R v V, AJ
[2012] SASCFC 10
•2 March 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v V, AJ
[2012] SASCFC 10
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Anderson)
2 March 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE
Crown appeal against sentence - defendant pleaded guilty to offence of engaging in unlawful sexual intercourse - defendant had sexual intercourse with 14 year old niece - Judge imposed a head sentence of eight months imprisonment, suspended on defendant's entry into two year good behaviour bond, supervised for 12 months - where rehabilitation had occurred over the nine years between offence and sentence - whether the sentence imposed manifestly inadequate.
Held: permission to appeal refused.
(Per Doyle CJ): limited weight to be attached to the delay between offence and sentence - head sentence and non-parole period too low - open to the Judge to suspend the sentence of imprisonment - appropriate in the circumstances to exercise discretion to refuse permission to appeal.
(Per Gray J): in the circumstances, the Judge was correct to treat the defendant’s rehabilitation over the period of nine years since the offence as mitigatory - sentence imposed within the Judge's discretion - not only was it open to the Judge to suspend the sentence of imprisonment, it was the appropriate order to be made.
(Per Anderson J): limited weight to be attached to the delay between offence and sentence - otherwise agree with Gray J.
Criminal Law Consolidation Act 1935 (SA) s 49(3) and s 340; Criminal Law (Sentencing) Act 1988 (SA), referred to.
R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321; R v Mangelsdorf (1995) 66 SASR 60; R v Elliott (2001) 121 A Crim R 254; R v Harkin (2011) 109 SASR 334; R v Abdulla (2011) 109 SASR 258 ; R v Suckling (1983) 33 SASR 133; Duncan v The Queen (1983) 9 A Crim R 354; R v Liang & Li (1995) 82 A Crim R 39; R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; R v Leggett [2000] WASCA 327; Thorn v Western Australia [2008] WASCA 36; R v Lekaj (1997) 92 A Crim R 325; Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; R v Drewett (1983) 35 SASR 344; R v Brace [2011] SASCFC 54, considered.
R v V, AJ
[2012] SASCFC 10Court of Criminal Appeal: Doyle CJ, Gray and Anderson JJ
DOYLE CJ: I have read the reasons of Gray J. I adopt his summary of the facts, and his statement of the principles applicable to an appeal by the Director of Public Prosecutions against sentence.
Gray J has identified the circumstances relied on by counsel for V, and by the Judge, as mitigating the seriousness of the offence. They are significant circumstances. However, I do not attribute the weight that Gray J does to the passage of time between the offence and the plea of guilty, nor to the circumstance that during that time V appears to “have fitted into being a law abiding citizen with family responsibilities” as the Judge said. These circumstances are relevant. In particular, the fact that when the offending came to light, years ago, and within the family, V acknowledged his wrongdoing, counts in his favour. Had it been a case in which the offence had remained undetected for years, due to persuasion or influence that he exercised over his niece, I would attribute quite limited weight to the passage of time and to his intervening conduct. But, recognising that the passage of time and V’s settling down are entitled to weight, the issue of how much weight should be attributed to them remains.
The commission of sexual offences by adults (usually men) against children and teenagers (often in a domestic setting) often comes to light years after the event. There are many and varied reasons for this. Sometimes the passage of time is attributable to the conduct of the offender. That is not the case here. It appears to have been a decision by the family not to contact the police, when the matter first came to light. It is a not uncommon circumstance that, by the time offending of this kind comes to light, the offender has resumed a normal law abiding life. Offenders will escape due punishment if the passage of time and the resumption of a law abiding life are given too much weight in cases of this kind. I make these points to explain why it is that I attribute less weight to the passage of time than Gray J appears to.
In the circumstances, I consider that the head sentence and non-parole period fixed by the Judge are too low. They fail to reflect an adequate standard of punishment for this offence. The inadequacy of the sentence is indicative of error by the sentencing Judge. The head sentence and non-parole period should have been substantially greater. A starting point for the head sentence (before the reduction for the plea of guilty) of not less than 18 months was called for.
The correctness of the decision to suspend the sentence is a more difficult issue. In the end, I am not able to say that it was not open to the Judge to make the decision that he did, and to suspend the sentence. It was a merciful course of action to take, but within the scope of the sentencing discretion.
In these circumstances, although an error in sentencing has occurred, it is appropriate to refuse permission to appeal against sentence. If the Court were to intervene and to increase the head sentence and non-parole period, it would be appropriate, as a matter of fairness, to make an order suspending that sentence, as the sentencing Judge did. It suffices in this case to indicate that the head sentence and non-parole period were too low. The Court does not grant permission to appeal to the Director merely to correct error. As Gray J indicates, a number of circumstances are relevant to the discretion that the Court has to decline to grant permission to appeal, even though an error is apparent. This is a case in which it is appropriate to exercise that discretion, and to refuse permission to appeal.
For those reasons I would join with Gray J in ordering that permission to appeal be refused.
GRAY J.
This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
Introduction
V, the defendant and respondent, pleaded guilty in the District Court to the offence of engaging in unlawful sexual intercourse contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence were that between 1 February and 31 March 2002, the defendant had vaginal sexual intercourse with his niece who was then aged 14 years. At the time the defendant was in his mid-thirties. The defendant faced a maximum penalty of seven years imprisonment.
The defendant was sentenced on 18 November 2011. The Judge, having made a reduction of two months on account of the defendant’s plea of guilty, imposed a head sentence of eight months imprisonment. The Judge suspended the sentence of imprisonment on the defendant’s entry into a two year good behaviour bond supervised for a period of 12 months. It was a further condition of the bond that the defendant complete 100 hours of community service within 12 months.
The Judge outlined the history of the offence. A short time before the offence was committed there had been a family gathering at Berri. An incident occurred between the defendant and the complainant which led to private communications demonstrating that the complainant was infatuated with the defendant. About a fortnight later, the defendant went to a speedway event at Murray Bridge and stayed with his mother. Unbeknown to the defendant, the complainant was also going to be staying at the premises that night. The defendant was using cannabis and encouraged the complainant to share in that use. On that occasion, the act of unlawful sexual intercourse took place in the lounge room of the home. At the time, the complainant was vulnerable, she had few friends at school and was seeking friendship and attention from the defendant.
The defendant avoided further contact with the complainant following the offence. He told the Judge that he was embarrassed and ashamed as to what had occurred. It was one isolated act for which the defendant had taken responsibility. The defendant admitted the conduct at the time it became known within the family.
Following the offending, the defendant’s then longstanding relationship with his partner came to an end. The defendant then succumbed to the abuse of alcohol and drugs and, as the Judge observed, he was leading a pointless existence. However, after several years, the defendant settled, entered into a stable relationship which has continued now for some eight or nine years. He has married his partner and together they have two young sons. The defendant has been in stable employment, working in the automotive industry for some five years.
The Judge recognised the seriousness of the defendant’s conduct and considered that he was obliged to impose a sentence of imprisonment. However, the Judge considered that there were significant mitigatory factors. The Judge pointed to the long delay between the offence and the prosecution. The Judge was impressed by the substantial rehabilitation that had occurred in that period. Further, the Judge was impressed with the defendant’s antecedents:
You have readily admitted the offence and pleaded guilty. You now have a family life and no other criminal record. Notwithstanding that the offence has caused a great deal of angst to the complainant, I think that it is appropriate that I will suspend the sentence that I impose as the offence is some time ago and you have fitted into being a law-abiding citizen with family responsibilities.
The Appeal
The Director’s Appeal Against Sentence
The Director will be granted permission to appeal against sentence if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or, if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.[1] An error in the sentencing process may be inferred from a result that is manifestly unreasonable or plainly wrong, or by identifying the adoption by a sentencing Judge of an incorrect principle, the giving of weight to some extraneous or irrelevant matter, the failure to give weight to some material considerations, or, the making of a mistake as to the facts.[2]
[1] R v Nemer (2003) 87 SASR 168, [22]-[24]; R v Osenkowski (1982) 30 SASR 212, 212-213; R v Harkin (2011) 109 SASR 334, [19]; R v Abdulla (2011) 109 SASR 258, [9]. See further and generally Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321.
[2] Dinsdale v The Queen (2000) 202 CLR 321, 339-340.
On a prosecution appeal against a sentence, the court may take into account the consequence to an offender of reversing a decision to suspend a term of imprisonment. The consequences are to be balanced against the public interest in the proper administration of justice. However, hardship associated with such a reversal has commonly been taken into account by reference to the principle of double jeopardy.
Permission to appeal should only be granted to the prosecution in rare and exceptional circumstances.[3]
[3] Everett v The Queen (1994) 181 CLR 295.
The principle of double jeopardy has historically been taken into account by an appeal court in all stages of the appeal process in relation to an appeal against sentence by the Director. That is, double jeopardy has been taken into account when assessing whether permission to appeal should be granted;[4] whether an appeal should be allowed;[5] and, when considering the sentence to be imposed if that imposed at first instance is quashed, and the court is resentencing the offender.[6] It was of most significance where a suspended sentence was imposed and the appeal was against the decision to suspend.[7]
[4] R v Marikar [2010] SASCFC 36, [33]-[37]; R v Nemer (2003) 87 SASR 168, [26]; Everett v The Queen (1994) 181 CLR 295, 299; Malvaso v The Queen (1989) 168 CLR 227, 234.
[5] R v Drewett (1983) 35 SASR 344, 346.
[6] R v Mangelsdorf (1995) 66 SASR 60, 71; Dinsdale v The Queen (2000) 202 CLR 321, [62]; R v Elliott (2001) 121 A Crim R 254, [96].
[7] R v Nemer (2003) 87 SASR 168, [26]-[31].
However, Parliament has imposed restrictions upon the above principles which apply to this appeal. Section 340 of the Criminal Law Consolidation Act provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a) impose the sentence that should have been imposed in the first instance; and
(b) order that the sentence—
(i)will be taken to have come into effect on a date before the date of the order; or
(ii) will take effect on a date on or after the date of the order.
While the rule of law known as double jeopardy remains relevant to the granting of permission to appeal, if permission to appeal is granted, section 340 precludes the court from having regard to double jeopardy when re-sentencing.[8] The section removes from consideration any rule of law enabling a court to impose, when re-sentencing, a sentence other than the sentence which the court thinks ought to have been imposed in the first instance.[9] It removes the court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.[10] Section 340 applies to any appeal instituted after 3 August 2008.[11]
[8] R v Harkin (2011) 109 SASR 334, [35]; R v Abdulla (2011) 109 SASR 258, [23].
[9] R v Harkin (2011) 109 SASR 334, [36]; R v Abdulla (2011) 109 SASR 258, [24].
[10] R v Harkin (2011) 109 SASR 334, [37]; R v Abdulla (2011) 109 SASR 258, [25].
[11] R v Abdulla (2011) 109 SASR 258, [27], [56].
The Residual Discretion
The High Court in Green[12] recently considered New South Wales statutory provisions giving the right to the Director to appeal with respect to a sentence imposed in a criminal proceeding. In particular, the High Court gave consideration to a provision providing that an appeal court when resentencing shall have no regard to the principle of double jeopardy. The High Court noted that the Council of Australian Governments for Double Jeopardy Law Reform had recommended that all jurisdictions implement such a reform. The High Court addressed the interpretation and reach of section 68A of the New South Wales legislation noting the interstate comparators including section 340 of the Criminal Law Consolidation Act.
[12] Green v The Queen (2011) 86 ALJR 36; see also, Bui v Director of Public Prosecutions (Cth) [2012] HCA 1.
Two matters are to be noted for present purposes. The Court confirmed that an appeal court retained a residual discretion; that is, that the court might decline to interfere if an injustice were to arise through allowing a Crown appeal. The Court considered that the legislation prevented an appellate court from having regard to such distress and anxiety that might arise through double jeopardy. However the Court confirmed that otherwise a residual discretion remained. French CJ, Crennan and Kiefel JJ in this respect observed:[13]
A case might arise in which the Court of Criminal Appeal concludes that the inadequacy of the sentence appealed from is so marked that it amounts to "an affront to the administration of justice" which risks undermining public confidence in the criminal justice system. In such a case the Court would be justified in interfering with the sentence notwithstanding the resultant disparity with an unchallenged sentence imposed on a co-offender. That, however, is not this case. While all the members of the Court of Criminal Appeal considered that the sentences imposed upon Quinn and Green were "manifestly inadequate" there was no suggestion that they were so inadequate as to displace other considerations and mandate the Court's intervention. Moreover, in this case the primary judge took Taylor's unchallenged sentence into account in applying the parity principle to the sentences under appeal. Notwithstanding the leniency of Taylor's sentence, the prospective creation of disparity was a factor militating against allowing the appeal. That the Crown, in submissions before the Court of Criminal Appeal, did not attack the sufficiency of the sentence imposed on Taylor, gave that prospective disparity greater weight in the circumstances.
Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.
The preceding matters are relevant to the exercise of the Court's residual discretion not to allow a Crown appeal. Also relevant is the extent to which disparity between co-offenders is able to be mitigated in the exercise of the re-sentencing discretion.
If the Court does decide to allow an appeal under s 5D it will, in exercising its re-sentencing discretion, have regard to the matters to which it must have regard by virtue of ss 3A and 21A of the Sentencing Act. The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.
[Footnotes omitted.]
It is to be recalled that this residual discretion only arises when the Court is re-sentencing, as double jeopardy remains a relevant consideration when the court is considering the question of a grant of permission to appeal.
[13] Green v The Queen (2011) 86 ALJR 36, [42]-[45].
Consideration of the Issues Arising
The Director accepted that there is no applicable sentencing standard for cases of one off unlawful sexual intercourse. However, it was contended that an examination of the circumstances of the defendant’s offending revealed the suspended sentence of eight months imprisonment was so far below the standard required to punish the defendant and to deter others that it failed to maintain adequate sentencing standards for this type of offence. The Director identified the following factors that were said to lead to this conclusion. The complainant was the defendant’s niece, aged 14 years, and the defendant was aged in his mid-thirties. The defendant was in a position of trust and familial responsibility. The defendant took advantage of the complainant’s young age and her infatuation with him. The defendant gave the complainant cannabis prior to the offence occurring. General deterrence is the paramount consideration when sentencing for offences of this type. Finally, it was pointed out that Parliament had made it clear that a primary goal of the Criminal Law (Sentencing) Act 1988 (SA) is to protect children in circumstances such as the present.
There was no suggestion that the Judge had failed to have regard to any of these factors. To the contrary, it is evident that the Judge was aware of each of the above matters and was correct to characterise the defendant’s offending as serious. The Judge considered that he was obliged to impose a term of imprisonment, however, the seriousness of the defendant’s offending was to be weighed together with his personal circumstances and all relevant matters of mitigation.
The defendant is a first offender, the offence took place almost a decade ago and the defendant has now settled, is married with a young family and has maintained steady employment for more than five years. The offence involved one isolated act of intercourse.
The defendant, once his offending conduct became known within the family, acknowledged his guilt and blameworthiness. This is important evidence of contrition and remorse. It is relevant to note that the defendant’s acceptance of the wrongfulness of his conduct was of considerable importance to the complainant. It relieved her of feelings of guilt and shame, and assisted in her overcoming the problems following from the defendant’s conduct. The defendant’s contrition and remorse is reinforced by his admissions and by his early plea of guilty. The defendant further acknowledged his embarrassment and shame.
The sentence imposed did not need to reflect any component for personal deterrence. However, general deterrence remained an important consideration. There is no standard for a one off offence of unlawful sexual intercourse.[14] The circumstances of such offences vary. The question arises whether it can be said that the sentence imposed was so inadequate that the Judge’s decision must have been permeated by error and that the maintaining of appropriate sentencing standards requires this Court to interfere.[15]
[14] See, R v Brace [2011] SASCFC 54, [52].
[15] See, Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295.
In my view, the sentence imposed was within the sentencing Judge’s discretion. Given the circumstances of the offending and the personal antecedents of the defendant as outlined above, it may be accepted that the sentence was merciful. This is unsurprising. The defendant’s personal circumstances allowed such an approach. I do not consider the sentence of imprisonment to be so low as to shock the public conscience.
As noted above, the Director also complained about the decision of the Judge to suspend the term of imprisonment. The Judge’s decision has not been shown to have involved any error of principle or any misunderstanding of fact. The defendant’s circumstances were capable of providing good reason to suspend. The Judge was entitled to make such an order. In the circumstances, not only was it open to the Judge to suspend the sentence, in my view, it was the appropriate order to be made.
A Final Matter - Delay as a Mitigating Factor
I made reference earlier to the Judge’s treatment of the delay between the offence and the prosecution, and the substantial rehabilitation that had occurred during that period. It is instructive to briefly review the authorities on the topic of delay in circumstances where rehabilitation has taken place between the commission of an offence and the time of sentence.
A convenient starting point is the judgment of Street CJ in Todd where the following observations were made:[16]
… [W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[16] R v Todd [1982] 2 NSWLR 517, 520 (Street CJ, with whom Moffitt P and Nader CJ at CL agreed). These remarks have been approved in a number of subsequent decisions; see for example, R v Suckling (1983) 33 SASR 133, 136 (Legoe J, with whom Wells and White JJ agreed).
The observations of the Court of Criminal Appeal of Western Australia in Duncan provide a further indication of the importance of rehabilitation in circumstances such as the within matter:[17]
… where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
[17] Duncan v The Queen (1983) 9 A Crim R 354, 356.
In Liang & Li, Winneke P, with whom Ormiston JA and Crockett AJA agreed, relevantly observed:[18]
… [H]is Honour has fallen into error in failing to pay any or any sufficient regard to the effects of the delay which occurred between the commission of these offences and the date of the plea and sentence. As I have already indicated, these offences were committed between May and August 1992, yet it was not until April 1995 that the applicants were sentenced. By this stage, as might well have been expected, the circumstances of the applicants had changed significantly. Each applicant had married, each had fathered a child and each had obtained stable employment. The delay, on the material available to the judge, was in no way attributable to the fault of either applicant and provided, in my view, a powerful mitigating factor which does not appear to have been afforded proper weight in the sentencing process.
[18] R v Liang & Li (1995) 82 A Crim R 39, 45.
In Law; Ex parte Attorney-General (Qld),[19] it was held that delay will not be a mitigating factor unless it causes unfairness to the offender.[20] There, two “obvious” circumstances were discussed in which it would be appropriate for delay to be mitigatory. One of those circumstances is relevant to the present proceeding and was described in the following terms:[21]
… where the time between commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64. See also Bell (1981) 5 A Crim R 347 at 351; Quinlivan (Crt of Crim App Vic No 291 of 1994). Duncan is also an example of this.
[19] R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63.
[20] R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63, 66 cited with approval in R v Leggett [2000] WASCA 327, [34]-[35]; Thorn v Western Australia [2008] WASCA 36, [37]; R v Lekaj (1997) 92 A Crim R 325.
[21] R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63, 66.
In Kernich, Debelle J set out the remarks cited above from Todd and then observed:[22]
Those observations were made in circumstances different from these, but they are, nevertheless, relevant. The observations apply with even greater force when there has been an exceptional delay of this kind, and in that period of delay the offender has taken substantial and successful steps towards his own rehabilitation.
[22] Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459.
In my view, the sentencing Judge in the present proceeding was correct to treat the defendant’s rehabilitation over the period of nine years since the offence as mitigatory.
Earlier in these reasons I referred to the observations of French CJ, Crennan and Kiefel JJ in Green. Even if permission were to be granted, I consider that the residual discretion may well have been enlivened. The defendant has been the subject of a supervised good behaviour bond for over three months. By the terms of his bond, he has agreed to undertake 100 hours of community service within 12 months. There is no suggestion that the defendant has done other than comply with the terms of his bond. There is no reason to doubt that he has continued as a law abiding citizen in employment and as a caring provider for his family.
Conclusion
I would refuse permission to appeal.
ANDERSON J. I agree that permission to appeal should be refused. I generally agree with the reasons of Gray J for refusing permission but I agree with Doyle CJ as to the significance of the passage of time between the offence and the plea of guilty.
16
23
1