidence of the disputed facts may be found.
In his sentencing reasons, the judge remarked that the ‘circumstances are set out in the [Prosecution Opening] which is Exhibit A’. And in part of his reasons concerning the circumstances on charge 1, the judge said:
[12] Charge 1 is a rolled up charge incorporating at least four, perhaps five sexual penetrations. GK’s account describes digital penetration causing her pain, being pushed onto the bed and then oral penetration of her, a second digital penetration, also causing pain. …
On their face, the judge’s reasons suggest that he had regard to the circumstances of the offending as set in the Prosecution Opening. And as the passage extracted immediately above demonstrates, the judge appears specifically to have taken into account one of the facts put in dispute. Nowhere in his sentencing reasons did the judge state that he did not take the disputed facts into account, or, indeed, acknowledge that any aspect of the Prosecution Opening had been challenged. The closest the judge came to addressing the issue is in the following passage:
[27] The impact of the principle stated in the well-known case of De Simoni was raised by [defence counsel], properly so. On Charge 1 the Crown has presented you for the offence of sexual penetration, not rape. Despite the description of its circumstances by GK in the Crown opening you are not to be sentenced for the more serious crime. My sentence must reflect this.
[28] However in my view, even applying De Simoni and its limit, significant objective and adverse features of that offence remain. The episode, which as I have said incorporated four or five sexual penetrations, was forceful. The sense in which I mean this is not removed as a relevant consideration by De Simoni, that is by the question of consent or belief in consent.
For the purposes of a trial, s 182 of the Criminal Procedure Act 2009 requires the DPP to serve and file a ‘summary of the prosecution opening’ setting out ‘the manner in which the prosecution will put the case against the accused’, and ‘the acts, facts, matters and circumstances being relied on to support a finding of guilt’. Self-evidently, the summary of the prosecution opening for trial contemplated by s 182 does not constitute evidence against the accused. The Act (as opposed to a Practice Note) does not require a similar procedure to be adopted when an accused person pleads guilty.
In the County Court, the requirements for a prosecution opening when an accused has elected to plead guilty are contained within a Practice Note.[23] Where an accused elects to plead guilty, the Practice Note requires the prosecution to file and serve a ‘Prosecution Opening upon Plea’,[24] which, among other things, must set out the ‘factual circumstances of the offending’.[25] Once more, however, the contents of the Prosecution Opening upon Plea do not constitute evidence against the accused.
[23]PNCR 1-2015.
[24]Ibid [7.5].
[25]Ibid [7.6].
As a matter of principle, an accused person’s entry of a plea of guilty amounts to a formal confession of the existence of every ingredient necessary to constitute the relevant offence.[26] By the bare plea, the accused is taken to have admitted guilt of the charge, nothing more. Any dispute as to facts beyond the essential ingredients admitted by the plea must be resolved by the application of ordinary principles that apply in criminal cases. Thus, in Chow, Kirby P observed:[27]
Where an accused person has pleaded guilty, he or she is thereby taken to have admitted to guilt of the offence as charged ‘and nothing more’: see R v Riley [1896] 1 QB 309. In this State, that principle has been extended to an acceptance that the plea is to be taken as an admission of the ‘essential legal ingredients of the offence’. Any dispute as to matters beyond such ‘essential ingredients’ admitted by the plea, must be resolved by the application of ordinary legal principles appropriate to a criminal trial. … In this State, disputed facts must be established by accusatorial process; proved by sworn evidence and any doubt about them must be resolved in favour of the prisoner: see R v O’Neill [1979] 2 NSWLR 582 at 590; R v Traiconi (1990) 49 A Crim R 417 at 418; Thompson v The Queen [1973] Tas SR 78 at 91. … To go beyond the facts necessarily contained in the plea requires that any additional facts be admitted expressly or proved by admissible evidence: see R v Scanlan (1986) 21 A Crim R 428 at 432. This requirement must be observed because it is of the highest importance and ‘despite whatever inconvenience may be caused’: see Bray CJ in Law v Deed [1970] SASR 374 at 377. The rule applies as much to a case where the accused has pleaded guilty as to one where it is necessary for the sentencing judge to derive the conclusions of fact from a jury’s verdict of guilty following contested trial: see R v Mordecai (1985) 18 A Crim R 149 …
[26]De Kruiff v Smith [1971] VR 761, 765 (McInerney J); R v D’Orta-Ekenaike [1998] 2 VR 140, 146–7 (Winneke P); Power v The Queen (2014) 43 VR 261, 300–301 [169] (Priest JA).
[27]Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, 605.
Of course, the facts asserted in a Prosecution Opening may become evidence against a prisoner if he or she admits those facts.[28] In the present case, however, whilst it is clear that the majority of what was alleged against him was admitted, the applicant actively disputed the three facts to which reference was made. Thus, immediately after the prosecutor read the Prosecution Opening aloud, there was the following exchange between defence counsel and judge:
[28]See Evidence Act 2008, s 184(1). Such an admission is not effective, however, unless the accused has been advised by his or her legal practitioner to make the relevant admission, or the court is satisfied that the accused understands the consequences of making the admission: s 184(2). See also Power v The Queen (2014) 43 VR 261, 277–8 [60] (Redlich JA and Robson AJA); SLS v The Queen (2014) 42 VR 64, 121 [273]–[274] (Ashley, Redlich and Priest JJA).
[DEFENCE COUNSEL]: [W]e’d say for the record, Your Honour, that the opening can’t be said to be agreed given all that’s been discussed and all that will be submitted. But I can say this, that I don’t envisage any evidence being given by my client about it, but we’d deal with it by way of Your Honour’s approach to it with the De Simoni principles and thereafter what flows from some of the medical material and some of the psychological material, Your Honour.
HIS HONOUR: …Are you saying that the summary is not agreed?
[DEFENCE COUNSEL]: Yes, there are aspects of it, Your Honour, which are not agreed. But we wouldn’t be requiring or I wouldn’t be calling any evidence about it.
HIS HONOUR: You’re not going to call any evidence on it.
[DEFENCE COUNSEL]: No.
HIS HONOUR: You’re going to indicate to me which parts aren’t agreed to, but, yes - - -
[DEFENCE COUNSEL]: Yes, I’ll do that, Your Honour. And purely we say that it’s an approach matter given what Your Honour’s raised about the De Simoni principles and sentencing him for a [sexual penetration], because there’s a view of that material is, as Your Honour rightly points out, that at sentence is opened up another offence. And what we say the application of the De Simoni principles are, look, you might have to back a bit of that out. And De Simoni itself even speaks of an artificial exercise or approach to sentencing in circumstances where - - -
HIS HONOUR: … Are you referring to the case that says that I must not sentence him for an offence more serious than the indicted offence?
[DEFENCE COUNSEL]: I am, Your Honour. …
HIS HONOUR: … Now, do you – as to telling me which parts on your instructions are not agreed you’re going to do that when the matter returns [after an adjournment], are you?
[DEFENCE COUNSEL]: I will.
HIS HONOUR: All right, thank you. But I think you’ve said you don’t intend to call any evidence on those parts not agreed to.
[DEFENCE COUNSEL]: Yes, that’s right, Your Honour. That’s what my instructions are.
Axiomatically, if, for the purposes of sentencing, the prosecution seeks to rely on facts adverse to the interests of an offender, those facts must be proved beyond reasonable doubt. So much was made clear in Storey,[29] in which, after an extensive review of authority, Winneke P, Brooking and Hayne JJA and Southwell AJA said:[30]
Having regard to the matters of principle we have mentioned and to the numerous authorities both in this country and elsewhere to which we were referred[31] we consider that the principles to be applied are those which we have earlier identified, namely that the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt but if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
[29]R v Storey [1998] 1 VR 359 (‘Storey’).
[30]Ibid 370-1 (citation as in original).
[31]Among the authorities to which we were referred were:
NSW R v O’Neill [1979] 2 NSWLR 582; R v Martin [1981] 2 NSWLR 640; R v Blanchard (unreported, Court of Criminal Appeal, 10 September 1991); R v Savvas (No 2) (1991) 58 A Crim R 174; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593;
WA Langridge v R (1996) 17 WAR 346; Salisbury v R (1994) 12 WAR 452; R v Aloia [1983] WAR 133;
SA Law v Deed [1970] SASR 374;
Qld R v Nardozzi [1995] 2 Qd R 87; R v Jobson [1989] 2 Qd R 464; sub nom R v J (Jnr);
Tas R v Turnbull (1994) 4 Tas. R 216;
UK R v Guppy and Marsh (1995) 16 Cr App R (S) 25; R v Palmer (1993) 14 Cr App R (S) 123;
Canada R v Gardiner [1982] 2 SCR 368; (1982) 68 CCC (2d) 477; R v Holt (1983) 4 CCC (3d) 32.
Reference was also made to Fox and O’Brien, “Fact Finding for Sentencers” (1975) 10 MULR 163. See also Thomas “Establishing a Factual Basis for Sentencing” [1970] Crim LR 80; Lowenthal “Some Issues in Fact Finding for Sentences” (1980) 11 UQLJ 145; Davies, “Passing Sentence on Facts” (1979) New Law Jnl 824; Wasik, “Rules of Evidence in the Sentencing Process” (1985) Current Legal Problems 187.
Storey was cited with approval by the High Court in Olbrich.[32] Furthermore, in Strbak, the Court observed:[33]
A plea of guilty is the formal admission of each of the legal ingredients of the offence.[34] For this reason, as the joint reasons in R v Olbrich explain, references to the onus of proof in the context of sentencing may be misleading if they are taken to suggest that some general issue is joined between prosecution and defence.[35] Nonetheless, where the prosecution seeks to have the court sentence on a factual basis that goes beyond the facts admitted by the plea, and which is disputed, it is incumbent on the prosecution to adduce evidence to establish that basis.[36] Absent contrary statutory provision, the prosecution is required to prove matters on which it relies that are adverse to the interests of the offender to the criminal standard.[37]
[32]R v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
[33]Strbak v The Queen (2020) 267 CLR 494, 508 [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) (citations as in original; emphasis added).
[34]Maxwell v The Queen (1996) 184 CLR 501 at 508–510.
[35](1999) 199 CLR 270 at 281 [25] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
[36]R v Olbrich (1999) 199 CLR 270 at 281 [25].
[37]R v Olbrich (1999) 199 CLR 270 at 281 [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ, citing R v Storey [1998] 1 VR 359 at 369 per Winneke P, Brooking and Hayne JJA and Southwell AJA.
The three disputed facts in this case were adverse to the interests of the applicant, in the sense that they tended to aggravate the seriousness of the admitted offence. Through his counsel, the applicant made it clear that they were challenged. Before the judge could take them into account, therefore, they needed to be established to the judge’s satisfaction beyond reasonable doubt. In order to be so satisfied, it was not open to the judge to act upon the bare plea of guilty, or the challenged parts of the Prosecution Summary. Thus, quite clearly, in circumstances in which the prosecution did not undertake the task of proving the three facts to the requisite standard by admissible evidence, the judge was not entitled to take them into account in a manner adverse to the applicant.
We are persuaded that the judge’s sentencing reasons reveal, however, that he impermissibly took the disputed facts into account in a manner adverse to the interests of the applicant.
For these reasons, ground 1 is made out.
Ground 3: Applicant sentenced as a serious sexual offender
Ground 3 must also succeed.
It is clear that the judge purported to sentence the applicant as a serious sexual offender. Thus, in his sentencing remarks he said:
[25] Under Part 2A of the Sentencing Act upon my sentences of imprisonment for Charges 1 and 3 you are to be sentenced as a serious sexual offender on the latter charge. This means that community protection becomes the principal sentencing purpose on that sentence. I do not propose in the circumstances here to impose a longer than proportionate sentence to achieve that. I shall also direct otherwise than full cumulation between sentences in accordance with s 6E of the Act. I attempt to apply the principle of totality balanced with the purpose and effect of Part 2A.
[26] Given the seriousness of the offending, particularly Charge 1, and your mental health conditions, I see community protection to be relevant independent of Part 2A.
To the extent that the judge considered that the serious offender provisions in Part 2A of the Sentencing Act 1991 were engaged, he was in error.[38]
[38]Section 6F of the Sentencing Act 1991 provides that a court that sentences a serious offender for a relevant offence ‘must, at the time of doing so, cause to be entered in the records of the court in respect of that offence the fact that the offender was sentenced for it as a serious offender’. Curiously, the Record of Orders signed by the judge do not reflect that the applicant was sentenced as a serious sexual offender. Nothing, however, turns on this.
So far as relevant, s 6B(2) of the Act defines a serious sexual offender as an offender ‘who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment’; and s 6B(3) provides that, in the case of a serious sexual offender, a relevant offence includes a sexual offence.[39]
[39]By s 6B(1), a sexual offence means an offence to which clause 1 of Schedule 1 of the Act applies.
For present purposes, the effect of s 6B(2) of the Act is that the applicant could only become a serious sexual offender once convicted of two or more sexual offences for which he had been sentenced to a term of imprisonment. He then would have fallen to be sentenced as a serious sexual offender for a succeeding relevant offence (as defined), but there was none. Conviction on charge 3 — ‘the latter offence’ — could not serve two purposes. It could not be both the offence which made the applicant a ‘serious sexual offender’ and a ‘relevant offence’ for which he was to be sentenced as such.[40]
[40]R v Cowburn (1994) 74 A Crim R 385, 393 (Crockett, Southwell and Vincent JJ); R v Arnautovic (2001) 121 A Crim R 412, 413–5 [4]–[6] (Brooking JA, Charles JA agreeing); R v Wong (2007) 178 A Crim R 192, 195–6 [13] (Cavanough AJA).
As the sentencing reasons demonstrate, when purporting to sentence the applicant as a serious sexual offender the judge considered that ‘community protection [became] the principal sentencing purpose’. The judge also considered that he needed to balance the principle of totality with ‘the purpose and effect of Part 2A’ of the Sentencing Act 1991.
Senior counsel for the respondent fairly conceded that the judge erred in treating the applicant as a serious sexual offender, but that the error only infected the sentence on charge 3. We disagree. The judge was required to ensure that the aggregation of the sentences appropriate for each offence was a just and appropriate measure of the total criminality involved.[41] It is clear that his finding that the applicant was a serious sexual offender must have influenced his consideration of that requirement.
[41]Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J).
Resentencing
When it became clear in the course of oral argument that the appeal must succeed, a question arose as to whether the matter should be remitted to the County Court,[42] given that senior counsel for the respondent in effect submitted that he could not simply jettison the three facts disputed on the first charge. Ultimately, however, counsel for the applicant adopted the pragmatic position that she would not seek to challenge those facts if sentencing was to take place in this Court. We accordingly approached the resentencing exercise on that basis.
[42]See Criminal Procedure Act 2009, s 286(1)(b).
As we have mentioned, the applicant has a full scale IQ of 66. A Statement of Disability, dated 20 September 2021, records that the applicant ‘has an intellectual disability within the meaning of the Disability Act 2006’, with the concurrent existence of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour. He meets the diagnostic criteria for Autism Spectrum Disorder, and attracted a childhood diagnosis of Attention Deficit Hyperactivity Disorder (‘ADHD’).
In a report dated 9 March 2021, Pamela Matthews, forensic psychologist, stated:
[The applicant] meets the DSM-5 diagnosis of Intellectual Disability in that he evidences developmental deficits in intellectual functioning such as reasoning, problem-solving, planning, abstract thinking, judgement, academic learning, learning from experience, confirmed by standardised intelligence testing and clinical examination. Further, [the applicant] evidence [sic] deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and responsibility. Without ongoing support, the adaptive functioning deficits limit daily functioning and independence across multiple environments. [The applicant’s] intellectual disability would fall within the mild range, although [the applicant’s] skills in the conceptual and practical domain are more limited than other mildly intellectually disabled peers, mainly through lack of opportunity and or training/skills development.
[The applicant] further meets the DSM-5 diagnosis of Autism Spectrum Disorder. He evidences deficits in: (a) social-emotional reciprocity, including difficulty forming new relationships, reduced sharing of interests, emotions, or affect, failure to initiate or respond to social interactions. (b) Deficits in non-verbal communication, particularly in displaying affect and emotion and the reading of nuanced interactions. (c) Deficits in developing, maintaining, and understanding relationships, ranging from difficulty adjusting behaviour to a range of social contexts to difficulties in sharing imaginative play or making friends to an absence of interest in others.
…
Symptoms were present in early development. Symptoms cause clinically significant impairment in social, occupational, or other important areas of functioning. Symptoms are not better explained by an intellectual disability or another global delay. An intellectual disability accompanies symptoms. [The applicant] would meet level one of this disorder.
[The applicant] also has a developmental history of Attention Deficit Hyperactivity Disorder in childhood. …
Significantly, Ms Matthews expressed the following opinions:
The writers view is that while [the applicant’s] offence behaviour is unacceptable, his offending behaviour is a function of his youth and cognitive and psychosocial limitations, rather than sexual deviation.
The first aspect, [the applicant’s] youth, despite a five-six age difference between him and the complainants, does not represent a deviant sexual interest such as hebephilia/ephebophilia. Instead, his sexual interest in the complainants reflects adolescent sexual experimentation and hormonal drive.
The latter two aspects, cognitive and psychosocial, particularly impairments to reasoning, i.e., concrete reasoning, combined with the social deficits of both an intellectual disability and autism spectrum disorder, and the impulsiveness of residual ADHD play a significant role in [the applicant’s] offending.
…
[The applicant’s] deficits in reading social cues and reasoning associated with both developmental disorders, the writer believes, would have been a substantial component of [the applicant] not being able to read the discomfort and distress of [GK] and [TJ], or that their intent in meeting him at home may have been different to his. Further, the combined interactions of these two developmental disorders would have severely limited [the applicant’s] understanding of why his behaviour might be harmful to the complainants and otherwise socially inappropriate.
With respect to the burden of imprisonment, Ms Matthews’ opinion was as follows:
[The applicant’s] adaptive functioning, particularly his practical skills, are so limited he is unlikely to manage the day-to-day routine and expectations of prison life, even in a disability unit. His youth and social-emotional limitations will make him very vulnerable to various abuses within such an environment, even in a disability unit. He currently presents with mild reactive depression displayed by his current withdrawal to the couch. The writer believes [the applicant’s] mood state will worsen should he be separated from his family and routine. The writer would expect high anxiety levels and aberrant coping behaviours to emerge with the significant changes any time in prison would impose in his life. It is the writer’s opinion [the applicant] is likely to experience any time in custody more onerous than most, even within an intellectually disabled specialist unit.
We pause to note that counsel for the applicant informed us that, in the more than five weeks that the applicant has been in custody, he has had to undergo quarantine due to COVID-19 protocols, and, at the time of hearing, was being held as a protection prisoner in the Kareenga facility at the Marngoneet Correctional Centre. During his time in custody, we were told, he had not been able to have any in-person visits from his family, and, although he could have daily telephone contact, he had been able to have only one audio-visual ‘visit’ via ‘Zoom’. These conditions would be difficult enough for a person without the applicant’s deficits — it was recognised in Worboyes[43] that the conditions in prisons during the pandemic are a reason for greater weight to be given to a plea of guilty — but must have been more acute in the applicant’s case given his limitations.
[43]Worboyes v The Queen (2021) 96 MVR 344 (Priest, Kaye and T Forrest JJA) (‘Worboyes’).
In Ms Matthews’ opinion, the applicant’s intellectual disability and autism spectrum disorder, and the impulsiveness of his residual ADHD, played a significant role in his offending. The combined interactions of his conditions would have severely limited his comprehension of why his behaviour might be harmful and otherwise socially inappropriate. He is thus not an appropriate vehicle for the application of principles of general and specific deterrence. As was observed by the High Court in Muldrock:[44]
One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:[45]
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
In the same case, Lush J explained the reason for the principle in this way:[46]
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
The principle is well recognised.[47] It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence.[48] Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
[44]Muldrock v The Queen (2011) 244 CLR 120, 138–9 [53]–[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (citations as in original).
[45]R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VR 155 at 160.
[46]R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 8, cited in R v Anderson [1981] VR 155 at 160-161.
[47]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476-477. See also R v Anderson [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992); R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48.
[48]See R v Engert (1995) 84 A Crim R 67 at 71.
Quite clearly, the applicant’s impaired mental functioning reduces his moral culpability for the offending, so that the retributive effect and denunciatory aspects of sentencing are of reduced importance, and also renders him unsuitable for the application of general and specific deterrence. Moreover, not only will imprisonment weigh more heavily on him than a person without his deficits, but there is a serious risk that imprisonment will have a significant adverse effect on his mental health. These factors point to the unsuitability of a period of imprisonment as an appropriate disposition in the applicant’s case.[49]
[49]See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
The applicant also attracts the principles that apply to the sentencing of youthful offenders, given that he was aged 18 when the first offending occurred (and 20 at the time of the last offending). Those principles dictate that in the case of a youthful offender rehabilitation is usually far more important than general deterrence, since punishment may in fact lead to further offending. Individualised treatment focusing on rehabilitation is to be preferred to a lengthy period of imprisonment. A youthful offender such as the applicant should not to be sent to an adult prison if such a sentence can be avoided. The benchmark for what justifies adult imprisonment may be quite high in the case of a youthful offender.[50]
[50]See R v Mills [1998] 4 VR 235, 241 (Batt JA).
Additionally, the applicant’s plea of guilty had significant utilitarian value, and, consistently with the considerations discussed in Worboyes, called for significant amelioration of sentence.
Finally, we make clear that we have read, and taken into account, the victim impact statements, and are fully cognisant of the effect that the applicant’s offending has had. In the present case, however, the balance weighs against a further custodial sentence. We note in that regard that the applicant’s plea of guilty avoided any further trauma that may have flown to the complainants from having to give evidence.
By the time we were called upon to resentence the applicant, he had undergone 40 days’ imprisonment. It was plain that his time in custody had weighed heavily upon him. In those circumstances, we concluded that ‘time served’ — particularly when coupled with the CCO of two years’ duration (which we did not disturb) — was sufficient to satisfy such residual aspects of general and specific deterrence, denunciation and just punishment, that might arguably be said to apply.
Conclusion
In light of the foregoing, we granted the applicant leave to appeal against sentence; allowed the appeal; set aside the sentences of imprisonment on charges 1 and 3; and in lieu sentenced the appellant to an aggregate time of 40 days’ imprisonment on those charges, whilst at the same time confirming all other sentences, orders and declarations made by the sentencing judge.
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