JWM v Tasmania
[2017] TASCCA 22
•13 October 2017
[2017] TASCCA 22
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: JWM v Tasmania [2017] TASCCA 22
PARTIES: JWM
v
STATE OF TASMANIA
FILE NO: 3817/2016
DELIVERED ON: 13 October 2017
DELIVERED AT: Hobart
HEARING DATE: 9 June 2017
JUDGMENT OF: Pearce and Brett JJ and Porter AJ
CATCHWORDS:
Criminal Law – Sentencing procedure – Material relevant for determining appropriate sentence – Victim impact statements.
Attorney-General for Tasmania v B [2010] TASCCA 6; Belbin v Bennett [2011] TASSC 23, followed.
R v Swift [2007] VSCA 52; R v Tuala [2015] NSWCCA 8, referred to
Aust Dig Criminal Law [3315]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Judge acted on wrong principle – Regard to sentencing practices at time of criminal conduct – Indecent assault – No error in principle demonstrated.
R v MJR [2002] NSWCCA 129, 54 NSWLR 368, considered.
R v M, WJ [2005] SASC 272, 155 A Crim R 175, applied.
Aust Dig Criminal Law [3520]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Maintaining a sexual relationship with young person under 17 – Single complainant – Sentence of four years' imprisonment with non-parole period of one half not manifestly excessive.
Criminal Code (Tas), s 125A.
DPP v M[2005] TASSC 14, 154 A Crim R 475; DPP v T [2012] TASCCA 15, 21 Tas R 442, applied.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: T J Ellis SC
Respondent: D G Coates SC
Solicitors:
Appellant: Darrell Grey
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 22
Number of paragraphs: 137
Serial No 22/2017
File No 3817/2016
J W M v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J (Dissenting)
BRETT J
PORTER AJ
13 October 2017
Order of the Court
Appeal dismissed.
Serial No 22/2017
File No 3817/2016
J W M v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
13 October 2017
I have had the advantage of reading the reasons of Brett J in draft form. The amended notice of appeal challenges the sentence on 15 grounds. Ground 5 is abandoned. I agree that, for the reasons given by his Honour, grounds 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 14 and 15 should fail. However, I respectfully differ from the majority in relation to ground 6, which asserts that the sentence is manifestly excessive. I would allow the appeal on that ground. In my view, the sentence of four years' imprisonment for the appellant's crime is manifestly excessive. Because I am in the minority I will state the reasons more briefly than may otherwise have been the case.
My conclusion derives from consideration of the number and nature of the unlawful sexual acts perpetrated by the appellant. For a related reason, I have considered ground 13. Although, as will be explained, the appeal should not be allowed on that ground, the manner in which the unlawful sexual act which is the subject of ground 13 is described and characterised is relevant to consideration of the appellant's total criminality. Before addressing the individual grounds it is necessary to summarise some aspects of the crime of maintaining a sexual relationship and to refer to some general matters of fact and principle.
The appellant's crime was committed between 1983 and 1989 against a single complainant. The complainant is the appellant's son. During the period of offending the complainant was aged between 10 and 15. The appellant was aged between 37 and 43. The acts occurred in the family home where the appellant's wife and the complainant's two younger siblings, a boy and a girl, also lived. All of the offending occurred in private and consisted of a series of indecent assaults.
Maintaining a sexual relationship
The crime of maintaining a sexual relationship with a young person requires proof of at least three unlawful sexual acts against a young person: Criminal Code, s 125A(3)(a). Section 125A was inserted by amendment to the Code in 1994. The term "unlawful sexual act" is defined to include a number of specified crimes. Although the definition has been amended between 1994 and the present, indecent assault contrary to s 127 has always been one of the crimes specified in the definition of unlawful sexual act. An act is an unlawful sexual act whether committed before, on or after the commencement of the section: s 125A(1). In other words, the crime is committed even if a constituent unlawful sexual act was committed before s 125A was introduced in 1994. The crime of indecent assault is committed if a person unlawfully and indecently assaults another person. As is explained by Brett J, at the time of some of the appellant's acts, the crime of indecent assault under the Code, s 127, applied only to indecent assault against females. Section 127 was amended in 1987 to cover indecent assault against persons of either sex, in terms by which the section, as amended, is taken to have been in force from 4 April 1924. It is not in issue in this appeal that, as a result of the provisions to which I have referred, the appellant is guilty of the crime, although the indecent assaults were committed between 1983 and 1989, before s 125A was introduced and, for some of the period, before s 127 was amended.
It is not necessary that the prosecution proves the dates on which any of the unlawful sexual acts were committed, or the exact circumstances in which any of the unlawful sexual acts were committed: s 125A(4). It is often the case that, for this crime, it is difficult to give particulars of each and every sexual act during a period of prolonged offending. The Crown refers to the specific sexual acts it is able to identify, but an offender may be sentenced on the basis that each specific act is part of a course of conduct involving other, sometimes many other, unspecified acts.
When an offender is sentenced for the crime, he or she should suffer the same penalty as would have been imposed if the individual sexual acts constituting the crime had been charged as separate crimes: DPP v M [2005] TASSC 14, 154 A Crim R 475 per Evans J at [38]; Director of Public Prosecutions v B [2009] TASSC 42, 19 Tas R 14 per Crawford CJ at [23]-[24]; DPP v T [2012] TASCCA 15, 21 Tas R 442 at [19]; Director of Public Prosecutions v STU [2012] TASCCA 7, 21 Tas R 322. When sentencing for multiple crimes, totality requires that a single or aggregate sentence be a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307–308; Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418; Rae v State of Tasmania [2010] TASCCA 8; Hall v Tasmania [2015] TASCCA 6.
The unlawful sexual acts
In this case, five unlawful sexual acts are specified:
· An occasion when the complainant was playing the guitar in a room at his home. He learnt classical guitar from late primary school. The appellant entered the room they called the library, locked the door and said, "I need to check how you are growing", lowered the complainant's trousers and pants and fondled his penis and testicles for about ten minutes.
· When the complainant was 12 or 13 years old he was watching television in the lounge room. The appellant said, "I need to check how you are growing", lowered the complainant's trousers and pants and fondled his penis and testicles.
· When the complainant was 13 or 14 the appellant entered the bathroom to wash his hands when the complainant was showering. The appellant said, "I want to show you how to make your doodle larger". He held the top of the complainant's penis and pulled his hand down it. The appellant then demonstrated the same action using his own penis.
· The appellant and the complainant were together in an outbuilding at the home. The appellant said, "I need to check how you are growing", lowered the complainant's trousers and pants and fondled his penis and testicles.
· When the complainant was in grade 9 or 10 he was in the lounge room. The appellant entered the room and said, "I need to check how you are growing", lowered the complainant's trousers and pants and fondled his penis and testicles. The complainant asked "Is everything okay down there?" The appellant said "yes", and the complainant then pulled his pants up.
In addition to the specified acts the Crown asserted to the sentencing judge an imprecise number of further indecent assaults committed against the complainant constituted by fondling his penis and testicles. The Crown facts assert that:
· "this type of act occurred in the library regularly"; and
· "there were multiple occasions when this type of act occurred in the lounge room"; and
· the sexual assaults occurred "regularly" from the time the complainant was in about grade 4 and ended when he was in about grade 9 or 10.
As to the other conduct in the nature of demonstration of how to make the complainant's penis larger, the position before the sentencing judge was less clear. Only one instance is identified, although the facts asserted by the Crown also refer to "such occasions" in the plural.
The offending ceased when, on an occasion when the appellant said to the complainant, "I need to check how you are growing", the complainant said "No, I am too old for this", and refused. Thereafter the conduct was not repeated.
Ground 13
This ground is in the following terms:
"13There was a miscarriage of justice and/or the sentencing process miscarried by reason of the Crown alleging as a fact and [the sentencing judge] adopting and sentencing on the basis that the Appellant had inter alia demonstrated on more than one occasion on the complainant's penis and his own how to get an erection and masturbate when the complainant had never in evidence or any statement asserted such a thing happened even once and there was no evidence that it had."
The ground does not assert error. The appellant contends that imposition of a sentence on the basis of facts which were not asserted by the complainant resulted in a miscarriage of justice: the Code, s 402(1). By s 402(3), an appeal against sentence must be dismissed unless the appellant satisfies this Court that some other sentence, whether more or less severe, is warranted in law and should have been passed: s 402(3).
In her comments when passing sentence, the sentencing judge said:
"There were also occasions when you would say to your son something to the effect of, 'I'll show you how to make your penis longer' and you would then demonstrate on his penis, and sometimes your own, how to get an erection and masturbate."
The specific incident was described as follows:
"When your son was 13 or 14 years old, one night he was showering after dinner. The bathroom door was closed. You used the toilet that was directly opposite the bathroom. It did not have a hand basin. You entered the bathroom while your son was drying himself and began looking in the mirror at his body. You then turned and said to him, 'I want to show you how to make your doodle larger'. You then demonstrated on him. Your son recalled this occasion because you referred to the fact he had a freckle on his penis just like you."
The terms of the ground of appeal, and the appellant's submissions, focus on the characterisation of the appellant's act as demonstrating "how to get an erection and masturbate". The appellant submits that this characterisation was wrongly asserted by the Crown and adopted by her Honour as a factual basis for sentence. Her Honour's sentencing comments are taken almost word for word from the facts asserted from the bar table by senior counsel for the Crown at the sentencing hearing. As is almost invariably the case, the facts were read from a document referred to as the Crown statement of facts. The Crown statement of facts is read to a sentencing court as information relevant to sentence which the court may receive under the Sentencing Act 1997, s 81(1), which also provides that the court may receive such information as it thinks fit and is not bound by the rules of evidence. Because, under s 81(2), the court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court, a copy of the Crown statement of facts is given to counsel for the defendant prior to the sentencing hearing. The assertions contained in the Crown statement of facts are often the result of negotiation between the parties. There may be reasons unknown to a sentencing judge why facts are included in or excluded from the statement of facts, or stated in a particular way. The statement of facts may include assertions of fact which vary from other material before the sentencing judge at the sentencing hearing, or of which the sentencing judge may otherwise have knowledge, such as statements of witnesses in Crown papers prepared for trial. An offender may challenge the truth of any information received by the court: s 81(4). In the event of such a challenge, the court may require that information to be proved in like manner as if it were to be received at a trial.
Counsel for the respondent submitted, correctly, that the facts by reference to which an offender is sentenced must generally be either proved to the requisite standard, admitted or agreed: R v Olbrich [1999] HCA 54, 199 CLR 270; Weininger v The Queen [2003] HCA 14, 212 CLR 629; GAS v The Queen; SJK v The Queen [2004] HCA 22, 217 CLR 198 at [30]. In GAS v The Queen; SJK v The Queen the plurality said at [30]:
"In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case." [Footnote omitted.]
In the circumstances I have outlined, it is not surprising that the appellant does not contend that her Honour erred by sentencing on the basis of the unchallenged asserted facts. Had her Honour considered the imposition of a sentence on any other basis, procedural fairness would have required her to give notice to the parties of the possibility that she may do so, thus allowing the opportunity to either agree or adduce relevant evidence. The appellant was bound by the conduct of his counsel at the hearing: CL v The Queen [2014] NSWCCA 196 at [40]. So viewed, the circumstances in which a miscarriage of justice would be demonstrated would be rare. It should not be open for an appellant to come to this Court and contend that a course should be taken which the sentencing judge was not asked to take. The principle of finality in the area of sentencing is an important one: Achurch v The Queen [2014] HCA 10, 88 ALJR 490 at 496-497, [14]-[16]. An appeal to this Court is not a rehearing of a plea in mitigation, or the occasion for the revision or reformulation of the case presented below: Zreika v The Queen [2012] NSWCCA 44, 223 A Crim R 460 at 477-479, [79]-[81]. At the same time, it was recognised in Zreika v The Queen at 478 [82], that criminal appellate courts should be able to correct a miscarriage of justice or serious injustice in the clear and rare cases where the relevant matter, particularly one which operates unequivocally in the offender's favour, has not been relied on before a sentencing judge.
Before discussing whether a miscarriage of justice is demonstrated, I record my view that this ground of appeal should fail in any event. The miscarriage asserted by the appellant, if established, does not alone warrant imposition of a lesser sentence when all matters relevant to sentence are taken into account. The ground concerns only one of five specified unlawful sexual acts to be considered in the context of other unspecified acts. Nevertheless, it is appropriate to entertain the appellant's contentions for another reason. The proper characterisation of the appellant's unlawful act, in particular whether it involved conduct of an overtly sexual nature, is relevant to my assessment of the gravity of the appellant's overall criminality when determining under a different ground whether the sentence is manifestly excessive.
There is an unusual aspect of this case which lessened the limitation on the ability of the sentencing judge to assess the facts asserted to her by the Crown. The sentencing hearing took place after a voir dire conducted before the same judge for the purpose of determining a severance application. In the course of the voir dire the appellant changed his plea, whereupon the court adjourned to a sentencing hearing conducted about three weeks later. During the voir dire the complainant gave evidence. During examination by counsel for the Crown this exchange occurred:
"Now, you said there were other things he would do. What was that?....There were other incidents where he would say, 'I'll show you how to how to make your penis larger'. And he would show me on, on myself and sometimes also on, on his own genitals, how to squeeze and pull – almost like a teat – that you cut the blood off at the top of your penis and then dragged your hand down to kind of stretch and make your penis larger.
Would he always do that, or was it just on occasions when he did that?....That was on occasions."
His evidence continued:
"… what occurred then?....Um then he finished washing his hands at the basin and he turned around and he said 'I want to show you how to make your penis larger'. He wouldn't have said penis …- we mainly called it a doodle – 'I want to show you how to make it larger'. And he demonstrated this on me and ran – at the top of my penis like held it so that blood cut – kind of cut off and squeezed it down like if you're milking a cow's teat. And he – um – also on that occasion he said um he showed me how to do it. He's took out his own genitals – his own …
So he did it on yours first and then he took out his own?....That's right.
And what did he do then?....He did the same. He – at the top of his penis he held off the kind of blood and pulled his penis down until it kind of, I guess, until it became engorged and I remember this – occasion specifically, because he said, 'Look, you’ve a freckle on the head of your penis, which is the same as mine, you're just like me'."
The evidence referred to "occasions" in the plural, on which conduct of this nature occurred. The Crown facts asserted "occasions" in the plural. However an overall assessment of the material put to the sentencing judge did not justify the conclusion that the conduct which took place in the bathroom, as opposed to the general fondling of the penis and scrotum, occurred more than once. Even so, whatever was being described by the complainant in this evidence, it could not fairly be characterised as a demonstration of "how to get an erection and masturbate". No other factual material before the sentencing judge supported that characterisation of the appellant's conduct. There was no assertion that either the complainant or the appellant had an erection, or that either the complainant or the appellant were aroused by the physical acts perpetrated by the appellant, or that arousal of the complainant was the appellant's intention.
Ground 6 – manifest excess
The factors relevant to sentence, and sentencing principles, are correctly identified and explained in detail by Brett J. There is no need to repeat all of what his Honour has said. Because of the wide range of conduct which may form the basis of this crime, no sentencing range can be discerned. There are a number of aspects of the appellant's criminal conduct which were either aggravating factors or demonstrated the absence of mitigating factors. Each unlawful sexual act was a grave breach of trust which took place in what should have been the safety and security of the complainant's own home. The appellant was in a position of power and control over the complainant. The sexual abuse of children by those in positions of trust and authority is correctly recognised as grave criminal conduct. Sexual abuse by a parent involves a very high degree of moral culpability. The appellant's conduct occurred over an extended period at a critical time in the complainant's emotional and physical development. The impact on the complainant is considerable, as is to be presumed in all cases of child sexual abuse. There was an absence of remorse. No mitigation arose from delay. For the reasons explained by Brett J the mitigation arising from the plea of guilty was reduced. The appellant's crimes were not opportunistic. On each occasion he initiated the contact. He resorted to deception by giving a false reason for the contact with his son, lying to him about the need to examine his penis and testicles. There were attempts to avoid disclosure. The crime called for a sentence which reflected the need for punishment, general deterrence and vindication of the victim.
There were factors in the appellant's favour. He was otherwise of good character. There was little indication of a need for strong personal deterrence. The plea of guilty still carried some mitigation.
As with all appeals on this ground, it must be kept firmly in mind that all matters relevant to sentence are to be taken into account. Sentencing judges are to be afforded a wide measure of latitude and appellate intervention is not justified just because this Court would have exercised the sentencing discretion in a manner different to the sentencing judge. However, to my mind, manifest excess is readily apparent. The sentence represents a disproportionate response to the nature and number of the appellant's unlawful sexual acts. Five specified occasions of unlawful sexual acts were asserted by the Crown. In each case the act was an indecent assault. Whilst it is not uncommon that the nature and number of additional unidentified acts is vague, and the specified acts may nevertheless be considered as part of a course of abusive conduct, all that could be said in this case is that the other acts were "regular", or occurred on "multiple occasions". No other indication of the frequency of the acts was given. What the references to "regular" or "multiple occasions" meant was not explored or expanded upon. In the particular circumstances of this case, when the pretence advanced by the appellant for the unlawful acts was some sort of periodic check of his son's penis and testicles, the court should be slow to infer that the occasions of unlawful acts, in addition to the specified occasions, were frequent or numerous. By his plea the appellant admitted that his acts were indecent. With one exception the acts consisted of the appellant lowering the complainant's trousers and fondling the complainant's penis and testicles for a period up to about 10 minutes. It follows from the admission of indecency that the motivation for the appellant's acts could only have been sexual gratification. However, on no occasion was there an overt act or display of sexual stimulation or sexual gratification. One occasion, the bathroom incident, involved the appellant touching or exposing himself. Even then, he did not expose his penis in a way which displayed overt sexuality. As was earlier explained in the consideration of ground 13, sentence should have been imposed on the factual basis, for that specified occasion, that neither the complainant nor the appellant had an erection, there was no showing how to get an erection and no display of masturbation. No force or intimidation was used to overcome resistance. There was no occasion when the appellant continued in the face of refusal or distress, although that is likely because of the trust the complainant reposed in his father and his father's power, position and authority. When giving evidence on the voir dire the complainant said that it was when he became older, at least in grade 9, and after he had undergone a medical check-up at his school, he first became suspicious that what his father had been doing was "not right". After that realisation, one other specified occasion took place. When the next approach was made the complainant told his father that he was "too old for this", became upset and left the room. The appellant then desisted from his conduct.
None of the foregoing is intended to understate the seriousness of the criminality involved in the appellant's conduct or the impact on the complainant. However, my judgment is that a sentence of four years' imprisonment is manifestly excessive. I would allow the appeal, quash the sentence and sentence the appellant to imprisonment for three years, with eligibility for parole after having served half the sentence.
File No 3817/2016
J W M v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
13 October 2017
In January 2015, the appellant was charged with one count of maintaining a sexual relationship with his son. The relevant conduct was alleged to have occurred between 1983 and 1989, when his son was between 10 and 16 years of age. The period of the offending was ultimately refined in the facts to a five year period, when the complainant was aged between 10 and 15. The State subsequently filed an indictment alleging that crime, as well as a number of crimes against another male. On 2 November 2016, after somewhat protracted proceedings, the appellant pleaded guilty to the charge of maintaining a sexual relationship with his son, and the remaining counts on the indictment were discontinued.
On 7 December 2016, Tennent J sentenced the appellant to four years' imprisonment, and made an order that he not be eligible for parole until he had served one half of the sentence. An order was made pursuant to the Community Protection (Offender Reporting) Act 2005, that the appellant's name be placed on the register under that Act for a period of five years. The appellant has now appealed to this Court against that sentence.
The relevant conduct, as asserted by the State during the sentencing proceedings, was that on a number of occasions during the relevant period, the appellant had committed acts upon his son that constituted unlawful sexual acts within the meaning of s 125A of the Criminal Code. The majority of the said acts consisted of the appellant pulling the complainant's pants down and fondling his penis and testicles with his hand for a period of time, sometimes around 10 minutes. He would do so under the pretext of conducting a medical examination. These acts occurred in a room of the family home, either the library or the lounge room, and, on at least one occasion, in an outbuilding on the property. On one occasion, the relevant conduct took place in the bathroom of the family home. On that occasion, the appellant told the complainant that he wanted to show him "how to make your doodle larger". He held the top of the complainant's penis and pulled his hand down. He then did the same act on his own penis.
It was put to the learned sentencing judge that the complainant could recall four specific occasions when this conduct took place, including the occasion in the bathroom. However, the judge was told that the conduct in the library had occurred "regularly", and in the lounge room on "multiple occasions". There was no assertion that the conduct in the bathroom or the outbuilding had occurred more than once in each place.
The course of conduct came to an end when the complainant was about 14 or 15. It ended when the appellant attempted to initiate a purported examination, but was told by the complainant that he was "too old for this". The appellant did not attempt to commit similar conduct again.
It would seem from material provided to the learned sentencing judge that although the complainant finished growing up within the family, he and the appellant had become estranged in the ensuing years. In September 2001, the complainant wrote a letter to his mother and siblings exposing the conduct. In response, the appellant denied the allegations of sexual abuse and claimed that although he had examined the complainant on three or four occasions, they were legitimate medical examinations related to a condition which had first been observed when the complainant was an infant. In 2014, the complainant made a formal complaint to police about the conduct. The appellant was interviewed and again denied that he had sexually abused the complainant, but conceded the examinations, which he explained away on a similar basis. He told the police that he was acting on the advice of a since deceased paediatrician. It was conceded by the appellant during the sentencing hearing that these explanations were lies.
The appellant had no prior criminal record. At the time of sentencing, he was 70 years of age and suffering from cancer. He had been the founder and longstanding practice manager of a Launceston pathology service, despite not being a medical practitioner. Numerous written testaments to his good character and contribution to his work and the community were provided to the sentencing judge. Four witnesses gave evidence attesting to aspects of these contributions and his good character generally.
Her Honour delivered lengthy and detailed sentencing comments. She expressed the ultimate view that the appellant's conduct was "predatory in that you took advantage of your son in circumstances where you were close to him and he obviously loved and trusted you". The sentencing judge placed considerable emphasis on the need for general deterrence. She acknowledged that the conduct had not involved "penetrative acts", but clearly considered the crime to be serious because of the breach of trust.
The notice of appeal asserts a number of specific errors and also complains that the sentence is manifestly excessive. As a number of the asserted specific errors can only be demonstrated if the sentence is outside the exercise of a reasonable sentencing discretion by the learned sentencing judge, they will, in fact, be subsumed within the ground alleging manifest excess. It is convenient, therefore, to consider the allegations of specific error before dealing with the ground alleging that the sentence was manifestly excessive.
Grounds 1 and 2
Grounds 1 and 2 read as follows:
"1 The Learned Trial Judge erred in law in failing to impose a sentence which applied and conformed to sentencing patterns for similar crimes or constituent crimes at the time of the criminal conduct.
2 The Learned Trial Judge erred in law in sentencing the Appellant in accordance with current sentencing patterns or alternatively in accordance with what she perceived or believed to be current sentencing patterns including a perceived current community expectation that the crime should attract a 'heavy' sentence."
These grounds were argued together. In essence, they raise the question of the application of the principle of consistency in sentencing in the context of sentencing for historical crimes, particularly when it is asserted that there has been a change in sentencing practices or norms since the commission of the crime.
Senior counsel for the appellant developed the fundamental proposition that had the appellant been sentenced for the equivalent of this crime at the time that he perpetrated the relevant conduct, he would, having regard to sentences imposed for similar offences at that time, have received a sentence substantially less than that actually imposed upon him. It can be inferred from the grounds of appeal that the appellant's argument is that the learned sentencing judge has erred by failing to have regard to and apply sentencing standards which were applicable at the time that the crime was committed, and instead, has applied contemporary sentencing standards.
The appellant's counsel submits that her Honour's application of contemporary standards is revealed by the following comment:
"Further, a review of sentences imposed in more recent times for this crime would suggest that the penalties are increasing. That increase, from my perspective, has resulted from a recognition that the community expects crimes such as this which affect children should attract heavy sentences."
This comment was made by her Honour in the context of a consideration of recent decisions of this Court which have noted the difficulty of establishing a sentencing range in respect of the crime of maintaining a sexual relationship with a young person: Richman v Tasmania [2011] TASCCA 18. Immediately following the comment, her Honour discusses the difficulties and futility inherent in using comparison with specific cases as a means of determining sentence. Viewed in context, the said comment is part of a discussion in which her Honour makes the somewhat trite point that each case must be assessed and determined on its own facts.
There is nothing else in the sentencing comments which indicate that her Honour addressed sentencing standards applicable at any particular time. Accordingly, even if the appellant's underlying proposition is soundly based, error will not be demonstrated on the face of the record. If her Honour adopted an incorrect approach in the manner suggested, then that error will only be demonstrated if it is reflected in a sentence which is manifestly excessive in the sense of being unreasonable or plainly unjust. The complaint, if valid, is hence subsumed within the ground asserting manifest excess. It follows that these grounds, insofar as they allege specific error, must fail. However, the question raised by them as to the approach to be taken in respect of cases of historic sexual abuse, in particular, is pertinent to the consideration of manifest excess. It is convenient to make some observations in respect of that question at this point.
It is well established that a change in sentencing law or practice, in the absence of specific statutory provision, should not be applied retrospectively: Radenkovic (1990) 170 CLR 623; 51 A Crim R 451. Hence, in R v Kench [2005] SASC 85, 152 A Crim R 294 (a case referred to by the appellant's counsel), the South Australian Court of Criminal Appeal held that a determination in a decision of that court in another case, which announced an increase in the appropriate sentencing tariff for offences of the type in question, should not be applied in respect of offences committed before the decision, in the absence of good reasons. The principle underlying the court's reasoning was that basic notions of fairness will operate against the retrospective application of new law. A similar rationale was applied by the Queensland Court of Appeal in R v Wruck [2014] QCA 39, 239 A Crim R 111, a decision also relied upon by the appellant's counsel. That case also concerned the retrospective application of a sentencing practice established by a decision of the Court of Appeal subsequent to the relevant criminal conduct.
However, in R v M, WJ [2005] SASC 272, 155 A Crim R 175, a differently constituted bench of the Court of Criminal Appeal in South Australia, a few months after the decision in Kench, considered an appeal from a sentence imposed after the case which announced the change in sentencing standards which had been referred to in Kench, in respect of conduct which had occurred before that case. The sentencing judge had taken the same view as that approved in Kench, that is, that he would apply the standards of punishment applicable before that decision. This approach was not complained about, but an argument was put to the court that the sentencing standard at the time of the criminal conduct is the relevant standard, and the court was asked to find, as a matter of fact, that the standard at the time of offending (in 1990) was different from that which prevailed immediately prior to the case which effected the change in sentencing standards. This argument was rejected by all members of the court. Sulan J distinguished the question of the application of historical sentencing standards from the application of the principle of retrospectivity fundamental to the determination in Kench's case. He reviewed a number of authorities, including some New South Wales decisions to which I will refer, noting, in particular, that different views had been expressed concerning the desirability of the application of historical sentencing standards. His Honour referred to R v Clifford [2004] SASC 344, in which Doyle CJ in allowing a prosecution appeal, noted the need for there to be "public confidence in the criminal justice system as it applies today". His Honour concluded that "there can be no inflexible rule that sentencing patterns at the time of offending are the starting point for determining an appropriate sentence" [47]. He also concluded that it was not possible to establish a sentencing pattern as at the time of the relevant offending, and in respect of that issue said, at [39]:
"The approach urged upon the court by the appellant's counsel raises a number of issues. Firstly, it is difficult to identify a sentencing trend or pattern for sentences imposed many years ago. It is difficult to recreate the environment which existed at an earlier time. The approach to questions such as rehabilitation, retribution and deterrence will change over the years. An example of how the approach to sentencing has changed is demonstrated by the importance courts now give to the views of victims. The provision of victim impact statements is a relatively recent development which has been introduced into the sentencing process. There have also been medical advances in understanding the causes for certain types of behaviour. There have been many recent studies of the effects of the environment and a person's childhood experiences upon their behaviour later in life. The understanding of the use of illegal drugs and their effects upon human behaviours is another factor which courts consider today. It is difficult, if not impossible, to determine how current day knowledge may have affected sentences in the past."
In his agreement with Sulan J, Besanko J said at [7]:
"For the reasons given by Sulan J, I agree that no discernible pattern of sentencing in 1990 has been established. Indeed, as presently advised I think it will be difficult for a defendant to establish a change in sentencing standards between offending and sentencing absent a decision like R v D where there is a clear statement by the Court that in future penalties are to be increased. In this case the appellant was unable to point to a decision of that nature between 1990 and 1997."
The application of sentencing standards applicable at the time of the offending, in historic cases, has been the subject of consideration on a number of occasions by the New South Wales Court of Criminal Appeal. In R v MJR [2002] NSWCCA 129, 54 NSWLR 368, the court sat as a five member bench in order to reconsider a decision in R v PLV [2001] NSWCCA 282, 51 NSWLR 736 in which Spigelman CJ had expressed the view that it is not appropriate for a sentencing court to have regard to what a court might have done in respect of sentence at the time of the offending. When his Honour made that comment in PLV, he was not aware of earlier authority which had, it seems, been applied consistently in practice in New South Wales. The authority in question was R v Shore (1992) 66 A Crim R 37. Four of the five members of the court in MJR, including Spigelman CJ, held that the principle in R v Shore should be applied and, accordingly, that New South Wales courts should "take into account the sentencing practice as at the date of commission of an offence when sentencing has moved adversely to an offender".
It is clear from the judgments in MJR, however, that their Honours recognised limitations on the practical application of that principle. All of the judges referred to the need to establish the significant movement of sentencing practice since the time of offending, in a way which is adverse to the offender, before contemporary standards will give way to standards applicable at an earlier time. Further, it was made clear that the onus is on the offender to establish that movement, and the nature and relevance of the earlier standards, by appropriate statistical evidence. As Sully J said at [104]:
"As a practical matter, the Shore approach cannot be implemented, as it seems to me either intelligently or intelligibly, unless it happens, as was fortuitously the fact in Shore itself, that there exists an authentic and credible body of statistical material that is capable of putting practical flesh upon the theoretical bones of an approach that entails reconstructing what would have been done twenty or so years previously. In that connection, I am in complete and respectful agreement with what is said by Whealy J and by Smart AJ, respectively, in the passages cited by the Chief Justice at paragraphs 8 and 9 of his Honour's judgment in the present matter."
His Honour went on to say that in the absence of acceptable statistical material, the court ought impose a sentence which is proportionate to the criminality involved, taking into account the maximum penalty prescribed at the time of the offending.
Mason P, the only dissent to the result in MJR, strongly expressed the contrary view. His Honour said at [45]:
"Stated bluntly, it is wrong for a court to apply earlier patterns that have been repudiated as erroneous in the single eye of the law".
His Honour went on to consider the underlying nature of the ongoing declaration of law by courts of appeal, noting that changes in sentencing patterns and increases in tariffs come about because of an increased understanding of the considerations pertinent to a particular form of offending. Ultimately, he concluded at [59]:
"Accordingly, I see no reason to differentiate between sentencing patterns that become more or less severe over time. In my opinion, this is more than a point of symmetry. An offender does not acquire some vested legal right to be dealt with as at the date of the offence or some later date representing a reasonable time for detection and trial of the 'average' offender."
Grove J, although in the majority, indicated that were he uninhibited by prior authority, he would have agreed with the views expressed by the Chief Justice in PLV.
In Green v The Queen [2006] NTCCA 22, the Northern Territory Court of Criminal Appeal considered this question, albeit in the context of complication arising from legislative change. Martin (B R) CJ, with whom Southwood J agreed, reviewed many of the cases to which I have referred. At the conclusion of that review, his Honour expressed the following views at [45]-[46]:
"As is not unusual in the criminal law, the considerations founded in public policy do not all point in the same direction. There is a tension between those considerations which requires resolution through the application of fundamental principles of 'justice and equity' while retaining sufficient discretion in a sentencing court to resolve practical issues which necessarily arise when sentencing many years after the commission of an offence. Balancing the competing interests, and applying those fundamental principles, in my opinion, speaking generally, when changing sentencing standards have resulted in penalties increasing between the commission of the crime and the imposition of sentence, and in circumstances where the delay is not reasonably attributable to the conduct of the offender, a sentencing court should, as far as is reasonably practicable, apply the sentencing standards applicable at the time of the commission of the offence. As Mason CJ and McHugh J said, the offender has 'an entitlement' to be sentenced 'in conformity with the requirements of the law as it then stood'.
The view I have expressed is subject to important qualifications. First, the general principle is not an 'inflexible rule'. If good grounds exist, it may be appropriate to apply current sentencing standards. Secondly, the general principle can be applied only if it is reasonably practicable to do so. If the available evidence fails to establish a change in sentencing standards between the commission of the offence and the time of sentencing, the court will be left with no alternative but to apply current standards."
In my opinion, the proposition that a sentencing court, sentencing for conduct which occurred many years ago, should apply sentencing patterns which pertained at the time, can be distinguished from the presumption against the retrospective application of a sentencing law or a standard established, for example, by announcement in a decision of an appeal court. The rationale in respect of the presumption against retrospectivity is fairness. However, sentencing in accordance with norms established by sentences in other cases has a different underlying rationale. The latter is an extension of the principle that "promotes consistency in the sentencing of offenders". See Sentencing Act 1997, s 3(c). However, "the consistency that is sought is consistency in the application of relevant legal principles": Hili v The Queen [2010] HCA 45, 242 CLR 520 at [49]; Harington [2017] TASCCA 4 per Wood J at [24]. Further, as was emphasised by the High Court in Hili, care must be taken in the use of a range established from other sentences. At [54], the court said:
"As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'." [Footnotes omitted.]
If there has been a change in a sentencing range in respect of historic sexual offences, then it is probable that that has come about because of the development of "unifying principles" by the court incrementally over time, having regard to a better understanding and experience in respect of the relevant crimes and their effect. For example, as Sulan J in R v M, WJ noted at [39] in the passage quoted above at [42] of these reasons, sentencing may be influenced over time by a greater understanding and emphasis upon victim impact. This is particularly relevant to historic sexual crimes against children. It is within the experience of the courts that the potential impact of childhood sexual abuse on a victim over time is now better understood than in the past. An incremental change in sentencing norms, in such circumstances, results from a more precise application of established sentencing principles, rather than a change in those principles. The valid and appropriate evolution of sentencing norms in this way has been recently recognised and acknowledged by the High Court in R v Kilic [2016] HCA 48, 91 ALJR 131 per Bell, Gageler, Keane, Nettle and Gordon JJ at [21]:
"Section 5(2)(b) of the Sentencing Act 1991 (Vic) required Judge Montgomery, and the Court of Appeal, to have regard to 'current sentencing practices'. The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders]. Consideration of 'current sentencing practices' will include, where appropriate, the proper use of information about sentencing patterns for an offence. The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations." [Footnotes omitted.]
See also my comments in Director of Public Prosecutions v WLNH [2017] TASCCA 15 at [29]-[30].
With the understanding discussed above of the reasons for any demonstrated change in sentencing norms for crimes relating to historic sexual abuse, it is difficult to understand how the question of fairness arising in respect of the presumption against retrospectivity could have any real application to the formulation of sentences for such crimes. The most that could be asserted is that an offender might have a sense of grievance arising from the proposition that had he been sentenced at the time of the offending, he might have received a lesser sentence. In a case in which the delay is demonstrably caused by the conduct of the offender, there will be no question of fairness which will require resort to earlier sentencing practices. However, irrespective of whether the delay is attributable to the offender, it is desirable that there be consistency between sentences handed down in the present with contemporary sentencing practices. Such practices will in many cases reflect an up to date and more accurate understanding of the criminal conduct and its impact. Further, sentencing in accordance with historical norms does not necessarily avoid the sense of grievance which can justifiably arise from a failure to achieve consistency. The handing down of a sentence not reflective of contemporary norms can engender a sense of grievance in other offenders who have been sentenced in accordance with those norms, and potentially undermine public confidence in sentencing with respect to such crimes.
In any event, as the cases referred to highlight, the establishment of sentencing norms or a sentencing range at the time of the commission of historic sexual offences can create significant practical difficulties. Those difficulties are exemplified by the circumstances of this case. An offender who claims that sentencing practices have moved in a manner adverse to him has the onus of placing statistical material which will establish that claim before the sentencing judge. That did not occur in this case. In fact, the appellant's counsel in the sentencing proceedings made no reference to this question. However, on appeal, some information concerning sentences imposed at the time of offending for sexual offences was submitted by the appellant's counsel for the purpose of informing the question of whether or not her Honour imposed a sentence which was manifestly excessive.
Despite this material, a number of factors in this case lead to the conclusion that even if it is relevant to examine sentencing norms at the time of the offending, it is practically impossible to do so, in a cogent way. I refer in particular to the following:
(a)The crime of maintaining a sexual relationship with a young person did not exist at that time. Hence, any comparison can only be with sentences imposed for offences of a similar nature to the underlying acts. Because the crime in this case is constituted by a course of conduct, it is necessary to relate the offending to cases which involved a number of such offences which were committed in the context of an ongoing pattern of abuse. However, given the paucity of information which I will discuss below, it is extremely difficult to determine in any more than a very general way, the underlying circumstances in respect of any sentence imposed at that time. Further, it is almost impossible to determine and analyse the sentencing principles which underpinned any such sentence.
(b)The unlawful sexual act perpetrated in this case did not exist as a crime at the time of this offending. Section 127 of the Code creates the crime of indecent assault. Until the Code was amended by 71 of 1987, which took effect on 26 November 1987, s 127 related only to indecent assault against a female. By virtue of s 127(4), the section, as amended, is taken to have been in force from 4 April 1924. Hence, the criminality created by the section in respect of a male will apply retrospectively by force of statute.
Apart from any question of moral culpability which may arise from these circumstances, this statutory reality demonstrates that it is an almost impossible task to find cases which will directly compare to the crime for which the appellant was sentenced. At best, any comparable sentence will relate to conduct of a roughly similar nature, but in a completely different legislative context.
(c)The material relied upon by the appellant is scant and, in my view, not sufficient to establish a sentencing norm to a sufficient extent to demonstrate a change in sentencing practice. It can probably be ascertained that, in general terms, courts imposed more lenient sentences for sexual offending generally, during the years in question. However, even according to contemporary standards, it is problematic to determine a tariff that will assist in guiding the sentencing discretion in a particular case. See Harington (above) per Pearce J at [86]. In respect of historic sentencing, there are the added difficulties referred to above, and finally a difficulty in ascertaining the basis of sentence, and hence the unifying principles which were applied at the time.
I am cognisant of the dicta expressed by Wood J in Director of Public Prosecutions v Harington (above) at [16], and Slicer J in Director of Public Prosecutions v M [2005] TASSC 14, which were referred to by Mr Ellis SC, and the concluded view reached by the Courts of Criminal Appeal in New South Wales and the Northern Territory in MJR and Green respectively. However, for the reasons discussed above, I would favour the view expressed by Sulan J in R v M, WJ (above) that:
"There can be no inflexible rule that sentencing patterns at the time of the offending is the starting point for determining an appropriate sentence."
In a case in which the person to be sentenced claims that there has been a change in sentencing law or patterns which operate adversely to him or her, then the onus will be on that person to establish that change and its relevance to sentencing in the particular case. A change in sentencing law or principle, in accordance with a determination or an announcement by a court of appeal, should not operate retrospectively in respect of criminal conduct committed before the change or announcement, as a matter of fairness. However, in respect of an asserted change in the approach of courts by reference to an alteration in tariff, the real question for the sentencing court will be whether there has been a change in the underlying and unifying sentencing principles applicable to the conduct in question and, if so, the reason for that change. If the change has come about incrementally and based solely upon a better understanding of factors relevant to the criminal conduct in question, then it is likely that the court will place greater weight on contemporary standards. This would seem to be consistent with the view expressed by Spigelman CJ in MJR (above) as follows:
"Where the sentencing practices have increased by reason of greater salience being given to issues of general deterrence, eg because of increased prevalence, the practice at the time of conviction would appear to be entitled to greater weight."
In this case, it was not appropriate for her Honour, nor is it for this Court, to have any significant regard to the material related generally to sentencing for sexual offences at the relevant time. For the reasons stated above, there is nothing to be gained from an assessment of that material. Further, the contemporary understanding of the sentencing judge and this Court with respect to the factors relevant to sentencing for a crime of this nature, is likely to better reflect the application of proper sentencing principles, given the experience of the courts over time.
I reiterate that these grounds are not made out. To the extent that the argument informs a consideration of the ground relating to manifest excess, I will apply the considerations expressed by me above.
Grounds 3 and 4
Grounds 3 and 4 read as follows:
"3The Learned Trial Judge erred in law in holding there was an absence of mitigating factors when there were numerous mitigating factors which ought to have been taken into account and ought to have reduced the severity of the sentence imposed.
4The Learned Trial Judge erred in law in deprecating and ignoring or in giving no effect to the Appellant's good character, achievements, contributions and lack of previous convictions:
a) Practically and/or
b) When s 11A (b) of the Sentencing Act 1997 did not apply in its terms and/or
c) When s11A (b) of the Sentencing Act 1997 did not apply as it was not in force at the time of the commission of the crimes."
These grounds were argued together. The argument underpinning them is that the sentencing judge proceeded on the basis that there were no mitigating factors and, in particular, deprecated, ignored or gave no effect to the appellant's good character, achievements, contributions and lack of previous convictions. In support of this argument, defence counsel submitted that her Honour revealed her attitude to the significance of evidence of good character by the following comment:
"There is an absence of mitigating factors."
There is no question that there was evidence before the learned sentencing judge which established that the appellant had made significant contributions to the community and had been kind and generous to other members of his family, and other people generally. The evidence spoke in detail to a long history of active and generous involvement in various community and charitable activities.
There is also no question that evidence of good character was relevant in the sentencing process. In Ryan v The Queen [2001] HCA 21, 206 CLR 267, McHugh J discussed the proper use of character evidence in the sentencing process at [23] and [25]:
"It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's 'previous' or 'otherwise' good character.
…
Second, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances."
In that case, the sentencing judge had, in the opinion of the majority of the High Court, erred by refusing to take into account at all the question of the appellant's character. The judge had said that he could not "see any good in the prisoner", and that, although he was "a man of unblemished character and reputation", this did not entitle him to "any leniency whatsoever".
In this case, it is clear that her Honour was aware of and accepted information which established the appellant's "otherwise good character". Under the heading "Personal circumstances", her Honour summarised the information that had been presented to her concerning the appellant's background and contribution to the community. She referred, in particular, to the written references and the witnesses who gave character evidence before the court, and summarised the effect of that evidence. Her Honour then concluded in the light of that information as follows:
"While I accept that you have contributed much to the community and your work, what cannot be ignored is that not one of the people who spoke so highly of you knew, at the time you were doing some of these good works, what you were doing to your son. Your behaviour towards your son clearly demonstrated that, at least in the 1980s when you were offending, you were not of good character."
It is apparent from the quoted comment that her Honour correctly dealt with the first stage of the process explained by McHugh J in Ryan. The effect of the comment is to accept that the appellant is of "otherwise good character", albeit not in respect of his offending. This analysis is entirely consistent with the explanation of the proper characterisation of good character evidence explained by McHugh J in Ryan. The good character relevant to the sentencing process must be considered in isolation from the offending conduct because "If an offender's character was determined by reference to the offence for which he or she is being sentenced, he or she would seldom be 'of good character'". Per McHugh J at [24].
Any merit in the appellant's complaint as to her Honour's treatment of this evidence must therefore be found in the second stage of the process referred to by McHugh J, in particular, whether her Honour, as she was bound to do, took that evidence into account in determining sentence. Although the grounds complain that she did not, the only conclusion that is reasonably open, having regard to the totality of the sentencing comments, is that her Honour did take those matters into account. As noted above, she referred in some detail to the information in question. Further, the context of her Honour's comment that there is "an absence of mitigating factors" reveals that she was dealing with the weight to be attributed to mitigating factors, rather than excluding such factors from her consideration. The said comment is contained in a paragraph, in which her Honour then goes on to consider the weight that might be attributed to a particular mitigating factor, the plea of guilty. This, in itself, would indicate that she was not intending to say that there are no mitigating factors. In my view, the comment should be taken as a reference to relative weight.
I am satisfied that her Honour was aware of and did take into account the appellant's "otherwise good character". Accordingly, the complaint raised by these grounds really becomes a question of the weight to be attributed to this factor. Once again, the only way to correctly test whether the sentencing judge has given appropriate weight to a factor such as this, is in the consideration of the ground alleging manifest excess. As Porter J said in TAP v Tasmania [2014] TASCCA 5 at [30]:
"… The Victorian Court of Appeal has pointed out on a number of occasions that a complaint about the weight given to a particular sentencing consideration is not a ground of appeal. The only way in which a court can evaluate a complaint about the sufficiency of weight given to a particular consideration is as a particular of the manifest excess ground. 'Under that ground, the court will examine the sentence actually imposed, and ask whether it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors'."
See also Mulholland v Tasmania [2017] TASCCA 2 per Pearce J at [17].
Accordingly, these grounds must fail, insofar as they assert specific error. All of the mitigating factors, including the appellant's "otherwise good character" will be taken into account in consideration of whether the sentence was within a reasonable exercise of the sentencing discretion.
Grounds 7, 8 and 9
Grounds 7, 8 and 9 read as follows:
"7The Learned Trial Judge erred in law in allowing there to be read a victim impact statement which was not limited to the matters to which by s 81A of the Sentencing Act 1997 it ought to have been limited and which contained irrelevant and prejudicial material.
8The Learned Trial Judge erred in law in not resolving factual issues arising out of the victim impact statement in the proper manner and to the appropriate standard.
9The Learned Trial Judge erred in law in being too influenced by an emotive, lengthy, repetitive and hyperbolic victim impact statement containing assertions which were not accepted by the Appellant and/or assertions which ought not to have been accepted without being supported by evidence."
These grounds relate to the delivery and use of the victim impact statement.
The appellant's initial argument is that the victim impact statement read to the court by the complainant went beyond that permitted by s 81A(2) of the Sentencing Act. That section provides:
"(2) If a court finds a person guilty of an indictable offence, or a summary offence that has resulted in the death or serious injury of a person, or a family violence offence, a victim of that offence may furnish to the court a written statement that —
(a) gives particulars of any injury, loss or damage suffered by the victim as a direct consequence of the offence; and
(b) describes the effects on the victim of the commission of the offence."
There is no doubt that the statement was lengthy and emotional. It was highly critical of the appellant and may well have gone beyond what might be permitted, if the author was giving sworn evidence as to the impact of the crime upon him. The appellant's argument is that to the extent that the statement went beyond the parameters defined in the said provision, it was not so authorised, and should have been ignored by the sentencing judge.
The following observations can be made in respect of the nature of the statement contemplated by s 81A(2). Firstly, it is intended to be a statement by the victim of the offence. Secondly, insofar as the statement is authorised to contain a description of the effect on the victim of the commission of the offence, it is clear that the author of that description is to be the victim. These aspects of the document suggest that the purpose of the statement is to provide the victim with a direct voice to the judge explaining the impact of the crime upon him or her.
Because the provision affords a right to the victim of the crime to furnish the statement, it can be anticipated that the document will contain material which may extend beyond what would be permitted in a purely forensic exercise. Hence, the courts have clearly acknowledged the need for circumspection in the use of the contents of such a statement. In Attorney-General for Tasmania v B [2010] TASCCA 6, Crawford CJ said at [55]-[63]:
"Victims are permitted by the Sentencing Act, s81A(2), to furnish to the sentencing court a victim impact statement that gives particulars of any injury, loss or damage suffered by the victim as a direct consequence of the offence, and describes the effects on the victim of the commission of the offence. Such statements are regularly tendered to and used by courts when sentencing offenders. However, they are rarely used in support of an application for a compensation order for personal injuries suffered as a result of an offence. In fact, this is the first case of that kind I have experienced, at first instance or on appeal.
There is nothing in the Act that directs a sentencing judge to have regard to the impact of an offence on a victim when determining the appropriate sentence. Nevertheless, it is clear that the consequences of an offence, including its effect on a victim, are important considerations in the sentencing process, and the severity of the sentence may be increased because of them.
No doubt it is for that reason that ss81A(7) and 81(2) require that the sentencing court must ensure that the offender has knowledge of, and the opportunity to challenge, the information contained in a victim impact statement. The offender may challenge the truth of any of that information received by the court, and if so, the court may require it to be proved in like manner as if it were received at a trial. See ss81A(7) and 81(4).
The legislative system has provided victims with a relatively simple and expedient way for them to communicate their suffering to courts, often publicly, without being challenged about what they say.
I have no doubt that the contents of many victim impact statements are influenced by the emotional feelings of the victim, his or her dislike for the offender, and a desire for retribution. That comment particularly applies to statements asserting psychological injuries or difficulties as a result of a crime. The statements are never on oath and they require particular caution before they are wholeheartedly accepted.
Offenders rarely challenge them, but that does not mean necessarily that they accept everything contained in them, and I am sure that also applies to judges who receive them, even if they are unchallenged. It is not infrequent that judges feel uncomfortable about accepting everything that is contained in them, for there is usually no way of knowing, or confirming, that what is complained of was in fact caused by the offence. Because they are not on oath and the court will often have no other information about the victim, and the influence that other life experiences have had on him or her, there is a need for pragmatism when dealing with them.
If judges demonstrate a willingness to accept every fact in them that is not challenged, and a readiness to increase the severity of sentences having regard to every one of them, accused persons will be encouraged to challenge much of what is contained in them. As a consequence, victims may be forced to give evidence to support the contents of their statements, and the statements may need to be supplemented and supported with evidence from other witnesses, including medical and other experts. Such a course is not one that is generally desirable for the sentencing process. Victims will be deterred from providing their statements. Many, if not most, will not want to give evidence and to be exposed to the court's processes. Hearings will be prolonged by the dispute.
On the other hand, many offenders may not have the personal or financial resources to be able to mount a comprehensive challenge to a victim impact statement.
I think it true to say that for reasons such as those I have mentioned, sentencing officers tend to treat victim impact statements, when not supported by expert evidence or reports, or other corroborative evidence, with a degree of circumspection when it comes to psychological injuries and the like. That is not to say that they are disregarded, for they are not. But experience shows that they tend to be accepted in an extremely general sense, without resort to detailed fact-finding. Sentencing officers usually avoid making precise findings concerning the adverse effects an offence may have had on a victim. Thus, it is common that in comments on passing sentence judges often make general, non-specific, and extremely brief findings about them."
The purpose and use of the victim impact statement was also the subject of comment by Nettle JA (with whom Vincent JA and Habersberger AJA agreed) in R v Swift [2007] VSCA 52, 169 A Crim R 73, where his Honour said at [6]:
"The appellant's argument implies that a victim impact statement is to be equated to Crown evidence and, consequently, that the Crown has a responsibility to put the statement in admissible form. That is not the case. The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim's concerns.Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material. As Vincent JA observed in Director of Public Prosecutions (Vic) v DJK:
'The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made'."
These comments emphasise the point that a victim impact statement plays a particular role in sentencing proceedings. To a considerable extent, the purpose of such a statement, including the opportunity for its oral delivery by the victim, is therapeutic. However, its statutory function also includes the provision of information relevant to the formulation of sentence, to the court. The requirement for circumspection referred to by Crawford CJ seems to me to relate to the latter purpose, not the former. It would place an artificial and unrealistic fetter upon the clearly intended therapeutic nature of the right afforded to victims, if statements were required to be kept within the bounds of the forensic provision of information. It follows that the appellant's complaint about the content of the statement is unfounded. Ground 7 must fail.
Grounds 8 and 9 address the second function of the statement, the provision of information relevant to the exercise of the judge's sentencing discretion. In this regard, the statute provides a mechanism to ensure due process before forensic use of that information: see ss 81A(7) and 81(2). However, as Crawford CJ explained in Attorney-General v B (above), there are practical reasons why the frequent use of those provisions is not desirable. Hence, the need for circumspection on the part of the sentencing judge, in the use of material contained in the statements.
Of course, it is open and, indeed, incumbent on a sentencing judge to have regard to the information provided in the victim impact statement for sentencing purposes. Provided the judge exercises appropriate caution and circumspection, there is no reason why the court cannot make limited findings based on that information: Belbin v Bennett [2011] TASSC 23 at [40]. In the vast majority of cases, the contents of the victim impact statement will simply confirm, perhaps in a partisan and emotional way, information provided to the court from other sources. Further, the statement will often describe the type of impact which would reasonably be expected as a consequence of the relevant criminal conduct. In this respect, the Court of Criminal Appeal in New South Wales noted in R v Tuala [2015] NSWCCA 8 at [79]-[80]:
"Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents.
Difficulties can arise, for example, where:
·the facts to which the victim impact statement attests are in question; or
·the credibility of the victim is in question; or
·the harm which the statement asserts goes well beyond that which might ordinarily be expected of the offence in question; or
·the content of the victim impact statement is the only evidence of harm."
Having regard to the considerations discussed above, it seems to me that the following can be said of the appropriate approach to the use of victim impact statements in criminal proceedings:
(a)A court should be loath to limit the content or ambit of the statement, provided that it reasonably addresses the matters contained in s 81A(2), which include "the effects on the victim of the commission of the offence". It must be remembered that the statement is intended to provide a means of the victim furnishing this information directly to the court and that there is an underlying therapeutic purpose, in addition to the provision of information to the sentencing court.
(b)Of course, if the material is challenged in accordance with s 81(4), then the court must proceed in accordance with that statutory provision.
(c)However, where that is not done, then the court may use the information but, in doing so, it must exercise caution and circumspection of the nature described by Crawford CJ in Attorney-General v B.
(d)There will be little difficulty where the court draws and uses information from the victim impact statement which is confirmed from other sources, for example, trial evidence or the Crown statement of facts. There will, however, be circumstances in which fairness will require that the judge direct the attention of the defence to a particular matter, particularly if the judge considers that that matter will significantly aggravate the sentence. An example of such a circumstance would be an aspect of the alleged impact which is outside the ambit of what might be ordinarily expected in respect of the criminal conduct in question. In such circumstances, the judge should alert the defence as to the potential use of the material and provide an opportunity for challenge in accordance with the procedure set out in s 81(4).
Having considered the learned sentencing judge's comments in the light of these considerations, I am not persuaded that her Honour's use of the victim impact statement was inappropriate, incorrect or not reasonably open to her. Her Honour made the following observations in respect of victim impact:
"Your son has become estranged from his siblings and mother, largely because of you. He has suffered depression, he has had difficulty establishing long term relationships and he has required professional help at times. He was quite clearly relieved on the day you pleaded guilty, no doubt because he had been vindicated after so many years.
…
The impact on your son has been significant. It is accepted he has achieved academically and in his career aspirations. However, his victim impact statement reveals, as I have said, that as an adult he is still unable to reconcile your role as a father with what you did, and still unable to understand why the father he loved and tried to make proud of him could have done what you did. He has lost his relationship with his siblings and other family members, he suffers from depression and he has had difficulty establishing and maintaining relationships with others."
These paragraphs, in my view, contain a reasonably modest distillation of the essential relevant themes of the victim impact statement. They were not challenged by the appellant's counsel, yet they were clearly relevant to sentencing and within the ambit of what might reasonably be expected as a consequence of this type of conduct. Further, and most importantly, these themes had been summarised and asserted by prosecuting counsel in a manner that clearly characterised them, in counsel's submission, as aggravating factors. This was sufficient to place the defence on notice as to the use to which the prosecution asserted should be made of the information provided in respect of victim impact. In his plea in mitigation, counsel for the appellant in the sentencing proceedings commenced his submissions by saying, "My submissions of sentence are all geared towards why this is a case where, notwithstanding the very impassioned victim impact statement, that this is a matter where the court could wholly suspend a sentence of imprisonment …". Later in his submissions, counsel dealt with the victim impact statement, not by challenging it, but by pointing out that despite the abuse and its effects, the complainant had achieved considerable success, both academically and professionally. He then went on to say the following:
"So, yes, I can't depreciate the agony he went through in relation to this behaviour, but in all other respects he has excelled.
In that respect, the suggestion that he has been completely destroyed and not able to achieve what he might otherwise achieved, in my submission is not borne out by his actual history, submitted history, of outstanding success."
Counsel then tendered a letter, and made further submissions to the effect that the letter was evidence that would reduce the effect of the victim impact described in the victim impact statement.
In summary, therefore, it is clear that defence counsel was put on notice as to, and was cognisant of the particular aspects of victim impact which the Crown asserted aggravated the appellant's culpability. It is also clear that defence counsel had the opportunity to contest and deal with those matters, and he, in fact, did so in the manner described. It is well established that the potential for serious harm to victims is an important sentencing factor in respect of offences of this kind. In this case, her Honour noted the harm to the victim in a cautious and moderate distillation of material contained in a victim impact statement and within the bounds of that asserted by the Crown. Defence counsel did not directly contradict that material, but sought to deal with it by minimising the impact in the light of the fact that, despite such impact, the complainant had still been able to achieve considerable success in his academic and professional life. It was, accordingly, open to the sentencing judge to use the information as to victim impact in the way that she did.
The grounds therefore fail. Any residual complaint that her Honour placed undue or excess weight on the question of victim impact will be appropriately tested through the claim that the ultimate sentence was outside the reasonable exercise of the sentencing discretion. Accordingly, this complaint is subsumed in the ground alleging manifest excess.
Grounds 10 and 15
Grounds 10 and 15 read as follows:
"10The Learned Trial Judge erred in law in deprecating the utilitarian effect of the plea of guilty and in failing to give proper weight to it by reference to matters irrelevant to such effect including but not limited to asserting in error that the cross-examination of the complainant was not confined to relevant issues when the State was represented and Her Honour had the duty in any event to limit cross examination to relevant matters and by erroneously only considering the plea in terms of saving the complainant from cross-examination and by erroneously failing to contradict the Respondent's assertion that it was a 'late plea' thus impliedly accepting and acting on that assertion.
…
15Her Honour erred in law in giving inadequate weight and credit to the plea of guilty and failed to acknowledge that it was made at an early opportunity given the Crown's insistence up to that point in proceeding with other charges on the same indictment."
These grounds attack the use which the trial judge made of the appellant's plea of guilty and, in particular, its mitigatory effect.
In the sentencing comments, her Honour set out in some detail the history of the proceedings. She said that she had done so for the purpose of giving consideration to whether the appellant "should be given any discount for a plea of guilty and whether you have demonstrated any remorse".
The appellant was initially charged on complaint with this crime alone. He pleaded not guilty in the Magistrates Court, and when the matter was committed to the Supreme Court applied for and obtained an order for preliminary proceedings. The complainant was not cross-examined at those proceedings.
Subsequent to those proceedings, the Crown filed an indictment charging the appellant with the count for which he has now been sentenced, and three other charges relating to alleged conduct against another male. The appellant applied to sever the indictment and during the course of the hearing of that application, the complainant was cross-examined by the appellant's counsel. During the course of that hearing, but, after cross-examination, the appellant advised that he would plead guilty to this crime, and the prosecution discontinued the charges against the other male.
In relation to the mitigatory effect of the plea of guilty, her Honour said:
"As to the first of those matters, I accept you have saved the Court and prosecuting authorities the time and expense of proceeding to a trial. The plea had in that regard had what is described as utilitarian benefit. A factor often relevant to the efficacy of a plea is whether it saves a complainant the need to relive their experiences through the process of being examined at trial. In this case, your plea was entered only after your son had been subjected to cross-examination by your counsel in court about his allegations. That cross-examination was not confined to issues strictly relevant to the preliminary issue being determined and your son was subjected to probing cross-examination by which the truth of his allegations generally was challenged.
Any weight to be given to your plea of guilty in those circumstances is therefore very limited."
The appellant's counsel argues that the sentencing judge erred by indicating that she would attribute only "very limited" weight to the plea of guilty. Counsel submits, having regard to the authority of Cameron v The Queen [2002] HCA 6, 209 CLR 339, that the plea ought to have been regarded as having been entered at the first available opportunity, given that it was entered as soon as the charges against the other male had been discontinued.
In Cameron, the plurality described the mitigatory effect of a plea of guilty as follows at [11]:
"It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
'a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.' [(1998) 194 CLR 656 at 663-664 [22] per Gleeson CJ, Gummow, Hayne and Callinan JJ]
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice."
The issue in Cameron was whether the plea of guilty had been entered at the first reasonable opportunity. This was significant because the sentencing statute provided that "the earlier in proceedings that (the guilty plea) is made, or indication is given that it will be made, the greater the mitigation". Notwithstanding the statutory context, it is clear from the reasoning of the majority of judges in Cameron that the issue of whether a plea is entered at the first reasonable opportunity, will be significant in the assessment of the issues which underpin the mitigatory value of a plea of guilty. As the plurality said at [22]:
"… Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity."
Hence, the timing of the plea and the circumstances in which it is entered are matters which will inform the mitigatory weight of the plea, assessed having regard to the underlying rationale for that mitigation.
In this case, defence counsel did not suggest at any time that the plea had been entered because the appellant was remorseful, accepted responsibility or had a wish to facilitate the administration of justice. Given the history set out by the learned sentencing judge concerning the appellant's initial denials of the allegations when the complainant first raised complaint, and again when he was interviewed by police, and his attempt to use medical advice and necessity as an explanation for examination, it would have been necessary for there to be a positive assertion on his behalf that his decision to plead guilty had arisen from a marked change of attitude, before it could be accepted as evidence of remorse. Such an assertion was not made.
Further, the question of whether the appellant should receive some benefit from the plea because of an acceptance of responsibility and a willingness to co-operate with the administration of justice, had those claims been made by his counsel, would have raised some complex questions. The appellant had pleaded not guilty in the Magistrates Court when the only charge against him was the charge for which he was sentenced. While that was still the case, he applied for and conducted preliminary proceedings. It is true that once the indictment was filed he was then in the position of facing other charges, and from that point "regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecutions while others [that were subsequently withdrawn] remained pending against him". See Atholwood [1999] WASCA 256, 109 A Crim R 465, approved in Cameron. However, there was no suggestion that that impediment applied to a plea entered or indicated before the indictment was filed. Hence, there was a real question as to whether it could be said that the plea was entered at the first available opportunity, or was motivated by considerations which were consistent with the rationale underpinning the mitigatory effect of a plea of guilty, as described in Cameron.
Notwithstanding this, there is no doubt that from an objective point of view, the plea had utilitarian benefit. Her Honour expressed that benefit in terms of the plea having "saved the Court and prosecuting authorities the time and expense of proceeding to a trial". The plurality in Cameron preferred to describe the utilitarian benefit of a plea of guilty in terms of the subjective willingness of an accused person to facilitate the course of justice. However, it is clear from their Honours' reasoning that this was an attempt to place what is commonly referred to as the utilitarian benefit on a proper philosophical footing. As their Honours said at [15]:
"One aspect of the legal notion of discrimination 'lies in the unequal treatment of equals' (citation omitted). The 'equals' here are those required to plead guilty or not guilty; they stand as equals before the criminal law and processes of Western Australia. But is the differential treatment of such persons and the unequal outcome with respect to sentence the product of a distinction which is appropriate and adapted to the attainment of a proper objective, here the facilitation of the course of justice by the willingness of the accused to plead in a particular fashion? The answer, as indicated above, is in the affirmative."
There was no reasonable basis upon which her Honour could have accorded the plea mitigatory benefit because it was reflective of genuine remorse. The only mitigatory effect of the plea was its utilitarian benefit. Although her Honour expressed this in terms of the saving of costs, the real rationale was a willingness to co-operate in the administration of justice and the pragmatic benefits flowing from that. The appellant deserves some consideration for the fact the complainant would not have to face giving evidence at a trial. However, irrespective of the nature or tenor of the cross-examination, he had done so during the course of the severance application. It was reasonable for her Honour to make that observation.
Accordingly, having regard to the circumstances of the case generally, and to those in which the plea of guilty was entered, her Honour's observation that the weight to be given to the plea of guilty "is therefore very limited" was reasonably open to her. Of course, the extent to which it has actually played its part in the formulation of sentence is again a question only answered by the determination of the ground alleging manifest excess. This is still an open question, but the grounds as stated fail.
Grounds 11 and 12
Grounds 11 and 12 read as follows:
"11The Learned Trial Judge erred in law in giving too much prominence to general deterrence in the sentence she imposed.
12The Learned Trial Judge erred in law in imposing a sentence which she said would act as a deterrent 'to others who think they can act in circumstances where their victim is close by' when by operation of s 194K of the Evidence Act 2001 and/or by Her Honour's own embargo on her comments on passing sentence there could not have been any such deterrent effect."
These grounds were again argued together and I will deal with them briefly.
Once again, it seems to me that the effect of the grounds is a complaint as to the weight afforded to the question of general deterrence in the determination of sentence. In this respect, for reasons already explained, the grounds must be subsumed within the general ground alleging manifest excess.
In any event, her Honour was correct to emphasise the need for general deterrence. There is overwhelming authority to support the relevance of that factor in sentencing for a crime such as this: Director of Public Prosecutions v STU [2012] TASCCA 7, 21 Tas R 322; Harington; CJP. Further the appellant's criminality involved a significant breach of trust. That, by itself, is a matter which called for significant weight to be placed upon general deterrence: Harington per Pearce J at [90].
The rationale for the emphasis on general deterrence in cases involving maintaining a sexual relationship with a young person, particularly where the criminal conduct involves a significant breach of trust, arises not only because of the evil and highly damaging nature of such conduct, but also because of the insidious and secretive circumstances in which such abuse typically takes place. In this case, the abuse was perpetrated over a period of years by a father on his son. The appellant was, in actual fact, the person in whom was reposed the responsibility of protecting and nurturing his son. Those circumstances provided the appellant with the opportunity to commit this crime, with virtual impunity and over a lengthy period of time. Because such crimes occur in circumstances where the victim is particularly vulnerable, the crime is difficult to detect and it occurs in a premeditated way over a lengthy period and on a repeated basis, the crime is particularly amenable to general deterrence. A person with the opportunity and inclination to make a conscious and premeditated decision to abuse his child within the family home must appreciate that the consequences of such conduct will involve severe punishment.
In sentencing for a crime such as this, there are other factors properly taken into account, which are related to but distinguishable from general deterrence. For example, conduct such as that committed by the appellant requires a sentence that will give effect to the community's denunciation and rejection of such conduct. The sentence should also provide a means of vindicating the victim. DPP v NOP [2011] TASCCA 15; Harington per Pearce J.
The appellant suggests that this case was not an appropriate vehicle for general deterrence because her Honour did not publish the comments on passing sentence on the Supreme Court website. There is no merit in this submission. The submission assumes that the deterrent value of the sentence is in its publication. Publication, of course, has a role to play from a practical point of view, but the real deterrence value of the sentence arises because it is a proportionate response to a premeditated crime.
These grounds must fail.
Ground 13
Ground 13 reads as follows:
"13There was a miscarriage of justice and / or the sentencing process miscarried by reason of the Crown alleging as a fact and Her Honour The Learned Trial Judge adopting and sentencing on the basis that the Appellant had inter alia demonstrated on more than one occasion on the complainant's penis and his own how to get an erection and masturbate when there was no evidence that he had."
This ground does not allege an error on the part of the sentencing judge. Rather, it suggests that a miscarriage of justice has resulted because the Crown asserted, without challenge from defence counsel, a fact during the course of sentencing proceedings which, the appellant claims, was incorrect and not based on evidence.
The relevant assertion in the Crown statement of facts was as follows:
"There were also occasions when the accused would say to the complainant "I will show you how to make your penis longer' and he would then demonstrate on the complainant, and sometimes his own penis, how to get an erection and masturbate. "
Her Honour repeated the substance of this allegation in her summary of the factual basis of sentencing.
The appellant's counsel asserted during the hearing of the appeal that the complainant had never asserted in his written statement or his evidence at the voir dire, that the appellant had ever obtained an erection. The information provided in his statutory declaration and on the voir dire was generally consistent with the particulars of the "bathroom" incident which was outlined by the prosecutor and repeated by her Honour.
The Director of Public Prosecutions argues that her Honour was bound by the factual basis which had been asserted by the prosecution and not disputed by the defence. Further, the Director argues that, in any event, the words "erection" and "masturbate" were simply characterisations of the detailed act which was explained accurately in respect of the said incident. Accordingly, even if the assertion was incorrect, there was no miscarriage of justice.
I accept the latter submission. It is not necessary, in this case, to consider the extent to which a defendant, represented by counsel, will be bound on appeal by facts asserted in the sentencing proceedings by the prosecution and not challenged by defence counsel. Ultimately, I am not persuaded that the claim that the appellant was demonstrating to his son how to "get an erection and masturbate" is an inaccurate characterisation of the conduct described by the complainant. Taking hold of his son's penis with his hand, and pulling down, whether for the purpose of sexual stimulation or otherwise, was an unlawful sexual act in the form of an indecent assault. This was serious conduct, whether or not he was attempting to demonstrate how to masturbate or obtain an erection. His plea of guilty negates the suggested pretext that this occurred because of a medical examination, and it must necessarily have involved indecency.
In any event, the matter can be appropriately tested by assuming that the conduct did not go beyond that described in respect of the specific bathroom incident, when assessing whether or not the sentence imposed was outside a reasonable exercise of discretion in respect of the ground alleging manifest excess. In that sense, the complaint underpinning the ground will be subsumed in the latter ground.
This ground fails.
Ground 14
Ground 14 reads as follows:
"14There was a miscarriage of justice and / or the sentencing process miscarried and / or Her Honour erred in law in there being presented and Her Honour accepting a disproportionate concentration on post offence conduct which was irrelevant to sentence and in failing to differentiate in assessing the effect on the complainant between the criminal behaviour charged and the irrelevant post-offence conduct."
The assertion which underlies this ground is that the appellant has been punished, not just for the offending conduct, but also because he subsequently, when challenged, lied about his culpability and, in particular, attempted to explain it away on the basis of medical necessity. The appellant's counsel asserts that the learned sentencing judge treated the appellant's response to the complainant's accusations, as early as 2001, as an aggravating factor. It is submitted that this is contrary to principle.
It is well established that while the consequences of crime, and some forms of immediate post-offence conduct, can properly be taken into account as aggravating circumstances, it is impermissible to take into account in that way an accused's response to charges or allegations, including pleas of not guilty, cross-examination of a complainant, or even lies told to police during the course of an investigation: Neill Fraser v Tasmania [2012] TASCCA 2 at [210]-[212]. However, such matters are clearly relevant to whether or not an accused should receive any mitigation from his response to the charges. It is clear from her Honour's comments on passing sentence that she referred to the appellant's lies to his family in response to the complainant's allegations in 2001, and his conduct of the proceedings, for the latter purpose only. These circumstances were specifically and expressly referred to by her Honour in respect of her consideration of whether the appellant should "be given any discount for a plea of guilty and whether you have demonstrated any remorse". Her Honour's use of that information for that purpose was clearly appropriate.
During the course of argument, the appellant's counsel expanded the ambit of his submission in respect of this matter. He submitted that her Honour had implicitly taken into account post-offence conduct by regarding the complainant's estrangement from his siblings and mother as an aggravating factor. The basis of this submission was that the estrangement had come about because of the appellant's denials, and hence, by extension, the appellant was being punished for these denials.
There is no merit in this submission. To the extent that the breakdown of family relationships arose from these circumstances, it was directly causally related to the appellant's conduct in committing these crimes. A contributing causal factor may also have been the appellant's response to the complainant's allegations, but it was a consequence to the complainant that arose directly from the abuse against him and the appropriate act of bringing that abuse into the open. It may well be that the estrangement would have taken place even if the appellant had immediately admitted his culpability. I note that the appellant's daughter, the complainant's sibling, provided a reference in strong support of her father during the course of the sentencing proceedings. In my view, it was open to her Honour to make a comment concerning the estrangement and to attribute this as a consequence of the appellant's criminal behaviour.
There is no merit in this ground and it fails.
Ground 6 – manifest excess
Ground 6 reads as follows:
"6The sentence imposed was manifestly excessive in all the circumstances."
In Director of Public Prosecutions v T [2012] TASCCA 15, 21 Tas R 322 at [19], Crawford CJ said:
"Ordinarily when an offender is sentenced for the crime of maintaining a sexual relationship with a young person under the age of 17 years, the offender should suffer the same penalty as would have been imposed if the individual sexual acts constituting the crime had been charged as separate crimes."
The appellant's counsel relies on that passage in support of the following submission:
"It is submitted that if three indecent assaults had been charged separately, the appellant would have been sentenced to no more than six months' imprisonment, which might have been wholly or partly suspended. If the outer numerical limit of assaults alleged (against) him had been separately charged, the total sentence would not properly have exceeded 12 months."
The immediate difficulty with this submission is that, having regard to the factual basis asserted by the prosecution and not disputed by the defence, the appellant's crime was not constituted solely by three indecent assaults. It is true that the facts asserted four specific occasions of indecent assault. However, this was in the context that this conduct had been repeated "regularly" and on "multiple occasions". The specific occasions were put forward as examples of a course of conduct.
The appellant's counsel asserts that there was a lack of specificity in relation to the number and frequency of the repeated acts. This is true but also not unusual in respect of crimes of this nature. An obvious purpose of the introduction of this crime was to ensure that the criminality inherent in a course of conduct constituted by numerous acts over a lengthy period of time was captured, and not avoided because of procedural difficulties inherent in charging each act as a separate crime. This feature of the crime was the subject of the following comments by Evans J in Director of Public Prosecutions v M (above) at [38]:
"This ground appears to flow from the learned sentencing judge's comments to the effect that sentences for the crime of maintaining a sexual relationship have attracted lesser penalties than those that have been imposed when the unlawful sexual acts that go to make up the crime are charged separately. If that observation is correct, that outcome is not by design or a manifestation of any legal principle. A person convicted of three unlawful sexual acts should ordinarily suffer the same penalty whether they are the basis of a charge of maintaining a sexual relationship or are charged separately. However, whilst it is possible to identify every unlawful sexual act that is the subject of a person's conviction for maintaining a sexual relationship where particulars of the same have been provided, in most cases this is not so. Particulars of this nature are rarely provided before a plea of guilty is taken. In result, it is often not possible for the sentencing judge to do more than sentence on the basis of a very general estimate of the number of sexual acts involved in excess of the requisite three. In these circumstances, it is unreal to endeavour to compare the sentence imposed on a charge of maintaining a sexual relationship with the sentence that would have been imposed had the prosecution been able to identify every one of the offender's unlawful sexual acts and obtain separate convictions for the same. Where the number of sexual acts in excess of three is vague, the sentencing exercise is much the same as that which is undertaken where an offender is convicted of a number of crimes involving specific unlawful sexual acts and the evidence warrants the sentencing judge in taking into account, as a surrounding circumstance, the fact that the crimes were committed as part of a sustained course of sexual abuse. It is to be remembered that the purpose of the enactment of this crime was to address the difficulties of providing particulars of each offence in cases of prolonged child sexual abuse. When a charge of this crime is laid, it is not necessary to require the complainant to undergo the harrowing task of describing and separating out each individual incident and it is not necessary to require a jury to adjudicate on more than the requisite three incidents. A perhaps unintended outcome of the enactment of this crime is that, as the Director of Public Prosecutions has suggested, offenders are more inclined to plead guilty to a charge of this crime than to separate charges for each of the unlawful sexual acts that form the basis of a charge for this crime. These desirable outcomes would be put in jeopardy if the Court was to adopt an approach to sentencing for this crime that unduly focused on the precise number of the offender's unlawful sexual acts."
His Honour's comments were in response to a submission that sentencing for this crime often attracts a lesser penalty than if the unlawful acts are charged separately. The point that his Honour is making, in my respectful view, is that given that the charge is intended to capture the overall criminality inherent in a course of conduct, the correct comparison is not with identified acts said to be representative of the offending, but rather with the offending taken as a whole. His Honour is explaining the reality that, because much of the criminality cannot be particularised except in a vague and general way, the sentence must concentrate on what can be identified, but also taking account of the fact that the identified acts occur in the context of a course of ongoing criminality.
The criminality of the appellant is not appropriately described by reference only to three indecent assaults. His culpability is for the commission of such assaults against his son on a regular basis, and on multiple occasions over a period of approximately five years, when his son was aged between 10 and 15.
There is no question that a number of serious aspects of sexual crimes, frequently seen in other examples of this crime, were not present in this case. For example, there was no penetrative activity or ejaculation. The sexual conduct was limited to the appellant fondling his son's genitals, albeit for a significant period of time. The appellant's counsel submitted that a less serious feature of the offending was that it did not occur in a sexualised context. I disagree. It is a reasonable inference that the conduct occurred when the two were alone, for the gratification of the appellant. Each act constituted a serious sexual assault on a young boy which involved an intimate touching and handling of his genitals over an extended period.
There are some aggravating features of the offending which render it extremely serious, notwithstanding the lack of the features described above. They include:
(a)The appellant's conduct involved a shocking breach of trust. The appellant took advantage of the existence of the trust relationship and his power over his son to facilitate the commission of the crime. The conduct occurred in the family home, in rooms which the complainant would have used for his day to day activity. He was entitled to feel safe and secure in those places, and safe and secure in the presence of his father. In fact, he was entitled to trust and look to the appellant for protection, nurturing and example. However, the appellant betrayed this trust and removed that safety and security. It is difficult to fully appreciate the extent of the immediate impact on a young person of such a breach of trust and paternal responsibility. In the longer term, of course, the impact can be seen to have had an extended and deleterious effect.
(b)The conduct was perpetrated over a significant period and on a repeated basis. It occurred when the complainant was at an age which was particularly important in terms of his psychological, emotional and sexual development. There was clearly considerable potential for significant harm to result from the appellant's conduct. The prosecution's assertions of victim impact, and the victim impact statement, were consistent with the occurrence of that harm.
(c)The crime came to an end because of the actions of the complainant. This is not a case where the appellant desisted of his own volition, although he did not persist after the complainant brought the conduct to an end.
As has been noted in various cases including Richman v Tasmania; Director of Public Prosecutions v M and Director of Public Prosecutions v Harington, the variation and multiplicity of factors, conduct and frequency of conduct which may fall within the crime of maintaining a sexual relationship, result in this crime not being amenable to standardisation. Some assistance can be obtained from a consideration of cases involving multiple indecent assaults committed in a context of ongoing offending. However, it is necessary to exercise caution in comparing this case to any other particular case, given the multiplicity and diversity of factors which may be at play in respect of each particular case.
In addition to the serious aspects of the circumstances of the criminal conduct, factors which weigh in favour of a strong sentence include the emphasis to be placed on general deterrence, as well as denunciation and vindication of the victim. On the other hand, there is no question that the appellant was entitled to consideration of and credit for a number of mitigating factors. His otherwise good character was an important consideration. However, on the question of the part which such a factor should play in the determination of sentence relating to sexual offending, I note the comments of McHugh J in Ryan at [33]:
"Sentencing is not a mathematical process Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624. Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process."
That comment, of course, was in the context of the particular facts of that case. However, in my view, the comments are apposite, in a general way, to this case. The appellant had performed many positive acts in his life. However this could not detract from the reality that side by side with these good works sat criminal conduct which calls for a response proportionate to its objective seriousness. "Mitigating factors must be given appropriate weight, but they must not be allowed 'to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'." Munda v Western Australia [2013] HCA 38, 249 CLR 600 per majority at [53], citing Veen v The Queen [No 2] (1988) 164 CLR 465. Having regard, in particular, to the breach of trust involved in the offending and its understandable impact on the complainant, the appellant's "otherwise good character" deserved only modest weight in the formulation of sentence.
The sentence imposed by her Honour was a severe one. It was a strong response to a serious crime. However, when regard is had to the serious aspects of the crime, I am not persuaded that the sentence exceeded the ambit of the reasonable exercise of sentencing discretion by the learned sentencing judge. Accordingly, I am unable to infer error from the severity of the sentence.
I would dismiss the appeal.
File No 3817/2016
J W M v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
13 October 2017
I agree with Brett J.
6
42
1