Nona v The Queen; R v Nona
[2015] ACTCA 34
•17 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Nona v The Queen; R v Nona |
Citation: | [2015] ACTCA 34 |
Hearing Date(s): | 19 February 2015 |
DecisionDate: | 17 July 2015 |
Before: | Murrell CJ, Refshauge and Wigney JJ |
Decision: | Appeal and cross-appeal dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against conviction – whether verdict unsafe and unsatisfactory APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against sentence – whether primary judge erred in consideration of deprivation in assessment of culpability APPEAL AND NEW TRIAL – CROSS-APPEAL – GENERAL PRINCIPLES – prosecution appeal – appeal against sentence – whether sentence manifestly inadequate – whether concurrency of sentences inappropriate – whether non-parole period manifestly inadequate |
Cases Cited: | Barbaro v The Queen (2014) 253 CLR 58 Bugmy v The Queen (2013) 249 CLR 571 SKA v The Queen (2011) 243 CLR 400 |
Parties: | Dennis Michael Nona (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Purnell SC with Mr S Gill (Appellant) Ms M Jones (Respondent) |
| Solicitors Porters Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 8 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 5 July 2013 Case Title: R v Nona Court File Number(s): SCC 378 of 2010 |
THE COURT:
The trial proceedings
On 5 July 2013, a jury found the appellant guilty of nine sexual offences against the complainant, who was the older daughter of the appellant’s partner at the relevant time. The offences allegedly occurred on five occasions between 1 September 1995 and 28 July 1996. The occasions will be referred to as the flashing incident, the bedroom incident, the staircase incident, the athletics carnival incident and the hospital incident.
On 25 February 2014, Burns J (the primary judge) sentenced the appellant to an effective period of 7 years and 6 months’ imprisonment, with an effective non-parole period of 3 years and 9 months’ imprisonment. The following individual sentences were imposed:
Count Sentence Maximum Count 5
Flashing incident
Act of indecency in the presence of a child under 16 years2 years’ imprisonment from 10 August 2012 10 years’ imprisonment Count 1
Bedroom incident
Unlawfully assault with intent to engage in sexual intercourse2 years and 6 months’ imprisonment from 10 August 2013 12 years’ imprisonment Count 2
Bedroom incident
Sexual intercourse with a child under 16 years3 years and 10 months’ imprisonment from 10 August 2013 14 years’ imprisonment Count 4
Bedroom incident
Act of indecency in the presence of a child under 16 years2 years and 5 months’ imprisonment from 10 August 2013 10 years’ imprisonment
Count 6
Staircase incident
Sexual intercourse with a child under 16 years3 years and 10 months’ imprisonment from 10 February 2014 14 years’ imprisonment Count 8
Athletics carnival incident
Sexual intercourse with a child under 16 years4 years and 6 months’ imprisonment from 10 August 2014 14 years’ imprisonment
Count 9
Athletics carnival incident
Sexual intercourse with a child under 16 years3 years and 10 months’ imprisonment from 10 August 2014 14 years’ imprisonment
Count 10
Athletics carnival incident
Act of indecency on a child under 16 years2 years’ imprisonment from 10 August 2014 10 years’ imprisonment Count 11
Hospital incident
Sexual intercourse with a child under 16 years4 years and 6 months’ imprisonment from 10 August 2015 14 years’ imprisonment Effective sentence 7 years and 6 months from 10 August 2012
This table does not refer to Counts 3 and 7 in the indictment as those counts were alternatives to Counts 2 and 6 respectively.
The appeal and cross-appeal
The appellant appealed against each verdict of guilty on the ground that the verdict was unsafe and unsatisfactory.
The appellant appealed against the sentences, alleging that the primary judge:
(a)Erred in failing to find that the fact that the appellant had been physically abused by his parents was a circumstance of deprivation in his adult development.
(b)Failed to take into account that circumstance of deprivation when assessing the appellant’s culpability for the offending behaviour.
(c)Erred in failing to find a connection between the offending behaviour and the appellant’s abuse of alcohol.
(d)Failed to take into account the appellant’s displacement from the Torres Strait to the ACT and his associated resort to alcohol abuse when assessing the appellant’s culpability for the related offending behaviour.
The appellant sought an order for a retrial.
The respondent cross-appealed against the sentences on the grounds that:
(a)Apart from the sentence imposed on Count 5, each sentence was manifestly inadequate.
(b)There was inappropriate concurrency of sentences, resulting in a manifestly inadequate effective head sentence of 7 years and 6 months’ imprisonment.
(c)The non-parole period was manifestly inadequate, both as a proportion of the effective head sentence and because it was too short.
The respondent asked that the appellant be resentenced. In the event of resentencing, the respondent sought to call new evidence.
The evidence
Each of the five episodes of alleged offending occurred at a house in Chifley, where the complainant resided with her mother, her younger sister X and her brother. The family lived in the Chifley house from January 1995 to 28 July 1996. At that time, the complainant was 13 or 14 years old (date of birth February 1982).
The complainant’s mother met the appellant on about 16 September 1995 (Papua New Guinea Independence Day), and commenced a relationship with the appellant soon thereafter.
The indictment charged that each offence occurred in the period 1 September 1995 to 28 July 1996.
When the appellant met the complainant’s mother, he was living in a residential college at the Australian National University (ANU), where he was a student. The witnesses agreed that the appellant spent considerable time at the Chifley residence, but disagreed about whether and when the appellant began to reside there. The complainant and her mother said that the appellant moved into the residence, but the appellant asserted that he maintained a separate residence and attended the house mainly on weekends, when others were usually present.
The appellant and the complainant’s mother were heavy drinkers. The appellant was physically violent towards the complainant’s mother, and the children witnessed some of those incidents.
The complainant said that the appellant began to wink and make lewd gestures towards her. His conduct progressed to touching her, and then to committing the offences.
The flashing incident – Count 5 (act of indecency in the presence of a child under 16 years)
The complainant said that, about a month or two (or a few months) after the appellant moved into the Chifley house, probably in winter, she was in her bedroom. The appellant stood in the doorway and opened the towel or sarong that he was wearing, exposing his erect penis.
The bedroom incident – Counts 1 (unlawfully assault with intent to engage in sexual intercourse), 2 (sexual intercourse with a child under 16 years) and 4 (act of indecency in the presence of a child under 16 years)
The complainant said that the weather was cold and she was seated on her bed reading a magazine. The appellant entered her bedroom and sat down beside her. After touching her face and rubbing her neck, he held her down on her bed with one arm. He threatened to hurt her or her family if she told anyone (Count 1). He placed one and then two fingers into her vagina, hurting her (Count 2). He stopped holding her down and, using his free hand, he masturbated to ejaculation (Count 4).
The staircase incident – Count 6 (sexual intercourse with a child under 16 years)
The complainant said that, at a time when the family was preparing to move to a house in Kaleen, the appellant arrived at her house in Chifley while her mother was out. Fearing for her safety, the complainant began to rush downstairs, but the appellant met her on the stairway and pushed her back upstairs. He put his hand into her underwear and placed a finger or fingers inside her vagina while he masturbated himself. The incident stopped when the complainant’s mother returned home.
The athletics carnival incident – Counts 8 and 9 (two counts of sexual intercourse with a child under 16 years) and Count 10 (act of indecency on a child under 16 years)
The complainant said that she was absent from school for the purpose of attending her siblings’ athletics carnival. At that time, the family had been living in Chifley for about a month. The weather was “pretty warm, getting cold”. She believed that she was at home alone, as her mother and siblings had already left the house. She was preparing to go to the carnival. She walked out of the bathroom wrapped in a towel. Her passage was blocked by the appellant. She asked him to move out of the way but he ripped the towel off her and began to touch and suck her breasts (Count 10). He pushed her to the ground and started licking her body, including inside the genital area (Count 8). He positioned himself on top of her and inserted his penis into her vagina (Count 9). After ejaculating, he left the house.
The complainant’s mother confirmed that the appellant attended a school athletics carnival with her, at the end of 1995 or in 1996. The children were wearing jumpers because it was cool. The appellant left the athletics carnival at some point.
In 2010 the complainant told police that this incident occurred after the family had been living in Chifley for about a month. In her evidence, she said that she could not recall the exact date.
There were athletics carnivals on 22 August 1995, 18 October 1995 and 27 March 1996.
The hospital incident – Count 11 (sexual intercourse with a child under 16 years)
The complainant’s evidence was that one night, when she was at home with her mother, her sister X and her brother, X had an epileptic fit and fell down the stairs. The complainant called an ambulance. X was taken to hospital, accompanied by her mother. X remained in hospital for “probably a night”. After X went to hospital, the complainant stayed at home with her brother and the appellant. The complainant went to the toilet and when she came out of the toilet she was confronted by the appellant. He pushed her against a wall, pulled her pants and underwear down, and engaged in penile/vaginal intercourse until ejaculation. This evidence was consistent with the prosecution opening.
Hospital records show that, following a fall down the stairs at her home on 29 June 1996, X was taken by ambulance to hospital. She arrived at 9 pm and remained in hospital until 3 July. The hospital notes record that it was the complainant who rang the ambulance. The hospital notes suggest that the complainant’s mother was not at home at the time of the fall (and therefore could not have accompanied X in the ambulance) but did visit X in hospital later that night. The notes do not expressly state that the complainant and her brother accompanied X to the hospital. However, an entry under the patient history taken on admission says:
Admitted to WVH following ? seizure April 96 ...
Commenced on Epilim at this time
x 2 seizures prior to this following falls according to siblings
old notes. Received no medical treatment for these.
An entry under the social history taken from X on admission says:
Very upset with mother at present as Mum had gone out today with her boyfriend
-Siblings say they are unable to contact mother.
-Mother’s boyfriend returned from Torres Strait today.
The evidence of the complainant’s mother in relation to this incident was brief. She said that she “went to the hospital and went and met up with ... [the appellant].”
Uncharged act
The complainant gave evidence of an uncharged act (the shower incident) that occurred after the bedroom incident. She did not clearly remember when this incident occurred. She said that she was showering when the bathroom door opened. The appellant stood there naked. She believed that she may have told a neighbour, N, about the incident. N gave evidence that the complainant had told her about the appellant walking in while she was having a shower.
During the complainant’s evidence in chief, the timing of some of the incidents was put to her by the prosecutor, and she accepted the suggestion that was put. For example when, in relation to the bedroom incident, the prosecutor said “Now, I take you to a point in time in the afternoon after school, during winter...” (emphasis added), the complainant responded affirmatively to the question without disputing the season.
The complainant repeatedly said that she did not recall dates, but she did recall events.
At the time of the events, the complainant told her mother that the appellant “wasn’t a nice person” and was “always flashing himself”. The complainant’s mother said that she observed a change in the complainant’s behaviour and that the complainant sought to avoid the appellant. The complainant’s mother said that the appellant was alone with the children a few times.
On 28 September 1996, the complainant told police that the appellant had tried “to show his dick to her” but had “never touched us”. On 17 November 2009 and 15 June 2010, the complainant told police that she did not want to proceed against the appellant.
The appellant gave evidence. He said that he had never been alone with the complainant, he had not resided at the Chifley home during the working week, and he had committed no sexual offence against the complainant. He gave evidence of periods that he had spent interstate. He did not give evidence about the complainant’s sister falling down the stairs on 29 June 1996 and he raised no alibi in relation to that incident.
In the summing up, the primary judge directed the jury that the delay in prosecuting the alleged offences meant that the appellant had suffered a forensic disadvantage. He instructed the jury that it was dangerous to convict the appellant on the evidence of the complainant alone and that they would need to scrutinise her evidence with great care before returning any verdict of guilty.
The appellant did not complain about any direction given by the primary judge.
Were the verdicts unsafe and unsatisfactory?
The appellant contended that there had been a miscarriage of justice because the verdicts were “unsafe or unsatisfactory”, “unjust or unsafe” or “dangerous or unsafe” in the sense discussed in M v The Queen (1994) 181 CLR 487 (M) at 492, i.e. notwithstanding that there was evidence upon which a jury might convict, it would be dangerous to allow the verdicts of guilty to stand.
In support of this submission, the appellant referred to the following matters.
(a)The complainant said that the athletics carnival incident (Counts 8, 9 and 10) occurred about a month after the family moved to Chifley, i.e. in about February/March 1995, but that was not possible as the appellant did not meet the complainant until after 16 September 1995.
(b)The complainant said that the bedroom incident (Counts 1, 2 and 4) occurred during winter (which she agreed was June/July/August) and about a month after the family moved to Chifley (i.e. in February/March 1995), but she did not meet the appellant until after 16 September 1995, i.e. well after February/March 1995 and after winter 1995.
(c)The complainant said that the flashing incident (Count 5) probably occurred during winter 1995, but she had not met the appellant at that time.
(d)In relation to the hospital incident (Count 11), the complainant said that, after X fell down the stairs, her mother accompanied X to the hospital. However, the hospital records show that the complainant’s mother did not accompany X to the hospital and only attended the hospital later that evening. In addition, the records may suggest that the complainant herself was at the hospital with X, having accompanied X to the hospital in the ambulance. If so, there was no opportunity for the incident to have occurred on the night that X was hospitalised.
(e)On the appellant’s version of events, there was limited opportunity for most of the offences to have occurred. The appellant said that he was never alone with the complainant and he lived on the ANU campus in 1995, mostly attending the Chifley premises at weekends, when others were present. A number of the incidents allegedly occurred on weekdays, when the appellant was not ordinarily at the Chifley house.
In his closing address to the jury, counsel for the appellant did not make the second point in (d), but made each of the other points.
The question of whether there has been a miscarriage of justice because a verdict is unsafe or unsatisfactory is a question of fact that the appellate court must decide by making its own independent assessment of the facts: M at 492. The appellate court must ask whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. In answering that question, the appellate court must pay full regard to the consideration that the jury has the primary responsibility for determining guilt: M at 493. A jury’s advantage in seeing and hearing the evidence may be capable of resolving a reasonable doubt experienced by the appellate court. But if, upon the record itself, the evidence contains such discrepancies or displays such inadequacies that, having made full allowance for the advantages enjoyed by the jury, the appellate court concludes that there is a significant possibility that an innocent person has been convicted, then the court is bound to set aside the verdict: M at 494.
In SKA v The Queen (2011) 243 CLR 400 (SKA), the complainant had given evidence that the relevant incident occurred in December 2006. In April 2007, she had told police that the incident occurred around Christmas Eve 2006. The trial judge ruled that the jury must approach the incident on the basis that it occurred on 22, 23 or 24 December 2006. The applicant had an uncontested alibi for those dates. The jury found the appellant guilty. At [14] and [24], French CJ and Gummow and Kiefel JJ reaffirmed that an appellate court must not merely ask whether, as a matter of law, there was evidence to support the verdicts, but must also make an independent assessment of the evidence, both as to its sufficiency and its quality, weighing the evidence for the purpose of determining whether the verdicts were unreasonable. The intermediate appellate court was criticised for failing to form an opinion about the date of the 2006 offences for the purpose of weighing the evidence and considering the sufficiency of the evidence upon which it was open to the jury to have concluded that the applicant was guilty beyond reasonable doubt.
In Gillard v The Queen (2013) 275 FLR 416 (Gillard), the appellant had been convicted on some counts alleging historical sexual offences, and acquitted on others. The complainant’s evidence about the dates on which some of the offences occurred was uncertain. The complainant said that the offences began in 1992/1993 in a flat. However, there was evidence that the appellant did not occupy that flat until 1995. Based on the discrepancy in dates, the appellant argued that the verdicts of guilty were unsafe and unsatisfactory. At [46], the Court noted that the alleged events had occurred 15 years before the trial, when the complainant was only 14 years old. The Court reasoned:
[47]That a witness cannot give the date, or gives an incorrect date, for an event does not necessarily make the evidence of the happening of that event unreliable, especially if the event is one that the witness is likely to remember because it is significant, traumatic or otherwise memorable. What is remembered differs from person to person as noted by WAN Wells, Evidence and Advocacy (Butterworths, 1988), p 127.
[48]In our view, the fact that ... [the complainant’s] memory about the dates of the various incidents she described were shown to have been faulty does not, given her youth and the lapse of time, affect the credibility or reliability of her evidence about the incidents themselves...
An appeal to the High Court succeeded on grounds that are not relevant for present purposes: Gillard v The Queen (2014) 308 ALR 190. Although the uncertainty of dates was not a ground of appeal, at [3] the High Court did refer to the uncertainty of the evidence as to dates, making no adverse comment about the Court of Appeal’s approach to the issue.
The appellant submitted that, if it occurred at all, the hospital incident must have occurred on 29 June 1996. The circumstances surrounding the incident were distinctive and inconsistent with any other incident involving hospitalisation of X. The appellant further submitted that the hospital notes required an inference that it was the complainant (rather than the complainant’s mother) who accompanied X to the hospital on 29 June 1996. Consequently, there was no opportunity for Count 11 to have occurred, and the verdict on that count was unsafe. If the complainant was an unreliable witness in relation to Count 11, then her unreliability on that count should have been considered in relation to the other counts: R v Markuleski (2001) 52 NSWLR 82.
We accept that, if it occurred, the hospital incident must have occurred in connection with X’s hospitalisation from 29 June to 3 July 1996, while X was in hospital and in the circumstances described by the complainant (she was walking through the laundry from the toilet when her passage was barred by the appellant).
In the context of the hospital notes concerning the admission on 29 June 1996, weighing the competing evidence, is the verdict of guilty on Count 11 unreasonable or unsupportable?
The first entry in the hospital notes upon which the appellant placed reliance appears in the patient history section of the notes of 29 June 1996. That section includes the statement “x 2 seizures prior to this following falls according to siblings”.
Contrary to the appellant’s submission, when taken in context, the recorded statement was not made on 29 June 1996. The entry refers to an earlier statement, made in connection with X’s first hospital admission for epilepsy in April 1996, at which stage (according to X’s siblings) X had suffered two prior seizures but “[r]eceived no medical treatment…”. By 29 June 1996, X had received considerable prior medical treatment; the treatment commenced in April 1996. Consequently, this entry is consistent with the complainant and X’s brother being absent from the hospital at the time of X’s admission on 29 June 1996.
Second, the appellant relied on an entry that appears in the social history section of the hospital notes of 29 June 1996. It states “[s]iblings say they are unable to contact mother”. This entry is consistent with the complainant and her brother being present at the hospital on the evening of 29 June and conveying the information in person to the author of the notes. However, it is also consistent with the information being conveyed to the author of the notes by another means; by telephone, or through an intermediary such as the ambulance officers who attended the residence or the neighbours from whom the complainant and her brother sought assistance when X suffered the epileptic fit.
We note that the complainant was mistaken in her recollection that X was admitted to hospital for “probably a night”. In fact, the hospital notes establish that X was hospitalised until 3 July 1996.
Given the lapse of time since 1996 and the complainant’s admitted uncertainty about both dates and times, it was well open to the jury to find that the complainant was a reliable witness in relation to the occurrence of the hospital incident in association with X’s hospitalisation of 29 June 1996. The hospital notes do not clearly show that the complainant was at the hospital on the night of 29 June 1996; consequently, the incident may have occurred on that night. Alternatively, if the complainant was at the hospital on the night of 29 June, the incident may have occurred on another night while X was in hospital between 29 June and 3 July 1996, and the complainant may have been mistaken in thinking that it occurred on the night that X was taken to hospital.
In his closing address to the jury, the appellant’s counsel expressly drew attention to the hospital entry: “[s]iblings say they are unable to contact mother”. Admittedly, counsel sought to give the entry a different significance from that advanced on appeal; he submitted that Count 11 could not have occurred because the appellant had just returned from the Torres Strait and, on the evening of 29 June 1996, he was absent from the residence with the complainant’s mother.
In the course of the summing up, the primary judge cautioned the jury that it would be dangerous to convict the accused on the evidence of the complainant alone. His Honour directed the jury to scrutinise the complainant’s evidence with great care before returning any verdict of guilty. His Honour also said:
In scrutinising the complainant’s evidence, you must take into careful account the matters that were referred to by ... [counsel for the appellant] in his submissions concerning inaccuracies and inconsistencies in the Crown case, and particularly those matters relating to the dates to which he has only recently referred you.
We consider that the jury’s advantage in seeing and hearing the complainant is well capable of explaining what otherwise might, upon the record alone (considering the social history entry in the hospital notes and the inconsistency regarding the attendance at the hospital of the complainant’s mother), raise a reasonable doubt about Count 11. The jury’s attention was expressly drawn to the relevant entry in the hospital notes. The jury was clearly directed that it was dangerous to convict the appellant on the evidence of the complainant alone and that it must scrutinise the complainant’s evidence with great care, paying particular regard to date inconsistencies.
The inconsistencies upon which the appellant relied in connection with the athletics incident, the bedroom incident and the flashing incident are set out in [34] above. They are inconsistencies about dates and timing.
At all times, the complainant said that she was uncertain about precise dates (as opposed to events). This is unsurprising as the complainant was giving evidence of events said to have occurred 18 years earlier, when she was comparatively young. The complainant’s family had recently arrived in Canberra from Papua New Guinea, and the complainant and her siblings found Canberra to be cold. The climatic difference may well have confused the complainant’s recollection or account of events. For example, when the complainant was asked whether, when an event occurred, it was “still in winter” she replied “It was cold, yes”.
In relation to the timing of the athletics carnival incident, we accept that, taken literally, the complainant said that the incident occurred before the accused met the complainant’s mother and the complainant herself. However, there were several athletics carnivals, including a carnival that occurred in March 1996, while the family was still living at Chifley, the location of the alleged incident. The complainant’s evidence about the athletics carnival incident received some support from her mother, who recalled that the accused had attended the athletics carnival, left at some point before the carnival was over, and she later found him at her house. The complainant’s mother gave a description of the weather that was consistent with March weather.
The jury had the primary responsibility for the verdicts at trial. In evaluating the reliability of the complainant’s evidence, the jury would have taken into account the manner in which she answered questions as well as the substance of her answers. In considering the substance of her answers about dates and timing, the jury would have taken into account the complainant’s repeated assertion that she was uncertain about dates, as well as the consideration that the complainant was more specific when she answered leading questions about dates and more vague when she had to articulate the dates herself.
The jury must have rejected the appellant’s evidence to the effect that there was no opportunity for any of the incidents to have occurred because he had never been alone with the complainant. It was open on the evidence for it to do so.
For the reasons stated in Gillard, inconsistencies in relation to dates do not necessarily undermine the critical aspects of the evidence of a young complainant who is asked to recall highly traumatic events many years later. The primary judge carefully directed the jury that it must scrutinise the complainant’s evidence with great care, particularly in relation to inconsistencies about dates.
Despite the inconsistencies about dates and timing, it was open to the jury to find the offences proved beyond reasonable doubt. This ground is not made out.
Bugmy v The Queen
The High Court decision in Bugmy v The Queen (2013) 249 CLR 571 (Bugmy) has significance for the sentence appeals of both parties.
In R v Bugmy [2012] NSWCCA 223, the intermediate appellate court considered a prosecution appeal that raised four grounds, one of which was the manifest inadequacy of sentences imposed on an Aboriginal offender. The other grounds asserted that the sentencing judge had failed to properly assess the objective seriousness of the offences, failed to properly acknowledge the category of the victim as a serving prison officer, and had given too much weight to the appellant’s subjective circumstances. The intermediate appellate court expressly declined to consider the manifest inadequacy ground, but allowed the appeal on the other grounds. The intermediate appellate court found that the sentencing judge had erred in his assessment of the objective seriousness of the principal offence; he should have given greater weight to personal and general deterrence, and less weight to the respondent’s subjective case, given the respondent’s prior criminal record for offences of violence: Hoeben JA (with whom Johnson and Schmidt JJ agreed) at [38]–[39], [52] and [55]. In the course of his reasons, Hoeben JA observed that, with the passage of time, childhood social deprivation is of diminishing relevance, particularly where there is an intervening history of substantial offending: at [50].
The decision of the High Court on the appeal from that decision (Bugmy v The Queen (2013) 249 CLR 571) is important in several respects.
First, the High Court majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) affirmed that, provided that a sentencing judge does not err when applying sentencing principles, does not mistake the facts, and does not err in relation to relevant and irrelevant considerations, then the assessment of the objective seriousness of an offence is a matter for the sentencing judge: at [22]. Similarly, the weight to be given to the evidence and the various, often conflicting, sentencing purposes is a matter for the sentencing judge: at [24]. Sentencing is a discretionary exercise.
Second, at [41] the High Court majority noted that individualised justice requires an evidence-based approach to sentencing:
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.
Third, the High Court majority agreed that the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of the appropriate sentence. At [43]–[44] the majority said:
43.... 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 is 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.
44.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. (footnotes omitted)
The High Court majority found that the intermediate appellate court had failed to engage with the prosecution’s real complaint: that the sentences were manifestly inadequate, i.e. that the sentences fell below the range of sentences that could be justly imposed for the offences consistent with sentencing standards: at [24].
The appellant’s appeal on sentence
The appellant submitted that there was a close relationship between the offending behaviour and the appellant’s alcohol abuse, which was in turn related to a sense of displacement associated with the appellant’s move from the Torres Strait to the ACT. While the evidence did not establish that the appellant had been raised in an environment of alcohol abuse, it did establish that he had been raised in circumstances of physical abuse, and in circumstances that meant that the Canberra environment was alien to him. Those considerations should have been taken into account in the assessment of culpability, but were not.
In his reasons for sentence, the primary judge referred to the contents of a pre-sentence report, a report that assessed the appellant’s suitability for the Adult Sexual Offender Program and a report from Dr Jonathan Adams, a forensic psychiatrist, dated 10 November 2010. When referring to the contents of Dr Adams’ report, the primary judge said:
It is notable that elements of the information provided by you to Dr Adams about your background were not provided to the author of the presentence report. For example, you told Dr Adams that you had been adopted at birth and that you had been subject to physical abuse by your adoptive parents. These allegations were not repeated to the author of the presentence report.
It is difficult to know how to approach these apparent differences in your reported histories. You did not give evidence at the sentence hearing, so there is no sworn testimony to resolve this issue. ...
You also described a long-standing history of alcohol abuse, which at times appeared in keeping with that of alcohol dependence.
After referring to the character evidence presented at the sentencing hearing, the primary judge proceeded to a consideration of all the material. Relevant to the appellant’s grounds of appeal against sentence, his Honour found:
I am not persuaded that you were the subject of significant physical abuse during your childhood, although I am prepared to accept that your educational opportunities were limited. It is also possible that you were exposed to abuse of alcohol by others in that environment. The continuing effects of these circumstances of your youth must be taken into account.
I accept that you are still a young man when you came to Canberra to study, and I accept that you found it difficult being isolated from your family, friends and culture. I also accept that at about this time you abused alcohol, at least in part because of your isolation. There is, however, no convincing evidence that you were intoxicated during the commission of any of these offences ...
The objective circumstances of these offences, however, reveal very serious criminal offending. Your offending was not isolated to a single offence, but effectively involved five separate instances of sexual offending over a period of some time ...
In this case, the primary judge referred to and considered the evidence concerning alcohol abuse, physical abuse and the appellant’s sense of displacement. The information concerning childhood physical abuse provided to Dr Adams in 2010 had not been repeated to the author of the pre-sentence report. His Honour justifiably concluded that the appellant had not been the subject of “significant” physical abuse during his childhood. In the sentencing exercise, his Honour considered all the matters about which the appellant now makes complaint and (with the exception of childhood physical abuse, which was not shown to have been significant) his Honour took them all into account when determining the appropriate sentence.
The appellant submitted that the related considerations of alcohol abuse and sense of displacement should have been taken into account in a specific way, i.e. in the assessment of culpability. However, as the primary judge observed, the evidence did not establish any direct connection between the offences and the appellant’s alcohol abuse and sense of displacement. In particular, the primary judge found that there was “no convincing evidence” that the appellant was intoxicated during the commission of the offences. On the appeal, the appellant did not submit that the primary judge had erred in making that factual finding. We accept that factors such as alcohol abuse and social isolation may inform sentencing purposes such as personal deterrence, rehabilitation and protection of the community. However, the appellant did not explain how, in the circumstances of this case, alcohol abuse or social alienation mitigated the objective seriousness of the appellant’s repeated, forceful violations of the complainant.
This ground is not made out.
Nature of a prosecution appeal against sentence
Recently, in CMB v Attorney-General for New South Wales (2015) 317 ALR 308, French CJ and Gageler J said at [34]–[35]:
34. Accordingly, as Heydon JA succinctly put it in R v Hernando (at [12]):
[12]... if [the Court of Criminal Appeal] is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised."
The Court of Criminal Appeal, in this case and in R v Smith, was wrong to depart from that statement of the law.
35.The second of the two hurdles to which Heydon JA referred in Hernando has a statutory foundation and a systemic significance. Before s 5D of the Criminal Appeal Act was amended to add reference to the DPP, Barwick CJ said in Griffiths v The Queen:
On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
With the clarification that the reference to "matter of principle" by Barwick CJ "must be understood as encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards", his Honour's explanation of the nature of an appeal under s 5D has since been said to represent "general and authoritative guidance to the Courts of Criminal Appeal of this country". It expresses the "limiting purpose" of an appeal under s 5D, and in so doing provides "a framework within which to assess the significance of factors relevant to the exercise of the discretion". (citations omitted)
In R v Duffy [2014] ACTCA 53, this Court discussed the general principles applicable to prosecution appeals against sentence. The Court said:
54.There is a narrow class of case in which it is appropriate for the Crown to appeal against the inadequacy of a sentence. ...
55.In Green v The Queen (2011) 244 CLR 462 (Green) at [1] the majority (French CJ, Crennan and Kiefel JJ) said (citing Barwick CJ’s statement in Griffiths v The Queen (1977) 137 CLR 293 (Griffiths) at 310):
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. (citations omitted)
...
60.It will be very difficult for the Crown to succeed on an appeal where it relies solely on “manifest inadequacy” and seeks to infer an error of principle from the length and/or nature of the sentence. Whereas offender appeals are concerned with the correction of error in particular cases, prosecution appeals are brought to establish matters of principle. In prosecution appeals, the focus must remain firmly on the question of whether there has been an error of principle. (emphasis added)
The NSW Court of Criminal Appeal made similar remarks in R v Tuala [2015] NSWCCA 8 (Tuala). The prosecution had appealed against the inadequacy of sentences given for shooting and firearms offences, complaining about the length and nature of the sentences, the degree of accumulation and the overall non-parole period. The prosecution sought to infer that the sentencing judge had failed to give adequate weight to various aggravating features. Simpson J (with whom Ward JA and Wilson J agreed) said:
98.... I repeat what I said in R v DH; R v AH [2014] NSWCCA 326. The High Court has made it plain that Crown appeals are to be brought for the purpose of establishing principle, and has distinguished that from (mere) “correction of error”: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462.
99.In this case, as in DH; AH, no principle sought to be established was identified. It is not sufficient, in my opinion, to hypothesise that a sentence about which complaint is made might (or must) have come about as a result of the attribution of excessive weight to one consideration, or the attribution of inadequate weight to another. The Crown must identify error of one of the kinds mentioned in House v The King [1936] HCA 40; 55 CLR 499 and must, further, identify some sentencing principle that arises. That has not here been done.
In this case, the prosecution identified no “sentencing principle that arises”. There was no articulation of a particular need “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons” and no such need is obvious to the Court.
Consideration of the prosecution appeal against sentence
The prosecution submitted that (apart from the sentence imposed on Count 5) each sentence is manifestly inadequate, that the inappropriate concurrency of sentences results in a manifestly inadequate effective head sentence. The prosecution submitted that the non-parole period is manifestly inadequate, both as a proportion of the effective head sentence and because it is too short.
The prosecution did not allege any specific error in relation to sentencing, but asserted that, upon the facts, the sentences imposed were unreasonable or plainly unjust such that the Court must infer or conclude that, in some way, the primary judge had failed to properly exercise his sentencing discretion: House v The King (1936) 55 CLR 499 at 504–505; Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale) per Gleeson CJ and Hayne J at [6], per Kirby J at [59]. In other words, the sentences imposed were below the range that could be justly imposed consistent with sentencing standards: Bugmy at [24].
The prosecution submitted that the sentences failed to reflect the objective seriousness of the offences, particularly the forceful and violent nature of four of the five incidents and the nature of the acts of indecency or intercourse that were involved, and failed to recognise the youth of the complainant, her sexual inexperience, the appellant’s abuse of a position of trust and/or authority, and the appellant’s lack of remorse. The prosecution submitted that the sentencing judge gave undue weight to the delay between the offences and first complaint, the lack of prior criminal record, the appellant’s good character and the attitude of the general prison population towards child sex offenders.
Taken in isolation, most of these complaints concern the weight that was given to the identified feature, and weight is not a matter that can justify appellate interference with the sentencing discretion.
The prosecution also referred to the maximum available penalties and their importance, the need to protect children from the long-lasting and profound physical and psychological harm caused by child sex offences, and the prevalence of child sex offences.
The primary judge was well aware of the maximum available penalties. His Honour received and considered a victim impact statement. His Honour referred to the need for general deterrence.
In summary, the primary judge expressly noted and considered all relevant facts and sentencing purposes.
The question remains as to whether the sentences fall below the range of sentences that could justly be imposed for the offences consistent with sentencing standards.
In Tuala, Simpson J commented at [44]:
It is not uncommon, in Crown appeals, where specific error of the kinds mentioned in House v The King [1936] HCA 40; 55 CLR 499 cannot be identified, to seek to infer (or hypothesise) that what is asserted to be an erroneous exercise of sentencing discretion can be laid at the door of an erroneous attribution of weight to one or more of those sentencing considerations. That approach may no longer be legitimate (if it ever was). ...
The question to which this Court must address itself, therefore, is whether it is satisfied that ... [the sentencing judge’s] sentencing discretion miscarried, because he imposed a sentence that was below the range of sentences that could justly be imposed for the offences consistently with sentencing standards. ...
Comparable sentences form a yardstick against which the sentence in question may be considered: Barbaro v The Queen (2014) 253 CLR 58. That is not to say that the range of sentences imposed in comparable cases is necessarily correct: Hili v The Queen (2010) 242 CLR 520 at [54]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]–[304].
The prosecution referred the Court to seven decisions concerning acts of indecency, which were said to be comparable. However, those cases do not establish a usual sentencing range for offences of sexual intercourse with a child under 16 years of age. They certainly do not establish a sentencing range for such offences committed in the mid 1990s. The individual sentences imposed in those cases are not inconsistent with the sentences imposed in this case for the same offence.
In R v King [2013] ACTCA 29 (King), the Court of Appeal allowed a prosecution appeal on the ground of manifest inadequacy, increasing the original aggregate sentence of 12 years’ imprisonment with a non-parole period of seven years and six months to an aggregate sentence of 19 years’ imprisonment with a non-parole period of 11 years and 10 months. King does share some features with this case; in King, the offences were committed in the mid 1990s against boys aged 13–15 years by an Aboriginal man with no relevant criminal history, who had come from a very disadvantaged background to achieve sporting success. But King involved 25 offences committed against five victims over a period of several years by a much older man. Because of his sporting prominence, he had been in a position to provide private coaching to young men, and that was the context in which the offences occurred.
At the other end of the spectrum from King, in Dinsdale the High Court restored the orders of a sentencing judge who had imposed a suspended sentence for two (albeit, relatively minor) child sex offences. In relation to the lenient sentences imposed by the sentencing judge and then overturned on appeal, Kirby J (with whom the other members of the bench agreed) at [68] said:
It is true that both by the applicable statute, and by the common law, a primary duty of judges on sentencing is to give due weight to the objective seriousness of the offence. Cases of repeated offences against vulnerable young children by those who have the responsibility for their care or upbringing should be dealt with most seriously. Penetration, including digital penetration, is an invasion of the privacy and dignity of the child that will commonly call for a custodial sentence to be served. But there is no absolute rule. Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner, and in some cases the prisoner's family, or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in the particular case. (citations omitted)
In this case, the primary judge had the advantage of observing the complainant and the accused during the course of the trial. The prosecution does not complain that his Honour failed to take into account relevant considerations, took irrelevant considerations into account, or otherwise made an express error in relation to the manner in which he exercised his sentencing discretion. The primary judge was required to exercise his discretion in the context of a difficult and relatively unusual set of circumstances. He had to consider various, conflicting sentencing purposes. Arguably, this was a case that called for “a measure of mercy”.
The prosecution has not established that, individually or collectively, the sentences imposed were below the range that could justly be imposed consistent with sentencing standards. As the prosecution did not identify any sentencing principle that demanded an appeal and did not establish a relevant sentencing pattern, it is understandable that the prosecution also failed to demonstrate any “manifest inadequacy or inconsistency in sentencing standards".
It is not necessary to consider whether the prosecution has negated any reason why our residual discretion not to interfere should be exercised.
The appeal and the cross-appeal are dismissed.
| I certify that the preceding ninety-one [91] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 17 July 2015 |
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