S v Tasmania (No 2)
[2007] TASSC 85
•12 November 2007
[2007] TASSC 85
CITATION: S v Tasmania (No 2) [2007] TASSC 85
PARTIES: S, A C
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL
JURISDICTION: APPELLATE
FILE NO/S: CCA 52/2006
DELIVERED ON: 12 November 2007
DELIVERED AT: Hobart
HEARING DATE: 29 October 2007
JUDGMENT OF: Evans, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal against sentence – Grounds for interference – Other matters – Miscarriage of justice – Whether some other sentence warranted in law.
Criminal Code (Tas), s402(4).
Douar v R (2005) 159 A Crim R 154; DB v R (2007) 167 A Crim R 393; AB v R (1999) 198 CLR 111, referred to.
Aust Dig Criminal Law [1006]
REPRESENTATION:
Counsel:
Appellant: K L Baumeler
Respondent: C J Rheinberger
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 85
Number of paragraphs: 40
Serial No 85/2007
File No CCA 52/2006
A C S v STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J (dissenting)
BLOW J
TENNENT J
12 November 2007
Order of the Court:
Appeal dismissed.
Serial No 85/2007
File No CCA 52/2006
A C S v STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
12 November 2007
On 13 June 2006, the appellant was convicted on his plea of guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years and sentenced to eight years' imprisonment to commence on 5 May 2006, subject to a parole eligibility period of one-half of that sentence. When sentenced, the appellant was 75 years of age. Whilst the learned sentencing judge was informed that the appellant was in poor health, no information was put before his Honour as to the appellant's life expectancy. As a consequence of this omission, this Court in S v Tasmania [2007] TASSC 62 at pars17, 36 and 58 found that there had been a miscarriage of justice and granted the parties leave to adduce evidence in relation to the appellant's life expectancy, in order that this Court could determine whether the appellant's sentence should be quashed because a lesser sentence is warranted pursuant to the Criminal Code, s402(4).
I remain of the view I expressed in S v Tasmania, par20, that the approach to be adopted by an appellate court where a miscarriage of justice has been established in the sentencing process is the same as that which is adopted when a material error has been established.
As to the question whether some other sentence is warranted, I reject a suggestion to be found in some New South Wales authorities dealing with the equivalent of s402(4) that a precondition to a determination that some other sentence is warranted is a finding that the sentence that is the subject of appeal is manifestly excessive or inadequate. Section 402(4) provides:
"402 …
(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
On the face of this provision, there is no requirement that before the Court can be satisfied that some other sentence is warranted, it must be satisfied of manifest excess or inadequacy, and there is good reason for not implying such a requirement; it would be of universal application to all appeals against sentence. However, it is well established that manifest departure is a separate and distinct basis for successfully appealing against a sentence. To make manifest departure a precondition to the imposition of a different sentence in every case would make the other well recognised bases for appeal otiose.
The New South Wales authorities I have in mind are canvassed in Douar v R (2005) 159 A Crim R 154 by Johnson J and DB v R (2007) 167 A Crim R 393 by Adams J. They include R v Johnson [2005] NSWCCA 186 where Hunt AJA, at par7, said that a contention that the court would never interfere with a sentence unless it formed the view that the sentence imposed was manifestly excessive was not the correct approach. However, at pars34 and 39, his Honour adopted an approach to the appellant, who had established an apparent error, that required the appellant to in addition show that the sentence appealed from was outside the appropriate range in that case. That requirement is essentially the same requirement that is imposed on an appellant who asserts manifest excess or inadequacy. See also R v Martin [2005] NSWCCA 190, pars67 and 68. The ambiguity in R v Johnson is not to be found in the following passage from the decision of Rothman J in R v Price [2005] NSWCCA 285 at pars68 – 70:
"It is always necessary in order for this Court to intervene in a sentence for the Court to be satisfied that there is an error of the kind referred to by the High Court in House ((1936) 55 CLR 499). Once there is such an error the only test is that which is contained in s6(3) of the Criminal Appeal Act 1912; namely, whether some other sentence is warranted in law and should have been passed.
In my opinion, it is counter productive to seek to overly analyse how and in what circumstances that latter test will be satisfied. Error, of itself, is not sufficient, but is necessary.
Once this Court has determined that there is an error in the sentence and some other sentence is warranted in law, it is not necessary to show that the sentence on appeal is manifestly excessive (or, in the case of a Crown appeal, manifestly inadequate). Once error is found and the Court has formed the requisite opinion under s6(3) of the Criminal Appeal Act, the discretion of the Court in the adjusting of sentence ought not be constrained. It is, in those circumstances, appropriate to exercise afresh the discretion involved in the sentencing process and to do so on the basis of material received during the course of the appeal."
See also Simpson J, agreed with by Johnson J, par52.
Similarly in DB v R (supra), par39, Adams J said:
"One way or another, the necessary prerequisite for the substitution of another sentence by the Court of Criminal Appeal is the identification of error. Where that error is demonstrated by the manifest error in the result, then the Court sentences afresh and substitutes its view of what is the correct sentence. In an appeal by an offender, if an error in principle or fact demonstrates that the sentencing discretion has miscarried, then the Court must sentence afresh. If it determines that the appropriate sentence is a lesser sentence then it should substitute that sentence. Such a sentence, ex hypothesi, will be warranted in law. Accordingly, if the sentence under appeal is at all events at the bottom of the discretionary range, the appeal must be dismissed, as also where the Court is of the view that a lesser sentence is not appropriate. In an appeal by the Crown, the obverse position applies although other considerations might also result in dismissal."
As was observed in Douar v R (supra) by Johnson J at 117:
"In Dinsdale v The Queen (2000) 202 CLR 321 at [3]-[6], Gleeson CJ and Hayne J referred to the principles in House v The King as having direct application to the formation of the statutory (s6(3)) opinion. Likewise, Gaudron and Gummow JJ at [21] and Kirby J [58] referred to the principles in House v The King. It is not said in Dinsdale that, in a case where patent error is established, there is a cumulative requirement for the appellant to demonstrate that the sentence was manifestly excessive before the Court will proceed to resentence. The statutory test in s.6(3) is not equated with the test of manifest excess even where patent error has been demonstrated."
In AB v R (1999) 198 CLR 111, pars129 – 130, Hayne J said:
"The task of the Courts of Criminal Appeal in this country in hearing appeals against sentences is a limited task and it is governed by well-established principles that have been repeatedly stated. In particular:
'If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' [House v The King (1936) 55 CLR 499 at 505.]
Such cases are, however, different from cases in which the complaint is that the sentence is manifestly excessive. There, as was said in [House at 505]:
'It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts 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.'
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed."
See also Kirby J at par106.
The approach enunciated by Hayne J is that which should be followed by this Court, and applying what he said to the situation where a miscarriage of justice has been established, I conclude that once this Court identifies a miscarriage of justice in the sentencing process, it is required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in a separate and independent exercise of its discretion this Court concludes that no different sentence should be passed.
The victim of the appellant's criminal conduct is the elder of his two daughters. The conduct occurred between 1972 and 1979 when she was aged between 9 and 16 years. During this period the appellant was aged between 41 and 48 years. In March 1972, the appellant's wife left him and their seven children, five boys and two girls. His criminal conduct began with indecent assaults, progressed to aggravated sexual assaults, and turned to vaginal intercourse and oral intercourse when his victim was about 12 years of age. The abuse occurred regularly, to the order of at least once a week, until she was about 15 or 16. Her crying and whimpering and efforts to push him away did not deter him. Ultimately she resorted to disassociating herself in order to handle his abuse. It only ceased when she ran away from home. His crimes constitute a gross breach of trust. He totally failed in his parental duty to her. His criminal conduct has had a devastating effect on her. She still suffers from recurring nightmares, sleeping problems, persistent distress at thoughts of his sexual abuse, persistent avoidance symptoms and low self esteem. She finds it difficult to form a relationship with others, particularly males. She has been diagnosed as suffering from a post-traumatic stress disorder in consequence of the abuse, and she has attempted suicide on several occasions.
The appellant is 76 years of age. He has no convictions for a sexual offence.
The unchallenged evidence put before the Court as to the appellant's health and its effect on his life expectancy is that:
·He suffers from the following:
"IModerate to Severe Coronary Artery Disease with activity related angina and shortness of breath. He had coronary artery bypass grafting in 1990. Recent scans and angiograms confirm the presence of moderate to severe and recurrent disease. Mr S is not suitable for further surgery and is managed with medication only.
2 Asthma
3 Type 2 Diabetes Mellitis
4 Arthritis
5 Hypertension
6 Hypercholesterolaemia".
·He is essentially wheelchair bound and becomes dizzy with shortness of breath and chest pain on minimal effort.
·His current life expectancy is 4.25 years, the expectancy being that he will live until he is 80.9 years of age.
Whilst the evidence of the appellant's life expectancy is unchallenged, this does not mean that it is to be accorded a status beyond that of an informed prediction as to a matter in relation to which there is a very wide range of uncertainty.
Mitigatory factors include the age of the appellant, his poor health and his reduced life expectancy. Each year of his sentence represents a significant portion of the remainder of his life. A major mitigatory factor is his early admission of his wrong doing and his plea of guilty. This has saved his victim from the trauma of giving evidence and has vindicated her claims.
I would sentence the defendant to six years' imprisonment from 5 May 2006 and order that he not be eligible to apply for parole until he has served one-half of this sentence.
Accordingly, I would quash the sentence that is the subject of this appeal, and sentence the appellant as indicated.
File No CCA 52/2006
A C S v STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
12 November 2007
I have read the reasons for judgment of the other members of the Court in draft form. As to ground 4, which relates to the appellant's life expectancy, I agree with Evans J, for the reasons stated by him, that this Court should exercise the sentencing discretion afresh, even if the original sentence was not manifestly excessive. I need not repeat what has been said by the other members of the Court as to the matters relevant to the exercise of the sentencing discretion, but there is a little that I would like to add.
One minor point that weighs against the reduction of the appellant's sentence is that, according to Dr Wake's report of December 2006, "Prison has improved his general treatment, medicine compliance and rate of investigation of his heart disease."
Further, it should be noted that the imposition of a non-parole period of four years does not necessarily mean that the appellant cannot be released after a shorter period if his health substantially deteriorates. Under the Corrections Act 1997, s70, a prisoner may be released on parole before the completion of the applicable non-parole period if, in the opinion of the Parole Board, "there are exceptional circumstances warranting the earlier release on parole of the prisoner." Under s87(1)(b) of the same Act, the Director of Corrective Services may grant "special remission" to a prisoner in circumstances "of an unforeseen and special nature". The latter provision might not apply to the appellant, since the deterioration of his health is something that has already been foreseen.
The appellant subjected his daughter to hundreds of unlawful sexual acts from about the age of 9 until she left home at the age of 16. He raped her frequently in the later years. She was terrified of him. She was subjected to violence. For example, when she was about 14 or 15, there was an occasion when the appellant pushed her over and started kicking her while she was on the ground. She finally reported the matter to the police after suffering many years of mental anguish and trauma, during which she made many suicide attempts. This is one of the most serious single-victim child-sex cases that the Court has encountered.
Having regard to those matters, and to the matters referred to by the other members of the Court, including the evidence as to the appellant's life expectancy, I do not think the original sentence was manifestly excessive. However it is necessary for the sentencing discretion to be exercised afresh. I find it very difficult to ignore the fact that a sentence of eight years' imprisonment, with a non-parole period of four years, was imposed at first instance. In my view, the sentence proposed by Evans J, whilst not manifestly inadequate, is too short, having regard to the criminality of the appellant. I cannot think of a more appropriate sentence than that imposed at first instance. I think that sentence should stand. I would therefore dismiss the appeal.
File No CCA 52/2006
A C S v STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
12 November 2007
The hearing of this appeal commenced on 30 May 2007. Counsel for the appellant pursued five grounds of appeal. On 17 August 2007 reasons for judgment were delivered. While those reasons effectively disposed of grounds of appeal numbered 2, 3 and 3A, the only orders made were that the further hearing of the appeal be adjourned and the appellant be given leave to adduce further evidence about his life expectancy.
Ground 4 asserted that a miscarriage of justice had arisen as a consequence of the failure of the appellant's counsel to put before the learned sentencing judge evidence about the appellant's life expectancy. The Court accepted that there had been a failure to put such material before the learned sentencing judge and that, as a consequence, a miscarriage of justice had occurred. Ground 4 should therefore succeed. However, the success of that ground of appeal does not automatically lead to an order that the sentence imposed on the appellant should be quashed. The Criminal Code Act 1924, s402(4), provides:
"(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
This Court should not, in the circumstances, quash the sentence imposed and impose another unless it is of the opinion another sentence "… is warranted in law and should have been passed ...".
The Court must therefore consider whether another sentence other than that imposed is warranted in law, either by reference to the life expectancy issue or by reference to ground 1 of the appellant's notice of appeal which challenged the sentence on the basis it was manifestly excessive. The appellant was sentenced to a term of eight years' imprisonment commencing on 5 May 2006 with a non–parole period of four years, the shortest period able to be ordered by reference to the head sentence.
At the resumed hearing of the appeal, counsel for the appellant tendered the following material without objection by the State:
-a medical report dated 31 August 2007 by Dr Chris Wake, the Clinical Director of Correctional Primary Health Services based at Risdon Prison;
- six pages of statistical material about life expectancy; and
-a further nine pages of material relating to various medical test results conducted in respect of the appellant while he has been in prison.
The State did not seek to challenge any of the information contained in the material.
Dr Wake said in his report that:
"Mr S is essentially wheelchair bound and becomes dizzy with shortness or [sic] breath and chest pain on minimal effort.
…
The life expectancy of a male Tasmanian is given by the Australian Bureau of Statistics as 76 years. This average person will live for a further 9.8 years. Mr S is now aged 76.5 years.
Prediction of date of death is not an accurate business the results having a wide range of uncertainty and being affected by multiple variables in particular the state of health. Mr S's health is demonstrably poor and by convention in Australian Life Tables life expectancy of those in poor health is consigned to the lowest quartile of 25% for that particular age group.
Thus if 50% of 76 year olds in average health will live to age 85.8 the bottom 25% in poor health will live to age 80.9 years.
Using this scale Mr S's future life expectancy is 4.25 years. My previous statement that life expectancy was 3 to 5 years takes note of his poor health and the variability of accuracy of such predictions in individual cases."
Counsel for the appellant submitted in substance that, had this information been before the learned sentencing judge in combination with the rest of the material before him, he would not have imposed a sentence of eight years with a non-parole period of four years which had as a likely consequence that the appellant would die in prison, but would have imposed a shorter period. In her submissions, counsel for the appellant referred to a number of authorities. In particular she referred to R v Hunter [1984] 36 SASR 301. That was a case which involved a legal practitioner aged 74 who misappropriated client funds over a number of years. The Crown successfully appealed the inadequacy of the sentence. King CJ said at 103:
"A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him. It may be that when that consideration is borne in mind, it can be said that the sentence of five years' imprisonment, which at first sight seems very lenient for the respondent's criminal conduct, is nevertheless within the scope of the judge's sentencing discretion. I am unable to feel the same way, however, about the non-parole period. In fixing a non-parole period, a sentencing judge must direct his attention to the minimum period for which the offender must, if the purposes of punishment are to be served, remain in prison."
In the same case, at 105, Jacobs J said:
"The real question is whether, having regard to the whole of the circumstances, the learned sentencing Judge has over-stepped the reasonable limits of compassion and mercy. Those limits cannot, of course, be defined with any precision, but the guiding principle was stated long ago by Napier CJ in the oft-quoted passage is Webb v O'Sullivan ([1952] SASR 65) which was also the keystone of the statement of principle by Wells J in Reg v Kear ((1978) 2 Crim LJ 40):
'The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.'"
Counsel also referred to R v John [1998] VSCA 99 and to comments by Tadgell JA at pars21 and 22. At par21 he said:
"In order to take into account as a sentencing factor the ill-health of the applicant it was not necessary that it be shown or apprehended that incarceration would exacerbate his condition. In the circumstances I find it difficult to exclude the real possibility that the learned judge may have been deflected from considering the hardship which a custodial sentence would presumably cause a 68 year old man in chronically poor health who was undergoing such a sentence for the first time, irrespective of whether the incarceration actually exacerbated his condition."
A relevant passage from DPP v Che Kim [2000] VSC 376, also referred to, was set out in par57 of my reasons of 17 August 2007.
Counsel for the State submitted that many cases such as that of the appellant involved men of advanced years, in ill-health, simply because the victims often felt unable to report the offending, which occurred when they were children, until they were often well into adulthood. Hence she argued that it was wrong to allow a significant reduction in an otherwise appropriate sentence because of factors which were often a direct result of the nature of the offending.
The emphasis by counsel for the appellant was on the likelihood that the sentence imposed was, in effect, a life sentence. Dr Wake's opinion recognises the uncertainty in what he was being asked to do. He calculated the appellant's life expectancy by reference to the various statistics he provided at 4.25 years but recognised that, by reason of the appellant's poor health and the variables associated with individual cases, it could be anywhere between three and five years. If regard is had to the shortest period of three years, assuming the appellant obtains parole at the earliest opportunity, the appellant will leave prison alive. The appellant's sentence of eight years commenced on 5 May 2006. He had therefore already served nearly one year and four months by the time Dr Wake assessed his life expectancy. By virtue of the non-parole order made by the learned sentencing judge, he will be eligible for parole in early May 2010, that is about two years and nine months from the time at which life expectancy was assessed. It follows it is unlikely the appellant will die in prison, although clearly he will spend a substantial portion of his remaining life there.
Does the life expectancy factor in itself lead to the conclusion another sentence is warranted in law? I cannot see that question is able to be answered in isolation because the appellant's age and life expectancy are only part of the picture the learned sentencing judge had before him and which he was obliged to consider. The question can really only be answered in this case in the context of ground 1 of the notice of appeal.
The question to be answered firstly is, was the sentence, taking into account the information now available as to life expectancy, manifestly excessive? Both counsel referred to other sentences imposed by the Court. By reference to those, it was suggested by counsel for the appellant that the sentence imposed against the appellant was longer than might be expected having regard in particular to his plea of guilty, his age and state of health. That it was longer than the sentences referred to cannot be disputed.
However, sentencing an offender involves the exercise of a discretion. That discretion, while bounded by considerations laid down in numerous authorities, is wide and is vested in an individual judicial officer. No two judicial officers are likely to reach exactly the same conclusion. As a consequence, it is not sufficient for a judge hearing an appeal such as the present to conclude he or she would not have imposed the sentence imposed, but would have imposed a shorter sentence. For an appeal to succeed on the ground a sentence is manifestly excessive, it must be shown that the sentence was so far outside what might be expected as a sentence by a judge taking into account all relevant factors and giving those factors proper weight, that in itself the sentence demonstrated error.
It is not suggested the learned sentencing judge did not take into account a relevant matter put before him. The two issues underlying this appeal are the weight which he accorded the matters he considered and the absence of a consideration of evidence relating to life expectancy.
There is no doubt the learned sentencing judge concentrated his sentencing remarks on the nature and impact of the offending. However, from the facts of this case, in my view he cannot be criticised for so doing. The appellant's offending involved sexual predation over several years by a mature man in respect of his daughter. The appellant was in a position of trust and preyed on a child who had no mother in the household to whom she might have gone for help. The sexual predation was of the worst kind in that it began with relatively minor sexual interference and escalated, when the opportunity presented itself, to repeated rapes.
The actions of the appellant involved an entirely unwilling victim unable to reject the appellant's advances. The learned sentencing judge had victim impact material which suggested the victim suffered psychological harm from the time of the offending, continuing through many years to the present. She self-harmed while the offending continued, even attempting to abort herself when she believed she had become pregnant. Her ability to lead a normal life in the sense of creating normal family relationships has been destroyed. The appellant pleaded guilty and thereby saved the victim from the need to give evidence. That was a mitigating factor which his Honour considered. He also considered the age of the appellant and his poor health. The details of that poor health in the form of the illnesses from which the appellant was suffering was provided to the Court. However, apart from those mitigating factors, there were, in the view of the learned sentencing judge, no others.
A significant sentence was warranted. While compassion and mercy are factors a court should consider in sentencing an elderly offender in poor health, they should not override considerations relating to the crime committed and its impact on a victim, and the expectation of the public that offenders who commit heinous crimes should be appropriately dealt with.
The penalty imposed by the learned sentencing judge was at the high end of the range of sentences referred to by counsel. However, it may as easily be said that the appellant's behaviour towards his victim was appalling and deserves a level of response at the high end of any range.
I am of the view that the sentence imposed by the learned sentencing judge was not, having regard to all the factors apparent from the sentencing hearing and with the additional factor of the appellant's life expectancy, so far beyond what might be appropriate for this crime as to, in itself, demonstrate that an error occurred in the exercise of the sentencing discretion. Ground 1 should therefore fail.
The court has already found that there has been a miscarriage of justice arising from the failure to put material about life expectancy before the learned sentencing judge. That leaves the Court to consider in light of that finding and by reference to s402(4), whether some other sentence is warranted in law. If the Court is of the opinion some other sentence is warranted, then it should quash the sentence and pass another in its place. Otherwise the appeal should be dismissed. To answer the question, whether some other sentence is warranted in law, requires a consideration of the factors in this case relevant to the sentencing of the appellant. They have been canvassed in these reasons and those of 17 August 2007. Having considered those factors, I am unable to be satisfied that any other sentence than that imposed by the learned sentencing judge is warranted in law. I would therefore dismiss the appeal.
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