R v Haven (a pseudonym)
[2022] ACTCA 61
•11 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Haven (a pseudonym) |
Citation: | [2022] ACTCA 61 |
Hearing Date: | 16 August 2022 |
DecisionDate: | 11 November 2022 |
Before: | McCallum CJ, Mossop and Kennett JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Crown appeal against sentence – sexual intercourse without consent – young offender – whether complete suspension of sentence of imprisonment manifestly inadequate – sentence lenient but no appealable error demonstrated – appeal dismissed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), Ch 8A, ss 7, 33(1), 133C, 133D, 133G Crimes Act 1900 (ACT), ss 54, 55 |
Cases Cited: | Azzopardi v R [2011] VSCA 372; 35 VR 43 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | The Queen (Appellant) Brian Haven (a pseudonym) (Respondent) |
Representation: | Counsel A Williamson (Appellant) T Jackson and S Robinson (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) JDR Law (Respondent) | |
File Number: | ACTCA 6 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Norrish AJ Date of Decision: 4 February 2022 Case Title: R v Haven (a pseudonym) Citation: [2022] ACTSC 25 |
THE COURT:
Introduction
On 4 February 2022 an acting judge of the Supreme Court sentenced the respondent for an offence against s 54(1) of the Crimes Act 1900 (ACT), engaging in sexual intercourse without consent. The sentence imposed was two years and seven months’ imprisonment but that sentence was wholly suspended subject to a good behaviour order for three years.
The Crown has appealed against that sentence. The only ground of appeal which was pressed was that the sentence was manifestly inadequate. That was because the suspension of the imprisonment resulted in a sentence that was manifestly inadequate. The Crown argued that suspending the sentence in its entirety failed to maintain an adequate standard of punishment for offences of this nature and did not achieve the purposes of sentencing – particularly general deterrence and denunciation. The Crown submitted that notwithstanding the respondent’s youth, the objective seriousness of the offence in combination with the respondent’s demonstrated lack of remorse and limited prospects of rehabilitation, required the imposition of a period of full-time custody.
Principles to be applied
The principles applying to Crown appeals alleging manifest inadequacy were summarised in R v Nicholas; R v Palmer [2019] ACTCA 36 at [66]-[68]. Manifest inadequacy of sentence is a conclusion inferred from the result. It is one of the discretionary errors described in House v The King (1936) 55 CLR 499 at 505. If the sentence “is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in a court of first instance”: House at 505.
The offending
The facts of the offending are in summary as follows.
(a)The respondent had become friends with the victim in October 2019 through a program run for children in care. He had an intimate relationship with her which lasted until November 2019 when she commenced a relationship with someone else.
(b)On 29 February 2020 the respondent sent a photograph to the victim on Snapchat. The photograph showed him self-harming, with about seven horizontal self‑inflicted cuts on his arm. He also sent a message asking her to meet him. He threatened to continue to self-harm unless she met with him. She agreed to meet with him to talk.
(c)At about 11:30pm the respondent met the victim at the Gungahlin bus interchange. They walked together to a secluded area surrounded by large commercial waste bins and shrubbery within the perimeter of the Gungahlin recycling centre. They sat down against a brick wall and spoke for a short time about their lives. The respondent then grabbed the victim’s throat with his right hand and pushed her upwards, pinning her against the brick wall in a standing position. He told her to lift her arms above her head, which she did. He removed her red-and-white striped shirt and threw it on the ground. She responded that she “did not want to do this” and that she had a boyfriend. The respondent said to her that it did not matter and she should not tell her boyfriend. He grabbed her by the shoulders and pushed her down onto her knees. The respondent pulled down his pants to reveal his erect penis. He attempted to move the victim’s mouth towards his erect penis while saying words to the effect of “just suck it”. The victim pushed the offender’s penis away from her mouth.
(d)The offender used both hands to push the victim’s shoulders causing her to fall backward onto the ground. He positioned himself on top of her, moved her shorts and underwear to one side and inserted his erect penis into her vagina. She kicked out at the offender and, after a short time, was able to manoeuvre her body from underneath him.
(e)The victim got up from the ground, grabbed her shirt and bag located nearby, put her shirt back on and ran to a nearby petrol station where she asked an employee to contact police.
(f)Following the offending, the respondent sent a Facebook message to the victim saying: “Wasn’t going to come near u I told u I’m sorry for what happen and it won’t happen again okay”.
(g)The respondent participated in an interview with police on 18 March 2020 in which he said he suffered from an undiagnosed multiple personality disorder. He denied participating in penile-vaginal sexual intercourse with the victim. He said he could not recall participating in oral sex with the victim.
The proceedings below
The proceedings before the primary judge were heard on 31 January and 1 and 4 February 2022. The sentence was imposed and reasons given on 4 February 2022.
Prior to the sentencing hearing, both appellant and respondent had provided written submissions. The submissions of the Crown addressed objective and subjective factors by reference to the considerations in s 33(1) of the Crimes (Sentencing) Act 2005 (ACT) (CS Act). The submissions identified the relevant objective features of the offence. They identified the relevant sentencing principles in s 7 of the CS Act as they applied to sexual offences. The Crown submitted that nothing but a sentence of imprisonment was warranted, but noted that the respondent’s youth would be a significant consideration and that greater emphasis would be placed upon opportunities for rehabilitation.
The written submissions by counsel for the respondent addressed the timing of the guilty plea. So far as objective seriousness was concerned, submissions were made directed to a list of circumstances relevant to the characterisation of the conduct. The submission was made that the offending was below the mid-range of objective seriousness for this offence. In relation to the respondent’s subjective circumstances, the submissions explained how a summary document entitled “Young Offenders Personal History” had been prepared. Submissions were made in relation to the disadvantage suffered by the offender in his upbringing, in particular, parental drug addiction and incarceration followed by his removal from parental care. The submissions addressed the facts relating to the respondent’s mental health. The submission was that there was a possible material causal connection between his mental health and the offending, but that even if there was not, then his mental condition would still operate to mitigate the severity of his sentence. The submissions addressed the prospects of rehabilitation and comparative sentences. The submission was that the sentence should be wholly suspended but with supervision to address his circumstances. The submission was that neither the circumstances of the offence nor current sentencing practice required a sentence of full-time detention.
Both the appellant’s and the respondent’s written submissions to the primary judge contained summary tables of comparable sentences.
On 31 January 2022 counsel for the Crown sought an adjournment of the sentence proceedings because the victim of the offending was under the age of 16 and as a consequence, a different charge under s 55(2) of the Crimes Act was available. The charge under s 55(2) has a maximum penalty of 14 years’ imprisonment rather than the 12-year maximum penalty for the offence on the indictment. Counsel for the Crown indicated that the prosecution policy was that the most appropriate charge was the one that ought to be laid. His Honour indicated that it would be significant if it was not open to proceed on the charge on the indictment, as distinct from a situation where there were two available alternative charges and the Crown had chosen to charge one rather than the other. The position adopted by the accused was that the charge was an available one. Counsel for the Crown indicated that she wished to give some consideration as to whether there was anything in law that would prevent the Crown from proceeding on the charge that was on the indictment. The proceedings were adjourned until the next day.
On 1 February 2021 counsel for the Crown indicated that there was no legal impediment to the Crown proceeding on the charge that the respondent had been arraigned on and pleaded guilty to. His Honour then gave reasons refusing to permit the Crown to withdraw the indictment previously filed to permit a charge carrying a greater maximum penalty.
The Crown tendered a tender bundle which contained the Agreed Statement of Facts, the indictment, a pre-sentence report, a transcript of the accused’s record of interview with the police on 18 March 2020 and his criminal history. There was some dispute about whether or not the victim impact statement could become an exhibit and this was resolved on the basis that it would be marked for identification and read onto the record.
The respondent tendered a bundle of documents which included a document entitled “Young Offender’s Personal History” prepared by counsel for the respondent (which annexed an extract of a report by psychologist Daniel Troy), a support letter from the respondent’s fiancé disclosing their current circumstances, two earlier decisions of the Supreme Court and a news report in relation to the respondent’s father. There was no objection to the tender of these materials.
The tables of comparative cases in the appellant’s and respondent’s submissions were both marked as exhibits.
Counsel for the Crown then made oral submissions. The submissions addressed:
(a)the need for caution in relation to any mitigation of sentence on the basis of the respondent’s mental health issues; and
(b)the assessment of the objective seriousness of the offence having regard to the violence involved, that the intercourse involved penile-vaginal intercourse without a condom, that there was a “breach of trust” and a degree of premeditation.
There was then some discussion with the primary judge about what might constitute a breach of trust and the issue of premeditation. In relation to premeditation, counsel for the Crown accepted that this needed to be proved beyond reasonable doubt.
In relation to the respondent’s rehabilitative prospects, counsel for the Crown suggested that the respondent was trying to “inveigle his way out of accountability” by claiming multiple personality disorder and due to disparaging comments he had made about the victim and about women in general to the pre-sentence report author. She referred to the decision of R v PM [2009] ACTSC 24 as an example of a case in which full-time custody was imposed for a young offender who had committed sexual intercourse without consent.
Counsel for the respondent acknowledged that there were “unfortunate and stupid aspects of the young offender’s interaction with Corrective Services”. The comments made by the respondent influenced the author’s opinion that he had a medium to high risk of general reoffending. Counsel sought to mitigate the effect of what was recorded in the pre‑sentence report by reference to the extracts of Mr Troy’s report and the defence tender bundle. He submitted that although the comments might reflect a lack of remorse and a lack of insight, the respondent should not be found to be a general danger to society as a result of the comments that he made to the author of the pre-sentence report. So far as lack of insight and lack of responsibility was concerned, counsel submitted that the respondent had no continuous or effective developmental guidance during his upbringing.
In relation to specific deterrence, counsel pointed out that in the two-year period since the offending, there had been no relevantly similar further offending.
He then made submissions in relation to what he described as the key differences between the Crown submissions and his own. In relation to objective seriousness, he submitted that premeditation was not established beyond reasonable doubt and nor was a breach of trust. So far as the duration of the incident was concerned, he did not say that it mitigated the seriousness of the offending but simply that it did not aggravate it.
He then addressed the issue of mental health. He submitted that the significance of general deterrence should be moderated first by reference to the respondent’s youth and also by a combination of his mental condition and his disadvantage. He submitted that it is possible for mental ill health to moderate, in a small way, the significance of general deterrence even where there is no causal connection between mental illness and the offending.
Counsel for the respondent submitted that supervision would be appropriate as a condition of a bond that went along with a suspended sentence. His ultimate submission was that a wholly suspended sentence was appropriate. He had made reference in his submissions to the decision in Azzopardi v R [2011] VSCA 372; 35 VR 43 and that the period in custody would detract from the respondent’s rehabilitation. He submitted that rehabilitation had a primary role to play because of Ch 8A of the CS Act and because of the respondent’s circumstances.
He then made some submissions addressing the timing of the plea of guilty.
In submissions in reply, counsel for the appellant made reference to the decision of the Court of Appeal in R v UG [2020] ACTCA 8 which made reference at [51] to the fact that whether the offender was in a position of trust or authority was a factor that can be taken into account, whether or not the offence is a family violence offence. There were some submissions in reply made about the nature of the relationship between the respondent and the victim and whether or not that involved a breach of trust.
The reasons of the primary judge
The primary judge identified that the maximum penalty was 12 years’ imprisonment. He indicated that having regard to the utilitarian benefit of the respondent’s guilty plea he would afford a discount of 15 percent on the otherwise appropriate sentence.
The primary judge then summarised the facts of the matter in a way that was consistent with the facts set out above. He also summarised aspects of the police investigation into the matter. He commented:
The police enquiries reveal no multiple personality disorder but reference to the fact that the offender suffered from: self-defeating, and avoidant personality traits (that is, basically, self‑destructive personality, as well as avoiding responsibility for his conduct); negativistic and depressive features; dysthymic disorder (which is another way of expressing depressive disorder); adjustment disorder, with depressed mood; disruptive behaviour disorder; and identity problem. A lot of these conditions, of course, are consistent with the character of his personality.
The primary judge identified that the plea of guilty had been entered after the respondent was committed for trial.
He indicated that the strength of the Crown case was not a significant matter in the assessment of the utilitarian value of a plea in New South Wales and that he had been informed that this was also the case in the Australian Capital Territory.
He identified that the respondent was 17 years and two months old at the time of the offending. The victim was more than a year younger than him and possibly under the age of 16. However, he said that the difference in age was not significant “given their prior relationship and their common background”. It was not a case of much older person taking advantage of a younger person. Rather, he said: “It is a case of a male taking advantage of a woman. First, by inveigling her to meet him, by acting out as he did, by self‑harming, and then by taking her to a place where he had the opportunity to assault her.”
The primary judge identified that the offender’s father is “a seasoned criminal, who has been in jail many times for many acts of violence” and that his mother was addicted to drugs and died when she was 31. Notwithstanding that, the respondent’s criminal history was “in reality, non-existent”. That is because there was a subsequent offence which was proved but in relation to which no conviction was recorded. Therefore, the primary judge indicated that he would treat the respondent as a person without prior convictions.
He then referred to the pre-sentence report which he described as “a very thorough report in a range of ways and it is a very revealing, and disturbing, report in a range of ways”. He referred to the following features of the pre-sentence report:
(a)The offender was in foster care for much of his life.
(b)His parents were involved in crime and he had little contact with his mother while in foster care. He had been in the control of different care authorities for well over 11 years.
(c)He had some form of de facto relationship for the last three years including the period during which the intimate relationship with the present victim occurred.
(d)His life in the de facto relationship involved living in motor vehicles or unsafe accommodation.
(e)He claimed to be an Aboriginal person but was not sure of his heritage and “Aboriginality was not a significant issue in the case”.
(f)He suffered bullying and isolation throughout his school years.
(g)He did not have a strong employment history.
(h)He had been abusing alcohol since the age of 12. He did not presently have a significant alcohol or drug problem although he does use cannabis.
(i)He did not have much by way of prosocial contact.
(j)He made comments to a Community Corrections officer which were “disturbing” because of their lack of respect for the victim, his failure to see the effect of his conduct on her and seeing himself as more of the victim. He also seemed to demonstrate a lack of respect for other women.
(k)He had claimed that he was thinking of using explosives to blow up the court room to kill himself and the victim of the offence.
(l)Although he had been assessed by mental health services, no major mental illnesses were recorded and he had continually declined engagement with mental health services. He made a lot of statements to the reporting officer that were “counterproductive and frankly - as his counsel put it, but in a different way - idiotic”.
His Honour then referred to two judgments relating to the offender’s father, one of which was a sentencing decision in relation to offences of burglary, aggravated robbery and possession of stolen property and a knife in a public place.
He referred to the summary of the respondent’s personal history (which he was prepared to accept) which described the deprivations of his childhood, sexual abuse occurring as a child and ACT Health records which disclosed at the age of six or seven “considerable disturbance quite consistent with the neglect that he had experienced”. He also referred to “a whole raft of circumstances that could only contribute to a miserable existence”.
His Honour then referred to the report of Mr Troy, prepared when the offender was 15 years old. He said that various parts of that report “may explain some of the outrageous things the offender has said in the course of interviews with police, but particularly in the Pre‑Sentence Report”.
The primary judge observed that he characterised the offender’s threats to others as involving “grandiose acting out”. Had he not treated them as such then he would have given greater weight to specific deterrence and making sure that he spent a substantial time in custody to deter him from further offending.
His Honour then discussed and quoted from Mr Troy’s report. It is necessary to set out this part of his Honour’s reasons, including the quoted passages from Mr Troy’s report, because of the complexity of the opinion expressed by Mr Troy.
34. Mr Troy’s report – and it is a very detailed report, although it is aged – refers to the offender’s apprehension and mistrust of others, his deprecation of self-worth, his willingness to be demeaned and placed in an inferior light, his permission of others to exploit and mistreat him. He seeks closeness and affection but cannot achieve it. He experiences recurrent anxieties, extended periods of depression. His thinking is occasionally distracted and confused, and his concern with social rejection and humiliation is often intensified by his tendency to elicit rejection.
35. He is frequently self-absorbed. He can be distracted by inner thoughts that intrude on his social communication. In line with his self-defeating tendencies, he may stir-up fractious encounters in which his failures and shortcomings are exposed:
[He has a] perverse form of expiation. Such discordant acts preclude a socially rewarding and consistent lifestyle, and together with his characteristic of affective dissonance, did little to promote favourable attention and constructive interest from others. As a consequence, he may drift further into a self-sabotaging and ineffectual life pattern.
36. The report says:
Pervasive instability and ambivalence intrude constantly into the stream of this teen’s everyday life resulting in fluctuating attitudes, erratic or uncontrolled emotions, and a general capriciousness and undependability. Displaying marked shifts in mood, he may exhibit extended periods of dejection and apathy interspersed with spells of irritability, anxiety or resentment. Dejection, depression and self-destructive acts are common. His anguish and despair are genuine, but they are also a means of expressing hostility, a covert instrumentality to frustrate and retaliate. He may voice dismay about the sorry state of his life, his sadness, his resentment, and his ‘nervousness’. This adolescent may feel discontent, cheated, and unappreciated that his efforts have been nought, and that he has been misunderstood and is disillusioned. But here again ambivalence intrudes; perhaps, he may say, it is his own unworthiness, his own failures, and his own ‘bad temper’ that are the cause of his misery and the pain that he brings to others.
37. That analysis when he was 15 sits somewhat at odds with the absence of any criminal history up until that period of time. The report goes on dealing with his personality, with a number of aspects of his pattern is disparaging his memories and achievements, noteworthy of attention is his tendency:
To restrain his personal attitudes and feelings, to express views contrary to his actual beliefs, and to demean his own convictions and opinions, he never appears to be undone by his apologetic and self-deprecating attitudes. Observation over a period of time is likely to reveal that these self-reproachful attitudes are largely exaggerated, artificial and force presenting an overblown façade of simulated impressions.
38. I am sorry to quote this in detail but it is important to see these observations, as his counsel submitted to me, in the light of what the offender said to the Community Corrections officer.
39. Under the heading ‘Clinical Syndromes’ the report said:
Pervasive feelings of inadequacy, worthlessness and guilt appear to have taken the form of suicidal ideation and the clinical picture of this socially awkward and introverted adolescent. Timid, shy, and apprehensive, he is especially sensitive to public humiliation and rejection. Worthy of note has been tolerance of daily unhappiness and emptiness. However, his former willingness to accept feelings of worthlessness and guilt has now taken the turn of self-destructive thoughts. Plagued with self-doubts and thoughts of death, he may be notably saddened by the view that he is both socially unattractive and physically inferior. Fearful of expressing his discontent to others who might further reject or humiliate him, he deals with his frustration by turning it inward, becoming intropunitively depressed and suicidal.
When this adolescent discharges intense and contrary emotions, he does so in brash and reckless ways. He is likely to demonstrate thoughtless and impulsive actions, be behaviourally restless, and exhibit a general expansiveness and hyper-distractibility. Consonant with his habitual pattern, he may be easily provoked into temper outbursts and angry and disruptive actions, creating an ever-increasing spiral of difficulties within family settings and with social authorities.
40. It goes on with diagnostic hypotheses, such as personality disorders, including self‑defeating and avoidant personality traits, and clinical syndromes of dysthymic disorder, depressive disorder, adjustment disorder with depressed mood, disruptive behaviour disorder and an identity problem. The psychologist outlined some suggestions for treatment which presumably were not followed up.
36. He then referred to the letter from the respondent’s partner which recorded that he was of support to her and the fact that “she and the offender have a very eclectic lifestyle and do not have much security in life living in cars and living with people who themselves are violent and drug addicted”.
37. He referred to the evidence in relation to the respondent’s father which demonstrated that his father had “a character for anti-social behaviour” that, leaving aside the current matter, had not been demonstrated by the respondent.
38. Turning to consider the CS Act, His Honour said in summary of the evidential material which he had discussed:
43. It is a very sad situation. But as I said, albeit that there are some very negative matters arising from the Community Corrections report, it seems to me consistent with his conduct towards the victim, at least in meeting with her on the night in question. A great deal of it is 'acting out', which brings us to the issue of how one can dispose of an offender such as this allowing for the fact that he was a young offender at the time in circumstances where ordinarily greater weight would be given to general personal deterrence.
39. His Honour then turned to sentencing considerations. He referred to the purposes of sentencing in s 7 of the CS Act. He made specific reference to the provisions of Ch 8A of the CS Act which relate to sentencing of young offenders. Those were relevant because the respondent was under the age of 18 when the offence was committed. He referred to s 133G of the CS Act which requires that a sentence of imprisonment, if it is to be imposed, must be a last resort and for the shortest appropriate term. He set out the terms of s 133C which permits the court to give more weight to the purpose of promoting the rehabilitation of the young offender than it gives to any of the other purposes stated in s 7(1).
40. He referred to the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. He also referred to the decisions in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 and R v Verdins [2007] VSCA 102; 16 VR 269. In relation to the offender’s mental health, his Honour said:
[I]t may be said of course that the offender has not had a diagnosed mental illness, as I have said, but there is ample evidence in my view of a mental disorder. The extent to which it has contributed to his offending is hard to say. It certainly has contributed to his acting out, which drew him to the victim or drew the victim to him on the night of the offence in question.
41. His Honour pointed out that the authorities have referred to the significance of the mental illness or disability being one that is causally connected to the offending behaviour. He referred to authorities which indicated that even where not causally connected to the offending, the offender’s mental condition may be relevant to sentence.
42. His Honour referred to the difficulties created by the absence of an up-to-date psychiatric or psychological report, saying that “while there is this plethora of indicia of mental instability and a range of explanations for the mental instability, to some extent reflected in the circumstances of the offending, [they] are not benefited by a specific diagnosis which provides material assistance”. He referred to the desirability of the court being fully informed, particularly in considering the issue of specific deterrence and protection of the community.
43. His Honour then referred to:
(a)the absence of a criminal history;
(b)the fact that the offender has been able to stay out of the way of the criminal law over the last two years since he committed the offence;
(c)his youth;
(d)his background of deprivation; and
(e)the terms of the legislation to which he had referred (presumably being a reference to the provisions in Ch 8A of the CS Act).
44. He then referred to the submissions made by the parties. In particular, he referred to cases said to be comparable. He distinguished the decision in PM, identifying the offending in that case as being more serious in a number of respects. He identified that there were, amongst authorities referred to by the Crown, cases in which lenient sentences were imposed for acts of sexual violence either by short terms of imprisonment or suspended sentences.
45. He said that the comparative authorities “lead me to the conclusion that the sentence that I propose, in all the circumstances of this matter, is not outside the range of sentences that have been deemed to be appropriate in this type of case, giving weight to many of the matters that I have identified, that may be said at this stage to only relate to this particular offender”. He then made reference to two specific decisions: R v Horton-Hegarty [2018] ACTCA 22 and R v EO [2017] ACTSC 138. He referred to the Court of Appeal authorities in relation to the quantum of discounts for pleas of guilty and rejected the respondent’s submission that a 25 percent discount should be given. He indicated, consistent with what was said earlier in the reasons, that a discount of 15 percent should be given.
46. He indicated that he was not satisfied beyond reasonable doubt that there was premeditation. He therefore rejected the Crown’s submission that the respondent brought the victim to the meeting with a plan to sexually assault her.
47. His Honour identified in relation to the objective circumstances and effect of the offending:
(a)there was no weapon used; and
(b)the duration was brief although that was not due to the conduct of the offender, but rather due to the resilience and courage of the victim.
48. He recognised that this offence could have a significant effect upon the victim and recognised that the victim herself had a most unfortunate, disadvantaged background. He indicated that he had regard to her victim impact statement.
49. He accepted that there were some prospects of rehabilitation. He identified that where people who have been given conditional liberty have turned their back upon the opportunity time and time again, then he approaches the claims of a desire for reformation with “considerable circumspection”. However, he pointed out:
Even though I am in some respects acting contrary to the statements made by the offender himself, it is the absence of other findings of guilt and charges that provides at least some prospect of rehabilitation and I should do my best to encourage that rehabilitation in accordance with Part 8A of the Sentencing Act.
50. In response to the Crown submission that a period of full-time in custody should be imposed, His Honour said:
Ordinarily, it deserves full-time custody. I accept that if the offender was older, or the offender had a worse criminal history, one would certainly be looking at a substantial term of imprisonment for an offence of this type.
51. He concluded:
The promotion or the rehabilitation of this offender, in my view, will not be served by, at this stage, committing him to full-time custody. This will be destructive of him, in my view. And notwithstanding his bravado, I can see a person such as him being very badly damaged in custody, to the point where, in my view, it would make him a greater danger to the community on his release than he will be to the community by my giving him this opportunity which I have indicated I am prepared to do.
But, I want the offender clearly to understand that, as I said, if circumstances were even slightly different from those that I have outlined from the material available to me, I would have no hesitation in sending him to jail, be it in a detention place or an adult prison, if it was appropriate for me in my power to do so. But, as the offender should also understand, if he fails to be of good behaviour, it is inevitable that he will go into custody and serve such time as the order that I make requires him to serve.
Submissions
52. The submissions of the appellant may be summarised by saying that only a sentence involving a period of full-time imprisonment was appropriate because of the combined effect of:
(a)the very grave nature of the rape and abuse;
(b)the absence of any evidence suggesting that immaturity played a role in the offending;
(c)that the sentencing judge did not find that the respondent had strong prospects of rehabilitation; and
(d)that the respondent was aged 17 years and two months at the time of the offending and thus had a greater ability than most juvenile offenders to appreciate the nature of his conduct.
53. The appellant submitted that “the sentencing judge’s assessment of the objective seriousness was alarming in its brevity”. The submission of the appellant was that there were other features of the offending that were not “explicitly referred to by the sentencing judge beyond the recitation of the facts”. While the appellant conceded that the primary judge had described the offending as “serious”, it submitted that the failure to properly assess and comprehend the objective seriousness of the offending contributed to the manifestly inadequate result.
54. The appellant submitted that having regard to what was said by the primary judge at [78], it was the respondent’s age and lack of criminal history that were determinative in reaching the conclusion that the period of imprisonment could be fully suspended.
55. So far as the provisions of Ch 8A were concerned, the appellant’s submission was that:
(a)This was not a case where the respondent had good prospects of rehabilitation, the primary judge having found only that he had “prospects of rehabilitation”.
(b)The offending involved violent crime of considerable gravity and should be characterised as “adult-like behaviour” in relation to which the consideration of rehabilitation required a degree of moderation.
(c)The respondent was 17 years and two months’ old at the time of the offending and, while there was some evidence of immaturity, there was no evidence supporting the conclusion that this was a significant factor in the commission of the offence or that the respondent did not understand the consequences of his actions.
56. The appellant submitted that the nature of the offending, the guarded prospects of rehabilitation and the respondent’s lack of remorse should not have resulted in a fully suspended sentence.
57. The appellant pointed to three decisions each involving sexual offences committed by young adult males which were said to go “some way in providing a ‘yardstick’ in formulating sentence”. Those were R v MT [2014] ACTSC 162, R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014) and R v Finau (No 2) [2020] ACTSC 193. It also submitted that the primary judge’s approach to PM involved the primary judge giving rehabilitation primacy to the exclusion of other sentencing principles.
58. The appellant pointed to the principles applicable to the imposition of suspended sentences of imprisonment and submitted that the imposition of a fully suspended sentence failed to achieve the purposes of general deterrence and punishment, failed to recognise the objective seriousness of the offending and was inappropriate because the respondent did not have good prospects of rehabilitation.
59. The appellant referred to the statement in MT that the imposition of conditions upon a good behaviour order involved a “carrot and stick” approach to behavioural reform and said that in the present case the sentence involved no “stick”. The appellant submitted that the imposition of a “bare” suspended sentence did not appropriately address the purposes of sentencing.
60. The respondent submitted that the primary judge was entitled to afford leniency given the respondent’s plea of guilty, his age, his mental condition, his upbringing of disadvantage, his lack of prior convictions and the period between his arrest and sentence without serious offending. The respondent provided a table of cases involving contraventions of ss 54 and 55 of the Crimes Act.
Consideration
61. The question for this court is not whether, if it was sentencing the respondent, it would have imposed the sentence imposed by the primary judge. It is whether the leniency of the sentence demonstrates a latent error of fact or law in the exercise of the sentencing discretion.
62. The lengthy and detailed reasons of the primary judge disclosed that he gave careful consideration to the evidentiary material to which he was referred. He grappled appropriately with its complexity. He gave specific consideration to the relevant provisions of the CS Act. He referred to the authorities identifying relevant principles. He made reference to the significance of the respondent’s mental health and childhood deprivation. He considered relevant comparable cases to which he was referred. He formed the view that there was at least some prospect of rehabilitation. While accepting that ordinarily a case such as the present required a sentence involving full-time custody, his Honour considered that it was appropriate to wholly suspend the sentence. He recognised that if the circumstances were slightly different from those described and, in particular, if the offender was older or had a worse criminal history, then he would have been given a sentence involving full-time detention.
63. The result of the sentencing exercise undertaken by his Honour does not indicate that there was some latent error. The complaints made by the appellant largely relate to the respective weights to be given to different and conflicting purposes of sentencing. That the primary judge gave a different weight to the potential for rehabilitation than contended for by the appellant does not indicate an error on the part of the primary judge. It was a case in which different conclusions could reasonably be reached in light of the evidence as to the prospects of rehabilitation and the weight to be given to that as a sentencing factor. It was a case in which the discretionary decision as to how to address the competing sentencing purposes might have led to significantly different outcomes, each of which were within the lawful scope of the discretion. The outcome arrived at by the primary judge was not unreasonable or plainly unjust. Rather, it involved a discretionary exercise which resulted in a lenient sentence. The leniency of the sentence does not indicate a House v The King error.
64. Having said that, it is appropriate to say something more about the principal submissions made on behalf of the appellant.
65. Objective seriousness: The appellant is correct in identifying that the sentencing judge did not repeat, in list form, the features of the offending which made it more or less serious in the way that the parties had done in their written submissions to him. Nor did he engage in the exercise of categorising the offending by reference to its high, medium or low objective seriousness for an offence under s 54(1) of the Crimes Act. However, having regard to the reasons as a whole, it is clear that his Honour appreciated the seriousness of the offending. The reasons do not disclose a failure on the primary judge’s part to appreciate the significance of any of the objective features of the offending. The reasons appropriately addressed the principal issue dividing the parties as to the characterisation of objective seriousness, namely, whether or not the appellant had proved beyond reasonable doubt that the offending was premeditated. Elsewhere in the reasons the primary judge accurately recited the agreed facts, identified the absence of a significant age disparity between the respondent and the victim, compared the objective circumstances of the sexual violence with that in PM, identified that there was no weapon and identified that the incident was brief although that was not due to the respondent.
66. Statutory provisions relevant to sentencing of minors: The appellant’s submissions emphasised that the respondent was close to the age of 18 and that the offending was serious offending. As a factual matter, those submissions were correct. The respondent was clearly in a very different position to a younger offender who had committed a less serious offence. However, that did not detract from the application of ss 133C, 133D and 133G of the CS Act. Those provisions still applied. In order to emphasise their significance, it is useful to summarise what they require:
(a)the court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in s 7(1): s 133C(1);
(b)the court must have particular regard to the common law principle of individualised justice: s 133C(2);
(c)the court must have regard to (s 133D(1)):
(i)the young offender’s culpability for the offence having regard to his or her maturity;
(ii)the young offender’s state of development;
(iii)the past and present family circumstances of the young offender;
(d)a sentence of imprisonment imposed on a young offender must be a last resort and for the shortest appropriate term: s 133G(2); and
(e)the court must consider making a combination sentence consisting of the sentence of imprisonment and a good behaviour order with a supervision condition: s 133G(3).
67. Even for a young offender close to the age of 18 who commits serious offending, these statutory provisions continue to apply: LB v The Queen [2016] ACTCA 6 at [24]; R v TL [2017] ACTCA 18 at [40]; MT v The Queen [2021] ACTCA 26;17 ACTLR 22 at [55].
68. Prospect of rehabilitation: The appellant’s submissions emphasise the fact that the respondent could not be said to have good prospects of rehabilitation. The primary judge undoubtedly recognised that. He carefully considered the evidence relating to the life circumstances and apparent attitudes of the respondent. Plainly, there was significant material that would give rise to concern about the respondent’s prospects of rehabilitation. However, the primary judge was clearly influenced by the fact that up until the subject offending and notwithstanding extremely difficult personal circumstances, the respondent did not have a criminal history. The factual situation was undoubtedly a complex one which required the primary judge to assess it in detail, having regard to the nuances of the evidence. It was open to his Honour to place significant weight on the absence of a criminal history in circumstances where the upbringing of the respondent had involved the degree of difficulty and the dysfunction that it had. Further, in relation to the concerning comments made by the respondent to the author of the pre-sentence report, having regard to the absence of a criminal history and the psychological material available to the primary judge, it was open to him to approach that evidence on the basis that he did. That was to treat them as “stupid remarks” reflecting his “grandiose acting out” or “bravado” rather than truly reflecting his likelihood of reoffending.
69. Comparable cases: Comparable cases were relevant because the primary judge was required to have regard to “current sentencing practice”: s 33(1)(za) of the CS Act. His Honour had the benefit of tables summarising other cases involving contravention of s 54(1) of the Crimes Act. Those cases illustrate the general proposition articulated in Wyper v The Queen; R v Wyper [2017] ACTCA 59 that the gravity of the offence of sexual intercourse without consent will generally require a period of full-time imprisonment in order to adequately reflect the purposes of sentencing. However, at the same time it must be recognised that the need to have regard to current sentencing practice does not mean that the measures of manifest excess and manifest inadequacy are “capped and collared” by the highest and lowest sentences previously imposed for similar offences: Wyper at [113]; Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; 262 CLR 428 at [51]. It is not useful to recite those cases involving contraventions of ss 54 or 55 which have been disposed of without a period of full-time detention other than to note that those cases have not involved violence such as that inflicted in the present case. A more common disposition where leniency is warranted is to suspend the sentence after a short period of full-time custody.
70. Suspended sentence: The submissions of the appellant assumed that there was no rehabilitative content to the “bare” suspended sentence because there were no conditions associated with the good behaviour order which would have a punitive or rehabilitative impact. This submission did not address, and failed to take into account, the requirement for supervision contained within the order and the effect of the good behaviour order. A condition of the good behaviour order made by the primary judge was that the respondent would be, subject to probation, supervised by the Director-General and required to obey all reasonable directions of the Director-General for a period of three years. Having regard to the definition of “probation condition” in the Dictionary to the CS Act, the capacity to give directions to the respondent is a broad one. It includes a power to direct alcohol or drug testing and a power to require attendance by the respondent at educational, vocational, psychological, psychiatric or other programs or counselling. The submission made by the appellant that the sentence was without “rehabilitative impact” cannot be accepted.
71. Further, the submission failed to have regard to the most obvious consequence of the making of a good behaviour order as a condition of suspending the sentence. That is that, if it is complied with, there will be a period of three years during which the offender does not commit further offences. That is a substantial period beyond the period since the subject offending, in which the respondent is not to commit an offence that is potentially subject to a sentence of imprisonment. For a young adult, that is a substantial time which of itself has rehabilitative consequences. During this period there will be the obvious and significant “stick” creating an incentive for good behaviour, namely, the potential imposition of the period of imprisonment if he fails to comply. The sentence therefore involved both an incentive for rehabilitation and specific deterrence of further offending conduct within the period of the good behaviour order.
Orders
72. While the sentenced imposed was undeniably lenient, the appellant has not demonstrated that it was manifestly inadequate so as to demonstrate that there has been a failure to properly exercise the discretion which the law reposed in the primary judge.
73. The order of the Court is: The appeal is dismissed.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 11 November 2022 |
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