R v Brace - [2011] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRACE
[2011] SASCFC 54
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice Kelly and The Honourable Justice Peek)
14 June 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
The appellant pleaded guilty to one offence of inciting an act of gross indecency and one offence of unlawful sexual intercourse - the Judge imposed (before giving credit for time in custody) cumulative sentences of imprisonment of three years (for unlawful sexual intercourse) and three months (for incitement) - a "co-accused" who was charged with an offence of unlawful sexual intercourse with the same victim and on the same occasion, as well as other offences, had previously been sentenced by a different Judge - the appellant appealed on three grounds: (1) the Judge failed to consider the sentence on the "co-accused" and apply parity; (2) the sentence was manifestly excessive; and (3) the Judge erred in failing to suspend.
Per White J (Kelly and Peek JJ agreeing): although the appellant and "co-accused" were each charged with unlawful sexual intercourse committed on the one occasion, their offences were not the same; the acts constituting the intercourse were different; and the circumstances of each differed - in addition, the "co-accused" was sentenced for other offences for which the appellant was not charged - accordingly, parity principles did not arise- sentence not manifestly excessive - no error in the Judge's refusal to suspend the sentence.
Criminal Law Consolidation Act 1935 (SA) s 58, s 49(3), s 63A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) s 15, referred to.
Lowe the The Queen (1984) 154 CLR 606; Postiglione v The Queen (1977) 189 CLR 295; R v MacGowan (1986) 42 SASR 580, applied.
R v AB (No 2) (2008) 18 VR 391, discussed.
R v Major (1988) 70 SASR 488; R v Symonds [1999] SASC 217; R v Waugh (2005) 93 SASR 274; Wakely v Police (2003) 229 LSJS 327; R v Chamings [2009] SASC 82; Yardley v Betts (1979) 22 SASR 108; R v Couch [2008] SASC 207; R v Makevits [2006] SASC 73; R v Tassone [2011] SASCFC 7; R v Collins (1979) 21 SASR 38; R v Blecher (1981) 27 SASR 46; R v Thach and Chau [2010] SASFC 16, considered.

R v BRACE
[2011] SASCFC 54
Court of Criminal Appeal: White, Kelly and Peek JJ

WHITE J. Following his pleas, the appellant was sentenced in the District Court for two offences: inciting an act of gross indecency;[1] and unlawful sexual intercourse.[2] The first offence was committed on 3 November 2007 and the second on 1 March 2008.
[1] Contrary to s 58 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The maximum penalty for this offence is imprisonment for three years.
[2] Contrary to s 49(3) of the CLCA. The maximum penalty for this offence is imprisonment for 10 years.
The District Court Judge considered it appropriate to impose cumulative sentences. For the offence of unlawful sexual intercourse, the Judge took as his starting point a sentence of imprisonment for four years but reduced that to three years on account of the plea of guilty. For the offence of incitement, the Judge took as the starting point a sentence of imprisonment for four months but reduced that on account of the plea of guilty to imprisonment for three months. The Judge would have fixed a non-parole period of 22 months in respect of those sentences. However, he then reduced the “head sentence” and the non‑parole period by three months so as to give the appellant credit for time spent in custody and on home detention bail. The Judge then ordered that the “head sentence” and the non-parole period commence on the day of sentencing.
Given that the Judge was imposing cumulative sentences, his reference to a “head sentence” was inappropriate. This error is repeated in the Report of Prisoner Tried signed by the Judge. I will return to this topic later.
The effect of the Judge’s orders is that the appellant must serve a total period in custody of three years, with a non‑parole period of 19 months.
The appellant appeals, with permission, against the sentences. His grounds of appeal do not distinguish between the respective sentences, and reflect a mistaken understanding that the Judge imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). The appellant makes three principal complaints: first, that the Judge failed to consider appropriately the sentence imposed on his “co‑accused”, Mr Wall, and, in particular, failed to apply the principle of parity; secondly, that “the sentence” is manifestly excessive; and, thirdly, that the Judge erred by failing to suspend “the sentence”.
The Conduct of Inciting an Act of Gross Indecency
In late 2007 and early 2008, the appellant and Mr Wall shared rental accommodation at Charleston. The appellant was then aged 27 years and Mr Wall 20 years. Both of the offences for which the appellant was sentenced were committed in the Charleston house.
Mr Wall was in a boyfriend/girlfriend relationship with a girl to whom I shall refer as “L”. In November 2007, L was 15 years and 8 months of age.
On 3 November 2007, the appellant used Mr Wall’s mobile phone to film L and Mr Wall showering together. Both were completely naked and aware that the appellant was filming them. The appellant spoke to them, encouraging, and perhaps coaching them, into sexual activity. Both, and in particular L, responded to the appellant’s encouragement. L performed an act of fellatio on Mr Wall.
This was the conduct of the appellant in inciting an act of gross indecency. The offence was discovered only when Mr Wall’s mobile phone, still containing the recorded images, was taken by the police during the course of their investigation of the second offence. L was a willing participant in the activity and has not made any complaint regarding the conduct of either the appellant or Mr Wall. She did not wish to assist the prosecution of either man.
Mr Wall’s mobile phone also contained images taken on four other occasions in November 2007 of L’s naked breasts.
The Circumstances of the Offence of Unlawful Sexual Intercourse
On the evening of 29 February 2008, the appellant and Mr Wall drove to a party at Mannum. Late that night, or possibly in the early hours of the following morning, they came across two girls, LB and ED, whom they knew. LB and ED asked for assistance in finding their friend, J, and Mr Wall then drove the group around Mannum looking for her. When they found her, J was obviously grossly intoxicated and very distressed, possibly as a result of an earlier sexual encounter with another man. J was aged 14 years and 11 months at the time.
The group took J, at her request, to a public toilet where, when alighting, she fell out of the car. LB and ED helped her to the toilet and then back into Mr Wall’s car.
LB and ED decided that J was so intoxicated that, instead of staying overnight with them in Mannum, she should be taken to her home at Palmer. LB asked Mr Wall to take J home and he agreed. He told LB that he knew roughly where she lived. There was no suggestion at that time that J would be taken to the house shared by the appellant and Mr Wall.
J did not wish to go with the two men. She asked repeatedly for them to stop and to let her out. J said that Mr Wall told her that she could not go home because her parents would be “spewing”.
At one stage in the journey, Mr Wall stopped the car because it appeared that J was going to vomit. J then tried to run away. Mr Wall caught her and returned J to the back seat of the car. The appellant and Mr Wall then locked the back doors of the car.
Shortly afterwards, J again asked to be let out and was permitted to do so. When she went to alight, she fell, and was assisted by the appellant back into the car. Again the doors were locked. J said that she still felt bilious when the car drove off. However, she had no further memory until about 8 o’clock the following morning when she awoke in a spare room in the Charleston home. J saw that she was wearing clothing which was not hers and that she had no knickers. She thought that she had been raped.
Later, on 1 March 2008, the police went to the Charleston home. Amongst other things, they searched the images on Mr Wall’s mobile phone. This revealed images of J performing fellatio on Mr Wall at 0351 and 0352 hours that same day and of the appellant having penile‑vaginal sexual intercourse with her at 0354 hours, again, on that same day.
Before being confronted with the video images, Mr Wall admitted that he and the appellant had brought J to the house and given her a bath and clean clothes. He said, however, that J had then been left to sleep. Mr Wall denied engaging in any form of sexual intercourse with her. When shown the video images, Mr Wall admitted the fellatio but said that it had been initiated by J and that it was consensual.
When the appellant was questioned on 1 March 2008, he admitted having been in Mannum the previous evening but said (untruthfully) that he had returned to the Charleston home at about 9.30 pm, where he had remained. The appellant said that later, and in response to a telephone call from LB, Mr Wall had gone in to Mannum and had brought J back to the house. She had been allowed to use the bath and given a clean set of clothing with the expectation that she would sleep off her intoxication and that Mr Wall would take her home in the morning. The appellant said that he himself had been intoxicated that evening and had little memory of events. He admitted seeing J in Mannum earlier in the evening in a distressed and intoxicated state but denied that J had at any stage been put forcibly into Mr Wall’s car or kept in the car. The appellant said that he did not wish to respond to questions concerning the images on Mr Wall’s mobile phone.
During the course of their respective sentencing submissions, the appellant acknowledged that he had filmed Mr Wall’s fellatio with J, and Mr Wall acknowledged that he had filmed the appellant’s intercourse with J.
The Victim Impact Statements of J and her parents indicated that the conduct of the appellant and Mr Wall in relation to J has had profound and enduring psychological effects.
The Sentence Imposed on Mr Wall
The appellant and Mr Wall were initially charged on one information, each with one offence of unlawful sexual intercourse involving J. In Mr Wall’s case, the intercourse comprised the act of fellatio; in the appellant’s case, it was penile‑vaginal intercourse.
Mr Wall entered a plea of guilty on 18 November 2008, whereas the appellant did not do so until 27 January 2009. This resulted in Mr Wall being committed for sentence in the District Court before the appellant. In turn, this had the effect that Mr Wall and the appellant were sentenced by different judges.
It is usually desirable for two or more offenders who are to be sentenced for offences arising out of one course of events to be sentenced at the same time or, at the very least, by the same Judge. It is unfortunate that that did not occur in this case.
In addition to the offence of unlawful sexual intercourse, Mr Wall was charged with two offences of possession of child pornography, each committed on 1 March 2008.[3] The first related to the images taken in November 2007 of L and, in respect of the incident of 3 November 2007, of L and Mr Wall himself. The second related to the images of the respective acts of sexual intercourse with J on 1 March 2008. The maximum penalty for each of those two offences was imprisonment for five years.
[3] Contrary to s 63A of the CLCA.
Judge McIntyre in the District Court, acting under s 18A of the CLSA, imposed on Mr Wall a single sentence of imprisonment of two years and three months with a non‑parole period of 14 months. Had it not been for Mr Wall’s early pleas of guilty, Judge McIntyre would have imposed a sentence of three years imprisonment. Her Honour then suspended that sentence upon Mr Wall entering into a bond requiring him to be of good behaviour for a period of three years and to comply with certain other conditions.
Judge McIntyre did not give any indication as to how much of her starting point of three years was attributable to the offence of unlawful sexual intercourse and how much was attributable to the two offences of possession of child pornography. Some such indication is usually appropriate[4] and was particularly desirable in Mr Wall’s case because he was one of two offenders whom the Court would be sentencing for an offence of unlawful sexual intercourse arising out of the one incident.[5]
[4] R v Major [1998] SASC 7089; (1998) 70 SASR 488 at 490, 497; R v Symonds [1999] SASC 217 at [22]; R v Waugh [2005] SASC 470 at [43]; (2005) 93 SASR 274 at 284.
[5] By the time of the sentencing of Mr Wall, the appellant had pleaded guilty on his separate arraignment to his offence of unlawful sexual intercourse.
The Judge’s Approach to Sentencing the Appellant
The Judge said that he would sentence on the basis of J’s statement. This meant that he sentenced the appellant on the basis that J had repeatedly asked Mr Wall to stop so that she could get out of the car; that the appellant had told her that they would not take her to her home as her parents would be “spewing”; and that on two occasions J had tried to run off but had been returned by the appellant or Mr Wall to the car. In short, the Judge sentenced the appellant on the basis that J had been taken to the Charleston home against her will.
During the course of the sentencing submissions the Judge queried how the act of intercourse between the appellant and J had been initiated. After taking instructions, the appellant’s then counsel informed the Court that J had asked the appellant whether he wished to have intercourse. The Crown immediately disputed that account. As it was put as a matter of mitigation, the appellant carried the relevant onus. He was invited to give evidence to support his account. He declined to do so.
The Judge sentenced on the basis that J had not initiated the intercourse with the appellant. He accepted that the intercourse was consensual but concluded that her youth and gross intoxication impaired her ability to make any informed or sensible decision. The Judge considered that the fact that the appellant was filmed engaging in intercourse with J only two minutes after she had been filmed performing an act of fellatio on Mr Wall indicated that it was Mr Wall and the appellant who were directing and controlling the events at the time.
The Judge noted that Judge McIntyre had accepted when sentencing Mr Wall that it was J who had initiated the sexual intercourse with him. He considered however that there was no material upon which he could reach the same conclusion in relation to the appellant. This was especially so as the appellant had declined to give evidence on this topic.
The Judge also noted that apart from the respective offences of unlawful sexual intercourse, the other offences with which Mr Wall and the appellant were charged were different. He considered that in these circumstances questions of parity did not arise.
In relation to the seriousness of the offences, the Judge said:
I accept the submission of the Crown that the offences are serious and that they were demeaning and degrading to J. Both yourself and Mr Wall opportunistically took advantage of a 14 year-old girl who was grossly intoxicated. I accept the submission of the Crown that the two of you compounded your actions by recording, and then retaining, the pornographic images of yourselves engaged in sexual activities with J.
Many of the sentencing submissions made on the appellant’s behalf were directed to the effects which his haemophilia would have on him if he were required to serve a custodial sentence. The Judge received a considerable amount of evidence on this topic including written and oral evidence from Dr Frost, the clinical director of the South Australian Prison Health Service. The Judge appears to have proceeded on the basis that the appellant would have access to appropriate treatment while imprisoned and that appropriate steps would be taken to protect him from injury.
The Judge was also provided with a report from a psychologist who assessed the appellant for the purposes of the sentencing submissions. The psychologist considered that the appellant had a number of clinical symptoms associated with substance abuse, post-traumatic stress and borderline personality disorder. The psychologist also expressed the opinion that the appellant had “some, but possibly limited, insight into the impact of his offending on the victim”. I note however, that the appellant provided to the Court a letter apologising for his conduct towards J.
Parity/Proportionality with Mr Wall’s Sentence
The appellant’s first ground of appeal is that the Judge failed to take account of the sentences imposed on Mr Wall by failing to apply the principle of parity and, even if that principle was inapplicable, by imposing a sentence which was disproportionate to that imposed on Mr Wall.
The Judge was provided with the transcript of Mr Wall’s sentencing submissions and with the remarks of Judge McIntyre. The Judge considered that the questions of parity with Mr Wall’s sentence did not arise for three reasons. First, while both men were charged with an offence of unlawful sexual intercourse, the conduct comprising each offence was different. Secondly, Judge McIntyre had accepted that it was J who had initiated the sexual intercourse with Mr Wall, whereas there was no evidence to that effect in the case of the appellant. Thirdly, Mr Wall had also been sentenced for two offences with which the appellant was not charged, namely, the two offences of possession of child pornography.
In my opinion, the Judge was correct in concluding that issues of parity of sentencing did not arise in this case.
The principle of parity in sentencing requires that like cases ought to be treated alike.[6] Equal justice requires that the sentences imposed on co-offenders should not have such a marked disparity as to give rise to “a justifiable sense of grievance”.[7] When co-offenders have not engaged in exactly the same conduct, the parity principle requires that the sentences imposed on them should be proportionate to their respective degrees of culpability, as well as to the various personal factors of aggravation and mitigation.[8] In Wakely v Police[9] Doyle CJ spoke of the parity principle as follows:
It is important that the punishment imposed on joint offenders should reflect a consistent approach. An unjustified inconsistency or disparity in the penalty imposed on joint offenders will rightly be regarded by the public as unfair and unjust, and will erode public confidence in the judicial process. As well, an unjustified inconsistency or disparity is unfair to the offender who is prejudiced by that inconsistency or disparity.
Different punishments may be imposed on joint offenders. Differences in their involvement in the offence and in their personal circumstances might warrant different punishments. So might the fact or timing of a plea of guilty, the attitude of the respective offenders to the offence and prospects of rehabilitation. But after allowance has been made for all relevant matters, it might still appear that there is an inconsistency or disparity that cannot be explained or justified. Even then the difference in the punishments must be a substantial one, outside the range that is inevitable and acceptable, bearing in mind that sentencing involves balancing a wide range of factors, and that for any given offence and offender a punishment within a certain range will be appropriate. The most that can ever be done in relation to a particular offence and offender is to identify a range within which the appropriate punishment should fall.[10]
[6] Lowe v The Queen (1984) 154 CLR 606 at 610-1; Postiglione v The Queen (1997) 189 CLR 295 at 301.
[7] Ibid.
[8] R v MacGowan (1986) 42 SASR 580 at 582-3.
[9] [2003] SASC 295; (2003) 229 LSJS 327.
[10] Ibid at [34]-[35]; at 331.

However, it is important to understand that the parity principle applies when two or more persons are sentenced for the same crime or crimes.[11] In the present case, although each of the appellant and Mr Wall were charged with an offence of unlawful sexual intercourse, committed within minutes of one another on the one occasion and involving the same victim, they were not charged with the same offence. Further, the conduct of each comprising their respective offences was different. Mr Wall’s offence involved an act of fellatio and the appellant’s an act of penile-vaginal intercourse. Judge McIntyre accepted that J had initiated the intercourse with Mr Wall but there was no evidence at all to that effect in relation to the appellant. Further, as the Judge pointed out, Mr Wall was charged with offences for which the appellant was not charged and he was to be sentenced for one offence with which Mr Wall was not charged.
[11] R v MacGowan (1986) 42 SASR 580 at 582; R v Chamings [2009] SASC 82 at [9]. See also Lowe v The Queen (1984) 154 CLR 606 at 609, 623.
For these reasons, the appellant’s complaint that the Judge inappropriately failed to apply the principle of parity should be rejected.
Further, I do not consider that the sentence imposed on the appellant for his offence of unlawful sexual intercourse should be held to be disproportionate to the single sentence imposed by Judge McIntyre under s 18A on Mr Wall. Apart from the matters already mentioned, there were a number of other differences between the two offences and the circumstances of the two offenders, indicating that a more severe sentence was appropriate in the appellant’s case.
The appellant, at 27 years of age, was nearly twice J’s age whereas Mr Wall was much younger. When first questioned by the police, Mr Wall had admitted his sexual intercourse and entered his guilty plea at the first opportunity. The appellant, on the other hand, made no such admission and, as earlier noted, entered his plea of guilty at a later date. Mr Wall seemed to demonstrate greater insight into the wrongfulness of his offending whereas the appellant, even in the face of the statements of J and ED indicating that he must have known that J was underage, maintained that he had believed that she was 18 years of age. The appellant has an extensive criminal history whereas Judge McIntyre accepted that Mr Wall had no prior offences. By going to Mannum on the night of 29 February 2008, the appellant breached a bail curfew condition, a circumstance which aggravated his offence. Had he not gone to Mannum, it is unlikely that he or Mr Wall would have come into contact with J. Finally, I note that Judge McIntyre took into account as a mitigatory factor in the sentencing of Mr Wall that the appellant had been a negative influence on him.
In these circumstances, I do not consider that a comparison with the sentence imposed upon Mr Wall provides support for the appellant’s complaint that the sentences imposed upon him were disproportionate or manifestly excessive.
Sentences not Manifestly Excessive
The appellant’s second ground of appeal was that even if a comparison with Mr Wall’s sentence was inappropriate, the sentences imposed upon him should be regarded as manifestly excessive.
I accept that the Judge’s starting point of four years for the offence of unlawful sexual intercourse was severe. The maximum sentence for the offence was 10 years and this was the appellant’s first offence. His offending did not have many of the features commonly seen by the courts involving offences of this kind: ie, elements of grooming or abuse of a position of trust in the context of parental, family or supervisory relationships. The offence did not form part of a course of similar conduct, and it can fairly be described as having been opportunistic.
Nevertheless, there were serious aspects to the appellant’s offence of unlawful sexual intercourse. It did involve some element of breach of trust. LB and ED had entrusted J to the care of the appellant and Mr Wall on the basis that they would transport her to her parents’ home. It was the appellant and Mr Wall who made the decision to take her instead to the Charleston home. J had indicated sufficiently that she did not wish to go in the car. Her behaviour reflected her intoxication and was erratic and wilful. The appellant and Mr Wall may well have been motivated to keep her in the car in her own interests and for her own protection, but it appears, nevertheless, that J was taken against her will to the Charleston home.
The fact that J was grossly intoxicated made her especially vulnerable and that must have been obvious to the appellant. Even though J consented to the sexual intercourse, advantage was taken of her condition.
The appellant’s offence is aggravated by the age disparity between him and J. Further, as the Judge noted, the filming of the respective acts of sexual intercourse added to the degradation and humiliation of J. I have already referred to the very significant impacts which the offending has had on J and her family.
A primary policy of the criminal law is to protect children from sexual predators.[12] In any sentence for an offence involving sexual exploitation of a child, the courts must give paramount consideration to the need for deterrence.[13]
[12] CLSA s 10(4).
[13] Ibid.
An important consideration underlying the offence of unlawful sexual intercourse established by s 49(3) of the CLCA is the protection of adolescent females from their immature sexual curiosity or inclinations, and from sexual exploitation by older sexually experienced men. These considerations apply with particular force in the context of the present case bearing in mind the advantage taken by Mr Wall and the appellant of J’s vulnerability.
I do not consider, with respect, that much is to be gained by a comparison of sentences imposed on other persons for the offence of unlawful sexual intercourse or of the consideration of such sentences on appeal. The circumstances in which the offence of unlawful sexual intercourse is committed vary markedly. This Court has said on many occasions that there is limited utility in comparisons of this kind.[14]
[14] Yardley v Betts (1979) 22 SASR 108 at 110-1; R v Couch [2008] SASC 207 at [22]; R v Makevits [2006] SASC 73 at [44]; R v Tassone [2011] SASCFC 7 at [21].
Useful comparisons with other sentences imposed for the offence of unlawful sexual intercourse are made even more difficult because the maximum sentence for a contravention of s 49(3) was increased from seven years to 10 years with effect from 15 May 2006.[15]
[15] Section 15 Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA).
When Parliament increases the maximum penalty for an offence, it is usually an indication that it wishes the courts to increase generally the sentences imposed for that offence. As the Court of Appeal in Victoria said in R v AB (No 2):[16]
Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. … Even where the offence to which the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regarded the previous penalties as inadequate. Even where the new maximum may only be of general assistance, it becomes “the yardstick” which must be balance with all other relevant factors.[17]
(Citations Omitted)
Various judgments of this Court reflect a similar view. See, for example, R v Collins;[18] R v Belcher;[19] and R v Thach and Chau.[20]
[16] [2008] VSCA 39; (2008) 18 VR 391.
[17] Ibid at [51]; 406.
[18] (1979) 21 SASR 38 at 42-3.
[19] (1981) 27 SASR 46 at 47.
[20] [2010] SASCFC 16 at [22], [103].
When regard is had to the elements of aggravation in the appellant’s offence, the fact that advantage was taken of the intoxication of a very young girl, and of the appellant’s antecedents, I do not consider that it can be said that the sentence for the offence of unlawful sexual intercourse was manifestly excessive.
The appellant also submitted that the sentence imposed for the incitement offence was manifestly excessive.
Most of the Judge’s sentencing remarks were directed to the offence of unlawful sexual intercourse. This is understandable as the offence of unlawful sexual intercourse was more serious and it was obvious that a more severe sentence would be imposed in respect of that offence.
The policy of the criminal law reflected in s 10(4) of the CLSA applies as much to the sentencing for the offence of inciting an act of gross indecency involving a child as it does to the offence of unlawful sexual intercourse. It was appropriate for the Judge to regard that offence as a serious offence. Although L was the girlfriend of Mr Wall and a willing participant in the filmed activities, she was very young at the time of the offence. It is also plain that the appellant engaged in the incitement to satisfy his own prurient interests and for his own sexual satisfaction.
It was not suggested that the Judge had failed to have regard to a relevant matter or had regard to some irrelevant matter. When all the factors mentioned above are taken into account, I do not consider that it can be said that the sentence imposed for the incitement offence was manifestly excessive.
Refusal to Suspend
The final complaint of the appellant was that the Judge had erred in failing to suspend the sentences.
The appellant emphasised in particular his condition of haemophilia and the additional hardship which that condition may cause him if imprisoned. He referred, in addition, to the fact that his offence of unlawful sexual intercourse was a single offence and not committed in the course of other similar conduct. This indicated, he submitted, that the prospect of re-offending was low. The appellant referred again to the fact that Mr Wall’s sentence had been suspended but his had not.
In my opinion, the appellant has not shown that the Judge erred in failing to find good reason to suspend the sentences.
The appellant has an extensive criminal history. Many of his previous offences have been traffic offences but they also include offences of dishonesty and violence. Significantly, the appellant has had two previous suspended sentences, the most recent of which was imposed in the Magistrates Court on 3 August 2005. It is to his credit that the appellant complied with the terms of each of the suspended sentence bonds, but the fact that he has continued to offend after their expiry indicates that considerations of personal deterrence are important in his case.
Further, the appellant has had his bail estreated or has been convicted of breach of bail agreements on numerous occasions. I note again, that the appellant’s presence on the night of 29 February 2008 was in breach of a bail curfew condition. There are aspects of his history suggesting an indifference on his part to compliance with the law.
By themselves, these matters serve to distinguish the appellant’s circumstances from Mr Wall’s.
It is true that the Judge indicated in his sentencing remarks that suspension would be inappropriate before he imposed the respective sentences of imprisonment. The possible suspension of a sentence is, of course, a matter to be addressed after the sentence has been imposed. On one view it could be said therefore that the Judge did not consider the two steps in the appropriate order and this reveals an error in his reasoning. However, I do not consider such a conclusion to be appropriate in this case. The sequence in which the Judge addressed the matters may simply be his response to a principal submission made on sentencing by the appellant’s then counsel, rather than reflecting the manner in which the Judge had, as a matter of mental process, addressed the matter.
In my opinion, this ground of appeal has not been made out.
Conclusion
For the reasons given above I would dismiss the appeal. It is, however, appropriate to remit the matter to the Judge for him to correct (under s 9A of the CLSA) the recording of the sentences in the Report of Prisoner Tried. That Report should record the two separate sentences imposed (after giving credit in one for the time in custody and on home detention bail); record that one is to commence on the completion of service of the other; and record that the non‑parole period was fixed in respect of the total period to be served in custody.
KELLY J. I agree with the orders proposed by White J and with his reasons.
PEEK J. I agree that the appeal should be dismissed. I agree substantially with the reasons of White J.