The Queen v Ware (a pseudonym)
[2022] ACTCA 14
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Queen v Ware (a pseudonym) |
Citation: | [2022] ACTCA 14 |
Hearing Date: | 15 February 2022 |
DecisionDate: | 25 March 2022 |
Before: | Elkaim ACJ, McWilliam and Walmsley AJJ |
Decision: | See [115] |
Catchwords: | APPEAL - CRIMINAL LAW – Crown appeal against sentence – maintain sexual relationship with young person – consideration of the maximum penalty that applies to the offence pursuant to section 56(6) of the Crimes Act 1900 (ACT) – operation of Human Rights Act 2001 (ACT) s 25 on maximum penalty – operation of Legislation Act 2001 (ACT) s 84A – whether sentence manifestly inadequate – whether residual discretion to decline to intervene should be exercised |
Legislation Cited: | Crimes (Amendment) Act (No 3) 1991 (ACT) Crimes Act 1900 (ACT) ss 56, 92K, 92EA Supreme Court Act 1933 (ACT) s 37O |
Cases Cited: | Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions v Raddino [2002] VSCA 66; 128 A Crim R 437 Welch v United Kingdom (1995) 20 EHRR 247 |
Texts Cited: | Explanatory Statement. Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT) Tom Bingham, The Rule of Law (Penguin Books UK, 1st ed, 2011) |
Parties: | The Queen ( Appellant) Irving Ware (a pseudonym) ( Respondent) |
Representation: | Counsel R Christensen SC with C Muthurajah ( Appellant) J White SC ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Appellant) Legal Aid ACT ( Respondent) | |
File Number: | ACTCA 40 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 28 July 2021 Case Title: R v Ware (a pseudonym) Citation: [2021] ACTSC 180 |
THE COURT:
Introduction
The questions on this appeal are whether the sentence imposed on the respondent by Burns J on 28 July 2021 was manifestly inadequate and if so whether the sentence ought be set aside and the respondent resentenced by this Court.
For the reasons which appear below, we consider the sentence imposed by Burns J was manifestly inadequate and that the respondent should be resentenced. In our view the appropriate sentence should be one of four years and 10 months’ imprisonment with a non-parole period of two years and six months.
Background
The respondent pleaded guilty to the following three offences:
(a)Two counts of committing an act of indecency on a person less than 16 years of age contrary to s 92K(2) of the Crimes Act 1900 (ACT) (Crimes Act), carrying a maximum sentence of 10 years’ imprisonment;
(b)Maintaining a sexual relationship with a young person or a person under special care contrary to s 56(1) of the Crimes Act, carrying a maximum sentence (depending on when the offending occurred) of up to 25 years’ imprisonment.
For maintaining a sexual relationship with a young person, Burns J used a starting point of four years’ imprisonment, which he discounted by approximately 20 per cent to arrive at a head sentence of three years and two months’ imprisonment commencing 20 July 2021 and expiring 19 September 2024.
For the first act of indecency offence his Honour imposed a sentence of 12 months’ imprisonment, commencing on 20 July 2021 and expiring on 19 July 2022.
For the second act of indecency offence his Honour imposed a sentence of 16 months’ imprisonment commencing on 20 July 2021 and expiring on 19 November 2022.
Thus, the sentences for the two act of indecency offences were wholly concurrent with the s 56(1) offence.
His Honour imposed a non-parole period of 20 months commencing on 20 July 2021 and expiring on 19 March 2023. The non-parole period is approximately 52 per cent of the head sentence.
The Crown complains that both the head sentence and the non-parole period for the s 56(1) offence were manifestly inadequate.
Agreed Facts
Before Burns J the following facts, among others, were agreed.
The respondent is aged 70. The victim, born in 1986, is his son, one of four children born from the respondent’s marriage with the victim’s mother.
The respondent was a Christian pastor. He and his family moved around Australia in the course of his ministry. In 1996 the family moved to Canberra, living in the suburb of Bonython.
Between 1 January 1998 and 20 July 2002, the respondent sexually abused the victim, who was at that time aged between 11 and 15. This is the period relevant to the s 56(1) offence. The victim was able to recall two specific incidents of sexual abuse which occurred when he was under 16. These are the two incidents which are the basis for the two act of indecency offences. According to the agreed facts these incidents are ‘encompassed within the offence of maintaining a sexual relationship with a young person’.
Incident 1
In 1998 the victim was in Grade 6 at primary school. On an afternoon after school on an unknown date in that year the respondent and the victim were watching cartoons on TV on separate couches in the lounge room. After the cartoons had finished the respondent turned off the TV. The victim walked over to the respondent to hug and wrestle with him.
The two began to ‘play-fight’. In the course of that, the victim ended up positioned sideways on the respondent’s lap, and the respondent tickled the victim’s genitals over his clothing. The victim did not know what to make of this and continued to play-fight with the respondent.
The respondent then manoeuvred the victim so that he was lying with his back against the respondent’s lap, his head hanging over the respondent’s knees and his legs positioned over the respondent’s shoulders. The respondent then reached into the victim’s shorts, pulled out his flaccid penis, and began to masturbate the victim. The victim did not like this but was silent during the act. The respondent masturbated the victim for a few minutes and the victim’s penis became erect.
At some stage the victim’s mother appeared in the doorway to the lounge room. The victim felt relieved, hoping she would stop the respondent. But he gestured to her to leave the room by motioning with his free hand towards the hallway, while his other hand remained on the victim’s penis. His mother left the lounge room. The respondent continued to masturbate the victim for several minutes until the victim ejaculated. The respondent then pushed the victim away from him. The respondent said nothing to the victim, but walked to the bathroom where he washed his hands. The victim had never engaged in masturbation before this incident.
Incident 2
In 1999 the victim was in Grade 7 in high school. In the evening on an unknown date in either November or December 1999, the victim was walking towards his bedroom when the respondent stopped him in the hallway and asked him to cuddle in the victim’s bed. The victim agreed and both went to the victim’s bedroom.
The victim and the respondent lay facing each other, on the victim’s bed. The respondent placed an arm over the victim and began to play a game with him, one they had previously played before the family had relocated to Canberra, in which the two would quickly touch tongues. The respondent then began to kiss the victim and moved his tongue inside the victim’s mouth.
After a short time, the respondent pulled his own erect penis and his testicles out of his pants. The respondent grabbed the victim’s hand and forcibly placed it on the shaft of the respondent’s penis. This was the first time the victim had touched the respondent’s penis.
The respondent pulled down the victim’s pants and began to masturbate the victim while still tongue kissing him and while the victim was still holding the respondent’s penis.
The victim’s penis was becoming erect. The victim did not wish to be there, and he began to fantasise about a girl at his school. The victim ‘mounted’ the respondent and began to thrust his body onto the respondent’s body and against the respondent’s penis, which the respondent facilitated by opening his own legs. After a couple of minutes, the respondent pushed the victim off him and walked out of the bedroom.
Recurring Incidents
The respondent engaged in regular sexual activity with the victim, who was unable to recall further specific incidents. However, the victim recalled the respondent would summon him to the respondent’s bedroom on Saturday mornings and masturbate him or have him masturbate the respondent.
Complaints
In October to November 2014 the victim first disclosed the abuse, disclosing it first to his church pastor, then in turn to the victim’s wife, to the victim’s sister, and to the victim’s aunt.
On 25 November 2014 the victim flew to Melbourne, where the respondent and the victim’s mother were then living. The victim had a conversation with the respondent, which he covertly recorded on his phone. In the course of the conversation the respondent agreed what he had done had been wrong, there had been an inequality, that he could have stopped it, and that he had been the responsible party. He said ‘basically, feel as though I should be thrown in prison’. But then he said:
We used to have—joke and a bit of a belly laugh and just move on. Yeah. But there was—as you know, there was ever—there was no—nothing malicious about it. There was no—I didn’t—you know, the word ‘abuse’ is just so—how do I put it? It’s so bandied about today…But I would feel very offended if—if someone called me an abuser.
…
I do want to acknowledge to you that, um, I’ve um—I stuffed up majorly by not being the responsible father that I should’ve been.
…
I don’t want to avoid the fact that—that, um—that my—my foolishness, my sin has, ah—has damaged you. I’m not—I’m—it has. And um, I’m very sorry about that…
…
I never thought it was innocent mucking around … [a]nd I was wrong in not stopping it. … I’ve fucked up your life big time. …
…
I knew that it was going to catch up. I knew it. Every siren I hear, they’re catching up with me. Oh, oh, it’s only a fire brigade. Oh, it’s only an ambulance, phew, great, yeah. But when it’s the cops, I shit myself.
On 29 November 2014 the respondent met a minister of the Christian Reformed Churches of Australia and told him the victim wanted him to step down from his ministry due to his immorality and what he had done to the victim. When the minister asked what he had done the respondent said he should have said ‘No’ to the victim, and he would lie in bed in the morning with his children and the victim would move his hand to the respondent’s penis and play with it and he should have stopped him from doing this but had not.
On 3 December 2014 the respondent resigned from his position as minister. In his letter of resignation to his local church he said:
It is my said duty to inform you that I am resigning from my position in this local church and resigning from the denomination in general due to an allegation from a member of my family to do with abuse. Upon reflection, I admitted to my family this was the case, and am profoundly sorry for now being the cause of so much devastation and heartache.
On 6 December 2014 the respondent sent a message to a member of the congregation saying inter alia:
Hey Julie, about 10 yrs ago I didn’t realise my son was going through gender confusion issues and I sinned by allowing him to behave inappropriately toward me which has now come to light through my son.
On 7 December 2014 the respondent wrote to the victim’s wife inter alia:
I obviously wrongly assumed that what happened between [the victim] and me was no longer an issue, and that [the victim] had already processed my sinful activity without effect … I can honestly say that I didn’t realise at the time that my sinful behaviour had affected him so profoundly.
On 11 January 2015 the respondent exchanged text messages with the victim’s aunt, in the course of which he said:
Yes we did do what we thought at the time was so called ‘fun’ with our penis.
In 2015 the victim and the respondent exchanged letters concerning the sexual abuse.
The victim felt that the respondent was unrepentant and not taking responsibility for his actions.
In 2019 the victim spoke to police in Queensland about the abuse, and both Queensland and ACT police then investigated the matter.
In May 2020 the respondent was first advised by police he would be charged.
On 11 September 2020 he was charged with two counts of committing an act of indecency on a young person under 16. He entered pleas of not guilty.
On 9 March 2021 the Crown amended the dates of the two charges and also charged him with the offence of maintaining a sexual relationship with a child.
On 23 March 2021 he pleaded not guilty to the fresh charge.
On 20 April 2021, after he had been served with the Crown’s brief of evidence, he pleaded guilty to all three charges and was committed to the Supreme Court for sentence.
As Burns J later said, as part of the brief he would have become aware the victim had covertly recorded the conversation they had in 2014 when he was first confronted with the allegation of sexual abuse and had made some admissions.
Before Burns J the victim when reading his victim impact statement gave a moving account of the many ways his life had been adversely affected by the abuse.
Neither the Crown nor the respondent called evidence at the sentencing hearing. Both counsel gave Burns J written sentencing submissions, which they supplemented orally. Counsel for the respondent tendered without objection a report from psychologist Ms Bonnie Ingram. Also in evidence was a pre-sentence report.
The Appeal
By its notice of appeal, the Crown appealed from Burns J’s sentence for the s 56(1) offence, said it would not seek to put any further evidence before the Court of Appeal, and asserted the sentence imposed had been manifestly inadequate as to the sentence for the s 56(1) offence, for the aggregate sentence, and for the non-parole period.
The parties’ arguments relied in part on the maximum penalty applying to the s 56(1) offence. Section 56 provides relevantly:
56Sexual relationship with child or young person under special care
(1)A person commits an offence if the person—
(a)is an adult; and
(b)engages in a relationship with a child or a young person under the special care of the adult, that involves more than 1 sexual act.
Maximum penalty: imprisonment for 25 years.
(2)For subsection (1) (b)—
(a)a relationship includes repeated contact, interaction, engagement or association, of a sexual nature or otherwise; and
(b)the relationship may have started, or started and ended, before the amendment day; and
(c)1 or more of the sexual acts may have occurred before the amendment day; and
(d)a sexual offence that could be charged and proved under section 66B (Course of conduct charge—child sexual offences) can be 1 of the sexual acts.
(3)For a person to be convicted of an offence against subsection (1), the trier of fact must unanimously be satisfied beyond reasonable doubt that the relationship existed.
(4)However, in a proceeding for an offence against subsection (1), there is no requirement for—
(a)the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or
(b)the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence; or
(c)if the trier of fact is a jury—all the members of the jury to agree on the same sexual acts involved in the relationship.
(5)In a proceeding for an offence against subsection (1)—
(a)the prosecution is required to allege the particulars of the period of the relationship; and
(b)without limiting the Criminal Code, section 64 (2) (Extension of offences if required geographical nexus exists), a geographical nexus exists for this offence if—
(i) any part of the relationship was engaged in inside the ACT; or
(ii) at least 1 of the sexual acts occurred inside the ACT.
(6)For an offence against this section that occurred partly or wholly before 2 March 2018, the maximum penalty is the current maximum penalty, however, for a relationship engaged in over the period mentioned in table 56, column 2, the sentence imposed must not be more than the penalty mentioned in column 3 for that period.
Table 56
column 1
item
column 2
period of relationship
column 3
penalty
1 wholly before 24 December 1991 the lesser of—
(a) the current maximum penalty; and
(b) either—
(i) if 2 or more sexual acts alleged to be involved in the relationship are found to have occurred—the total of the maximum penalties for each offence constituted by the sexual acts; or
(ii) in any other case—the highest maximum penalty for the offences constituted by the sexual acts alleged to be involved in the relationship
2 started before, on or after 24 December 1991 and ended before 2 March 2018 the lesser of—
(a) the current maximum penalty; and
(b) the 1991 maximum penalty
3 started on or after 24 December 1991 and ended on or after 2 March 2018 the current maximum penalty 4 started on or after 2 March 2018 the current maximum penalty
Example—item 1, column 3, par (b) (i)
An offender is convicted of an offence against this section for a relationship that occurred wholly before 24 December 1991. The jury agrees that 3 acts of indecency occurred. The maximum penalty for committing an act of indecency at the time the acts occurred is 5 years imprisonment. A court may impose a sentence for an offence against this section of up to the total of the maximum penalty for the 3 acts of indecency, ie 15 years imprisonment.
Example—item 1, column 3, par (b) (ii)
An offender is convicted of an offence against this section for a relationship that occurred wholly before 24 December 1991. The sexual acts that were alleged to be involved in the relationship included conduct that, if sufficiently particularised, would have constituted an act of indecency in the third degree and 3 acts of indecency without consent. The jury agrees that 2 sexual acts occurred but were not unanimous about which ones. The maximum penalty for the sexual acts at the time the acts occurred are 10 years and 5 years imprisonment respectively. A court may impose a sentence for an offence against this section of up to the highest maximum penalty for the alleged sexual acts, ie 10 years imprisonment.
(7) …
…
(12)In this section:
1991 maximum penalty means the maximum penalty for this offence applying on 24 December 1991…
"current maximum penalty" means the maximum penalty mentioned in subsection (1).
The Crown submitted the s 56(1) sentence was manifestly inadequate, particularly since the maximum sentence was 25 years and having regard to current sentencing practice. Further, the Crown argued the offence is ‘relatively unique’, and the sentencing exercise for the offence requires ‘the application of particular sentencing considerations which, inferentially, were not appropriately applied…’.
The Crown submitted this Court would conclude the sentence imposed had been manifestly inadequate and that this is not a matter for the exercise of the residual discretion to decline to resentence an offender despite a finding of manifest inadequacy.
Further, the Crown asked the Court to use the appeal as an opportunity to provide an authoritative statement of principle (although not a “guideline judgement”) as to the features appropriate to be adopted by a sentencing judge when assessing the objective seriousness of a s 56(1) offence.
The Crown submitted too that although Burns J had noted the maximum penalty for the s 56(1) offence was 14 years, he ought to have had regard to the current maximum of 25 years.
The Crown submitted the maximum of 25 years reflects the seriousness with which the offence is to be regarded and provides a starting point of a significant period of imprisonment. Inferentially, Burns J should have had regard for it but did not.
The Crown specifically did not submit Burns J’s assessment of objective seriousness had been wrong, but contended that an offence of this type involves consideration of particular matters which will ‘lead to the correct determination of the objective seriousness of the offence the subject of sentence.’
By reference to authorities from the ACT and other jurisdictions with the same or analogous offences, the Crown submitted the following non-exclusive considerations inform the assessment of objective seriousness for the offence of sexual relationship with a child:
(a)The duration of the relationship;
(b)The nature of the ‘contact, interaction, engagement or association’ engaged in, including whether there was any grooming, penetration of any type, or ejaculation;
(c)Frequency or regularity of the ‘contact, interaction, engagement or association’;
(d)Location of the offending;
(e)Circumstances in which the relationship engaged in ended;
(f)Age of the victim and the age disparity to the offender;
(g)Any risk of pregnancy or sexually transmitted disease;
(h)The power dynamic between the victim and the offender, including vulnerability of the victim, breach of trust, position of authority, exploitation or dominance; and
(i)Whether there had been any physical violence, threats of violence, emotional manipulation, persuasion, coercion, or illicit drug involvement.
The Crown emphasised that the actus reus of the offence is the relationship itself.
The Crown referred this Court to sentencing outcomes in the ACT and elsewhere, which, it was submitted, showed even in the absence of serious penetrative acts, a frequency of serious sexual conduct over an extended period, particularly where there is a familial relationship, merits a sentence beyond four years imprisonment, which was Burns J’s starting point before applying a discount on account of the guilty plea.
In the course of referring this Court to decisions from other jurisdictions the Crown referred to Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 where at [91] Murrell CJ observed that:
[S]entencing outcomes in the ACT are often more lenient than those elsewhere in Australia (even where the maximum penalties are the same), perhaps reflecting a greater emphasis on rehabilitation and an acknowledgement that there is little hard evidence that very long sentences support general or specific deterrence.
But the Crown submitted sentencing of sexual offenders does not involve the same emphasis on rehabilitation as other offences and requires that deterrence is a primary consideration in sentencing. The Crown submitted:
[T]he sentence imposed on an offender for sexual offending against a child in the ACT ought, after acknowledging differences in maximum penalties and sentencing regimes, be similar, if not the same, for the same type of offending occurring in other jurisdictions. There is no sound basis upon which ACT sentences for sexual offending, particularly against children, can be inherently more lenient than in other jurisdictions.
The Crown also submitted that sentencing practice for sexual offending must appropriately reflect punishment of the offender, specific and general deterrence, denunciation, and recognition of serious harm to the victim.
Harm to the victim, the Crown submitted, is of particular relevance to sentencing for sexual offending. The Crown said as to this harm it is encompassed in the court’s role in having regard for the ‘notion of social rehabilitation’ as described by Vincent JA in Director of Public Prosecutions v Toomey [2006] VSCA 90 at [21]–[22]. There, Vincent JA spoke of the need for a sentence to contain the appropriate balancing of values and considerations, in the absence of which, from the victim’s perspective, an apparent failure of the system to recognise the real significance of what has occurred in that person’s life as a consequence of the offence may well aggravate the situation. In that context his Honour observed that rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator, and that vindication of the victim in cases of this kind is profoundly important if the criminal justice system is to perform its role properly.
The Crown accepted the Court must take into account the offender’s subjective matters. Here they included that he was at the time of sentence aged 69, with no criminal history. He had been a pastor for 34 years. He resigned when confronted about this offending. The psychological report in evidence was said to have revealed ‘nothing of significance in his favour’, and was consistent with the pre-sentence report finding that his empathy was superficial.
The Crown submitted therefore that the sentence imposed did not reflect the objective seriousness of the offending, or the community’s expectation of sentencing as reflected in the maximum penalty. It was not consistent with current sentencing practice, and to allow it to stand would mean an erosion of the standard of sentencing for offences of this kind and would undermine public confidence in the administration of justice in the ACT.
The Crown submitted this Court would find the sentence manifestly inadequate, and that there are no factors in favour of exercising the residual discretion conferred by s 37O of the Supreme Court Act1933 (ACT) (Supreme Court Act) to decline to resentence the respondent despite a finding of manifest inadequacy.
In that context the Crown submitted that it had had no role in guiding the sentencing court into error.
The respondent submitted (in summary):
(a)The Crown had not established a starting point of four years for the s 56(1) offence had been inadequate.
(b)The Crown was incorrect in identifying the maximum penalty for the offence as 25 years. In fact, it was 14 years.
(c)This Court should not provide what is in effect a guideline judgement.
(d)The cases relied on by the Crown do not show the sentence was manifestly inadequate.
(e)Thus, the appeal should be dismissed.
In relation to the issue as to whether the maximum penalty for the s 56(1) offence was 14 years or 25 years, the respondent based his submission on ss 25(2) and 30 of the Human Rights Act 2004 (ACT) (HRA):
25Retrospective criminal laws
…
(2)A penalty may not be imposed on anyone for a criminal offence that is heavier than the penalty that applied to the offence when it was committed. If the penalty for an offence is reduced after anyone commits the offence, he or she benefits from the reduced penalty.
…
30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
The respondent drew attention to the analogue of s 25(2), namely s 4F(1) of the Crimes Act 1914 (Cth), as follows:
4FEffect of alterations in penalties
(1)Where a provision of a law of the Commonwealth increases the penalty or maximum penalty for an offence, the penalty or maximum penalty as increased applies only to offences committed after the commencement of that provision.
…
Also relevant to the construction of s 56 of the Crimes Act is s 84A of the Legislation Act2001 (ACT) (Legislation Act), which says:
84A Creation of offences and changes in penalties
(1)…
(2)If a law increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the law commences.
…
(4)…
(5)This section is a determinative provision.
NoteSee s 5 for the meaning of determinative provisions, and s 6 for their displacement.
That s 84A is a determinative provision has significance for the approach the Court takes to construing s 56 of the Crimes Act. Section 5 provides relevantly:
5 Determinative and non-determinative provisions
(1) This Act consists of determinative and non-determinative provisions.
(2) A determinative provision is a provision of this Act that is declared to be a determinative provision.
Section 6 of the Legislation Act says:
6 Legislation Act provisions must be applied
(1)A provision of this Act must be applied to an Act or statutory instrument, in accordance with the terms of the provision, except so far as it is displaced.
(2)A determinative provision may be displaced expressly or by a manifest contrary intention.
Applying the above provisions, the respondent submitted a law of the ACT which increases the penalty for a criminal offence is a determinative provision, and such a provision may only be displaced expressly or by a manifest contrary intention, neither of which had occurred here when s 56 was introduced into the Crimes Act.
The Crown submitted that s 56 is to be construed so as to provide a 25-year maximum for all offences, whenever occurring, subject to a cap on the sentence imposed, the cap represented by the maximum sentence at the time of the offending. That was the way the section was construed by Mossop J in R v Kellan (a pseudonym) [2021] ACTSC 314 (Kellan). At [22] Mossop J said (referring to s 56(6) Crimes Act):
The terms of s 56(6) identify that for an offence that occurred partly or wholly before 2 March 2018, the maximum penalty of 25 years remains but that there is a limit on the sentence that may be imposed. Therefore, while the appropriate sentence is assessed by reference to the maximum penalty there is a cap on the actual sentence that may be imposed.
The Crown argued that this Court should adopt the same construction.
As to the interaction between s 56 of the Crimes Act and the HRA, the Crown argued that s 25(2) of the HRA does not forbid an increase in the maximum penalty. It merely forbids the imposition of a ‘heavier’ penalty than that obtained at the time the offence was committed. Further, there was a contrary intention manifest, from the words in s 56(6) “For an offence against this section that occurred partly or wholly before 2 March 2018, the maximum penalty is the current maximum penalty”, which incorporates a reference to a maximum of 25 years together with retrospectivity.
The Crown submitted that by providing a cap on the ultimate sentence, the Legislative Assembly had complied with the HRA.
As to the operation of s 84A of the Legislation Act, the Crown submitted the intention to displace its effect was both express and alternatively manifest from the words in s 56(6) “For an offence against this section that occurred partly or wholly before 2 March 2018, the maximum penalty is the current maximum penalty” which incorporate a reference to a maximum of 25 years together with retrospectivity.
Consideration
Crown Appeal Principles
Crown appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: The Queen v TW [2011] ACTCA 25; 6 ACTLR 18 at [3].
In The Queen v Lindsay [2020] ACTCA 25 at [29] Murrell CJ, Mossop J and Crowe AJ said:
[A]n appeal court must respect that a sentencing judge exercises a wide sentencing discretion. A Crown appeal against the inadequacy of a sentence should be instituted sparingly but may be appropriate where a sentence is so manifestly inadequate as to demonstrate “error in principle” or for the purpose of providing “governance and guidance” to sentencing courts.
What is the applicable maximum penalty?
In his Honour’s sentencing reasons, Burns J dealt with the maximum penalty at [3] relevantly as follows:
Maximum penalties
3. The maximum penalty currently prescribed for the offence of maintaining a sexual relationship with a child is 25 years’ imprisonment. Due to the dates between which this offence was committed and the provisions of the Crimes Act at that time, the
maximum penalty that may be imposed for the present offence of maintaining a sexual relationship with a child is 14 years’ imprisonment. …
No doubt because the section is relatively new, there has been little judicial consideration of s 56(6). In our view and for reasons that follow, the respondent’s submissions as to the proper construction of the section should be accepted.
The offence of maintaining a sexual relationship with a child was first introduced to the Crimes Act in 1991 by the Crimes (Amendment) Act (No 3) 1991 (ACT) as s 92EA. In 2017, in part, to implement the recommendations of the Royal Commission into Institutionalised Responses to Child Sexual Abuse, a new section, s 56, was introduced to the Crimes Act by the Crimes Legislation Amendment Act 2018 (ACT). Section 56 incorporated a version of s 92EA, and what had previously been s 92EA was repealed. When some construction difficulties in the newly introduced s 56 were exposed (see KN v The Queen [2019] ACTCA 37; 14 ACTLR 289; R v EN [2019] ACTSC 354), the section was amended.
The current version of s 56, set out at [43] above, was introduced by the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT).
According to the Explanatory Statement and Human Rights Compatibility Statement (the Explanatory Statement), the section was introduced to ‘reflect relevant maximum penalties of the time the offence occurred’. The Explanatory Statement had specific regard for s 25(2) of the HRA, saying:
e. On sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application. (4)
…
The amendments in the Bill engage and limit the right to protection from retrospective criminal laws (section 25 HRA). The Bill amends section 56 of the Crimes Act to confirm that it has retrospective effect (retained from the current provision) and amends the maximum penalty so that, depending on the period of the relationship, the penalty imposed does not exceed given penalties which reflect relevant maximum penalties of the time of the offending. (23)
…
However, the substituted section 56 permitting charges to be laid retrospectively does not offend s 25 of the HR Act. Section 56(6) provides that where the offence occurred wholly or in part before the amendment day, while the maximum penalty is that in section 56(1), the sentence imposed must not exceed given penalties, which reflect relevant maximum penalties of the time the offence occurred. (26-7) (emphasis added)
…
Depending on the circumstances of the offending, the maximum penalty will be higher than the maximum penalty available under the original provision and in others it will be less. However, on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application. (28)
…
[T]o ensure compatibility with section 25 of the HR Act, for an offence against section 56 where the period of the relationship occurred wholly or in part before 2 March 2018, the imposed sentence must not exceed given penalties determined by the period of the relationship- as detailed in Table 56. (33)
(emphasis added)
The proper construction of s 56 and the maximum penalty to be applied may be explained in four steps. First, consideration is given to the text. The starting point is s 56(1), prescribing a maximum penalty of 25 years for the offence. A qualification is then introduced by s 56(6), with lesser maximum penalties for offences referred to in Table 56. For these offences the word ‘penalty’ is used instead of ‘maximum penalty’. However, column 3 contains the expression ‘maximum penalty’. Accordingly, the word ‘penalty’ in the text of s 56(6) (line 4) should be construed as a shorthand way of saying ‘maximum penalty’. The effect of Table 56 is that for conduct that occurred before the amendment commenced on 2 March 2018, the maximum penalty that may be imposed is that which operated at the time the relationship concluded.
The second step is to consider how the applicable provisions of the HRA and the Legislation Act operate on the section. It is clear from both s 84A of the Legislation Act and s 25(2) of the HRA that the maximum penalty for the respondent must be 14 years and not 25 years.
To the extent that there is any argument to the contrary, s 56(6) of the Crimes Act must be construed, if possible, in such a way that the provisions in the Crimes Act and the HRA can operate concurrently (pursuant to s 30 of the HRA). In the present case, we accept the respondent’s submission that this can be achieved by construing the words in s 56(6) “the sentence imposed must not be more than the penalty mentioned in column 3 for that period” as meaning that the relevant maximum penalty is that applying before the increase in penalties, namely 14 years’ imprisonment.
Third, regard may be had to extrinsic material to work out the meaning that best achieves the purpose of the provision (see ss 139-142 of the Legislation Act). It is clear from the extracts of the Explanatory Statement set out above that s 56(6) in its current form was intended to conform with s 25(2) of the HRA.
Fourth, again by reference to the text itself and the Explanatory Statement, there is no ‘manifest contrary intention’ to displace the effect of s 84A of the Legislation Act (see Legislation Act s 6(2), extracted above). Although the Crown submitted the intention to displace was manifest from the reference to a maximum of 25 years together with retrospectivity in s 56, that submission fails to take into account all the words in s 56(6) and ignores the effect of Table 56. Further, it cannot be accepted given the significant emphasis on compliance with HRA s 25(2) in the Explanatory Statement.
There is no substance to the Crown’s argument that s 25(2) of the HRA does not prevent an increase in the maximum penalty or prevent a sentencing court from having regard to the current maximum penalty when sentencing offenders for conduct that occurred prior to the increase in penalty. Section 25(2) of the HRA contains the basic principle of the criminal law that no one should be punished more severely now than would have been possible at the time of the offence: Lord Bingham (writing extra-judicially), The Rule of Law, (Penguin Books UK, 1st ed, 2011) at 76. Underlying that principle is the concept that the criminal law ‘should be certain and its reach ascertainable by those who are subject to it’: see Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459 at [48], where the High Court went on to say in the same paragraph that the idea ‘underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability’.
The Crown’s argument appears to construe the words of s 25 of the HRA too narrowly. It is a construction not supported by the international jurisprudence regarding the equivalent human rights provisions, which s 31 of the HRA expressly provides may be considered in interpreting the human rights under the HRA. Here, the equivalent provisions in international law include Art 15 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR) and Art 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR).
In Welch v United Kingdom (1995) 20 EHRR 247 (Welch), where Art 7 was being considered, it was emphasised at [27] that in considering the concept of ‘penalty’, to render the protection offered by the relevant provision effective, “the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision”. The ECHR was there considering a confiscation order that was imposed following a conviction and for the purpose of punishment. It held at [34] that the measure amounted to a penalty because “the fact remains that the applicant faced more far-reaching detriment as a result of the order than that to which he was exposed at the time of the commission of the offences for which he was convicted”.
In R v PM [2009] ACTSC 24 at [72], Refshauge J referred to the consideration of Welch in R v Field [2003] 1 WLR 882 at [20], where the Court of Appeal of England and Wales referred to Welch as the leading case on the issue and adopted a number of criteria for determining what constitutes a penalty. Consistent with the approach of looking to the practical reality of the sentencing process and ensuring that the protection of the human right is effective in substance, s 25 has been applied in this jurisdiction “to permit consideration of sentencing patterns at the time when the relevant offence was committed, where those patterns were more lenient than current sentencing patterns”: R v Scheeren [2014] ACTSC 272 at [57], applied in R v WR (no 5) [2015] ACTSC 258 at [36]-[38] and more recently in relation to an offence under s 56 of the Crimes Act in R v EN [2019] ACTSC 354 at [10]-[11].
Although the Crown placed reliance on the passage from Kellan above, it does not appear from his Honour’s judgment that the proper construction of the section was the subject of detailed (or any) argument before his Honour, nor that s 25(2) of the HRA or s 84A of the Legislation Act were drawn to his Honour’s attention.
In the present case, a construction which involves using a 25-year maximum as a yardstick with the maximum sentence at the time of the offence as a ‘cap’ offends s 25(2) HRA because of the use made of maximum penalties in sentencing principles.
Such use in the reasoning process was discussed in Markarian v The Queen [2005] HCA 25; 228 CLR 357 the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) said at [30]-[31]:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. …
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. …
…
The Crown conceded that using the 25-year maximum as a yardstick in combination with a 14 year ‘cap’ would be expected to result in a heavier penalty than with a 14-year maximum penalty and no other ‘cap’. That is, on the Crown’s construction of s 56(6), an offender would face a greater detriment in that he would be punished more severely now than would have been possible at the time the offence occurred.
On the drafting of the provision, the meaning of the provision set out in Kellan, being the construction urged by the Crown, is available. However, as the respondent argued, the choice is between two constructions of s 56(6): one in a way which is compliant with s 25 of the HRA and s 84A of the Legislation Act, and another which is non-compliant. It is clear from the text and the Explanatory Statement that the Legislative Assembly, when passing s 56, had special regard for the safeguard in HRA s 25(2) and was concerned to ensure the right was not abrogated. Because a maximum penalty is also used as a yardstick in sentencing, the construction for which the Crown contends cannot be accepted. The preferable construction, and the construction that is mandated by s 30 of the HRA, is that s 56(6) imposes a qualification of the bare statement in s 56(1) and the opening words in s 56(6) that the maximum is 25 years. The qualification, incorporated by Table 56, pays regard to HRA s 25(2), ensuring that for offences before the passing of s 56, the only relevant maximum was that prevailing at the time of the offending.
It follows that no error has been established in the manner in which Burns J construed and applied s 56(6).
Factors to be considered on objective gravity
Contrary to the Crown’s submission, we do not consider it appropriate for this Court to provide a guideline or an authoritative statement of principle as to the factors a sentencing judge ought to take into account for a s 56 offence when considering objective criminality. They will inevitably vary from case to case but more importantly, on this appeal, it was not submitted there was any specific error in those to which Burns J had regard. Further, and contrary to the Crown’s submission, we do not see any danger of inconsistency in the way sentencing judges approach the issue of objective gravity for this offence.
When considering objective gravity Burns J took the following matters into account:
(a)The length of the relationship: it began when the victim was 11 and continued until he was 16.
(b)The relationship between the offender and the victim: here the respondent was the victim’s biological father and used his position to exercise control over the victim, taking advantage of the victim’s love and trust.
(c)The frequency of the sexual activity: here the sexual activity occurred regularly throughout the period of offending.
(d)The nature of the sexual contact: here there was no risk of pregnancy or disease. But there was penetration, in the form of tongue kissing.
(e)The presence or otherwise of coercive conduct such as threats: here because of his position as the loved father of the victim, the respondent was able to use his position to coerce the victim.
(f)Where the offending occurred: here the offending occurred in the victim’s home, where he was entitled to feel safe and nurtured.
(g)The purpose of the conduct: here the respondent engaged in the conduct for his own sexual gratification.
(h)The nature and extent of the sequelae of the offending on the victim: here the offending has had long lasting detrimental psychological effects on the victim, blighting his life and his relationships with others.
The Crown did not submit that Burns J had erred in his assessment of objective seriousness, that he had taken into account factors he ought not to have taken account of, or that he had omitted to take account of factors he ought to have taken into account. Indeed, the Crown disavowed any such criticism. Nor was any inconsistency of approach in other cases identified. The finding of Burns J as to the objective seriousness of the offence should be adopted.
Comparative Cases
The Crown cited a number of cases where courts in this and other jurisdictions had sentenced offenders for the same or a similar offence. As the facts varied widely and the maximum penalties also varied, we have not found them helpful in discerning any sentencing pattern or practice.
In this context we respectfully agree with Brett J in JWM v Tasmania [2017] TASCCA 22; 27 Tas R 365 at [132] that:
the variation and multiplicity of factors, conduct and frequency of conduct which may fall within the crime of maintaining a sexual relationship, result in this crime not being amenable to standardisation. Some assistance can be obtained from a consideration of cases involving multiple indecent assaults committed in a context of ongoing offending. However, it is necessary to exercise caution in comparing this case to any other particular case, given the multiplicity and diversity of factors which may be at play in respect of each particular case.
Manifest Inadequacy
In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] Gleeson CJ and Hayne J said:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution or identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
In Director of Public Prosecutions v Raddino [2002] VSCA 66; 128 A Crim R 437 at [30] Chernov JA (with whom Phillips CJ and Charles JA agreed) said:
This Court has often said that a ground of manifest inadequacy does not admit of a deal of argument. Once the relevant circumstances are ascertained, then the sentence upon its face appears manifestly inadequate or it does not.
Although the respondent submitted the Crown had not established that the sentence imposed was manifestly inadequate, we have formed the view that notwithstanding the finding that the primary judge did not err in construing the maximum penalty referred to in s 56, manifest inadequacy has been established.
On the finding of objective factors by Burns J, the conduct was clearly egregious, occurring over a protracted period, in the victim’s home, and at the hands of his own father. The victim suffered greatly from his father’s betrayal of him. We agree with his Honour’s assessment that this was a serious example of this offence. We further accept the Crown’s submission of the importance of recognising the harm to the victim for offences of this type. The impact on the victim was a matter described by Burns J as devastating.
We also take into account:
(a)The maximum penalty was 14 years’ imprisonment.
(b)The respondent pleaded guilty, not at the earliest opportunity, but at an early stage, shortly after his lawyers were served with the prosecution brief.
(c)His contrition was limited.
(d)His age when sentenced was 69. He is now 70.
(e)He was of good character. There was no suggestion this enabled him to commit the offences.
(f)He suffers from prostate cancer, which is managed by medication.
(g)He suffered physical, sexual, and emotional violence from his own father when he was young, and he witnessed physical violence on his mother by his father.
(h)He suffered physical, sexual and emotional abuse from his brother when he was young.
(i)He was bullied at school, including in a sexual way, by other boys.
(j)From the age of 12 for a period of two years, he was sexually abused by a next-door neighbour in the neighbour’s garden shed.
(k)He grew up feeling alone and ostracised from his family and has had minimal contact with his siblings for the last fifty years.
(l)He told the psychologist Bonnie Ingram that he feels shame for what he did to the victim and has had some ‘passive suicidal ideation in the context of his shame’.
(m)She observed “[a] significant factor relevant to [his] offending and future risk, are his poor understanding of how to get his needs for affection, connection and belonging met in a healthy way.” Thus Ms Ingram focused her attention when giving him psychological intervention on helping him develop “insight into his own emotional processes, including his pathway to offending, and understanding healthy ways to meet his emotional needs.”
(n)We accept, as his Honour found, that there is no real risk of re-offending, that his age means he will find prison more difficult than for a younger man, and he has not offended since 2002, so his lack of contrition does not raise the prospect of a risk of re-offending or cast doubt on his prospects of rehabilitation.
Most of the above subjective material was provided by the respondent to the psychologist and was not verified by the respondent. But it was not submitted by the Crown that Burns J should not accept it as accurate, nor that this Court should not accept it as accurate.
Ms Ingram did not find, expressly, any causal link between the violence witnessed by and visited on the respondent when he was young, and the offences he later committed. Nor did his counsel submit that to Burns J or to this Court.
When the above matters are assimilated, the starting point of 4 years and a non-parole period of 20 months are each manifestly inadequate. On their face, they do not properly reflect the gravity of the offending and the devastating harm to the victim which is life-long.
Has there been a miscarriage of justice?
As we are satisfied the sentence imposed by Burns J was manifestly inadequate, consideration should be given to the discretion in s 37O(3) of the Supreme Court Act to dismiss the appeal on the basis that no miscarriage of justice has occurred.
We are persuaded the Crown has negatived any reason why the residual discretion should be exercised: R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at [117] per Burns and Bromwich JJ.
The Crown has not delayed in appealing, the respondent’s release on parole is not imminent, and it is not suggested the Crown played any part in the formulation of the inadequate sentence.
Resentence
For the s 56(1) offence the sentence imposed should be set aside. We adopt a starting sentence of six years, and then apply a discount of 20 per cent for the plea of guilty, resulting in a substituted sentence of four years and ten months’ imprisonment.
The sentence is to commence on 20 July 2021 and expire on 19 May 2026.
The non-parole period set by Burns J will also be set aside. A non-parole period will be set of two years and six months’ duration, to commence on 20 July 2021 and expire on 19 January 2024.
The sentences for the two acts of indecency are confirmed, as are the dates of those sentences. Thus, all sentences will remain concurrent. This sentencing structure appropriately takes account of ‘totality’ considerations regarding the overall sentence.
Orders
For the above reasons, the Crown has succeeded and intervention is warranted on the appeal. The orders of the Court are as follows:
(1) The appeal is allowed.
(2) For the offence of maintaining a sexual relationship with a child (CC 2021/2625) the sentence imposed is set aside and in lieu thereof, the respondent is sentenced as follows:
(a) The offender is sentenced to a term of imprisonment of four years and ten months (reduced from six years on account of his plea of guilty) to commence on 20 July 2021 and expire on 19 May 2026.
(3) For the offences of committing an act of indecency (CC 2020/8257 and CC 2020/8258), the sentences are confirmed.
(4) The aggregate period of imprisonment is four years and ten months, commencing on 20 July 2021 and expiring on 19 May 2026.
(5) A non-parole period of two years and six months is set, commencing on 20 July 2021 and expiring on 19 January 2024.
| I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Acting Justice Walmsley and Acting Justice McWilliam Associate: Date: |
9
16
0