Lyttle, J.A. v The Queen
[1991] FCA 768
•29 NOVEMBER 1991
Re: JAMES AUGUSTINE LYTTLE
And: THE QUEEN
No. ACT G61 of 1991
FED No. 768
Criminal Law
(1991) 57 A Crim R 398
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Ryan(1) and Von Doussa(1) JJ.
CATCHWORDS
Criminal Law - Sentence - appeal against severity - engaging in sexual intercourse without consent - whether errors of fact made by sentencing Judge - relevance of prior longstanding relationship with victim - appellant a first offender previously of good character and unlikely to offend again - whether immediate custodial sentence manifestly excessive.
R v Boudelah (1991) 100 ALR 93
R v Berry (1988) 10 Cr App R(S)13
Yardley v Betts (1979) 22 SASR 108 Referred to.
HEARING
CANBERRA
#DATE 29:11:1991
Counsel for the Appellant : Mr J. Pappas
Solicitors for the Appellant : Pappas, J. Attorney
Counsel for the Respondent : Mr K. Hempenstall
Solicitors for the Respondent: Director of Public Prosecutions
ORDER
That the appeal be allowed.
That the sentence imposed in the Supreme Court of the Australian Capital Territory on 22 October 1991 be set aside and in lieu thereof the appellant be sentenced to a term of imprisonment of two years to commence from 22 October 1991. Pursuant to s.556B of the Crimes Act 1900 it is directed that the appellant be released after he has served a period of six calendar months imprisonment upon his giving security on his own recognisance in the sum of $2,000 to be of good behaviour for 18 calendar months and during that period to be subject to the supervision on probation under the Director of Adult Correctional Services or someone recommended by him.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal against the severity of a sentence imposed by Miles C.J. in consequence of the appellant's conviction by a jury on a charge of having engaged in sexual intercourse with a woman without her consent.
The appellant had a long-standing relationship with the victim which had extended over more than two years. During that period they had lived together for extensive periods apparently broken only by the necessity for the appellant to work from time to time away from Canberra. That cohabitation came to an end in May 1990 when the appellant complied with the victim's request to move out of her home.
At about the time of this rupture the victim wrote the appellant a letter in which she professed that her love for him had not diminished but that her commitment to their relationship had. That letter went on to indicate that the victim would not contemplate moving to Wagga with the appellant and, despite her continuing love for him, was not prepared to hold him back from the advancement of which she believed him capable. Perhaps because of the tone of that letter, the appellant continued to visit the victim two or three times a week and consensual intercourse occurred on one occasion in the month before the commission of the offence on 24 June 1990. However, before that date the victim had formed an association with another man to whom she is now married.
A week before the commission of the offence the appellant burst through the victim's door and found her with her new male associate whom he asked to leave. However, the victim insisted that Mr Lyttle should leave, which he did. On the next day he broke into the victim's home and retrieved some of his possessions which had been left there.
At about 2.00 a.m. on the morning of Sunday 24 June 1990, the appellant entered the victim's house where she was asleep and alone except for her three year old daughter who was in another room. The victim awoke and told the appellant, who was perceptibly affected by liquor, to leave but he refused and engaged in an argument with the victim. After taking off his shoes he pinned the victim's wrists above her head, tore her camisole, and after a further struggle, achieved sexual penetration which he broke off when the victim's daughter was heard approaching the room.
Some time later the victim telephoned her parents for assistance and shortly afterwards they arrived and took the victim to their home from where the police were called. The police later found the appellant asleep on the victim's bed. In the course of an interview with police officers later that morning the appellant revealed an imperfect recollection of what had occurred between him and the victim and claimed to have been drunk at the time.
The learned Chief Justice in passing sentence dealt with the impact of the offence on the victim in these terms:-
"I have no knowledge of the effect of the offence on the victim, except that she expressed some fear whilst in the witness box that the offender would try to contact her. I can understand her reluctance to disclose her address, but there is no evidence that the offender has threatened her in any way since the incident or that he is likely to do so. The victim was very upset giving her evidence, which was clearly a strain on her. But as far as I could see, she displayed no fear of the offender himself or, indeed, of animosity towards him. She was obviously reluctant to have to recount details of what was a very distressing incident. Beyond that, I do not know what impact the offence has had on her."
After noting that the appellant was twenty-five years of age and has almost always been in employment since his arrival in Australia about five years ago, his Honour adverted to the contribution which the appellant's heavy drinking had made to the break-up of his relationship with the victim. He then recounted that since being charged with the subject offence the appellant had obtained employment with a computer sales organization and that his new employers speak well of him. As well, the appellant has entered into a new de facto relationship with a woman who is well aware of the events giving rise to his conviction but still described the appellant in character evidence as caring, considerate, loving and protective. The learned Chief Justice then continued:-
"Mr Lyttle has never been convicted of another criminal offence and is, in some respects, a model citizen. Counsel for Mr Lyttle submits that the offence was an unusual one. I disagree. All too often these courts see before them the example of a man who seems unable to accept that a woman is entitled to end a relationship in which both sexual matters and deep emotions are involved. A man in such circumstances comes before the court, having forced sexual intercourse upon the woman despite her desire to terminate the sexual relationship.
Often such cases come before the court as part of a pattern of conduct, or where the man already has a criminal record. It is in such cases, as in this, impossible to distil from the possible mix of frustration, hurt, anger, aggression, lust, confusion and possibly even genuine affection or love, the exact state of mind of a man who commits this sort of offence but it is certain that it is, according to the contemporary standards of our community, a serious offence."
After acknowledging that there was no practical risk that Mr Lyttle would offend again, his Honour noted the appellant's refusal or inability to accept the seriousness of what he did to the victim and his lack of contrition. These reflections led his Honour to the view that the sentence must act as a "practical" deterrent and also "as a general deterrent and a reminder that men who behave in this way stand to be punished and that the conduct in question is simply not acceptable in a civilised society and deserves punishment".
In the course of delivering reasons in passing sentence the learned Chief Justice referred to the judgment of a Full Court of this Court in R v Boudelah (1991) 100 ALR 93 but did not expressly state the principle which he derived from that authority. He then concluded:
"I take into account that an immediate prison sentence will have a very serious effect on Mr Lyttle's personal life and on his career, although I expect that his ability to withstand the possibly corrupting effect of prison life and his capacity to take up life in the community afterwards may well be greater than that of most persons whom the courts are obliged to send to prison.
Nevertheless, I express the view that prison is not reserved for the young or the unemployed. Consistent with sentencing principle, there is, in my view, no alternative to an immediate custodial sentence, which should be as lenient as may be for the offence under consideration and in relation to which the non parole period will reflect the subjective factors to which I have made reference."
In the light of those reasons his Honour sentenced the appellant to three years imprisonment and fixed a non-parole period of one year.
The principles which govern the approach of an appellate court on an appeal against sentence are well established. An appellate court will not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings, or the sentence may be so excessive or inadequate as to manifest error: Skinner v R (1913) 16 CLR 336 at 339- 340, Whittaker v R (1928) 41 CLR 230 at 249, House v R (1936) 55 CLR 499 at 504-505.
It is contended on the appellant's behalf that the exercise of the sentencing discretion miscarried for a number of identifiable errors in principle and fact. Further it is submitted that in any event the sentence was manifestly excessive.
First it is contended that the learned Chief Justice was unduly influenced by "newspaper articles", in seeking to gauge the community perception of the seriousness of sexual assaults. This ground of appeal is based on a remark by Miles C.J. in the course of submissions on sentence when the question of community attitudes to sexual offences came under discussion. His Honour said: "One sees newspaper articles complaining about judges not sending people to gaol for sexual offences...". There is nothing in the remark, or in the totality of what was said in argument, or in the sentencing remarks, which suggests that his Honour was moved by newspaper articles to describe the appellant's offence as "serious", and one, which is "simply not acceptable in a civilised society and deserves punishment". The Chief Justice's descriptions were entirely in accordance with numerous statements of the Courts, some of which were referred to in Boudelah. In his judgment in that decision at page 103 Gallop J. (with whom von Doussa J. agreed) observed:-
"There is no difficulty in the case of sexual offences in determining the single voice of the community. In relation to other offences, such as those relating to drugs, there may be stratas of society which hold disparate views. But in the case of sexual offences the voice of the community, through the legislation enacted by Parliament, expresses its abhorrence."
The Chief Justice's descriptions of the seriousness of the offence were also a direct reflection of the legislative expression in s.92 D(1) of the Crimes Act 1900 of New South Wales, in its application to the Australian Capital Territory, under which the appellant had been convicted, which prescribes a maximum sentence of 12 years imprisonment.
It is further submitted that the learned Chief Justice erroneously found that the appellant still did not accept the seriousness of what he did to the victim, and showed no contrition, due to a misapprehension of the evidence of Ms. Gray who gave evidence during submissions on sentence. We have carefully considered her evidence. In our view, what she said about the appellant's attitude to his conduct towards the victim on the day of the offence bears out the Chief Justice's finding. Moreover, the Chief Justice had seen and heard the appellant at his trial and in the witness box on sentencing submissions. At no time did he express contrition and his continued denial of guilt lends further support for the finding. No misapprehension of the facts in this respect has been made out.
It is submitted that as it was found that "there is no practical risk that the appellant will commit this sort of offence again", it was wrong in principle to impose a sentence that reflected some practical deterrent to the appellant. We do not agree. The findings that the appellant still did not accept the seriousness of the offence, and did not show contrition, required that the sentence reflect an element of specific deterrence.
Next it was submitted that the learned Chief Justice was wrong, and misapprehended the evidence, in finding that the appellant was in the same position as other men who came before the Courts "unable to accept that a woman is entitled to end a relationship". The submission which had been made at the time of sentence, that the offence was unusual because of the history of the prior intimate relationship, was repeated to this Court. We detect no error in the finding. Violence of one kind or another including sexual violence in the seclusion of the home is regrettably an all too common feature of relationships which fail. The victims of domestic violence depend heavily on the law, and the enforcement of the law through the Courts, for their protection. The efficacy of their protection depends largely on community understanding that offences of this kind will attract substantial punishment. The sentences of the Courts must give public recognition of the right of every person to restrict sexual behaviour to situations in which he or she participates in the exercise of a free will.
In R v Berry (1988) 10 Cr App R(S) 13 Mustill L.J. delivering the judgment of the Court of Criminal Appeal, in an appeal against sentence for rape of a woman with whom the prisoner had lived for a substantial time and by whom he had had a child, said at p 15:-
"Here we have the case of a man of whom it may be said that he had led a hitherto blameless life, facing the disintegration of a relationship that had probably reached the level of infatuation, and where his continued contact with his daughter must at least have been in peril. These facts show that this case is far from those in which, for example, a woman walking home has been set upon by a total stranger and violated. Nevertheless the rape of a former wife or lover is of course always a serious offence, and nothing that we say should be taken to indicate the contrary.
The relevance of a previous settled sexual relationship was made plain by the decision of this Court in Cox (1985) 7 Cr App R (S)422. The rape of a former wife or mistress may have exceptional features which make it a less serious offence than otherwise it would be: see also Stockwell
(1984) 6 Cr App R (S)84. To our mind these cases show that in some instances the violation of the person and defilement that are inevitable features where a stranger rapes a woman are not always present to the same degree when the offender and the victim had previously had a long-standing sexual relationship."
In that case a sentence of 4 years imprisonment was imposed. See also R v Mills (1988) 10 Cr App R(S) 16; R v Workman (1988) 10 Cr App R(S) 329 and Attorney-General's Reference (No.7 of 1989) (R v Thornton) (1990) 12 Cr App R(S) 1 where the Court of Criminal Appeal upheld sentences of rape of between 4 and 5 years in cases where the offences occurred against the background of a failing or failed relationship. The sentencing standards of England cannot be applied directly in Australia, but these decisions demonstrate the serious view which the Courts take of the types of offence under consideration.
In the present case, whatever significance the appellant may have placed on the letter received from the victim at about the time of their separation, the events of a week or so before the offence should have made it plain that the victim was no longer a willing partner to sexual and domestic activities of the kind they had hitherto engaged in. The forceful entry to the victim's home by the appellant to remove his possessions indicates he understood the old relationship was over. On the night in question, on the version of the events which the jury by their verdict accepted, the victim also made it plain that the appellant was an unwelcome visitor, and that she wanted him to leave.
The violence by which the appellant achieved penetration is not disputed. Nevertheless, it is submitted that the learned Chief Justice misapprehended the evidence of the victim that on earlier occasions during their love making the appellant had restrained her in a similar way. There is no substance in this submission. The victim's evidence made it clear that she was never a consenting party to such conduct, and in the past the appellant had always desisted when asked. The submission fails to acknowledge that the former happy relationship had come to an end some weeks before the offence.
Then it is submitted that error was displayed by the learned Chief Justice's observation that he expected that the ability of the appellant to withstand the possibly corrupting effect of prison life, and his capacity to take up life in the community afterwards, may be greater than that of most persons whom the Courts are obliged to send to prison. It is submitted that this assessment tipped the balance in favour of a prison sentence. We do not so construe the sentencing remarks. In context, the impugned remarks demonstrate that the Chief Justice was fully alive to the serious effect which the sentence he considered proper would have on the appellant's personal life, and was expressing his assessment of those effects. It is clear that the Chief Justice, for reasons earlier given in his sentencing remarks, considered he was obliged to impose an immediate custodial sentence even though it would have these effects.
Finally, it is submitted that given the undisputed fact that the appellant had no prior convictions, and was of good character, the requirements of general deterrence and retribution would have been achieved by a suspended sentence coupled with a bond to be of good behaviour, so that it was not correct to say that the Court was obliged to impose an immediate custodial sentence. Alternatively, it was submitted that a shorter head sentence and shorter non-parole period would have been appropriate. These submissions in substance advance the argument that the sentence imposed was manifestly excessive.
Offences proscribed by s.92D(1), engaging in sexual intercourse with another person without consent, will vary greatly in seriousness, particularly having regard to the extended definition of "sexual intercourse" in s.92. The wide range of variable factors requires that each case receive individual assessment. Although contraventions of s.92D(1) will usually attract immediate custodial sentences there will be exceptional cases where a lesser penalty is appropriate. Such a case was considered in these sittings of the Full Court where a sentence of a fine and bond to be of good behaviour was upheld on a Crown appeal: The Queen v Bremer, judgment 5 November 1991. As in this case, the accused and the victim had formerly enjoyed a close relationship, and had lived together before the victim terminated the relationship, but the offence involved only digital penetration, and there were mitigating circumstances absent here. The accused had not broken into the victim's home, and from the time of the offence he expressed extreme and genuine sorrow for his conduct. He pleaded guilty at the first available opportunity. The circumstances of the present case make the appellant's offence more serious that Bremer.
Whether a sentence of imprisonment should be imposed, and if so the length of the sentence which is required to mark the seriousness of the offence, and whether it should be suspended, are frequently most difficult questions where the accused is a first offender otherwise of good character, and where the offence is committed in a highly emotional environment such that it appears that the accused will not re-offend. The function of the Courts has been succinctly described by King C.J. in Yardley v Betts (1979) 22 SASR 108 at pp 112-113 where he said:-
"To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations. They are summed up, in the aspects relevant to the present discussion, by Napier C.J. in Webb v O'Sullivan (1952) SASR 65, at p 66.
'The courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.'
The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so."
King C.J. also observed in that decision, at 112:-
"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced."
The application of these considerations apply both to the decision whether a sentence of imprisonment should be imposed on a first offender, and if so, whether or not the sentence should be suspended on appropriate conditions. But however strong the circumstances of the offender, and the sad predicament which uncharacteristic behaviour on an isolated occasion has caused for him, the seriousness of the offence committed may leave the Court no option but to impose an immediate custodial sentence. It is for this reason that first offenders guilty of serious sexual offences are liable to be awarded immediate custodial sentences.
In our opinion the present case falls into this category. It cannot be overlooked that the appellant entered the victim's home uninvited, and late at night while she was asleep. He refused to leave when asked to do so, and then committed violence in the removal of the victim's garments and in holding her down. He still fails to show contrition. The learned Chief Justice did not fall into error in concluding that he was obliged to impose an immediate custodial sentence.
However, the need for the length of the sentence to mark the seriousness of the crime and to meet the requirements of deterrence and retribution must be balanced against the circumstances of the offender. We have reached the conclusion that a head sentence of three years imprisonment, and a non-parole term of one year, give undue weight in the particular circumstances of this case to the former, and insufficient weight to the latter, consideration. In the result we consider that the sentence was manifestly excessive. In our opinion the sentence should be set aside, and in lieu thereof a head sentence of two years imprisonment substituted with a direction under s.556B of the Crimes Act that the appellant be released after he has served a period of six months imprisonment upon his giving security on his own recognisance in the sum of $2,000 to be of good behaviour for 18 calendar months and during that period to be subject to the supervision on probation under the Director of Adult Corrective Services or someone nominated in writing by him, and to obey the reasonable directions of that person.
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