Keith Dutton v The Queen
[2013] ACTCA 48
•29 October 2013
KEITH DUTTON v THE QUEEN
[2013] ACTCA 48 (29 October 2013)
APPEAL – appeal against sentence – whether sentencing judge gave sufficient weight to appellant’s deprived background – appellant an Aboriginal offender – application of principles in Bugmy v The Queen – sentencing judge addressed appellant’s disadvantaged background adequately – appeal dismissed.
Bugmy v The Queen (2013) 87 ALJR 1022
R v Engert (1995) 84 A Crim R 67
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 23 – 2013
No. SCC 403 of 2011
Judges: Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 29 October 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 23 – 2013
) No. SCC 403 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:KEITH DUTTON
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Refshauge, Penfold and Burns JJ
Date: 29 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The appellant’s sentence is confirmed.
IN THE SUPREME COURT OF THE ) No. ACTCA 23 – 2013
) No. SCC 403 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:KEITH DUTTON
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge, Penfold and Burns JJ
Date: 29 October 2013
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
The decision in Bugmy v The Queen (2013) 87 ALJR 1022 is an important contribution to the jurisprudence of sentencing where Aboriginal persons are the offenders, but its application has to be grounded in facts that should be found from evidence adduced before the sentencing judge and also related to the offence. It also applies principles that are relevant to the sentencing of non-aboriginal offenders.
As the High Court has made clear, it is not an inevitability that the deprived background of an offender will result in a more lenient sentence. Clearly the objective seriousness of the offence and other matters such as protection of the community may override any particular mitigation that the offender’s background may afford. Their Honours in Bugmy v The Queen referred with approval to what Gleeson CJ said in R v Engert (1995) 84 A Crim R 67 at 68:
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
As described by Penfold J, this was a particularly serious offence for which a severe penalty was required and for which general deterrence would play a prominent part. His Honour was well aware of Mr Dutton’s background and allowed it to play a full part in the sentence he imposed which, for the offence, might be seen as at the lower end of the proper range of sentencing.
I agree with the remarks of Penfold J. I too would dismiss the appeal.
The order of the court is that the appeal is dismissed.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Refshauge.
Associate:
Date: 29 October 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 23 – 2013
) No. SCC 403 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:KEITH DUTTON
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge, Penfold and Burns JJ
Date: 29 October 2013
Place: Canberra
REASONS FOR JUDGMENT
PENFOLD J:
Keith Dutton was sentenced earlier this year to 5 years imprisonment with a non-parole period of 3 years on one count of sexual intercourse without consent. He appealed against that sentence initially on the ground that it was manifestly excessive, and that his Honour the sentencing judge erred in taking into account aggravating factors that did not form part of the offence. At the hearing, leave was granted for the appeal to be conducted on the basis that his Honour “did not give sufficient weight to the appellant’s deprived background”.
The offence was committed one night in September 2011. The appellant had approached the victim, whom he did not know, as she finished her shopping in Civic, and asked for a cigarette. Having obtained the cigarette, the appellant accompanied the victim to her flat, and gained her permission to come into the flat, where the victim’s 14-year-old son was waiting for her.
The appellant left the victim’s flat, but sometime later returned and again sought entry to her flat. Some marijuana was smoked and the appellant told the victim various stories about his past involving, in particular, violent confrontations, including with police. In due course he raised the possibility of having sex with the victim, but when she declined, indicated that she did not have a choice. He then forced the victim to perform fellatio on him. Early the next morning, he left the victim’s flat and she reported the matter to police.
The appellant has a significant criminal history, including violent offending in general and violent offences against women in particular. There was a Pre-Sentence Report before the sentencing judge that outlined the appellant’s relatively deprived background. He is an Aboriginal man born into a large family that lived initially as part of his mother’s extended family on the banks of the Darling River, and later at a Mission near the Wilcannia Township. His father played no role in his childhood or upbringing.
The appellant did not find his experience at the Mission a positive experience. He began sniffing glue and petrol, and found himself involved with the criminal justice system. He spent some time in a Salvation Army home as a result of his behaviour, but ran away to escape corporal punishment at the home.
In his early twenties the appellant married and had two children, who are now in their early twenties, including a son who also has substance abuse problems and related interactions with the criminal justice system. The appellant has continued to engage in substance abuse, including using alcohol, heroin, amphetamines including ice, and cannabis, at various times and with varying levels of intensity.
The appellant suffers ongoing back problems, and has had difficulty with anger management and impulse control for many years. He has little education, has never worked, and has spent much of his adult life in custody.
Before being sentenced the appellant had expressed a wish to stop going to gaol and instead to be able to be a good family member. The Pre-Sentence Report author described the appellant saying, possibly in relation to a substance abuse, that he was “killing myself by the things I am doing”. The appellant had expressed a wish to attend a residential rehabilitation program that his son was currently attending. The Pre-Sentence Report author was, however, unconvinced by the appellant’s claim that he had not previously been offered the opportunity to join a residential rehabilitation program, given his long and well‑documented history of offending arising from substance abuse and his protracted contact with the New South Wales corrections authorities.
In sentencing the appellant, the sentencing judge noted:
(a) in general terms, the negative influences in the appellant’s upbringing;
(b) his long-term addiction to alcohol and drugs;
(c) that he had shown some remorse and insight;
(d) that there was no indication of any immediate prospect of rehabilitation;
(e) that there was a plea of guilty, albeit quite late; and
(f) that the offence was aggravated by the fact that it was committed in the victim’s own flat and while her son was in the flat, and also by the implicit threats of violence made at the time.
His Honour noted that the maximum penalty for the relevant offence was 12 years imprisonment, that an appropriate sentence would have been six years imprisonment, which his Honour reduced to five years having regard to the plea of guilty and apparent remorse, and that a non-parole period of three years would be appropriate.
On behalf of the appellant it was submitted that, in accordance with the High Court’s recent decision in Bugmy v The Queen (Bugmy), the sentencing judge should have given more weight to the appellant’s deprived background. In Bugmy the court said at [37]:
An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence.
At [41]:
the appellant’s submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.
And then at [43] and [44]:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
I have already referred to the Pre-Sentence Report about the appellant’s background. Counsel conceded that nothing in that evidence as it stood connected the appellant’s generally deprived background with the current offence to any extent beyond what would, as a matter of course, have been taken into account by the sentencing judge before the decision in Bugmy and was specifically referred to by his Honour.
Accepting everything that his Honour noted in his sentencing remarks, including the significant disadvantage suffered by the appellant in his childhood and subsequently as a result of those initial disadvantages, it still seems to me that his Honour’s sentence of 5 years’ imprisonment was, if anything, lenient. Nor can I see that the non-parole period, representing 60% of the sentence, was in any way severe having regard to the fact that almost the sum total of the evidence before his Honour in relation to the appellant’s prospects of rehabilitation was the appellant’s wish to enter the same rehabilitation facility as his son.
I would dismiss the appeal and confirm the appellant’s sentence.
I certify that the preceding sixteen (16) paragraphs numbered [6]-[21] are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.
Associate:
Date: 29 October 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 23 – 2013
) No. SCC 403 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:KEITH DUTTON
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge, Penfold and Burns JJ
Date: 29 October 2013
Place: Canberra
REASONS FOR JUDGMENT
BURNS J:
I agree that the appeal must be dismissed and for the reasons given by Justices Refshauge and Penfold.
I certify that the preceding one (1) paragraph numbered [22] is a true copy of the Reasons for Judgment herein of his Honour Justice Burns.
Associate:
Date: 29 October 2013
Counsel for the Appellant: Mr J Sabharwal
Solicitor for the Appellant: Darryl Perkins Solicitors
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 29 October 2013
Date of judgment: 29 October 2013
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Sentencing
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Charge
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