R v Bahrami
[2020] SASCFC 111
•27 November 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAHRAMI
[2020] SASCFC 111
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Livesey and the Honourable Justice Bleby)
27 November 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
Application for permission to appeal against sentence by the Director of Public Prosecutions.
The respondent pleaded guilty to four counts of aggravated indecent assault and one count of false imprisonment in the Magistrates Court not more than four weeks after his first court appearance. The respondent was sentenced to four years, nine months and 19 days’ imprisonment, with a non-parole period of three years.
On the afternoon of 3 April 2019, the 10-year-old victim of the respondent’s offending, J, rode her bike to the Blair Athol Public Reserve. J’s mother was to join J there after collecting her other daughter from home. The respondent was already in the reserve with his daughter and niece who were both toddlers. When J arrived, the respondent was pushing the toddlers on a swing. J climbed onto an adjacent swing. The respondent stood in front of the swing to give J a push as well, but took the opportunity to touch J between the legs.
Under the ruse of seeking directions, the respondent deceived J into accompanying him to the toilet block in the park. He took the toddlers with him, but once in the block he separated J from them by placing her into a cubicle. He blocked J’s exit and placed her on the toilet, facing away from him. He then indecently assaulted and falsely imprisoned J. All of the offending occurred within a period of eight minutes.
The Director appeals on the grounds that the sentence is manifestly inadequate and that the Judge erred in the exercise of his discretion conferred by s 40(3)(a) of the Sentencing Act 2017 (SA) in reducing the sentence his Honour would otherwise have imposed by 40 percent for the respondent’s early guilty plea.
Held per Kourakis CJ (Livesey and Bleby JJ agreeing) granting permission to appeal and allowing the appeal:
1. The sentence is so disproportionately low having regard to the circumstances of the offending that it must be corrected in order to maintain public confidence in the administration of the criminal law.
2. The Judge erred in law in his application of s 40(3)(a) of the Sentencing Act 2017 (SA). In reaching the conclusion that he was precluded from reducing the sentence he would otherwise have imposed by anything less than 40 percent, the Judge misunderstood the relevant authorities of this Court.
3. Permission to appeal must be granted to correct the erroneous view that allowing the maximum reduction in this grossly undeserving case was required by s 40 of the Sentencing Act 2017 (SA) and the authorities of this Court.
4. The sentence imposed in the District Court, other than the intervention order, is set aside.
Held per Livesey J (Bleby J agreeing):
5. But for the respondent’s guilty plea, a sentence of ten years would have been imposed. A reduction of 30 percent for the respondent’s guilty plea is appropriate. The respondent is sentenced to seven years’ imprisonment with a non-parole period of five years, to commence on 18 April 2019.
Held per Kourakis CJ:
6. But for the respondent’s guilty plea, a sentence of ten years would have been imposed. A reduction of just under 31 percent for the respondent’s guilty plea is allowed. The respondent should be sentenced to six years and 11 months’ imprisonment with a non-parole period of five years, to commence on 18 April 2019.
Criminal Law (Sentencing) Act 1988 (SA) s 10C; Criminal Law Consolidation Act 1935 (SA) s 349; Criminal Procedure Act 1921 (SA) s 152; Sentencing Act 2017 (SA) ss 26, 40, 41, referred to.
R v Place (2002) 81 SASR 395, applied.
Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Bridgland (2016) 258 A Crim R 149; R v Buttigieg [2020] SASCFC 38; R v Davey [2017] SASCFC 151; R v Dwyer (2015) 121 SASR 587; R v McPhee [2014] SASCFC 107; R v Nguyen [2015] SASCFC 40; R v Palmer [2016] SASCFC 34; R v Partridge (2008) SASR 233; R v Wakefield (2015) 121 SASR 569; The Queen v Shannon (1979) 21 SASR 442, discussed.AB v The Queen (1999) 198 CLR 111; Cameron v The Queen (2002) 209 CLR 229; Everett v The Queen (1994) 181 CLR 295; House v The King (1936) 55 CLR 449; R v Golding (1980) 24 SASR 161; R v Liddy (No 2) (2002) 84 SASR 231; R v Osenkowski (1982) 30 SASR 212; R v Reiner (1974) 8 SASR 102; R v Slater (1984) 36 SASR 524; R v Thomson (2000) 49 NSWLR 383; Lovett v Le Gall (1975) 10 SASR 479; Wong v The Queen (2001) 207 CLR 584, considered.
R v BAHRAMI
[2020] SASCFC 111
Court of Criminal Appeal: Kourakis CJ, Livesey and Bleby JJ
KOURAKIS CJ: This is an application for permission to appeal by the Director of Public Prosecutions (the Director) against a sentence of four years, nine months and 19 days, with a non-parole period of three years. This sentence was imposed on the respondent in the District Court following his pleas of guilty to four counts of aggravated indecent assault and one count of false imprisonment. The respondent pleaded guilty to the offences in the Magistrates Court not more than four weeks after his first court appearance.
The Director appeals on the grounds that the sentence is manifestly inadequate and that the Judge erred in the exercise of his discretion conferred by s 40(3)(a) of the Sentencing Act 2017 (SA) (Sentencing Act) in reducing the sentence his Honour would otherwise have imposed by 40 percent for the respondent’s early guilty plea.
I would grant the Director permission to appeal. The sentence is so disproportionately low having regard to the circumstances of the offending that it must be corrected in order to maintain public confidence in the administration of the criminal law. The Judge also erred in law in his application of s 40(3)(a) of the Sentencing Act. In reaching the conclusion that he was precluded from reducing the sentence he would otherwise have imposed by anything less than 40 percent, the Judge misunderstood the relevant authorities of this Court. I would allow the appeal, set aside the sentence imposed in the District Court other than the intervention order and sentence Mr Bahrami instead to imprisonment for six years and 11 months. I would fix a non‑parole period of five years. I elaborate on my reasons below.
The offences
On the afternoon of 3 April 2019, the 10-year-old victim of the respondent’s offending, J, rode her bike to the Blair Athol Public Reserve. J’s mother was to join J there after collecting her other daughter from home. The respondent was already at the reserve with his daughter and niece, who were both toddlers (the toddlers). Earlier that day he had driven past the park on numerous occasions for no apparent innocent reason. When J arrived, the respondent was pushing the toddlers on a swing. J climbed onto an adjacent swing. The respondent stood in front of the swing to give J a push as well, but took the opportunity to touch J between the legs. That conduct was the subject matter of the first count of indecent assault.
Under the ruse of seeking directions, the respondent deceived J into accompanying him to the toilet block in the park. He took the toddlers with him, but once in the block he separated J from them by placing her into a cubicle. He blocked J’s exit and placed her on the toilet, facing away from him. He then indecently assaulted J orally. That conduct is the subject of count 7 on the Information.
The respondent then told J to stand up. When J was facing him, he rubbed his penis between her legs. That indecent assault is the subject of count 3 on the Information. The respondent then again indecently assaulted J orally after which he placed J on the ground, threatening to harm her if she moved. That conduct, together with barring the exit from the cubicle, constituted the offence of false imprisonment which was the subject of count 5 on the Information. The respondent ejaculated on J whilst she was on the ground. That indecent assault constituted the offence on count 6 of the Information.
A short time after the last of the indecent assaults, J managed to elbow the respondent and run from the toilet. All of the offending occurred within a period of eight minutes.
The Judge correctly described the offending as despicable, abhorrent and ‘one of the most serious example[s] of its kind’. He made particular reference to the respondent’s indifference to J’s suffering.
After the offending was reported, the police mistakenly arrested the respondent’s brother. The respondent did not come forward to confess in order to save his brother from the predicament in which he was. After receiving DNA results on 18 April 2019, the police arrested the respondent. At the commencement of the respondent’s police interview, he denied having been in the reserve, or seeing J at all, on 3 April. He accused J of lying and disparaged her mother. Later in the interview he conceded that he was in the reserve with the toddlers but denied indecently assaulting J. The respondent fabricated a story that J had pushed his daughter and that he responded by pushing J back. He suggested that J had falsely accused him in retaliation.
The impact on J and her family
J’s mother’s victim impact statement was received by the Judge. She stated that the offending had destroyed her trust in people. J’s mother spoke of her shock, distress, anger and frustration. She recounted how she had kept her children with her in her bed at night and reported that her children became quiet and introverted. J has withdrawn from interactions with other children and is prone to losing her temper in the face of difficulties. Relations between J and her sister became strained. J remains in counselling. J’s mother continues to be very protective of her children. She concluded her statement with the following:
I want him to know I went to the police because I believed my child. I am glad that I did go to the police. I had this feeling of responsibility that not only was I protecting my child but possibly other people’s children in the future.
I am relieved that he is going to pay for this by going to prison. I want him to know that for him this was a one off incident but for my family he has impacted not only one but three lives. We are the ones who have to continue to live with the consequences of what he did every day.
Personal antecedents
The respondent is 33 years of age. He was born in Afghanistan in 1987 but later fled to Iran with his family. He arrived in Australia in 2007 with his mother and two younger brothers. The respondent’s father died when he was 18, having suffered a debilitating stroke some eight years earlier. The respondent is married. He sponsored his wife to migrate to Australia. Their daughter is four years of age. In Australia, the respondent worked as a labourer in the construction industry and in a poultry factory. He lost his employment a week before the offending.
The respondent has no criminal antecedents.
The respondent was examined by a psychiatrist, Dr Begg. He told Dr Begg that he was feeling very tired leading up to the loss of his employment. The respondent gave an account of marital disharmony. He denied drinking alcohol or taking illicit drugs. The respondent did not report having suffered any sexual abuse as a child, although he told Dr Begg that when he was young he had a fear of being sexually abused.
The respondent did not describe any sexual dysfunction in his marriage. He proffered no explanation to Dr Begg for the offending. Dr Begg thought that the offending was out of character. Dr Begg diagnosed a mild depressive disorder but excluded any major psychiatric disorder. Dr Begg suggested that the offending was reactive to the respondent’s difficult personal and employment circumstances at a time when his capacity to cope was diminished by depression. Dr Begg excluded any sadistic motive for the offending and considered that the risk of future offending was low.
The Judge rejected Dr Begg’s opinion. That is not surprising. The very nature of the offending is more likely to be a manifestation of serious and deeply rooted psychosexual dysfunction than a reactive depression to ordinary life events. The Judge noted in that respect the brazen nature of the offending. The Judge was plainly right to reject Dr Begg’s opinion and to reject the submission, based on it, that there was only a low risk that the respondent would re‑offend.
The sentencing remarks
The Judge correctly recognised that:
·The utilitarian justification for a sentencing reduction following an early guilty plea must be balanced against competing public interest considerations of community protection and proportionate sentencing.
·Section 40(5) of the Sentencing Act requires a sentencing judge to consider whether a contemplated percentage reduction of a sentence for an early guilty plea would result in a sentence so disproportionate to the seriousness of the offending that it may affect public confidence in the administration of justice.
·A reduction of 40 percent of the otherwise appropriate sentence in the respondent’s case may result in a disproportionately low sentence which would undermine public confidence having regard to the heinous nature of the offending.
Despite those observations, the Judge concluded that he was precluded from reducing the sentence by anything less than the prescribed percentage:
Notwithstanding those considerations, I consider that I remain bound by the approach set out in the earlier authorities of R v Dwyer, R v McPhee and R v Palmer that I continue to be required to adopt a utilitarian approach. Guilty persons are to be encouraged to plead guilty early and be confident of the discount they will receive. Legal advisers must be in a position to advise their clients in confidence…
The Judge then reduced the sentence he would otherwise have imposed by 40 percent without explaining why he did not apply a lesser percentage having regard to his concern that such a reduction might undermine public confidence.
The Judge, exercising the power conferred by s 26 of the Sentencing Act, commenced with a nominal single sentence of imprisonment for all offences of eight years, before reducing it to four years, nine months and 19 days with a non‑parole period of three years.
Permission to appeal
Sentencing is a discretionary exercise because it is impossible to fix a proportionate sentence with a high degree of precision. The limited grounds on which an exercise of the sentencing discretion can be set aside,[1] and the requirement to first obtain permission to appeal, recognises as much. However, a substantially higher threshold is imposed on a prosecution application for permission to appeal. The higher threshold is calculated to protect defendants against persistent prosecution attempts to procure a more severe sentence.
[1] House v The King (1936) 55 CLR 499.
In R v Buttigieg, this Court reprised the well-established principles governing the exercise of the discretion to grant the prosecution permission to appeal against the inadequacy of sentence: [2]
[2] [2020] SASCFC 38 at [38]-[39], [41].
[38] It is well established that leave should only be granted with respect to Crown appeals against sentence in cases that are ‘rare and exceptional’. As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen:
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[39] A Crown appeal against the adequacy of a sentence should be approached with great care, and the ‘rare and exceptional’ test should be rigorously applied. However, the Crown will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’. Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.
…
[41] Manifest inadequacy is a conclusion. In determining if a sentence is or is not plainly inadequate, an appellate court must essentially repeat the sentencing task undertaken by the sentencing judge and in doing so, determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.
(Citations omitted)
The very purpose of any appeal, including a prosecution appeal against sentence, is the correction of error. It is not an academic exercise nor an opportunity for the Court of Appeal to give a general sentencing guideline. In the rare and exceptional case of a sentence so egregiously inadequate that it substantially undermines sentencing standards (shocks the public conscience), or is a manifestation of the idiosyncratic view of a judge then, generally, the Court of Appeal should correct it, and not merely discuss its inadequacy. If an appeal court declares that a sentence is egregiously low but does not have the will to correct it, public confidence in the administration of the criminal law is likely to be further undermined.
Utilitarianism – sentence reduction for a guilty plea alone
In the authorities on the construction, and application, of s 10C of the Criminal Law (Sentencing) Act 1988 (the CLSA) and its successor provision, s 40 of the Sentencing Act, the utilitarian purpose of the statutory sentencing reduction schemes they enact is often referred to. It is useful to spell out those utilitarian benefits.
In The Queen v Shannon[3] (Shannon), King CJ explained the utilitarian, or practical, reasons to reduce the sentences of offenders who co-operate in the administration of justice by pleading guilty:[4]
The conditions under which justice is administered change and the emphasis to be placed upon the various purposes to be achieved in shaping sentences changes accordingly. There are features of the current conditions which emphasise the need for practical encouragement for guilty persons to admit their guilt. Legal aid for as many as possible of those charged with serious offences should be a high social priority, and, indeed, it is not too much to say that its availability to persons having a genuine defence to criminal charges is indispensable to the proper administration of justice. The consequences of the general availability of legal aid must, however, be recognized and coped with. It must be recognized that guilty persons can put forward false stories and be defended without cost to themselves. The result is the depletion of funds available for legal aid and congestion and delay in the criminal courts. It is not, generally speaking, for the solicitor assigned or the legal aid authority to judge the truth of the assisted person's story, and it is only in the exceptional case that it can be proper to refuse or discontinue assistance because of the strength of the prosecution's case. If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts. In most cases, if the offender has nothing to gain by admitting his guilt, he will see no reason for doing so. I am impressed by the strong practical reasons for recognising a willingness to co-operate in the administration of justice by pleading guilty as conduct possessing a degree of merit, quite apart from remorse, which can be taken into account in assessing the sentence.
[3] (1979) 21 SASR 442.
[4] The Queen v Shannon (1979) 21 SASR 442 at 451 (King CJ).
King CJ formulated the following propositions concerning sentence reductions for early pleas of guilty:[5]
[5] The Queen v Shannon (1979) 21 SASR 442 at 452-453 (King CJ).
In my opinion this Court should now lay down the following propositions:
(1) A plea of guilty may be taken into account in mitigation of sentence where-
(a) it results from genuine remorse, repentance or contrition, or
(b) it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency,
and where to allow the plea a mitigatory effect would be conductive to the public purposes which the sentencing judge is seeking to achieve.
(2) A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.
(3) In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.
(4) In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.
(5) The above propositions are not to be taken as weakening in any way the principle that there must be no increase in the sentence which is appropriate to the crime because the offender has contested the charge.
There is an inherent tension between the first two propositions. First, as King CJ observed in the earlier cited passage, if a sentence is not reduced in recognition of a guilty plea, many offenders would put the prosecution to proof, in even the strongest of cases, in the hope that a prosecution stumble may win them an unmeritorious reprieve. Secondly, it is not obvious to me why offering a guilty plea to a lesser charge should be disparaged as an ‘inducement’ to the prosecution. If the Director accepts the offer, the result must be taken to be a just resolution of the proceedings which is in the public interest.
The fact is that every guilty plea will reflect a measure of a recognition of the inevitable and a willingness to assist in the administration of justice, and some may even reflect a measure of remorse. The real point of the second of the propositions stated by King CJ is that a guilty plea which is predominantly motivated by a recognition of the inevitable was, at common law, worthy of very little reduction.
So much was recognised by Wells J who described a sliding scale of reductions as follows:[6]
A plea of guilty traditionally is taken into account and prima facie should incline a judge to look for grounds for leniency. But the weight that that plea has upon a consideration of possible leniency will vary enormously from case to case. At one end of the scale, it may take its place with other material that justifies substantial leniency. At the other end, it may represent a reluctant acknowledgment that no other course is open, wrung from a prisoner who is defiant of all authority and who is a confirmed misanthrope with a dangerous proclivity towards violence, cruelty, or the misappropriation of the property of others. In particular, the effect of a plea of guilty may be reduced virtually to nothing where the facts are so outrageous that the unmistakable duty of the trial judge is to make an example of the prisoner by imposing a strongly deterrent sentence.
I have, since preparing these reasons, had the advantage of reading, in draft, the Chief Justice’s reasoning and conclusions.
I support his conclusions.
It may, however, be useful to emphasize, with respect to sub-par. (b) of par. 1 of those conclusions, that the willingness referred to in that sub-paragraph may be permitted to have a mitigatory effect, not where it stands in isolation, but only where, in all the circumstances in which it is found, to give it that effect would advance the public purpose or purposes that the sentencing judge is seeking to achieve.
[6] The Queen v Shannon (1979) 21 SASR 442 at 455 (Wells J).
The consensus conclusion of the majority of the five-member court which sat in Shannon was articulated by King CJ:[7]
During the course of the hearing of this appeal, a court of five Judges was convened to consider the extent (if any) to which a plea of guilty could be regarded as a mitigating factor apart from the remorse or repentance of which it might be evidenced. That Court has laid down that a plea of guilty may be taken into account in mitigation of sentence—
(a) where it results from genuine remorse, repentance or contrition;
or
(b) where it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest, notwithstanding that the motive, or one of the motives, for such co‑operation may be a desire to earn leniency,
and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing Judge is seeking to achieve.
[7] The Queen v Shannon (1979) 21 SASR 442 at 459-460 (King CJ).
It is appropriate before proceeding further to elaborate on the financial and social costs of unnecessary trials, and conversely, therefore, to the social benefits of taking a utilitarian approach to sentence reductions for early guilty pleas. Criminal trials cannot be listed and heard immediately after the commission of an offence. The police must obtain detailed witness statements and subject physical evidence to sometimes painstaking costly and time consuming forensic examination. A plea entered within four weeks will save much of the delay and expense occasioned by the necessary preparation of the prosecution case. Of arguably greater importance, it provides very early relief to anxious victims and their families and assurance to the community that the offender has been apprehended.
Once the police investigation is complete, the defence must be given time to consider its defence. Only when both the prosecution and defence are sufficiently prepared can the court list the matter for trial. There is, of necessity, a queue of cases waiting for trial. Many months, or several years, may pass before trial, even though courts attempt to reduce that time by over-listing matters. In that time, the defendant may be on bail, and, if guilty, pose a risk to the community. The community therefore has a strong interest in resolving criminal matters quickly in order to reduce the time for which an offender is on bail. The community also benefits collectively from the early resolution of criminal accusations, even if the offender is in custody, because of the assurance that resolution gives about the effectiveness of the criminal law. Finally, the penalty imposed by a court operates as a stronger denunciation, and deterrent, and more effectively assuages a victim, the sooner it is pronounced.
The need for a speedy resolution of criminal proceedings is even more urgent in cases of sexual assault. An article in the online journal, Psychiatry, Psychology and the Law, considering studies of young complainant witnesses in sexual abuse trials in Australia, New Zealand and the United Kingdom, summarised the reported effects of delay as follows:[8]
Interviews with young complainant witnesses reveal significant distress and anxiety while awaiting trial (Eastwood & Patton, 2002; Hayes & Bunting, 2013; Plotnikoff & Woolfson, 2009). Pre‑trial distress is likely to be exacerbated by long delays between reporting to the police and going to trial. Such delays are common, with studies finding average pre‑trial delays of approximately 18 months in Australia (Eastwood & Patton, 2002) and 15 months in New Zealand (Hanna et al., 2010). In addition, trials are frequently rescheduled, thus adding to delay and uncertainty. In the United Kingdom, around one third of trials are rescheduled (Plotnikoff & Woolfson, 2009) and this is also common in New Zealand (Hanna et al., 2010). Young witnesses’ reports of difficulties experienced during this period of delay include nightmares, suicide attempts, deliberate self‑harm, self‑hatred, fear of further victimisation, depression, inability to concentrate on schoolwork, fear of returning to school following the trial, and fear or not testifying well (Eastwood & Patton, 2002; Hayes, Bunting, Lazenbatt, Carr, & Duffy, 2011). The effects of involvement in court processes include adverse short‑ and long‑term outcomes in terms of well‑being and functioning (Goodman et al., 1992; Quas et al., 2005). Even after controlling for a number of factors, testifying is associated with poor adjustment one decade after trial (Quas et al., 2005).[9]
[8] Isabel Randell, Fred Seymour, Emily Henderson and Suzanne Blackwell, ‘The Experiences of Young Complainant Witnesses in Criminal Court Trials for Sexual Offences’ (2018) 25(3) Psychiatry, Psychology and Law 357 at 358 DOI: 10.1080/13218719.2017.1396866.
[9] Isabel Randell, Fred Seymour, Emily Henderson and Suzanne Blackwell, ‘The Experiences of Young Complainant Witnesses in Criminal Court Trials for Sexual Offences’ (2018) 25(3) Psychiatry, Psychology and Law 357 at 358 DOI: 10.1080/13218719.2017.1396866.
The effects of the stress of pre-trial delay on the schooling of young victims were described in the following way:[10]
The pre‑trial delay period was variously described by parents and young people as ‘nerve‑racking’, ‘harrowing’ and ‘horrendous’, and as exacerbating the significant stress and mental health difficulties that they experienced. Relationships and schooling were both affected by the stress of the delay period and contributed to this stress. Some participants spoke about significant absences from school, due both to court‑related obligations and mental health difficulties. This impacted on the children’s ability to be settled at school and manage schoolwork, peer relationships and queries from peers about the reason for their absences.
…
Many participants attributed the negative impact of the pre‑trial delay period as being the result of young people being unable to move forward with their lives until completion of the trial; a feeling of life being ‘on hold’. Some parents described the constant presence of the trial in their minds and the minds of their children, and some emphasised how incredibly long this period of time is in the life of a child.
[10] Isabel Randell, Fred Seymour, Emily Henderson and Suzanne Blackwell, ‘The Experiences of Young Complainant Witnesses in Criminal Court Trials for Sexual Offences’ (2018) 25(3) Psychiatry, Psychology and Law 357 at 361-362 DOI: 10.1080/13218719.2017.1396866.
The authors found that their results largely mirrored studies in other jurisdictions:[11]
The experiences of young witnesses and parents in the current study to a large extent mirror the experiences of those in other jurisdictions (Back et al., 2011; Eastwood & Patton, 2002; Hayes & Bunting, 2013; Hayes et al., 2011; Plotnikoff & Woolfson, 2009).
[11] Isabel Randell, Fred Seymour, Emily Henderson and Suzanne Blackwell, ‘The Experiences of Young Complainant Witnesses in Criminal Court Trials for Sexual Offences’ (2018) 25(3) Psychiatry, Psychology and Law 357 at 368 DOI: 10.1080/13218719.2017.1396866.
They argued for the reduction of pre-trial delays:[12]
The delay period is particularly stressful due to anticipation of the trial, uncertainties about trial date, and the trial being constantly on the mind of young witnesses, thereby preventing them from being able to ‘move on’ with their lives. The significant impact of the delay period on mental health and well‑being, education, and relationships is evident in various international studies, as well as in the current study. Reducing pre‑trial delay would result in a profound reduction in the negative impact on witnesses, mitigating many of the factors that young people and families associate with the distress of court involvement.
Reducing the pre‑trial delay would also minimise the resources needed to effectively support a young witness and his or her family during the pre‑trial and trial period. Approaches to minimising pre‑trial delay in other jurisdictions include prioritising such trials for early hearings and/or pre‑recording young witnesses’ evidence, including cross‑examination. Adopting the pre‑recording of all evidence for young witnesses has been found elsewhere to eliminate the need for young people to attend court at all in the vast majority of cases (for a review, see Hanna et al., 2010).
[12] Isabel Randell, Fred Seymour, Emily Henderson and Suzanne Blackwell, ‘The Experiences of Young Complainant Witnesses in Criminal Court Trials for Sexual Offences’ (2018) 25(3) Psychiatry, Psychology and Law 357 at 369 DOI: 10.1080/13218719.2017.1396866.
Adverse emotional and health consequences on victims of sexual assaults resulting from delay have been reported in the United States. In a paper entitled ‘Protecting Crime Victims in State Constitutions’,[13] the authors observed:
Victims often suffer significantly from delays in the criminal justice system. A “common problem in the prosecution of crimes against victims is that the trial is typically delayed through scheduling conflicts, continuances, and other unexpected delays throughout the course of the trial.” And victims suffer as a consequence of these delays. For example, victims of violent crime frequently suffer from post‑traumatic stress disorder (PTSD). A connection between initial victimization and later depression, substance abuse, panic disorder, agoraphobia, social phobia, obsessive‑compulsive disorder, and even suicide have also been reported in the academic literature. Delays in the criminal process can exacerbate these initial injuries. Multiple studies suggest “the negative effect on a victim’s healing process when there is a prolonged trial of the alleged attacker because the actual judicial process is a burden on the victim.” And “[t]he long delay between reporting a crime to the police and the beginning of the trial represents [a] source of psychological stress for crime victims.”
Academic literature confirms the ways in which delays in the criminal justice system can compound the crime’s initial harmful effects on a victim. A victim’s experience with the justice system often “means the difference between a healing experience and one that exacerbates the initial trauma.” Delays in proceedings can also be particularly difficult for child victims, who may have difficulty healing until the anxiety of legal proceedings can be brought to an end.
(Citations omitted)
[13] Paul G. Cassell and Margaret Garvin, ‘Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s Law for Florida’ (2020) 110(2) Journal of Criminal Law & Criminology 99 at 121‑122.
Some, but not all, of the police investigations of sexual assaults may be expedited by the State providing more police resources. Some, but not all, delay in obtaining a hearing date might be avoided by appointing more judges. However, that resourcing comes at a cost to the budgets available for crime prevention, policing, health, social and community correction services and education. Moreover, even if enough judges were appointed, and courtrooms built, that it was not necessary to over-list criminal matters, some judges may remain idle and courtrooms empty because guilty pleas will, in the absence of an incentive to plead earlier, be entered on the day of trial. Even worse consequences ensue for a victim of a sexual assault if a defendant chooses to put the prosecution, and the victim, to proof because of the absence of any sentencing reduction. On this appeal, the Director described the impact of a trial on a child victim in this way:
In the office of which I am the head, and your Honours will see it in this court, the numbers of sex offences that routinely go to trial, a case like this where you get a plea, you cannot overlook the fact that a 10-year-old girl does not have to relive her experience, does not have to re-run the risk of being re-traumatised: conceded. You cannot overlook the fact that her very embarrassed mother who let her go to the playground does not have to give evidence of what she did and is spared that. You cannot set that at a nil value, speaking against myself for a moment. But, consistent with what fell from your Honour the Chief Justice, the human cost that the criminal justice system necessarily requires be paid where a matter goes to trial should never, where a matter does not go to trial, be underestimated; agreed. Does that mean 40%? Not necessarily. But it is always a weighty factor often overlooked, your Honour is quite right; a 10‑year‑old girl from a different cultural background, embarrassed, ashamed; her parents embarrassed and ashamed does not have to come to court.
In a 2016 report on ‘The Role of Victims of Crime in the Criminal Trial Process’, the Victorian Law Reform Commission stated that:[14]
[14] Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report, August 2016) at 99-100.
Respect in the court process
Victims’ experiences of delay
5.70 Unnecessary delay can have significant adverse effects on victims. Victims spend considerable time and emotional energy preparing for important court dates, such as committals, trials and sentencing. Some victims have mental illnesses which require management in the lead-up to hearings. When these hearings are delayed, especially at the last minute, it can be traumatising, distressing and frustrating.
5.71 Delays impede victims’ ability to recover and get on with their lives. They also have practical consequences. Victims may need to take time off work or study, and put in place arrangements for the care of children and businesses. The impact of delays may be more acute in regional Victoria, where adjournments may be for longer. Delays create uncertainty for victims; knowing that a case will be finalised within a certain timeframe can be as important as how long it takes to resolve.
…
5.75 The Commission is concerned with avoidable and unnecessary delay. Efforts to reduce avoidable and unnecessary delays are part of showing respect for victims. It indicates to victims that their time and input is valued and acknowledges their status in the criminal trial process. Accused persons and the community also benefit from reductions in delays and the more efficient administration of justice.
(Citations omitted)
The Parliament may, and has, legislated to regulate sentencing reductions for guilty pleas. The Attorney-General has recently proposed amendments to s 40(3) of the Sentencing Act. In formulating a statutory sentence reduction scheme, Parliament may balance the utilitarian benefits of early guilty pleas against the desirability of higher sentences as it sees fit. However, once it has done so it is the responsibility of the independent judiciary to interpret and apply those provisions. It does so by close analysis of, and adherence to, the text and structure of the legislation. It is to that to which I now turn.
The legislation
Section 40 of the Sentencing Act states:
40—Reduction of sentences for guilty pleas in other cases
(1)This section applies to a court sentencing a defendant for an offence other than an offence described in section 39(1).
(2)If—
(a) a defendant in any proceedings is pleading guilty to more than 1 offence; and
(b) this section applies to at least 1 of the offences,
this section will be taken to apply to all of the offences (despite section 39(1)).
(3)If a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b) more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant's committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c) during the period commencing on the day after the defendant's committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
Note—
See also section 110(3) of the Criminal Procedure Act 1921.
(d) during the period commencing immediately after the defendant is committed for trial for the relevant offence or offences and ending immediately after the first date fixed for the arraignment of the defendant in a superior court—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;
(e) during the period commencing immediately after the first date fixed for the arraignment of the defendant in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant's trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
…
(5)In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice;
(b) the stage in the proceedings for the offence at which the defendant indicated an intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c) whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged;
(d) in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e) if the defendant satisfies the court that the defendant could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—that fact;
(f) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
…
Construction and application of statutory sentencing
This Court has consistently emphasised the utilitarian purpose of s 10C of the CLSA and its successor, s 40 of the Sentencing Act, whilst recognising that those provisions allowed judges a discretion in the selection of the appropriate reduction.
In R v McPhee (McPhee) Nicholson J observed:[15]
[44] The utilitarian value to the administration of justice in this State of timely pleas was a driving consideration behind the enactment of the recent changes to the Sentencing Act which included s10C. In his second reading speech, the Attorney‑General stated:
The main objective of the Bill is to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial. It encourages offenders who are minded to plead guilty to do so in a timely way.
At present, it is clear that far too many offenders plead not guilty at committal, only to plead guilty later in the proceedings. The encouragement and expectation should be for those defendants who are likely to plead guilty in respect of major indictable offences, to do so, before or at committal and not at some later date.
…
[46] I add one more observation. In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.
[15] [2014] SASCFC 107 at [44], [46].
In R v Dwyer (Dwyer) Stanley J (with whom Kourakis CJ and Gray J agreed), in a defendant’s appeal against a sentence on the ground it was manifestly excessive, stated:[16]
[35] If the sentencing judge, exercising the discretion conferred by s 10C, is not to allow the maximum discount permitted by the provision for a guilty plea, it is incumbent upon the judge to provide adequate reasons for the departure from the maximum allowed. The efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea. None of this detracts from the power undoubtedly reposed in the sentencing judge to depart from the maximum where good reason exists but if that is to occur, the sentencing judge must explain why.
[16] (2015) 121 SASR 587 at [35].
In R v Nguyen, Nicholson J properly explained the passage in Dwyer as follows:[17]
[18] Whilst these various comments deal expressly with section 10C they are equally apposite to the cognate regime in section 10B. Counsel for the Director took issue with the use of the term “good reason” by the Court in Dwyer. It was submitted that this served to add words to the terms of sections 10B and 10C or, in effect, added a gloss to the requirements of the sections. It is true that the words “good reason” do not appear in the sections. However, I do not accept that the Court was imposing a specific test or requirement in the sense that section 38 (“good reason” before a sentence can be suspended) or section 58 (“proper grounds” for refraining from revoking a suspension of a sentence) imposes a test. The court in Dwyer was not adding a gloss to the requirements of sections 10B and 10C. Rather, it was using shorthand to refer to the uncontentious notion that the discretion to nominate a deduction which can be anything up to 30 percent (in this case) must be exercised judicially, that is, by honouring its parameters as set out in the sections and as constrained by House v the King principles.
[19] The giving of reasons is consistent with House v the King principles. However, there is a practical imperative in the context of the new regime. It is important that accused persons be encouraged to plead as early as possible and that they, and counsel advising, can be confident that an early plea ordinarily will be rewarded in accordance with the expectation engendered by the statute. There will be cases where a proper exercise of the discretion will result in something less than the maximum. However, the utility of the scheme will be seriously undermined if accused persons and their counsel do not understand the reasons why, in other cases and in their own case, the maximum might not have been and might not be, respectively, forthcoming. Given the greater emphasis under the statutory regime on the utility of an early plea as compared with the more amorphous remorse and contrition, reasons and an understanding of their role have become more important.
(Citation omitted)
[17] [2015] SASCFC 40 at [18]-[19].
In R v Palmer (Palmer) Stanley J (with whom Kourakis CJ and Doyle J agreed) affirmed the approach taken in Dwyer:[18]
[19] The appellant complains that the Judge failed to explain why he did not give the appellant the full 30 percent discount for his guilty plea permitted by s 10C of the Sentencing Act. In R v Niesen Nicholson and Lovell JJ said that it was preferable, and in many cases, highly desirable for a sentencing judge to nominate a starting point before making the reduction required by s 10C. The Judge did not disclose the starting point in this case. However, by a process of arithmetic extrapolation it is obvious that the notional starting point for the sentence imposed was six years. Accordingly, the ultimate head sentence of four years and three months represents a discount of something over 29 percent. Pursuant to s 10C of the Sentencing Act the appellant was entitled to a reduction in his sentence for his guilty plea of up to 30 percent. In the recent past this Court has emphasised that sentencing judges in utilising s 10C should adopt a utilitarian approach by giving the maximum discount available for a guilty plea pursuant to the provision unless good reason exists not to do so. In that event it is incumbent upon a sentencing judge to provide adequate reasons for not giving the maximum discount available. In this case, the Judge said that he would allow a discount of “almost 30 percent” for the plea of guilty. In these circumstances no further explanation was required. I am satisfied that the Judge intended to impose a sentence fixed in years and months. Had the Judge imposed a sentence of four years and two months that would have represented an impermissible discount of more than 30 percent. The practical effect of imposing a sentence of four years and three months was to give a discount of as close to 30 percent as could be achieved within the sentencing parameters adopted by the Judge. No further explanation was required. In this context I note that neither the terms of s 10C nor the authorities of McPhee, Dwyer and Nguyen require a sentencing judge to give the maximum discount prescribed by s 10C. There is no error disclosed.
(Citations omitted)
[18] [2016] SASCFC 34 at [19].
The passages in both Dwyer and Palmer must be understood in their context, being defence appeals against sentences in respect of which the sentencing remarks did not expressly give reasons for not giving the full, or close to the full, reduction allowed. In that context, there was some conflation with the need to give reasons explaining the reduction made, with a substantive rule that the maximum available reduction should be allowed unless there was good reason not to do so. A rule of the latter kind would bias the balancing process in a way not authorised by the text of the provision. However, the position was correctly stated in the concluding observation of the above cited passage from Palmer.
In R v Wakefield (Wakefield), Blue J explained how the approach taken by the authorities is founded in the text and structure of s 10C:[19]
[53] The evident purpose of the enactment of s 10C is to provide a series of graduated incentives to accused to make early guilty pleas. The section proceeds on the basis that, the earlier a guilty plea is entered, the greater the utilitarian benefit to the community. This purpose evident on the face of the section is confirmed by the Second Reading Speech in relation to the Bill that became the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) which introduced ss 10A to 10C into the Act.
[54] The purpose of the enactment of s 10C will in general be best achieved by allowing a discount at or close to the maximum permissible discount in a case in which the criteria specified by s 10C(4) do not indicate a lesser discount. The primary emphasis of s 10C is on the existence and timing of the guilty plea. This is evident from the structure of subs (2), the existence of subs (3) and the fact that each of the criteria identified in paras (b), (c), (d), (e) and (f) of s 10C(4) relate to the existence, timing and circumstances of the guilty plea. The evident reason why the legislature specified discount figures as maxima rather than as fixed discounts is that there will be specific reasons in individual cases why it is appropriate to apply a discount less than the figure mentioned in s 10C(2).
[55] In R v Daniele, Kourakis CJ said:
...The entry of a plea of guilty in the Magistrates Court on committal to a higher court is a strong indication of a real willingness to assist the administration of justice. There are many offenders who delay, even a seemingly inevitable guilty plea, in the hope of winning a forensic advantage whether by way of bail, a favourable agreed sentencing basis or even an accidental acquittal. Tactical delays needlessly add to trial lists, result in unnecessary directions hearings, and waste limited public funding. More importantly, groundless delays in the finalisation of criminal prosecutions cause unnecessary distress to the victims of crime and undermine public confidence in the effectiveness of the administration of the criminal law. It is important that there be a clear differentiation in the sentence reductions given to offenders who are willing to forego the chance of winning a fortuitous outcome by an early acceptance of responsibility for their offending and those who have no inclination at all to do so.
(Citations omitted)
[19] (2015) 121 SASR 569 at [53]-[54].
In R v Bridgland, Peek J affirmed that ‘full weight’ must be given to the utilitarian purpose of s 10C:[20]
[43] There is no doubt that full weight must be given to the utilitarian benefit of pleas of guilty as explained by this Court in decisions such as Wakefield, Dwyer, McPhee and Capaldo. Those advising defendants must be able to advise with some certainty that an early plea will lead to a substantial discount.
(Citations omitted)
[20] (2016) 258 A Crim R 149 at [43].
In R v Davey, a prosecution appeal against sentence, I referred to the above cited passage from the judgment of Nicholson J in McPhee and continued:[21]
[47] The burden of that observation is that the utilitarian purpose of the statute is a relatively weighty consideration which cannot be achieved unless there is a reasonable degree of certainty that a reduction approaching the maximum will be made. In particular, the statutory purpose would be substantially undermined unless, on pleading guilty in one period, a defendant could be reasonably confident that the reduction will be greater than the maximum reduction available for the subsequent statutory period.
[48] Of course the statutory discretion must be exercised on the facts of each case. However, in order to satisfy the statutory purpose, which is in turn dependent on generating a reasonable degree of certainty in the generality of cases, one would expect there to be significant countervailing circumstances before a defendant would be denied the substantial part of the available reduction.
[21] [2017] SASCFC 151 at [47]-[48].
The approach taken by the Judge in this case suggests that there remains some uncertainty about the application of s 40(3) of the Sentencing Act and some disquiet about the resulting sentences. It is necessary, therefore, to again explain that the decisions of this Court are founded on the text and structure of the statutory provisions.
First, it is important to understand that a sentencing reduction scheme necessarily departs from the common law by fixing a two-staged approach to sentencing reductions. It is impossible to make a reduction for a guilty plea without first having in mind the sentence which would have been imposed but for the guilty plea.
Secondly, the gradated statutory reductions are anchored to significant steps in criminal proceedings when a guilty plea will expedite proceedings, conserve resources, and save victims from at least some anxiety and uncertainty. The maximum reductions therefore must operate as both limits and yardsticks.
Thirdly, the strength of the prosecution case, a long established common law consideration, is not mandated as a consideration by s 40(5) of the Sentencing Act. As Blue J observed in Wakefield, the mandatory criteria (apart now from s 40(5)(a) of the Sentencing Act) all relate to the ‘existence, timing and circumstances of the guilty plea’. Its absence as a mandatory consideration reinforces the utilitarian policy manifested by the staged approach. Of course, a sentencing judge may, in his or her discretion, have regard to the strength of the prosecution case. If the prosecution case is a weak one, that consideration will add further reason to reduce the sentence by a percentage at, or approaching, the maximum allowed for the stage of the proceedings in which the guilty plea is entered. The strength of the prosecution case may be a particularly important consideration in the application of s 40(5)(a) of the Sentencing Act. If the prosecution case is an overwhelming one, that consideration may cause the sentencing judge to take something less than the ‘robust’ approach encouraged in McPhee and later authorities.
Nonetheless, because the mandatory considerations are primarily focussed on the stage of proceedings, the reduction, in the generality of matters, is likely to fall within the band bracketed by the maximum reduction allowed for that stage, and the maximum of the band applicable to the very next stage.
Fourthly, the exceptional nature of the power conferred by s 40(5)(a) should be noted. The power is exceptional because in circumstances of the kind to which it applies, the Judge will have fixed a relatively higher sentence to reflect the seriousness of the offence. Nonetheless, a reduction in the 30 to 40 percent bracket applied to a relatively long sentence will reduce it by many years.
The subparagraph therefore demands careful analysis. It prescribes the only mandatory relevant consideration which is not related to the existence, timing and circumstances in which the guilty plea is entered. It is a consideration which may affect both where within the applicable band the reduction should fall and whether or not the reduction should fall within the smaller reductions permitted for later guilty pleas.
The critical element of subparagraph (a) is the concept of a sentence which is so disproportionately low to the circumstances of the offence and the offender that it may affect public confidence in the administration of justice. That criterion must be considered by reference to reasonable and right-minded members of the public who understand the nature of the graduated reduction scheme which the legislation requires the Courts to apply, and the nature and purpose of the judicial discretion the legislation confers. The views of members of the public about the merits of s 40 of the Sentencing Act, and the size of the sentencing reductions it allows, are, of course, irrelevant because judges are bound to administer the law as it is, not as they think some members of the public might want it to be.
It follows, therefore, that s 40(5)(a) of the Sentencing Act applies to those cases in which, notwithstanding the higher starting point, demanded by the seriousness of the offence and the personal attributes of the defendant, the reduction which might otherwise have been supported by the other mandatory considerations, would affect public confidence in the exercise of the sentencing discretion. The seriousness of the particular offence and the particular defendant’s circumstances are the enlivening first step in that enquiry but cannot of themselves conclude it.
It is unnecessary to elaborate on the exercise of the discretion within an applicable band. However, once it is accepted that the bands provide a yardstick as well as a maximum, it is necessary to be clear about when a reduction, by something less than the applicable band, will be appropriate. A principled identification of the class of case which necessarily calls for a substantially smaller reduction than one which falls within the band is necessary. In Shannon, Wells J explained that a guilty plea may have very little weight in sentencing offenders who are ‘defiant of all authority’ or are ‘confirmed misanthrope[s] with a dangerous proclivity towards violence’.[22] The class so identified is one in which community protection is the paramount sentencing consideration. Just as the need for community protection could deny any material reduction for a guilty plea at common law, it may justify a substantial departure from the band otherwise applicable as prescribed by s 40 and, therefore, a reduction which falls within a later band otherwise applicable to a plea in a later stage of the proceedings. The important point to make is that only if the reduction is so great that it compromises the public purposes which sentencing must serve, and community protection in particular, will it affect public confidence in the administration of the criminal law.
[22] The Queen v Shannon (1979) 21 SASR 442 at 455 (Wells J).
Conclusion
The Judge erred in law. The Judge was not bound by s 40 of the Sentencing Act, nor by any decision of this Court, to allow the maximum reduction for the respondent’s early guilty plea. The preponderance of relevant considerations called for a reduction towards the lower end of the relevant bracket.
First, the offence was abhorrent, terrified the victim and caused enduring distress to her family. It shocked and alarmed the community and heightened anxiety about the welfare of its children. A sentence with strong elements of punishment, personal deterrence and community protection was called for. The maximum allowable reduction of 40 percent meant that in the order of four years would be subtracted from the notional starting sentence. A reduction of that magnitude undermined the purposes of general and specific deterrence and community protection which are important in offences of this kind. As a result, allowing the maximum reduction risked undermining public confidence in the administration of justice.
Secondly, the early guilty plea was preceded by strong denials of the offending and by the invention of completely false stories. The respondent stood by whilst his brother was falsely accused and arrested. His courtroom expressions of remorse came late.
Thirdly, the evidence against the respondent was overwhelming.
Fourthly, there was no consideration of any substance supporting the maximum reduction. Allowing the respondent the maximum reduction in those circumstances necessarily undermined public confidence in the administration of the criminal law. Permission to appeal must be granted to correct the erroneous view that allowing the maximum reduction in this grossly undeserving case was required by s 40 of the Sentencing Act and the authorities of this Court.
I would also grant the Director permission to appeal because the notional starting point was manifestly inadequate.
Even though the maximum penalty for each offence of indecent assault was 10 years, it must be remembered that in applying s 26, the effective maximum penalty was the accumulation of the maxima allowed for each of the individual offences.
The indecent assault committed on J while she was on the swing would, in itself, ordinarily warrant a substantial sentence of imprisonment. The indecent assaults committed inside the toilet cubicle were much more serious. They were abhorrent and degrading. J was no doubt terrified throughout the ordeal. The unlawful imprisonment was not long when counted in minutes, but J could not have known that at the time, and every minute counted whilst in the grip of fear is a long time. Given the fear and humiliation to which J was subjected, condign punishment was called for.
There was little by way of mitigation in the respondent’s antecedents. Even though this was the respondent’s first incursion into criminality, a high level of personal deterrence was also required in the respondent’s particular case because of the lack of any explanation for, or insight into, his very serious sexual offending. General deterrence demands relatively greater weight in sentencing offenders for predatory sexual offences on children in public places.
There was little room for concurrency between the sentences appropriate for the offending on the swing and the subsequent offences committed in the toilet despite their close temporal connection. A cumulative, or at least only partially concurrent sentence, was also necessary for the offence of unlawful imprisonment to reflect the taking of J from the park where she was in public view and her forced detention in the confined and unpleasant space of the toilet cubicle. A notional starting point of not less than 10 years imprisonment was necessary to properly reflect those considerations.
It is necessary, therefore, to resentence the respondent.
The respondent’s counsel submitted that the sentence should be ameliorated because of an assault committed on him in custody. On the appeal, the respondent filed an affidavit deposing to additional assaults, but save for one of them the respondent did not report them to the prison authorities. It is not necessary to determine whether or not the affidavit should be received, because the protection of prisoners from such assaults is the responsibility of prison authorities. In R v Partridge this Court rejected a similar submission:[23]
[47] The defendant submitted that, while in custody, he had been singled out and subjected to violence, and as a result, sustained a severe facial injury. He claimed to be under threat of further attack and has, thus far, served his sentence in protective custody. …
[48] The Judge referred to the attack upon the defendant and to the fact that the defendant is now in protective custody. The Judge noted that the defendant will find his incarceration more onerous and stressful than the average inmate. The Judge considered it was not appropriate to make a reduction on this basis. The Judge indicated that this was not a case where the illegal acts of another person should influence the sentence he would impose.
[49] There are circumstances in which courts will have regard to the hardship that a prisoner may suffer in serving his or her sentence. A prisoner who must be isolated because he has provided information to the authorities is regarded as being in a special category, and entitled to some reduction of sentence due to the hardship to be endured during imprisonment.[24] Generally, a court will make an allowance if harsher conditions arise from factors outside the prisoner's control, such as a medical condition. The fact that a prisoner may have difficulty in relating to other prisoners, and that as a consequence arrangements must be made for that prisoner to be kept separate from others, is not, in itself, a basis to reduce what would be an appropriate sentence.[25]
[50] Each case will depend upon its particular circumstances. Although the defendant may suffer some hardship because of the fear he has about his safety, it is a matter for the prison authorities to make the necessary arrangements to ensure that he is protected while in custody. Although it may have been appropriate to make some minor reduction when considering the overall sentence, in the present proceedings this consideration is de minimis. It cannot, in our view, be said that the fact that the Judge made no reduction would justify a reduction of the overall sentence.
(Citations omitted)
[23] (2008) 102 SASR 233 at [47]-[50] (Gray, Sulan and David JJ).
[24] R v Golding (1980) 24 SASR 161.
[25] R v Liddy (No 2) (2002) 84 SASR 231 at 260-266.
A letter from the Department for Correctional Services dated 24 August 2020 provided to this Court shows that the conditions in which the respondent is kept are not materially more severe than those of other prisoners.
The respondent’s submission is therefore rejected.
I would have imposed a sentence of ten years imprisonment but for the respondent’s guilty plea. I would allow a reduction of slightly under 31 percent for the respondent’s guilty plea. I acknowledge that the guilty plea was entered relatively quickly and that the Judge accepted that it demonstrated remorse and contrition. However, the prosecution case was a strong one and the guilty pleas were preceded by denials and his willingness to stand by when his brother was mistakenly arrested. However, in accordance with s 40(5)(a) of the Sentencing Act, the reduction must be moderated to ensure that the resulting sentence is proportionate to the seriousness of the offences. A reduction of just under 31 percent means that the respondent’s notional starting sentence will be slightly more than the maximum allowable reduction had he held back his guilty plea until his committal. The resulting head sentence is six years and 11 months. I am satisfied that the sentence of six years and 11 months adequately provides for community protection and deterrence within the confines of what must be a proportionate sentence which reflects the respondent’s early plea. I would fix a non‑parole period of five years. Both the head sentence and non‑parole period will commence on 18 April 2019.
I have considered whether or not, in all of the circumstances, a lesser reduction which falls within the band applicable to defendants who plead more than four weeks after the first court appearance but up to their committal should be made.
I would not do so for several reasons. First, this is not a case in which community protection is the paramount consideration which outweighs all other considerations. The Director did not contend for a reduction of 30 percent or less. Nor was there any suggestion that the Court should decline to fix a non‑parole period pursuant to s 47(5)(e) of the Sentencing Act. It is by fixing a relatively high non-parole period, or declining to fix one at all, that community protection can most effectively be ensured.
That there were no such submissions is not surprising. The Judge correctly rejected the submission that the prospect of re-offending was low; but that rejection does not mean the risk was high. This was Mr Bahrami’s first offence. His offences did not carry the additional serious risks which attend the abduction of children to remote locations. This was not a case in which the seriousness of the offence marginalised all other sentencing considerations including the utilitarian benefits of early closure for the family and the community.
I have had the advantage of reading the judgments of Livesey and Bleby JJ. The difference between us comes down to whether or not there should be a marginal incursion into the band applicable for pleas after four weeks and before committal. The difference will have a very small effect on Mr Bahrami’s non‑parole period, and almost no practical effect on Mr Bahrami’s release on parole because the head sentence is greater than five years. As a result, he cannot be released on parole unless the Parole Board exercises its discretion to release him after having regard, as it is required by law to do, to the safety of the community as a paramount consideration.[26] In any event, I would impose the same non‑parole period as I have foreshadowed, and as their Honours propose. A marginally smaller reduction for the guilty plea will only serve to increase by a month or so the period for which Mr Bahrami will be subject to parole.
[26] Correctional Services Act 1982 (SA), s 67(3a).
When Julius Caesar plunged his horse into the River Rubicon he proclaimed to his followers ‘The die is cast’.[27] He also warned them that by crossing ‘there will be troubles for all’. However, Caesar moved quickly to execute a clearly formulated strategy and succeeded not only in forestalling the law suits which were sure to follow the end of his governorship of Gaul, but in winning Rome itself.[28] I acknowledge the shared abhorrence of Mr Bahrami’s crimes. However, neither my emotional response nor resort to emphatic descriptors provide a principled approach to guide the correct conclusion in this, or other, cases. On the contrary, the uncertainty will vex many for years to come. The best I can do in formulating a general principle for the application of s 40(5)(a) of the Sentencing Act, which is anchored to accepted sentencing objectives, is by reference to those offences which demand preventative detention above all other sentencing considerations. That is not this case for the reasons I have given. And in any event, there is little to be gained in this case by crossing the Rubicon.
[27] Appian, The Civil Wars II, 295.
[28] Philip Freeman, Julius Caesar (Cromwell Press, 2008) ch 10.
Orders
I would order as follows:
1.The Director is granted permission to appeal.
2.Appeal allowed.
3.Set aside the sentence imposed in the District Court other than the intervention order.
4.Sentence the respondent to six years and 11 months’ imprisonment and fix a non-parole period of five years, to commence on 18 April 2019.
LIVESEY J:
Introduction
This is a Crown appeal against sentence following pleas of guilty to five offences relating to sexual assaults on a 10‑year-old girl on 3 April 2019.
The respondent pleaded guilty to four counts of aggravated indecent assault, the maximum penalty for each count being 10 years’ imprisonment, and one count of false imprisonment, a common law offence for which the penalty is at large.
For the reasons which follow, in my view there was an error of law made by the sentencing Judge and it is appropriate to grant the Crown permission to appeal, and to allow the appeal.
On resentence, I agree with the head sentence of 10 years proposed by the Chief Justice, for the reasons he gives. However, in the exercise of my discretion, the early guilty pleas warrant a reduction of thirty percent. I would fix a non‑parole period of five years.
The circumstances of the offending and sentence
The following is taken from the sentencing remarks:
You were arrested and incarcerated on 18 April 2019, and any sentence I impose should be backdated to that date. All offences relate to a single occasion on which you sexually assaulted a young girl (the complainant), who was 10 years of age on the day of your offending. She was not known to you.
The relevant facts are that in the late afternoon of 3 April 2019 she rode her bike towards Blair Athol Public Reserve. Her mother initially followed her on foot but returned to collect the complainant's sister, planning to drive back to the reserve. The complainant arrived at the playground to see you pushing two toddlers on swings. One was your daughter, the other your niece. The complainant also got on the swing and you approached her speaking to her in the Dari language. You told her to spread her legs and you pushed her on the swing by touching her genital area. The complainant told you that you could push her from behind, but you said that you wanted to push her from the front. This touching particularises count 1 on the information, the first count of indecent assault.
You asked the complainant where the bathrooms were and she told you. I consider this request was disingenuous. You are an adult; the toilet block was there and you had been to this park before. You then asked her to take you into the toilets, repeating your request when she did not respond. With the toddlers accompanying you both, you and the complainant approached the toilet block. Upon arrival, you grabbed the complainant’s hands and pulled her towards the toilets. She told you to stop and asked you where you were taking her. You told the complainant you had something to do with her and you took her and the toddlers inside the toilet block. Once inside, you took the complainant to a cubicle where you removed her pants and underwear. You took her to another cubicle where you closed the door. You may or may not have locked it, but in any case, the complainant was unable to force it open.
You positioned the complainant on the toilet so that she was facing away from you. You pushed her forward and you licked her anus. This conduct constitutes count 5 on the information.
You told her to turn around and stand up. You rubbed your penis up and down against the complainant’s genital area. This constitutes count 2 on the information. You then resumed licking her anus, relating again to count 5.
Your daughter and niece remained outside the cubicle but you saw them looking under the door. You told them not to look.
You put the complainant on the ground. You told her if she did not stop wiggling or moving you would hurt her. This conduct, combined with the barring of the door, makes out the charge of false imprisonment, constituting count 3 on the information.
While on the ground, the complainant felt something wet, believing you to have urinated or spat on her. She saw you pulling your pants up and saw something white on her genital area. She felt disgusting. I sentence you on the basis that you had ejaculated upon her. This conduct forms the basis of a further count of indecent assault, which constitutes count 4 on the information.
The complainant was crying and you told her not to cry. You used toilet paper to wipe your ejaculate from your genital area. You told her to get up and you washed her hands. As you did this, she elbowed you and ran from the toilet block.
CCTV footage reveals you were in the toilet block with the complainant for around eight minutes.
The complainant fled to her bike, which had been left beside the playground. She rode the bike home. Upon arrival, her mother observed her to be crying, shaking and extremely frightened. She was incoherent and was not able to communicate. She eventually disclosed what happened and she and her mother returned to the park to look for you but you had since left. With the assistance of a passer-by in the park, the complainant’s mother reported the matter to police.
A medical examination of the complainant revealed no external signs of injury. Forensic analysis located your DNA within sperm on the complainant’s genital area and on her underwear.
Police recovered CCTV footage showing a car identical to yours driving back and forth past the reserve earlier in the afternoon of 3 April. The reserve is only minutes from the complainant’s house. Approximately 10 minutes after the offending, your vehicle was seen travelling away from the area.
The sentencing Judge imposed a single penalty for all offences pursuant to s 26 of the Sentencing Act 2017 (SA) (Sentencing Act). But for the respondent’s early guilty pleas, he would have imposed a sentence of imprisonment of eight years. Because of the time at which the guilty pleas were entered, the respondent qualified for a reduction ‘by up to 40 percent’ pursuant to s 40(3)(a) of the Sentencing Act.
Before the sentencing Judge, counsel for the respondent submitted that the pleas represented a ‘clear demonstration of … remorse, contrition and [a] desire to spare [the] victim any further suffering’. Whilst the sentencing Judge largely accepted that submission, he correctly recognised that the weight to be given to remorse and contrition was undermined by the appellant’s refusal to come forward and confess, even after his brother had been arrested after preliminary DNA analysis, his initial false denials and assertion that the victim was lying, together with the absence of any explanation at all for his offending.
The prosecution submitted to the sentencing Judge that the ‘discounts’ available under s 40 were discretionary, they were ‘maxima and not fixed entitlements’. Submissions were made about s 40(5) of the Sentencing Act, which sets out the matters to which ‘a court must have regard … as may be relevant’, including, by s 40(5)(a):
[W]hether the reduction of the defendant’s sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice.
The error made on sentencing
The sentencing Judge correctly acknowledged that, if he was satisfied of the possibility that a 40 percent reduction ‘may affect public confidence in the administration of justice’, that would warrant a lesser reduction than 40 percent. However, the sentencing Judge did not make a lesser reduction. The sentencing Judge made the maximum reduction. As he explained:
It is arguable that, having regard to all of those submissions and in the case law to which I have been directed, were I to reduce your sentence by the full 40 per cent, the resulting figure might be so disproportionate to the seriousness of your offending that it may undermine public confidence in the manner contemplated by s 40(5)(a). It has been submitted that to give you the benefit of a maximum discount would result in a figure that is inappropriately low.
Notwithstanding these considerations, I consider that I remain bound by the approach set out in the early authorities of R v Dwyer, R v McPhee and R v Palmer that I continue to be required to adopt a utilitarian approach. Guilty persons are to be encouraged to plead guilty early and be confident of the discount they will receive. Legal advisors must be in a position to advise their clients in confidence. The application of the discount must not be seen to be in any sense capricious. Nonetheless, in the background of this matter and in light of the changed legislation, that position is, arguably unsatisfactory, due to the heinous nature of your crime.
In my opinion, these remarks reveal an error of law which enlivens the authority of this Court to intervene, subject of course to whether this is an appropriate case in which to give permission to appeal.[29]
[29] Markarian v The Queen (2005) 228 CLR 357, Kentwell v The Queen (2014) 252 CLR 601, R v Jongewaard (2009) 266 LSJS 283 and R v Kreutzer (2013) 118 SASR 211, 214-215 (Kourakis CJ).
The ‘utilitarian approach’
There is nothing in the decisions of R v Dwyer[30], R v McPhee[31] or R v Palmer[32] which ‘bind’ the sentencing court to make the maximum reduction, particularly where to do so results in an outcome which is unsatisfactory given the heinous nature of the crimes. There is nothing in these cases which requires the sentencing court to make, as part of any ‘utilitarian approach’, the maximum available reduction on a plea of guilty.
[30] R v Dwyer (2015) 121 SASR 587.
[31] R v McPhee [2014] SASC 107.
[32] R v Palmer [2016] SASCFC 23.
On the contrary, the relevant ‘utilitarian approach’ is to reduce the sentence of imprisonment that might otherwise have been imposed but for a plea of guilty, having regard to the various public policy considerations associated with the early resolution to criminal proceedings. As previous decisions of this Court show, those public policy considerations warrant a reduction in sentence regardless whether the plea evidences ‘genuine remorse, repentance or contrition [and] … notwithstanding that the motive … may be a desire to earn leniency’, [33] and even where there are apparent no ‘subjective criteria such as contrition’.[34] In R v Place, this Court preferred, without finally deciding, the view that a ‘sufficient rationale’ for a reduction ‘is found in the public interest based on ‘purely utilitarian’ considerations’.[35]
[33] R v Shannon (1979) 21 SASR 442, 459-460 (King CJ, Zelling, Wells and Mohr JJ, Cox J contra).
[34] R v Place (2002) 81 SASR 395, [78] (Doyle CJ, Prior, Lander and Martin JJ, with whom Gray J agreed).
[35] R v Place (2002) 81 SASR 395, [78] (Doyle CJ, Prior, Lander and Martin JJ, with whom Gray J agreed).
Having demonstrated that the identification of the reduction made for a plea of guilty did not represent a ‘two-stage’ approach, and was not inconsistent with the ‘instinctive synthesis’ approach favoured by the High Court, the Court then explained the benefits of identifying the extent of the reduction made for a plea of guilty:[50]
The authorities to which we have referred have identified compelling reasons in public policy why the extent of a reduction of sentence in recognition of a plea of guilty should be identified. Experience in this State and in New South Wales has demonstrated that the public policy objectives are not achieved unless the specific reduction is identified. Offenders and their legal advisers are able to identify in advance and with some confidence an approximate range of reduction that is likely to accompany a plea of guilty. After sentence has been imposed an offender is not left in any doubt as to whether benefit was given for a plea of guilty as full knowledge of the extent of the reduction and the reasons for it are given. The community and the appellate court are similarly well informed. The initial scepticism that accompanied the general recognition that a plea of guilty entitled an offender to a degree of mitigation has disappeared.
The system is fair and practical. It has worked well in practice for a number of years. In our opinion, it would be a retrograde step to discourage sentencers from continuing with the current practice. It would be very difficult to explain to offenders and the community why the court has departed from its present practice. An explanation for the departure based on describing the sentencing process as an instinctive synthesis would be greeted with scepticism.
For these reasons, in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty. In determining the extent of the reduction, the current practice of taking into account the timing of the plea, contrition, cooperation with and assistance to the authorities should continue. We emphasise that in taking into account any subjective considerations, sentencing courts should not ignore those subjective considerations to the extent that they are relevant to other aspects of the sentencing task.
[50] R v Place (2002) 81 SASR 395, [81]-[83] (Doyle CJ, Prior, Lander and Martin JJ, with whom Gray J agreed).
Accordingly, it can be seen that one purpose of the legislature when introducing s 10C of the since-repealed Sentencing Act, and now s 40(3) of the present Sentencing Act, was to endeavour to provide greater transparency to the reductions potentially available for early guilty pleas. I do not suggest that transparency was the only purpose. Encouraging early pleas of guilty and enabling defendants and their legal advisors to understand the potential consequences and benefits of an early plea of guilty were other, obvious purposes.
Nonetheless, transparency is reinforced by the prescribed manner of implementing sentencing reductions under s 41 of the Sentencing Act:
(1) For the purpose of applying section 37, 38, 39 or 40 in sentencing a defendant for a particular offence, the sentencing court must—
(a)first determine the sentence that the court would apply but for the existence of those provisions; and
(b)then determine the maximum percentage reduction that is applicable to the sentencing in accordance with those provisions; and
(c)then determine the percentage reduction that is, in the opinion of the court, appropriate in the particular case (being not more than the maximum percentage determined in accordance with paragraph (b)); and
(d)finally, apply the percentage reduction determined in accordance with paragraph (c) to the sentence determined in accordance with paragraph (a).
The exercise of the sentencing discretion
Whilst the steps stipulated by s 41 must be followed, that does not detract from the proposition that any reduction on account of a plea of guilty is applied as one element, no doubt important, of the overall exercise of a broad sentencing discretion. Indeed, that explains why the imposition of a sentence that results from the mechanical application of the ‘maximum reduction’ is potentially flawed.
One cannot constrain the broad discretion to be exercised as to the level of reduction applicable to a plea of guilty under the Sentencing Act by any suggested requirement to adopt the ‘utilitarian approach’. Though the ‘utilitarian effect’ of a plea is relevant, important and deserving of recognition in the exercise of the sentencing discretion, that often suggests a reduction rather than the extent of any reduction, still less whether a case remains within the range potentially applicable to the time when the plea was entered.
The essential error arising on this appeal is the failure to distinguish between the ‘utilitarian effect’ of a guilty plea and the extent of the reduction that should be made in all the circumstances of the case.
The entry of a plea at a particular time will qualify a defendant for a reduction within the range applicable to the time at which the plea is made but, as I have explained, whether or to what extent a reduction in that range should actually be made will turn upon more than simply the time at which the plea is entered. The entry of a guilty plea by a defendant at a particular time does not in any sense confer on that defendant anything in the nature of an ‘entitlement’ to the maximum reduction in that range.
The distinction to be drawn is between a matter to which a sentencing court must or should have regard, as distinct from the weight to be given to that matter in the overall exercise of the sentencing discretion. For example, the sentencing Judge in this case accepted that the pleas demonstrated remorse, contrition and a desire to spare the victim further suffering. These were all matters relevant to leniency, but they alone did not dictate the extent of the leniency. They certainly did not dictate the extent of the ‘reduction’ which the respondent must receive.
Likewise, it has long been recognised that considerations such as a lack of insight or a failure to explain offending, together with the strength of the prosecution case, are relevant matters when considering the question of leniency arising out of a plea of guilty. They remain relevant under s 40(5).
Whilst in no sense should sentencing remarks be viewed as if they were reasons for decision,[51] it is usually necessary for a sentencing court to address the key contentions made to it, even if only briefly. In this case, the prosecution properly gave emphasis to the strength of the case against the respondent when evaluating the leniency that his early guilty pleas should attract.
[51] R v Reiner (1974) 8 SASR 102, 114 (Wells J).
As the strength of the prosecution case was the subject of considered submissions, and relevant, it was erroneous, with respect, to simply ignore this consideration when determining the extent of any reduction to be made on account of the guilty pleas. Speaking generally, and to the extent that the strength of the prosecution case can be assessed by the sentencing court,[52] it is a matter which moderates the extent of the leniency which the plea of guilty might otherwise attract.[53]
[52] AB v The Queen (1999) 198 CLR 111, [102] (Kirby J), DL v The Queen (2018) 265 CLR 215.
[53] R v Shannon (1979) 21 SASR 442, 453 (King CJ): ‘(2) A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge’.
When one has regard to the circumstances of the offending, and the circumstances of the offender in this case, there appear to be the following important, inter-related, considerations:
1.The offending was shocking and brazen. The respondent gave no satisfactory explanation for his offending. The sentencing Judge correctly recognised that the opinion of the examining psychologist ought to be rejected because he ‘could not possibly be satisfied’ that the respondent was ‘no longer a significant risk to the community’. Associated with this apparent lack of insight, or perhaps refusal to explain, was the fact that the respondent did not ever explain why he travelled past the playground a number of times before the offending.
2.The prosecution case against the respondent was clear and, once his DNA had been analysed and identified, overwhelming. This and the CCTV footage demonstrated that he was in the park at the time of the offending, and proof of his guilt beyond reasonable doubt was almost inevitable. This consideration was not reflected in any of the remarks made by the sentencing Judge.
3.Whilst the sentencing Judge was prepared to accept that the pleas demonstrated remorse, contrition and a desire to spare the victim further suffering, these matters were counterbalanced by the absence of any apparent insight or explanation for the offending and by the strength of the prosecution case, as well as the respondent’s initial obstinance, even when his brother was under serious consideration by police.
It is of course important to remember that this is a case of offending on one day. There are cases where heinous offending has occurred over time and, indeed, across years. As well, the respondent’s personal circumstances were that he was a refugee, had been in work and had not previously been charged, arrested or convicted for any offending.
Nonetheless, the respondent is no longer a young man and the brazen and shocking nature of his offending, in a public playground frequented by children, required a very firm response from the sentencing court. Without any candid explanation for the offending, this was not a case where the appellant’s prospects for successful rehabilitation could be regarded as encouraging.
These were all matters relevant to the exercise of the sentencing discretion generally, including the weight to be given to, and the reduction warranted by, the early guilty pleas. It is not necessary for sentencing judges to address the proper reduction for an early plea as an element in the overall exercise of the sentencing discretion in other than brief terms.
Permission to appeal
In my opinion, this is a case in which this Court should clarify the applicable sentencing principles for the guidance of sentencing courts.[54]
[54] Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ), R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ), R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ, with whom Prior and Vanstone JJ relevantly agreed), R v CAB [2020] SASCFC 33, [8]-12], [85]‑[86] and R v Buttigieg [2020] SASCFC 38, [38]-[41].
The exercise of discretion by the sentencing Judge in this case betrays a misapprehension regarding the operation of s 40 of the Sentencing Act, to the effect that the maximum available reductions stipulated by s 40(3) must be applied because of a ‘utilitarian approach’, disengaged from the requirements of s 40(5) and the overall exercise of the sentencing discretion. That approach is wrong in law and unnecessarily constricts the exercise of the sentencing discretion.
I would grant the Crown permission to appeal and allow the appeal.
The fresh exercise of the sentencing discretion
I respectfully agree with the approach of the Chief Justice on resentence and, for the reasons he gives, start with a head sentence of 10 years for the five offences having allowed significant, but not complete, concurrency across the five sentences.
Though a reduction of up to 40 percent is available, I would not apply that reduction. Whilst the early pleas qualified the respondent for a very significant reduction, their utilitarian value and the various, favourable matters to which the sentencing Judge referred are counter-balanced by the strength of the prosecution case, the respondent’s initial refusal to candidly cooperate with police and his apparent inability or refusal to explain his wrongdoing, whether to his psychologist or to the Court through his counsel.
In my opinion, a 40 percent reduction would produce a sentence which is so disproportionate to the seriousness of the offending, and so inappropriate in the case of this particular defendant, that it would, or may, affect public confidence in the administration of justice, contrary to s 40(5)(a) of the Sentencing Act. Accordingly, that contemplated reduction ought not be made.
This is one of those cases where the seriousness of the offending and the circumstances of the offender do take the case out of the range otherwise suggested by the time at which the pleas were entered. Having said that, this is not the rare class of case where the utilitarian effect of the pleas is completely outweighed by the matters to which the court must have regard under s 40(5), particularly the ‘catch-all’ and s 40(5)(a). Exactly what reduction applies must remain a matter of discretion, informed by the requirements of s 40(5), and the matters to which I have already referred, particularly whether the reduction would, or may, affect public confidence in the administration of justice.
In my opinion, the reduction on account of the early guilty pleas should be no more than thirty percent. In the exercise of my discretion on resentence I would reduce the head sentence by thirty percent. That would result in a head sentence of seven years. I would fix a non-parole period of five years. These will commence on 18 April 2019, when the appellant was taken into custody.
Because the offending includes ‘serious sexual offences’, neither suspension nor an order for home detention is appropriate or available.
Orders
I would make the following orders:
1.The Director is granted permission to appeal.
2.The appeal is allowed.
3.The sentence imposed in the District Court, other than the intervention order, is set aside.
4.The respondent is sentenced to seven years’ imprisonment, and a non‑parole period of five years is fixed, to commence on 18 April 2019.
BLEBY J: I agree with the Chief Justice and Livesey J that the sentencing judge made an error of law, that this is an appropriate case to grant the Crown permission to appeal and to allow the appeal.
I agree with the Chief Justice that it is appropriate to impose a head sentence of 10 years on resentencing.
I have had the benefit of reading each of the Chief Justice’s and Livesey J’s judgments in draft. The difference between them as to the percentage reduction that each would give on account of the guilty plea arises in their respective applications of the broad sentencing discretion in s 41 of the Sentencing Act 2017 (SA) (Sentencing Act), specifically, s 41(1)(c). The percentage difference is small, amounting to merely one month’s difference in head sentence.
My own approach to this discretion, in circumstances of this division of opinion, is informed by all of the same considerations as have informed the approaches of the Chief Justice and Livesey J. However, should I reach the view independently that yet a different reduction was ‘appropriate’ within the meaning of s 41(1)(c), the resentencing exercise would be stymied. It would force the Court into a position where it was failing to discharge its obligation.
The percentage reduction that is ‘appropriate’ in the opinion of the Full Court is therefore a conclusion that must be reached by, at least, majority. Section 152 of the Criminal Procedure Act 1921 (SA) provides:
152 – Court to decide according to opinion of majority
The determination of any question before the Full Court under this Act will be according to the opinion of the majority of the members of the Court hearing the case.
In Perara-Cathcart v The Queen,[55] a majority of the High Court said of the predecessor to this section, the former s 349 of the Criminal Law Consolidation Act 1935 (SA):[56]
Because s 349 does apply in relation to an appeal against conviction or sentence, the determination which is required, in that case, is of “any question” before the Full Court on the appeal. To argue that, in the case of an appeal, “any question” before the Full Court is, always and only, the single question whether the appeal should or should not be allowed is to assume that the provisions which regulate appeals do not throw up more than one question for the purposes of s 349. Whether that assumption is justified depends on the language of those provisions, and of s 353 in particular. It is important to bear in mind that appeals are creatures of statute. One must therefore look to the statute in order to determine what question or questions are required to be answered, rather than proceed on a priori assumptions.
[55] (2017) 260 CLR 595.
[56] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [40] (Kiefel, Bell and Keane JJ); see also [131] (Nettle J).
The ‘appropriate’ reduction within the meaning of s 41(1)(c) is a question which this Court must necessarily determine. On appeal, it is a necessary condition of the ‘appropriate’ reduction that it be reached by at least a majority.
Ordinarily, it can be expected that a majority would reach their position in discussion, with joint or separate reasons reflecting the outcome of such discussion. In this case, by happenstance rather than design, I find myself writing separately, with the benefit of the considered positions of the other members of the Court. I raise these matters, given the particular obligations on the Court in s 40(5)(a), to ensure that the reasons for the ‘opinion of the court’ are sufficiently exposed.
It would ordinarily be unnecessary to take this course. However, s 40(5)(a) makes relevant, in this exercise, ‘whether the reduction of the defendant’s sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice’. In deciding whether I agree with the reduction preferred by the Chief Justice or Livesey J, therefore, this sub-section requires that I apply certain considerations to their respective preferred reductions, conscious that the Court must reach a majority opinion.
I am grateful for Livesey J’s analysis of s 40(5)(a) and in particular his observation that the reference to ‘the percentage contemplated’, in context, refers to the percentage which the sentencing court has in mind within the ‘band’ of percentage reductions suggested by the time at which the plea was entered.
To this end, I adopt the analysis by the Chief Justice as to the statutory purpose that is served by these ‘bands’, so described, that are referenced by the timing of the plea. I would associate myself in particular with his Honour’s comments in R v Davey[57] as to the statutory purpose of this scheme and his consequent observations in this case first, that the maximum reductions operate as both limits and yardsticks and second, that in some cases, s 40(5)(a) may require a reduction that falls within the bracket for a plea in a later stage of proceedings.
[57] [2017] SASCFC 151 at [47]-[48].
At the outset of my consideration, I agree, taking into account the matters identified by Livesey J, that this is not a case where it would be appropriate to apply the maximum reduction of 40 percent. In reaching that conclusion, I also take the view that a reduction of 40 percent would be so disproportionate to the seriousness of the offence that it would affect public confidence in the administration of justice. In my view, that consideration alone would be sufficient to warrant denial of the maximum reduction in this case, notwithstanding the utilitarian benefits of the early plea.
Next, having regard to the obligation of the Court to reach at least a majority opinion, it is necessary that I contemplate, for the purposes of s 40(5)(a), a reduction of approximately 31 percent, this being the considered percentage reduction arrived at by the Chief Justice. It is also necessary that I contemplate the reduction of 30 percent fixed upon by Livesey J. In both regards, it is necessary that I have regard to the matters required to be given consideration by s 40(5)(a).
I note the Chief Justice’s conclusion that a reduction of approximately 31 percent would adequately provide community protection and deterrence within the confines of a sentence that reflects the early pleas.
I have, with some difficulty, reached a different conclusion. The offending was extremely serious. As Livesey J has noted, the respondent either could not or would not explain the offending, nor his travelling past the playground numerous times beforehand. The prosecution case was strong indeed, yet as the Chief Justice has noted, prior to the plea the respondent allowed his brother to be falsely accused and arrested, made strong denials and invented false stories.
These considerations lead me to the conclusion that a reduction that remained within the notional ‘band’ created by s 40(3)(a) of the Sentencing Act would be so inappropriate in the case of this particular defendant that, at the very least, it may affect public confidence in the administration of justice.
This conclusion is, however, still only a consideration to be taken into account; it is not determinative on its own. However, in my view, in the present case it outweighs those matters of a primarily utilitarian value that would confine the reduction to the band within which, as the Chief Justice has observed, a defendant should ordinarily be reasonably confident that the reduction will fall.
To be clear, I do not apply the considerations that I have identified above to marginalise those primarily utilitarian matters of contra-indication. Rather, I have weighed them in the exercise of my discretion and reached a conclusion, having regard to the considerations that I am required to apply by s 40(5)(a). I remain fully cognisant of the purposive construction of the provisions that the Chief Justice has articulated previously, and with which I agree.
It is for that reason that I would not be inclined to move too far into the next ‘band’, being that contemplated by s 40(3)(b). It remains the case that the respondent did make an early plea. The young victim J has been spared an ordeal and she and her family have been given certainty.
I am effectively required to facilitate a majority position. I have reached the conclusion that in this case, a reduction that moves into the next ‘band’ would be less likely to affect public confidence in the administration of justice than a reduction that did not. Again, this is only a consideration to which I have had regard; I give full weight to the matters of contra-indication that are primarily of a utilitarian nature.
The significance of Caesar crossing the Rubicon, a stream, was that to do so was in breach of Roman law. The manifest legislative purpose of encouraging early pleas, such that a defendant should ordinarily be reasonably confident that the reduction will fall within the identifiable ‘band’, is an important factor to consider when exercising the discretion. To impose a reduction outside the band, on a considered exercise of the discretion, having given proper regard to the considerations mandated by statute, casts no die.
I agree that a reduction of 30 percent is appropriate. I would join in making the orders that Livesey J proposes.
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