R v TL
[2017] ACTCA 18
•26 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v TL |
Citation: | [2017] ACTCA 18 |
Hearing Dates: | 3 May 2017 |
DecisionDate: | 26 May 2016 |
Before: | Burns, Mossop and Collier JJ |
Decision: | The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – appeal from a single judge of the Supreme Court – offences against the person – sexual intercourse with a person under 16 years – act of indecency on a person under 16 years – plea of guilty – crown appeal against sentence – manifestly inadequate – consider sentencing remarks as a whole – not so lenient as to warrant the intervention of the court – appeal dismissed. |
Legislation Cited: | Crimes Act1900 (ACT) ss 55(2), 61(2) Criminal Code 2002 (ACT) s 310 Crimes (Sentencing) Act 2005 (ACT) s 33(1)(m), Chapter 8A |
Cases Cited: | Dinsdale v R [2000] HCA 54; 202 CLR 321 Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen (Appellant) TL (Respondent) |
Representation: | Counsel Mr J White SC (Appellant) Mr J Lawton (Respondent) |
| Solicitors ACT Director of Public Prosecution (Appellant) Sharman Robertson Solicitors (Respondent) | |
File Numbers: | ACTCA 52 of 2016 |
Decision under appeal: | Court: Supreme Court Before: Justice Refshauge Date of Decision: 22 September 2016 Case Title: R v TL (No 2) Citation: [2016] ACTSC 289 |
THE COURT:
On 22 September 2016, the respondent was sentenced by the primary judge with regard to nine offences arising out of four separate incidents:
(a)Incident 1 occurred on 13 September 2013 and involved one offence of sexual intercourse with the young person under the age of 16 and three offences of committing an act of indecency with the young person under the age of 16;
(b)Incident 2 occurred between April and June 2014 and involved two offences of committing an act of indecency with the young person under the age of 16;
(c)Incident 3 occurred in December 2014 and involved two offences of committing an act of indecency with the young person under the age of 16; and
(d)Incident 4 involved an offence of aggravated robbery in company on 10 November 2014.
The victim with regard to the sexual offences was the younger sister of the respondent’s then girlfriend, NC. The victim, who I will refer to as BC, was aged between 11 and 12 years at the time of the offences which occurred as part of Incidents 1, 2, and 3.
With regard to Incident 1, on the night of 13 September 2013, the respondent was at the victim’s family residence. The respondent, the victim and the victim’s brother were in a bedroom. After the victim’s brother fell asleep, the respondent kissed BC, touched her on the vagina, inserted a vibrator into her vagina and turned the vibrator on. He also made her touch his penis. BC was 11 years old at the time and the respondent was 19 years old.
With regard to Incident 2, on an evening between April and June 2014, the respondent was at BC’s family residence. BC was in her bedroom watching a movie when the respondent came in and tried to kiss her. He then left the room and told BC that he was going to have a shower. He returned to BC’s room, grabbed her by the hand and said “Come with me”. He took her into the bathroom and closed the door, putting a wooden plank across the door so it could not be opened from the outside. He then picked BC up by the legs and held her against the wall. The respondent moved BC up and down against him so that her vagina was rubbing against his penis. BC could feel his erect penis against her vagina through their clothing.
With regard to Incident 3, sometime between 1 and 21 December 2014, BC was in an inflatable pool in the backyard of her residence with a younger sister. BC was wearing a one-piece swimming costume. The respondent joined them in the pool. He asked BC to kiss him, but she refused. He moved her swimming costume to one side and rubbed her vagina. He then took his penis out of his own swimming trunks and rubbed it against BC’s vagina. His penis was erect at that time. At the time of these offences BC was 12 years old and the respondent was 20 years old.
It is unnecessary to set out the facts surrounding the offence of aggravated robbery because the sentence imposed with regard to that offence has not been challenged.
The sentences imposed by the primary judge are summarised in the following table:
| Charge | Incident Date/s | Charge | Maximum Penalty | Action by respondent | Sentence |
| CC 1481 of 2015 | 13 September 2013 | Sexual intercourse with a person under 16 years old pursuant to s 55(2) of the Crimes Act1900 (ACT). | 14 years imprisonment | Penetration of vagina with vibrator | 2 years imprisonment (reduced from 27 months): 11.04.15 – 10.04.17 |
| CC 1482 of 2015 | 13 September 2013 | Act of indecency on a person under 16 years old pursuant to s 61(2) of the Crimes Act 1900 (ACT). | 10 years imprisonment | Kissing BC | 6 months imprisonment (reduced from 5 months): |
| XO 30221 of 2015 | 13 September 2013 | Act of indecency on a person under 16 years old pursuant to s 61(2) of the Crimes Act 1900 (ACT). | 10 years imprisonment | Touching BC’s vagina | 4 months imprisonment (reduced from 7 months): |
| XO 30222 of 2015 | 13 September 2013 | Act of indecency on a person under 16 years old pursuant to s 61(2) of the Crimes Act 1900 (ACT). | 10 years imprisonment | Making BC touch his penis | 6 months imprisonment (reduced from 7 months): 11.12.16 – 10.06.17 |
| CC 1483 of 2015 | 29 April – 24 June 2014 | Act of indecency on a person under 16 years old pursuant to s 61(2) of the Crimes Act 1900 (ACT). | 10 years imprisonment | Trying to kiss BC | 4 months imprisonment (reduced from 5 months): 11.06.17 – 10.10.17 |
| CC 1484 of 2015 | 29 April – 24 June 2014 | Act of indecency on a person under 16 years old pursuant to s 61(2) of the Crimes Act 1900 (ACT). | 10 years imprisonment | Rubbing his penis against BC’s vagina through clothing | 6 months imprisonment (reduced from 7 months): 11.07.17 – 10.01.18 |
| CC 1485 of 2015 | 1 – 22 December 2014 | Act of indecency on a person under 16 years old pursuant to s 61(2) of the Crimes Act 1900 (ACT). | 10 years imprisonment | Rubbing BC’s vagina | 6 months imprisonment: 11.09.17 – 10.03.18 |
| CC 1486 of 2015 | 1 – 22 December 2014 | Act of indecency on a person under 16 years old pursuant to s 61(2) of the Crimes Act 1900 (ACT). | 10 years imprisonment | Rubbing his penis against BC’s vagina | 9 months imprisonment: 11.11.17 – 10.08.18 |
| CC 2255 of 2016 | 10 November 2014 | Aggravated robbery pursuant to s 310 of the Criminal Code 2002 (ACT). | 25 years imprisonment and/or $375,000 fine | 2 years, 9 months imprisonment (reduced from 3 years, 8 months): 11.12.17 – 10.09.20 |
The aggregate sentence imposed by the primary judge was therefore one of five years and five months imprisonment commencing on 11 April 2015 and expiring on 10 September 2020. His Honour set a non-parole period of two years and eight months commencing on 11 April 2015 and expiring on 10 December 2017.
The aggregate sentence imposed with regard to the sexual offences was one of three years and four months imprisonment commencing 11 April 2015 and expiring 10 August 2018.
10. The Crown has appealed from the sentences imposed for the sexual offences on the ground that the sentences are manifestly inadequate. The Crown submits that the individual sentences imposed by the primary judge are manifestly inadequate, and that the aggregate sentence imposed with regard to the sexual offences is also manifestly inadequate. The Crown does not challenge the ratio of the non-parole period to the total head sentence, and nor does it challenge the extent to which the individual sentences imposed were accumulated. The Crown also does not challenge the extent of the discount allowed by the primary judge for the respondent’s pleas of guilty.
Applicable principles
11. This is a Crown appeal against sentence. The principles relating to Crown appeals are well settled. In R v TW [2011] ACTCA 25; 6 ACTLR 18 Refshauge J, with whom Penfold and Lander JJ agreed, said at [3]-[6]:
While s 37E of the Supreme Court Act 1933 (ACT) permits an appeal to the Court of Appeal from any order of the Court, the courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly. They are, accordingly, subject to particular principles set out in a number of cases.
The principles have been helpfully set out by Charles JA (with whom Winneke P and Hayne JA, as his Honour then was, agreed) in R v Clarke[1996] VICSC 30; 2 VR 520 at 522, after a careful consideration and analysis of the cases. I summarise those principles as follows:
(i)An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.
(ii)Occasions may arise for the bringing of a Crown appeal:
(a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;
(c) to enable the courts to establish and maintain adequate standards of punishment for crime;
(d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected;
(e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and
(f) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.
(iii)When, in response to a Crown appeal, the court decides to re-sentence an offender it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat lesser than the sentence it considers should have been imposed at first instance.
(iv)The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.
These principles were adopted by this Court in R v Eisenach[2011] ACTCA 2 at [8]-[10].
In addition, the court has to approach the appeal in accordance with principles applicable to all appeals against sentence, namely:
(v)The court is not hearing the matter anew and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. The court only interferes if there is an error of fact or law by the sentencing judge of the kind referred to in House v TheKing (1936) 55 CLR 499 at 504-5, or where there is such manifest inadequacy or excess in sentence as to indicate error.
12. The principles enunciated by Refshauge J must now be read in the light of the decision of the High Court in Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638 such that the principal of double jeopardy referred to by his Honour is no longer a relevant consideration in Crown appeals in this Territory.
13. Sentencing is a discretionary exercise. The correct approach to reviewing the exercise of a discretionary judgment was set out by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504–505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court considered that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts on 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 fact it is unreasonable 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.
14. Manifest inadequacy is a conclusion to be inferred from the result of the sentencing exercise. As Gleeson CJ and Hayne J said in Dinsdale v R [2000] HCA 54; 202 CLR 321 at [6]:
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.
15. In Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 at [47] Refshauge J said, concerning an assertion of manifest inadequacy of sentence:
Counsel, is therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
Crown Submissions
16. The Crown submitted that the relevant matters from which this Court may infer that the sentences imposed by the primary judge with regard to the sexual offences were manifestly inadequate are:
(a)the maximum penalty prescribed for the offences;
(b)the objective seriousness of the offences;
(c)the subjective circumstances of the respondent, and in particular his lack of remorse and poor prospects for rehabilitation; and
(d)relevant sentencing principles.
(a) The Maximum Penalties
17. In Markarian v The Queen [2005] HCA 25; 228 CLR 357 the plurality of the High Court (Gleeson CJ, Gummow, Hayne, and Callinan JJ) at [30]–[31] reiterated the importance of the sentencing courts paying close attention to the maximum penalties prescribed by the legislature:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
"A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]."
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
(citations omitted)
18. The maximum penalty for the offence of engaging in sexual intercourse with the young person under 16 years of age, contrary to s 55(2) of the Crimes Act 1900 (ACT) (the Crimes Act), is 14 years imprisonment. The maximum penalty for committing an act of indecency on a young person under 16 years of age, contrary to s 61(2) of the Crimes Act is 10 years imprisonment. Greater penalties apply with respect to engaging in sexual intercourse with a young person or committing an act of indecency on a young person if the victim is under 10 years. In the present case, the Crown submitted that it was relevant to sentencing the respondent that the victim was between 11 and 12 years of age at the time of these offences, and as such was towards the younger end of the age range covered by these provisions. We note that the primary judge made specific reference in R v TL (No 2) [2016] ACTSC 289 (R v TL (No 2)) at [39] to the fact that the victim was “... at the younger end of the age group... ” for these offences, so that it is clear that his Honour took this circumstance into account.
19. The Crown took us to the decision of this Court in R v King [2013] ACTCA 29 (R v King) where the Crown successfully appealed against the inadequacy of sentences for multiple offences of acts of indecency or sexual intercourse with young persons between the ages of 10 and 16 years. The offender had pleaded guilty. With regard to one offence of sexual intercourse with the young person where the offender performed fellatio on the victim until he ejaculated, the primary judge imposed a sentence of two years and six months imprisonment. This was increased to three years and four months imprisonment on appeal. With regard to the numerous offences of committing acts of indecency, the primary judge imposed various sentences, including a sentence of 10 months imprisonment for pulling down the complainant’s pants and caressing his penis. On appeal, this sentence was increased to 20 months imprisonment. Overall, for the offences of committing acts of indecency, the Court re-sentenced the offender to sentences of between nine months imprisonment, for the offence of looking at the genitalia of the victim, through to three years imprisonment, for caressing the victim’s penis and kissing him. On appeal, this Court said at [73]-[74]:
The appropriate starting point is to consider the sentences imposed for the offences of committing an act of indecency. The Crown accepted that the sentence of 9 months’ imprisonment imposed on Count 5 was appropriate. That count involved the respondent simply looking at D’s penis. There was, unsurprisingly, no suggestion by the respondent that the sentence imposed on Count 5 was inappropriate or excessive. Against this yardstick, the Crown submited that the sentences imposed for offences of committing an act of indecency involving the respondent touching the victims are inadequate, and to such a degree as to warrant appellate review.
Against this yardstick, and bearing in mind the self-evident fact that none of the offences committed by the respondent can be described as isolated, we consider that the remainder of the individual sentences imposed by the primary judge are manifestly inadequate. We consider that the individual sentences imposed by the primary judge pay insufficient regard to the maximum penalties provided by the legislature. Whilst offences of committing an act of indecency may encompass a wide variety of acts, those offences do not include acts of sexual intercourse as defined by s 50 of the Crimes Act 1900 (ACT). An act of sexual intercourse, as defined, with a young person constitutes a more serious offence. As such, the legislature provided the maximum penalty for offences of committing an act of indecency on a child in the knowledge that the range of acts encompassed by the offence did not include acts of sexual intercourse as defined.
20. The Crown submitted that the acts of indecency committed by the respondent to the present appeal were contact offences of the same order of seriousness as those in R v King. The offending was committed in the context of a breach of trust, as was the case in R v King, and had about it “an air of coercion”. It submitted that by the standard of sentences imposed in R v King the sentences imposed on the present respondent were “woefully inadequate”.
(b) The Objective Seriousness of the Offences
21. The primary judge acknowledged in R v TL (No 2) at [6] that “... all these offences are to be regarded as very serious offences as the maximum penalties show”. The Crown contended, however, that the following circumstances of the respondent’s offending indicate that the sentences were manifestly inadequate:
(a)The age of the victim. BC was 11 years old at the time of Incidents 1 and 2 and 12 years old at the time Incident 3.
(b)The difference in age between the respondent and the victim. The respondent was 19 years old at the time Incidents 1 and 2 and 20 years old at the time of Incident 3.
(c)All of the offences were committed in the victim’s home.
(d)The offences constituted a breach of trust. It was only because of the respondent’s relationship with NC that he had access to the victim.
(e)The sexual abuse was not an isolated incident and occurred over a period of time exceeding one year.
(f)With regard to Incident 1, this was a protracted incident occurring in the presence of the victim’s brother. It involved two instances of skin on skin contact, with the respondent touching the victim’s vagina and the respondent forcing the victim to touch his penis. The respondent also inserted a vibrator into the vagina of the victim and turned it on, causing the victim to feel apprehension and pain.
(g)With regard to Incident 2, it was predatory in nature.
(h)With respect to Incident 3, this was committed in broad daylight and in the presence of the victim’s younger sister. It involved two instances of skin on skin contact, with the respondent rubbing the victim’s vagina with his fingers and then rubbing her vagina with his penis.
(i)The victim’s aversion to the respondent’s conduct was evident on all occasions.
(j)The offending behaviour had significant and damaging consequences for the victim, resulting in self harming and self destructive behaviours, getting in trouble at school and in fracturing the relationship with her sister NC.
(k)All of the offences were committed whilst the respondent was on conditional liberty.
(c) Subjective Circumstances of the Respondent
22. The Crown submitted that there was little in the respondent’s subjective circumstances which would justify the “lenient sentences” imposed. The Crown submitted that the respondent was at high risk of reoffending, his prospects for rehabilitation were clouded, he showed little contrition and insight, and the primary judge had misdirected himself as to the relevance of the respondent’s youth in the circumstances of this case.
(d) Relevant Sentencing Principles
23. The Crown took issue with the use by the primary judge of sentencing statistics and his reference to the case of R v AM (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 March 2014) (R v AM). At [133]-[136] of R v TL (No 2) the primary judge considered the sentencing practice in the Territory for the sexual offences committed by the respondent:
Neither party referred me to comparable cases in relation to the sexual offences.
That they are to be regarded seriously is shown by the statistics in the ACT Sentencing Database. There, for committing an act of indecency on or in the presence of a person under the age of 16 years, 60 per cent of the sentences were of imprisonment including partially suspended terms. Another 30 per cent were for sentences of imprisonment wholly suspended. The terms of imprisonment ranged from six months to three years.
In R v AM (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 March 2014), the 17 year old offender had kissed the victim, including putting his tongue into her mouth, had touched various parts of her body, and had caused her to masturbate him. He had also engaged in sexual intercourse with her. For each of the acts of indecency, he was sentenced to nine months imprisonment, partially concurrent.
It seems to me that the offences in R v AM were generally more serious than the offences committed by TL, though the victim was a little older.
24. The Crown submitted that “pure numerical data” is of no assistance as there were no details provided about the circumstances of each case and no reasons were given for the sentences imposed in each case. The Crown relied upon the following comments made by the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Hili v R [2010] HCA 45; 242 CLR 520 at [48]:
Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
25. The Crown also referred us to the joint judgement of Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59]:
Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.
26. The Crown submitted that the primary judge should have sought out the unifying principles that relate to sexual offences against young victims, rather than seeking a numerical equivalence based upon statistics or previous cases.
27. The Crown submitted that the circumstances in R v AM were very different to the circumstances surrounding the present offences and the respondent. In R v AM, the offender committed offences against two separate victims, both 13 year old girls at the time of offending. In relation to one victim, A, the offender was 17 years old at the time of the offences and as such was sentenced as a juvenile. In relation to the other victim, B, the offender was 18 years old and was sentenced as an adult. The offender had no prior criminal history and was described by the sentencing judge as being of otherwise “excellent character”. He entered early pleas of guilty to the charges. In relation to the offences against A, for one count of sexual intercourse without consent on a young person under 16 years, constituted by digital penetration of the vagina, the starting point of the sentence was 12 months, reduced to 9 months by virtue of his plea of guilty. In relation to the offences against B, where the offender was sentenced as an adult, the offender was sentenced for one count of committing an act of indecency on a young person, constituted by touching various parts of her body and rubbing his naked body and erect penis up against her, to 18 months imprisonment, reduced from 2 years imprisonment because of his plea of guilty. For an offence of sexual intercourse with the young person, constituted by forcing the victim to perform oral sex on him, he was sentenced to two years and three months imprisonment reduced from three years because of his plea of guilty. The Crown submitted that the primary judge was in error in finding that the offences committed by the offender in R v AM were generally more serious than the offences committed by the respondent. The Crown further submitted that the circumstances in R v AM could be further distinguished from the circumstances relating to the present offences in that the victim in the present offences is younger, the age disparity between the victim and the offender is greater, and the present respondent had a criminal history and was subject to conditional liberty at the time of the offences.
28. The Crown relied upon the remarks of Maxwell J in R v Fisher (1989) 40 A Crim R 442 (R v Fisher), at 445:
This court has said time and time again that sexual assault upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to jail for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations.
....
This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual assaults by adults...
29. The Crown submitted that the primary sentencing considerations for offences of this nature are general deterrence, protection of the community, denunciation and punishment. These considerations, it submitted, call for significant sentences of imprisonment.
30. In the course of his sentencing remarks, the primary judge said at [41]:
The sexual intercourse did not have the aggravating features that penile/vaginal intercourse would have, although the use of the vibrator did cause actual pain and harm to BC.
31. The Crown submitted that these remarks revealed error on the part of the primary judge, by the primary judge adopting a “table of maims” approach. We understand by this submission that the Crown says that the primary judge adopted a hierarchy of the seriousness of varying forms of sexual intercourse with young people, and that such an approach has been deprecated in other jurisdictions: see R v PGM [2008] NSWCCA 172; 187 A Crim R 152 (R v PGM) and R v AJP [2004] NSWCCA 434; 150 A Crim R 575 (R v AJP).
32. The Crown further submitted that the age of the victim was significant, as was the age difference between the victim and the respondent: see R v Nelson [2016] NSWCCA 130 and Shannon v The Queen [2006] NSWCCA 39.
33. Bearing all of these circumstances and principles in mind, the Crown submitted that the sentences imposed by the primary judge for the sexual offences were manifestly inadequate. It submitted that the inadequate sentences imposed on the sexual offences distorted the total head sentence and the non-parole period, and that longer individual sentences for the sexual offences would inevitably lead to a greater total head sentence and require a longer non-parole period.
The respondent’s submissions
34. The respondent submitted that the case of R v King referred to by the Crown was not comparable, because the offender in R v King was approximately 30 years older than the multiple complainants involved, he abused his position of trust as a cricket coach to engage in sexual offences with 5 victims over an 8 year period, and was sentenced in respect of 25 offences. The respondent submitted that the sentences imposed by the primary judge were within range, and that the Crown had not established that the sentences were manifestly inadequate.
Consideration
35. Each of the circumstances referred to by the Crown as bearing upon the objective seriousness of the sexual offences committed by the respondent were acknowledged by the primary judge. There is no suggestion that the primary judge failed to take into account relevant facts. There is, similarly, no suggestion that the primary judge misapprehended the law or applied the wrong principles in sentencing the respondent. The submission of the Crown is that when one looks at the objective seriousness of the sexual offences, the prescribed maximum penalties for those offences, and the subjective circumstances of the respondent, error on the part of the primary judge may be inferred because the sentences imposed are so lenient as to be manifestly inadequate.
36. There can be no doubt that the sexual offences committed by the respondent were objectively serious, as the primary judge clearly acknowledged. His Honour gave careful consideration to the relevant facts and to the maximum prescribed penalties. The submissions made by the Crown before the primary judge with regard to the sexual offences were brief, almost to the point of non-existence. None of the submissions which the Crown has made in the course of this appeal were made to the primary judge. This does not preclude the Crown pursuing the present appeal, but it is worthwhile noting that the primary judge was not given an opportunity to address the submissions which have now been made to this Court.
37. We are satisfied that the case of R v King referred to by the Crown can be distinguished from the present case on its facts and is not an appropriate comparator. The offender in R v King was much older than the respondent to the present appeal and the age difference between him and his victims was significantly greater. The conduct of the offender in R v King constituted a course of conduct which could accurately be described as one of sexual predation on young children and which continued over an eight year period. Because of the offender’s age and distorted beliefs there was no real prospect of rehabilitation. General deterrence and protection of the community were the only significant sentencing considerations. Similarly, in R v Fisher, cited by the Crown, the offender was 51 years old and convicted of 10 Counts of various forms of sexual assault on 4 pre-teen boys over a 4 year period while coaching their cricket team. The offences committed by the offender in R v Fisher included inserting his penis and his finger into the anus of one of the boys, making the boy suck his penis, kissing some of the boys and rubbing their penis, and acts of fellatio. The comments made by Maxwell J, and referred to by the Crown in the present appeal, must be considered in the light of the circumstances of the case then before the NSW Court of Criminal Appeal.
38. We do not accept the submission made by the Crown that the primary judge adopted a “table of maims” approach to sentencing for the offence of engaging in sexual intercourse with a person under the age of 16 years. The primary judge merely observed that the circumstances surrounding the offence did not include an aggravating circumstance, being penetration of the vagina by the offender’s penis. Penetration of the vagina by an offender’s penis will often carry with it the risk of pregnancy or of contracting a sexually transmitted disease. His Honour’s remarks were nothing more than an acknowledgement that these risks were not present in this case. In the cases cited by the Crown, R v PGM and R v AJP, it was expressly stated that while there can be no hierarchy of sexual acts that constitutes sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others. As Simpson J said in R v AJP at [24], “[i]t is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness”.
39. At the time that he committed these offences the respondent was aged between 19 and 20 years old. He was not a “young offender” for the purposes of Chapter 8A of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act) as he was not under 18 years of age when the offences were committed. He was, nevertheless, still a relatively young man. In R v Mills [1998] 4 VR 235, the Court of Appeal of Victoria considered an appeal from a sentence of imprisonment imposed on a 21 year old offender convicted of recklessly causing serious injury. Batt JA, with whom Phillips CJ and Charles JA agreed at 241, after referring to previous authorities, accepted that the youth of the offender was relevant to sentencing even though he was no longer a juvenile, and that:
In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred.
40. In sentencing the respondent the primary judge was obliged to take into account his age: s 33(1)(m) of the Crimes (Sentencing) Act. The weight to be given to the youth of an offender does not vary with the seriousness of the offence: R v Hearne [2001] NSWCCA 37; 124 A Crim R 451. The approach to the effect of the respondent’s relative youth on sentence taken by the primary judge was in accordance with well accepted principles.
41. The Crown submission, that in referring to the sentences imposed in R v AM and by considering the statistics in the ACT Sentencing Database, the primary judge was concerning himself with “numerical equivalence” rather than seeking to apply the principles applicable to sentencing for these offences should also be rejected. When his Honour’s sentencing remarks are read as a whole, it is clear that R v AM and the statistics were simply part of the material which he took into account, and to which he applied the correct sentencing principles.
42. The Crown took issue with the primary judge’s assessment of the offences of committing an act of indecency in R v AM as “generally more serious” than those committed by the respondent. In our opinion, the primary judge was entitled to reach the conclusion that he did. The acts of indecency committed against victim B in R v AM (as opposed to the acts of sexual intercourse) included touching various areas of the complainant’s body and rubbing his naked body and erect penis up against her. We also note that the primary judge did not suggest that there was direct equivalence between the facts and circumstances in R v AM and those revealed by the respondent’s offending; his Honour simply referred to R v AM as a yardstick.
43. It was also submitted by the Crown that the primary judge had been overly optimistic about the respondent’s prospects for rehabilitation. We make two comments about this submission. First, the primary judge simply found that the respondent had “reasonable prospects of rehabilitation”, bearing in mind the respondent’s age and the steps he had taken towards rehabilitation while in custody. Any other or lesser finding simply could not be made. Secondly, and following on from the above, this was not a case where the offender had taken no steps towards rehabilitation while in custody awaiting sentence. It was accepted that while in custody the respondent had completed a numeracy and literacy program, an anger management program, a seven week “Being a Man and a Dad” program, and continued to participate in the SMART Recovery program. His engagement, participation and contribution were described as positive. When the primary judge’s sentencing remarks are considered as a whole, it is clear that he recognised that the respondent still faced numerous challenges, particularly in the area of drug and alcohol abuse.
Conclusion
44. Having carefully considered the Crown’s submissions, the evidence, and the primary judge’s sentencing remarks, we are not persuaded that the sentences imposed were so lenient as to warrant the intervention of this Court.
45. The appeal will be dismissed.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 26 May 2017 |
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