Tully v The Queen
[2016] ACTCA 11
•27 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Tully v The Queen |
Citation: | [2016] ACTCA 11 |
Hearing Date: | 24 March 2016 and written submissions |
DecisionDate: | 27 April 2016 |
Before: | Murrell CJ, Penfold and North JJ |
Decision: | Leave granted to appeal against the nonparole period. Sentence dates confirmed or amended in accordance with [36]. Nonparole period of 7 years and 3 months’ imprisonment fixed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – Concurrence of sentences |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5606 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) s 74 Supreme Court Act 1933 (ACT) ss 37N, 37O |
Cases Cited: | Allred v The Queen (2015) ACTLR 325 Markarian v The Queen (2005) 228 CLR 357 R v Tully (No 3) [2014] ACTSC 275 Tully v The Queen [2016] ACTCA 4 |
Parties: | Cameron Flynn Tully (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr S Drumgold (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 55 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 3 October 2014 Case Title: R v Tully (No 3) Citation: [2014] ACTSC 275 |
MURRELL CJ AND NORTH J:
On 6 June 2014, the appellant was found guilty of 18 counts of historical child sexual abuse. On 3 October 2014, he was sentenced to a total term of 14 years and 6 months’ imprisonment, with a nonparole period of nine years’ imprisonment (62% of the total sentence). The appellant appealed against the convictions.
On 17 February 2016, the Court set aside the verdicts and sentences relating to counts 1, 2, 3 and 5 and substituted verdicts of not guilty on those counts. Otherwise, the appeal was dismissed: Tully v The Queen [2016] ACTCA 4.
As a result, the Court must consider the structure of the remaining sentences. The nonparole period should be varied.
At a directions hearing on 24 March 2016, it was agreed that the resentencing exercise would proceed on the written summaries of argument that had been filed.
Remaining sentences
The following table sets out the sentences that were imposed by the trial judge.
Count Term of sentence Original dates 19 2 years 8 months 6.6.14 - 5.2.17 21 9 months 6.8.16 - 5.5.17 22 14 months 6.9.16 - 5.11.17 23 2 years 6.7.16 - 5.7.18 1 2 years 6.7.16 - 5.7.18 2 18 months 6.7.17 - 5.1.19 3 2 years 6 months 6.1.17 - 5.7.19 5 3 years 9 months 6.4.17 - 5.1.21 7 12 months 6.7.20 - 5.7.21 9 14 months 6.11.20 - 5.1.22 11 18 months 6.2.21 - 5.8.22 12 3 years 6.5.21 - 5.5.24 13 3 years 10 months 6.7.21 - 5.5.25 14 14 months 6.10.24 - 5.12.25 15 9 months 6.6.25 - 5.3.26 16 14 months 6.8.25 - 5.10.26 17 4 years 6.10.24 - 5.10.28 18 14 months 6.10.27 - 5.12.28 NPP: 7 years 9 months (9 years - backdated to effectively be 7 yr 9 months)
Power to restructure the remaining sentences and the nonparole period
Section 74 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) enables the remaining sentences to be restructured. It provides:
(1)If a court sets aside or amends a sentence of imprisonment imposed on the offender (whether on appeal or otherwise), the court may amend the starting day of any other sentence that has been imposed on the offender by the court or another court.
...
However, in relation to altering the nonparole period, s 74(5) provides:
(5)The term of a sentence, or the nonparole period of a sentence, must not be amended under this section.
A nonparole period may not be a “sentence” within the meaning of s 74. Part 5.2 of the Sentencing Act (which deals with the imposition of nonparole periods) distinguishes between “sentencing” an offender and “setting” a nonparole period. Section 74(5) distinguishes between a “sentence” and “the nonparole period of a sentence”.
Even if a nonparole period is a “sentence” or part thereof and s 74(1) of the Sentencing Act would otherwise enable a resentencing court to amend the starting date of the nonparole period, s 74(5) prevents the incidental amendment of the term of the nonparole period.
A resentencing court may be able to reduce the practical impact of an existing nonparole period by directing that it commence at a date prior to the date when the appellant went into custody, but such an exercise would, at least, violate the spirit of s 74(5).
The powers conferred on the Court of Appeal by s 37O(1) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) (which include the power to amend an order and to give any order that the Court considers appropriate) relate to “the order appealed from”, and the powers conferred by s 37O(7) (to increase, decrease or substitute a different sentence) apply to an “appeal against sentence”. In this case, there was neither an appeal against the order setting the nonparole period nor an appeal against sentence.
Consequently, as the position stands, the Court cannot (or, at least, should not) alter the length of the nonparole period.
However, on 24 March 2016, the parties consented to the Court granting leave to the appellant to appeal out of time for the purpose of enabling the Court to impose a different nonparole period. The Court will grant leave.
Fresh evidence
When the appellant was sentenced, there was no evidence that he suffered from any significant physical problem and the trial judge did not refer to such a problem in his sentencing remarks.
In his written submissions on the appeal, the appellant referred to the recent deterioration of a lower back condition from which he has suffered since 2008. The appellant is concerned that he will require major surgery while he is in custody.
On an appeal, the Court may receive further evidence: s 37N Supreme Court Act. Rule 5606 of the Court Procedures Rules 2006 (ACT) applies to applications to receive evidence on an appeal.
The appellant did not formally seek to adduce evidence of his medical condition and he has not complied with Rule 5606.
There are other important considerations.
First, the appellant has not appealed against sentence and has not sought leave to do so; the Court is dealing only with a conviction appeal and consequent resentencing.
Second, where further evidence is unlikely to alter the outcome of an appeal, the Court will be disinclined to receive it. In this case, the appellant does not say that he will be denied appropriate medical treatment while in prison. No doubt, the appellant’s back condition will be burdensome, whether or not he is in custody. Consequently, the proposed evidence could be of little assistance to the appellant.
We decline to allow the appellant an opportunity to adduce the evidence.
Submissions on restructuring of sentences and new nonparole period
The prosecutor submitted that the sentences should be restructured by removing the period of two years that is solely attributable to counts 1, 2, 3 and 5 (6 July 2018 to 5 July 2020), thereby reducing the total sentence from 14 years and 6 months’ imprisonment to 12 years and 6 months’ imprisonment. The prosecutor submitted that, because the existing nonparole period is 62% of the original total sentence, the Court should set a nonparole period that is 62% of the new total sentence, being an effective nonparole period of 7 years and 9 months’ imprisonment.
The appellant noted that his appeal against conviction had been successful in relation to 4 of the 18 original convictions, and that the total sentence referable to the successful part of the appeal was 4 years and 6 months’ imprisonment (6 July 2016 to 5 January 2021). He contended that the long period that he spent on bail should be taken into consideration. He submitted that, as sentencing was not an exact science, the original nonparole period of 62% should be regarded as a rough approximation of the appropriate nonparole period rather than a mathematically precise statement. He submitted that, had the jury returned a not guilty verdict on counts 1, 2, 3 and 5, then the trial judge probably would have made all sentences partly concurrent. He suggested that an appropriate degree of concurrency would result in a total sentence of 11 years and 2 months’ imprisonment (6 June 2014 to 5 August 2025) with a nonparole period of 7 years’ imprisonment (6 June 2012 to 5 June 2021, approximately 62% of the total sentence of 11 years and 2 months’ imprisonment). This proposal was “Option A” in the appellant’s written summary of argument.
Resentencing
The total period of the restructured sentence should reflect the appellant’s overall criminality (the “principle of totality”): Mill v The Queen (1988) 166 CLR 59 at 63.
At the relevant time, the maximum penalty for an offence of sexual intercourse with a person less than 10 years old was 17 years’ imprisonment. The maximum penalty for an offence of committing an act of indecency with a person less than 10 years old was 12 years’ imprisonment. The maximum penalty for an offence of committing an act of indecency with a person less than 16 years old was 10 years’ imprisonment.
The facts of the individual offences are summarised in our reasons for decision on the appeal against conviction: Tully v The Queen [2016] ACTA 4. The trial judge’s remarks on sentence contain a more detailed statement of the facts: R v Tully (No 3) [2014] ACTSC 275.
The resentencing exercise concerns 14 offences committed on nine separate occasions over the period 1991 to 1999, when the appellant was between about 17 and 26 years old. The offences involved seven young victims, one of whom was only about four years old at the time of the offence. The criminal conduct included one episode of penile/vaginal intercourse with a six-year-old child (count 17). Most offences occurred at times when the appellant had been entrusted to supervise the victims while their parents attended religious meetings at the rural property occupied by the appellant and his family.
In the sentencing remarks at [46], the trial judge said:
It is also clear that this was a pattern of behaviour that continued over approximately 10 years and was not a single isolated event. Your offences were brazen, revealing an arrogant belief that your victims would not report your crimes or that, if they did, they would not be believed. Sadly, this is precisely what happened to some of your victims. I am satisfied that you chose your victims because their age and the imbalance of power between you were such that you thought they were not likely to complain and, in any event, would not be believed. You chose your victims because they were young and vulnerable.
The trial judge noted the appellant’s subjective circumstances, including the facts that the appellant was a 40-year-old married man with five children who had no previous criminal history.
The trial judge referred to relevant sentencing considerations, including the appellant’s entitlement to be sentenced in accordance with the more lenient sentencing practices that applied at the time of the offences.
In applying the “principle of totality”, we have taken into account the objective and subjective considerations to which the trial judge referred, and the sentencing purposes and principles that he applied appropriately.
We have concluded that a total sentence of 12 years’ imprisonment will reflect the total criminality involved in the 14 offences that are the subject of the resentencing exercise.
We accept the appellant’s submission that the nonparole period imposed by the trial judge should be regarded as an approximation of the appropriate nonparole period rather than a mathematically precise statement. In setting a nonparole period, the sentencing court usually considers the relativity between the total sentence and the nonparole period, but this is not a determinative consideration and the usual relativity of between about 50 and 70% of the total sentence is not an “available range”. The raw length of the nonparole period is also important. For example, is the parole period long enough to enable supervised rehabilitation in the community?
The appellant has demonstrated no acceptance or remorse. There is a “moderate risk of sexual reoffending” and the appellant’s prospects of rehabilitation are uncertain.
The nonparole period that was set by the trial judge bore an appropriate relativity to the total sentence and, if a nonparole period that bears a similar relativity is imposed as part of the resentencing exercise, the appellant will remain in custody for an appropriate minimum period and on conditional liberty for an appropriate period.
Orders
The orders are as follows:
(1) The appellant is granted leave to appeal against the nonparole period set by the trial judge.
(2) The dates of the sentences imposed by the trial judge are confirmed or amended as follows:
Count Term of sentence New dates 19 2 years 8 months 6.6.14 – 5.2.17 21 9 months 6.8.16 – 5.5.17 22 14 months 6.9.16 – 5.11.17 23 2 years 6.7.16 – 5.7.18 7 12 months 6.1.18 – 5.1.19 9 14 months 6.5.18 – 5.7.19 11 18 months 6.8.18 – 5.2.20 12 3 years 6.11.18 – 5.11.21 13 3 years 10 months 6.1.19 – 5.11.22 14 14 months 6.04.22 – 5.6.23 15 9 months 6.12.22 – 5.9.23 16 14 months 6.02.23 – 5.04.24 17 4 years 6.04.22 – 5.04.26 18 14 months 6.04.25 – 5.6.26
(3) The Court sets a nonparole period of 7 years and 3 months’ imprisonment, from 6 June 2014 to 5 September 2021.
| I certify that the preceding thirty-six paragraphs are a true copy of the Reasons for Sentence of the Court. Associate: Date: |
Amendments
29 April 2016 Replace “5.12.21” with “5.11.21” Paragraph: [36]
PENFOLD J:
Background
In our judgment on the appellant’s appeal against his convictions (handed down on 17 February 2016), we invited the parties to make submissions about how the appellant’s remaining sentences (the surviving sentences) should be adjusted. Our decision to set aside his convictions on four of the 18 counts on which he had been found guilty by a jury disposed of the sentences imposed on those counts (the overturned sentences). The overturned sentences were to be served after some of the surviving sentences and before others, which necessitated at least some adjustment of the dates of the later surviving sentences.
The appellant did not initially appeal against his sentence. Nor has he applied for leave to appeal out of time against sentence. Whether an appeal should now be accepted against any aspect of his sentencing is a matter to which I shall return.
The original sentences and the dates within which they were to be served are set out in the judgment of Murrell CJ and North J at [5] above. There was considerable concurrency among the various sentences, applied not only in respect of offences against the same complainants or otherwise related offences but also among unrelated offences.
Appellant’s submissions
The appellant, who represented himself on the appeal, made submissions:
(a)about the period by which his head sentence needed to be reduced to take account of the setting aside of the four overturned sentences;
(b)proposing two alternative approaches to the re-sentencing, both of which went beyond simply adjusting the dates of the remaining sentences so as to reduce the head sentence by the period during which he would have been serving only one or more of those four sentences;
(c)identifying physical health problems that, although apparent some years before he was sentenced in October 2014, had been adequately managed until he suffered a serious relapse in late 2015 which, he says, will eventually require major back surgery; and
(d)suggesting that a further reduction in his total sentence would reduce the impact of those health problems.
Although the appellant did not seek leave to tender evidence in relation to his health problems (eg from the doctor who has advised that back surgery will be required at some time), his submissions about that matter could be treated as incorporating an implicit application for such leave. However, unless it appears that the appellant has an appeal on foot in which his health problems would be relevant, there would be no basis on which to grant such leave.
As noted, the appellant did not initially appeal against sentence. Section 74 of the Crimes (Sentencing) Act, however, permits the adjustment of the starting day of any other sentence imposed on an offender if a sentence of imprisonment is set aside (on appeal or otherwise). Thus, this Court should at a minimum, having effectively set four of his sentences aside, adjust the starting days of the 10 surviving sentences to which the appellant remains subject that began to run after the overturned sentences were to begin.
Respondent’s submissions
The respondent’s submissions, in short, were:
(a)that the four sentences set aside added two years to the appellant’s total sentence,
(b)that the original head sentence should therefore be reduced by two years,
(c)that this should be achieved by bringing forward by two years the dates of all sentences specified to commence after the start of any of the overturned sentences, and
(d)that the nonparole period should be reduced to take account of the two-year reduction in the head sentence.
Consideration
Adjustment of head sentence
The effect of the approach suggested by the respondent would be to reduce the total sentence from 14 years and 6 months to 12 years and 6 months. At first glance, this is an elegant and appropriate result.
The appellant submitted, however, that the effect of such an approach would be to deprive him of any concurrency between the first set of sentences (counts 19, 21, 22 and 23) and the remaining sentences (on counts 7, 9, 11, 12, 13, 14, 15, 16, 17 and 18) which would not begin until immediately after the end of the first set of sentences.
I was initially unconvinced by this submission, since the fact that the overturned sentences added only two years to the total sentence already reflected substantial concurrency within those sentences and with other surviving sentences. However, consideration of other mathematical relationships within the original sentencing has led me to conclude that the appellant’s submission is correct, and that the head sentence should be further reduced.
Of course, sentencing is not generally a mathematical exercise as such (Markarian v The Queen (2005) 228 CLR 357, Gleeson CJ, Gummow, Hayne and Callinan JJ at [37] to [39]). However, in this case it seems to me that the mathematics need to be considered, not only so that I may obtain a proper understanding of the structure and impact of the original sentencing but, perhaps more importantly, so that the appellant’s perspective on those matters can be understood.
In this case, the relevant mathematical relationships concern the amount of concurrency in the total sentence and in the overturned sentences.
First, the total period of the 18 sentences initially imposed, absent any concurrency, was 421 months (35 yrs and 1 month). The head sentence of 174 months (14 years and 6 mths) represented 41% of the total sentences imposed.
The total period of the 14 surviving sentences, absent any concurrency, is 304 months (25 years and 4 months). The proposed new head sentence of 150 months (12 years and 6 months) would represent 49% of the total of the surviving sentences.
That is, under the adjustment proposed by the respondent, the appellant would be required to serve a sentence equal to almost half the total of the individual sentences imposed, whereas his original head sentence represented just over 40% of the total of the individual sentences imposed.
Secondly, the total period of the overturned sentences now set aside (117 months) was 28% of the total of the original 18 sentences, but the total period during which those overturned sentences ran (54 mths) was 31% of the original head sentence. That is, the actual total term of the overturned sentences, including the concurrency provided, reflected a slightly higher proportion of the total head sentence than the total period of those sentences did of the total period of all 18 sentences. This suggests that the relevant offences were regarded as relatively more serious than other offences for which the appellant was sentenced. Certainly all four of the overturned sentences were at or above the median length of the original 18 sentences.
The totality principle may be summarised as requiring a court sentencing for multiple offences to impose a sentence appropriate to the totality of the criminal behaviour involved in the offences (Mill v The Queen (1988) 166 CLR 59, Wilson, Deane, Dawson, Toohey and Gaudron JJ at [8]). That principle provides guidance to a sentencer in determining concurrency and accumulation for multiple sentences.
The totality principle does not, however, require any particular mathematical relationship between the total period of the multiple sentences if they were to be served entirely consecutively and the total period that is required to be served after providing for any appropriate concurrency between two or more of the multiple sentences.
In some cases, the degree of concurrency provided will need to increase with the number of offences being dealt with, so as to ensure that the total sentence properly reflects only the totality of the offender’s criminality (this is commonly the case where an offender is being sentenced for a large number of relatively minor offences). That raises the possibility that a reduction in the total number of offences being sentenced for might require less concurrency among the various sentences imposed. That possibility provides some support for the proposition that the adjusted term of the surviving sentences need not involve the same degree of concurrency as the original head sentence.
Nevertheless, I consider that the appellant is correct in submitting that simply reducing his total sentence by the period during which he would only have been serving the overturned sentences may inadequately reflect the significance of those sentences in the original head sentence.
Noting my comments about the disproportionate role of concurrency as the total number of offences increases, I do not see that it is necessary to attempt to construct a new head sentence that bears exactly the same relationship to the total term of the surviving sentences as the original head sentence did to the total term of the 18 original sentences. However, I do consider that the adjustment to the head sentence as a result of the setting aside of four of the higher sentences originally imposed should not leave the appellant serving a new head sentence that represents a significantly greater proportion of the total term of the surviving sentences.
I consider that a new head sentence of 11 years and 6 months would be adequate to reflect the appellant’s total criminality. I would adjust the dates of the surviving sentences by beginning the sentences on counts 7, 9, 11, 12, 13, 14, 15, 16, 17 and 18 exactly three years earlier than the original dates specified, as shown in the table provided by Murrell CJ and North J at [5] above.
Nonparole period
There is then the question of the appellant’s nonparole period. The original nonparole period of nine years represented 62% of the original head sentence. A nonparole period of nine years would represent 78% of a head sentence of 11 years and 6 months. The respondent conceded in its submissions that the necessary reduction in the appellant’s head sentence should be reflected in a consequential reduction in the nonparole period, although not necessarily an exactly proportionate reduction in that period.
However, while s 74 of the Crimes (Sentencing) Act permits sentence dates to be adjusted as a result of changes to other sentences, it explicitly excludes reductions in nonparole periods in such circumstances. It is hard to see the logic in this provision, unless it was enacted in contemplation of nonparole periods being expressed only as proportions of the head sentence.
In the current circumstances, however, it would be quite unjust for the appellant’s nonparole period to remain at nine years.
The respondent, recognising this problem, suggested that the original nonparole period should be backdated so that the nonparole period to be actually served would represent the same proportion of the new head sentence as the total nonparole period did of the original head sentence.
I am not comfortable with the approach of backdating a nonparole period to a point earlier than the point when the actual sentence commenced or the point to which that actual sentence could appropriately have been backdated. Expansion of the cases in which notional sentences, or sentences having notional operation, are relied on is in my view unlikely to end well.
Despite that view, if backdating the nonparole period were the only way in which justice could be done to the appellant, it would have to be done. However, I would prefer to deal with the nonparole period, as proposed by Murrell CJ and North J, by giving the appellant leave to appeal his sentence, but only to the extent necessary to allow an adjustment of the nonparole period to take account of the new head sentence. On that appeal, I would reduce the nonparole period to roughly 62% of the new head sentence of 11 years and 6 months (7 years and 1 month), to run from 6 June 2014 to 5 July 2021.
Injustices arising from s 74(5)
I note in passing that this is not the first time that an ACT court has commented on an injustice caused by the operation of s 74, or has had to engage in procedural gymnastics in order to avoid such an injustice (see Allred v The Queen (2015) ACTLR 325 at [74]). Given the regularity with which sentencing legislation is amended, the failure to address this particular problem in that legislation suggests that such injustices are regarded as acceptable.
| I certify that the preceding twenty-nine paragraphs numbered [37] to [65] are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
7
6
3