R v M, H

[2007] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v M, H

[2007] SASC 41

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)

19 February 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE

Application by the Director of Public Prosecutions for leave to appeal against sentence - respondent found guilty by jury of three counts of indecent assault - victim was respondent's step-daughter - respondent sentenced to six years’ imprisonment with non-parole period of three years - sentence suspended upon respondent entering into three year good behaviour bond - whether sentencing Judge erred in suspending the sentence - whether sentence was manifestly inadequate - Held: Judge did not err in suspending sentence – sentence not manifestly inadequate – leave to appeal refused.

Criminal Law (Sentencing) Act 1988 (SA) s 10(4), s 38(1), referred to.
Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; G v Police (1999) 74 SASR 165; R v Fowler [2006] SASC 18, applied.
Malvoso v The Queen (1989) 168 CLR 227; R v Hicks (1987) 45 SASR 270; Elliot v Harris (No 2) (1976) 13 SASR 516; Ware v Betts (1987) 134 LSJS 212, considered.

R v M, H
[2007] SASC 41

Court of Criminal Appeal:  Duggan, Gray and White JJ

1. DUGGAN J.         I would refuse leave to appeal against the sentence imposed on the respondent.  I agree with the reasons of Gray J.

   GRAY J.

2. This is a Crown application for leave to appeal against sentence.

   Introduction

   The Trial

3. The respondent was charged with committing four sexual offences against his step-daughter.  The first count alleged that between 28 October and 10 November 1996, the respondent indecently assaulted the complainant, being a person of the age of 12 years.  The second count alleged that between 15 and 25 December 1996, the respondent indecently assaulted the complainant, being a person of the age of 12 years.  The third count – unlawful sexual intercourse – alleged that between 23 and 31 October 1998, the respondent had sexual intercourse with the complainant, being a person aged 14 years.  The fourth and final count – rape – alleged that between 10 September and 15 October 2002, the respondent had sexual intercourse with the complainant, without her consent, by inserting a finger into her vagina.

4. On 23 August 2006, the respondent was found guilty in the District Court by jury verdict of the first two counts of indecent assault.  On the third count the respondent was found not guilty of unlawful sexual intercourse, but guilty of the alternative offence of indecent assault.  He was found not guilty of the fourth count of rape.

5. On 31 August 2006, the respondent was sentenced by a judge of the District Court to a period of six years imprisonment, with a non-parole period of three years. This one sentence was imposed in respect of all offences, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Sentencing Act’).  The sentence was then suspended upon the respondent entering into a good behaviour bond for three years. 

6. The Crown now seeks leave to appeal against the decision of the sentencing Judge to suspend the sentence. 

   The Offending

7. All three counts of indecent assault were committed against the respondent’s step-daughter when she was aged between 12 and 14, and when the respondent was aged between 42 and 45.  The first two counts took place when the complainant was 12 years old, and consisted of touching her breast.  On the first count the touching was inside the complainant’s clothing and on the second, the touching was on top of underclothing.  The third count took place when the complainant was 14 years old and involved the respondent placing his hand on the outside of the her vagina.

8. The sentencing Judge also found that the respondent had touched the complainant’s breasts on top of her clothes, or brushed past her breasts, on occasions other than those charged.  The Judge also found that the respondent continued to show a sexual interest in the complainant by telephoning her and sending text messages of a sexual nature, some time after the offending.

9. The sentencing Judge noted that the respondent had been found in possession of indecent photos of the complainant, but stated that he did not take this into account, as it was the subject of separate charges before the Magistrates Court. 

   Circumstances of the Offender

10. At the time of sentencing, the respondent was aged 53 and had no relevant criminal antecedents.  He has two children from his first marriage, aged 33 and 28, and three children from his second marriage, aged 10, 11 and 13.  While his second marriage has ended, the respondent has access to his three youngest children every second weekend and for half of the school holidays, and pays child maintenance for each of them.  At the time of sentencing he lived with his current partner.

11. The respondent was described by the sentencing Judge as having an “excellent work record” and at the time of sentencing was employed as a safety officer for an engineering company.

    Prosecution Appeal Against Sentence

    The Relevant Principles

12. The principles relevant to Crown appeals against sentence are well established.  In Nemer,[1] Doyle CJ summarised those principles as follows:[2]

    The Director's right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.

    The High Court has determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case": Everett v The Queen (1994) 181 CLR 295.

    The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.

    [1] R v Nemer (2003) 87 SASR 168.

    [2] R v Nemer (2003) 87 SASR 168 at [22]-[24].

13. In Osenkowski,[3] King CJ observed that the proper role for prosecution appeals is to enable courts to establish and maintain adequate standards of punishment for crime;[4] to correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crime;[5] and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[6] 

    [3] R v Osenkowski (1982) 30 SASR 212.

    [4] R v Osenkowski (1982) 30 SASR 212 at 212-13.

    [5] R v Osenkowski (1982) 30 SASR 212 at 212-13.

    [6] R v Osenkowski (1982) 30 SASR 212 at 212-13.

14. The basis for the “rare and exceptional” test for Crown appeals lies with the principle of double jeopardy, as explained by the majority of the High Court in Everett. [7]  Their Honours observed:[8]

    An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.

    [7] Everett v The Queen (1994) 181 CLR 295.

    [8] Everett v The Queen (1994) 181 CLR 295 at 299 (footnotes omitted).

15. Earlier, in Malvoso,[9] Deane and McHugh JJ noted that the Crown appeal against sentence:[10]

    … [R]epresents a departure from the traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy.

    [9] Malvoso v The Queen (1989) 168 CLR 227.

    [10] Malvoso v The Queen (1989) 168 CLR 227 at 234.

16. Furthermore, the discretion of the sentencing Judge in fixing a sentence is not to be interfered with lightly.  As King CJ noted in Osenkowski: [11]

    It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

    [11] R v Osenkowski (1982) 30 SASR 212 at 212-213.

17. An appellate court may interfere to correct a sentence where it is so far below the appropriate range of sentence that it reflects an error of principle, or would “shock the public conscience” were it allowed to stand.[12] 

    [12] R v Nemer (2003) 87 SASR 168 at 172 (Doyle CJ); R v Osenkowski (1982) 30 SASR 212 at 213.

18. However, in a case where an offender has been given a non-custodial or suspended sentence, the appellate court will be particularly reluctant to interfere and impose a sentence of immediate imprisonment.  In Hicks,[13] King CJ observed:[14]

    When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.

    [13] R v Hicks (1987) 45 SASR 270.

    [14] R v Hicks (1987) 45 SASR 270 at 273. See also R v Hayes (1987) A Crim R 452 at 469 (Kirby P).

19. Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied.  Furthermore, an error must be identified before a sentence may be interfered with.  As Kirby J explained in Dinsdale:[15]

    As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.  Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.

    Such error may be inferred from a result that is manifestly unreasonable or plainly wrong.  However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[16] 

    [15] Dinsdale v R (2000) 202 CLR 321 at 339-340 (footnote omitted).

    [16] Dinsdale v R (2000) 202 CLR 321 at 339-340.

    Consideration of the Application

20. In this case, the Director submitted that the decision to suspend the appellant’s sentence of imprisonment ultimately rendered the sentence imposed manifestly inadequate. The decision to suspend was made pursuant to section 38(1) of the Sentencing Act, which provides that a sentence of imprisonment may be suspended if the court thinks there is “good reason” for doing so.  The Director argued that in deciding whether good reason to suspend exists, the Court must undertake a balancing process, in which both mitigatory and aggravating factors are considered.  In the present case, it was argued that the sentencing Judge failed to consider a number of significant factors when deciding to suspend, and in so doing, fell into error in the sentencing process.

21. First, it was submitted that the sentencing Judge gave too little weight to the gross breach of trust that accompanied the offending. Second, it was said that too little weight was given to the element of exploitation surrounding the commission of the offences, and in particular the age difference between the appellant and the complainant. Third, it was contended that insufficient regard was given to the impact of the offending on the complainant. Fourth, it was said that the Judge erred in failing to give paramount consideration to the need for deterrence, as required by section 10(4) of the Sentencing Act.[17]  Finally, it was argued that too little regard was had to the fact that the offending was over a period of years, and was not “just a casual slip”.

    [17] Section 10(4) Criminal Law (Sentencing) Act 1988 (SA) reads: “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.”

22. The Director submitted that the sentencing Judge decided to suspend the sentence without an appropriate weighing of these factors against the matters personal to the respondent.  It was argued that had the Judge taken into account these factors, he could not have ultimately concluded that this was an appropriate case to suspend the sentence.

23. However, these suggested “omissions” are insufficient to demonstrate any error of principle in the sentencing Judge’s decision to suspend. While the Judge did not expressly undertake any balancing process, it is clear that the Judge had regard to all of the relevant factors in deciding that there was “good reason” to suspend. The Judge referred to the seriousness of the offending on three separate occasions during his remarks. The Judge expressly stated that the appellant’s offending was a “gross breach of trust”. Clearly, an element of this gross breach of trust was the disparity in ages between the complainant and the respondent. The Judge also implicitly referred to the need for deterrence, in remarking that, “it is a primary policy of the criminal law to protect children from sexual offenders”. This was plainly a reference to section 10(4) of the Sentencing Act. 

24. With regard to the impact of the offences upon the complainant, it is clear that the sentencing Judge regarded this as an important factor to be considered.  The Judge personally raised the issue of victim impact statements with the prosecutor, and deferred sentencing to allow the statements to be prepared.  The Judge heard and discussed the victim impact statements prior to sentencing.  There is no reason to suppose that when imposing the sentence the judge did appropriately consider the effect of the offending upon the complainant.

25. Finally, the sentencing Judge twice referred to the respondent’s ongoing sexual interest in the complainant, and expressly took into account the fact that there had been touching or brushing past of the complainant’s breasts which was not charged.  The Judge said:

    It is plain that this offending calls for a sentence of imprisonment.  The offences are serious.  It is a primary policy of the criminal law to protect children from sexual offenders.  There were three counts over two years, and you manifested a sexual interest in [the complainant] at other times.

26. There is no apparent error in the sentencing process undertaken.  While consideration of the relevant factors may not have been detailed or explicit, it is clear that each of these factors was taken into account.  

27. There remains, the question of whether the sentence imposed was manifestly inadequate so as to warrant the interference of this court.

28. In finding that there was “good reason” to suspend, the sentencing Judge noted the respondent’s excellent work history, his lack of relevant prior convictions, and his responsibilities to his three youngest children. The Judge referred to references from senior managers and co-workers, which spoke highly of the respondent’s conduct in the work place. The Judge also referred to the fact that the respondent had regular contact with and accepted and met his responsibility toward his three youngest children. While the above circumstances are by no means exceptional, it is clear that the terms of section 38 of the Sentencing Act do not require a finding of “special circumstances” in addition to “good reason”, in deciding whether to suspend.[18] 

    [18] R v Fowler [2006] SASC 18. R v Famiglietti [2005] SASC 489 [30]-[38] (Gray J); R v Hill [2005] SASC 380 at [45]-[51] (Layton J); R v Gjoka (unreported, Court of Criminal Appeal, SA, No S6211 of 1997, 1 July 1997).

29. As some degree of hardship will invariably be suffered by dependants of a defendant upon imprisonment, hardship to those dependants will not generally be taken into account in a defendant’s favour except in extreme or extra-ordinary circumstances.  In other words, the hardship must be of such a serious character as to call for a merciful approach to sentencing.  As Wells J observed in Wirth: [19]

    When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?

    …

    Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court … It seems to me that courts would often do less than their clear duty – especially, where the element of retribution, deterrenct [sic], or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

    But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back.  So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty.  But further than that, in my judgment, courts should not go.

    This principle has been confirmed by this court in Carpentieri,[20] Bates[21] and Neill[22]. 

    [19] R v Wirth (1976) 14 SASR 291 at 295-296.

    [20] R v Carpentieri (2001) 81 SASR 164.

    [21] Bates v Police (1997) 70 SASR 66.

    [22] Neill v Police [1999] SASC 270.

1. The effect of imprisonment on the respondent’s family is a factor, which when taken into account with other relevant factors, may give rise to a finding of “good reason” to suspend.[23]  Earlier in these reasons those other relevant factors have been recorded.  These factors together suggest that the respondent’s prospects for rehabilitation are good and reduce the need to impose a heavy sentence as a matter of personal deterrence.

   [23] G v Police (1999) 74 SASR 165.

2. The sentencing Judge also accepted that while the respondent’s offending was serious, it was “not the worst seen by this court”.  Whilst serious, this offending was not in the category of the worst offending of its type.  While the Judge found that there were uncharged acts of “touching” and “brushing past” around the time of the offences and ongoing sexual interest demonstrated by text messages, the Judge did not sentence on the basis that the three counts formed an ongoing course of criminal conduct. 

3. It is also to be remembered that a suspended sentence of imprisonment is a significant penalty, notwithstanding that immediate imprisonment is suspended.[24]  In Elliott v Harris (No 2), Bray CJ noted that:[25]

   So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.

   [24] Ware v Betts (1987) 134 LSJS 212; Elliott v Harris (No 2) (1976) 13 SASR 516 at 527.

   [25] Elliott v Harris (No 2) (1976) 13 SASR 516 at 527.

4. The sentence of six years imprisonment, with non-parole of three years, was a significant sentence.  This sentence, though suspended, will “hang heavily” over the respondent in the years to come.

5. There is no latent error or manifest inadequacy in the sentence imposed to justify the intervention of this Court.  It was within the sentencing Judge’s discretion to find that “good reason” existed to suspend the sentence of imprisonment. 

6. There are no sufficient grounds to reverse the decision of the sentencing Judge, particularly where this would be to impose a sentence of immediate imprisonment in circumstances where, post-sentencing, the respondent has continued in employment and the ongoing discharge of his family duties.  He has set out on the path of rehabilitation.  As observed by Brennan, Deane, Dawson and Gaudron JJ in Everett:[26]

   As has been said above, the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation.

   [26] R v Everett (1994) 181 CLR at 305; see also R v Nemer (2002) 87 SASR 168 at [26] (Doyle CJ).

7. The Crown has failed to demonstrate that this is one of the “rare and exceptional” cases in which this Court should interfere with the discretion of the sentencing Judge.  While the suspension of the sentence of imprisonment was undoubtedly merciful, this course was open to the Judge in exercising his discretion in the circumstances of the case. 

   Conclusion

8. I would refuse leave to appeal.

9. WHITE J:             In my opinion the application by the Director for leave to appeal against sentence should be refused.  I agree with the reasons of Gray J.