R v Tilbrook No. Sccrm-00-194

R v TILBROOK

[2000] SASC 375

Court of Criminal Appeal: Doyle CJ, Williams and Wicks JJ

1................ DOYLE CJ ..... I agree with the orders proposed by Williams J, and with the reasons that he gives for the making of those orders.

2................ WILLIAMS J . This is an application by the Director of Public Prosecutions for leave to appeal against two sentences for indecent assaults imposed in the District Court. The Director contends that the sentences are manifestly inadequate. The application is made pursuant to s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA).

Leave to appeal against sentence will only be granted to the Director in rare and exceptional cases where there is an issue of principle - which may include manifest inadequacy of sentence. However, the appeal process is not generally provided so as to circumscribe unduly the sentencing discretion to extend leniency. An appeal by the Director is occasionally allowed in order to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience. It is the vehicle which enables the Court to maintain adequate standards of punishment: R v Osenkowski (1982) 30 SASR 212.
The respondent pleaded guilty in the District Court to two counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act and was sentenced on 17 August 2000. The District Court Judge imposed a sentence of ten months imprisonment on the first count, and six months imprisonment on the second count. The sentencing Judge ordered that the sentences be served cumulatively and upon the total head sentence of sixteen months, fixed a non-parole period of six months. His Honour declined to suspend the sentence.
The maximum sentence prescribed for indecent assault is imprisonment for eight years, but the Court has never established a tariff. The crime encompasses a very wide range of seriousness in offending (see R v Hitchens (1995) 184 LSJS 333).
The Director’s present application is based upon the following grounds:
(1) The sentence imposed is manifestly inadequate. In particular:-
(a).... it fails to adequately reflect the totality of the criminal conduct;
(b) it fails to adequately reflect the element of deterrence.
(2)... The learned sentencing judge erred in imposing a sentence that was so disproportionate to the seriousness of the offending as to shock the public conscience.
The respondent is a 31 year old man.
On 4 July 2000 the respondent pleaded guilty to a charge of indecent assault of a young woman (A) at Port Pirie on 13 July 1999. The respondent pleaded not guilty with respect to a charge of rape concerning this incident (the rape charge being the first count on the information), but at trial, the prosecution accepted a guilty plea to indecent assault in satisfaction of the offence charged.
On 6 June 2000, the respondent pleaded guilty to a charge of indecent assault on a young woman (M) at Port Pirie on 19 August 1999. This charge was the second count on the information.
The victim of each charge was different, but there are similarities between the two incidents. The respondent and his victims were strangers. The respondent approached his victims as they each walked alone in or on the fringes of otherwise deserted bushland. He proposed to each victim that she should have sexual intercourse with him. When each rebuffed him the respondent grabbed his victim.
The incident with respect to the first count occurred in darkness on a Sunday evening at about 6pm, when the victim was walking back towards the town from the beach. When victim A rejected the respondent’s sexual advance, she tried to run away, but the respondent chased and caught his victim from behind, and rubbed his hand under her shirt over her bra on her right breast. He also put his hands tightly over her mouth and forced her into the bushes at the roadside. Despite the victim’s protests, the respondent put his hands down the front of her jeans onto her vagina. The respondent then released A. An aggravating feature of the assault is that during the preliminary dialogue (but after the victim declined his invitation to participate in a “quickie in the bush”), the respondent said something along the lines, “Do you want me to get/use my knife?” Her victim impact statement discloses that she was terrified and has continued to be affected by her experience.
The incident with respect to the second count occurred in late afternoon of 19 August 1999. The victim was a recent arrival in Port Pirie and was exploring a track through scrub on the outskirts of the town. The area was near the respondent’s workplace. He accosted M and when she refused his sexual advance, the respondent grabbed her by the arm and waist and pulled her towards the grass on the roadside. The victim broke free and made her escape although the respondent made some attempt to follow her. Again, the victim has been emotionally devastated and this has made her fearful and unable to sleep.
The sentencing Judge gave the respondent some credit for the plea on the first count (which could have come earlier as His Honour noted), but gave full credit for the guilty plea on first arraignment in respect of the second count. On the first count, the plea discount was two months (reducing a twelve month sentence to ten months), and on the second count, the discount was three months (reducing a nine month sentence to six months).
The respondent is married with two young children. The respondent’s wife is prepared to stand by her husband. The respondent lost his job upon being sent to gaol. The respondent has no criminal record prior to those offences.
A psychologist’s report suggested that the respondent might benefit from treatment for depression. This condition induced feelings of stress in the respondent which he sought to relieve by the offending conduct.
In his sentencing remarks, the District Court Judge placed emphasis on the seriousness of the offences and the need for deterrence. In my opinion, that statement, when viewed in the light of the actual sentence imposed discloses error. The first offence is a very serious instance of indecent assault, and the second offence is also a serious one. In the absence of some strong mitigating factor, the sentences (even for a person without any history of offending), are not within the range of penalty which would be appropriate for offences meeting this description.
In Dinsdale v The Queen [2000] HCA 54, the High Court restated the approach to be taken to Crown appeals against sentence. That was a case where the appeal to the Western Australian Court of Criminal Appeal was, (as in the present case), based upon an allegation of manifest inadequacy in sentence rather than specific error. In other words, the alleged sentencing error was of the third kind referred to in House v The King [1936] 55 CLR 499 at 505:
“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonably or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
In Dinsdale itself, Gleeson CJ and Hayne J at par 6 said:
“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”
In Dinsdale Kirby J (pars 61-63) said:
“In Everett v The Queen McHugh J observed that the jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal “so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing” which is “of great importance in maintaining confidence in the administration of justice in any jurisdiction.” Inadequate sentences, as his Honour pointed out, are, as much as excessive sentences, “likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes”. In this sense, the power of courts of criminal appeal to set aside sentences judged to be obviously erroneous is an important attribute of the jurisdiction and powers of such courts. It permits them to discharge their statutory functions as Parliament contemplated.
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across “time-honoured concepts” of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a “matter of principle” such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate “tinkering” with sentences.”
The facts of the present case may be assessed in light of these principles.
The incident on 13 July 1999 was particularly serious. It had overtures of an attempted rape.
The incident on 19 August 1999 must also be viewed as serious because it involved the application of significant force to a woman in a lonely spot. The victim did nothing at all to precipitate the incident. In addition, the respondent was now no longer a first offender. However, the actual assault was broken off at an earlier stage than happened on 13 July 1999.
It is disturbing to read in the psychologist’s report (which was before the sentencing Judge) that the offender had a “tendency to minimise and rationalise his offending behaviour.” There is really no excuse offered for the offending behaviour. The psychologist listed a number of factors which may have affected the respondent’s development but they are not factors which would justify the court in discounting the seriousness of the offending.
The sentence for these offences ought to be sufficient to deter the respondent and other like minded men from engaging in these frightening assaults. The victims and the general community are entitled to have this Court demonstrate its resolve to deal firmly with men who sexually molest women to alleviate the stresses in their own lives. In my opinion, it is necessary for the Court to increase the sentence so as to maintain public confidence in the ability of this Court to uphold a sentencing standard which will operate as a deterrent.
An increased sentence is necessary to reflect the proper sentencing standard. However, allowance will be made for the fact that this is the Director’s appeal and that the sentence, even after adjustment, may properly be less than otherwise might be expected.
Upon the Director’s application for leave to appeal against sentence, it is not sufficient for error to be demonstrated. It must also be shown that in all the circumstances, it is appropriate for this Court to intervene. This case involves a real issue of principle. These are serious offences where the sentence imposed falls well short of what is required for the purposes of deterrence and to reflect community concern about this type of offence. This is not a case where it would suffice for the court merely to indicate its views, but then allow the sentence to stand uncorrected. The court must intervene because the sentence, if it were allowed to stand, would shock the community conscience.
In the circumstances leave to appeal should be granted.
In respect of the first count, I propose that there be a head sentence of 20 months imprisonment. (I have reached this result from a starting point of 24 months to which I have applied a discount of 1/6 (or 4 months) on account of the late plea).
In respect of the second count, I propose that there be a head sentence of 10 months. (I have reached this result from a starting point of 15 months to which I have applied a discount of 1/3 (or 5 months) on account of the timely plea).
These sentences should be served cumulatively - in all 2 years 6 months imprisonment. Upon this total head sentence I propose that the non-parole period be fixed at 10 months. The sentence will not be suspended. The head sentence and non-parole period will commence on 4 July 2000 (being the date upon which the respondent was taken into custody).
It is to be observed that a non-parole period which equates to only 1/3 of the head sentence is still very low. The respondent has good prospects for rehabilitation and the non-parole period maximises that opportunity. Overall the sentence must still be regarded as quite moderate but justifiable by reference to the sentencing restraint to be applied upon a successful appeal against sentence by the Director.
The application for leave will be treated as the hearing of the appeal.
I propose the following formal orders:
1...... That leave to appeal against the sentences imposed by the District Court be granted;
2.That the appeal against each sentence be allowed;
3...... That the sentences imposed by the District Court be set aside; but in lieu thereof there be substituted a sentence of imprisonment for 20 months on the first count, and a sentence of imprisonment for 10 months on the second count;
4.That there be a direction that the second sentence be served cumulatively upon the first sentence;
5...... That in relation to the combined head sentence of 30 months, a non-parole period of 10 months be fixed;
6.That the head sentence and non-parole period commence on 4 July 2000.

34.............. WICKS J.......... ............. I agree.

[2000] SASC 375

16 November 2000