York (a pseudonym) v The Queen
[2014] VSCA 224
•12 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0090
| PATRICIA YORK (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 September 2014 |
| DATE OF JUDGMENT: | 12 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 224 |
| JUDGMENT APPEALED FROM: | R v [York] (Unreported, County Court of Victoria, Judge Cotterell, 16 April 2014) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one charge of common assault and sentenced to five months’ imprisonment wholly suspended for 12 months –Whether the judge erred by not having regard to the penalty for the summary offence – Whether the judge took into account inadmissible material in a Victim Impact Statement – Whether the sentence imposed was manifestly excessive – Appeal allowed – Appellant resentenced to a fine without conviction.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr M Fitzgerald | Dr Martine Marich |
| For the Crown | Mr R A Elston QC | Mr C Hyland, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
Introduction
Pursuant to leave granted by a judge of this Court, the appellant has appealed against a sentence of five months’ imprisonment — which was wholly suspended for 12 months — imposed upon her by a judge of the County Court on 16 April 2014, following her plea of guilty to common assault.
For the reasons that follow, we would allow the appeal and re-sentence the appellant.
Grounds of appeal
The three ground of appeal are:
1.That the learned sentencing judge erred in failing to have regard to the maximum penalty for the offence of assault, as provided for by section 23 of the Summary Offences Act 1966;
2.That the learned sentencing judge erred in placing reliance on inadmissible material in the Victim Impact Statement, in a manner that was unfairly prejudicial to the appellant; and
3.That the sentence is manifestly excessive, having regard to the appellant’s plea of guilty, lack of prior convictions, the delay in charging the offence, age, personal circumstances, and the consequences of the sentence and conviction for the appellant.
The offending
In her reasons for sentence, the judge described the offending as follows:
In 2002, when the complainant … was approximately 14, she made an arrangement with a boy … to go to the movies with him. The complainant believed it to be a secret arrangement and she told you, as I understand it, that she was going with a girlfriend. The pair went to the movies and were walking home, and when they were near your house your husband … appeared in his vehicle and confronted your daughter and the boy she was with. The boy ran away and the complainant was then grabbed and driven home.
When they arrived at the house you began yelling at her for lying about where she had gone and with whom. You then grabbed a brown coloured computer cord and began to repeatedly whip the complainant … with it, causing her intense pain. …
The appellant’s offending came to light on 16 August 2012 when the complainant reported to police numerous sexual offences perpetrated upon her by the appellant’s husband. When spoken to by police, the appellant made a ‘no comment’ interview.
The appellant was arraigned with her husband on a joint indictment alleging assault and incest, she being charged with sexual offending on the basis that she aided and abetted her husband in his sexual predations. On 18 February 2014, the appellant was granted a separate trial. The following day, 19 February 2014, the prosecution accepted a plea of guilty to common assault in full satisfaction of the criminal proceedings against her.
Failure to have regard to penalty for summary offence — ground 1
Common assault is a crime at common law. A statutory maximum penalty of five years’ imprisonment is provided for.[2]
[2]Crimes Act 1958, s 320.
There is also a statutory summary offence of common assault which carries a maximum penalty of three months’ imprisonment.[3]
[3]Summary Offences Act 1966, s 23.
The appellant submitted that the judge was required, either by virtue of s 5(2)(a) of the Sentencing Act 1991 or ‘by a broader principle of fairness’, to have regard to the lesser maximum penalty for the offence when charged as a summary offence. It was further submitted that the summary offence is not one created by statute. Rather, the statute assumes the existence at law of common assault and provides for summary disposition of the offence, and the maximum penalty when so charged. Common assault is therefore — so the submission continued — an offence punishable by two different maximum penalties according to the mode of disposition of the offence. The appellant submitted that, despite the High Court’s recent decision in Elias[4] the sentencing judge should nevertheless have had regard to the maximum penalty as prescribed for the summary offence, which ‘more accurately reflects the legislative view of the seriousness of the common law offence, relative to other offences against the person’.
[4]Elias v The Queen (2013) 248 CLR 483 (‘Elias’).
These submissions are unsustainable in light of Elias. Until Elias, Liang and Li[5] stood as authority for the proposition that, where a sentencing judge concluded that the charge laid has exposed the prisoner to a more punitive regime of sentencing than that to which he ought reasonably have been exposed, the judge might take into account the less punitive regime when fixing sentence. That proposition can no longer be considered sound. In Elias the Court (French CJ, Hayne, Keifel, Bell and Keane JJ) said:
[5]R vLiang & Li (1995) 82 A Crim R 39.
The fact that it is possible to identify another offence having a lesser maximum penalty which might have been charged does not make the decision to prosecute for the offence charged unjust. Nor is there substance in the appellants’ complaint that the sentencing judge in each case was constrained to impose an excessive sentence as the result of the prosecutor’s decision to proceed with the common law count.[6]
And later the Court observed:
For the reasons given, the ‘principle’ stated in Liang is without a sound foundation. …
It may be accepted that the prosecutor’s selection of the charge is capable of having a bearing on the sentence. Commonly this will be the case where the prosecution has a discretion in determining whether to proceed summarily or on indictment. However, the separation of functions does not permit the court to canvass the exercise of the prosecutor’s discretion in a case in which it considers a less serious offence to be more appropriate any more than when the court considers a more serious charge to be more appropriate. [7]
[6](2013) 248 CLR 483, 496 [32].
[7]Ibid 497 [33]–[34].
The first ground is bereft of merit. It cannot be upheld.
Taking into account victim impact statement — ground 2
On the appellant’s plea hearing, the legal practitioner appearing for her informed the judge that the relevance and admissibility of the complainant’s victim impact statement against her client was in issue.
The prosecutor informed the judge that ‘clearly most of it is attributable to the case against [the husband]’, and that ‘the difficulty is it’s impossible to tease out a necessary single event in a history, or story like this’. He told the judge that the complainant intended to read the victim impact statement aloud if the judge ‘rules it in’. The prosecutor also informed the judge that if she ‘rules it out’, the complainant would read it aloud in the plea hearing of the husband. So that she might be able to rule on its admissibility, the judge was invited to retire to her chambers to read the victim impact statement. She did so.
Upon returning to the bench, the judge said:
… My overall view is this is all highly relative [sic] background material in relation to both lots of offending. Although [the appellant] is only charged with one — actually I think it’s only the one charge. … The one count that was on this. But on the day when the other abuse happened and according to [the complainant] she knew about it, in the sense that she heard discussions and the way she understood it was whatever was happening was consented to, and in fact [the husband] told her that. All of that appears to me to be relevant, no so much in — it’s not so much relevant in what the eventual sentence is for [the appellant] but it’s highly relative and relevant to the state of the household and what was happening. … So I don’t see it. A lot of things I wouldn’t be using against [the appellant]. … There are a lot of things that I wouldn’t be using. But I think it’s something that should be admitted and I’ll see if there’s a strong argument which says that it shouldn’t be. But that’s my overall view.[8]
[8]Emphasis added.
The appellant’s legal practitioner maintained her objection to admissibility, submitting that ‘the suggestion that [the appellant] is complicit in what eventuated … is not part of the allegation that she's pleading guilty to’.
In the event, the complainant was permitted to read her victim impact statement to the court.[9] It was — as the prosecutor, defence lawyer and judge all acknowledged — almost exclusively concerned with the sexual offending against her by the appellant’s husband.
[9]Sentencing Act 1991, s 8Q(1).
We cannot discern from the record of the plea hearing that the judge distinctly turned her mind to the statutory regime which governed the reception of the victim impact statement. She ought to have done so. It may have served to avoid error.
Section 8L(1) of the Sentencing Act 1991 provides for a victim to make a victim impact statement which ‘contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence’. By s 8L(3), a judge ‘may rule as inadmissible the whole or any part of a victim impact statement’.
Section 8Q(1) permits a victim who has made a victim impact statement to ‘request that any part of that victim impact statement … is read aloud … in the course of the sentencing hearing’. (As we have observed, the request for the complainant to read her victim impact statement aloud was conveyed to the judge by the prosecutor.)
Importantly — and quite separately from the permissive terms of s 8L(3) — once the victim has made such a request, s 8Q(2) places a mandatory obligation on the judge to ensure that only admissible parts of the victim impact statement are read aloud. So far as relevant, s 8Q(2) provides:
(2)If a request is made under subsection (1) and the person specified in the request is available to do so during the course of the sentencing hearing, the court must ensure that any admissible parts of the victim impact statement that are —
(a) identified in the request; and
(b) appropriate and relevant to sentencing—
are read aloud … by the person or persons specified in the request in open court in the course of the sentencing hearing.
As we have already observed, despite the acknowledgment by all concerned that it contained material that was irrelevant to the case against the appellant, the complainant was permitted to read the whole of her victim impact statement aloud. The judge did not, as she was required to, ‘ensure’ that only ‘any admissible parts’ that were ‘appropriate and relevant to sentencing’ were read aloud.
On the appeal, the appellant’s counsel submitted that the sentencing judge used the evidence contained in the victim impact statement in an impermissible manner. It was submitted that the statement did not traverse the offence with which the appellant was charged. Nor, so it was argued, was it possible to distil from the statement particulars of the impact of that offence on the complainant. These submissions are sound.
In the course of the plea hearing, the judge made a number of observations which seem to have been influenced by the contents of the victim impact statement. She said:
I don’t think I would be not imposing a conviction, because — and I’ll hear submissions in this — because in my view, [the appellant], she’s not charged with anything else, but she’s been present during a long and very difficult childhood, and I have heard nothing that she’s tried to do anything about it, intervene in any way. The evidence is — the only evidence I have is that [the complainant] is completely estranged from both of her parents, and has been for some time …
The judge also said:
Right. No, I don’t — it doesn’t impact on her criminality … in relation to the charged offence, but it does in some way, impact on, she’s part of that background against which she then commits the offence, this incredible control and discipline, so I know you can make any submissions you want as to that.
In her reasons for sentence the judge remarked:
I also note that you have expressed no remorse in relation to this offending; neither expressed nor implied. During the plea hearing today [the complainant] read her victim impact statement to the court and I take that into account where it is relevant. That is, as background and setting a context in which you inflicted such brutal physical punishment on a 14-year-old child. I accept that most of her statement is more related to the acts of your husband and the general context of your family life. [10]
[10]R v [York] (Unreported, County Court of Victoria, Judge Cotterell, 16 April 2014), [8] (emphasis added).
On our reading of it, the complainant’s victim impact statement did not in terms refer to the assault upon her by the appellant and contained no ‘particulars of the impact of the offence on the victim [or] of any injury, loss or damage suffered by the victim as a direct result of the offence’.[11] It made for sad reading, but it was almost exclusively directed to the impact of the appellant’s husband’s offences upon the complainant. Even paying due heed to the notion that the admissibility of victim impact statements should be approached with a degree of flexibility,[12] nonetheless such statements must be relevant in the manner contemplated by s 8L(1) of the Act in order to be admissible. Moreover, s 8Q(2) makes it plain that, where a request is made to read a victim impact statement aloud, the judge has an obligation to ensure that only admissible parts which are relevant to sentencing are read aloud. The judge does not have any flexibility to waive the requirements of the statute.
[11]Sentencing Act 1991, s 8L(1).
[12]R v Swift (2007) 15 VR 497, 499 [9].
The victim impact statement under consideration contained nothing of relevance concerning the impact of the appellant’s offending. It was not legitimate for the judge to take it into account as providing ‘background and setting a context’.[13] It was — and should have been seen to be — inadmissible in the case against the appellant. The judge should have so ruled. Further, the judge should not have permitted any part of it to have been read aloud. It is plain, in our opinion, that the irrelevant and inadmissible victim impact statement infected the exercise of the judge’s sentencing discretion.
[13]See SD v The Queen (2013) 229 A Crim R 580, 587 [22].
Error has been demonstrated. We would uphold the second ground.
Manifestly excessive sentence — ground 3
In the course of the plea, the appellant’s legal practitioner sought a non-conviction disposition for her client. She submitted a financial penalty was appropriate, and only advanced the suggestion of a suspended sentence after the judge indicated that she would not consider a financial penalty.
In this Court, the appellant submitted that although the judge said that all relevant matters had been taken into account, the sentence imposed indicated that insufficient weight was given to factors in mitigation. A sentence of imprisonment was, so it was submitted, outside the range of sentences available in the sound exercise of discretion. The judge was not entitled to impose a suspended sentence of imprisonment unless the same term of imprisonment, served as an immediate custodial sentence, would in the circumstances have been appropriate. The appellant submitted that a sentence of imprisonment was manifestly excessive in the circumstances of this case. It was further submitted that a sentence of five months’ imprisonment was manifestly excessive.
It was submitted that the appellant was 50 years of age when sentenced, and was in straitened personal and financial circumstances by reason of the imprisonment of her husband. On the plea hearing, counsel had submitted that the appellant intended to re-establish herself in paid work — possibly in the aged-care sector — and that this was a matter relevant to whether a conviction should be recorded. The appellant submitted she had no prior or subsequent criminal history. Further, it was argued that her plea of guilty was of some utilitarian benefit and was made on the first occasion that the prosecution had indicated its willingness to settle for other than sexual offences. Attention was drawn to the fact that the offence occurred in 2002, and was not the subject of complaint to police until 16 August 2012. Such delay, it was submitted, was relevant to the sentence to be imposed.
The respondent’s counsel submitted that ‘the sentence of five months’ imprisonment wholly suspended for 12 months was clearly within the range of sentencing dispositions open’ and was ‘indeed appropriate in the circumstances of this case’. This was an unrealistic submission.
In our opinion, the sentence imposed is manifestly excessive. It was outside the range of those open in the sound exercise of discretion. The offending simply did not call for a sentence of imprisonment.
On the plea hearing, the appellant’s legal representative described the offending as follows:
My client instructs that she lost control and saw red, and disciplined [the complainant] for lying to her and in a manner in which she had been disciplined by her own parents. The aggravation stemmed from a perception that [the complainant] had lied to her, and also she had organised a girlfriend to lie for her to my client.
There was no attempt by the prosecution to cavil with that description.
The appellant pleaded to a single charge of common assault. It seems that the assault arose out of the appellant’s attempt to discipline her daughter for lying to her, which exceeded appropriate bounds when the appellant lost her temper. That loss of temper does not, of course, justify the appellant’s actions. But her conduct needed to be kept in some perspective. She was to be punished only for that single incident, and the punishment for that single incident needed to be proportionate to her criminal behaviour. To sentence her to imprisonment — albeit suspended — was a wholly disproportionate response to the appellant’s wrongdoing. Before imposing a suspended sentence the judge needed to satisfied that a sentence of imprisonment, if unsuspended, would have been appropriate for the appellant’s offending.[14] It would not have been. Intervention by this Court is thus called for. The appellant must be sentenced afresh.
[14]Sentencing Act 1991, s 27(3).
We have considered whether the appellant should be convicted. Section 8(1) of the Sentencing Act 1991 requires that, in exercising the discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including the nature of the offence, the character and past history of the offender, and the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.
At the age of 50 years the appellant has attracted no prior or subsequent convictions. Indeed, in the decade or more since the offending conduct, it seems that nothing has occurred to doubt that her prospects of rehabilitation are good. Although the manner in which she attempted to discipline her daughter was unjustified, the assault was far from being the most serious example of common assault that the Court has encountered. Thus, for example, apart from the pain it might be expected was inflicted, it is not suggested that there was any other physical injury, whether of a transient or permanent nature. Further, the appellant’s employment prospects might be affected adversely by a conviction.
Balancing those factors — and the other factors to which the Court is required to have regard[15] — it is appropriate that the appellant avoid conviction.
[15]Sentencing Act 1991, s 5.
We would allow the appeal and quash the sentence imposed in the County Court.
We would, without conviction, impose a fine of $1,000.
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