R v House, J.D. R v Thorne, R.T

Re: THE QUEEN
And: JOSEPH DOUGLAS HOUSE and RONALD TROY THORNE
Nos. ACT G73 and 74 of 1990
FED No. 162
Criminal Law - Practice and Procedure
28 FCR 194

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Jenkinson(3) and Von Doussa(2) JJ.

CATCHWORDS

Criminal Law - Crown appeals against sentences imposed for in company inflicting actual bodily harm with intent to engage in sexual intercourse, engaging in sexual intercourse without consent - sentences of four years' imprisonment and order for release after serving a period thereof upon entering into recognisance containing conditions, including payment of a pecuniary penalty - disparity of sentences - evenhandedness in sentencing - desirability of adhering to general pattern of sentencing

Practice and Procedure - general sentence for two offences - whether appropriate

Crimes Act 1900 (NSW), ss.92B(2), 92D(1), 556B, 556C(4)(e)

Parole Act 1976, s.7(1), 21, 22

Criminal Appeal Act 1942 (NSW), s.5D

Principles of Sentencing, D.A. Thomas, 2nd Ed., p 56

The Queen v Kelly and Others (unreported, delivered 20 December 198 9)

Griffiths v The Queen (1977) 137 CLR 293

Re Hastings (1958) 1 All ER 707

Connolly v Meagher 91906) 3 CLR 682

The Queen v Hoar (1981) 148 CLR 32

The Queen v Boudelah and Charlston (unreported, delivered 10 April 1991)

HEARING

CANBERRA

#DATE 11:4:1991

Counsel for the appellant: Mr G. James QC and Mr S. Madden

Solicitors for the appellant: Director of Public Prosecutions

Counsel for the respondent: Mr C. Kilduff (House)

Solicitors for the respondent: Aboriginal Legal Aid (House)

Counsel for the respondent: Mr T. O'Donnell (Thorne)

Solicitors for the respondent: Legal Aid Office (Thorne)

ORDER

In respect of the respondent House, the appeal be allowed, the sentence of four years' imprisonment be confirmed and a non-parole period of two years be fixed.

In respect of the respondent Thorne, the appeal be dismissed and the sentence imposed by the Supreme Court of the Australian Capital Territory be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

These are Crown appeals against sentences imposed upon the respondents in the Supreme Court of the Australian Capital Territory on 15 November 1990. The respondents were arraigned on an indictment charging the respondent House with one count of acting in company with the respondent Thorne inflicting actual bodily harm upon the victim with intent to engage in sexual intercourse with her, contrary to s.92B(2) of the Crimes Act 1900 in its application to the Australian Capital Territory, and one count of engaging in sexual intercourse with the victim without her consent knowing that she did not consent or reckless as to whether she did consent, contrary to s.92D(1) of the Crimes Act 1900.

By the same indictment the respondent Thorne was charged with one count of acting in company with the respondent House inflicting actual bodily harm upon the victim with intent to engage in sexual intercourse with the victim, contrary to s.92B(2) of the Crimes Act 1900.
On arraignment both accused pleaded guilty to the respective counts against them. The maximum penalties provided are for an offence against s.92B(2) 17 years, and for an offence against s.92D(1) 12 years.
The sentencing judge imposed a single sentence in respect of the two offences to which the respondent House had pleaded guilty, namely a sentence of four years' imprisonment and an order that the respondent be released after eight months on condition that he enter into a recognisance self in the sum of $2,000: (i) to be of good behaviour for a period of three years; (ii) to accept the supervision and direction of the Director of Adult Corrective Services; (iii) if deemed suitable by the Director, to attend 30 hours at an Attendance Centre over a period of 12 months following release and participate in and complete all exercises which he may be asked to do both during and between sessions of the program; (iv) to report to the Director as soon as practicable after his release; (v) to pay a penalty of $2,000 within two years from his release by instalments of not less than $250 each three months till the whole is paid.
He sentenced the respondent Thorne to two and a half years' imprisonment and ordered that he be released after six months on condition that he enter into a recognisance in the sum of $1,500: (i) to be of good behaviour for a period of two years; (ii) to accept the supervision and direction of the Director of Adult Corrective Services; (iii) if deemed suitable by the Director, to attend 30 hours at an Attendance Centre over a period of 12 months following release and participate in and complete all exercises which he may be asked to do both during and between sessions of the program; (iv) to report to the Director as soon as practicable after his release; (v) to pay a penalty of $1,500 within two years from his release by instalments of not less than $250 each three months till the whole is paid.
He ordered that the sentences in each case commence from 13 August 1990.
The facts giving rise to the commission of the offences were stated by the sentencing judge at the time of passing sentence. The victim was a 29 year old woman. She and the respondents were members of the Aboriginal community and known to each other. The victim came from Melbourne to work with the Department of Aboriginal Affairs. The respondent House worked for the Aboriginal Education Consultative Group as a resource person. The respondent Thorne was a Superannuation Fund Investment Trust employee, being a registry assistant.
On Saturday, 17 June 1989, members of the Aboriginal community in Canberra went to Bungendore for a football match. All concerned in this matter drank a considerable amount of alcohol.
After the match, all the parties return to the Woden Town Club. There was more drinking. The victim became upset about something, overturned a table and threw some billiard balls, at which time the Manager asked her to leave. At this stage she was upset and crying.
The respondent House and a man called Wayne Smallwood offered to share a taxi with her, which took them to a flat near the Lyons shops. She was still upset and complained of being homesick. She had only been in Canberra a short time. The respondent Thorne and another man arrived later. There were five men and the victim there and, apparently, more liquor was consumed at the flat. The victim, still distressed, decided to go home. She intended to call a taxi from a booth near the Lyons shops.
As she was seated on a wall near the phone booth prior to calling a taxi, she was knocked to the ground. Although she was unaware who did this, it was established that the respondent House was responsible. Her jeans and panties were pulled down. The respondent House lay on top of her and penetrated her vagina. He was spitting at her and calling her names. The respondent Thorne was covering her eyes. Someone, probably the respondent House, said, "cover her face so she can't see, cover her face ...".
The respondent House got off her and the respondent Thorne then attempted to have sexual intercourse. He said, "what do I do, what do I do?". He did not, it seems, achieve penetration. The respondent House attempted to penetrate her a second time but was, apparently, scared off by the lights of an approaching car. The respondents fled. Behind them they left the victim, her jeans and panties around her knees, bruised around her right eye, bleeding from her nose. She was hysterical and greatly distressed. The passers-by in the car stopped and subsequently called police officers. The victim was taken to Royal Canberra Hospital by ambulance.
Dr Lloyd examined the victim and found bruising and abrasions to the mid-back and tender swelling to the lower part of her back. Her right eye was bruised and closed by swelling. The right cheek bone was tender as was the jaw. There were small red marks on the inside of her right thigh and abrasions on her left knee.
The respondents were apprehended in or after flight from the scene.
The victim suffered severe after-effects which were outlined in the Victim Impact Statement. The major impact has been psychological. She could not return to work for three months. As at the date of the most recent report, she still had some continuing back pain, anxiety and fear of strangers as at 29 May 1990. The prognosis was, at that time, that she would continue to suffer from the impact of the assault for a considerable time to come.
His Honour found that the respondents had committed a serious sexual assault on the victim. In the case of the respondent House, this was aggravated by the fact that he inflicted actual bodily harm on her and had sexual intercourse with her without her consent and was aided by, and in company with, the respondent Thorne. The respondent Thorne was knowingly and actively concerned in the infliction of actual bodily harm by the respondent House. He assaulted the victim by attempting to have sexual intercourse with her though he did not seem to know, probably because he was affected by liquor, what to do. His offence was further aggravated by being in company with the respondent House and aided by him.
His Honour found that the sexual assault was humiliating and degrading and an attack that was as shameful as it was cowardly. His Honour then took into account the subjective factors relating to both respondents.
The respondent House was born on 1 January 1962 at Cowra and moved to Canberra in 1965. He completed his schooling to year 10, he displayed musical talent and he enjoyed Rugby League and basketball. He has worked as a roof tiler and a public servant. Since 1982 he has worked both as a volunteer and in paid employment for Aboriginal welfare agencies. His role in the area of Aboriginal education was a valuable and responsible one. He married in April 1989.
His Honour observed that the respondent House had a record of a number of alcohol related offences of a minor nature but nothing for violence or sexual assault. The pre-sentence report noted that to have no regard for the victim and seemed to lack a proper appreciation of the consequences of his conduct. There was other evidence, of which his Honour took note, that the respondent House had an alcohol problem.
Notwithstanding that the sexual assault to which the respondent House pleaded guilty was a serious one, his Honour found it mitigating that he had pleaded guilty and spared the victim the ordeal of appearing before a jury, no weapon was used, the violence was not extreme or prolonged, and that the respondent House was feeling genuine remorse.
His Honour did not refer to the subjective factors relating to the respondent Thorne but no doubt he took them into account. The evidence established that he was born at Collarenabri on 12 April 1968 and is an only child. His father left the family home when the respondent was a young child. When he was about 10 years old, he again met his father and has since found that he has a step sister and two step brothers.
The respondent Thorne attended school at Collarenabri until year seven when he and his mother moved to Canberra. He was an average student and left school when in Year Twelve at College.
After he left school he was employed by the Aboriginal Development Commission as a Registry Assistant for six months and then a temporary storeman. He was then employed as a storeman at the Australian National Art Gallery for six months. He then held a job with the Department of Employment Education and Training as a clerk for a few weeks. He then travelled to Adelaide to undertake an Aboriginal Teacher Education Programme Scheme at the Underdale College of Advanced Education but became homesick and returned after a few months.
He then gained employment at the Department of Aboriginal Affairs as a clerk but this lasted only a few weeks. He then remained unemployed until the time of his arrest. In January 1990 he was employed by the Superannuation Investment Trust as a registry assistant.
The respondent Thorne has strong associations with members of the Aboriginal community and participates in football and basketball. He was not a heavy drinker but usually binged after pay day. He frequently smoked marijuana but ceased this after his arrest.
He had indicated one week before his trial was listed for hearing that he intended to plead guilty and no doubt his Honour took this fact into account.
On the hearing of the appeal he had served the period of six months imprisonment fixed by the sentencing judge and entered into the recognisance ordered.
The Crown has appealed against the sentences imposed upon both respondents on identical grounds, namely;

(a) the period fixed before release on recognisance was manifestly inadequate;

(b) the sentencing judge failed to have due regard to the seriousness of the offences and the facts and circumstances surrounding the commission of the offences;

(c) the sentencing judge took into account the race of the respondent, which is not a permissible

ground of discrimination in the sentencing

process; and

(d) he failed to incorporate adequate deterrent and retributive factors in the sentences imposed.

The Crown did not argue that the head sentence of four years' imprisonment imposed upon the respondent House for the two offences for which he pleaded guilty was inadequate or not otherwise within the sound exercise of the sentencing discretion. The contention on behalf of the Crown was that the orders for release after serving only 8 months with the imposition of a requirement that the prisoner enter into a recognisance containing certain conditions, including that he be of good behaviour for a period of three years, attend at an Attendance Centre, and pay a penalty of $2,000 within a period of two years, was manifestly inadequate and failed to give weight to the factors of general deterrence and retribution.
In imposing a head sentence of four years on the respondent House and two and a half years on the respondent Thorne and ordering their respective release after a specific term, the sentencing judge was exercising the power conferred by s.556B of the Crimes Act 1900 (NSW). If he had merely imposed a head sentence in excess of 12 months, he would have been required to fix a non-parole period pursuant to s.7(1) of the Parole Act 1976. As previously stated, the respondent Thorne has been released on recognisance after serving the period of six months from 13 August 1990, the date to which his sentence was backdated.
It might be assumed that the respondent House is willing to enter into the recognisance ordered by his Honour, but there was no inquiry about the matter in the Supreme Court. On that assumption, the respondent House will not be kept in custody any longer than eight months dating from 13 August 1990. When released he will not be on parole on such conditions as the Parole Board of the Australian Capital Territory thinks fit (ss.21 and 22 of the Parole Act), nor will he be liable to have his parole revoked for failure to comply with the conditions of his parole order as would a prisoner released on parole. The sanction for breach of the recognisance presumably to be entered into is committal to prison for a further term not exceeding the balance of the sentence to be served (s.556C(4)(e) of the Crimes Act 1900 (NSW)).
In choosing the option of a fixed sentence and an order for release on recognisance, the sentencing judge has excluded the operation of the parole system. If the above assumption is not correct and for some reason the respondent House chooses not to enter into the recognisance ordered by his Honour, he will serve the full head sentence of four years' imprisonment, remissions on sentence and non-parole periods having been abolished in the State of New South Wales, where prisoners sentenced by a court in the Australian Capital Territory serve their sentences.
Before considering the grounds of appeal, I wish to make some observations about the fact that the sentencing judge imposed only one sentence in respect of the two offences to which the respondent House pleaded guilty. It appears from his remarks on sentence that he intended to impose only one sentence in respect of both offences. He did not use either the word "concurrent" or the words "consecutive" or "cumulative".
In The Queen v Kelly and Others (unreported decision of a Full Court of this Court delivered 20 December 1989), Pincus and Miles JJ. criticised a sentence imposed upon a prisoner after a finding of guilty on two counts of a sexual nature. In that case the sentencing judge imposed one sentence in respect of the more severe offence of engaging in sexual intercourse with the victim without her consent in company with others, and declined to inflict any further penalty in respect of engaging in sexual intercourse with the victim without her consent, a lesser offence. Their Honours said that in their view it was inappropriate that a sentencing judge should simply decline to sentence on any particular count. They said that upon conviction after trial on indictment the court is bound either to pass sentence in respect of each count on which there has been a conviction or, if there be some statutory warrant, to defer passing sentence indefinitely. They cited Griffiths v The Queen (1977) 137 CLR 293 at pp 336-7 and Re Hastings (1958) 1 All ER 707.
With due respect to their Honours, Griffiths v The Queen is no authority for the principle stated. In that case a sentencing judge had deferred passing sentence upon a prisoner without formally convicting him and remanded him for sentence in 12 months' time on the condition that he enter into a good behaviour bond for that period. The Attorney-General appealed on the ground that the sentence was inadequate and the Court of Criminal Appeal of New South Wales imposed a sentence of imprisonment. On appeal to the High Court the prisoner successfully argued that he had not been "sentenced" by the judge within the meaning of s.5D of the Criminal Appeal Act 1942 (NSW). Accordingly, the High Court held that the Attorney-General had no right of appeal to the Court of Appeal under s.5D and the Court had no jurisdiction to entertain the appeal.
In the passage referred to by Pincus and Miles JJ. in The Queen v Kelly and Others, supra, Aickin J. referred to the number of possible courses of action available to a judge when an accused has been convicted and enumerated them, the first being to sentence the accused to a term of imprisonment. Griffiths v The Queen is no authority for the proposition that a sentencing judge must always impose a sentence for each offence of which the accused has been convicted.
Their Honours further referred to Re Hastings, supra. In that case the prisoner had been convicted on an indictment containing five counts for various crimes of dishonesty. The sentencing judge sentenced the prisoner to four years' corrective training without any reference to concurrent sentences. The Court quashed one of the convictions for larceny as a bailee and added that in other respects the appeal failed and said that there would be no alteration of the sentence. The prisoner moved for his release from gaol on the ground that no legal sentence had been passed on the remaining four counts. It was held that the sentence passed on the prisoner was, on its true interpretation, a sentence of concurrent terms on each count. In the course of his judgment, Lord Goddard C.J. said that it is desirable that some words should be used when passing the same sentence on several counts to show that it is passed on each count, eg, such words as "on each count" or "concurrent".

It is interesting to note that Lord Goddard C.J. also said in discussing the cases referred to, that nothing had been said earlier in the House of Lords to the effect that a general sentence could not be given.
With respect to their Honours' views in The Queen v Kelly and Others, I do not agree that there is any principle of law that upon conviction after trial on indictment the Court is bound either to pass sentence in respect of each count on which there has been a conviction or, inter alia, to defer passing sentence. What is important for a sentencing court is first, to observe the totality principle, the effect of which is to require that the sentence or aggregate sentences be just and appropriate. The principle has been stated many times in various forms (see Principles of Sentencing, D.A. Thomas, 2nd Edition, p 56). Especially is it not inappropriate for a sentencing judge to pass a single sentence to cover the criminality involved in a number of offences to which the accused has pleaded guilty rather than pass numerous sentences. If only one sentence is passed to punish for a number of offences, it is desirable to specify the particular offence, usually the most serious one, in respect of which the single sentence has been passed and state that it is inexpedient to pass sentence in respect of the other offences.
Secondly, the sentencing court must observe the practice, if not a rule of law, that a person should not be twice punished for what was substantially the same act (see Connolly v Meagher (1906) 3 CLR 682). The importance of preserving or adhering to the rule against duplication of penalty was starkly illustrated and referred to by the High Court (Gibbs C.J., Mason, Aickin and Brennan JJ.) in The Queen v Hoar (1981) 148 CLR 32 at p 38 (see also Murphy J. at p 40). In that case the respondent had been convicted of conspiracy and there were substantive charges still outstanding upon which the Crown had not decided whether to proceed or not. The High Court referred to the undesirability of charging a conspiracy offence when substantive offences had been committed.
These appeals are very similar to the appeals brought by the Crown in the cases of The Queen v Boudelah and The Queen v Charlston (judgment delivered 10 April 1991). In those cases also, head sentences were ordered and orders for release after a fixed period upon entering into a recognisance containing conditions, including payment of a pecuniary penalty, were imposed. I referred in those cases to the novelty of those sentences in sexual cases and the desirability of preserving relativity in sentences passed. I need not repeat what I said in those cases.
I have come to the conclusion that in respect of the respondent House, the sentence imposed was so inadequate having regard to the seriousness of the offence and the objective factors relative to the respondent as to warrant this Court's intervention. I would, in the light of the Crown submissions in respect of the respondent House, confirm the head sentence of four years' imprisonment and fix a non-parole period of two years.
I am also of the opinion that the sentence imposed upon the respondent Thorne was too lenient in all the circumstances. However, the Court indicated on the hearing of the appeal that as the respondent Thorne had been released, having served the period of six months imposed by the Supreme Court, and entered into the recognisance ordered, it would not make such an order as would involve the respondent Thorne returning to custody. In the circumstances the best course is not to interfere with the sentence imposed upon the respondent Thorne.

JUDGE2

The circumstances of the crimes for which the respondents were sentenced are recited by Gallop J. It is to be observed that although the respondents, and the victim, were members of the Aboriginal community, the respondents had been brought up in a suburban environment, and from the completion of their schooling lived and worked as ordinary members of the community in Canberra. Whilst it was proper for the learned sentencing judge to note their Aboriginality, and to have regard to disadvantages which they have suffered by reason of that fact, their backgrounds and present circumstances provided no reason to award sentences which failed to reflect the sentencing standards for serious sexual assaults customarily applied by the Courts, and expected by the community in which the respondents lived.

The grounds of appeal which allege that the period of imprisonment before release of each respondent on recognizance was manifestly inadequate, and that the sentencing judge failed to have due regard to the seriousness of the offences, and to incorporate adequate deterrent or retributive factors in the sentences imposed, raise similar issues to those considered by this Court in the Crown appeals in The Queen v Boudelah and The Queen v Charlston (judgment delivered 10 April 1991). For the reasons given by Gallop J. in those matters, with which I agreed, the sentences imposed on the present respondents are so out of line with customary sentencing standards that this Court should intervene by expressing its disagreement with those sentences.
I agree that the appeal in the matter of the respondent House should be allowed, the head sentence of four years imprisonment should be confirmed, and that the Court should fix a non-parole period of two years.
The matter of the respondent Thorne raises a particular difficulty. Although the sentence imposed on him was in my opinion inappropriate and inadequate, he has already served the term of imprisonment which was fixed, he has entered into a recognizance on the conditions formulated in the sentence, and he has commenced to fulfil those conditions. It would be cruel to return him to gaol. To permit his original sentence to stand whilst allowing the appeal of the co-offender might be thought to introduce an element of disparity. The disparity can in my view be justified by the subordinate role which the respondent Thorne played, but to the extent that this may not be so, I do not consider the degree of disparity requires this Court either to dismiss the appeal against the sentence imposed on the respondent House or to substitute a more severe punishment on the respondent Thorne.
I agree with the orders proposed by Gallop J.

JUDGE3

The questions which these appeals raise for determination are disclosed in the reasons of Gallop J. for his judgment, which I have had the advantage of reading. I agree in the orders which he has proposed for the disposition of the appeals.

The learned judge who sentenced the respondents had much apparently persuasive evidence to lead him to the conclusion, which it must be inferred that he reached, that the interest of the community, as well as the respondent House's interest, would be well served by reduction, to the minimum which could properly be fixed, of the period of House's incarceration. But in my opinion the gravity of the offences was such that the period of eight months cannot escape characterisation as manifestly inadequate in respect of a man aged 27 at the time of the offences in whom no constitutional mental abnormality was demonstrated.
The respondent Thorne was 21 years old at the time of the commission of the offence. His acts were of lesser gravity than those of House. The learned sentencing judge's observations on Thorne in his reasons for the sentences imposed are not extensive. But it should in my opinion be assumed that his Honour thought that in Thorne's case also a very short period of imprisonment would be likely to be productive of substantial benefit to the community, as tending to minimize the chance that Thorne would be influenced by his experiences in prison to commit further criminal offences. Such a consideration does not in my opinion justify in all the circumstances of this case so short a period of incarceration of Thorne, which I think to have been manifestly inadequate. However, it seemed in the best interests of the community not to make an order which would result in Thorne's return to prison after he had been released, and after he had obtained employment and had undertaken a liability, with another person, for payment of rent under a lease of a flat.
The questions whether one sentence may be, or ought to be, imposed in respect of more than one count, or whether a court may without statutory authority, or ought to, abstain from pronouncing a sentence upon a conviction, which Gallop J. has discussed in his reasons for judgment, were not the subject of submission on the hearing of the appeals. I prefer to express no opinion on any of those questions. My concurrence in the form of the orders proposed for disposal of the appeal in the case of House proceeds merely from my failure to form a view on those questions which would require my dissent from those orders.

[1991] FCA 162

11 APRIL 1991