Kqe v Director of Public Prosecutions
[2024] ACTCA 7
•17 August 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | KQE v DPP |
Citation: | [2024] ACTCA 7 |
Hearing Date: | 17 August 2023 |
Decision Date: | 17 August 2023 |
Reasons Date: | 07 March 2024 |
Before: | McCallum CJ, Loukas-Karlsson and Abraham JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – sexual intercourse with a child under 10 years of age – sexual intercourse with a child under 16 years of age – whether specific error in relation to the assessment of objective seriousness – evidence of mistaken age – moral culpability – conditional liberty – no error established – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT) s 55 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Porter v R [2008] NSWCCA 145 |
Parties: | KQE ( Appellant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel J Cooper ( Appellant) T Hickey ( Respondent) |
| Solicitors Aboriginal Legal Service ( Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 67 of 2022 |
Decision Under Appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 18 November 2022 Case Title: DPP v KQE (No 2) Citation: [2022] ACTSC 318 |
THE COURT:
Introduction
1․This appeal was heard by the Court on 17 August 2023. On that date, the appeal was dismissed, and reasons were reserved. The reasons now follow.
2․On 20 June 2022, KQE (the appellant) entered pleas of guilty to the following offences:
(a)An offence of engaging in sexual intercourse with a child under 10 years of age contrary to s 55(1) of the Crimes Act 1900 (ACT) (Crimes Act) (Count 1); and
(b)An offence of engaging in sexual intercourse with a child under 16 years of age contrary to s 55(2) of the Crimes Act (Count 2).
3․The sentencing hearing proceeded on 18 November 2022 before Elkaim J (the sentencing judge), and the sentence was handed down the same day. His Honour sentenced the appellant to terms of imprisonment of 21 months and 14 days for each offence (reduced from 24 months on account of the pleas of guilty).
4․The sentences were wholly cumulative, giving a total sentence of 3 years, 6 months and 27 days. A non-parole period of one month and 26 days was set for the second offence. This gave an effective non-parole period of 23 months and nine days, or approximately 54 percent of the overall sentence. At the time of hearing, the appellant remained in custody seeking release on parole.
5․By appeal commenced 15 December 2022, the appellant sought to have the sentence imposed by the sentencing judge in respect of Count 2 set aside. The appeal asserted specific error in relation to the assessment of the objective seriousness of Count 2.
Background to the offending
6․The facts relevant to sentence are summarised at [3]-[6] of the sentencing judge’s reasons on sentence: DPP v KQE (No 2) [2022] ACTSC 318 (KQE (No 2)). The facts are set out in detail in the Statement of Facts which was before the Court at first instance.
7․The first offence (Count 1) was committed against a 7-year-old girl, referred to as SL in the reasons of the sentencing judge. At the time of the offending, the appellant was 17 years of age. This offending occurred between 6-13 March 2020 when the appellant was sleeping over at his friend’s house. His friend’s younger sister, SL, the friend and the appellant all slept in the TV room. On one night, the appellant woke up SL and led her to the computer room where he placed his penis in her mouth and ejaculated. SL then went back to bed. The appellant woke up SL the following night and again took her to the computer room where he placed his penis in her mouth and ejaculated. Count 1 was therefore a rolled-up count involving the two discrete acts of sexual intercourse without consent.
8․SL disclosed the offending to her mother in October 2020. Following a police report, the appellant was arrested on 28 October 2020 and charged with two offences contrary to s 55(1) of the Crimes Act. He was granted bail in the ACT Children’s Court the following day. On 7 December 2020, the appellant entered pleas of not guilty. The matter was committed for trial on 15 March 2021.
9․The second offence was committed in March 2021 against a 12-year-old girl, referred to as LT, at which point the appellant was 18 years of age. At the time of the second offence, the appellant was on bail for the first offence.
10․The facts the subject of Count 2 were that the appellant’s half-brother, EL, attended the appellant’s house with his 12-year-old half-sister, LT. There was no biological relation between LT and the appellant. On the following evening, the appellant and LT were talking on the lounge. The appellant started to kiss LT and rub his pelvis against her. LT did not reciprocate. The appellant encouraged LT to come to the backroom where there was a bed. The appellant removed LT’s pants and underwear, penetrated her vagina with his penis and thrusted against her for a period of time. As a result of the offending, LT felt pain in her vagina and, as she was menstruating, had menstrual blood on her pyjama pants and top.
11․On 24 March 2021, the appellant was confronted by EL’s partner about whether he had sex with LT. The appellant said that “she consented” and that “we’re the same age”. The appellant was arrested on 25 March 2021. He entered a plea of not guilty in the Magistrates Court the following day and was remanded in custody, not having applied for bail. The matter was committed to the Supreme Court for trial on 25 May 2021, where it was subsequently joined with the proceeding in relation to SL. There were several pre-trial applications, including applications in relation to tendency evidence, admissions and severance between November 2021 and February 2022: see R v KQE [2022] ACTSC 69; KQE v The Queen [2022] ACTCA 18.
12․In April 2022, the appellant filed an application for leave to appeal from the interlocutory rulings in relation to tendency evidence, admissions and severance. Leave was granted and the appeal was listed before the Court of Appeal in August 2022. The matter was listed for the hearing of pre-trial evidence for three days from 20 June 2022. On the first day of the hearing, the matters were resolved. Pleas of guilty were entered to Count 1 (a rolled-up offence involving SL) and Count 2 in respect of LT. The previous appeal was subsequently discontinued.
13․As stated earlier, the appellant was sentenced to an overall sentence of three years, six months and 27 days’ imprisonment, with a nonparole period imposed in respect of Count 2 of one month and 26 days commencing 8 January 2023 and expiring 5 March 2023.
Grounds of appeal
14․The appellant’s grounds of appeal are limited to errors asserted in the sentence imposed for Count 2. Both grounds of appeal asserted specific error in the assessment of objective seriousness of Count 2.
15․The grounds of appeal particularised in the Notice of Appeal dated 15 December 2022 are as follows:
(a)That the sentencing court failed to consider the subjective belief in the offender’s mind of the age of the victim in the assessment of the objective seriousness; and
(b)That the sentencing court erred in taking into account conditional liberty in the assessment of the objective seriousness.
16․The appellant sought that the sentence concerning Count 2 be quashed, and the offender resentenced according to law.
17․The jurisdiction to appeal from discretionary sentencing judgments under s 37O of the Supreme Court Act 1933 (ACT) requires House v The King [1936] HCA 40; 55 CLR 499 (House v The King) error.
Subjective belief as to age
18․Counsel for the appellant accepted that the subjective mistake of age was not, of itself, sufficient to establish the defence under s 55(3) of the Crimes Act. Section 55 provided at the relevant time as follows:
55 Sexual intercourse with young person
(1)A person who engages in sexual intercourse with another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 17 years.
(2)A person who engages in sexual intercourse with another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
(3)It is a defence to a prosecution for an offence against subsection (2) if the defendant establishes that—
(a)he or she believed on reasonable grounds that the person on whom the offence is alleged to have been committed was of or above the age of 16 years; or
(b)at the time of the alleged offence—
(i) the person on whom the offence is alleged to have been committed was of or above the age of 10 years; and
(ii) the defendant was not more than 2 years older;
and that that person consented to the sexual intercourse.
(emphasis added.)
19․The mistake of age defence under s 55(3)(a) involves both subjective and objective considerations. The accused person must have a belief that the person was of, or above, the age of 16 years, and this belief must, objectively, be based on reasonable grounds.
20․The appellant’s subjective belief that he and TL were the same age was supported by evidence before the sentencing judge, including comments made by the appellant recorded in the Statement of Facts. It is further supported by admissions made to the PSR author, including the following:
[The appellant] claimed that he and the victim had engaged in a consensual sexual encounter the day prior, and that the victim had subsequently agreed to engage in sexual intercourse with him. He described the offence as having “had sex” and attributed his behaviour to a misunderstanding of the victim’s age.
21․The appellant’s subjective mistake of age was also supported by a report of Psychologist Vanessa Edwige. Among other opinions, Ms Edwige stated that the appellant’s “inability to judge someone’s age was explained by the symptoms of his Autism Spectrum Disorder diagnosis”. Ms Edwige went on to state the following in her report, before the sentencing judge at first instance:
Given that people with [Autism Spectrum Disorder] shy away from social interaction it is therefore conceivable the attainment of accurate knowledge about another person, such as their age and what that means, may not be understood or given consideration as age is an abstract concept and people with [Autism Spectrum Disorder] are very literal and concrete in their thinking. Chronology for people with [Autism Spectrum Disorder] and their understanding of time, space and chronology is beyond their understanding as it is too abstract.
22․At the sentence hearing, parties discussed the comments of the PSR author in relation to the appellant having stated he believed the victim was the same age as him (18 years). Parties queried whether this traversed the plea previously entered. In maintaining the offender’s plea of guilty, counsel for the offender at first instance confirmed the plea had been entered on the basis of a concession that the second limb of s 55(3)(a) had not been established, that is, that the belief was not reasonably held.
23․However, the relevance of the finding that the appellant was subjectively mistaken as to the victim’s age, as submitted by counsel for the appellant, was that it had a bearing on the appellant’s moral culpability for Count 2.
24․We note at this juncture that, in oral submissions before this Court, counsel for the appellant submitted his Honour did not make a finding in respect of mistake of age and did not “accept or not accept” the evidence in relation to this. His Honour at [26] stated the following: “[the appellant] claims that he “had a misunderstanding of the victim’s age””. Counsel for the respondent made oral submissions that the word “claims” should be read in the context of his Honour’s clear acceptance of the evidence throughout the judgment.
Ground 1 – Subjective belief as to age and objective seriousness – Consideration
25․The appellant’s written submissions asserted that the error was a failure to take into account a material consideration. Specifically, the error involved failing to consider the evidence that the appellant was mistaken as to LT’s age and the effect of this on the appellant’s moral culpability in relation to Count 2. As the submission was developed in oral submissions, it was framed as a failure to make a finding of fact on that issue. The appellant submitted that, while the sentencing judge noted that the appellant had “claimed” to have a misunderstanding as to the complainant’s age, his Honour did not make a finding on that issue. Counsel for the appellant relied in that context on the remarks of Simpson J in Mulato v R [2006] NSWCCA 282 (Mulato), concerning the nature of the sentencing judge’s task in making an assessment of the objective seriousness of an offence and the importance in that context of making clear findings of fact. Her Honour said at [46]-[47]:
The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.
One consequence of this (which might aptly be termed a separation of powers) is the need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself.
26․The appellant’s counsel at first instance submitted that there was an evidentiary basis for a finding that the appellant had an honest belief that the victim was of or above 16 years of age. On the facts above, the victim was 12 years old. It was accepted by counsel for the appellant at first instance that any such belief could not be considered “reasonable” and therefore did not meet the threshold for a defence under s 55(3)(a) of the Crimes Act. Such mistake was said to have arisen as a result of the appellant’s Autism Spectrum Disorder.
27․In response, the respondent correctly submitted that the sentencing judge was clearly aware of the evidence from which it was suggested that a finding could be made that the appellant was “mistaken” as to the victim’s age. His Honour refers in the judgment at [24] to the appellant’s diagnosis and mental health:
KQE was diagnosed with Asperger’s syndrome when he was six or seven years old. He has felt “confused, misunderstood, and forgetful at times”. He has been depressed since he was a child and his depression has continued and worsened. There have been episodes of self-harm and suicidal ideation. He has become “overwhelmed by anxiety and nervousness, and reported experiencing panic attacks”. He is currently taking antidepressant medication.
28․His Honour goes on to accept that the appellant’s claim of mistaken age to the author of the PSR was consistent with some of his statements recorded in the Statement of Facts, as well as the opinion of psychologist Ms Edwige. The sentencing judge reproduced the opinion in his reasons. His Honour stated the following at [26]:
In the Pre-Sentence Report, KQE seems to suggest that LT was a consenting partner. He claims that he “had a misunderstanding of the victim’s age”. This is consistent with some of his statements in the agreed statement of facts and, more importantly, consistent with the opinion of Ms Edwige that:
[KQE’s] concept of [LT’s] age was affected by his diagnosis of autism spectrum disorder and the associated features that prevented him from reading social cues and making appropriate social judgements.
29․The sentencing judge set out a number of Ms Edwige’s opinions from the Psychological Report throughout the judgment, including the nature of social impairments which may result from Autism Spectrum Disorder. On appeal, the appellant alleged that his Honour made “no findings on the evidence in relation to his moral culpability”. As developed in oral submissions, the focus was that the sentencing judge made no finding as to whether he accepted the “claim” as to a misunderstanding concerning the complainant’s age. In this regard, we note the following relevant discussion in his Honour’s reasons at [40]-[42]:
…The prosecution also accepts that KQE’s cognitive and intellectual deficits “will mitigate the court’s assessment of the offender’s moral culpability to an appreciable degree and will engage the Verdins principles”.
The Verdins principles are derived from R v Verdins [2007] VSCA 102; 16 VR [240], at [32]:
Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
The first, third and fourth considerations are most relevant here. The reduction in KQE’s moral culpability will be a factor in the sentences I impose.
(emphasis added)
30․In our view, it is clear from the portion of the judgment extracted above that his Honour explicitly turned his mind to the assessment of the appellant’s moral culpability.
31․Moreover, the sentencing judge turned his mind to the concession from the prosecutor at first instance that the appellant’s cognitive and intellectual functions engaged the Verdins principles and would mitigate the Court’s assessment of the appellant’s moral culpability. The sentencing judge set out the Verdins principles: R v Verdins [2007] VSCA 102; 16 VR 240. His Honour identified the most relevant of those considerations in the sentencing exercise. His Honour specifically referred to reduced moral culpability and a moderation of the role of general and specific deterrence for this offender: KQE (No 2) at [42]. There is no question that his Honour specifically emphasised the “reduction in [the appellant’s] moral culpability” as an important and relevant sentencing consideration.
32․Additionally, as referred to by the prosecution in written submissions, his Honour noted the NSW District Court decision of R v Gray [2019] NSWDC 550 which involved the sentencing of a 16-year-old boy with Autism Spectrum Disorder for an offence of sexual intercourse with person under 10 years (his sister). His Honour specifically noted the observations of Haesler SC DCJ as to the conflicting sentencing principles that apply when sentencing young offenders with mental health conditions who commit sexual offences against children, including by reference to DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1. The sentencing judge went on to conclude at [49] that “taking into account, to a very significant degree, the lesser moral culpability of KQE and the need for rehabilitation, the severity of the offending simply does not allow for [immediate release]”.
33․The respondent therefore correctly submitted that, given his Honour clearly considered the appellant’s difficulty “making appropriate social judgements”, this ground of appeal, in essence, constituted a complaint as to weight. It is well established that the weight given to various sentencing considerations, particularly in relation to the assessments of objective seriousness, is a matter falling within the discretion of a sentencing judge: Mulato at [37]. There is no obligation for the sentencing judge to quantify the impact of any reduction in moral culpability on the sentence imposed: see Egan v R [2017] NSWCCA 206 at [37].
34․The sentencing judge did not fail to consider the subjective belief. An appeal ground as to weight attributed to a factor does not amount to specific error: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [22], [53]; CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 at [48]. A ground which amounts to a question of weight has the obvious problem of acknowledging that some weight has been attributed: DF v R [2012] NSWCCA 171; 222 A Crim R 178 at [77]; Hanania v R [2012] NSWCCA 220 at [33].
35․This ground is not established.
Ground 2 – Subjective belief as to age and conditional liberty – Consideration
36․The appellant submitted that the failure to consider subjective mistake of age affected the weight to be given to the breach of conditional liberty as a subjective feature of aggravation. The appellant asserted that instead, the sentencing judge regarded the breach of conditional liberty as an “objective consideration” and that this amounted to an error of law.
37․The appellant alleged that significant weight was placed on the breach of conditional liberty concerning Count 2 whereas if the appellant, partly due to his disability, subjectively believed his conduct was lawful, then the breach of conditional liberty was deserving of less weight in the sentencing exercise.
The effect of this error was that the seriousness of Count 1 was equated with the seriousness of Count 2.
38․Relevantly, the sentencing judge stated the following in KQE (No 2) at [15]-[16]:
The two offences are obviously different, in particular in respect of the age of the victims. There are aggravating factors individually applicable to each victim. For example, the age of SL and the offence against LT being committed while on conditional liberty. The charge against SL must take into account both sexual assaults. LT was part of KQE’s extended family.
Notwithstanding the assorted differences I think from an objective seriousness point of view the offences should be regarded, as submitted by the prosecution, at around the mid-range of objective seriousness.
39․The appellant submitted he honestly believed the victim to have been the same age as him which was relevant to the severity of the breach of conditional liberty but this was not considered by the sentencing judge in “equating the offences”. The appellant submitted that the first offence was “more serious”.
40․It is well established that where there is offending while a person is subject to conditional liberty, the breach of conditional liberty cannot be taken to elevate the criminality of the offence; that is, it is not relevant to an assessment of the objective seriousness of the offence: R v Bandy [2018] ACTSC 261 at [29]-[30]. The NSW Court of Criminal Appeal has consistently made it “clear that while the fact an offender was on conditional liberty was relevant to the determination of the appropriate punishment”, it does not “bear on the objective seriousness of an offence”: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [90]-[92]; Hillier v Director of Public Prosecutions [2009] NSWCCA 312; 198 A Crim R 565 (Hillier) at [30]; R v Van Rysewyk [2008] NSWCCA 130 at [25]. It is, however, an aggravating feature on sentence as a result of its correlation to the purposes of punishment, deterrence and protection of the community: Field v R [2020] NSWCCA 105; Hillier. Thus, in summary, it is still relevant as an aggravating factor on sentence. The difference is that it is not relevant to objective seriousness, but rather to subjective factors.
41․His Honour makes mention of the breach of conditional liberty in KQE (No 2) at [5] and [15]. His Honour stated at [5]:
…He was on bail in respect of the charges concerning SL. This is an obvious aggravating factor.
42․His Honour also stated at [15]:
…There are aggravating factors individually applicable to each victim…
43․In relation to his Honour’s statement at [5], the respondent correctly submitted that the reference to “aggravation” is consistent with common law principle that offending while subject to conditional liberty is an aggravating feature on sentence: Porter v R [2008] NSWCCA 145 at [86]-[87]. His Honour acknowledged at [15] the aggravating factors for each count of the offending, and importantly noted the differences between each offence. In our view, no error can be established.
44․In any event, we note that a submission concerning mistaken belief as to age and breach of conditional liberty was not raised by the appellant’s counsel at first instance. The submission at first instance was limited to acceptance of the proposition that “by reason of Count 2 having been committed whilst on a conditional release for Count 1 that it aggravated the sentence”.
45․Importantly, as stated in Zrieka v R [2012] NSWCCA 44; A Crim R 460 at [81], in sentencing appeals, the Court is reviewing the exercise of the sentencing discretion, the Court is not rehearing a plea of mitigation. Reformulation of the case below is not appropriate unless a miscarriage of justice is demonstrated. In our view, this is not such a case. There has not been a miscarriage of justice. There is no error.
46․For these reasons, we concluded that both grounds of appeal should be dismissed.
47․Before concluding, it is important to note the following matter for the sake of completeness. In discussions between the bench and counsel concerning the availability of the sex offender program in custody, it emerged that there may be a misunderstanding in relation to the effect of an appeal on sentence in the Supreme Court. As noted by the prosecution, there appears to be a misapprehension on the part of some officers at Corrective Services that an appeal on sentence stays a sentence in the Supreme Court, preventing an offender from accessing the sex offender program until the resolution of the appeal. It does not; there is no stay. As we understand it, the prosecution has now conveyed this information to the authorities at the Alexander Maconochie Centre.
Orders
48․For these reasons, we dismissed the appeal.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 07 March 2024 |
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