The Queen v Ashton (a pseudonym)
[2022] ACTCA 45
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Queen v Ashton (a pseudonym) |
Citation: | [2022] ACTCA 45 |
Hearing Date: | 16 August 2022 |
DecisionDate: | 21 September 2022 |
Before: | McCallum CJ, Elkaim and Collier JJ |
Decision: | (i) Appeal allowed. (ii) The sentence and nonparole period imposed by Norrish AJ on 4 February 2022 are set aside. (iii) Offender resentenced to 15 years’ imprisonment (reduced from 20 years’ imprisonment) to commence on 9 July 2021 and end on 8 July 2036. (iv) The nonparole period is 9 years and 4 months to commence on 9 July 2021 and end on 8 November 2030. |
Catchwords: | APPEAL – CRIMINAL LAW – Crown appeal against sentence – engaging in sexual relationship with child under special care – whether sentence manifestly inadequate – whether starting point of sentence manifestly too low |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 56A Crimes (Sentencing) Act 2005 (ACT) s 36 |
Cases Cited: | Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mills v R [2017] NSWCCA 87 The Queen v Avery [2018] ACTCA 57 |
Parties: | The Queen ( Appellant) Baker Ned Ashton (a pseudonym) ( Respondent) |
Representation: | Counsel S Drumgold SC ( Appellant) J White SC ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Appellant) Legal Aid ACT ( Respondent) | |
File Number: | ACTCA 5 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Norrish AJ Date of Decision: 4 February 2022 Case Title: R v Ashton (a pseudonym) Citation: [2022] ACTSC 27 |
McCallum CJ:
This is an appeal brought by the Director of Public Prosecutions against the alleged leniency of the sentence imposed on the respondent after he pleaded guilty to an offence of engaging in a sexual relationship with a child under special care, contrary to s 56 of the Crimes Act 1900 (ACT). That offence carries a maximum penalty of imprisonment for 25 years.
As necessarily occurs in the event of a plea of guilty, the offender was sentenced on the strength of a statement of agreed facts (summarised in detail in the judgment at first instance: R v Ashton [2022] ACTSC 27 at [6]–[25]). Statements of agreed facts serve an important function and are of considerable assistance to sentencing courts. However, being generally (appropriately) couched in neutral terms, they can serve to sanitise the offence in question and mask the true degree of an offender’s moral turpitude.
The victim here was under the offender’s special care because she was his natural daughter. Her parents had separated when she was two. They remained amicable and agreed that she should live primarily with her mother but see her father as requested by him, which was generally every fortnight. When she was younger, she would stay with his parents to facilitate those access visits. By the time she was six, the offender was living in a share household with another man. That is when the victim began sharing a bed with the offender and that is when he began sexually assaulting her. The assaults were always committed in this way, when the child was in his care, required to share his bed, isolated from the protection of her mother and vulnerable to his whim.
The seriousness of the sexual assaults escalated over time, beginning with indecent touching in bed at night and progressing over time to full sexual intercourse of all different kinds. The assaults continued repeatedly and frequently, every time the child was with the offender until she was 14. The sentencing judge calculated that there were approximately 76 instances of penile penetration of the victim alone; the Director argued in the appeal that that was a significant under-estimate. The kinds of intercourse included digital penetration of the victim’s vagina (the offender admitted “possibly” also digital penetration of the anus), penile penetration of the vagina and the anus, cunnilingus and fellatio. The first act of penetration occurred at the victim’s grandparents’ house when the victim was no older than eight and possibly younger. On that occasion, the offender joined the victim in the shower and engaged in penile/vaginal intercourse with her.
Unsurprisingly, the offender’s sexualisation of his relationship with his daughter from such a tender age has had a devastating impact on her and her mother. As noted by the sentencing judge, the victim impact statement provided by the victim was understated. The mother’s statement was more direct and revealed that the victim has suffered dreadfully. She has self-harmed and at times been suicidal. She remains extremely vulnerable. She will require long-term treatment for her mental health and will probably never recover completely from her traumatic childhood.
It may be seen from the foregoing that there can be no argument with the sentencing judge’s description of the case as “a very serious case indeed”: at [83]. His Honour said at [84]:
It was sustained and to a considerable extent, in my view, premeditated. That is, to the extent that he clearly took every opportunity to sexually assault the victim that was presented to him, such as occurred at Kambah. His conduct towards the victim was entirely self-gratifying.
The primary judge concluded at [85] that the seriousness of the offending, although below the worst category of offending of the type, was “just below that category and not well below that category”, as had been submitted by counsel for the offender. That assessment was carefully reasoned and is not challenged by the offender.
It was common ground that the offender was entitled to a discount of 25% to reflect the utilitarian value of his guilty plea. The utilitarian value of the plea was substantial in this case. It would undoubtedly have been very traumatic for the victim to have to give evidence at the trial. Further, it may be accepted, and the sentencing judge evidently did accept, that the plea reflected genuine remorse and a desire to spare the victim and others any further harm. However, those matters did not diminish the objective seriousness of the offence and could not be allowed to overwhelm the need for adequate punishment. Apart from the plea, there was little to mitigate the sentence to be imposed. The offender did not give or adduce any evidence. The sentencing judge was left to rely on the contents of the pre-sentence report which revealed nothing exceptional. The offender enjoyed a supportive upbringing. He had a respectable work history. He suffers no cognitive deficit, mental illness or other condition that might lessen his moral culpability for the offence. The remorse reflected in the plea is qualified by the persistence of the offending, a matter addressed in greater detail below.
Having found that the objective seriousness of the offence was below the worst category but just below that category, the sentencing judge took a starting point for the sentence to be imposed of imprisonment for 16 years. That was reduced by 25% for the plea to give a head sentence of 12 years. His Honour fixed a non-parole period of 7 years and 6 months. The Crown does not take issue with the discount for the plea or the proportion of the total term reflected in the non-parole period. The single ground argued in the appeal is that, in all the circumstances, the starting point of 16 years was manifestly too low.
Sentencing is probably the most difficult and controversial task of the criminal courts. The principles as to the proper approach to that task are orthodox and, at least since the decision of the High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, uncontroversial. As the plurality explained in Markarian at [27] (Gleeson CJ, Gummow J, Hayne J and Callinan J):
The judgment [as to the sentence to be imposed] is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
The principles for determining appeals against sentence are also orthodox and, again, are to be found in the judgment of the plurality in Markarian, at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy”.
Another way in which those principles are sometimes expressed is in the requirement to show error that is either patent (specific) or latent (manifest only in the conclusion that the result is unreasonable or plainly unjust).
Unfortunately, orthodoxy does not equal simplicity. The application of accepted principle poses a particular challenge in the present case. I have not found this appeal easy to determine. Specific error is neither alleged nor shown. Indeed, the judgment of the sentencing judge reveals a faithful application of the applicable legislation, identification of all the factors relevant to sentence, a thorough discussion of their significance and a careful evaluative assessment as to the appropriate sentence given all the factors of the case: cf Markarian at [51] (McHugh J).
Accordingly, the only basis on which the Director’s appeal can succeed is if the result embodied in the sentence imposed is unreasonable or plainly unjust. To put the matter another way, adopting the language of the ground that succeeded in Markarian, the question is whether the sentence is so plainly unjust that an error in the sentencing discretion is to be inferred. As noted by Mr White SC on behalf of the offender, the Court must be astute, in undertaking that assessment, not simply to substitute its own view for that of the primary judge. That is another way of expressing the requirement to persuade the appellate court as to the existence of latent error articulated in the principle cited above.
Further, I am mindful of the importance at the appellate level of respecting the breadth of the discretion of sentencing judges.
There was some discussion by the primary judge of comparable sentencing decisions but his Honour concluded that the objective seriousness of the present case was higher than in any of those cases. In any event, as his Honour noted, every case must be decided on its own facts.
I have concluded that the sentence imposed by the sentencing judge is unjust and that the Director’s appeal must be allowed. I have already described how very serious the offence was. In short, the offender repeatedly raped his young daughter over many years at a time when (to give effect to the statutory term “special care”) he of all people ought to have been ensuring that he nurtured and protected her. Instead of doing that, he repeatedly traumatised her over a period of eight years and condemned her to a life of psychological suffering.
A significant factor in my conclusion is the extent to which, as the sentencing judge found, the offending, even including its escalation, was premeditated. In his record of interview, the offender said:
After a while, unfortunately, it started becoming a normal – normally to me and I just do it normally. First time, you know, the same old, same old. It’s just now I – started to progress into things. Thinking thoughts before she’s even arrived (Q430).
He continued:
I’d start preening her and go off on a tangent. My body would start pre-meditating things, like, maybe I should do this, maybe I should do that. And then, you know, I’m thinking [indistinct] and I’m thinking – yeah. You know, do this to my own daughter is horrible. Ah, I couldn’t believe where I’d go sometimes. It was – it just got out of hand. I just kept doing it and it just kept intensifying.
Shortly after those answers is the following exchange at Q441:
Q Was she – has she never said anything?
AShe’s never asked me to stop. She’s never told me to get off. Never told me once, “Don’t”.
Those remarks, reproduced by the sentencing judge at [35] and in the Director’s submissions in this Court, appear to have been understood as a suggestion by the offender that his conduct was excused by the absence of protest on the part of the victim. Based on my reading of the whole of the record of interview, I think in fact the offender was acknowledging something worse. He appears to have been reflecting on the fact that the victim remained passive throughout his offending, even as it escalated to the extent that it did. Whether or not that is the case, the offender’s various accounts of the conduct of the victim in response to his increasing depravity provide chilling evidence of the extent of his persistence notwithstanding the fact that he well knew the seriousness of his conduct.
At one point during the interview with police, the offender described an incident that occurred when the victim was eight. He said:
I don’t know how I get to this point, but I remember sitting on the bed in front of her and I got her sucking on my penis…I think I just told her to close her eyes and ‘I’ll give you a surprise’ scenario, and I put it in her mouth, and told her to suck it (Q352, Q355).
He was asked what the victim was doing with her hands at that time. He replied:
Just beside her… Like a rag doll. And that was another thing, just the look and the mood in her eye, it was just – you know, shouldn’t be doing this. Another fighting – fight with myself, and I just can’t – couldn’t get around it again (Q368-Q369).
There was one incident when the offender raped the victim as a form of punishment after she had jumped on his bed. She was eleven. The agreed facts describe that incident as follows:
In 2017, the offender was playing a computer game late at night in his room. [The victim] was in the bedroom jumping up and down on the bed. The offender was angry, took hold of [the victim], spun her around, and placed her on her hands and knees on the bed. The offender pulled [the victim’s] pants down and began rubbing his penis up and down on her vagina. The offender then began to push his erect penis into [the victim’s] vagina. The offender slowly thrusted his penis back and forth on [the victim’s] vagina for about a minute and a half, with the tip of his penis penetrating the vaginal opening. The offender had his hands on [the victim’s] hips and buttocks before placing his penis in his boxer shorts and ejaculating. [The victim] was crying throughout this time and was 11 years of age.
The fact that the victim was crying while the offender was pushing his penis on her vagina was admitted by the offender in his record of interview with police (Q538). He said that, after he pulled away, she was still crying and that she pulled up her pants and went to the toilet for a while (Q554). That single, horrifying incident is extremely serious on its own. But it was not isolated. The offender knew that his sexual assaults frequently made the victim cry. He told police that she went to the toilet “quite a lot after our sessions”, continuing, “I guess she goes and hides and even cry or something, not sure” (Q562). A further incident of extreme seriousness described in the agreed facts was when the offender raped the victim from behind when she was between 11 and 13, first inserting his penis in her vagina and then slowly inserting it in her anus and moving it in and out. The seriousness of such incidents is not diluted by their frequency.
The offender persisted in raping his daughter every time she went to him under the family’s shared parenting arrangements. He told police that, in the last period of his offending, he “started using [the victim] for sex on a more regular basis” (Q646). He later said:
I just kept using her for the same things. I knew she’d be coming round for the weekend and I’d just, yeah, get ready for it really because, yeah, we’d have dinner like we do, play video games, watch movies, whatnot, and then go to bed and I’d start on her, start rubbing her up, getting her ready, tell her to take her clothes off and then use her whichever way I felt at the time (Q757).
He said that involved “straight up sex” and “get her back to the sucking my penis part (Q758-759).
This most depraved period of offending at the last house occupied by the offender continued notwithstanding his having “a couple of frights along the way” about being caught (Q915). The school had been in contact over the victim’s worrying behaviour such as drawing skulls and things she had written in the back of her school books. The offender told police he “lied” his way through those discussions. Then the victim’s mother confronted him directly after seeing damning messages on the victim’s phone. At that time, the victim was eleven or twelve. The mother asked the victim directly (in the presence of the offender) whether he was doing anything to her. The victim denied it. The offender later told her she was a good girl and that he would buy her whatever she wanted. The offending then continued for another 18 months.
In my assessment, a sentence of imprisonment with a starting point of 16 years for this horrendous course of offending against a young child was unreasonable or plainly unjust in the sense in which those terms are understood in the jurisprudence. The Director noted in his submissions that the non-parole period is less than the period of offending. While the point was rhetorical, the comparison gives poignant expression to the seriousness of the offence and the requirement for the punishment imposed to recognise the harm done to the victim.
For those reasons, I would allow the appeal and resentence the offender to a term of imprisonment starting at 20 years which, after deducting 25% for the plea, gives a sentence of imprisonment for 15 years. In the absence of any contest on this issue, I would maintain the proportion of the total term reflected in the non-parole period fixed at first instance, which was 62.5%, giving a non-parole period of 9 years and 4 months.
Elkaim J:
I have had the benefit of reading, in draft form, the decision of McCallum CJ. I agree with her Honour’s reasons and the orders to be made. I would however like to express my views in a slightly different manner.
The respondent was sentenced on 4 February 2022 to a term of imprisonment of 12 years, commencing on 12 July 2021 and ending on 11 July 2033. A non-parole period of seven years and six months was imposed, to expire on 11 January 2029 (R v Ashton (a pseudonym) [2022] ACTSC 27).
The respondent had pleaded guilty, on 14 September 2021, to a single count of engaging in a sexual relationship with a child under special care, contrary to s 56(1) of the Crimes Act 1900 (ACT). The maximum penalty is 25 years’ imprisonment.
The imprisonment for 12 years had been produced by reducing a starting point of 16 years by 25 per cent to reflect the utilitarian value of the guilty plea.
The appellant, the Crown, does not challenge the proportion of the non-parole period (62 per cent), nor does it say that the discount of 25 per cent was inappropriate. Rather the appellant says that the 16 years starting point is manifestly inadequate.
The principles relating to an appeal on sentence by the Crown were summarised in R v Nicholas; R v Palmer [2019] ACTCA 36 (Murrell CJ, Mossop and Rangiah JJ) (Nicholas) as follows:
66.A claim that a sentencing judge has erred in the exercise of their discretion calls into question a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665, and in this Court see, for example, Henry v The Queen [2019] ACTCA 5. An appellate court must respect the wide discretion of the sentencing judge concerning an appropriate sentence.
67. The principles applicable to any appeal alleging that a sentence is manifestly wrong were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
• Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.
• The relevant test is whether the sentence is unreasonable or plainly unjust. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice.
• In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles.
• It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence. (citations omitted)
68. In the case of Crown appeals alleging manifest inadequacy of a sentence, the correct approach was recently summarised in R v Rappel [2019] ACTCA 11 at [10], where the Court stated:
As this Court said in R v Lee [2017] ACTCA 30 at [53], a Crown appeal against sentence is a “unique species of appeal” … Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke (1996) 2 VR 520 at 522:
(a) to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(b) to enable the Court to establish and maintain adequate standards of punishment;
(c) to ensure uniformity in sentencing, so far as the subject matter permits.
Consistent with the above principles, another important element in the consideration of a Crown appeal and sentence is to look at the proportionality of the offending to the seriousness of the crime. In The Queen v Avery [2018] ACTCA 57 (Murrell CJ, Mossop J, Robinson AJ), this Court listed the following as an example of a justification for a Crown appeal:
To correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that public confidence in the administration of justice can be maintained (Paragraph 6(c)(v)).
Although there was one count in the indictment in this matter, the criminal acts were many. Section 56A is specifically designed for this type of offence, namely where offending occurs frequently over a long period of time and in the course of a relationship, in this case father and daughter. This point was explicitly made by the sentencing judge, from [3]:
3.The offender was born in October 1983 and was the father of the victim. He engaged in sexual activity with the victim from the time that she was six years of age until she was 14 years of age. The short statement of summary of the facts asserts that he in fact had sexual contact with her a minimum of one to two sexual acts per month. One need only do the mathematics of the number of months between early 2013 and February 2021 to appreciate the large number of acts committed by the offender which constitute the offence.
4. An illustration of that, if I may just go somewhat ahead in the facts, is the statement in the Agreed Statement of Facts that, in the period of time that the offender lived at Kambah, which I am informed on the facts is from November 2017 to February 2021, a period I calculate conservatively as three years and two months - but which could be as long as three years and four months - he admitted to, and in fact volunteered to the police that he was committing acts of penile penetration with the complainant at least twice each time she stayed with him. She, having stayed with him every second or third weekend during that period.
5. Calculating that number by reference to one visit per month, which is an understatement based upon that estimate, I calculate that to be a minimum of 76 separate acts of penile penetration of the victim, which is clearly a significant extent of criminality on the part of the offender.
The primary judge set out the facts in detail. The following is a summary:
(a)The respondent and the victim’s mother commenced a relationship in 2002.
(b)The victim, a girl, was born in 2006.
(c)The respondent and the victim’s mother separated in 2008.
(d)The victim resided with the respondent from time to time in accordance with custody arrangements that had been agreed by her parents.
(e)The offending occurred when the victim stayed with the respondent. The first offence happened when she was six years of age.
(f)Initially the offending involved the indecent touching of the victim both above and below her underwear.
(g)The first act of sexual intercourse occurred in the shower at the respondent’s home. The respondent placed his penis into the vagina of the victim. She was then somewhere between six and eight years of age. The respondent told the victim that the events were “their secret”.
(h)In September 2014 the respondent began to share premises with another man. When the victim stayed with him, she slept in a double bed with the respondent.
(i)Under the custody arrangements the victim stayed with the respondent, usually every alternative weekend.
(j)Although the respondent changed address from time to time, the sexual activity continued and included indecent touching, penile vaginal intercourse and the respondent placing his penis in the victim’s mouth.
(k)Sometime around 2018 or 2019, the respondent performed anal intercourse upon the victim.
(l)In July 2019 the victim’s mother became suspicious of sexual activity between the respondent and the victim. She confronted the respondent who denied any wrongdoing. The victim, sworn to secrecy and no doubt scared, confirmed the denial.
(m)Notwithstanding the confrontation, the offending continued to the extent, as summarised by the sentencing judge that the respondent “had sexual intercourse with the victim every time she stayed with him, at least twice each time she stayed with him, and that she stayed with him every second or third weekend during that period of time” ([25] of the sentencing reasons).
(n)The offending stopped after the victim’s mother read certain text messages between the victim and another person. This occurred in July 2019.
(o)The police then spoke to the respondent who admitted his misdeeds. He also added details that had not emerged from the victim. In addition, he told the police that he sometimes used condoms but at other times did not.
(p)The offending occurred when the respondent was between the ages of 29 and 38 and the victim was correspondingly between six and 14. His Honour noted the significance of the difference in age.
To add to the horror of the offending and the culpability of the respondent, the sentencing judge pointed out the following:
35.In answer to question 441 of the interview, when asked about a particular act, as I would understand the course of the interview, of sexual assault, the offender was asked “Has she never said anything?”. The answer of the offender was “She’s never asked me to stop. She’s never told me to get off, never told me once, ‘Don’t.’”. As if that were significant.
36. He went to be asked at question 647 with this question, “Tell us about the first time that you remember penetration”, answering, “Well, just messing around on the bed, fingering and fondling each other. By then, sometimes, she was kind of a little into it.”
37. On the same page of the interview at question 653, his answer reads “Yeah, by the time we moved into Kambah, she was, you know, maturing, becoming a lady. She was a little more aware of what we do, and sometimes she’d press up against me, and I’d find her wet and ready to go. So I was kind of – my fingers started finding my way in there, yes.”
His Honour observed that the above answers reflected “the complete lack of insight into the character of the relationship that he had with his child. There could be no suggestion whatsoever that a child so young could be encouraging him to permit sexual assaults to occur”.
In relation to objective seriousness, after considering the applicable principles, the sentencing judge came to this view, at [85]:
I would categorise the seriousness of the offending as below the worst category of offending of this type but just below that category and not well below that category of offending as identified by counsel for the offender.
The appellant does not submit that this categorisation was incorrect. Rather the appellant says that the finding of objective seriousness when factored against the maximum penalty of 25 years, should have produced a starting point well above 16 years.
His Honour was cognisant of the relationship between the maximum penalty and the finding of objective seriousness, but he was also aware that other factors were to be considered. As he stated at [86]:
As Hulme J correctly pointed out (in Mills v R [2017] NSWCCA 87), the assessment of these matters is not capable of mathematical precision. But it is incumbent upon the court to endeavour to categorise the offending in the context of using the maximum penalty as a yardstick so that the commencement of the appropriate sentence, before any particular discount can be provided, can be understood. Of course the commencement point of the sentence includes not only consideration, as I have pointed out of the objective seriousness of the offending, but a consideration of the relevant mitigating factors other than those requiring an objective calculated discount.
Having made the above observation his Honour then went on to examine the comparative cases with which he had been provided. He said:
89.Those authorities provide some guidance as to an appropriate penalty. But every case has to be decided on its own facts and it might be thought, in reality, that the objective facts of the matter I am dealing with now are more serious than any of the identifiable supposedly comparative cases in this jurisdiction at least. But I have taken those other cases into account.
90. The comparison with other cases needs to bear in mind factors which vary of course from case to case – the respective ages of the victims, the period of time over which the offending occurred, the character of the conduct of the offender and the frequency of it. When one analyses the facts of this matter by reference to the facts of the other matters, one can see both as to the character of the conduct, the frequency of it and the period of time over which it occurred, this matter is more serious.
Notably his Honour recognised that the objective seriousness of the present matter, because of the frequency of offending and the lengthy time over which it occurred, rendered it more serious than the offending in the comparative cases.
His Honour then referred to the subjective features of the offender in order to gauge their effect on the final term of imprisonment. In addition, he noted the offender’s submissions that his assistance to the authorities, as envisaged in s 36 of the Crimes (Sentencing) Act 2005 (ACT), could lead to a further discount, perhaps beyond that derived from the plea of guilty. However, the submission was said to apply only to the non-parole period. His Honour did not allow any specific a discount, but stated, in [94]:
As I said, I am prepared to take into account that the matter is one of mitigation, but I do not believe that there is a need to give a discreet discount to the non-parole period. The non-parole period I have fixed provides sufficient time for the offender to adjust to community living on his release, and reflects a recognition of the subjective circumstances of the offender favourable to him, such as the absence of other convictions of a similar character, such as recognition of his industry and his private life, recognition of the difficulties he has had in his life in relation to his health, the fact that the offender - as I have said - has expressed contrition in the manner that has been discussed.
His Honour then concluded in this way:
98.I am required to have regard to the cultural background, character antecedence, age, physical and mental condition of the offender and I am also required to - as I pointed out - have regard to the sentencing practices that exist at the present time. As with other legislation in other jurisdictions, it is now the case when sentencing in relation to conduct over a period of time that might be of some age, that the court is to have regard to current sentencing practice, I have endeavoured to do that. I am required also to have regard to the issue of the purposes and reasons for the offending. I note in that regard the understanding the offender had of the wrongfulness of his conduct at an early stage, as his own counsel identified in his helpful submissions to me, and is reflected well in the comments the offender made to his friend before he was arrested, and to the investigating police.
99. On reflection of s 33(1)(w) of the Sentencing Act, by reference to the comments the offender made that I quoted from the record of interview, he had a deluded belief that the victim in some way either invited him to sexually assault her or enjoyed the prospect of that occurring. This is relevant to the assessment of his remorse.
100. These sentencing exercises of course are difficult ones. But it is clear as the Crown has correctly pointed out this is a most serious case, and a very substantial penalty must be imposed upon the offender to reflect the weight to be given to adequate punishment, general deterrence, and personal deterrence. I have had regard to s 10 of the Sentencing Act. Of course, no other penalty other than imprisonment can be imposed in this particular matter.
Returning to Mills (quoted by the primary judge at [86]), the respondent submitted that the facts in that case were arguably worse than those in the present matter. This was because of the coercive element that existed in Mills. The appellant replied that in Mills the offending had occurred when the victim was between the ages of 11 and 14, whereas in this case, the offending had commenced at age 6 and continued through to age 14. The appellant also referred to the decision of the Queensland Court of Appeal in R v SAG [2004] QCA 286 where, at [19], Jerrard J set out the following factors that might be taken into account in increasing a sentence:
• a young age of the child when the relationship thereafter maintained first began;
• a lengthy period for which that relationship continued;
• if penile rape occurred during the course of that relationship;
• if there was unlawful carnal knowledge of the victim;
• if so, whether that was over a prolonged period;
• if the victim bore a child to the offender;
• if there had been a parental or protective relationship;
• if the offender was being dealt with for offences against more than one child victim;
• if there had been actual physical violence used by the offender; and if not whether there was evidence of emotional blackmail or other manipulation of the victims.
The appellant submitted that all but two of the above factors were present, the two being that the victim had not borne a child to the offender and there was not more than one child victim.
The appellant also pointed to parts of the Record of Interview with the respondent which highlighted the depravity of the conduct and total lack of insight of the respondent. For example, there were these questions and answers:
Q 441 Was she – has she never said anything?
A She’s never asked me to stop. She’s never told me to get off.
Never told me once, “Don’t”.
…
Q 658 Yep.
AI’d get in bed, gave her a good night cuddle, and as I went to move away she sort of shimmied towards me and I was, oh, she once another cuddle, kind of thing. But I’d get closer in and, yeah, we’d start and she never initially - she never said anything about it. As I said, we never talked about it, so I’m not sure why, I just took her pushing up against me as she wanted me to play with her in…
Q 659Yep.
A…. A sexual nature, and a lot of the times, yeah, she did like being fingered.
The Crown pointed out that these assertions by the respondent were very different to the agreed statement of facts, where for example, it is recorded that the victim had said, when she was eight or nine years of age, that she was being “raped by her dad” (Appeal Folder A, page 14).
These references to the respondent’s statements certainly highlight his hypocrisy and depravity. But the issue here is not the level of offending. That was assessed by his Honour as just below the worst category and this assessment is not the subject of complaint, either by the appellant or the respondent.
Subject only to some debate about whether his Honour had underestimated the number of times offending had occurred, the appellant has no complaint with any of the findings or observations made by the sentencing judge. They all accord with an approach reflecting findings about the seriousness of the offending, reservations and observations concerning remorse and insight and a consideration, but not to any significant degree, of the respondent’s subjective factors.
Ultimately the Crown’s only viable point can be that there is a ‘disconnect’ between his Honour’s findings and observations and the starting point of 16 years. In other words, his Honour’s remarks should have produced a number significantly higher than 16 years. Put in yet different words, there is no error in any finding made by the sentencing judge other than the translation of his findings into the final determination of the length of the sentence. The appellant agreed with this categorisation.
When viewed against the seriousness of the offending, bearing in mind the regular sexual interference with the child over many years, that the interference included oral sex, penile-vaginal sex and anal sex, there can be little argument that the sentence was disproportionate to the offending. The victim will suffer for the rest of her life with the mental impairment that must flow from such persistent offending, emphasised by the offender having been the victim’s father and the person to whom she should have been able to look to for care and protection. He provided the precise opposite.
The impossibility of connecting the findings to the result is a form of latent error which must be corrected.
Bearing in mind the finding of objective seriousness, the maximum penalty of 25 years, the little impact of subjective features, and the taking into account of rehabilitation through the non-parole period (and not the head sentence) I am of the view that the re-sentencing regime, both as to the head sentence and the non-parole period, suggested by the Chief Justice is appropriate.
Collier J
I have had the benefit of reading in draft the judgments of the Chief Justice and Elkaim J. I respectfully agree with the reasons of their Honours, and further agree that the appeal should be allowed.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
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