R v BC
[2022] ACTCA 19
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v BC |
Citation: | [2022] ACTCA 19 |
Hearing Date: | 10 February 2022 |
DecisionDate: | 5 May 2022 |
Before: | Elkaim, Mossop and Bromwich JJ |
Decision: | 1. The Crown appeal be allowed. 2. The non-parole period of 18 months imposed on 11 June 2021 be set aside. 3. The respondent’s non-parole period be 3 years, commencing on 10 June 2021 and ending on 9 June 2024. |
Catchwords: | APPEAL – CRIMINAL LAW – Crown appeal against non-parole period imposed for three offences of sexual intercourse with a person under the age of 16 – one female child victim, who was the respondent’s cousin – where offences took place in 2010, but arrest and charges were made in 2018, with no suggestion of offending in the intervening period – whether the sentencing judge erred in relying heavily on the respondent’s prospects of rehabilitation based on the absence of reoffending in the period between the sexual intercourse offences in 2010 and him being arrested and charged in 2018 – whether the sentencing judge erred in giving significant weight to third party hardship in setting the non-parole period in light of the gravity of the offences – where the sentencing judge did not explain why the non-parole period bore an appropriate relationship to the total sentence, or otherwise explain how it was a proper exercise of the sentencing discretion – whether non‑parole period was manifestly inadequate |
Legislation Cited: | Crimes Act 1900 (ACT), ss 55(2), 61(1) |
Cases Cited: | Bugmy v The Queen (1990) 169 CLR 525 |
Parties: | The Queen ( Appellant) BC ( Respondent) |
Representation: | Counsel A Williamson ( Appellant) S McLaughlin (Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Appellant) Legal Aid ACT ( Respondent) | |
File Number: | ACTCA 32 of 2021 |
Decision under appeal: | Court: Supreme Court of the Australian Capital Territory Before: Loukas-Karlsson J Date of Decision: 11 June 2021 Case Title: R v BC (No 4) Citation: [2021] ACTSC 119 |
THE COURT
Introduction
This appeal relates to sentences imposed by a judge of the Court (sentencing judge) for four offences under the Crimes Act 1900 (ACT) all committed by the respondent against his first cousin. The respondent entered guilty pleas for each charge. The charges were:
(a) one count of an act of indecency with a person under 10 years of age, contrary to s 61(1), with a maximum penalty 12 months imprisonment, committed in October 2004 (first offence); and
(b) three counts of sexual intercourse with a person under the age of 16, contrary to s 55(2), each with a maximum penalty of 14 years imprisonment, committed in February, June and July 2010 (second, third and fourth offence).
At the time of the act of indecency offence the victim was 9 years of age and the respondent was 15 years of age.
At the times of the three sexual intercourse offences, the victim was 14 and then 15 years of age, and the respondent was 20 years of age. The third offence resulted in the victim becoming pregnant, with the police obtaining DNA evidence from the termination for use in the event that the victim was willing to overcome her fears and identify the offender. That did not happen for some six years.
Given the overwhelming Crown case for the third offence in light of the unanswerable pregnancy evidence, the respondent pleaded guilty to that offence in the Magistrate’s Court on 6 August 2019 and was committed for sentence. He pleaded not guilty to all other offences then before the Magistrate’s Court and was committed for trial. The respondent ultimately pleaded guilty to all four offences for which he was sentenced, following charge negotiations.
The guilty pleas to the first, second and fourth offences were entered in the Supreme Court on 2 February 2021, on the date that the victim was due to give evidence at a pre-trial evidence hearing, and ahead of the trial listed to commence on 22 March 2021. These guilty pleas only took place after evidence of the pregnancy arising from the third offence was found by this Court on appeal to be admissible tendency evidence on the second and fourth offences, rendering the case for those two offences also substantially unanswerable. The guilty pleas meant that the victim did not need to give evidence as scheduled at either the pre-trial hearing or any trial.
The sentence hearing took place on 27 April 2021 before the sentencing judge. On 11 June 2021, the respondent was sentenced by her Honour as follows:
(a) A two-year good behaviour order for the act of indecency offences. There is no appeal against that sentence.
(b) An aggregate head sentence of four years and six months’ imprisonment arrived at by way of three partially concurrent sentences, with a single non‑parole period of 18 months for the three sexual intercourse offences. The Crown appeals only against the non-parole period as being manifestly inadequate, both by reason of its duration and by reason of its relationship to the overall head sentence.
For the reasons that follow, the appeal must be allowed, because the non-parole period that was imposed was manifestly inadequate. The sentencing reasons are infected by errors in relation to, inter alia, the objective seriousness of the offending; inadequate attention being given to the need for general deterrence and denunciation; and, undue weight being given both to rehabilitation considerations and the hardship to third parties.
Although the Crown did not appeal against the head sentences either individually or overall, in considering the whole of the circumstances that have given rise to the sentence as set out in the sentencing judge’s reasons, the head sentences provide no useful yardstick against which to examine any future proposed sentence: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]-[55].
Crown sentence appeals
The principles applying to Crown sentence appeals are well-established, but warrant reproduction. The principles were conveniently summarised by this Court in R v Nicholas; R v Palmer [2019] ACTCA 36 (Murrell CJ, Mossop and Rangiah JJ) (Nicholas) as follows:
66. A claim that a sentencing judge has erred in the exercise of their discretion calls into question a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665, and in this Court see, for example, Henry v The Queen [2019] ACTCA 5. An appellate court must respect the wide discretion of the sentencing judge concerning an appropriate sentence.
67. The principles applicable to any appeal alleging that a sentence is manifestly wrong were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.
· The relevant test is whether the sentence is unreasonable or plainly unjust. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice.
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles.
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence.
(citations omitted)
68. In the case of Crown appeals alleging manifest inadequacy of a sentence, the correct approach was recently summarised in R v Rappel [2019] ACTCA 11 at [10], where the Court stated:
As this Court said in R v Lee [2017] ACTCA 30 at [53], a Crown appeal against sentence is a “unique species of appeal” … Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke (1996) 2 VR 520 at 522:
(a)to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(b)to enable the Court to establish and maintain adequate standards of punishment;
(c)to ensure uniformity in sentencing, so far as the subject matter permits.
10. In R v Duffy [2014] ACTCA 53; 297 FLR 359 (Murrell CJ, Refshauge and Ross JJ) (Duffy) this Court said at [60]:
It will be very difficult for the Crown to succeed on an appeal where it relies solely on “manifest inadequacy” and seeks to infer an error of principle from the length and/or nature of the sentence. Whereas offender appeals are concerned with the correction of error in particular cases, prosecution appeals are brought to establish matters of principle. In prosecution appeals, the focus must remain firmly on the question of whether there has been an error of principle.
11. The paragraphs from Nicholas and from Duffy reproduced above were quoted with approval in R v UG [2020] ACTCA 8 (Murrell CJ, Burns and Mossop JJ) at [41] and [42] respectively. In The Queen v Avery [2018] ACTCA 57 (Murrell CJ, Mossop J, Robinson AJ), this Court gave as one of the occasions for bringing a Crown appeal being “to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that public confidence in the administration of justice can be maintained”. While manifest inadequacy is a dominant consideration in this case, coupled with the issue of the application of non-parole period principles summarised below, the reasons below also seek to explain the erroneous approach in principle that led to that error.
Non-parole periods
12. In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), a Crown sentence appeal, one of the grounds of appeal concerned a very low non-parole period. Murrell CJ, Rangiah J and Walmsley AJ provided a comprehensive but concise statement of the principles pertaining to the fixing of a non-parole period in the context of the other considerations required by the Crimes (Sentencing) Act2005 (ACT). That summary cannot easily be improved upon. Their Honours said:
92. A sentence of any type is to be imposed for one or more of the purposes set out in s 7 of the Sentencing Act (adequate punishment, general and personal deterrence, community protection, rehabilitation, accountability, denunciation and recognition of harm to the victim and the community).
93. A sentence of imprisonment is to be imposed only “if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate”: Sentencing Act s 10(2). A sentence of imprisonment “must be served by full-time detention at a correctional centre”, unless the sentencing court “orders otherwise”, e.g. by making an intensive correction order or a suspended sentence order: s 10(3).
94. Section 65 of the Sentencing Act requires a sentencing court to set a non-parole period when imposing a total term of imprisonment of one year or longer (disregarding any period for which the sentence is suspended). At the conclusion of the non-parole period, the offender is eligible to be released to parole and to serve the balance of the sentence in the community.
95. The Sentencing Act says nothing about the length of a non-parole period, its purpose or its relationship to the total head sentence, although s 65(4) provides:
However, the court may decline to set a non-parole period in sentencing the offender if the court considers that it would be inappropriate to set a non-parole period having regard to the nature of the offence or offences and the offender’s antecedents.
Section 65(4) may be invoked, for example, in an extreme case where an offender has committed a very serious personal violence offence and has a history of such behaviour. In that case, the sentencing court may conclude that the absence of rehabilitation prospects and the continuing risk of serious harm to the community warrant the withholding of a non-parole period.
96. In Power v The Queen [1974] HCA 26; 131 CLR 623 at 629 the plurality (Barwick CJ, Menzies, Stephen and Mason JJ) said that the purpose of providing for parole in the legislation thereunder consideration was:
... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
That approach was applied by this Court in Millard v The Queen [2016] ACTCA 14.
97. There must be an “appropriate relationship” between a head sentence and the associated non-parole period. In Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610, Gibbs CJ (Wilson J agreeing) said:
No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.
98. In Inge v The Queen [1999] HCA 55; 199 CLR 295 at [57], Kirby J said:
The Court’s approach in Deakin constituted a rejection of the view that all the judge was doing was to fix a minimum term after which it would be proper to transfer the evaluation of the prisoner’s prospects of rehabilitation to agencies of the Executive Government.
At [59] his Honour said:
... the non-parole period must necessarily bear a relationship to the sentence of imprisonment which is imposed ... It represents that portion of the sentence which, in the opinion of the court imposing the sentence, must actually be served in custody by the prisoner. In the ordinary case, where a head sentence comprises a determinate period in prison, the non-parole period will constitute a substantial part of that sentence ... The achievement of a proper proportionality between the head sentence and the non-parole period is a judicial obligation. (citations omitted)
99. Recently, in Afiouny v The Queen [2017] NSWCCA 23 at [46]–[47], Hoeben CJ at CL (Latham and Price JJ agreeing) emphasised that the deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. Further, the need for rehabilitation had to be balanced against the overarching requirement (in that case, found in s 16A(1) of the Crimes Act 1914) that the sentence be of a severity appropriate in all the circumstances of the offence.
100.In Taylor v The Queen [2014] ACTCA 9 at [19], this Court summarised the proper approach to fixing a non-parole period as follows:
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakinv The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmyv The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2.An offender’s prospects of rehabilitation are important to the fixing of the non‑parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 ‑532.
3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Ingev The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non‑parole periods.
101.In this jurisdiction, the considerations that are relevant to fixing a non-parole period are to be found in ss 7 and 33 of the Sentencing Act and understood in the context of the above cases.
102.In fixing a non-parole period, it is generally important to focus on the offender’s prospects of rehabilitation, although other s 7 sentencing purposes should not be forgotten. In the case of white collar offences, the fixing of a very low non-parole period may undermine the sentencing purpose of general deterrence, which is often important in such cases.
103.Ordinarily, a non-parole period should constitute a substantial part of the total sentence. In some cases, a non-parole period of less than 50 per cent of the total sentence may bear an appropriate relationship to the total sentence. However, when an unusually low non-parole period is set, the sentencing court should explain why, in the particular case, it considers that the low non-parole period bears an “appropriate relationship” to the total sentence and is therefore a proper exercise of the sentencing discretion.
Before the sentencing judge
13. The key aspects of the agreed statement of facts were summarised by the sentencing judge. No issue has been taken with the accuracy or adequacy of that summary. It is better reproduced than summarised further because of the importance of some of the details of the offending acknowledged by her Honour, including in particular the knowledge or awareness that the respondent plainly had about the distress he had caused in the past, and was continuing to cause to the victim. These were far from spur of the moment offences and it is impossible to regard them as being out of character. Rather, these were crimes of contemplation over a prolonged period of time.
14. The sentencing judge’s summary of the facts was as follows:
5.The victim, LC, and the offender are cousins. Following the separation of her parents in 1997, the victim resided with her mother and her younger brother. The victim and her brother would regularly spend weekends with their father and their grandparents elsewhere in Canberra.
6.During these weekend visits, the victim would see the offender at addresses in Fisher, their grandparents' home, and the home of the victim's uncle and an address in Curtin of the offender's father. From 2002, the offender began to engage in sexualised conduct towards the victim. The victim did not tell anybody about this conduct, as she was confused and was unsure what was happening and why it was happening.
Incident One (CH19/482)
7.On 2 October 2004, the offender, then aged 15 years, the victim, then aged 9 years, and the offender's infant niece had been left alone in the loungeroom of one of the addresses in Curtin. The offender placed his niece on a couch and sat on the other couch. The offender asked the victim to come over to him, which the victim did. The offender told the victim to lay back on the couch, which the victim did. The offender then removed his pants and pulled the victim's pants down to her ankles. The offender climbed on top of the victim and began rubbing his penis against her vaginal area. The offender's penis became erect during the course of him rubbing against the victim. At some stage, the offender's niece began to cry, which caused the offender to cease rubbing against the victim. The offender climbed off the victim, pulled his pants back up and picked up his niece.
8.The victim did not tell anybody about this incident. The sexualised behaviour, by this stage, had become "normalised" to her, according to the agreed facts.
2005 – 2009
9.Between 2005 and the end of 2009, the victim did not see the offender as she was not regularly seeing her father, and as there was conflict between her father and her uncle.
10.Towards the end of 2009, the victim saw the offender again for the first time, when the offender was visiting their grandparents’ home. The victim was then 14 years of age and the offender was 20 years of age. The victim and the offender were alone in the kitchen and they had a conversation during which the offender apologised for his behaviour towards the victim, said that he regretted what he used to do to the victim and stated that he believed that she hated him. The victim asked the offender why he used to do those things to her, but the offender was unable to answer.
11.Subsequently to this, the victim saw the offender a few more times at their grandparents' home for the remainder of 2009.
Incident Two (CC19/13021)
12.In February 2010, both the victim, then aged 14 years, and the offender, then aged 20 years, were staying overnight at the Curtin address. The victim had gone to bed and was alone in the bedroom. The offender opened the bedroom, approached the bed, and climbed on top of the victim, holding her hands down and above her head such that the victim could not get up.
13.The offender pulled the victim's pyjama bottom and underwear down and pushed his erect penis inside the victim's vagina. He did not use a condom. The offender thrust into the victim for several minutes, and then pulled away from the victim. The offender then left the bedroom. The victim had never had sexual intercourse before this incident. She found the intercourse to be painful, and she bled as a result of it. The incident left the victim too scared to tell anybody about what had happened to her.
Incident Three (CC19/6404)
14.In June 2010, the victim, then aged 15 years, and the offender, then aged 20 years, were again at their grandparents' address in Fisher. In the early evening the offender and victim went out for a drive so that they could talk. This was at the request of the offender.
15.The offender drove to a mountain near Woden and stopped the car by the side of the road. The offender told the victim to get out of the car with him. The victim got out of the car. The victim felt scared and worried as she did not know where she was or what was going to happen.
16.The offender told the victim to walk with him over to a big rock near to the roadside. As they approached the rock, the offender grabbed the victim and pulled her over towards the rock. The offender pushed the victim against the rock, and then pulled the victim's pants down to her ankles. The offender lowered his own pants slightly and pushed his penis into her vagina. The victim was in pain but froze and did not know what to do. The offender did not use a condom and ejaculated inside the victim. The offender then drove the victim back to the Fisher address and then drove away. The victim felt scared and did not tell anybody about what had happened to her. This incident of sexual intercourse resulted in conception.
Incident Four (CC19/6405)
17.In July 2010, the victim, then aged 15 years, and the offender, then aged 21 years, were staying overnight at the Fisher address. Some of their family members were directly outside the victim’s bedroom window. The offender approached the bed and pulled the sheet and blanket off the victim. He removed his pants and climbed on top of the victim. The offender removed the victim’s pants and inserted his penis into the victim’s vagina. He did not use a condom. While he was thrusting, the offender placed his hand over the victim’s mouth due to the people standing outside the bedroom window. The offender left the bedroom. The victim did not tell anybody about what had happened to her.
Pregnancy and Aftermath
18.The victim missed her menstrual cycles. She believed she was pregnant to the offender. On 6 September 2010, the victim disclosed to her mother that she had been raped and that she was pregnant. Later that day, the victim was examined by doctors at the Forensic and Medical Sexual Assault Care Unit. Tests confirmed that the victim was pregnant. The victim was shocked and scared.
19.The victim spoke to the Police the next day and made up a story that she had been raped by a stranger. She then indicated to the Police that she did not wish for the investigation to continue. The victim was too scared to disclose the name of the offender.
20.On 16 September 2010, the victim had an abortion. The product of conception was analysed and was estimated to be about 13 weeks of age. A DNA sample was taken and was seized and stored by Police.
21.The victim stopped visiting her father so that she would not have to see the offender again. However, at some stage, the victim did see the offender and told him that she had been pregnant to him. The offender told her: "Sorry".
First Complaint
22.In 2012 the victim disclosed to her brother that it had been the offender who had sexual intercourse with her. The victim's brother did not tell anybody about this disclosure until 8 September 2018. The victim's brother told their mother that it had been the offender who had sexual intercourse with the victim. A few days later, their mother spoke to the victim, who agreed that it was time to come forward to speak with Police. The victim was concerned to protect the offender's nieces and nephews.
Second Police Investigation
23.On 25 September 2018 the victim, then aged 23 years, attended Belconnen Police Station and asked for the investigation to be reactivated, and participated in an evidence-in-chief interview several days later.
24.On 22 October 2018, the offender was arrested by Police. Police obtained a buccal swab from the offender. Subsequently, testing was conducted on the DNA sample which had been taken from the product of conception. On 5 December 2018, forensic analysis confirmed that the offender was the biological father of the product of conception.
15. It is plain from the above that, quite apart from the victim not being able as a matter of law to consent to sexual intercourse by reason of her age, there was no basis for the respondent to have formed any reasonable view that she in any way agreed to this conduct being imposed upon her, or to be other than fully aware that she did not want this to take place. Consent not being possible means that any measure of acquiescence cannot in any way mitigate the offence, but any measure of objection, resistance or even unwillingness may be, and in this case was, a serious aggravating circumstance: see R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 (Summerfield), especially at [59]-[60], a decision considered in other respects by the sentencing judge.
16. Other potential aggravating circumstances identified by the Crown in Summerfield and accepted by this Court in that case at [27] include:
offences having been committed while at conditional liberty, serial offending, knowledge of the age of the victims from the very outset (rather than developing a fondness and later finding out their age) and the fact that the sexual acts took place without a condom, raising health and pregnancy risks as a serious issue.
17. Three of these four features are in this case. This was serial offending of a planned and predatory nature. The respondent must have known full well the age of the victim from the very outset. While not specifically addressed in the agreed facts, the victim became pregnant as a result of the sexual intercourse which is the subject of the third offence, leading to the strong inference that a condom was not used. The agreed facts do specifically say that a condom was not used on the occasion of the other two sexual intercourse offences.
18. The sentencing judge accepted the submissions of the Crown as to the objective seriousness of all four offences and the submissions for the respondent as to the first offence being subsumed by the later three offences, and the third offence being the most serious. It was common ground that imprisonment for the three sexual intercourse offences was unavoidable. It followed that the sole issue for ultimate determination was the appropriate duration of the individual head sentences, the overall head sentence and the non-parole period. In particular, her Honour accepted the Crown’s characterisation of the global features of the offending, and of the second, third and fourth offences individually, as follows (transcript citations omitted):
33.The following features were submitted to be global to all four charged offences:
(a)The offending constituted a breach of trust. It was submitted that the victim "looked up" to the offender and was entitled to have trust in her older cousin.
(b)The offender's knowledge of the victim's personal circumstances. It was submitted that the offender would have been aware of the victim's vulnerability, by virtue of her age.
(c)The age differential between the victim and the offender. It was submitted that the age differential between the victim and the offender, being 6 years, was considerable given the differing life stages which the victim and offender were at during the time of the offending. It was submitted that at the time of the first offence in 2004, the victim was 9 years of age whereas the offender was an adolescent in High School. In 2010 the victim was a teenager at school, and the offender was an adult, 21 years of age.
(d)It was submitted that the offender clearly engaged in the offending conduct for the purpose of his own sexual gratification.
(e)The offender's degree of responsibility and moral culpability for the commission of the offending. Counsel submitted that the offender was solely responsible for the offending conduct. It was submitted that the offender was cognisant of the wrongfulness of his actions, as evidenced by the timing of the offending, and his apology for his conduct in 2009, prior to recommencing offending in 2010.
(f)While not increasing the objective seriousness of the charged offences, the repetition of the offences deprives the offender of any leniency which may have been associated with an isolated incident.
Incident One – Act of Indecency on a young person under 10 years of age
34.In addition to the global features, the following features were submitted to be relevant to the assessment of the objective seriousness of this offence:
(a)The character of the offence and the degree of physical conduct. It was submitted that this was one of the most serious examples of this offence, given the width of potential conduct which could constitute an act of indecency.
(b)The age of the victim. It was submitted that this offence covers a range of ages from zero to ten years, and that generally speaking a younger victim equates to a more serious offence. The victim was nine years of age when this offence was committed.
(c)Lack of verbal or physical resistance. It was submitted that the victim's lack of verbal or physical opposition to the sexual activity was not a mitigating fact. It was submitted to be irrelevant unless used to rebut any suggestion of an element of aggravation: R v Summerfield [2018] ACTCA 20 at [54]-[59].
Incident Two – Sexual Intercourse with Young Person under 16 years of age
35.In addition to the global features, the following features were submitted to be relevant to the assessment of the objective seriousness of this offence:
(a)The age of the victim. It was submitted that the victim was 14 years of age at the time of this offending.
(b)The circumstances of the offending. It was submitted that this was brazen offending, as the victim and offender's grandparents were present in the home.
(c)The victim's resistance and the offender's use of force. It was submitted that the offence was aggravated by the offender's use of force and physical restraint of the victim.
(d)The nature of the sexual intercourse. It was submitted that the unprotected nature of the intercourse was an aggravating feature of the offending. It was submitted to be a significant consideration that this abuse was the victim’s first sexual experience.
(e)The duration of the sexual intercourse. The duration of this offending, being several minutes, was not insignificant.
(f)Injury, loss or damage from the offending. The physical harm, and the pain and fear felt by the victim were relevant to the assessment of the objective seriousness of this offending.
Incident Three – Sexual Intercourse with Young Person under 16 years of age
36.In addition to the global features, the following features were submitted to be relevant to the assessment of the objective seriousness of this offence:
(a)The age of the victim. It was submitted that the victim was 15 years of age at the time of this offending.
(b)The circumstances of the offending. It was submitted that the offender engaged in callous and predatory behaviour in the course of this offending, by isolating the victim and taking her to an outdoor location at night. It was submitted that this would have undoubtedly been a terrifying experience for the victim.
(c)The victim’s resistance and the offender’s use of force. It was submitted that the use of physical force by the offender was relevant to the assessment of the objective seriousness of this offending.
(d)The nature of the sexual intercourse. It was submitted that the unprotected nature of the intercourse was an aggravating feature of this offending, given that it carried the risk of sexually transmitted disease and pregnancy, the latter of which was ultimately borne out.
(e)Injury, loss, or damage from the offending. It was submitted that the victim felt pain and fear during the course of the offending. Additionally, it was submitted that the resulting pregnancy and associated termination of the pregnancy as an adolescent was a significantly aggravating feature of this offending.
Incident Four – Sexual Intercourse with Young Person under 16 years of age
37.In addition to the global features, the following features were submitted to be relevant to the assessment of the objective seriousness of this offence:
(a)The age of the victim. The victim was 15 years of age at the time of the offending.
(b)The nature of the sexual intercourse. It was submitted that this offending was constituted by two separate acts, being digital-vaginal and penile vaginal penetration with ejaculation. It was submitted that the latter penetration was aggravated by the absence of protection.
(c)The circumstances of the offending. It was submitted that this offending was brazen, given that the victim and offender’s grandparents were in the home, and other family members were directly outside of the bedroom window at the time of the offending.
(d)The offender’s use of force. It was submitted that the offender placing his hand over the mouth of the victim to stifle any noise was relevant to the assessment of the objective seriousness of this offending.
(e)The duration of the sexual intercourse. It was submitted that the length of the offending was not insignificant, given that the penile-vaginal intercourse component lasted for five minutes.
(f)Injury, loss or damage from the offending. It was submitted that the victim experienced fear and pain during the course of the offending.
19. The sentencing judge addressed the respondent’s subjective circumstances as follows:
43.The offender is 31 years of age and was born in the ACT. He described his upbringing in negative terms, advising that his parents separated when he was an infant and that his mother’s subsequent partners and had been violent towards her, himself, and his siblings. The offender recalled relocating often, stating that the longest he remained at one school was 12 months causing disruption to his childhood.
44.The offender reported that he was not close with his parents, put reported positive relationships with his brother, sisters, and grandmother who reside in the ACT.
45.The offender has two children from a previous relationship and reported positive relationships with his children and his former partner. The offender is currently in a long-term relationship and the couple are expecting their first child. The offender advised that his family are aware of the current offences and are supportive of him. The offender has stable accommodation in the ACT and his children regularly visit and stay overnight.
46.The offender completed his Year 12 education and has maintained a consistent employment history in various industries since leaving school. He intends to continue working in his current area of employment.
47.The offender denied a history of problematic alcohol consumption. The offender disclosed having experimented with cocaine and cannabis on a few occasions however he stated that he has abstained from illicit substance use since the last occasion, some time ago.
48.The offender reported intermitted engagement with a psychologist over the past 10 years to assist with management of symptoms relating to anxiety and depression.
49.The offender was assessed as a low risk of general reoffending, and average risk of sexual reoffending, with primary risk factors being illicit substance use and mental health concerns. The offender's family support was assessed as a protective factor. Counsel for the offender submitted that the fact that the offender has refrained from any similar offending since 2010 speaks well for the offender in terms of rehabilitation. This submission is properly founded on the evidence.
50.The offender will be referred for assessment for his suitability for the New Beginnings and Pathfinder sex offender treatment programs.
20. The respondent did not give evidence at his sentencing hearing but wrote a letter expressing remorse. The sentencing judge noted authority to the effect that such statements unsupported by sworn evidence should be approached with caution, but noted the Crown concession as to the existence of remorse and took it into account.
21. The sentencing judge had before her 18 references, from which her Honour extracted the key salient points, being the asserted absence of any need for any custodial sentence, and the suggestion that the offending was out of character, neither of which was accepted by the sentencing judge, as was appropriate in all the circumstances.
22. The sentencing judge summarised a key submission advanced on behalf of the respondent, being the hardship and effect on his family and dependents, especially in relation to the impending birth of his first child. It may be observed that this particular hardship was never going to be able to be avoided. Her Honour spent a great deal of time on this topic, and may have thought that this should be a dominant consideration, perhaps unduly contributing to the result.
23. The sentencing judge also considered a number of comparative sentences raised in the Crown’s further written submissions on those cases. Her Honour also considered appellate authority dealing with statutory and other relevant considerations, including the objects of sentencing, the role of the maximum penalty, rehabilitation, specific and general deterrence and the fixing of non-parole periods, in some detail. However, the application of any of those principles or any of the cases cited and quoted to the sentence for the second, third and fourth offences, and in arriving at the appropriate sentence was relatively sparse. This is evident in the following reproduced paragraphs:
139.The Court must sentence the offender to full-time imprisonment. This is after a significant period of time, of almost a decade, during which rehabilitation has occurred. The law, nevertheless, in this case, compels that result. These are serious offences, that must be deterred.
140.It was accepted by the prosecution that the demonstrated progress towards rehabilitation during the intervening period should be given considerable significance on the relevant authorities, and I will do so, in particular in relation to the non-parole period.
141.All the matters which are relevant to the setting of the head sentence are relevant to the setting of the non-parole period, although they will have different weight: Bugmy at 531. In determining the non-parole period, regard must be had to the rehabilitative prospects of the offender: R v Lian (1990) 47 A Crim R 444.
142.The non-parole period is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]: It is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the offender's subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628-629 applied in Deakin v The Queen [1984] HCA 31; R v Simpson (2001) 53 NSWLR 704 at [59]; R v Ogochukwu [2004] NSWCCA 473 at [33]; R v Cramp [2004] NSWCCA 264 at [34]; Caristo v R [2011] NSWCCA 7 at [27]; R v MA [2004] NSWCCA 92 (R v MA) at [33]-[34]; Hili v The Queen (2010) 242 CLR 520 at [40].
143.The factors relevant to fixing the term of the sentence are the same as the non‑parole period, but the weight given to each factor may differ: R v MA at [33]. For example, a serious offence warrants a greater non-parole period due to its deterrent effect upon others, but the nature of the offence does not assume the importance it has when the head sentence is determined: R v MA at [33], citing Bugmy at 531-532.
144.The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19], and O’Brien v The Queen [2015] ACTCA 47.
145.I take these principles into account on sentence.
Incident One and relevant sentencing considerations for a young offender
146.The offender was under the age of 18 when the act of indecency offence in Incident One was committed. Accordingly, he must be sentenced in respect of this offence as a young offender, with regard to the factors contained within ss 133C and 133D of the Sentencing Act.
147.Section 133C requires the Court to place greater weight on the sentencing purpose of rehabilitation than the other considerations contained within s 7(1) of the Act and have a particular regard to the common law principle of individualised justice.
148.Section 133C requires the Court to place greater weight on the sentencing purpose of rehabilitation than the other considerations contained within s 7(1) of the Act and have a particular regard to the common law principle of individualised justice.
149.The prosecution correctly submitted that, despite the objective seriousness of this offence, as the offender was a young person when this offending occurred it is open to the Court to impose a non-custodial sentence in respect of this offence. I propose to adopt this course.
Sexual Intercourse Offences
150.The prosecution submitted that the three sexual intercourse offences were of such gravity that only sentences of full-time imprisonment would achieve the relevant purposes of sentencing. It was submitted further that the incidents were separated in time and constituted very distinct episodes of sexual violation.
151.It was correctly accepted by the prosecution that in light of the absence of any offending since 2010, and the offender's present circumstances, prospects of rehabilitation is a relevant consideration (Written submissions at [30]).
Sentencing
152.It must be recognised by the Court that the offences committed against the victim has had a serious and significant impact. Both the short arid long-term consequences of being the victim of these offences must be acknowledged.
153.In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, the Victim Impact Statements, and the subjective matters, including rehabilitation.
154.This is a difficult sentencing exercise as conceded by both counsel for the prosecution and counsel for the offender (T19.13 &-T2.30).
155.The appropriate sentence for the offence of Act of indecency with a person under 10 years of age (CH19/482) is a 2-year good behaviour order from 9 December 2025 until 8 December 2027.
156.The appropriate sentence for the offence of Sexual intercourse with a person under 16 years of age (CC19/13031) is 3 years reduced to 2 years and 5 months on account of the discount for the plea of guilty.
157.The appropriate sentence for the offence of Sexual intercourse with a person under 16 years of age (CC19/6404) is 4 years reduced to 3 years and 2 months on account of the discount for the plea of guilty.
158.The appropriate sentence for the offence of Sexual intercourse with a person under 16 years of age (CC19/6405) is 3 years reduced to 2 years and 5 months on account of the discount for the plea of guilty.
159.Overall, there will be a sentence of four years and six months with a non-parole period of 18 months taking into account the appropriate period of concurrency and accumulation and the principle of totality.
24. Overall, it seems that the sentencing judge relied heavily on the respondent’s prospects of rehabilitation derived from the absence of reoffending in the period between the sexual intercourse offences in 2010 and him being arrested and charged in 2018; and upon third party hardship. The weight that it seems her Honour gave to those considerations goes some way in explaining the short duration of the non-parole period imposed. In particular, [140] records a concession by the Crown as to the significance of rehabilitation. This concession was actually never given. This goes directly to the issue raised on appeal as to the undue weight given to rehabilitation, of itself a clear indicator of a source of error in arriving at the non-parole period.
25. Further, the issue of hardship was the subject of additional written submissions from the Crown and the respondent requested by the sentencing judge, to be provided following the sentence hearing. The Crown submitted that little weight should be given to that consideration in light of the considerable gravity of the offending. The respondent’s submission suggested that the weight to be given to this was a matter for her Honour to determine. This goes directly to the issue raised on appeal as to the undue weight given to third party hardship, and is another source of error in arriving at the appropriate non-parole period.
The competing arguments on the appeal
26. The Crown argument as to manifest inadequacy of the non-parole period focusses on three key asserted significant shortcomings in the sentencing judge’s reasons:
(a) failure to reflect the importance of general deterrence and denunciation for this kind of offending, long recognised as having particular significance for sexual offending against children;
(b) giving undue and excessive weight to the prospects of rehabilitation and the lack of further offending; and
(c) giving undue and excessive weight to third party hardship.
27. In relation to general deterrence and denunciation, the Crown submits that given the gravity of the offending, the length of the non-parole period of only 18 months is plainly unreasonable and unjust. The individual sentences were:
(a) for the second offence, (CC2019/13031), 2 years and 5 months imprisonment (reduced from 3 years for the plea of guilty);
(b) for the third offence, (CC2019 / 6404), 3 years and 2 months imprisonment (reduced from 4 years for the plea of guilty), cumulative as to 1 year and 5 months on the sentence for incident 2; and
(c) for the fourth offence, (CC2019 / 6405), 2 years and 5 months imprisonment (reduced from 3 years for the plea of guilty), cumulative as to 8 months on the sentence for incident 3.
28. The Crown submits that because the non-parole period was much less than the head sentence for any single offence for the three offences above, and that this alone demonstrates that the non-parole period did not represent an appropriate relationship with the overall head sentence, nor an appropriate minimum period.
29. The Crown further submits that such a short non-parole period fails to reflect the importance of general deterrence and denunciation for such serious offending involving a position of trust, citing the strong statements of principle on this topic in EG v R [2015] NSWCCA 21 at [42] and in R v Tully (No 3) [2014] ACTSC 275 (Tully (No 3)), noting the re‑sentence in Tully v The Queen [2016] ACTCA 4.
30. In relation to the prospects of rehabilitation and the lack of further offending, the Crown submits that contrary to the sentencing judge’s comment at [140], the Crown did not submit that the respondent’s progress towards rehabilitation should be given considerable significance. That submission must be accepted, noting the respondent does not argue otherwise on this appeal. The transcript of the sentence hearing reveals that no such concession, or anything like it, was made. It is also inconsistent with her Honour’s reasons at [151] to the effect that the Crown in writing indicated that the prospects of rehabilitation were no more than a relevant consideration.
31. What occurred at the sentencing hearing was as follows. The Crown acknowledged that the period of delay between the sexual intercourse offences and the respondent being prosecuted for them, while not mitigating in the sense of constituting any prosecution delay, was relevant only “in so far” as it demonstrated remorse (implicitly through no offending occurring in the intervening period) and would “positively impact” on the prospects of rehabilitation and reduce the need for specific deterrence and protection of the community. There is nothing to indicate that the Crown at any time said that this should be given “considerable significance”, let alone be any basis for significant leniency. The distance between the actual words of the submission and the meaning that it has been given by her Honour cannot be explained. It seems likely that, on this basis, her Honour led herself into error, which may go some way to explaining the low overall non-parole period both in terms of duration and in terms its proportion to the overall head sentence.
32. Moreover, the Crown expressly submitted that specific deterrence and protection of the community remained relevant given the multiplicity of offending and the pre-sentence report assessment of an average risk of sexual recidivism, themselves indicating caution in giving too much weight to the prospects of rehabilitation. The Crown also submitted that the other sentencing principles that were relevant were to vindicate the victim; to punish and hold accountable the offender; general deterrence; and, all the sentencing principles related to child sexual assault matters, particularly having regard to the gravity of the offences.
33. While the Crown accepts that some reduction of the non-parole period on account of the respondent’s prospects of rehabilitation was appropriate, the extent of the reduction is submitted to be entirely disproportionate, especially given that:
(a) the respondent’s risk of sexual re-offending was not low;
(b) while the absence of further offending over a long intervening period may reduce the need for specific deterrence, it does not make it irrelevant, citing Tully (No 3), which is also a comparable case for considering the impact of delay on prospects of rehabilitation in child sexual abuse cases, because, that offender had not reoffended in the 12-year period between the offences and sentencing, yet the sentencing judge imposed a non-parole period of 9 years’ imprisonment, being 62% of the head sentence, a proportion of that was maintained on appeal.
34. Further, the Crown submits:
(a) because these were sexual offences against a child, and general deterrence is a paramount consideration, that needed to be weighed against rehabilitation and not be overwhelmed by it, as apparently happened in this case; and
(b) the non-parole period suggests that the sentencing judge considered that the respondent no longer posed any risk to the community, but this inverts principle because a higher non-parole period is required for those from whom the community needed protection, not a lower sentence from those from whom protection was not thought necessary, citing Toumo’ua at [104] on this point.
35. In relation to third party hardship, the Crown submits that authority indicates that there is a relatively high bar before this will result in any significant reduction in sentence. The underlying principle is that incarceration of any person will be likely to have an adverse effect on families and their dependents, and may be an inevitable consequence of adequate punishment, such that it cannot be allowed to overwhelm other factors: see Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at [82]; Director of Public Prosecutions v Ip [2005] ACTCA 24 at [61]; and Craft v Diebert [2004] ACTCA 15 at [10]. Thus, the Crown submits, where hardship arises, the sentencing judge is required to consider whether, and if so to what extent, it is appropriate for hardship to affect the sentence, when giving effect to the purposes of sentencing.
36. The sentencing judge’s reasons do not articulate why the asserted hardship relied upon should affect the sentence, and especially the non-parole period, to the extent that it did. Instead, at [92], the weight given to this factor was relegated to the “process of instinctive synthesis”. The Crown submits that the nature of the claimed hardship was hardly exceptional or even unusual, despite her Honour giving it that label without explanation.
37. It is not necessary to determine conclusively the question of whether hardship has to meet any particular threshold before it may be taken into account. The burden of authority cited by the sentencing judge suggests that a need for “highly exceptional” circumstances overstates things, noting that her Honour emphasised in bold from R v Cornell [2015] NSWCCA 258 the observation by Beech-Jones J (as the Chief Judge in Common law then was) at [145] that “consistent with both judgments in Bugmy v The Queen (1990) 169 CLR 525], it is far more likely that hardship to family members will be a factor that warrants significant weight in fixing the non-parole period if special circumstances are found”. No such special circumstances, in the sense of anything out of the ordinary, was identified in this case. It could only carry limited weight even when such circumstances were compelling for serious offences in which general deterrence is of singular importance, as in this case. As with rehabilitation, it cannot be allowed to overwhelm the exercise of the sentencing discretion.
38. The respondent’s submissions deal with the three bases for asserting error relied upon by the Crown in a composite way. They cite a range of authority on non-parole periods to submit that a sentencing court ought not apply a mathematical formula to ascertain the relationship between the head sentence and the non-parole period, but rather consider the purposes of sentencing and determine the minimum terms that an offender is required to spend in custody, with the prospects of rehabilitation likely to be significant. Based on this and related submissions, the respondent submits that the Crown suggestion that there should be an appropriate relationship between the head sentence and the non-parole period did not illuminate why an 18 month non-parole period is inadequate, and appears to rely upon the proposition that issues of rehabilitation and the probable impact on family and dependents are each, or in combination, sufficient to justify the sentence imposed.
39. Turning to the prospects of rehabilitation, the respondent submits that the sentencing judge was satisfied that the prospects of his rehabilitation were cause for optimism, and that these prospects were required to be taken into account. Therefore, it is submitted, her Honour was justified in weighing this factor in favour of a shorter non-parole period than may otherwise have been imposed.
40. In relation to hardship, the respondent points to the impact upon his children from a prior marriage, upon his current partner, and upon his (at the time of the sentencing) unborn child, including the financial support he gave. The respondent also points to the authorities relied upon by the sentencing judge, a number of which are the subject of salient comparative comments.
Consideration
41. The problem with the respondent’s submissions is that they do not, probably because they could not, engage with the compelling arguments advanced by the Crown, which should be accepted.
42. The Crown is not urging any mere mathematical relationship between the overall head sentence, but rather delving into the individual sentences as well as the inherently very low duration of the non-parole period. It is readily apparent that because of the seriousness of the three sexual intercourse offences over a six month period, the maximum penalty for each, the need for a condign sentence to afford meaningful general deterrence, and the very great importance of denunciation of such serious repeated offending against a child does not come close to being met by a mere 18 month non-parole period. It is submitted that these factors leave very little room for any substantial reduction on account of rehabilitation or third party hardship, yet those considerations were dominant in the sentencing judge’s general reasoning.
43. The Crown is not gainsaying the relevance of rehabilitation, but rather its prominence, especially when influenced by a misstatement or misunderstanding to the unlikely effect that the Crown had accepted that it warranted significant leniency, especially in relation to the non-parole period. The Crown is also right to point to the very limited role for hardship to play, to be contrasted to the apparent weight that the sentencing judge gave to this factor.
44. All three arguments advanced by the Crown are compelling indications of error on the part of the sentencing judge. This error explains the short duration of the non-parole period that was imposed, especially when regard is had to the maximum sentence which could have been imposed, and the abhorrent nature of the offences.
45. There is a further aspect that should be addressed, going beyond the arguments advanced by the Crown and the respondent’s counterarguments. The sentencing judge gave little explanation for either the overall head sentence arrived or the non‑parole period. The difficulty with this, and with reliance on the global concept of “instinctive synthesis”, is that it tends to suggest that the entire process of sentence determination is instinctive when that is plainly not so. As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [75], the expression “instinctive synthesis” is used “not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features”. Adopting that reasoning, in Markarian v The Queen [2005] HCA 25, 228 CLR 357 (Markarian), Gleeson CJ, Gummow, Hayne and Callinan JJ observed at [39]:
An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public.
46. There was no such accessible reasoning as to the final result in this case. Indeed, there was very limited reasoning at this critical final stage, as opposed to a mostly bare statement of conclusions. The errors relied upon by the Crown are drawn from the passages in the sentencing judgment that made it clear enough that rehabilitation and third party hardship were considered by the sentencing judge to justify a significantly lower sentence, and in particular non-parole period, than would otherwise have been the case. However, beyond this brief consideration, the role that those overemphasised factors played is left to inference. The reasons do not otherwise demonstrate how these factors actually came to be applied and balanced against the other considerations, especially those that should have dominated, including in particular the maximum penalty; the seriousness of the offending; the overwhelming strength of the Crown case; the need for general deterrence; and, the need for denunciation of these crimes. It was not sufficient merely to state that all the competing considerations have been taken into account, and then state the appropriate sentences as being arrived at by the purported instinctive synthesis of them all.
47. As Wong and Markarian make clear, the adjudication of an appropriate sentence entails a proper evaluation of all the relevant objective and subjective circumstances, and the essential features of the offence and the offending. At some point in any reasons for sentencing, competing considerations must be overtly weighed and balanced to arrive at the numerical result, which is not to be a mathematical exercise. The final numerical step is inevitably instinctive because it involves a synthesis of competing, offsetting and qualifying considerations to arrive at the sentence or sentences to be imposed. The important thing is that the reasoning process leading to this final conclusion needs to be exposed, especially when the result is so light as to call for explanation. Yet in this case, nothing much of that kind took place. The competing considerations were addressed separately but nothing was done to bring them together.
48. The correct approach does not necessarily entail a lot of detail, but the ultimate reasons cannot be mere separate conclusions as they are in this case. That is especially so when the maximum penalties were so substantial and the Crown case was so essentially unanswerable for the second, third and fourth offences. Further, the timing of the pleas in the case of each incident is a telling indicator for the strength of the prosecution case in each. The guilty plea for the third offence was made at an early stage in light of the unanswerable evidence as to the victim’s pregnancy. Conversely, the guilty pleas were very late for the second and fourth offence, and only entered after it became clear that the evidence related to the pregnancy as a result of the third offence would be admitted as evidence of those offences. In that context, and with the maximum penalty for each offence in mind, the combined head sentence in that context was extraordinarily lenient. In the absence of the sentencing judge providing an adequate insight into the reasoning process which lead to this conclusion, imposing a non-parole period for these serious offences which is only a third of this very lenient combined head sentence cannot be justified.
Residual discretion
49. There was, quite properly, no submission made by the respondent that there is anything in this case that warrants the exercise of the discretion reposed in this Court not to intervene. The Crown did not in any way contribute to the errors identified. To the contrary, the Crown clearly urged upon her Honour the importance of the seriousness of the offending and of the offences, of the need for general deterrence and denunciation, and of not giving any substantial weight either to rehabilitation or hardship in light of those considerations. Nor was there any delay in bringing or prosecuting this appeal.
50. The non-parole period is inexplicable in the absence of serious and substantial error, both as to its duration and as to its relationship with the lenient but unchallenged overall head sentence. Justice demands that such serious errors be corrected by the quashing of the non-parole period and the imposition instead of a substantially greater non-parole period.
Re-sentencing
51. The head sentence and the reasons for imposing it are not challenged, are reproduced above and are therefore adopted for the limited resentencing exercise that is required to be carried out. Plainly enough, the sentencing judge would have been entirely justified in imposing a significantly higher overall head sentence, either by way of longer individual sentences, or by way of less in the way of concurrency. The individual head sentences and the overall head sentence was at best at the very bottom of the appropriate range in all the circumstance, and probably erred on the side of being inadequate. However the Crown does not assert manifest inadequacy, perhaps because of the paucity of final reasoning of the kind already identified. The reasons for the individual and overall head sentences cannot be effectively revisited in the absence of a Crown appeal that also succeeds. The resentencing exercise is therefore confined to the imposition of the non-parole period to correspond to the existing individual head sentences and the overall combined head sentence.
52. Applying the principles in relation to the setting of a non-parole period summarised above, the two factors that have been the centrepiece of this appeal must now be addressed, namely the combined effect of the appropriate duration and the appropriate proportion of the head sentence, as well as some meaningful relationship with the individual head sentences of 2 years and 5 months for offences for the second and fourth offences, and 3 years and 2 months for the third offence. The non-parole period that properly responds to all three effective yardsticks which serve to limit the effective scope of the discretion is a non-parole period of 3 years because it:
(a) is still lower than the head sentence for the third and most serious offence, but higher than the head sentence for both the second offence and the fourth offence, producing a reasonable relationship between those head sentences and the non-parole period;
(b) retains a significant measure of leniency in all the circumstances, yet carries a real measure of general deterrence and denunciation, albeit at the lenient end of the spectrum;
(c) is two-thirds of the head sentence, which is within the general, but not binding range in this jurisdiction of between 50% and 70%, making it proportionate to what remains as a very lenient head sentence.
53. It follows that the orders of the Court will be:
(a) the Crown appeal be upheld;
(b) the non-parole period of 18 months imposed on 11 June 2021 be set aside;
(c) in lieu thereof, the respondent’s non-parole period be 3 years, commencing on 10 June 2021 and ending on 9 June 2024.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Mossop and Justice Bromwich. Associate: Date: 5 May 2022 |
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