R v Cave
[2012] SASCFC 42
•26 April 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CAVE
[2012] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)
26 April 2012
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - ELDERLY OFFENDER
The appellant was sentenced to imprisonment by three different District Court Judges for serious sexual offences – two sentences of imprisonment for 18 years and one sentence of 14 years were imposed – each sentence was cumulative upon its predecessor, with the effect that the total period to be served in custody is 50 years – the third judge extended the non-parole period to 33 years – the sentences will not be completed until the appellant is 106 years (if he reaches that age), and he will not be eligible for parole until he is 89.
Appeal against second and third sentences: whether the sentences are excessive – whether the combined effect of the sentences is disproportionate and should be reduced on account of totality – significance of the appellant’s age and of the sentences leaving him with no realistic prospect of life outside gaol – whether the third judge erred in regarding the second sentence to be also cumulative on a nine month sentence imposed in the Magistrates Court.
Held: (Doyle CJ and Anderson J), allowing the appeal for the limited purpose of correcting the error of the third Judge with respect to the sentence of nine months imposed by the Magistrates Court, but otherwise dismissing the appeal – the seriousness of the offences and protection of the public called for heavy sentences – it was not appropriate for any of the sentences to be made concurrent with another – considerations of totality did not call for a reduction in any of the sentences.
(White J, in dissent), the effect of the second and third sentences is disproportionate and so crushing that some adjustment should have been made to those sentences in accordance with the principle of totality – appropriate for the second and third sentences to be partly concurrent.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 29D, s 32(1)(b), s 10(1)(k), referred to.
Mill v The Queen (1988) 166 CLR 59, discussed.
R v D (1997) 69 SASR 413; R v E, AD (2005) 93 SASR 20; R v Liddy (No 2) (2002) 84 SASR 231; R v Ellis (2010) 107 SASR 94; Hoare v The Queen (1989) 167 CLR 348; Veen v The Queen (No 2) (1988) 164 CLR 465; R v Hunter (1984) 36 SASR 101; R v Roberts (1985) 37 SASR 566; R v Creed (1985) 37 SASR 566; R v B, RWK (2005) 91 SASR 200; Pearce v The Queen (1998) 194 CLR 610; R v Bowman (1993) 69 A Crim R 530; R v Slater (1984) 36 SASR 524; R v Crowley & Garner (1991) 55 A Crim R 201; Power v The Queen (1973) 131 CLR 623; Deacon v The Queen (1984) 58 ALJR 367; R v Cramp (2010) 106 SASR 304; Jarvis v The Queen (1998) 20 WAR 201; Herbert v The Queen (2003) 27 WAR 330; R v Ryan (2001) 206 CLR 267, considered.
R v CAVE
[2012] SASCFC 42Court of Criminal Appeal: Doyle CJ, Anderson and White JJ
DOYLE CJ: Mr Cave has been sentenced to imprisonment by the District Court on three separate occasions. On each occasion he was sentenced for serious sexual offences against a number of young men and a smaller number of young women. On 30 April 2008 he was sentenced to imprisonment for 18 years for offences committed between November 1971 and December 1976. On 6 May 2011 he was sentenced to imprisonment for 18 years for offences committed between January 1980 and June 1986. On 2 December 2011 he was sentenced to imprisonment for 14 years for offences committed between about 1995 and May 2001. Each sentence was cumulative upon its predecessor.
Mr Cave is now serving a head sentence of 50 years’ imprisonment. A non‑parole period of 33 years was fixed by the Judge who last sentenced him. Mr Cave was 61 years of age when the third sentence was imposed. He will be eligible for parole at the age of 93. He will be on parole (if he lives that long) until he is 106 years old.
Mr Cave now appeals against the second and third sentences. There has been no appeal against the first sentence. In a nutshell, he makes three complaints. First, that the sentences are in any event excessive. Second, that the combined effect of the sentences exceeds what is appropriate, and should be reduced on account of considerations of totality. Third, that in any event the effect of the third sentence is to leave him with no realistic prospect of life outside gaol, and accordingly, the third sentence at least should be reduced on that account.
Mr Cave’s offending
It is necessary to outline the offending conduct. It is unnecessary to descend to the finer details, because the arguments that were presented properly focus on the broader issue of the overall total of the sentences imposed on the second and third occasions, and the overall effect of the sentences.
I begin by dealing with the offences dealt with on the first occasion, which are not the subject of appeal. Nevertheless, these sentences contribute to the end result and should be taken into account.
The District Court Judge summarised the offences as follows:
Philip Cave, you have pleaded guilty to nine offences of a sexual nature which occurred between 17 November 1971 and 9 December 1976, comprising four counts of buggery, four counts of unlawful carnal knowledge and one count of indecent assault. You had originally been charged with 13 counts but ultimately four counts were withdrawn. The charges relate to six victims, all of them young boys aged between 11 years and 14 years at the time of the offending.
At the time of the offending the offence of buggery carried a maximum penalty of 10 years imprisonment. The charge of unlawful carnal knowledge carried a maximum penalty of seven years imprisonment. The charge of indecent assault, being a subsequent offence, also carried a maximum penalty of seven years imprisonment.
When the first offence was committed, Mr Cave was 21 years of age. In a sense, the offences speak for themselves. The facts outlined by the Judge reveal a pattern of predatory behaviour, involving careful “grooming” as it is called. Mr Cave relied on gaining the trust, depending on the situation, of the victim and of the victim’s parents. He relied on gifts and participation in activities or events that would be attractive to the victims. The facts before the sentencing judge disclosed numerous sexual offences that were not the subject of charges. Mr Cave was not to be punished for this conduct, but it meant that he could not claim that the offences were isolated acts. The Judge referred to the “terrible consequences” of the offending for the victims. The Judge had a report from Mr Fugler, a psychologist. The Judge commented:
The extent to which I can have regard to your statement to Mr Fugler that you have not engaged in sexual behaviour with young boys since this offending is problematic. I have considerable difficulty accepting the truth of that assertion. That is so for a number of reasons, including the nature of your predatory behaviour demonstrated in respect of the victims of your offending. Ultimately I have come to the view that I will proceed on the basis that what you told Mr Fugler is correct. In the event that you are required to be sentenced in the future, no doubt the sentencing judge will take into account that I have sentenced you on the basis that your offending behaviour was restricted to the period 1971 to 1976. In addition, in imposing a penalty, I bear in mind that the offences occurred now over 30 years ago.
The Judge’s reference to the truth of what Mr Fugler was told was prophetic.
The Judge referred to the need for deterrence, and for the need to protect children from the kind of abuse to which Mr Cave had subjected his victims. The Judge bore in mind that the offences were committed when Mr Cave was much younger, and that he was 58 years of age when he came before the Judge. He noted that each year of the sentence to be imposed would represent a not “insubstantial proportion of the life left to you”.
The Judge imposed a sentence of imprisonment for 18 years, and fixed a non-parole period of 12 years.
I turn now to the second group of offences. This group is the subject of appeal. The offences were dealt with by the District Court on 6 May 2011.
I turn now to the second group of offences, the sentences in respect of these offences being the subject of the appeal.
This group involved four victims. In relation to one, Mr Cave was convicted of the offence of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). This offence attracted a maximum punishment of life imprisonment. The offence was committed between January 1980 and June 1986, and involved 15 particularised and separate sexual offences involving the victim. In relation to the second victim, Mr Cave was convicted of the offence of unlawful sexual intercourse with a person above the age of 12 years and under the age of 17 years. The maximum punishment for this offence was imprisonment for seven years. In relation to the third victim, Mr Cave was convicted on two counts of indecent assault. The maximum punishment for each of these offences was imprisonment for seven years. This was so because each of these offences was a subsequent offence, an earlier such offence having been committed in 1974. Finally, Mr Cave was convicted on a further count of indecent assault in relation to the fourth victim.
In sentencing Mr Cave the Judge made use of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), and imposed a single sentence. The Judge noted that, pursuant to s 10(4) of the Sentencing Act, a primary policy of the criminal law is to protect children from sexual predators. He noted also that by s 29D of the Sentencing Act Parliament had endorsed the approach to sentencing standards taken by this Court in R v D (1997) 69 SASR 413.
The Judge indicated that a “notional starting point” in relation to the offences was 14 years for the offence of persistent sexual exploitation, five years for the offence of unlawful sexual intercourse, a total of four years for the first two offences of indecent assault (involving the third complainant) and three years’ imprisonment for the third offence of indecent assault (involving the fourth complainant). No doubt taking into account considerations of totality, the Judge indicated that but for the plea of guilty he would have imposed a sentence of 20 years’ imprisonment, but in fact imposed a sentence of 18 years’ imprisonment to allow for the plea of guilty. The Judge reviewed and extended the non-parole period from 12 years to 26 years. That period commenced on 29 September 2006.
The circumstances of the offences are broadly similar to those of the first group. Once again, the circumstances indicate that Mr Cave put considerable efforts into “grooming” the victims. There is also a pattern of using one child to put him in contact with friends of that child, who would then be groomed and become the victim of offences. In relation to the offence of persistent sexual exploitation, Mr Cave had made threats to the victim to discourage him from disclosing the offending. The threats would have been realistic to a boy aged about 11 years. Mr Cave engaged in a number of strategies to persuade or encourage the victims to submit to his attentions, and showed considerable skill in that respect. The Judge said:
Evidence tendered in this matter shows you put great effort into grooming, establishing trust, variously bribing and threatening and manipulating your way to the offending that has occurred. In each case you were in a position of trust, having taken the boys away with the agreement of their parents, only to take advantage of them for your own purposes.
The declarations reveal that you would tell any number of lies to the victims in the course of your dealing with them, whether to impress them, hold out the promise of trips or presents, or scare them to dissuade them from complaining. This is a pattern of serious ongoing sexual abuse of young boys which is plainly reprehensible.
The Judge noted that in light of the circumstances before him, Mr Cave had misled the psychologist whose report was put before the Judge who sentenced for the first group of offences. The Judge concluded, and there was every reason to do so, that there was “little cause for optimism” that Mr Cave intended to change his behaviour. In fact, the Judge said:
Indeed, in my view you are highly likely to continue such offending whenever you are released. That means that yours is a case where the protection of the public assumes even more importance. I accept that any sentence must take into account your current age, the existing sentence you are serving, the totality principle, that a sentence must not be crushing unless unavoidable and that any sentence I impose is likely to form a significant portion of any remaining life expectancy you have.
Further, I take into account your counsel’s submission that at an advanced age you may be unlikely or unable to commit any further offending if released. Regrettably such a submission can only go so far. As is plain from cases such as R v Mittiga (2010) SASCFC 67, age is no barrier to persistent sexual offending, the offender in that case abusing children when he was over 80 years of age.
It cannot be said that the Judge overlooked any relevant circumstance.
I pause here to comment that the punishment was substantial, even heavy. But one has to bear in mind the seriousness of the offences, and the seriousness of these particular circumstances before the Court. Clearly enough, Mr Cave stood to be sentenced as a dangerously skilful and determined offender, in relation to whom there was no reason to think that he intended to change his ways. Protection of the public called for a heavy sentence for its deterrent effect on Mr Cave, and also to protect the community by removing him from the community.
In my opinion the sentence that the Judge imposed is not open to criticism. The only issue on appeal is whether considerations of totality, or considerations related to Mr Cave’s age, called for any reduction at the end of the day.
I turn now to the third group of offences. These offences were committed between about 1995 and about 2001.
On this occasion Mr Cave pleaded guilty to six counts of persistent sexual exploitation of a child and one count of unlawful sexual intercourse. The maximum punishment for each of the former offences was life imprisonment. In respect of the offence of unlawful sexual intercourse the maximum punishment was imprisonment for seven years.
The Judge noted that Mr Cave had deceived the first District Court Judge who sentenced him, and Mr Fugler, in relation to his intention to stop this kind of offending.
There were seven victims in all. In relation to the offending, the Judge said:
I turn now to the offending itself. In all, there were seven young male victims. Your sexual activity in respect of most of them was very extensive, one or two others less so. By way of summary, it included you performing fellatio, having fellatio performed on you, mutual masturbation, indecent touching and licking, anal intercourse and attempted anal intercourse. There were multiple acts by you upon most victims, too many for them to remember. Probably too many for you to remember or, I suspect, care.
It is difficult to describe the full effect on your victims. Their victim impact statements make harrowing reading. Your actions have had a profound effect on most of their lives, including their later wives and partners and children. Whole lives have been ruined. Relationships have been difficult to form and be maintained. There has been a lack of trust and emotion. Some have turned to alcohol and drugs to mask the pain. At least one has attempted suicide. Schooling and later employment was difficult and some have never been able to hold down a job.
Then there are the everyday consequences – lack of trust, fear, anger, shame, feeling dirty, betrayal, loneliness, an inability to sleep and nightmares. I do not pretend that covers all aspects of the effects upon your victims. I do have regard, however, to all of those effects.
The Judge noted that by then Mr Cave was 61 years of age. His health was beginning to deteriorate, and imprisonment would become increasingly difficult for him. The Judge bore in mind that, subject to what the Judge did, Mr Cave was not due for release until he was 82 years of age. The Judge said that an issue for him was whether he should impose a sentence that would allow scope for release on parole towards the end of Mr Cave’s life. The Judge indicated that he would reduce the sentence that he imposed by about 10 per cent on account of Mr Cave’s pleas of guilty, even though his pleas were by no means early.
The Judge imposed a single head sentence of 14 years’ imprisonment, to be cumulative upon the other sentences. He reviewed and extended Mr Cave’s non‑parole period to one of 33 years, that is, an additional seven years. The Judge noted that Mr Cave would be eligible for release on parole at 89 years of age. His head sentence would extend well beyond his life expectancy.
There is one minor matter that should be mentioned. On 4 August 2010 Mr Cave was sentenced in the Magistrates Court to imprisonment for nine months, for an offence of indecent assault. That sentence was to be cumulative upon the sentence then being served in respect of the first group of offences. The second Judge to sentence Mr Cave made no reference to this sentence, and was either unaware of it or, perhaps, intended that the sentence that he imposed be concurrent with that nine month sentence. The third Judge decided to correct the situation by treating the existing head sentence before him as one for a period of 36 years and 9 months. It was not open to him to do that, because the head sentence was fixed by the order of the second Judge. Accordingly, the appeal should in any event be allowed for the purpose of correcting the error. The District Court record, and the Report of Prisoner Tried, should be amended to delete the reference to nine months in relation to the head sentence now being served by Mr Cave.
The sentences imposed by the third Judge appear to me to be appropriate, subject to consideration of the issues argued on appeal.
The appeal
I accept that it is likely that Mr Cave will die in prison. If released on parole, he is likely to have only a short time at liberty.
Mr Heffernan, counsel for Mr Cave on appeal, submits that each of the latter two sentencing Judges should have reduced the sentence imposed either by treating some of the components of the single sentence as operating concurrently, or by reference to considerations of totality, or on a merciful basis having regard to Mr Cave’s age, and the age he would have to reach to have a chance of being released on parole.
In my opinion this is not a case in which it was appropriate to make any of the sentences concurrent with any other sentence, having regard to the usual principles relating to concurrence. If there is to be a reduction in the overall sentence, it can only be by reference to considerations of totality or on a merciful basis by reference to Mr Cave’s age.
The role of the concept of totality in sentencing is well established, although it is by no means a precise concept.
In R v E, AD [2005] SASC 332; (2005) 93 SASR 20 I said:
[36]The concept of totality will usually have little part to play when a sentence is imposed in exercise of the powers conferred by s 18A of the Sentencing Act. If the sentencing judge arrives at a sentence, without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate: see R v Major (1998) 70 SASR 488. No further reduction under the totality principle would usually be called for: see R v Bennett [2005] SASC 55 at [15]-[16] (Doyle CJ); R v BRWK (2005) 91 SASR 200 at [16]-[17] (Doyle CJ), at [24]-[25] (Vanstone J). That is not to say that the principle of totality never requires consideration in such a case. Ordinarily one would not expect it to require separate consideration.
[37]The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that “the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J). The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so “crushing” as to call for some reduction in the aggregate: see King CJ in R v Rossi (1988) 142 LSJS 451, cited by McHugh J in Postiglione (at 308). I refer also to the remarks of Kirby J on this point in Postiglione (at 340-341). As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
But I went on to make the point that there are cases in which a sentence must be imposed even though it could be described as crushing. The regular reference to crushing sentences in this context should not be understood to mean that a sentence is to be reduced merely because it may seem to be crushing. In R v E, AD I said:
[38]In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
I accept that in one sense the sentence is crushing. It is severe, and as long a sentence as is likely to have been imposed in the history of this Court (apart from life sentences). It allows Mr Cave little prospect of obtaining a release on parole. The head sentence will in all likelihood extend for longer than Mr Cave’s life. But Mr Cave has demonstrated a determination, over a long period of time, to continue committing serious offences. He engaged in deception and strategies to do so. He remains a man likely to continue offending, were he to be at liberty. There is no reason to think that he has changed. His crimes have inflicted serious harm on the considerable number of victims of his crimes, and no doubt on their families as well. In my opinion it cannot be said that the aggregate of the sentences exceeds what is a just and appropriate measure of the total criminality. The number of offences in this case is staggering. The aggregate of the sentences means, because Mr Cave escaped detection until late in life, that he is likely to spend the rest of his life in prison. To my mind, this is a case that called for a sentence of the kind that has been imposed, although that sentence can be called crushing in its effect.
To the extent that considerations of totality reflect an element of mercy, it is not appropriate in this case to be merciful. There is nothing by way of mitigation that can be said in Mr Cave’s favour.
It is appropriate to give separate consideration to Mr Cave’s age. In R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231 Mullighan J said:
[30]The cases clearly show that advanced age may have the effect of reducing a sentence in appropriate circumstances but it does not follow that such age necessarily has that consequence. Obviously a person in his eighties or nineties is not to be inadequately punished for serious crime, merely because of his age. It is to be expected that in such cases the effect of the sentence is that the offender will probably die in prison. Age cannot subsume all other matters to be taken into account, including the four main considerations on sentence, appropriate punishment, protection of the public, deterrence, both general and personal, and rehabilitation, although it may be said that advanced age may have an effect upon one or more of those considerations, particularly deterrence: see Holyoak (at 507) per Allen J.
Those observations are relevant to this case. I agree that personal deterrence does not call for such a long sentence. A sentence that extends beyond the likely life of an offender cannot (to that extent) deter that offender. Nor does the protection of the public require such a long sentence. Mr Cave’s age cannot overwhelm all other considerations, although it is a matter to be taken into account. In R v Ellis [2010] SASC 118; (2010) 107 SASR 94 Sulan J, with whom the other members of the Court agreed (Duggan J at [1], Kourakis J at [120]), made the following pertinent observation:
[83]Courts have often extended a degree of mercy in cases of advanced age because each year of the sentence represents a substantial proportion of the period of life which is left to an elderly offender. Although the present case involves an elderly offender, there is the additional consideration that the appellant is an offender who has escaped the consequences of his criminal conduct for decades before finally being brought before the court. Had he been convicted of his crimes soon after committing them, the appellant would have spent a significant number of years in gaol in the prime of his adult life. Instead, he had the benefit of living what may arguably have been his best years as a free man. This benefit must reduce the force of the submission that the appellant will be spending a significant proportion of, if not all, the latter years of his life in custody.
Footnote omitted
In my opinion Mr Cave’s offending disentitles him to this exercise of mercy on the part of the Court. I accept that in a sense the head sentence can be said to be artificial or hypothetical, because there is no prospect of Mr Cave surviving that long. But, on the other hand, in my opinion the Court should not, because of that, reduce the head sentence to a figure likely to be reached before Mr Cave dies. To do so would significantly erode the elements of condemnation and general deterrence that are reflected in the sentence imposed on him.
Conclusion
For those reasons I would dismiss the appeal against the sentence imposed in respect of the second group of offences.
In relation to the third group of offences, I would allow the appeal solely for the purpose of directing that the record of the District Court, and the Report of Prisoner Tried, be amended to delete reference to the period of nine months in the head sentence, but that subject to that the appeal against that sentence be dismissed.
ANDERSON J: I agree that the appeal should be dismissed in relation to the second group of offences. I agree with the reasons of the Chief Justice.
I also agree with the Chief Justice in allowing the appeal on the third group of offences for the limited purpose of correcting the court record.
WHITE J: The circumstances giving rise to these appeals are set out in the reasons of the Chief Justice. Those circumstances, as distinct from the nature of the appellant’s offending, are unusual.
The appellant is a paedophile. Over a period of just on 30 years, commencing in November 1971 and concluding in May 2001, he committed numerous offences involving the sexual abuse of boys and youths. There were some 17 victims.
The first group of nine offences were committed between November 1971 and December 1976. I will refer to them as “the 1970s offences”. They involved six separate victims, aged between 11 and 14 years. On 30 April 2008, Judge Soulio sentenced the appellant in the District Court to a single sentence of 18 years (reduced from a starting point of 22 years on account of the appellant’s pleas of guilty) and fixed a non‑parole period of 12 years. Judge Soulio directed that the sentence commence on 29 September 2006, when the appellant was taken into custody. This sentence is not the subject of any appeal.
The second group of offences were committed between January 1980 and June 1986 (the 1980s offences). They involved four separate victims, aged between 11 and 15. On 6 May 2011, Judge Stretton imposed a single sentence of imprisonment of 18 years for these offences and directed that it be served cumulatively upon the sentence imposed by Judge Soulio. Judge Stretton’s starting point was 26 years which he reduced to 20 years, apparently in accordance with the principle of totality, and then by a further two years on account of the appellant’s pleas of guilty. Acting under s 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), Judge Stretton then reviewed the non‑parole period and extended it by 14 years, resulting in a non‑parole period of 26 years. The appellant appeals against this sentence.
The third group of offences was committed between 1990 and May 2001 (which I will call the 1990s offences, although this description is not entirely accurate). There were seven victims of these offences, aged between 10 and 16 years at the time. On 2 December 2011, Judge Rice imposed a single sentence of 14 years imprisonment for these offences and directed that it be served cumulatively upon the sentences already being served. This included a sentence of imprisonment for nine months imposed in the Magistrates Court. As the reasons of the Chief Justice indicate, this aspect of the sentence involved error.
Judge Rice’s starting point had been a sentence of 18 years (after a reduction of 10 per cent for the pleas of guilty) and he reduced that starting point to 14 years on account of the principle of totality. Judge Rice then reviewed the non‑parole period and, acting under s 32(1)(b) of the CLSA, extended it to 33 years. The appellant appeals against this sentence.
The effect of the three sentences imposed in the District Court can be summarised as follows:
Sentence for the 1970s Offences
Sentence for the 1980s Offences
Sentence for the 1990s Offences
Head Sentence
18 years
18 years
14 years
Commencement Date
29/9/06
Expiry of first sentence
Expiry of second sentence
Total Period to be Served
18 years
36 years
50 years
Non-parole Period
12 years
26 years
33 years
Age of Appellant on Completion of the Head Sentence
74 years
92 years
106 years
Age of Appellant on Completion of the Non‑parole Period
68 years
82 years
89 years
As the reasons of the Chief Justice and of each of the sentencing Judges indicate, the appellant’s offences were particularly heinous. The appellant’s abuse of his victims involved predatory behaviour, grooming, breaches of trust, scheming, lying, threats and a persistence in the exploitation of young boys for his own gratification over a prolonged period. The victim impact statements reveal the blighting effect of the appellant’s conduct on his victims.
The appellant’s counsel acknowledged that the offending was in the most serious category of offences of their kind. These were cases in which there was little which could be said by way of mitigation, and little scope for any leniency. Severe sentences had to be imposed.
The appellant did not contend that the sentences imposed by Judge Stretton and Judge Rice were excessive, when considered by themselves. His submission was that the overall effect of the three sentences was disproportionate, and so crushing that some adjustment should have been made to each of the sentences imposed by Judges Stretton and Rice in accordance with the principle of totality.
For the reasons which follow, I consider that this submission should be accepted and that the appeals against the sentences imposed by Judge Stretton and Judge Rice should be allowed.
Statutory Context
Section 10 of the CLSA specifies a number of matters to which courts must have regard in sentencing. Two of those matters are particularly important in the appellant’s case.
Section 10(1)(k) requires courts to have regard to the need to ensure that defendants are adequately punished for their offences. This is usually understood as incorporating the common law requirement that sentences be reasonably proportionate to the gravity of the offences for which they are imposed. In Hoare v The Queen[1] the High Court described this as a basic principle of sentencing law, saying:
[A] basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances ….[2]
(Emphasis in the original)
Similarly, in R v Hunter[3] King CJ said:
It is necessary, however, that the time required to be spent in prison be adequate punishment for the crime committed. The basic concepts of justice which underlie the criminal law require that the punishment be fairly proportionate to the crime in accordance with the prevailing standards of punishment.[4]
Proportionality has been described as “a limiting principle that operates to prevent the imposition of sentences that are manifestly excessive or manifestly lenient, in light of the objective circumstances of the offence”, so that a Judge can “pursue any of the established purposes of sentencing within the parameters of the proportionate sentence”.[5]
[1] (1989) 167 CLR 348.
[2] Ibid at 354. See also Veen v The Queen [No 2] (1988) 164 CLR 465 at 472.
[3] (1984) 36 SASR 101.
[4] Ibid at 103.
[5] Australian Law Reform Commission, Same Crime, Same Time : Sentencing of Federal Offenders, Report No 103 (2006) at [5.6]. See also Hoare v The Queen (1989) 167 CLR 348 at 354.
Thus, a primary requirement in the sentencing of the appellant for the 1980s offences and the 1990s offences was that the sentences constitute an adequate punishment in the sense that they be fairly proportionate to the appellant’s crimes in accordance with prevailing standards of punishment.
Section 10(4) emphasises the importance of regard to considerations of deterrence in sentencing for offences of the present kind. It provides:
A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.
Section 10(4) reflects one of the principal purposes of the criminal law, namely, the protection of the community, by its specific reference to the protection of children from sexual exploitation. It is a statement of the legislative intention that, in order to achieve that protection, paramount consideration be given to the need for deterrence. I understand this to mean that in fixing a just and proportionate sentence, a consideration which cannot be outweighed by other considerations is the need for deterrence. This encompasses both personal and general deterrence.
However, s 10(4) is not to be understood as indicating that considerations of deterrence will be the same in all cases, or that each separate sentence imposed on the one offender for similar offences must reflect deterrence in the same way. It requires that consideration of the need for deterrence be paramount in such cases, but without interfering with the discretion of the sentencing court as to the way in which that paramount consideration is to be reflected. In particular, s 10(4) allows courts to have regard to the deterrent effect, or likely deterrent effect, of a sentence already being served or to be served.
In the present case, both Judge Stretton and Judge Rice referred to the importance of deterrence. It is plain that each intended to give effect to the principle contained in s 10(4).
The Totality Principle
The totality principle is well recognised. In Mill v The Queen,[6] the High Court quoted with approval the following passage from Thomas, Principles of Sentencing, (2nd ed):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total just to see whether it looks wrong[’]; ‘when …. cases of multiplicity of offences come before the Court, the Court must not content itself by doing the arithmetic in passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.[7]
As can be seen, this passage was directed to the circumstance of the one court imposing cumulative sentences. However, the principle of totality is also applicable when a court sentences an offender who is already serving a sentence.[8]
[6] (1988) 166 CLR 59.
[7] Ibid at 62-3.
[8] R v Roberts [2003] WASCA 203.
In R v Creed,[9] King CJ indicated that the principle of totality requires a sentencing Judge “to stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose”.[10]
[9] (1985) 37 SASR 566.
[10] Ibid at 568.
Doyle CJ has discussed the principle of totality in a number of cases. Extracts from his decision in R v E, AD[11] appear in the Chief Justice’s reasons in the present case. See also R v B, RWK.[12]
[11] [2005] SASC 332; (2005) 93 SASR 20.
[12] [2005] SASC 84; (2005) 91 SASR 200.
In a passage in Principles of Sentencing appearing shortly after that approved in Mill, Thomas suggested that the totality principle may operate in two separate ways:
A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects. The first limb of the principle can be seen as an extension of the central principle of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation.[13]
In my opinion, it is not appropriate to proceed on the basis of the first limb as stated by Thomas. It does not seem consistent with the proportionality principle identified above and to which s 10(1)(k) gives expression. Further, it does not seem consistent with the trend in modern legislation for distinct elements of conduct to be proscribed with the consequence that more than one offence may be committed in the one course of conduct, and a separate punishment imposed for each.[14] I note that the Court of Appeal in Western Australia has declined to adopt the first limb of the totality principle as stated by Thomas in the quoted passage.[15]
[13] D A Thomas, Principles of Sentencing, 2nd ed (1979) at 57-8.
[14] Cf Pearce v The Queen [1998] HCA 57 at [37]; (1998) 194 CLR 610 at 622.
[15] R v Bowman (1993) 69 A Crim R 530 at 537-8.
Two further points about the application of the totality principle are pertinent. The first is that when the principle is to be applied, and it is possible to do so, it is preferable for a sentencing court to adopt the technique of making sentences wholly or partly concurrent, rather than by reducing an otherwise appropriate sentence. In relation to this, the High Court in Mill v The Queen[16] said:
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentence wholly or partially concurrent or by lowering individual sentences below what would otherwise by appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[17]
[16] (1988) 166 CLR 59.
[17] Ibid at 63. See also R v Slater (1984) 36 SASR 524 at 535-6.
The second point is that a sentencing court may often be able to give practical expression to the principle of totality, and to the requirement of proportionality which is imbedded in it, by putting itself notionally in the position of a court sentencing at the one time for all the offences. The High Court in Mill suggested this approach in the circumstance of the court of one State sentencing an offender who has just served a term of imprisonment in another State for offences committed at about the same time:
In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second account, and eight years cumulative on the third count, making an aggregate head sentence of 18 years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely by imposing a sentence of eight years with five or six years concurrent with the earlier sentences.[18]
Although this notional approach was suggested in the context of courts in different States sentencing the same offender, I see no reason in principle why the same approach should not be adopted when different courts, with reasonable contemporaneity, sentence the one offender for numerous offences of a like kind.
[18] Mill v The Queen (1988) 166 CLR 59 at 66-7.
The prospect that the offender will die in prison is often raised in support of a submission that a sentence is crushing. That is because of the effect on a prisoner of the loss of hope of release. Mullighan J discussed the operation of the totality principle in these circumstances in R v Liddy (No 2)[19] and reviewed many of the authorities. He concluded:
The cases clearly show that advanced age may have the effect of reducing a sentence in appropriate circumstances but it does not follow that such age necessarily has that consequence. Obviously a person in his eighties or nineties is not to be inadequately punished for serious crime, merely because of his age. It is to be expected that in such cases the effect of the sentence is that the offender will probably die in prison. Age cannot subsume all other matters to be taken into account, including the four main considerations on sentence, appropriate punishment, protection of the public, deterrence, both general and personal, and rehabilitation, although it may be said that advanced age may have an effect upon one or more of those considerations, particularly deterrence …[20]
Mullighan J referred to R v Crowley & Garner[21] in which Crocker J said:
[W]hilst the Court must no doubt always be reluctant to impose upon an offender a sentence which can justifiably be described as crushing … , it does not follow that every sentence which justifiably deserves that epithet must on that account and on that account alone be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited the right to any such hope or expectation [of again living at liberty in the community].[22]
[19] [2002] SASC 306 at 24-33; (2002) 84 SASR 231 at 242-4.
[20] Ibid at [30]; 244.
[21] (1991) 55 A Crim R 201.
[22] Ibid at 206.
In summary, as I understand it, the totality principle has at its heart considerations of proportionality. It requires courts imposing cumulative sentences to consider the overall effect of the proposed sentences. If on that consideration the Court concludes that, despite the individual sentences otherwise being appropriate, their combined effect is disproportionate to the overall gravity of the offences and to the offender’s circumstances, it should make some adjustment, preferably by ordering partial concurrence with the sentences rather than by reducing the length of an individual sentence. However, in some cases, the objective gravity of the offences will be such that the minimum sentences which are appropriate cannot be reduced even if this means that the remaining life of the offender will be spent in prison.
As Doyle CJ has observed on a number of occasions, sentences are not to be regarded as crushing as a matter of routine. Many, perhaps most, sentences of imprisonment are, considered from the offender’s perspective, crushing. For a prisoner, the destruction of any prospect of regaining liberty, or of living a useful life after release, will be crushing. However, as the authorities indicate, that will sometimes be the inevitable result of the imposition of just and proportionate sentences, so that there can be no adjustment of the sentences on that account. What is required for the operation of the totality principle is some feature which justifies the adjustment of the sentences while still maintaining sentences which are otherwise proportionate to the offender’s circumstances.
Consideration
In my opinion, the effect of the sentences imposed for the 1980s offences and the 1990s offences is disproportionate to the gravity of the appellant’s offences. That is in part because of the crushing effect of the three sentences imposed on the appellant when considered in combination. In saying that, I am not intending any under-estimate of the enormity of the offences themselves, or of their effect on the appellant’s victims.
The first consideration is that, leaving aside sentences of life imprisonment, the total period of 50 years to be served in custody is well in excess of any previous head sentence, or accumulation of head sentences, imposed in this State by either this Court or the District Courts. Of itself this may mean very little as previous sentences are not to be understood as setting some yardstick of severity which cannot be exceeded. There must always be at least one case in which the sentence, or combination of sentences, will result in the longest period required to be served in custody. However, the total period to be served in the appellant’s case exceeds by a considerable margin any previous sentence, or accumulation of sentences. This suggests that the total period is not fairly proportionate “in accordance with the prevailing standards of punishment”.
The same applies, although not so obviously, if the sentence imposed by Judge Stretton is considered by itself.
Related to this consideration is the fact that there is no realistic prospect of the appellant ever completing all three sentences. In order to do so, he would have to survive to the age of 106 years, a prospect which is so remote that it may be disregarded. As indicated earlier, this factor, considered by itself, may mean very little. Depending upon the age of an offender at the time of sentencing, and the length of the sentence imposed, there will always be cases in which an offender is likely to die before completing a head sentence. The significant matter in the present case, however, is that even after serving a longer period in custody (other than in cases of life imprisonment) than has been imposed on anyone else, the appellant will still have a substantial period to serve, so substantial that he will have no prospect of completing the sentence in his lifetime. It is to be observed that at the time of sentence the appellant had a statistical life expectancy of 22 years and yet the aggregate of the sentences exceeds that figure by 28 years.
Thirdly, the overall period to be served and the non‑parole period almost certainly exceed the periods which would have been fixed had the appellant been sentenced for all the offences by the one Judge at the one time.
The especially crushing effect of the sentence lies in the fact that even after serving 30 years in custody, the appellant will still have another 20 years to serve, and another three years before becoming eligible for parole. Realistically, the appellant is left with little reasonable prospect of release, and therefore without the hope of regaining his liberty, even on a conditional basis, which sustains prisoners during long periods of incarceration.
Even if the appellant does achieve parole, there will be little opportunity for the period on parole to achieve its intended rehabilitative effect. This is significant as it is well recognised that the possibility of release on parole serves to mitigate the punitive effect of a sentence, ie, by allowing an opportunity for rehabilitation through conditional freedom.[23] However, the appellant would have to attain the age of 89 years before becoming eligible for this mitigatory effect. As indicated, there will be some cases in which this result is inevitable, whether as a result of the offender’s age or the length of the period to be served. What is significant in the appellant’s case is that these circumstances will exist even after the appellant has served more than 30 years in custody.
[23] Power v The Queen (1973) 131 CLR 623 at 629; Deacon v The Queen (1984) 58 ALJR 367.
A number of matters may account for the disproportionality. First, although Judge Stretton and Judge Rice considered the totality principle in fixing their respective head sentences, it is not clear that they also considered it in relation to the combined effect of those sentences with the sentence(s) which the appellant was already serving or required to serve. One cannot be certain about that, particularly in the case of the sentence imposed by Judge Rice, as it may be said that his sentence may have been higher if it was the only sentence which the appellant had to serve.
Secondly, a sentence for offences of a generally similar kind which is not to commence until some considerable time in the future, such as the present, involves particular considerations. Depending on the circumstances, the paramount consideration of deterrence and the element of rehabilitation may operate differently in such cases. That is because it may be reasonable for the sentencing court to conclude that the long period in custody before the second, or later, sentence commences will, by itself, have a deterrent effect, especially as a personal deterrent. In such cases, the offenders will have suffered the loss of liberty and other consequences which imprisonment entails and thereby have had brought home to them the consequences of conduct of the kind involved. Similarly, the long period of incarceration before a second or later sentence commences is likely to provide some opportunity for rehabilitation of the offender to occur. It will usually be appropriate for account to be taken of this prospect. As I understand it, considerations of this kind led Kourakis J in R v Cramp[24] to observe that the period of imprisonment necessary to deter an offender from recidivism may be reduced if that imprisonment is to commence only after the offender has served an earlier sentence.[25]
[24] [2010] SASC 51; (2010) 106 SASR 304.
[25] Ibid at [59], 320.
It has been said that a sentence which is not to commence until some future date may have more severe effects than a sentence which commences immediately. Counsel for the appellant referred to Jarvis v The Queen[26] in which Ipp J said:
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.[27]
See also Herbert v The Queen[28] and R v Roberts.[29]In the latter case Wheeler J, with whom Murray and Templeman JJ agreed, referred to “the understanding that a sentence which is not to commence until some future date is necessarily more severe than one to be commenced immediately”.[30]
[26] (1998) 20 WAR 201.
[27] Ibid at 207.
[28] [2003] WASCA 61; (2003) 27 WAR 330 at [10]-[23].
[29] [2003] WASCA 203.
[30] Ibid at [16]-[17].
With respect, I would have some reservations about accepting, at least without qualification, the notion that the severity of a sentence increases “exponentially” with its length, as suggested by Ipp J in Jarvis, or that a sentence which does not commence until some future date is “necessarily” more severe than one which commences immediately, as suggested by Wheeler J in Roberts. However, I do consider to be sound the notion that a court fixing a sentence which is to commence only after the completion of an earlier lengthy sentence for offences of a similar kind should consider whether the earlier sentence may achieve in part some of the deterrence and rehabilitation to which the second sentence would otherwise be directed.
Although, as I have indicated, one cannot be certain about this, it appears that the sentences in this case did not take account of these considerations. In my respectful opinion, this involved error. As has been observed many times, the sentencing process is not merely a mathematical exercise. The imposition of a just sentence involves more than the mere accumulation of sentences which are appropriate for an individual offence, or a group of individual offences.[31]
[31] Pearce v The Queen (1998) 194 CLR 610 at 624; R v Ryan (2001) 206 CLR 267 at 294.
It is also to be observed that neither Judge Stretton nor Judge Rice adopted the technique of putting themselves notionally in the position of sentencing for all of the offences at the one time (in Judge Stretton’s case this did not include the 1990s offences). I note in addition that Judge Stretton had refused the appellant’s request to defer the sentencing for the 1980s offences until his guilt or otherwise of the 1990s offences had been determined.
In the present case the appellant must serve a very lengthy period in custody by reason of Judge Soulio’s sentence for the 1970s offences. That sentence is likely to achieve some of the deterrent effect which would have been necessary if the appellant was being sentenced only for the 1980s offences, or only for the 1990s offences.
The appellant’s rehabilitation is not to be compartmentalised so that the rehabilitation which may be achieved under Judge Soulio’s sentence should be ignored in the imposition of the later sentences. In saying this, I regard as particularly significant the length of the sentence imposed by Judge Soulio. I also note that the psychologist, Mr Fugler, concluded, in somewhat guarded terms, that there are at least some prospects of the appellant being rehabilitated.
I consider that these factors in combination indicate that the effect of each of the sentences imposed in the District Court for the 1980s offences and the 1990s offences is disproportionate to the overall gravity of the appellant’s offending and to his circumstances. Accordingly, I consider that the appeals should be allowed and that each of the sentences imposed by Judge Stretton and by Judge Rice should be set aside.
On the re-sentence, I would impose the same head sentences of 18 years and 14 years respectively as were imposed by Judge Stretton and Judge Rice after giving the appellant the same credit for his guilty pleas. I would, however, order that the first six years of the sentence imposed for the 1980s offences be served concurrently with the sentence imposed by Judge Soulio and that the first four years of the sentence imposed for the 1990s offences be served concurrently with the sentence imposed for the 1980s offences.
The effect of these adjustments is that the total period to be served by the appellant in custody will be 40 years. I would extend the non‑parole period to 28 years, with that non‑parole period having commenced on 29 September 2006.
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