R v Summerfield
[2018] ACTCA 20
•1 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Summerfield |
Citation: | [2018] ACTCA 20 |
Hearing Date: | 8 May 2018 |
DecisionDate: | 1 June 2018 |
Before: | Burns, Loukas-Karlsson and Bromwich JJ |
Decision: | 1. The appeal be allowed in part in that: (a) the commencement date for the sentence on charge case 4449 of 2017 be set aside; (b) the commencement date for the sentence on charge case 4229 of 2017 be set aside; and (c) the sentence on charge case 4230 of 2017 be set aside; and, in lieu thereof, the following sentences be imposed: (d) in respect of charge case 4449 of 2017, the respondent be sentenced to six months’ imprisonment to commence on 5 September 2017 and to expire on 4 March 2018; (e) in respect of charge case 4229 of 2017, the respondent be sentenced to 12 months’ imprisonment to commence on 5 March 2018 and to expire on 4 March 2019; and (f) in respect of charge case 4230 of 2017, the respondent be sentenced to two years’ imprisonment to commence on 5 June 2018 and to expire on 4 June 2020. 2. The non-parole period be set aside and, in lieu thereof, a non-parole period of 18 months be fixed, to commence on 5 June 2017 and to conclude on 4 December 2018. |
Catchwords: | CRIMINAL LAW – Crown appeal against sentences imposed for five offences of sexual intercourse with a person aged between 10 and 16 years of age – two female child victims of 13 and 15 years of age – whether primary judge erred in finding, as a matter of mitigation, that the offender was engaged in a “genuine, if immature, relationship” with the victims – whether primary judge erred in characterising the offending against the 13-year-old victim as at the “mid-range of objective seriousness” – whether sentencing outcome was erroneous as the individual sentences were manifestly inadequate – whether sentencing outcome was erroneous as the accumulation between counts was manifestly inadequate – whether sentencing outcome was erroneous as the overall head sentence and non-parole period were manifestly inadequate |
Legislation Cited: | Crimes Act 1900 (ACT) s 55 Evidence Act 2011 (ACT) s 4(2) Court Procedures Rules 2006 (ACT) r 5606 |
Cases Cited: | Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Clarkson v R [2011] VSCA 157 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 |
Texts Cited: | D.A. Thomas, Principles of Sentencing (Second Edition, 1979) |
Parties: | The Queen (Appellant) Luke Summerfield (Respondent) |
Representation: | Counsel Mr J White (Appellant) Ms E McLaughlin (Respondent) |
| Solicitors Office of the ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 54 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 23 October 2017 Case Title: R v Summerfield Citation: [2017] ACTSC 321 |
BURNS AND BROMWICH JJ
Introduction
This is a Crown appeal against sentences imposed by a judge of this Court on 23 October 2017. The respondent pleaded guilty to five offences of sexual intercourse with a person between 10 and 16 years of age. There were two female child victims aged 13 and 15. The offences took place during a period of just under four months between about late January and about mid-May 2016. The respondent was 18 years of age at the time.
Each of the offences carried a maximum penalty of 14 years’ imprisonment. The respondent was sentenced to a total head sentence of two years’ imprisonment, with a single non-parole period of one year, both commencing on 5 June 2017. The individual head sentences ranged from six months for each of three of the offences, to 12 months for one offence, and to 15 months for the most serious offence.
The respondent is therefore due for release on 4 June 2018, less than a month after the appeal hearing, which has necessitated the orders and these reasons to be prepared with some haste. Ideally, these reasons would have been shorter, but time did not permit that.
Overview of the offending
The two victims were:
(a)a girl aged 15 at the time of the offending, who was referred to by the primary judge as “TT”; and
(b)a girl aged 13 at the time of the offending, who was referred to by his Honour as “TB”.
To keep track of the two victims and their respective ages, it is convenient to refer to them in these reasons as TT-15 and TB-13.
The offending conduct involved:
(a)two instances of penile-vaginal penetration one night and the next morning with TT-15 in the period between 31 January and 1 March 2016 (charge cases 4208 and 4209 of 2017 (CC-2017/4208 and 4209);
(b)one separate instance of fellatio with TT-15 in the period between 31 January and 1 March 2016 (CC-2017/4449);
(c)an instance of penile-vaginal penetration with TB-13 in the period between 2 and 9 March 2016 (CC-2017/4229); and
(d)a further instance of penile-vaginal penetration with TB-13 in the period between 18 March and 14 May 2016 (CC-2017/4230).
Soon after 2 April 2016, the respondent commenced to have regular unprotected sexual intercourse with TB-13 with the express intention of her becoming pregnant so as to have a baby with him. Disturbingly, TB-13 knew of that intention and facilitated it by having unprotected sexual intercourse, itself a telling sign of her immaturity and vulnerability.
A blood test on 6 June 2016 revealed that TB-13 was five to six weeks pregnant, and therefore had become pregnant sometime in the period between about 25 April and 2 May 2016, being the period covered by the last charge. She subsequently had a termination, with significant adverse medical and psychological consequences. Her pelvis was insufficiently developed to give birth.
The respondent first appeared in court on these charges on 19 May 2017. By reason of being in custody on other, non-sexual, offences since 13 June 2016, his custody on these offences commenced on 5 June 2017. He pleaded guilty to four of the five charges at the third mention on 21 July 2017. He pleaded guilty to the fifth charge a further two months later on 22 September 2017. He was sentenced a month after that on 23 October 2017.
Immediately prior to commencing to commit the above offences, the respondent had, in late January 2016, been released from detention on a recognisance to be of good behaviour for two years, having served part of a gaol sentence for dangerous driving. The offences were therefore committed while the respondent was at conditional liberty, a fact acknowledged by the primary judge in his Honour’s sentencing reasons.
The respondent had a number of subjective circumstances in his favour, as detailed below, the most significant of which was his early, or relatively early, guilty pleas, albeit in the face of what the primary judge found to be a strong Crown case. He received the benefit of a relatively generous discount for those guilty pleas, but there is no issue about that in this appeal.
Grounds of appeal
The Crown appeal involves the assertion of both specific error and error to be inferred from the sentencing outcome:
(a)As to specific error, the Crown contends that the primary judge erred:
(i)in finding, as a matter of mitigation, that the offender was engaged in a “genuine, if immature, relationship with each of the victims”; and
(ii)in characterising the offending in relation to the 13-year-old victim, TB-13, as being “at the mid-range of objective seriousness”.
(b)As to error to be inferred from the sentencing outcome, the Crown contends that the primary judge erred because:
(i)the individual sentences were manifestly inadequate;
(ii)the accumulation between certain of the counts was manifestly inadequate; and
(iii)the overall head sentence was manifestly inadequate and, as a result, the non-parole period was manifestly inadequate.
The Crown acknowledges that none of the alleged specific errors can give rise to a successful appeal unless there is also a finding of manifest inadequacy as to the sentencing outcome. That is because any such specific error is not operative unless it may be seen to have affected the outcome in some way. In that sense, the specific errors may be seen, at least in a practical sense, to constitute particulars of one or more of the errors the Crown asserts should be inferred from the sentencing outcome; that is, if made out, the specific errors may in some way contribute to the process of inference, or otherwise help to explain how an erroneous result has been arrived at.
Before the primary judge
The primary judge had in evidence before his Honour:
(a)a Crown sentence summary (not before this Court);
(b)an agreed statement of facts;
(c)the respondent’s criminal history, which included a drug conviction (possession of 50 grams or less of cannabis) that resulted in a small fine, an aggravated (offensive weapon) robbery conviction for a 13 June 2016 offence that resulted in a nine‑month prison term, and numerous driving offences in the medium range of seriousness;
(d)a victim impact statement from TB-13’s mother;
(e)a report from a psychologist as to the respondent’s cognitive function, which had been prepared on 23 December 2015 for the purposes of a sentence hearing on 22 January 2016, in relation to driving offences of dangerous driving, failing to stop when directed by a police officer and driving in a way that put at risk the safety of a vulnerable road user; and
(f) a letter from the respondent’s mother, which commented upon his association with TT-15 and TB-13 and described his maturity as being approximately six to seven years under his actual age.
The respondent did not give evidence at his sentence hearing.
Objections were made by the Crown to the psychologist’s report being admitted, on the grounds that it was irrelevant and misleading. The bases of the objections were that the report was created before the present offending had taken place and therefore necessarily could not contain any opinion linking the assessment provided with the offences the subject of this appeal; and that it was, in any event, almost two years old. The report was admitted over those objections. It will be necessary to return to this topic below, but it should be noted that there is no ground of appeal as to the discretionary admission of the report into evidence and, on one reading at least, the primary judge appropriately gave it little overt weight as the Crown had effectively urged in the alternative. However, the report remained influential in context and was considered by his Honour at some length.
The facts as found by the primary judge are not in dispute, although, as will be seen, there are some issues arising from the use of the word “relationship” to include, without clear distinction, both the illegal sexual activity between the respondent and the two child victims and other, apparently legal, aspects of his involvement with them. The statement of facts was reasonably closely followed by the primary judge and also summarised the victim impact statement that was read in full at the sentence hearing. It is therefore convenient to reproduce his Honour’s concise summary of those facts verbatim as follows:
Offences involving [TT-15]
3.The offender initially contacted [TT-15] via Facebook Messenger on 27 January 2016, and, from 31 January 2016, exchanged telephone calls and text messages. [TT-15] told the offender that she was 15 years old. The parties agree that she was in fact 15 years old. Her parents agreed that the offender could visit and stay overnight at their home. On the first visit, the offender and [TT-15] watched movies in the lounge room. After [TT-15]’s parents had gone to sleep, the offender and [TT-15] had penile-vaginal sexual intercourse. The offender did not use a condom and ejaculated. This gives rise to charge CC2017/4208. The following morning [TT-15] and the offender had sexual intercourse in her bedroom. This gives rise to charge CC2017/4209.
4.Subsequently at an “open mic night” at Garema Place, the offender introduced [TT-15] to a friend of his. That friend subsequently contacted the offender via Facebook and said that he should “dump her” because he alleged she was 13 years old. After a number of messages, the offender replied “Bro she loves me and I love her.”
5. On another visit to [TT-15]’s home, the offender asked her to give him a “blow job”. She did so until he ejaculated on her chest/breasts. [TT-15] agreed to the offender’s request because she wanted to please him and she had felt bad when he had earlier complained to her friends that she wouldn’t give him oral sex. This gives rise to charge CC2017/4449.
6.On 1 March 2016 the relationship ended. The offender told mutual friends that he had only started a relationship with her to obtain sex. However that post relationship statement is inconsistent with the earlier statement during the relationship that “she loves me and I love her.”
Offences involving [TB-13]
7.The offender met [TB-13] sometime after January 2016. She told him that she was 13 years old. The relationship between them in the period prior to the beginning of March is not disclosed in the agreed statement of facts. One day between 3 March and 8 March 2016, [TB-13] and the offender attended a party in Reid. Sometime during the night she was lying on a bed in the unit. The offender entered the room and said “Do you want to have sex?” She said yes. He put on a condom and they had penile-vaginal sexual intercourse until he ejaculated. This gives rise to charge CC2017/4229. Between this time and the next morning, one of the other persons in the house observed them naked on the bed on two occasions and [TB-13] disclosed to her that she and the offender had had sexual intercourse.
8.Later [TT-15] became aware of the offender’s relationship with [TB-13] and sent a number of texts on Facebook Messenger expressing concern about his involvement with [TB-13] because of her age.
9.[TB-13]’s mother suspected that [TB-13] and the offender were in a sexual relationship. She reported that to the Gungahlin police station. She contacted the offender’s mother and asked that the offender stay away from her daughter.
10.On 19 March 2016, [TB-13] and the offender together attended the Sky Fire Festival at Lake Burley Griffin. A mutual friend confronted the offender about dating 12 or 13 year olds. The offender acknowledged that he was. There was an altercation in which the offender got punched.
11.On 2 April 2016 the offender told [TB-13] on the phone that “he wanted to have a kid with her”. As a result of this the offender and [TB-13] began having unprotected sex on a regular basis.
12.On 12 May 2016 [TB-13]’s mother reported to police that [TB-13] had left home and not returned. She located her on 13 May 2016. [TB-13] eventually told her mother that she had spent the night with the offender and had unprotected penile-vaginal sexual intercourse with him. This is charge CC2017/4230. On 6 June 2016 [TB-13] was found to be pregnant. The pregnancy was subsequently terminated. A DNA sample demonstrated that the offender was the father.
13. The victim impact statement prepared by [TB-13]’s mother discloses the significant trauma and damage suffered by [TB-13] as a consequence of becoming pregnant and having a termination. Not only was there a significant period of emotional trauma when making the decision to terminate the pregnancy but she had complications during the termination and lost a substantial quantity of blood. She subsequently had to have vitamin E injections and has lost a lot of weight. She has been required to be prescribed high doses of anti-depressant medication as she was suffering from anxiety and regular panic attacks, as well as suicidal thoughts. It is clear from the facts disclosed in the victim impact statement that the consequences of the offender’s conduct are likely to continue for some time. It is clearly something to which this young child should never have been exposed. The victim impact statement also makes clear that the offending conduct has had broader impacts upon [TB-13]’s parents and siblings.
The only significant omission from the material in the statement of facts is an event that occurred the next day after the events summarised by the primary judge at [10] of his Honour’s reasons. On 20 March 2017, the mutual friend of the respondent and TB-13 again confronted the respondent, expressing disapproval of his involvement with TB-13 because of her age. He referred to the respondent as a “paedophile” and punched the respondent in the face three times with a clenched fist. The point to be made is that the respondent must have been in no doubt that his association with TB-13, at least as to the sexual aspect, was inappropriate, yet he not only persisted, but also then deliberately made her pregnant.
The legal representatives of both the Crown and the respondent made oral submissions on sentence, parts of which dealt with the nature of the association between the respondent and the victims. Because the sentences that were imposed were, on their face, very lenient, considerable assistance is to be gained by considering how the sentence proceedings were conducted, in order to both understand better how the primary judge arrived at the final result and to provide additional material by which to better understand the reasons his Honour gave. It should be acknowledged at the outset that the lawyers for both the Crown and the respondent provided real and substantial assistance to the primary judge in what was undoubtedly a challenging case for sentence determination.
The respondent’s lawyer, by way of a plea in mitigation, submitted that “…when these offences occurred, the defendant was a young man of 18 and he was in two relationships that he viewed as being, and for all intents and purposes were, boyfriend, girlfriend relationships with girls who were at a similar level of development and maturity to him”. She acknowledged that this was a difficult sentencing exercise and accepted that there were aggravating circumstances, which were subsequently addressed. She placed considerable reliance on the psychologist’s report, but only for the limited purpose of establishing the respondent’s limited intellectual capacity and low cognitive functioning. She then turned to the letter from the respondent’s mother to submit that this, in combination with the psychologist’s report, engaged the principles in R v Verdins [2007] VSCA 102; 16 VR 269, to the effect that this case was a poor vehicle for general deterrence.
In relation to the respondent’s association with TT-15, it was submitted on his behalf that it was a “boyfriend, girlfriend relationship”, conducted in public and with the approval of her parents. Some reliance was also placed on TT-15 being almost 16 and the evidence of affection between her and the respondent. It was submitted that TT-15 was essentially consenting, although not able to consent in law, because she was a “willing participant”. Reliance was placed on R v CV [2013] ACTCA 22 at [23]-[24], reproduced below at [55], in which this Court referred to, quoted and applied the decision of the Victorian Court of Appeal in Clarkson v R [2011] VSCA 157 at [5], [6]-[8].
In the case of TB-13, that too was characterised by the respondent’s lawyer as being a “boyfriend, girlfriend style of relationship in that they went out together” and were seen together in public, but was acknowledged to be more serious because of the greater age difference and the pregnancy, with the seriousness of the pregnancy being candidly acknowledged. It was noted that R v CV involved a pregnancy, albeit an unplanned one, which had not stood in the way of a good behaviour bond being imposed in that case, and which was not sought in this case. The association of the respondent with each victim was characterised as not being solely for sexual gratification.
The respondent’s lawyer notably characterised the respondent’s conduct as being neither predatory nor engaged in from a position of trust. This case was sought to be distinguished from R v Eisenach [2011] ACTCA 2, because the conduct towards the two victims in that case took place at the same time and a breach of trust was involved.
The respondent’s lawyer acknowledged that the respondent did not break off his sexual association when the age of the victims was brought to his attention, but submitted that he accepted that what he had done was wrong and that each of the victims would continue to be adversely affected for the rest of their lives. It was submitted that the respondent had shown insight into his offending and had reflected honestly on the impact of alcohol and drugs on his behaviour. In an example of evidence from the Bar table, to which, quite reasonably, no objection was taken, the respondent’s lawyer told the primary judge that the respondent had said he was rarely sober or straight during the offending period, but that he did not seek to excuse his behaviour for that reason. It was, in substance, a submission directed to self‑rehabilitation and addressing the prospect of reoffending. Remorse and the absence of predatory behaviour were again emphasised, as was the respondent’s relative youth, both at the time of offending and at the time of sentencing.
In response, the Crown emphasised the duration of the offending, being some three and a half months, the fact that it involved multiple acts constituting serial behaviour, most of which were premeditated, and the respondent’s knowledge from the outset that TB-13 was only 13 years old. Emphasis was placed on the significance of the maximum penalty for the offences of 14 years’ imprisonment, referring to Markarian v The Queen [2005] HCA 25; 228 CLR 357 (at [30-31]). The utilitarian value of the respondent’s guilty pleas was submitted to be diminished by the strength of the cases against him, including the DNA evidence in relation to TB‑13’s pregnancy. Emphasis was placed on the fact that the offences were committed shortly after the respondent was released from custody and was on a good behaviour order.
The Crown emphasised that “consent” could not mitigate the seriousness of the offences, although lack of consent could be an aggravating factor. The aggravating features were identified as the offences having been committed while at conditional liberty, serial offending, knowledge of the age of the victims from the very outset (rather than developing a fondness and later finding out their age) and the fact that the sexual acts took place without a condom, raising health and pregnancy risks as a serious issue. It was submitted that there was no deep “relationship” involved, such that the Court should be sceptical of there being any “deep boyfriend, girlfriend relationship”. The offences did not involve isolated or one-off instances. In the case of TB-13, the pregnancy was deliberate. The Crown pointed to the ongoing adverse effects suffered by her, including self-harm.
The Crown submitted that the offences were clearly separate incidents, and suggested a low level of concurrency of the separate sentences required to be imposed. It was submitted that the respondent had had much time to reflect on his behaviour, noting also that he had friends, acquaintances and even people who did not like him telling him he should leave TB-13 alone. Emphasis was placed on the warnings that the respondent had and the deliberate decisions he made that produced catastrophic results for the life of TB-13 in particular.
In relation to the respondent’s criminal history, the Crown pointed out that, while that did not include sexual offences, the Court should not have the concern it usually has where someone has not been to prison before, and that the respondent’s time in gaol reduced the scope for leniency (implicitly as a first-time offender).
In relation to the submissions made on behalf of the respondent as to his remorse, it was again pointed out by the Crown that the respondent was warned at the time, yet persisted.
The Crown relied upon the High Court decision in Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 91 ALJR 1063 as supporting the propositions that courts need to take very seriously sexual offending against young people and that the focus should be on the facts of the case at hand, albeit guided by sentencing practice. The Crown submitted that this was a case that was significantly different from other cases relied upon by the respondent because he had a criminal history, clearly knew what was going on and had deliberately caused a pregnancy. In relation to deterrence, the Crown submitted that if the Court was minded to give less weight to those considerations (implicitly, by the application of this aspect of Verdins principles), the issues of punishment and protection of the public were important, especially when the law did not regard victims of this age as being able to make any decision to consent to sexual activity taking place.
In reply, the lawyer for the respondent pointed out that while the association between the respondent and the victims was not of a long duration, all involved were teenagers and an intense relationship at that age can be conducted over a short period of time. The primary judge acknowledged that that was how his Honour understood the argument was being advanced, stating “… they both had feelings for each other. It was not just a completely casual or one-off thing”.
The primary judge’s reasons for sentence outlined the respondent’s subjective circumstances in some detail. It is that aspect of the sentence that contains the substance of the Crown’s complaint. As to the objective seriousness of the offending, also challenged in part by the Crown, his Honour observed at [16] of his reasons:
16.The offender was 18 years old at the time of the offending conduct. Notwithstanding his relative youth, there was a significant age difference between him and his victims. The relationships between the offender and [TB-13] and [TT-15] were relatively short-term. The agreed facts contain conflicting indications as to whether the offender was principally motivated to enter the relationships in order to obtain sex. I sentence him on the basis, consistent with the evidence, including the evidence in the victim impact statement, that he was engaged in a genuine, if immature, relationship with each of the victims. Because of the age of the victims and the difference in age between the victim and the offender, there was a degree of power imbalance between them. Both involved unprotected sex which carried with it the risk of pregnancy and disease. The former risk manifested itself in relation to the victim TB. These factors mean that the objective seriousness is not in the low end of the range. In my view the offences in relation to TT should be characterised as being at the lower end of the mid-range of objective seriousness and the offences in relation to [TB-13] should be characterised at the mid-range of objective seriousness because of [TB-13’s] age and the consequences that followed from the offender’s conduct.
The passages emphasised above contain the passages which the Crown contends constitute specific error.
The primary judge acknowledged the respondent’s criminal history and the absence of prior sexual offences. The Crown does not take issue with that aspect of his Honour’s reasons.
The primary judge then turned to the psychologist’s report, with a date of assessment of 23 December 2015, in some detail. Key parts of the report were, overtly, derived from prior assessments by other health professionals that were conducted, it seems, in the period from January 2015 to sometime in mid-2015. His Honour summarised the effect of the report as indicating that the following factors influenced the respondent’s behaviour at the time of the prior, non-sexual offending:
diagnosis of mild intellectual disorder;
ADHD;
poor psychosocial background;
significant history of heavy and prolonged illicit drug and alcohol use;
psychiatric diagnoses of conduct disorder and borderline personality disorder traits, as well as dysthymia and suicidal ideation with multiple attempts.
The primary judge drew the following key conclusions as to the respondent’s subjective case from the report and from the respondent’s mother’s letter:
22.The report states that “the current assessment of cognitive function suggests the further influence of focal damage to the areas of the brain involved in organisation, impulse control, and higher-level executive function.”
23.Unsurprisingly the report indicates that the offender is less likely to reoffend when he does not have access to illicit substances, when he is supervised in taking prescribed medication, when the influences on his behaviour are positive, progressive and mature and have his best interests at the core, when he has a stable home life and positive relationships, and when he has structure in his daily life that caters to his poor organisation skills, poor memory, mental tracking and confusion.
24.A letter from the offender’s mother provides further evidence about his mental health. She refers to his ADHD as well as his impulsive and difficult behavioural conditions. These commenced at birth and were reflected in “poor emotional control, serious anxiety, low self-esteem, an inability to develop adequate general life management skills and an inability to fit into normal society”.
25.Her evidence is consistent with the relationship with TT having the permission and support of TT’s parents. It is also consistent with the relationship with TB, being one which involved genuine affection. Significantly she says that the offender has “always acted and displayed immaturity at approximately 6-7 years under his actual age”.
26. The subjective circumstances of the offender, in particular his youth, mean that he is entitled to some leniency and that some emphasis should be given to the prospect that he may be rehabilitated so as to not sink further into the spiral of offending conduct and incarceration. I have taken into account the diagnosis of mild intellectual disability as reducing somewhat his moral culpability for the offending conduct. However the offences are very serious ones bearing maximum penalties of 14 years imprisonment. They occurred shortly after his release from prison and when he was at conditional liberty – a time at which his consciousness of the consequences of offending should have been greatest.
The primary judge said the following when imposing the sentences:
27.I have not accepted the submission made on behalf of the Crown that there should be little concurrency because each offence was a distinct one. I consider that, insofar as the two victims were concerned, the offences relating to each involved a similar course of conduct and hence there should be a substantial degree of concurrency between the offences.
28.The offender pleaded guilty at a relatively early stage. The Crown case was a strong one. The plea of guilty certainly has significant utilitarian value. In the sentences that I will shortly announce, I have allowed an approximately 15 per cent reduction of the period of imprisonment on account of the plea of guilty and have also taken that into account in when setting the nonparole period.
29.I have taken into account that the offender will be listed on the sex offenders register.
30. In relation to each offence involving TT, I will impose a sentence of six months of imprisonment. These offences will be concurrent except as to one month. In relation to the sentences involving TB, I will impose a sentence of 12 months imprisonment in relation to first offence and 15 months imprisonment in relation to the second offence. The factors of significance are the reduced age of the victim and, in relation to the second offence, the fact of that no condom was used and pregnancy resulted. The sentences will be concurrent except as to four months. This leads to a total sentence of imprisonment of 24 months. I will set a shorter than usual nonparole period of 12 months. This will give the offender the opportunity of a relatively early release date but also allow assessment of his conduct in prison. The sentence will be backdated to commence on 5 June 2017 to take into account time in custody attributable only to these offences.
The overall approach to this appeal
The issues in this Crown appeal turn on questions of characterisation, expression, omission and outcome. The usual injunctions about reading a sentencing judge’s reasons in a generally beneficial and substantive way, and without undue pedantry, apply. The limited purposes of Crown appeals were not in issue, being stated clearly and concisely in R v Lee [2016] ACTCA 69 at [8]:
The principles governing Crown sentence appeals are well established: see Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310; Everett v The Queen [1994] HCA 49; 181 CLR 295; Green v The Queen [2011] HCA 49; 244 CLR 462. The purpose of a prosecution appeal is to lay down principles for the governance and guidance of sentencing courts: R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [8] per Murrell CJ. The principles were discussed in R v Duffy [2014] ACTCA 53.
It should be acknowledged that sentencing for offences of this kind is a particularly difficult judicial task. Arriving at the appropriate sentence turns heavily on the individual facts and circumstances. It is well-established that there is no single correct sentence for offences generally, and that principle has particular resonance in offences of this nature. It is generally appropriate to give considerable deference to the impression that the sentencing judge has gained as to what result is best going to balance the competing considerations, whilst not shying away from an appellate court’s responsibility to address error.
Comparison with prior ostensibly like cases may in some cases only meaningfully provide the most general yardstick guidance to the appropriate sentence to be imposed. It often travels no further than general disposition as to whether or not a custodial sentence will be appropriate, and as to the order of magnitude of a sentence, rather than providing any clearer indication as to precise or even approximate sentence duration: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [52], endorsing Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [303]-[305]. Prior cases, especially at the appellate level, may provide valuable guidance in stating the overarching principles to be applied, but will still only give a yardstick indication as to what had been imposed in other cases so as to test the sentence in contemplation. That is the primary value of comparative cases in any event – to advance the quest for reasonable consistency: see Hili at [46]-[48]. While the focus in Hili was on federal sentencing, the principles stated are of more general application.
With the above comments in mind, it is convenient to address first the alleged specific errors before turning to the alleged inferred errors.
First alleged specific error – erroneous mitigation in referring to a “genuine, if immature, relationship with each of the victims”
The parties’ submissions
The Crown submitted that the characterisation of each of the “relationships” as being “genuine” was not open on the evidence but, more importantly, that the circumstances were not mitigatory. The Crown referred to the primary judge’s reasons and specific portions of the evidence before his Honour, including, in particular, the victim impact statement from TB-13’s mother, in which she said that she had encouraged her daughter to leave the respondent but that TB-13 had said that the respondent would not allow it. The Crown described the nature of the “relationship” between the respondent and the victims as a significant point of contention at the sentence hearing.
After referring to aspects of the evidence and submissions on this topic, the key portions being part of what is reproduced above, the Crown submitted that the characterisation of the association between the respondent and each of the victims as being “genuine, if immature” was not open to the primary judge. That was, it was submitted, because the respondent had engaged in multiple acts of sexual intercourse with TT-15, knowing from the outset that she was 15 years old, with the entire duration of the association being 35 days. The respondent had told mutual friends that he only started the relationship to obtain sex. This was said to be entirely consistent with the facts before the primary judge, which indicated that the respondent exerted pressure over TT-15 to perform sexual acts by openly degrading her to her friends for not being more compliant. In substance, the Crown argument was that the overall circumstances did not permit, at a factual level, that characterisation of the association as being “genuine”.
The Crown placed some reliance on what was said by the New South Wales Court of Criminal Appeal (NSWCCA) in R v Nelson [2016] NSWCCA 130:
(a) per Basten JA:
25Furthermore, this material tends to contradict the proposition that an age difference between a 13 year old girl and an 18 year old man is not significant. Although much will depend upon personalities and physical stature, the age difference is significant. A young girl may more readily be dominated by an older man, but may also be more susceptible to manipulation and persuasion by a young man who is undoubtedly older than she is, but is closer to her own age than an abusive adult.
and
(b) per Rothman J:
63It is important to understand the significance of the age difference between the Respondent and his victims. A 13 year old, ordinarily, is in Year 7, (or, possibly Year 8), starting the first year of High School and has only recently reached puberty. An 18 year old is permitted legally to drive, to drink, to attend bars and clubs, to smoke, to work and to vote.
64The capacity to drive and obtain alcohol (or visit clubs) is a subtle and overwhelming distinction and mark of “adulthood” compared to a person who is only just learning about relationships generally and who may well envy the freedom that “adulthood” provides. In my view, the difference between an 18 year old, regardless of the subjective circumstances of the Respondent, and a 13 or 14 year old is extremely significant.
The Crown submitted that, even more fundamentally than the factual finding by the primary judge, the circumstances of the association with each of the victims was not mitigatory at all, because to find that the respondent was genuinely affectionate towards his victims was really tantamount to taking into account consent (which could not, at law, be given). The Crown submitted that because consent was not an element of the offences, and absence of consent might constitute aggravation, the presence of consent or “genuine affection” could not be mitigatory.
The submissions for the respondent suggested that the dividing line between mitigation and aggravation was not clear-cut, as some of his Honour’s findings could have underpinned conclusions as to moral culpability, while others could have formed part of the various matters the Court was required to take into account in determining an appropriate penalty. It was submitted that the impugned finding by the primary judge was not referred to as a mitigating factor, and that the finding that was made was not only appropriate, but necessary, given that one of the “relevant factors” required to be taken into account under s 33(1)(a) of the Sentencing Act 2005 (ACT) was the nature and circumstances of the offences. It was suggested that, in those circumstances, to classify the “genuine” finding as one of mitigation was more a matter of “preference and semantics” rather than legal principle, and was, in any event, irrelevant. It was submitted that the finding was open to his Honour on the evidence, and was made with regard to the circumstances and context of the offending, which were critical to the assessment of objective seriousness and ultimately to determining the appropriate penalty. Reference was made on behalf of the respondent to the evidence which supported the impugned finding.
It was further asserted on behalf of the respondent that the Crown’s submissions on sentence recognised the conflict in the evidence as to the nature of the respondent’s association with each of the victims, and that the Crown’s submission that neither was “deep” or “meaningful” is to be contrasted with the absence of any Crown submission that the relationship was not “genuine”, or that there was no “relationship” at all. It was asserted that the Crown’s submissions on sentence were not inconsistent with the finding of fact that was disputed, such that the Crown was raising a different case on appeal than it had before the primary judge. The respondent cited Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81], in which it was stated that an appeal court will not lightly entertain arguments that could have been advanced at the sentence hearing but were not, and will even less willingly entertain arguments that contradict those previously put.
In written reply submissions, the Crown developed its argument that the nature of a “relationship” between an adult and a child is able to be considered as constituting an absence of aggravation, but not as a circumstance of mitigation. It was forcefully submitted that by characterising the association between the respondent and the victims as “genuine”, the primary judge imported a consideration of the quality of “consent” given by the victims, which was irrelevant given that a child cannot give consent at all. The Crown placed considerable reliance on Clarkson v R, going beyond the passages quoted by this Court in R v CV. Those passages, and others not specifically referred to by the Crown, are of considerable importance in addressing the issues raised by this ground of appeal, and also have relevance to the manifest inadequacy grounds of appeal.
On the topic of whether consent could be a mitigating factor, the Victorian Court of Appeal in Clarkson v R stated, after referring to relevantly identical offence provisions dealing with sexual intercourse with children under 12 years of age, or from 12 to under 16 years of age:
16. In addressing the consent question, it is necessary to begin with the language, and purpose, of the legislation prohibiting sexual activities with children under the age of 16. Axiomatically, it is from the language which Parliament has used that its purpose is to be discerned.
[The offence provisions, substantially the same as s 55 of the Crimes Act 1900 (ACT), were then reproduced, followed by certain other provisions.]
21.Parliament’s intention could hardly have been made clearer. … Relevantly for present purposes, these sections are to be approached – and interpreted – on the basis that children are vulnerable persons against whom a significant number of sexual offences are committed, and they must be protected from sexual exploitation.
22.How, then, should the Court interpret a provision like s 45, which makes it an offence to take part in an act of sexual penetration with a child under 16 whether the child consents or not? Or a provision like s 47(1), which prohibits a person from committing an indecent act in the presence of a child under 16 whether the child consents or not? (We will deal separately with the exceptional circumstances in which a child’s consent can constitute a defence.)
23.Parliament has provided that an offence under s 45, or under s 47, will be committed even where the child freely agrees to the act of sexual penetration or the indecent act (as the case may be). The legislative prohibition is absolute. Exceptions apart, sexual activity with a child under 16 is never permissible.
24. The contrast with the offence of rape is striking. Although the prohibition on rape is absolute, the offence itself is only committed if there is sexual penetration without the person’s consent. Further, the offender must be proved to have been aware that the person was not consenting, or might not have been consenting, or to have given no thought to whether the person was not consenting or might not be consenting. A person (not being a child) can consent to being sexually penetrated. A child under 16 cannot. By fixing a minimum age of 16 years, the Act draws a clear distinction between those who are deemed to be capable of consenting to sexual penetration and those who are not.
Under the heading “Protection from harm”, the Court in Clarkson v R then observed:
26.In its statutory context, the absolute prohibition on sexual activity with a child can be seen as having twin purposes. The first is to protect children from the harms caused by premature sexual activity and – to that end – to protect them from their own immaturity. On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity, even if subjectively attracted to the idea of participating in such activity. Secondly – and in order to advance the protective purpose – the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.
27.These twin objectives were succinctly expressed by the FCSASC [Full Court of the South Australian Supreme Court] over 20 years ago, in Williams. The Court said:
The law which prohibits sexual intercourse with young girls exists in order to protect young girls from their own inclinations, until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls.
The WASCA has consistently expressed similar views.
28.The Victorian provisions reflect a longstanding community consensus that it is not until the age of 16 that a child has the psychological maturity and decision-making competence to agree to sexual activity. In 1981, a UK Home Office Policy Advisory Committee recommended that 16 should remain the minimum age for sexual contact with a female. The Committee emphasised:
· the physical harm which may arise from premature sexual experience;
· the undesirability of pregnancy at too early an age, and the adverse effects of abortion on future fertility; and
· the emotional and social harm which a girl may suffer if she has sexual relations at an age when she is not mature enough to cope with the consequences of a sexual relationship.
The Crown submitted that it was not being contended that there was no “relationship at all” between the respondent and the victims, but, rather, that the finding that this was “genuine” revealed an error in principle and glossed over evidence to the contrary.
Consideration
The first point to note is that the Crown’s arguments as to available fact-finding need to be kept separate from those of characterisation and principle. The capacity of this Court to reach a different factual conclusion to the primary judge is constrained by the usual need to find error as opposed to merely reaching a different view. With that in mind, the submissions for the respondent as to the fact‑finding being open to the primary judge on the evidence and material before his Honour should be accepted. It was open to his Honour to find, as a matter of fact, that the “relationship” between the respondent and each of the victims was “genuine”. For completeness, it should be observed that this was plainly a live issue at the sentence hearing, and raising it did not constitute any change of case by the Crown. Whether that characterisation was legally permissible is an entirely separate question.
The remaining live issue raised by this ground of appeal, which was less prominent in the Crown’s written submissions in chief but featured more strongly in the Crown’s written submissions in reply and in the oral argument at the hearing of the appeal, is not whether or not the evidence permitted the primary judge to make the findings that his Honour did, but, rather, whether such findings constituted treating the nature of the association between the respondent and the victims as being in some way mitigatory.
To the extent that the submissions for the respondent suggested that the dichotomy between mitigation and aggravation was not real and substantial when it came to the issue of “consent” by a child to sexual activity, that submission should not be accepted. It is a clear and vitally important distinction, as the authority to which the primary judge was taken by the respondent’s lawyer makes clear. It is simply not open to a judge in sentencing for offences involving sexual activity between an adult and a child to treat any aspect of the permitted non-sexual relationship as mitigatory of the proscribed sexual activity. Why that is so requires some elaboration.
The primary judge was directly taken to the following passages of the decision of this Court in R v CV:
23.The Crown also complained that his Honour considered that the fact that sexual activity was consensual was an extenuating circumstance. In Clarkson v The Queen (2011) 32 VR 361 (“Clarkson”) the Victorian Court of Appeal (constituted by a bench of five justices) stated that the consent of the child can never, “of itself”, be a mitigating factor, although absence of consent will significantly increase the seriousness of the offence and the culpability of the offender. The Court observed that the prohibition on sexual activity with a child is founded on a presumption that children are unable to give meaningful consent. A child’s “consent” is more accurately “apparent” or “ostensible” consent. The Court held (at [5]) that:
Proof that the child consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.
24.The Court went on to make the following observations (at [6]–[8]):
Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases — for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner — the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.
At the other end of the scale, there are exceptional cases of a position of trust or authority, rend 15 year old girl and an 18 year old boy — where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.
In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.
The passages from the primary judge’s reasons, reproduced above at [16], [31] and [34], in which his Honour used the word “relationship” to describe and explain various aspects of the contact and activities that took place between each of the victims and the respondent is inherently problematic. The word “relationship” was used in the statement of facts upon which the respondent was sentenced and by both parties during the sentence hearing. It was therefore unsurprising that it featured in his Honour’s reasons.
There is, of course, nothing wrong with an adult having a non-sexual and otherwise unobjectionable association with a child. That is part and parcel of the normal functioning of society. The problem arises not merely from the use of the word “relationship”, but from a lack of unambiguous clarity as to what precisely is being referred to by the use of that word. Without a degree of precision by all concerned, the use of that word has the capacity to blur the vitally important distinction between the activities between an adult and a child that are permissible and the activities that are impermissible under any circumstances. That, in turn, can lead to an inadvertent failure to maintain the strict and critical distinction required to be observed between:
(a) the absence of aggravation that may arise from the circumstances in which an adult engages in sexual activity with a child, such as by the adult not using force, coercion, pressure or even persuasion or influence. That is a circumstance properly able to be taken into account on sentence, albeit that it would ordinarily only be relevant to rebut some suggestion to the contrary – that is, to meet any suggestion in the Crown case or other evidence or material on sentence that such an element of aggravation is present;
and
(b) any suggestion of mitigation arising from the circumstances leading to an adult engaging in sexual activity with a child, such as by the child being said to have consented, or the circumstances possibly giving rise to anything in the nature of consent. That must be taken to be a forbidden consideration on sentence, given the clear intention of the legislature in this and all other jurisdictions in Australia that a child should not be able to give consent to sexual activity with an adult. To have regard to consent or anything akin to consent as in some way constituting mitigation would be to act “upon a wrong principle” or to allow an “extraneous or irrelevant” matter “to guide or affect” the exercise of the sentencing discretion: House v The King (1936) 55 CLR 499 at 505.
Failing to maintain a clear distinction between the two types of association can have the effect of treating the forbidden sexual component as somehow being less serious, in a mitigatory way, by reason of the presence of the permissible non-sexual component.
A child may express a view or behave in a way that does or does not entail objecting in some way to sexual activity taking place with an adult, but the absence of objection cannot in any way constitute mitigation. It constitutes no more than an absence of aggravation and is ordinarily only relevant to rebut, or diminish the extent of, any such aggravation suggested by the Crown or that might otherwise be inferred. That is, given that a child cannot, directly, indirectly, or by any other circumstance, consent to sexual activity with an adult, it is a serious aggravation of an already very serious offence if the child also, in fact, objected to, or otherwise resisted, the sexual activity taking place. That conceptualisation also informs the approach to be taken to a child’s ostensible acquiescence to sexual activity with an adult by reason of such aggravating circumstances as pressure being placed upon, or inducement or encouragement of, a child to engage in that activity. All such acts by an adult to facilitate sexual activity with a child may be regarded, to a greater or lesser extent, as aggravating circumstances.
The use of the word “relationship” to refer in any way to sexual activity between an adult and a child is therefore best avoided. That helps to ensure that the circumstances of the permissible association are not used, consciously or subconsciously, to mitigate in any way the strictly prohibited sexual activity that has taken place.
The above comments set the scene for considering what took place in relation to the sentencing of the respondent, in order to determine whether the specific error alleged by the Crown is made out.
There was nothing wrong with the respondent, when he was an 18-year-old man, having a non‑sexual association with TT-15 and with TB‑13. However, any sexual activity between the respondent and either of those two children was strictly forbidden. That is, there could not lawfully be any sexual association at all between the respondent and TT-15 or TB-13, and neither child could lawfully give any form of consent to that taking place.
The primary judge’s comments as to a “genuine, if immature, relationship”, taken on their own or in the context of the rest of the reasons for the sentences imposed, would tend to suggest that his Honour considered that the nature of the association between the respondent and each of the victims was such as to mitigate the offending. However, this was a sentence delivered orally after an adjournment of only an hour and a half between 12.40 pm and 2.10 pm after the last of the oral submissions.
The passage of the sentence relied upon by the Crown containing the phrase “genuine, if immature, relationship” was delivered by the primary judge in the context of reasonably detailed submissions in which the lawyers for the Crown and the respondent contested the nature of the association between the respondent and each of the victims. The Crown, while not suggesting predatory behaviour by the respondent as such, was advancing a case of the will of the victims being overborne or otherwise compromised. There was some evidence to support that characterisation, but also evidence to rebut it.
It was open to the primary judge to regard the absence of at least overt objection by the victims as meeting the Crown case as to coercion or pressure, while still avoiding impermissible mitigatory reasoning in the nature of “consent”. Read in context, and having regard to the sentence hearing transcript, his Honour should not be taken, by the use of the phrase “genuine, if immature, relationship” in describing the relationship between the respondent and each of the child victims, as treating that association between the respondent and the victims as constituting a mitigating circumstance. Rather, his Honour should be taken to be referring to the permissible non-sexual aspect of the association between the respondent and each of the child victims as meeting the Crown case suggested aggravating circumstances by which they acquiesced to the sexual activity.
In an ideal world, it would, of course, be preferable to have every aspect of sentence reasons crafted free of any hint of ambiguity. That standard of virtual perfection is of a kind more readily achievable by appeal courts, not least because of greater time being available, but also because appeal decisions are more commonly reserved than are first instance sentence decisions. However, demanding such perfection of sentencing reasons would impose intolerable delay for sentences that will not, in the greater part, be the subject of appeal, and, through that delay, create the real risk of injustice. Oral and immediate sentence reasons on the day of a sentence hearing are to be encouraged when reasonably possible and not made impossible. Moreover, such a close focus on form has the potential to detract from time being spent by a sentencing judge on matters of substance, especially in the deliberation of competing considerations in order to arrive at a just result, tailored to the individual facts and circumstances of the case.
In this case, the reasons given by the primary judge, which were clear, concise and thorough, came immediately after a contest as to the circumstances in which the offences took place. The Crown argued that there was a form of aggravation arising from the circumstances in which the sexual activity took place, including by reference to material pointing to a degree of imposition by the respondent upon the victims. The respondent’s lawyer sought to meet those arguments in part by reference to what was styled as a “boyfriend, girlfriend” dimension.
The primary judge, in the full context of the sentence hearing, did not accept the Crown’s argument. In so doing, his Honour essentially did not accept that the Crown characterisation was the true nature of the association between the respondent and the victims. His Honour was entitled to reach that conclusion and, accordingly, did not err in the manner contended for by the Crown by treating the nature of the association as being mitigatory, which is clearly impermissible. The approach of his Honour is, however, relevant to the topic of manifest inadequacy, because it assists, to an extent, in understanding how his Honour arrived at the sentences imposed.
Second alleged specific error – error as to the assessment of objective seriousness by characterising the offending in relation to TB-13 as being “at the mid-range of objective seriousness”
The Crown’s written submissions on this ground of appeal question how useful it is to characterise the offences as being “at the mid-range of objective seriousness” in light of the observations of the High Court in R v Kilic [2016] HCA 48; 259 CLR 256 at [19], at which all five justices of the High Court observed:
Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty – as the offending was agreed to be here – a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called [Ibbs v The Queen (1987) 163 CLR 447 at 452; Elias v The Queen (2013) 248 CLR 483 at 494 [27]]. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being “within the worst category”. It is a practice which should be avoided
The Crown submitted that the task was not so much one of putting a label on where the offending lies, but, rather, arriving at a sentence that has the effect of placing the offending on a spectrum from the least to most serious by reference to both the objective circumstances of the offending and the subjective circumstances of the offender. The Crown submitted that, viewed in that way, it was discordant for the primary judge to place the offending in relation to TB-13 in the mid-range of objective seriousness, yet only impose a sentence of 15 months’ imprisonment for the worst offence against that child as against a possible maximum penalty of 14 years’ imprisonment. If the sentence is adjusted for the 15% discount for the guilty plea, the starting point for his Honour’s sentence was less than 18 months, in circumstances where the respondent deliberately got TB-13 pregnant. The Crown submitted that such a starting point hardly achieves recognition of the middle of the range in the spectrum between the least and most serious of offences, if that was what his Honour intended to convey by the description used.
The Crown submitted that the offending against TB-13 was more serious than the mid‑range of that spectrum. The Crown pointed to the following features, which were said to make the more serious second offence against TB-13 lie at the high range of objective seriousness, or in the words of the High Court in R v Kilic, at the upper end of the spectrum of seriousness of offending. The features that the Crown relied upon were, in summary:
(a) the young age of TB-13 and the fact that the respondent knew her age from the outset;
(b) the fact that this and all the other offences were committed while the respondent was at conditional liberty (in fact a circumstance of aggravation, rather than objective seriousness: see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]; Smith v The Queen [2011] NSWCCA 163 at [26]);
(c)the power imbalance between TB-13 and the respondent;
(d)the fact that other persons became involved and told the respondent to stop “dating” TB-13, but he persisted regardless and later formed a plan to deliberately get TB-13 pregnant;
(e)the planned, intentional elements of the conduct and the high level of manipulation involved in executing the plan by the respondent;
(f)the fact that the second offence against TB-13 represented a course of conduct by the respondent that involved multiple acts of unprotected sexual intercourse with TB-13 with the intention of getting her pregnant;
(g)the fact that the association between the respondent and TB-13 was marred by his controlling behaviour; and
(h) the significant long-term impact on TB-13 following the offences committed against her.
The Crown submitted that the primary judge, in characterising the offending as merely “mid-range”, failed to appreciate the objective seriousness of the offending against TB‑13. The Crown submitted that this amounted to a specific error in the House v The King sense, which justified appellate intervention, following Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8] and [24]. It should be noted that at [24] of Carroll, the High Court held that while it was open to an intermediate appeal court to form a different view from the primary judge as to where, on an objective scale of offending, an offender’s conduct stood, in the absence of any challenge to the primary judge’s findings of fact, it was not open to an appellate court to evaluate the adequacy of the sentence upon a different factual basis.
The submissions for the respondent treated this ground of appeal as being a particular of the manifest inadequacy ground of appeal and, accordingly, addressed the topic under that heading. The submissions for the respondent in relation to this allegation of specific error asserted that the Crown had not characterised the respondent’s conduct as being manipulative before the primary judge, and could not do so now for the first time on appeal. It was asserted that the primary judge had regard to each of the aggravating factors identified by the Crown, especially in relation to the fifth charge, being the second offence against TB-13. However, the submissions for the respondent did not otherwise really engage with the Crown submissions on this ground. That may well have been because those submissions were difficult to meet.
It is difficult to see how an offence can be characterised at the mid-range of objective seriousness, if that is intended to convey a view that the offending was somewhere at the middle point between the least serious instance of offending and the most serious instance, and yet to then end up with a starting point sentence of less than 18 months against a maximum penalty of 14 years. The problem overall is not so much that the primary judge erred in characterising the objective seriousness as being somewhere in the middle of the spectrum, if that is what his Honour intended to convey. Rather, the problem is that such a characterisation does not appear to carry through to the sentence that was imposed for the offending against TB-13, at least in respect of the second offence against her involving pregnancy.
The proper conclusion is that this ground does not succeed on its own terms, as no error has been demonstrated in his Honour characterising the offending against TB-13 as being in the mid-range of objective seriousness, rather than at the high end of that spectrum, especially when regard is had to the circumstances of aggravation that might, but did not, exist in this case, and the respondent’s reasonably substantial subjective case. However, that characterisation becomes a very important framework against which to assess the sentences that were, in fact, imposed, especially for the second offence against TB-13. Accordingly, this ground of appeal has more work to do as a particular in relation to the inferred errors in the remaining grounds of appeal raising manifest inadequacy.
INFERRED ERRORS – third to fifth alleged inferred errors of manifest inadequacy
The Crown contended that the primary judge erred because:
(a)each of the individual sentences was manifestly inadequate;
(b)the accumulation between the sentence imposed for the second and third offences against TT-15 was manifestly inadequate;
(c)the accumulation between the sentence imposed for the first and second offences against TB-13 was manifestly inadequate;
(d)the overall head sentence was manifestly inadequate; and
(e)as a result of the above, the non-parole period was manifestly inadequate.
The sentencing outcome was graphically represented in the following table that was relied upon by the Crown in support of the submissions on the appeal (the offences are depicted in reverse chronological order, with the top being the last offence committed against TB-13, and the bottom being the first offence committed against TT-15):
Reading the above table from the bottom up so as to refer first to TT-15 and then to TB-13, it can be seen that:
(a)the sentence imposed for each of the three offences against TT-15 was for six months’ imprisonment;
(b)by reason of the sentences for the three offences against TT-15 commencing on 5 June, 5 July and 5 August 2017, there was only one month of accumulation between the first and the second offence, and one month of accumulation between the second and third offence, producing an overall penalty for the offending against TT-15 of eight months’ imprisonment. This means that the effective punishment for each offence after the first was one month’s imprisonment;
(c)the sentences imposed for the offences against TT-13 were wholly cumulative upon those imposed for the offences against TB-15;
(d)the sentences imposed for the offences against TB-13 were for:
(i) 12 months imprisonment for the first offence; and
(ii) 15 months imprisonment for the second offence;
(e) by reason of the sentences for the two offences against TB-13 commencing on 5 February and 5 March 2018, there was only one month of accumulation. This, coupled with the addition duration of three months for the second offence, means that the effective punishment for the second offence, by which the respondent deliberately made TB-13 pregnant, was four month’s imprisonment.
Crown assertion that each of the individual sentences was manifestly inadequate
Submissions
The Crown quoted the seminal statement from House v the King as to appellate intervention, and the decision of this Court in R v Harrington [2016] ACTCA 10 at [7], where it was said:
Appellate intervention on the ground of manifest excess or inadequacy is not warranted unless, having regard to all relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been a misapplication of principle: R v Pham (2015) [256 CLR 550] (Pham) at [28] per French CJ, Keane and Nettle JJ, restating principles laid down in Wong v The Queen (2001) 207 CLR 584 at [58] (Wong) and Barbaro v The Queen (2014) 253 CLR 58 at [61]. See also the observations of Bell and Gageler JJ in Pham at [56].
The Crown then referred to the principles for the fixing of sentences for multiple offences stated in O’Brien v The Queen [2015] ACTCA 47 at [26] as follows:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
As to the first sub-ground of the manifest inadequacy ground of appeal, which asserted that the individual sentences were manifestly inadequate, the Crown placed reliance upon the objective seriousness of the offences and the way in which the primary judge dealt with them. Numerous authorities were cited as to the approach that should be taken, none of which appeared to be in doubt. The Crown pointed out that for each of the sentences imposed in respect of the offending against TT-15, the starting point, after the removal of the discount for the guilty plea, was seven months’ imprisonment against a maximum of 14 years’ imprisonment for an offence that the primary judge had characterised as being at the mid-range of objective seriousness. It was submitted by the Crown that this of itself constituted manifest inadequacy. This was said to be particularly marked in relation to the third offence involving TT-15, to be contrasted with the identical sentences imposed for the first two offences which took place over the course of a single night/morning.
The Crown relied upon the facts as found by the primary judge at [5] of his Honour’s reasons, wherein reference was made to TT-15 agreeing to perform fellatio because she wanted to please the respondent, and because she felt bad when he had earlier complained to her friends that she would not do so. The Crown characterised this manipulative aspect as not being expressly adverted to by his Honour, despite being an aggravating feature of the offence. As noted above, the respondent submitted that this characterisation was not advanced at the time of the sentence hearing.
In further submitting that the individual sentences imposed for the offences relating to TB-13 were manifestly inadequate, the Crown made a comparison between the undiscounted head sentences and the maximum penalty of 14 years, characterising those sentences as being so low as to shock the public conscience. This was particularly apparent in relation to the fifth charge overall, being the second charge against TB-13, reflecting the act of sexual intercourse which resulted in TB-13 falling pregnant. The burden of the Crown submissions was to place greater weight on the sentence for the most serious of the offences. The Crown submitted that this offence had a number of aggravating features and was described by the prosecutor at the sentence hearing as being the most serious offence. The Crown placed particular reliance on the following characteristics:
(a)the offence was committed on a very young person who was, to the knowledge of the respondent, only 13 years of age;
(b)the offence involved a planned and premeditated intention to impregnate TB-13;
(c)the respondent contacted TB-13 by Facebook messenger on 2 April 2016 and told her that he needed to tell her something, which prompted her to call him, whereby he then told her over the telephone that he wanted to have a child with her; and
(d) as a result of this conversation, the respondent and TB-13 commenced having unprotected sexual intercourse on a regular basis over a period of more than a month, as a result of which she became pregnant, noting that actual pregnancy was a significant aggravating feature, as recognised by his Honour.
The Crown pointed to the significant and lasting impacts on the victim which had been addressed by the prosecutor on sentence, and to the reference by his Honour to those impacts at [13] in the sentence reasons. The Crown noted some of the significant impacts of the offending on TB-13 that were not already referred to, including her self‑harming behaviours, her feeling guilt and shame about what had happened, her need to attend counselling, her re-traumatisation from undergoing counselling and her subsequent involvement in criminal behaviours. The Crown noted that TB-13 no longer attended school as a result of bullying from peers who were aware of the offences against her. Her younger sister also had to change schools after others found out about what had happened to TB-13. The adverse effects extended to TB-13’s five-year-old brother, who experienced fear and anxiety about being exposed to the effects of the offence on TB-13. The offending had placed emotional and physical stress on her mother, exacerbating her mother’s movement disorder and resulting in periods of separation from her husband. The point to be made about all of these submissions is that this was not a case only of presumed harm, but one of proven harm to the victim.
The Crown placed reliance on R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [110], where the following was said:
This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v The Queen [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v The Queen (2011) 32 VR 361; 212 A Crim R 72 at [3], [26]-[39].
(d)for someone of the age of the respondent (20 years) and the respondent’s intellectual functioning, the impact of additional time in custody is unlikely to result in any increased specific deterrence from the time already served; and
(e) an increase in the respondent’s sentence will have a negative impact on his progress in rehabilitation, relying upon the affidavit of the respondent’s lawyer, Ms Bridget Dunne, affirmed 9 May 2018 and the annexed letter from the respondent’s mother bearing the same date.
The respondent acknowledged that the importance of the factors raised varied according to which, if any, errors were found to be made by the primary judge that warranted the consideration of the residual discretion. The respondents submitted that, having raised these matters, the Crown must negative any reason why the residual discretion not to intervene in the sentence imposed should not be enlivened.
In response, the Crown submitted that the primary judge’s decision to sentence the respondent on the basis that he was engaged in a genuine relationship with the victims reveals that his Honour took into account an irrelevant consideration amounting to an error of principle. As that ground of appeal has not succeeded as a stand-alone error, that submission may only be accepted to the extent that it contributes to the conclusion as to manifest inadequacy.
The Crown also contested the proposition that it had not identified any sentencing principle that arose, nor articulated any need to lay down principles for the governance and guidance of courts tasked with sentencing. To the contrary, the Crown submitted that it had identified numerous principles that were relevant to the appeal in written and oral submissions, including:
(a)the principal of the consent or “genuineness” of a relationship being irrelevant in the assessment of criminality in child sexual offending;
(b)the presumption of harm in sentencing for child sexual offending;
(c)the application of the principles in Verdins; and
(d) the principle that accumulation of sentences must properly reflect the criminality of each offence.
The Crown contested the proposition that it had failed to give proper assistance to the primary judge, and noted that the respondent could not point to anything to show that the Crown had contributed to the asserted errors. It was further pointed out that there was ample evidence before his Honour as to the nature and circumstances of the offences.
The Crown submitted that no need arose to make a submission that the respondent was not a predator, noting that it was not necessary for the Crown to trade in pejorative barbs of that nature. The Crown pointed out that the primary judge could have been in no doubt of what the Crown’s position was in relation to the matters that were relevant to the sentencing discretion, particularly in light of the following Crown submissions that were made before the primary judge:
(a)describing the respondent’s offending in relation to the victims as “serial behaviour”, “pre-meditated”, “deliberate” and committed with knowledge as to the age of the victims from the beginning of his association with them;
(b)against the proposition that consent in any form could mitigate the seriousness of the offences; and
(c) as to the nature of the respondent’s associations with each of the victims insofar as that was supported by the evidence; namely, that the associations were not of a long duration and that the respondent had made statements about his motive, that having been to obtain sexual gratification.
The Crown objected to the affidavit of Ms Dunne and the annexed letter from the respondent’s mother being introduced at this very late stage of the appeal proceedings, noting that there had been no compliance with the notice requirements and procedures contained in r 5606 of the Court Procedures Rules 2006 (ACT). This material was produced after the hearing and, it was submitted, had denied the Crown any fair opportunity to discharge its burden of proof in relation to the issue that this material raised. It was submitted that any application now made out of time to have regard to this evidence should be refused.
The Crown submitted that, in any event, the weight to be placed on such further evidence was very limited. The letter was written by the respondent’s mother and contained her opinion as to what she thinks the respondent is presently experiencing, which constituted hearsay insofar as it purported to prove any aspect of the respondent’s progress towards rehabilitation.
The Crown therefore submitted that it had negated any reason proffered by the respondent as to why the residual discretion not to intervene should be exercised. The Crown reiterated that its ultimate submission was that the sentences imposed were so manifestly inadequate that, in order to maintain public confidence in the administration of justice, they could not be allowed to stand, citing R v Hall [2017] NSWCCA 313 [117]. The Crown submitted that the increase in the sentence which was warranted would not amount to mere tinkering: cf R v Manok [2017] NSWCCA 232 at [17]. The Crown submitted that the Court should not exercise its residual discretion because, in this case, to decline to intervene would be to perpetuate a manifest injustice, citing Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [76].
The Crown submitted that it had reasonably objected to the tender of the psychologist’s report and had properly questioned the weight to be placed upon it. The Crown submitted that it had properly argued in favour of a low level of concurrency in the sentences imposed and correctly characterised the fifth offence as being the most serious.
Consideration
To the extent that the respondent criticised the Crown for not relying on sentencing statistics, that is an approach that has been firmly disapproved of by the High Court in R v Pham [2015] HCA 39; 256 CLR 550.
While it is regrettable that the Crown appeal was only listed for hearing within a month of the expiry of the existing non-parole period, the Crown bears no responsibility for that. The notice of appeal was filed in a timely fashion and there is nothing to indicate that the Crown contributed in any way to the delay.
In all of the circumstances, the closeness of the expiry of the respondent’s existing non-parole period does not provide a sufficient reason to allow a manifestly inadequate sentence, to the extent that that has occurred in this case, to stand. However, considerable weight is to be given to that circumstance in exercising even greater than usual restraint upon resentencing and extending an additional measure of leniency on that account.
Generally speaking, the submissions for the Crown should be accepted and those for the respondent rejected. The reasons advanced by the respondent for not intervening have been amply met by the Crown. While not every aspect of the Crown’s arguments against exercising the discretion not to intervene can succeed in light of the conclusions reached on the substance of the appeal, more than enough has been done to discharge the onus. First and foremost, each of the sentencing errors identified above involved serious issues of principle.
While the first specific error was not made out in its own terms, it was substantially run as a particular of the manifest inadequacy ground and, to that extent, contributed to the conclusion reached. It was part of the explanation for the overall approach taken by the primary judge, inadvertently identified by the respondent in his written submissions on discretion, by identifying the genuineness of the relationship as a reason for treating the offences as part of a single course of conduct. It was part of the matrix of reasoning deployed by the primary judge that led to the erroneous undervaluing of the objective seriousness of the last offence committed against TB-13 and the overvaluing of the respondent’s subjective case in respect of that offending.
Moreover, the accumulation errors identified above concern important points of principle. The offences on separate dates against each victim should not have been treated substantially as part of a single course of offending. That is an issue of considerable importance to sexual offences committed over even short periods of time against children, let alone over longer periods of weeks or months. The result arrived at is sufficiently inadequate as to shock the public conscience, itself a compelling reason for exercising the discretion to intervene.
The very late fresh evidence sought to be relied upon by the respondent without proper leave or notice should be admitted notwithstanding the Crown objections, especially given that the rules of evidence do not apply to sentence proceedings unless expressly ordered: see s 4(2), Evidence Act 2011 (ACT). While it is true that the respondent did not comply with the notice requirements and procedures contained in r 5606 of the Court Procedures Rules, and the affidavit and annexed letter was produced after the hearing, the evidence was in a very narrow compass. Not much weight could be given to that evidence on the discretion, but it does have some limited relevance to the resentencing exercise itself in relation to appellate restraint, such evidence being routinely admitted for such purposes. However, the evidence does not provide any sufficient reason, either individually or cumulatively upon the other factors raised by the respondent, not to intervene in light of all the other factors already referred to and addressed by the Crown. It would be a different matter as to receiving this additional evidence if it provided an operative reason for not exercising the discretion to re-sentence, because the absence of opportunity for the Crown to meet that evidence would likely be a denial of procedural fairness.
A final point to be made is that it is not fair to attribute any blame to the Crown for the original sentencing result. All of the key points upon which the Crown’s arguments on appeal succeeded were made at the time of the sentence hearing.
In all of the circumstances, a proper case for the Court not to exercise of its discretion not to intervene has been made out by the Crown and, accordingly, the respondent’s existing sentences, to the extent that they are manifestly inadequate as referred to above, should be set aside and the respondent should be resentenced.
Conclusion and resentencing
In all of the circumstances, the Crown appeal as to manifest inadequacy of sentence should be upheld. The sentences to be imposed should be at the very bottom of the appropriate range, by reason of this being the product of a Crown appeal, coupled with the proximity to the expiry of the respondent’s non-parole period. A considerably higher sentence would have been entirely open to the primary judge than should now be imposed. None of the sentences retained or imposed below are to be regarded as an appropriate sentence for such an offence in isolation, but, rather, as the product of appellate restraint, the respondent’s subjective case and adjustment to give effect to totality, including as to the most serious fifth offence. The degree of concurrency and accumulation reflects the extent of overlap in the offending in relation to the same victim.
It is also important to record the fact that the sentences ultimately imposed reflect the following substantial points of mitigation:
(a)the guilty pleas were early and, importantly, spared the victims the trauma and humiliation of giving evidence, even though the Crown case was apparently strong and, in relation to TB-13, by reason of DNA evidence arising from the pregnancy, probably insurmountable;
(b)the respondent has some impairment of intellectual capacity, which can be taken into account as a general circumstance relevant to such things as the effect of incarceration upon him, but not to reduce to any measurable extent, if at all, his moral culpability;
(c)as a point of mostly non-aggravation, except to the limited extent of pressure being placed on TT-15 to perform fellatio, there was no element of overt force or coercion displayed by the respondent, noting once again that anything in the nature of consent cannot mitigate the offending; and
(d) the sentence hearing was conducted fairly and efficiently by the lawyer appearing for the respondent, providing real and meaningful assistance to the Court, for which the respondent should be given some credit: see, by analogy, R v Doff [2005] NSWCCA 119; 54 ACSR 200 at [58(c)].
On any reasonable view, the seriousness of the offending against TB-13 was in a different dimension to the offending against TT-15. TT-15 was in her final year of being unable to consent to sexual activity due to her age, whereas TB-13 had over two years remaining before she was legally able to do so. The deliberate pregnancy was a very serious circumstance of aggravation for the second offence against TB-13. The respondent knew from the outset that TB-13 was only 13 years old. He was given multiple and clear opportunities to desist. He was physically assaulted twice for that precise reason. However, instead of stopping, he escalated his offending in a deliberate and planned way over a reasonably substantial period of time. None of his reasons for doing so can be sanctioned in any way. That offence requires clear, express and substantial recognition and disapproval, to punish and deter the respondent and to deter others. There must be a clarion call to young men as to how serious such offending is, and the dire consequences of doing so. The final outcome for this offending will remain, after resentencing, very lenient in all the circumstances.
The quantum of each of the individual head sentences imposed in respect the offences against TT-15 and the first offence against TB-13 should not be disturbed. The quantum of the head sentence imposed in respect of the second offence against TB-13, by which the respondent deliberately made TB-13 pregnant, should be increased from 15 months to two years.
The commencement dates of the first two sentences for the first two offences against TT-15 should not be disturbed. The extent of the accumulation between the second and third offences committed against TT-15 should be increased from one month to two months and, correspondingly, the commencement of the sentence for the first offence against TB-13 should be delayed by a month to maintain complete consecutiveness of the sentences for the offending against the two victims.
The extent of the accumulation between the first and second offences committed against TB-13 should be increased from one month to four months.
The effect of the above conclusions is that the commencement date for the sentence for the third offence against TT-15 and the commencement date for the first offence against TT-13 should be set aside, and the sentence for the second offence against TB-13 should be set aside. In lieu thereof, the following sentences should be imposed:
(a)in respect of CC-2017/4449, the respondent be sentenced to six months’ imprisonment to commence on 5 September 2017 and to expire on 4 March 2018;
(b)in respect of CC-2017/4229, the respondent be sentenced to 12 months’ imprisonment to commence on 5 March 2018 and to expire on 4 March 2019; and
(c) in respect of CC-2017/4230, the respondent be sentenced to two years’ imprisonment to commence on 5 June 2018 and to expire on 4 June 2020.
The aggregate head sentence derived from the above is three years’ imprisonment. The Crown did not take issue with the primary judge’s non-parole ratio of 50% of the head sentence. It is appropriate to maintain that ratio. Accordingly, the single non-parole period of 12 months should be set aside and, in lieu thereof, a non-parole period should be fixed of 18 months, to commence on 5 June 2017 and to expire on 4 December 2018.
Conclusion
The appeal should be allowed. The commencement date for the sentence for the third offence against TT-15 and the commencement date for the first offence against TT-13 should be set aside, and the sentence for the second offence against TB-13 should be set aside. In lieu thereof, the following sentences should be imposed:
(a)in respect of CC-2017/4449, the respondent be sentenced to six months’ imprisonment to commence on 5 September 2017 and to expire on 4 March 2018;
(b)in respect of CC-2017/4229, the respondent be sentenced to 12 months’ imprisonment to commence on 5 March 2018 and to expire on 4 March 2019; and
(c) in respect of CC-2017/4230, the respondent be sentenced to two years’ imprisonment to commence on 5 June 2018 and to expire on 4 June 2020.
The non-parole period should be set aside and, in lieu thereof, a non-parole period of 18 months should be fixed, to commence on 5 June 2017 and to conclude on 4 December 2018.
| I certify that the preceding one-hundred-and-forty-seven [147] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns and Bromwich. Associate: Date: 1 June 2018 |
LOUKAS-KARLSSON J
I have had the advantage of reading the judgment of Burns and Bromwich JJ in draft. I agree with the conclusion reached by their Honours on the question of manifest inadequacy. I therefore agree with their Honours that the sentence imposed by the sentencing judge was erroneously lenient. In particular, the sentence on Count 5 is manifestly inadequate.
Subject to the exercise of the residual discretion, I also agree with the orders their Honours propose by way of re-sentence and note, in particular, that their Honours imposed a sentence which was consistent with the restraint appropriate to re-sentence following a successful Crown appeal.
I have come to a different conclusion, however, as to the ultimate disposition of the Crown appeal. In my view, this is an appropriate case in which to exercise the residual discretion and dismiss the Crown appeal notwithstanding the finding of error.
The relevant principles to be applied on a Crown appeal are clear and not in contest:
(d)first, the Crown must locate an appellable error in the exercise of discretion by the sentencing judge; and
(e)second, the Crown must negative any reason why the residual discretion of the appeal court not to intervene should be exercised.
See R v Hernando [2002] NSWCCA 489; 136 A Crim R 451, endorsed and adopted as a correct statement of the law in CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346 (CMB) at [34].
The question is then whether having found error, this court should exercise its residual discretion not to intervene and re-sentence: CMB at [33]. The Crown bears the onus of proving on the balance of probabilities that the court should decline to exercise its discretion not to re-sentence the respondent: R v NT [2015] NSWCCA 136 at [57]. The Crown submitted that the Court should not exercise the residual discretion in this case.
The respondent submitted that the reason why an intermediate court of appeal must explicitly consider, even after an error has been established, whether to exercise their discretion to re-sentence an offender, is related to the purpose of Crown appeals. As Barwick CJ held in Griffiths v The Queen (1977) 137 CLR 293 at 310:
…an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
The respondent further submitted that while appeals against sentence initiated by the offender may be concerned with “the correction of error in particular cases”, the High Court has repeatedly affirmed that appeals brought by the Crown are concerned with clarifying the general principles of sentencing: Green v The Queen; Quinn v The Queen [2011] HCA 49 (Green v The Queen); Everett v The Queen (1994) 181 CLR 295; CMB.
The principles outlined by the respondent relating to the limited purpose of Crown appeals, in contrast to appeals initiated by an offender, are not in contest. The purpose of Crown appeals is not simply to increase an erroneous sentence. The purpose is a “limiting purpose” to establish sentencing principles and achieve consistency in sentencing: R v Reeves [2014] NSWCCA 154 at [14]-[15]; Griffiths v The Queen (1977) 137 CLR 293 at [53]; R v Borkowski (2009) 195 A Crim R 1 at [70].
Late fresh evidence was sought to be relied upon by the respondent. The Crown objected to the affidavit of Ms Dunne and the annexed letter from the mother of the respondent. The fresh evidence has been admitted. The letter from the respondent’s mother attached to an affidavit from the lawyer for the respondent refers to the improvement in the respondent’s intellectual development. The letter also refers to the respondent’s ongoing rehabilitation and the setback that an increase in sentence would be to this process.
The effect of re-sentencing on progress towards the respondent’s rehabilitation should be considered: Green v The Queen at [43]. This is not a case where no post trial material has been placed before the court relevant to the exercise of the residual discretion: see R v CTG [2017] NSWCCA 163 at [97]. As previously stated, the fresh evidence has been admitted. I am not of the view that the fresh evidence should be afforded no or negligible weight. The respondent’s ongoing rehabilitation, and the potential setback to that rehabilitation, is relevant to the exercise of the residual discretion in the respondent’s case.
Additionally, the fact that the respondent’s release from prison is imminent is an important factor to be considered: Green v The Queen at [43]. In the respondent’s case, the non-parole period as fixed by the sentencing judge expires on 5 June 2018. Notwithstanding that there was no delay in the initiation of the appeal by the Crown, the respondent’s earliest date for release on parole is now very soon and in fact less than a week away.
Finally, the fact that, were the court to impose a substituted sentence, the increase would be so slight as to constitute ‘tinkering’ is an important consideration: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62]; R v Woodland [2007] NSWCCA 29 at [53]. The proposed re-sentence, being a 12 month increase to the head sentence of two years’ imprisonment and an increase to the non-parole period from 12 months to 18 months, in my view constitutes tinkering in the circumstances of the respondent’s case.
In accordance with CMB, the onus is on the Crown to negate these factors. The Crown, in my view, has not discharged the onus.
I accept that some of these considerations amongst others favourable to the respondent were taken into account by their Honours in the re-sentencing order proposed. Nevertheless I am compelled to the finding that the guidance to be provided to sentencing judges, and the importance of individual justice, are both preserved in this case by the exercise of the residual discretion in the respondent’s favour.
For the forgoing reasons, I would exercise the residual discretion to decline to intervene and re-sentence the appellant. The appeal should be dismissed.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 1 June 2018 |
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