R v UG
[2018] ACTCA 64
•11 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v UG |
Citation: | [2018] ACTCA 64 |
Hearing Date: | 16 November 2018 |
ReasonsDate: | 11 December 2018 |
Before: | Murrell CJ, Elkaim and Mossop JJ |
Decision: | Appeal allowed. Offender re-sentenced: see [86] and [87]. |
Catchwords: | APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – whether sentences manifestly inadequate APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – principle in R v Ellis (1986) 6 NSWLR 603 – whether the sentencing judge erred by applying the Ellis principle rather than ss 36 and 37 of the Crimes (Sentencing) Act 2005 (ACT). APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – victim impact statements – where the offence does not include an element relating to the victim’s injury – proper consideration of the harm suffered by the victim. APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – proper calculation of sentence terms for multiple offences – O’Brien v The Queen [2015] ACTCA 47 – principle of totality. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54(1), 60(1) Criminal Code 2002 (ACT) ss 311 Supreme Court Act 1933 (ACT) s 37E(2)(a) |
Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Miller v The Queen [2014] NSWCCA 34 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | The Queen (Appellant) UG (Respondent) |
Representation: | Counsel Mr J White SC (Appellant) Dr A Hopkins (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 52 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Loukas-Karlsson J Date of Decision: 31 August 2018 Case Title: R v UG Citation: [2018] ACTSC 243 Court File Number: SCC 114 of 2018 |
The Court
In the early hours of 3 March 2018, the respondent entered the victim’s house, went to the bedroom where she was asleep and engaged in sexual activity with her.
On 31 August 2018, Loukas-Karlsson J (the sentencing judge) imposed the following sentences:
(a)Burglary with intent to cause harm: 18 months’ imprisonment from 29 August 2018.
Offence against s 311 of the Criminal Code 2002 (ACT) (Criminal Code), maximum penalty 14 years’ imprisonment.
(b)Sexual intercourse without consent: 15 months’ imprisonment from 28 February 2019.
Offence against s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act), maximum penalty 12 years’ imprisonment.
(c)Act of indecency without consent: six months’ imprisonment from 28 February 2020.
Offence against s 60(1) of the Crimes Act, maximum penalty seven years’ imprisonment.
The total sentence was two years’ imprisonment (29 August 2018 to 28 August 2020). The sentencing judge ordered that the sentence be suspended after five months (on 28 January 2019) upon the offender undertaking to comply with a conditional good behaviour order for 19 months thereafter.
As the respondent had entered pleas of guilty on his second appearance in the Magistrates Court, he was entitled to a substantial sentence discount pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Because he had made admissions about sexual intercourse (cunnilingus) that had occurred when the victim was asleep, under s 36 of the Sentencing Act he was entitled to a discount for assisting the authorities.
Pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (SCA), the Crown appealed against the sentences on the following grounds:
(a)The sentences were manifestly inadequate; each of the sentences imposed for burglary with intent and sexual intercourse without consent was manifestly inadequate, the total sentence was manifestly inadequate and the five month period of full-time imprisonment was also manifestly inadequate.
(b)The sentencing judge had erred in the manner in which her Honour applied s 36 of the Sentencing Act, inter alia, by importing a common law sentencing principle derived from R v Ellis (1986) 6 NSWLR 603 (Ellis) rather than applying ss 36 and 37 of the Sentencing Act.
(c)The sentencing judge had failed to take into account the effect of the offence on the victim as required by s 33(1)(f) of the Sentencing Act.
(d)The sentencing judge had erred in the manner in which her Honour applied the principle of totality; rather than starting with the appropriate sentence for each offence and then considering questions of accumulation and totality, her Honour started by determining the total sentence.
Crown appeal on sentence
By its terms, the SCA does not distinguish between Crown and offender appeals against sentences. However, it is generally accepted that, whereas an offender appeal is concerned with the correction of error in a particular case, a Crown appeal against the inadequacy of a sentence should be a rarity, brought for the purpose of laying down principles for the general governance and guidance of courts: Thomson v The Queen; The Queen v Thomson [2015] ACTCA 16 at [68] (Murrell CJ and Ross J); R v Lee [2016] ACTCA 69 at [8]; R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua); Wyper v The Queen; R v Wyper [2017] ACTCA 59 (Wyper) at [76]–[77].
The issues upon which we have decided this appeal were appropriate matters for a Crown appeal.
Facts
The respondent was engaged to the victim’s sister. On the evening of 2 March 2018, the victim, the respondent, her sister and their children attended a family dinner at the home of the victim’s stepmother. The respondent consumed alcohol. In the course of the evening, the victim invited the respondent and his immediate family to “come over to my house, the kitchen door is open”, suggesting that they may prefer to stay at her house rather than remain overnight at her stepmother’s house. This was not an invitation to enter the victim’s premises at any time and for any purpose.
At about 1:00 am, the victim left her stepmother’s home, returned to her own home, went to bed and fell asleep. The respondent, his fiancée and their three children stayed overnight at the home of the victim’s stepmother.
At about 3:15 am, the respondent felt a desire to have sex with the victim. He drove to the victim’s home and entered via the unlocked kitchen door. He went to the victim’s bedroom. While the victim was asleep, he engaged in sexual activity with her, including cunnilingus.
At about 3:32 am, the victim awoke to find a man on top of her, kissing her neck and holding her wrists in front of her. The man started to kiss the victim’s cheek and suck on her neck. At first, the victim thought the man was her partner. When she realised that he was an intruder and challenged him, the man desisted. As he left her house, the victim recognised the man as the respondent.
Immediately, the victim complained to her stepmother and other family members. She felt physically sick and vomited several times. She went to her stepmother’s home and confronted the respondent, who denied that he knew what she was talking about.
At about 6:12 am, the victim participated in a family violence evidence-in-chief interview. Later, she underwent a forensic medical examination.
Police located the respondent, who stated “I have fucked up”. He was arrested. Commencing at 8:27 am, the respondent participated in a police interview in which he made full admissions. He stated that he had engaged in cunnilingus, admitted that the victim had been asleep during most of the sexual activity. He said that, when the victim had started to wake up, he had realised that she did not know who he was.
Swabs taken from the victim’s labia matched the respondent’s DNA.
Victim impact
The sentencing judge received a victim impact statement in which the victim spoke of the serious sequelae of the incident, including frequent rumination about the incident, hypervigilance, depression, labile emotions, difficulties coping at work, social isolation, serious disruption of family relationships (particularly with her mother and sister, whom the victim felt that she had “lost”) and relationship difficulties with her partner.
Objective seriousness
The sentencing judge accepted that the offences involved “objectively serious sexual offending occurring in the home of the victim while she slept” and that there had been “some level of planning”: at [17].
Her Honour noted the Crown submission that, in relation to the burglary, the respondent’s conduct of entering the victim’s home with an intention to sexually assault his “sister-in-law” had involved a significant breach of trust.
On the appeal, the Crown conceded that the respondent’s conduct was not a “breach of trust” in the legal sense. Rather, it was a betrayal of the familial relationship between the respondent and the victim. In our view, in the circumstances of the present case, this is a distinction without a difference.
The sentencing judge observed that the offences did not fall into the worst category of offences of their type.
The Crown took little issue with the sentencing judge’s characterisation of the objective seriousness of the crimes, other than to submit that the severity of the victim impact (including the victim’s estrangement from her family) aggravated the objective seriousness of the offence. We address that submission below.
Subjective circumstances
The respondent was a 28-year-old man of prior good character. Until the incident, he had led a positive lifestyle, with a history of stable employment (as an automotive engineer) and good relationships with friends and family (who continued to provide strong support). He had performed at an elite level in gridiron competitions.
From 2011 to 2018, the respondent had been in a relationship with the victim’s sister. The offences contributed to the relationship breakdown. However, the respondent continued to assist his former partner with the upbringing of the couple’s three children, all of whom were under three years of age.
The respondent acknowledged that he had taken advantage of the victim and that his actions may have had a significant adverse impact on her, possibly causing prolonged psychological distress and fears for her safety.
The respondent was assessed as being at low risk of sexual or general offending. The authors of the pre-sentence report did not suggest that he would benefit from engaging in a program for sexual offenders or violent offenders. We infer that they considered that there was no particular risk of further sexual offending.
During the sentencing proceedings, the Crown accepted that the offender had demonstrated genuine remorse from the outset when he made admissions to the police.
The sentencing judge found that the offences were out of character and that the offender was remorseful. Her Honour found that there were good prospects of rehabilitation.
Ground 1: manifest inadequacy
Because we consider that there were specific errors, we do not need to decide this ground. We observe that the sentences were very lenient, but the sentencing judge gave a considered decision in which her Honour discussed the relevant objective and subjective features and the other relevant sentencing considerations.
The Crown submitted that, as the effective sentence comprised a period of full-time imprisonment followed by a long suspended sentence, it both failed to reflect the sentencing considerations in ss 7 and 33 of the Sentencing Act and failed to provide an appropriate relationship between the head sentence and the minimum term. The Crown submitted that the sentencing judge should have fixed a non-parole period (perhaps a relatively short non-parole period of about 50 per cent) rather than suspending the sentence after the respondent had served only a short period of the sentence.
Having identified the overall sentence and rejected the sentencing options of an intensive corrections order and fully suspended sentence, at [53] the sentencing judge continued:
53. … Having said that, because this will be the offender’s first custodial sentence, a short period of imprisonment prior to suspension is appropriate, taking into account the offenders remorse, previous good character, early plea of guilty, disclosure of unknown guilt and good prospects for rehabilitation. In the present case I consider a short period of imprisonment of five months prior to suspension is called for. This will reflect the gravity of the offending conduct to the offender and indicate to him what he faces if he fails to be of good behaviour during the period of his Good Behaviour Order.
The combination of a short period of full-time imprisonment with a long suspended sentence (as opposed to the imposition of a non-parole period) is relatively uncommon. However, having regard to the matters identified by the sentencing judge, in this case it was not necessarily inappropriate.
In some circumstances, a very strong prospect of rehabilitation and the desirability (from the offender’s perspective) of identifying a certain release date (rather than leaving it to the parole authority to determine that date) may result in the imposition of a partially suspended sentence rather than a non-parole period. Further, a sentencing court may wish to ensure that any breach is considered by the court, not the parole authority.
Ground 2: assistance to authorities—discount under s 36 of the Sentencing Act
Sentencing judge’s approach to assistance to the authorities
During the sentencing proceedings, the Crown stated:
I accept in this instance that the forensic material would ultimately have formed the basis for the sexual intercourse without consent charge, given that that charge is based on cunnilingus, however, I would submit that an Ellis discount in these circumstances is still appropriate given his fulsome admissions at the very first opportunity to police.
At [27], the sentencing judge observed that the respondent had made full admissions that went beyond the victim’s allegations and had admitted to conduct that had occurred while the victim was asleep (which, until that point, was unknown). However, her Honour noted that there was forensic evidence (DNA) supporting the charge of sexual intercourse without consent.
The sentencing judge observed that “Submissions were made in accordance with R v Ellis (1986) NSWLR 603 (Ellis) [sic]”. In part, at [27], her Honour said:
27. … In the ACT sentencing regime embodied in the Crimes (Sentencing) Act 2005 (ACT), the Ellis discount is encompassed not just under s 33(1)(w) in relation to remorse, but is also encompassed in assistance to law enforcement under ss 33(1)(l) and 36: see CMB v Attorney-General of NSW [2015] HCA 9; 256 CLR 346 at [72] discussing similar legislation.
After indicating the total sentence, the fact that it had been reduced by 25 per cent for the early plea of guilty, and the way in which her Honour considered that the sentence should be served, at [54] the sentencing judge continued:
54. … I have taken into account the Ellis component as to the disclosure of unknown guilt in undertaking the process of instinctive synthesis in relation to the act of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT).
Based on this statement, it would appear that her Honour took the Ellis principle into account when deciding the sentence for the offence of sexual intercourse without consent, rather than “discounting” from a particular starting point for the sentence.
Consideration
Ellis concerned an offender who, acting on the advice of a minister of religion, approached police and confessed to the commission of seven armed robberies. At 604, Street CJ (with whom Hunt and Allen JJ agreed) said:
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
Consequently, under the Ellis principle, the degree of sentence reduction depends upon the degree of likelihood that the offence would otherwise have been discovered and/or proved beyond reasonable doubt: Ryan v The Queen [2001] HCA 21; 206 CLR 267 (Ryan) at [12] (McHugh J). Under the Ellis principle, a sentencing court is not required to specify a particular sentencing discount for assistance to the authorities; assistance is treated as “a factor to be taken into account”: Ryan at [15] (McHugh J). Ryan illustrates the difficulties that this creates in ascertaining whether and to what extent there had been a discount.
In the ACT, the approach that a sentencing court must take to assistance to the authorities is governed by s 36 of the Sentencing Act, which is entitled “Reduction of sentence—assistance to law enforcement authorities”. It provides:
(1)This section applies if—
(a) an offender is convicted or found guilty of an offence; and
(b) the offender assisted, or undertook to assist, law enforcement authorities in—
(i)preventing, detecting or investigating the offence or any other offence; or
(ii)a proceeding in relation to the offence or any other offence.
(2)A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities.
(3)In deciding whether to impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed, the court must consider the following matters:
(a) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
(b) the significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender;
(d) the nature and extent of the offender’s assistance or promised assistance;
(e) the timeliness of the assistance or undertaking to assist;
(f) any benefits that the offender has gained or may gain because of the assistance or undertaking to assist;
(g) whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist;
(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist;
(i) whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence;
(j) if the offender is to serve a sentence of imprisonment—the likelihood that the offender will commit further offences after release from imprisonment.
(4)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
When s 36 is compared to the Ellis principle, several differences are apparent. First, s 36 captures a wider category of assistance than does the Ellis principle. Second, while most of the considerations mandated by s 36(3) merely expand upon the concept of degree of assistance, the provision does add other considerations, including those in s 36(3)(f)–(h).
Although s 36 of the Sentencing Act requires a somewhat different approach to the factors relevant to sentence reduction than does the Ellis principle, in the circumstances of the present case there was no substantial difference. The additional s 36 considerations were not relevant in the present case. Further, the sentencing judge was well aware of s 36; her Honour expressly referred to it.
However, there is one important difference between sentence reduction under the Ellis principle and reduction under the Sentencing Act that was relevant in this case. Under the Ellis principle, assistance is a factor to be taken into account in a general way, and it can be taken into account as part of the process of intuitive synthesis. At [54], her Honour expressly stated that she took the Ellis principle into account in that way.
However, under the Sentencing Act, the sentencing court must take a different approach. It must identify a starting point for the sentence before reducing it to take account of assistance. Unfortunately, her Honour was not taken to s 37 of the Sentencing Act which applies if a court imposes a lesser penalty under s 35 (discount for plea of guilty), s 35A (assistance in the administration of justice) or s 36 (assistance to law enforcement authorities). In such cases, s 37(2) provides:
(2) The court must state—
(a) the penalty (including any shorter nonparole period) it would otherwise have imposed; and
(b) if the lesser penalty is imposed under section 35A or section 36—the reason for the imposition of the lesser penalty.
The sentencing judge did not comply with s 37(2)(a) of the Sentencing Act in that her Honour failed to specify the penalty that her Honour would otherwise have imposed for the sexual offence, which was the only offence in relation to which s 36 assistance was relevant.
The requirement to specify the discount for assistance to law enforcement authorities is informed by important public policy considerations.
In R v Cranfield [2018] ACTCA 3 at [38], when referring to the s 35 discount for pleas of guilty, this Court spoke of the benefits to victims, witnesses and court resources that flow from early pleas of guilty, noting the need for offenders to be encouraged to plead guilty by giving them a reasonable expectation that their plea of guilty will result in a sentence reduction that is meaningful and reliable. The benefits to the community and victims of assistance to law enforcement authorities were discussed in AB v The Queen [1999] HCA 46; 198 CLR 111 (AB) at [52] (Gummow and Callinan JJ), [98]–[100] (Kirby J) and in Ryan at [92]–[95] (Kirby J). The benefits flowing from such assistance may be just as great—or greater—than those that flow from the entry of early pleas of guilty. In addition to sparing trauma to victims and witnesses, and promoting the efficiency of court processes, such assistance may save the costs of police investigation, reveal crimes that would otherwise have remained undiscovered, identify perpetrators whose identities would otherwise have been unknown and secure convictions that might otherwise have been difficult or impossible to secure because of evidentiary shortcomings.
Usually, the benefits that flow from the provision of assistance to authorities differ from, and are additional to, those that flow from the entry of an early plea of guilty. The clear identification of an additional discount supports the public policy of encouraging confessions for the purpose of achieving these outcomes. Greater clarity about the extent of sentencing discounts also supports public confidence in the sentencing process. Of its nature, sentencing is opaque; to the extent that it is possible, transparency is desirable.
The failure to comply with s 37(2) is a specific error of significance.
Ground 3: Approach to victim Impact
Sentencing judge’s approach to victim impact
At [14], the sentencing judge said:
14. The extent of the impact upon the victim was made clear by victim impact statement … The statement demonstrates the profound impact of the offending conduct. The victim in her victim impact statement spoke of the psychological impact that the commission of the offences has had on her. She also spoke of her isolation from friends and family, not feeling safe in her own house, and the financial consequences. She does not talk to her sister. She also spoke in her statement of the breach of trust. The Court acknowledges the very significant impact that the offences have had and continue to have on the victim.
At [43], the sentencing judge said that recognition of harm to the victim was an important sentencing consideration under s 7 of the Sentencing Act. At [45], her Honour repeated that a relevant sentencing purpose was the recognition of harm to the victim, and added:
45. … It is important for the Court to send a message that offences of sexual violence against women will not be tolerated.
The Crown submitted that the sentencing judge failed to accord adequate weight to the severe and far-reaching effects of the offences on the victim and failed to consider victim impact, other than in the context of offender remorse.
Consideration
Section 53 of the Sentencing Act provides that, in deciding how an offender should be sentenced, the sentencing court must consider any victim impact statement: s 53(1)(a). This requirement is reinforced by s 33(1)(f) of the Sentencing Act, which requires a sentencing court to consider the effect of an offence on the victim, their family and anyone else who may make a victim impact statement.
In the case of some offences, victim impact is an element of the offence. For example, where an element of an offence is the causing of grievous bodily harm, as part of the sentencing exercise it is relevant for the court to assess the degree of grievous bodily harm that was caused to the particular victim.
Beyond that, there is no doubt that, in any sentencing exercise, it is relevant to consider the objective impact of an offence on the victim. The sentencing purpose of recognising the harm done to the victim of the crime is expressly recognised in s 7(1)(g) of the Sentencing Act. The requirement to consider victim impact (the objective loss or damage suffered by the victim of an offence) has its origins in the common law: Porter v The Queen [2008] NSWCCA 145 at [54] (Johnson J); Miller v The Queen [2014] NSWCCA 34 at [155] (Johnson J).
However, in the case of offences (such as those in the present case) where victim impact is not an element of the charge, the manner in which the subjective impact on the particular victim (as described in a victim impact statement) should be taken into account is problematic.
First, the extent of the claimed victim impact may not be conceded by an offender. An offender has a right to cross-examine the victim, but it is most undesirable that offenders be encouraged to do so, as the process causes victims to be re-traumatised.
Second, it would be unfair if an offender whose offence has caused greater psychological impact on a victim was to receive a higher sentence than an offender who has committed an identical offence on a more resilient victim. Conversely, it would be unfair if one offender could rely upon the forgiveness of a victim to support a lower sentence, whereas another could not. In Toumo’ua, in a different context, this Court observed at [65] that the attitude of the victim cannot be allowed to interfere with the proper exercise of the sentencing discretion, regardless of whether the attitude is one of vengeance or forgiveness; sentencing is designed to reinforce general community standards, not compensate or impose retribution on behalf of particular victims: R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [37]; R v Burton [2008] NSWCCA 128 at [102].
These conundrums remain unresolved, and not only in this jurisdiction. In R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 (Tuala) at [51], Simpson J (with whom Ward JA and Wilson J agreed) observed that the NSW Court of Criminal Appeal had yet to reach a consensus on the use to which a victim impact statement could be put. At [57] and [80]–[81], Tuala reminds us that, where it is asserted that an offence has caused injury or loss beyond what would ordinarily be expected of such an offence and the extent of the injury or loss is disputed, it must be proved beyond reasonable doubt and it may be difficult to reach that level of proof on the basis of an unsworn and untested victim impact statement.
For the purpose of determining this ground of appeal, is not necessary to resolve these difficulties. The sentencing judge was aware of the sentencing purpose of recognising the harm done to the victim. Her Honour considered and accepted that the victim had suffered the harm identified in the victim impact statement. We infer that her Honour accepted that the victim had suffered very significant impacts and took those impacts into account when determining the appropriate sentences. There can be no doubt that any victim of offences such as the present, committed in a familial context, would suffer substantial psychological injury.
This ground is not made out.
Ground 4: Approach to totality
Sentencing judge’s approach to totality
At [49], the sentencing judge observed correctly that, when sentencing for multiple offences, she was required to fix an appropriate sentence for each offence and then consider questions of accumulation and concurrence, as well as totality.
Before indicating the sentences that she proposed to impose, her Honour said:
51. I have had regard to the range of sentences imposed for offences of this nature. I have taken into account the offender’s early plea of guilty and have reduced the sentence that I would otherwise have imposed by approximately 25%.
52. I consider that the appropriate starting point is a sentence of imprisonment of 32 months, reduced to 24 months on account of the plea of guilty.
Her Honour then went on to consider how the sentence of 24 months’ imprisonment should be served, finding that an intensive corrections order or a fully suspended sentence would be inadequate to reflect the gravity of the offending and the need for general deterrence. At [53], the sentencing judge continued:
53. … Having said that, because this will be the offender’s first custodial sentence, a short period of imprisonment prior to suspension is appropriate, taking into account the offenders remorse, previous good character, early plea of guilty, disclosure of unknown guilt and good prospects for rehabilitation. In the present case I consider a short period of imprisonment of five months prior to suspension is called for. This will reflect the gravity of the offending conduct to the offender and indicate to him what he faces if he fails to be of good behaviour during the period of his Good Behaviour Order.
At [55], her Honour imposed sentences for each offence and made suspension and good behaviour orders.
Consideration
In O’Brien v The Queen [2015] ACTCA 47 at [26], this Court summarised the relevant principles in relation to the fixing of sentences for multiple offences, stating in part:
(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.
In this case, the sentencing judge first identified a “starting point” of 32 months’ imprisonment, which her Honour then discounted by 25 per cent for the plea of guilty to 24 months’ imprisonment. Only later in the reasons did her Honour state the individual sentences of 18 months’ imprisonment (for the offence of burglary), 15 months’ imprisonment (for the offence of sexual intercourse without consent) and six months’ imprisonment (for the offensive act of indecency without consent).
It may be inferred that the starting points for the individual sentences were 24 months’ imprisonment, 18 months’ imprisonment and eight months imprisonment, and that from each starting point her Honour allowed a discount of 25 per cent for the plea of guilty. However, while this is an available inference, contrary to s 37 of the Sentencing Act, the starting point for each individual sentence was not stated.
The failure to fix the individual sentences (by identifying a starting point and then discounting for the plea of guilty and, in the case of the sexual intercourse offence, for assistance to authorities), and then to consider questions of accumulation or concurrence, as well as totality, was an error in the application of sentencing principles.
This ground is made out.
It is necessary to re-sentence the respondent.
Re-sentencing
Neither party wished to adduce further evidence or make additional submissions in relation to any re-sentence.
We agree with the sentencing judge’s assessment of the objective seriousness of the offences; for the reasons stated by her Honour at [15]–[18], these were very serious offences.
The respondent was a 28-year-old man with no criminal history, who was of otherwise excellent character. He was remorseful. He advanced strong subjective circumstances, which are set out in the sentencing judge’s reasons at [19]–[21] and above at [22]–[27].
As would be expected for such offences, these offences had a severe impact on the victim. The impact was a combination of the conduct itself, the environment in which it occurred (in the victim’s own home when she was asleep in bed) and the betrayal of trust associated with the familial relationship between the offender and the victim.
Relevant sentencing purposes under s 7 of the Sentencing Act include the imposition of adequate punishment, accountability, denunciation and the recognition of harm to the victim. Rehabilitation is important and will be recognised primarily by a suspension of the sentence after the respondent has served a relatively brief period in full-time imprisonment.
We have considered s 33 of the Sentencing Act; the relevant matters are referred to above.
The sentencing judge summarised a number of comparable cases, which we have also considered.
We agree with the sentencing judge that, for the early pleas of guilty, there should be a 25 per cent discount on the sentences that would otherwise have been imposed.
The respondent’s confession to the act of cunnilingus was of considerable assistance and usefulness to the authorities. It was an admission against interest that was timely, complete and reliable (it was consistent with the findings on forensic analysis). Although the forensic evidence suggested that cunnilingus may have occurred, without the respondent’s admission the prosecution may have had considerable difficulty establishing beyond reasonable doubt that any form of sexual intercourse had occurred. In relation to the relevant charge, sexual intercourse without consent, we consider that the combined discount for the early plea and assistance should be one third of the sentence that would otherwise have been imposed.
The appropriate starting point for the sentence for burglary is 30 months’ imprisonment, reduced by approximately 25 per cent for the plea of guilty to 22 months’ imprisonment.
The appropriate starting point for the sentence for sexual intercourse without consent is 33 months’ imprisonment, reduced by one third to 22 months’ imprisonment for the combined discount for assistance to the authorities and plea of guilty (absent assistance to the authorities, the discount would have been 25 per cent for the plea of guilty).
The appropriate starting point for the sentence for act of indecency without consent is eight months’ imprisonment, reduced by 25 per cent for the plea of guilty to six months’ imprisonment.
The sentences should be accumulated to reflect the fact that they were part of the same course of conduct but each involved separate criminality.
Orders
The appeal is allowed.
For the sentences imposed by the sentencing judge, we substitute the following sentences:
(a)For the offence of indecent assault without consent—six months’ imprisonment from 29 August 2018 to 28 February 2019.
(b)For the offence of sexual intercourse without consent—22 months’ imprisonment from 29 September 2018 to 28 July 2020. The sentence is suspended after the offender has served nine months’ imprisonment, i.e. on 28 June 2019, and we make a 13 month good behaviour order for the remaining period of the sentence, from 28 June 2019 to 28 July 2020.
(c)For the offence of burglary—22 months’ imprisonment from 29 March 2019 to 28 January 2021. The sentence is suspended after the offender has served three months’ imprisonment, i.e. on 28 June 2019, and we make a 19 month good behaviour order for the remaining period of the sentence, from 28 June 2019 to 28 January 2021.
Each of the good behaviour orders is subject to the additional conditions that the respondent:
(a)Report to ACT Corrective Services (the Services) within two working days of release from custody.
(b)Accept the supervision of the Services for such period as is deemed appropriate by the Services.
(c)Participate in any program, counselling or treatment that is recommended by the Services.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell, Justice Elkaim and Justice Mossop. Associate: Date: |
******
Amendments
12 December 2018
Replace ‘Murrell CJ’ with ‘The Court’ on page 2
12 December 2018
Replace ‘I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell’ with ‘I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell, Justice Elkaim and Justice Mossop’ on page 13
13
13
4