GPR v The Queen - [2007] NTCCA 12

GPR v The Queen [2007] NTCCA 12

PARTIES: GPR

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 4 of 2007 (20618824)
DELIVERED:  30 October 2007
HEARING DATE:  24 October 2007
JUDGMENT OF:  ANGEL, MILDREN & SOUTHWOOD JJ
CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – application for extension of time within which to appeal – application allowed - leave to appeal against sentence granted
APPEAL – CRIMINAL LAW – Appeal against sentence – one count of gross indecency and two counts of indecent dealing – whether sentences were manifestly excessive – whether the sentences were outside the range of sentences imposed in 1991 for similar offences on offenders with similar antecedents - appeal allowed – re-sentenced
Sentencing Act (NT), s 5(2)(b), s 55A and s 78BB

The Queen v Peter Campbell Chandler (unreported, proceeding number 9124845, delivered on 9 June 1998);
Green v The Queen (2006) 19 NTLR 1;
Moon (2000) 117 A Crim R 497;
Randenkovic v The Queen (1990) 170 CLR 623
REPRESENTATION:
Counsel:
Appellant:I Read
Respondent:  R Coates and H Roberts
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Sou0753
Number of pages:  15

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
GPR v The Queen [2007] NTCCA 12

No CA 4 of 2007 (20618824)
BETWEEN:

GPR

Appellant

AND:

THE QUEEN

Respondent

CORAM: ANGEL, MILDREN & SOUTHWOOD JJ
REASONS FOR JUDGMENT
(Delivered 30 October 2007)
Angel J:

I have nothing to add to the reasons of Southwood J for extending time within which to seek leave to appeal, granting such leave, allowing the appeal and re sentencing the appellant as we did on 24 October.
Mildren J:
I have read a draft of the Judgment prepared by Southwood J. His Honour’s reasons reflect my own opinion. I have nothing further to add.
Southwood J:
Introduction
On 24 October 2007 the court allowed the appellant’s appeal against three sentences of imprisonment that were imposed on him by the Supreme Court. The court made the following orders:
1.The time in which the appellant may file an application for leave to appeal against sentence is extended.
2.Leave to appeal against sentence is granted to the appellant.
3.The appeal against sentence is allowed.
4.The sentences of imprisonment imposed on the appellant by the Supreme Court on 22 March 2007 are set aside.
5.The appellant is sentenced to two years and six months imprisonment for the crime of gross indecency. The sentence of imprisonment is back dated to 16 March 2007.
6.The appellant is sentenced to six months imprisonment for the crime of indecent dealing with a child under the age of 16 years. The sentence of imprisonment is to be served concurrently with the sentence of imprisonment for the crime of gross indecency.
7.The appellant is sentenced to 18 months imprisonment for the crime of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GPR v The Queen

Details

AGLC: GPR v The Queen [2007] NTCCA 12
Case: [2007] NTCCA 12
Decision Date: 30 October 2007

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, GPR, by a sentencing judge for one count of gross indecency and two counts of indecent dealing. The sentencing judge had imposed a total sentence of four years and nine months imprisonment, suspended after 18 months, on the condition that the appellant enter into a bond to be of good behaviour for four years. The appeal was heard by Angel, Mildren, and Southwood JJ.

The primary legal issue before the Full Court was whether the sentences imposed were manifestly excessive and outside the range of sentences typically imposed in 1991 for similar offences committed by offenders with comparable antecedents. The appellant sought leave to appeal against his sentence, and an extension of time to do so was granted.

The Court allowed the appeal, finding that sentencing standards in 1991 were more lenient than current practices for such offences. The Court noted that the maximum penalties were lower at the time, a more therapeutic approach to sentencing was adopted, and less weight was given to general deterrence. The Court considered a sample of sentencing remarks from Supreme Court judges in 1991, which demonstrated consistency in more lenient sentencing. The Court also observed that concerns were expressed by judges regarding prison conditions and the lack of rehabilitation programs for offenders. The Court concluded that the sentencing discretion had been properly exercised by the sentencing judge in accordance with the approach described in *Moon* (2000) 117 A Crim R 497, but that the sentencing standards applicable in 1991 were different and more lenient.

The Court re-sentenced the appellant, taking into account the sentencing standards applicable in 1991.

Orders

Orders of the court

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Background

Background to the litigation

The sentencing judge ordered that the sentence of imprisonment for indecent dealing with a child under the age of 16 years be served concurrently with the sentence of imprisonment for the crime of gross indecency and that one year and five months of the sentence of imprisonment for the crime of aggravated indecent dealing with a child under the age of 10 years be served cumulatively upon the sentence of imprisonment for the crime of gross indecency. The total sentence of imprisonment imposed on the appellant was four years and nine months. The sentencing judge ordered that the total sentence of imprisonment be suspended after the appellant had served 18 months in prison on condition that the appellant enter into a bond in the amount of $1000 to be of good behaviour for four years from the date of his release from prison.The Facts The sentencing judge found that the following facts had been proved. The appellant was born in June 1953. He was 37 or 38 years of age at the time he committed the crimes. He is now 54 years of age. He was raised in Adelaide. The appellant told a psychiatrist who provided a report which was tendered in evidence that his mother was a very strange person. The appellant found it very difficult to relate to his mother. The appellant’s mother had wanted a girl and when the appellant was a child she often dressed the appellant in girl’s clothes. The appellant’s mother was extremely possessive but also oddly withdrawn. As a teenager the appellant was extremely embarrassed because his mother insisted on buying clothes which he intensely disliked. He eventually left home in order to get away from his mother. The appellant left school at the age of 16 years having passed year 11 with quite good marks. He worked for a number of years as a technician. In 1992 he changed direction and he undertook casual work as a cabler before joining a cabling company. The appellant has lived in Darwin since 1974. He married in 1978. He has one son who lives in the north of Western Australia. The appellant told the psychiatrist that his marriage was never strong. However, both his wife and his son are continuing to support him. They provided references which were tendered in evidence. The psychiatrist described the appellant as shy, insecure, socially marginalised and sexually ambivalent. The appellant told the psychiatrist that at the age of about 21 or 22 he had a relationship with a young man of the same age who was also rather anxious and shy. The relationship involved occasional sexual contact but the appellant and the young man did not live together. In the appellant’s words to the psychiatrist, he was fascinated in one way and appalled in another. The appellant still thinks from time to time of sexual contact with men. However, he has never done anything about his feelings. He does not watch pornography and he does not subscribe to X-rated television channels. The psychiatrist also reported that at the time the appellant committed the crimes he was unhappy because of continuing problems at work and life at home never seemed good. The crimes cannot be explained as the outcome of a mental illness, but the psychiatrist observed, that under pressure, shy, insecure and socially marginalised individuals may act in uncharacteristic ways. It was the psychiatrist’s opinion that there was no risk of the offender re-offending in a similar manner.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances of this case the sentencing judge correctly applied the approach described in Moon (2000) 117 A Crim R 497 at 511. The sentencing judge had regard to the maximum penalty at the time the crimes were committed and the nature of the conduct proscribed by the relevant sections of the Criminal Code. In the circumstances the sentencing discretion was properly exercised.Conclusion Having had regard to the various sentencing remarks referred to by the appellant and to current sentencing practices I am satisfied that in 1991 different sentencing standards were applicable to the crimes committed by the appellant. The sentencing standards applicable to such offences in 1991 were more lenient. Although the size of the sample of sentencing remarks referred to by the appellant is small the sample includes the sentencing remarks of five judges of the Supreme Court of the Northern Territory, which is a court constituted by six judges, and there is considerable consistency in the approaches of the judges in passing such sentences. The Director of Public Prosecutions was unable to refer the court to a case in which an offender was sentenced to a higher sentence of imprisonment than the highest sentence of imprisonment referred to by the appellant. In 1991 the maximum sentence for each offence for which the appellant was sentenced was lower than it is today, a more therapeutic approach to sentencing was adopted by the Supreme Court, the prevalence of such offending does not appear to have been an issue, and the Supreme Court gave less weight to general deterrence. Concern was also expressed by a number of the sentencing judges about the treatment that such offenders would receive in prison and the lack of a Sexual Offender Program in prisons in the Northern Territory. In a number of cases the court made it a condition of a suspended sentence that the offender was to undertake some form of counselling or receive some form of medication in order to control his behaviour. Contrary to the submissions of the Director of Public Prosecutions it is apparent that in 1991 sentencing Judges did consider the harm caused to the victims of such crimes. It was not uncommon for expert reports about the extent of the harm caused to the victims to be tendered in evidence and at least on one occasion a victim impact statement was tendered in evidence. It is for this reason that the appellant abandoned the third ground of appeal. Support for the conclusion that offenders were sentenced more leniently in 1991 for such crimes is to be found in the sentencing remarks of Kearney A/CJ in The Queen v Peter Campbell Chandler (unreported, proceeding number 9124845, delivered on 9 June 1998). In that case the offender committed the crime of gross indecency. He sucked a seven year old boy’s penis for a short time. The offender was sentenced to 15 months imprisonment, to be suspended after three months. After reviewing a number of sentencing remarks of the Supreme Court, Kearney J stated, “I think it is right to sentence you along the general lines in which people were sentenced for this offending back in 1991. I should say that because offences of that sort committed in recent years, 1996, 1997 and today, are sentenced more severely than they were back in 1991.”

Ratio Decidendi

Legal Principle Established

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