R v Riley

Case [2006] NTCCA 10

The Queen v Riley [2006] NTCCA 10

PARTIES:THE QUEEN

v

RILEY, Morgan Jabanardi

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 25 of 2005 (20425897)

DELIVERED:  7 JUNE 2006

HEARING DATES:  3 MAY 2006

JUDGMENT OF:  MARTIN (BR) CJ, MILDREN &

THOMAS JJ

APPEAL FROM:  NORTHERN TERRITORY SUPREME COURT, 20425897, 10 OCTOBER 2005

CATCHWORDS:

CRIMINAL LAW
Appeal – Crown appeal against sentence – sexual intercourse without consent - sentence manifestly inadequate – appeal allowed – resentenced.

Criminal Code (NT), s 192(3) and s 127(1)(b)

R v Meyer (1984) 35 SASR 137; R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638, 24 February 1997); R v Osenkowski (1982) 30 SASR 212, approved.

Regina v O [2005] NSWCCA 327, explained.

Ibbs v The Queen (1987) 163 CLR 447; Everett v The Queen (1994) 124 ALR 529, followed.

REPRESENTATION:

Counsel:

Appellant:R Coates, N Rogers

Respondent:  V Whitelaw

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Central Australian Aboriginal Legal Aid Service

Judgment category classification:         A

Judgment ID Number:  Mar0605

Number of pages:  24

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Riley [2006] NTCCA 10

No. CA 25 of 2005 (20425897)

BETWEEN:

THE QUEEN

Appellant

AND:

MORGAN JABANARDI RILEY

Respondent

CORAM:     MARTIN (BR) CJ, MILDREN & THOMAS JJ

REASONS FOR JUDGMENT

(Delivered 7 JUNE 2006)

Martin (BR) CJ:

Introduction

  1. This is a Crown appeal against sentences imposed for crimes of sexual intercourse without consent and gross indecency. 

  2. The appellant pleaded guilty to three crimes, all of which were committed on the same occasion.  First, that on 10 November 2004 at Tennant Creek he had digital vaginal sexual intercourse with the victim without her consent.  Secondly, that he had digital anal sexual intercourse with the victim without her consent.  Thirdly, that he committed an act of gross indecency upon the victim being a child under the age of 16 years. 

  3. The maximum penalty for the crimes of sexual intercourse without consent is life imprisonment.  Although the victim was under the age of 10 years, the Crown charged gross indecency with a child under the age of 16 years for which the maximum penalty is 16 years.

  4. The learned sentencing Judge imposed sentences of three years imprisonment on each of the first and second counts and directed that those sentences be served concurrently.  In respect of count 3, a sentence of four years imprisonment was imposed to commence after service of two years of the sentences imposed on counts 1 and 2.  By reason of the partial concurrency, the total sentence to be served was six years.  A non-parole period of four years and six months was fixed.

    Facts

  5. The facts are set out in the judgment of Thomas J.  The following matters require emphasis:

    ·     The victim was aged two years.  She was not merely vulnerable.  She was helpless child who…

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AGLC
R v Riley [2006] NTCCA 10
Case
[2006] NTCCA 10
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, R v Riley, by a sentencing judge in the Northern Territory. The respondent had been convicted of sexual intercourse without consent, and the Crown argued that the sentence was manifestly inadequate. The appeal was heard by the Court of Criminal Appeal of the Northern Territory.

The central legal issue before the Court was whether the sentence imposed was so inadequate as to be demonstrably unjust, requiring the Court to intervene and resentence the respondent. This involved considering the objective seriousness of the offences, the age and vulnerability of the victim, the nature of the respondent's conduct, and the principles of sentencing in cases of sexual assault, particularly in light of legislative changes that abolished distinctions between different forms of penetration.

The Court reasoned that the sentencing judge had erred by potentially overemphasising the distinction between digital and penile penetration, suggesting that digital penetration was generally less serious. The Court affirmed that the gravity of sexual offending should be assessed according to the individual circumstances of the case, rather than by artificial distinctions. It highlighted that legislative reforms reflected an enlightened community understanding that all sexual assaults involving penetration are serious crimes of violence. The Court noted that the victim was a two-year-old child who was helpless and unable to resist, and that the respondent's actions involved significant violence and caused substantial injuries. The Court found that the objective seriousness of the crimes, coupled with the lack of mitigating circumstances, meant the original sentence was manifestly inadequate.

The Court allowed the Crown's appeal, quashed the original sentence, and resentenced the respondent.

Orders

Orders of the court

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Background

Background to the litigation

The learned sentencing Judge imposed sentences of three years imprisonment on each of the first and second counts and directed that those sentences be served concurrently. In respect of count 3, a sentence of four years imprisonment was imposed to commence after service of two years of the sentences imposed on counts 1 and 2. By reason of the partial concurrency, the total sentence to be served was six years. A non-parole period of four years and six months was fixed.Facts The facts are set out in the judgment of Thomas J. The following matters require emphasis:· The victim was aged two years. She was not merely vulnerable. She was helpless child who was unable to offer any resistance whatsoever. Furthermore, by reason of her age the victim would later be unable to make a complaint about the conduct of the respondent or to identify him.· The victim lived in an Aboriginal community at Tennant Creek and was playing in her own “front yard”. Considerable freedom is given to children to move about within such communities beyond the boundaries of individual residential premises. It is commonplace for young children in such communities to play outside house boundaries in the streets. Adult members of the communities are trusted not to behave inappropriately towards children.· Although the act of the respondent in removing the child from her area of play was spontaneous in the sense that it followed immediately upon the respondent waking from a drunken sleep, the crimes were planned to the extent that the respondent removed the child from the area of play with the specific intention of taking her to a remote area for the purpose of sexually assaulting her.· The respondent took the child to a remote area in the bush. · The respondent’s criminal conduct involved digital penetration of both the vagina and anus. Force was used and the respondent persisted in the perpetration of the crimes notwithstanding that the child screamed in pain and cried. He told her to be quiet.· The respondent desisted from the acts of digital penetration only when he obtained a partial erection and because he had in mind penetrating the child’s vagina with his penis.· Having removed his fingers from the child’s vagina and anus, the respondent persisted with his criminal conduct by endeavouring to penetrate the child’s vagina with his penis. The respondent’s lack of success did not deter him. He masturbated in an unsuccessful attempt to obtain an erection for the purpose of penetration. It was only when the masturbation was unsuccessful that the respondent desisted.· The respondent did not return the child to her home or family.· The respondent’s conduct caused significant injuries to the genitalia of the child. Viewed objectively, the respondent’s crimes were extremely serious. There were no mitigating circumstances accompanying the commission of the crimes.Scale of Seriousness - Manner of Penetration As to where the crimes of unlawful sexual intercourse sit in the scale of seriousness for crimes of this type, while acknowledging that the crimes were serious counsel for the respondent referred to the observation of Sully J in R v O [2005] NSW CCA 327 that as a general proposition an act of digital penetration is less serious than an act of penile penetration. Sully J said [32]:“I would accept that, as a general proposition, an act of digital penetration, as such, is less serious than an act of penile penetration as such. I do not agree, however, that such a general proposition is, more or less as of course, a proposition of universal applicability in cases of digital penetration. One only has to read the victim impact statements of KW and of JS to see at once how damaging to a particular victim an act of digital penetration, let alone more than a single such act, can be to a very young child.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Viewed objectively, the respondent’s crimes were extremely serious. There were no mitigating circumstances accompanying the commission of the crimes.Scale of Seriousness - Manner of Penetration As to where the crimes of unlawful sexual intercourse sit in the scale of seriousness for crimes of this type, while acknowledging that the crimes were serious counsel for the respondent referred to the observation of Sully J in R v O [2005] NSW CCA 327 that as a general proposition an act of digital penetration is less serious than an act of penile penetration. Sully J said [32]:“I would accept that, as a general proposition, an act of digital penetration, as such, is less serious than an act of penile penetration as such. I do not agree, however, that such a general proposition is, more or less as of course, a proposition of universal applicability in cases of digital penetration. One only has to read the victim impact statements of KW and of JS to see at once how damaging to a particular victim an act of digital penetration, let alone more than a single such act, can be to a very young child.” Speaking generally, it is not difficult to imagine circumstances in which an act of penile penetration will be viewed as a more aggravated offence than an act of digital penetration. However, advancing a general proposition that an act of digital penetration is less serious than an act of penile penetration is apt to mislead. As a community, we have moved beyond many misguided views with respect to sexual assaults of various types to a more enlightened understanding of the motivations for and impacts of sexual assaults. The community has come to understand that the gravity of sexual offending should not be judged simply by drawing a distinction between penile penetration and penetration by other parts of the body or objects. Regardless of the means used for penetration, the community now understands that these types of sexual assaults are all serious crimes of violence accompanied by sexual acts, the gravity of which must be assessed according to its individual circumstances rather than by an artificial and often misleading distinction between penile and other means of penetration. Throughout Australia, Legislatures have reflected this enlightened understanding by abolishing the distinction between different forms of penetration. Prior to such abolition, acts of digital penetration without consent were classified as offences of indecent assault or gross indecency which attracted significantly lower maximum penalties than the crime of rape. By abolishing the distinction between penile and digital penetration the Legislatures have reflected the change in community thinking about the essential nature of sexual crimes involving penetration. In Ibbs v The Queen (1987) 163 CLR 447 the High Court was concerned with Western Australian legislation which, for the purposes of sexual penetration without consent, included penetration of the vagina or anus by any part of the body or an object manipulated by the offender. In a joint judgment the Court rejected the proposition of principle emerging from the judgments in the Court of Criminal Appeal that “divorced from the circumstances, each kind of sexual penetration as defined … is neither more nor less heinous than another” (451). The judgment continued(451 – 452):“The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within section 324D … . The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in section 324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.” (citations omitted).