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[2014] ACTSC 126
Supreme Court of the ACT
2014-06-05
Refshauge J
Original judgment source is linked above.
[2014] ACTSC 126 (5 June 2014)
APPEAL-GENERAL PRINCIPLES - In general and right of appeal - Prosecution appeal - Appeal against sentence by informant attract same principles as Crown appeal against sentence
APPEAL AND NEW TRIAL - In general and right of appeal - Whether sentencing manifestly inadequate - No error of fact or law in the assessment by the Magistrate - Sentence at lower range of appropriate sentences - Sentence not manifestly inadequate - Appeal dismissed
CRIMINAL LAW - Jurisdiction, practice and procedure - Judgment and punishment - Conditions to a good behaviour order - Must be individualised
Crimes (Child Sex Offenders) Amendment Act 2012 (ACT)
Child (Sex Offenders) Regulation 2005 (ACT)), s 9
Crimes (Sentencing) Act 2005 (ACT), Div 3.10.2, Pts 3.2-3.6
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10
Balthazaar v The Queen [2012] ACTCA 26
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions v Ip [2005] ACTCA 24
Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295
Macpherson v Beath (1975) 12 SASR 174
R v Bugmy [2004] NSWCCA 258
R v Carney [2013] ACTSC 266
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Harvey (1989) 40 A Crim R 102
R v Hoang [2002] NSWCCA 128; (2002) 128 A Crim R 422
R v Osenkowski (1982) 30 SASR 212
Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545
Weston v Arley [2012] ACTSC 138
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
1. The respondent, Gary William Mingay, is a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) (the Child Sex Offenders Act).
2. He was convicted in the Townsville District Court on 6 December 2004 of three counts of indecent treatment of children under sixteen years an offence contrary s 210 of the Criminal Code Act 1899 (Qld), the convictions for which made him a registrable offender under Child Protection (Offender Reporting) Act 2004 (Qld).
3. Mr Mingay came to the ACT and on 10 April 2007 became a registrable offender under s 8 of the Child Sex Offenders Act by virtue of s 11 of that Act.
4. As a result, Mr Mingay had obligations to report various matters under Pt 3.3 of the Child Sex Offenders Act including, under s 54, within that Part, a change of personal details (defined in s 59 of the Act) within twenty-four hours. Such details include the address where he lives (also in s 59 of the Act).
5. On 9 May 2013, Mr Mingay contacted the Child Sexual Offenders Reporting Team Office, leaving a voice mail message to advise that he had changed his residential address as of 6 May 2013.
6. As a result, he was charged with an offence against s 54(1) of the Child Sex Offenders Act, rendering him liable to a maximum penalty of two hundred penalty units (that is a fine of $220,000) or imprisonment for two years, or both.
7. He appeared in the Magistrates Court on 8 August 2013. He entered a plea of guilty. A Pre-Sentence Report was ordered. He was released on bail, which included a condition that he accept supervision by an officer of ACT Corrective Services. The proceedings were adjourned to 22 November 2013.
8. On 22 November 2013, he confirmed his plea and was convicted and a good behaviour order was made for eighteen months with a twelve month maximum probation condition and a condition that he attend "such educational, vocational, psychological, psychiatric or other programmes or counselling as the offender is directed to attend particularly in relation to matters referred to in [the] p.s.r of 18 November 2013".
9. On 4 December 2013, the informant appealed against the sentence on the ground that it was manifestly inadequate and that her Honour erred in taking into account irrelevant considerations.
10. Under Pt 3.10 of the Magistrates Court Act 1930 (ACT), this Court is given jurisdiction to hear and determine appeals from the Magistrates Court. Under s 208 of that Act, the informant may appeal from a sentence imposed under Pts 3.2-3.6 of the Crimes (Sentencing) Act 2005 (ACT) as was that imposed on Mr Mingay and Div 3.10.2 regulates the appeals in such matters.
11. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles for determining such appeals. I apply them in this case. They may be summarised as follows.
12. The sentence imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion consider that the different sentence is appropriate and that I am not merely tinkering.
13. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error, but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the sentence.
14. If I cannot identify a specific error, I may uphold the appeal and substitute another sentence if I find the sentence to be manifestly inadequate or manifestly excessive, unreasonable, plainly unjust or plainly wrong.
15. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal, even, it appears, by an informant, stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
16. As noted above, by virtue of his conviction of certain offences in Queensland, Mr Mingay became a registrable offender under the various sex offender registration legislation throughout Australia.
17. It appears that Mr Mingay came to Canberra in April 2007 and thus became subject to the Child Sex Offenders Act.
18. As well as the reporting obligations I have referred to above (at [4]), a registrable offender is, under s 37 of the Act, required to report personal details each year in person at an approved reporting place. This appears to be called, commonly, the "annual review".
19. Mr Mingay's annual review for 2013 took place on 2 April 2013 when members of the Child Sex Offenders Reporting Team reminded him of his reporting obligations. At that time, Mr Mingay was provided with a piece of paper setting out all the terms said to be in lay language. It consisted of two A4 pages. A copy was not provided to this Court, though it may have been supplied to the Magistrates Court; the transcript is not clear and it was not marked as an exhibit, which is strongly suggestive that it was not admitted into evidence.
20. According to the Pre-Sentence Report, Mr Mingay and his then wife, the mother of the child victims of his offences, separated after he was charged with the original offences and have since divorced. He has no contact with either of his daughters.
21. Since 2007, however, he has been in a relationship with a former co-worker. She has two children, a daughter aged ten and a son aged seventeen. The relationship has had problems resulting in a number of separations, but they both say they are committed to each other and have continued the relationship. They wished to have a child together but there have been infertility problems and Mr Mingay's partner suffered three miscarriages in 2013. As a result of the stress that these matters caused, Mr Mingay and his partner had an argument on 6 May 2013 during which he swore. His partner has a strong stance on not swearing in the house when children are present and he was asked to leave.
22. He stayed in a hotel on the first night but he had friends that he knew from his home town and he asked to stay with them while he searched for a rental property. Within seven days he did find appropriate accommodation where he now resides. He says that he made a mistake about the timeframe for reporting but acknowledged that he had recently been reminded of his obligations. He did report to the Child Sex Offenders Reporting Team as noted above (at [5]), although not within the twenty-four hour period as required by the legislation.
23. The prosecution pointed out that the friends at whose home he stayed while he looked for rental property were not aware of his previous child sexual offence conviction. They had four children aged between six and fourteen. Police were advised that, on the Saturday morning, Mr Mingay had unsupervised contact with the four children. Mr Mingay denied that this occurred.
24. Nevertheless, when the family found out Mr Mingay's criminal history, they were extremely distressed.
25. Mr Mingay was adopted shortly after birth, but had a positive childhood being raised in a loving family environment. He reported, however, that his adoption had an enduring impact on his sense of self and his level of confidence.
26. As an adult, he met his birth mother at a time, however, when his wife was pregnant with their first child and found the experience "very stressful". It also caused him to question himself and his situation.
27. He had problems in his marriage and the connection with his birth mother put further strain on the relationship which, as I have noted above (at [20]), ended after he was charged with the sex offences. He has had no contact with either of his daughters since then and understands that they believe he is deceased.
28. Mr Mingay completed Year 11 in the public school system and was an above average student with no disciplinary issues.
29. Mr Mingay is currently employed in a sales position and has had reasonably consistent employment since leaving school. He has limited assets.
30. Mr Mingay has a degenerative spinal condition and a medical clearance for light duties only. He regularly accesses physiotherapy and works reduced hours due to limited mobility.
31. Apart from that, he is in reasonable physical health, but has some poor mental health caused by the stress when he met his birth mother and became alienated from his wife, and exacerbated by his guilt over his sexual conduct. Indeed, he self harmed on the day he was charged.
32. Mr Mingay reports no use of illicit substances and a moderate consumption of alcohol.
33. Mr Mingay has six offences on his record. In addition to the three charges of indecent treatment of children under sixteen, he has committed three offences of failing to report a change of details under the Child Sex Offenders Act. They were all dealt with on 8 October 2009, two offences having occurred on 7 July 2009 and the other on 21 July 2009. He was fined for all three offences. He has no other offences on his record. The record showed two minor traffic matters in 1999 and 2002 but it was not clear whether they were convictions or expiation police results.
34. While in custody in Queensland, Mr Mingay did not participate in any educational or therapeutic programmes, claiming that the short custodial sentence did not allow for completion of such programmes.
35. While he has considered entering therapy in the past, he was fearful that this would open old wounds and, instead, he has tried to focus on bettering himself.
36. In order to avoid further problems, he isolates himself from others and only socialises when he is with his partner. That limit on his socialisation, however, he recognises as presenting a risk because it makes him lonely and means he has no support network.
37. The Pre-Sentence Report noted that, during his period on bail, Mr Mingay had been compliant with directions given to him. It reported that he had also been compliant with the requirements of Queensland Corrective Services.
38. Mr Mingay is assessed as posing a low to moderate risk of re-offending both in terms of further sexual offences and other criminal offences.
39. The risk factors appear to be social isolation, his rather unstable relationship, his mental health and his limited financial situation. The author of the Pre-Sentence Report recommended that he be assessed for admission to the Adult Sex Offenders Programme.
40. In Weston v Arley [2012] ACTSC 138 at [84]- [85] I described the offence of a registrable offender failing to report a change of personal details:
The intelligence information gathered through the registration process is to be used to assist government agencies to better manage offenders in the community and, in doing so, reduce the likelihood that offenders will re-offend.
...
We, as legislators, have a responsibility to protect the children in our territory to the best of our ability. We need to maintain a vigilant eye on those who have already sexually offended against children. Those who have sexually offended against children must be monitored for as long as it is considered reasonably necessary to ensure that they do not reoffend, a situation that unfortunately very often arises with such offenders.
41. I pointed out at [86], that an offence would be serious if "the failure [to report] was deliberate or, for example, was part of a process designed to deceive the police or evade their surveillance".
43. After the prosecution recited the facts, Mr Mingay explained that he was physically and emotionally affected by the argument he had had with his partner. He said
At the time my mind was not on my obligations with the current legislation, it was more of finding accommodation, going to work the following morning and finding appropriate accommodation.
44. The learned Sentencing Magistrate referred to the recommendation of the author of the Pre-Sentence Report that he should attend programmes on sexual offending and relationships. Mr Mingay seemed to accept the value of that, explaining the strategies he currently had in place to protect himself and how he avoids putting himself in a vulnerable position.
45. The Pre-Sentence Report also referred to the difficulties he and his partner were having in connection with fertility, she having had three miscarriages in 2013. Her Honour acknowledged the trauma of such experiences and consequent emotional distress, where that leads a person to "lash out at the person who in fact you're sharing the grief with".
46. The prosecutor expressly did not challenge the personal factors to which there had been reference.
47. The prosecutor did, however, point to the fact that Mr Mingay had been reporting since 2006 and should be aware of his obligations.
48. I note here that the Child Sex Offenders Act was amended in 2012. Until then, the time within which a registrable offender had to report a change in details was seven days. That was amended by the Crimes (Child Sex Offenders) Amendment Act 2012 (ACT) to reduce the period to twenty-four hours. That amendment commenced on 13 September 2012, less than eight months before this offence.
49. The prosecutor noted that Mr Mingay had three prior convictions "for the same type of offending" and was given "a formal caution by police" in 2012 "in relation to this type of offending". Reference was made to a comment in the Pre-Sentence Report that
Mr Mingay claimed in each of these instances he was confused about his obligations, in particular the reporting time frames.
50. It was submitted that "throughout this period", a not very clear reference, his "reporting obligations have not changed". That is not correct, for the reason noted above (at [48]), a significant change. It was also pointed out that he had been reminded of his obligations at the "annual review" only a month earlier.
51. It was clearly of concern to the prosecution that Mr Mingay had moved into premises where children were living. While it is understandable that this is a matter of concern, there is no prohibition in the Child Sex Offenders Act that Mr Mingay not do so. Indeed, he had been living with his partner and her children, one of whom was young.
52. That he did not tell the family with whom he then stayed that he was a registrable offender is quite unsatisfactory and inappropriate, but not illegal, though there are reporting obligations in relation to the presence and names of the children. It is, however, a breach of trust to his friends. There was no suggestion that he otherwise acted improperly with the children.
53. It was submitted that Mr Mingay's offence constituted "a contumacious disregard for very serious obligations" and that, despite knowing that there were children living in the premises, he
chose not to notify police. The inescapable inference is that this was deliberate and not an oversight.
54. Mr Mingay pointed out that, albeit late, he had reported. He denied objecting to reporting. He described the earlier offences as relating to a change of address and a vehicle was in - a company vehicle was in repair and within the seven day period I think it was that that wasn't reported.
55. That is entirely unclear. There is an obligation to report the make, model, colour, registration number and any other particulars that the chief police officer asks of a registrable offender (s 59(1)(h) of the Child Sex Offenders Act and s 9 of the (Child Sex Offenders) Regulation 2005 (ACT)) but that does not make the reference any clearer.
56. At the time of the earlier offences, of course, the period within which a report was to be made was seven days.
57. Her Honour held that the offences were serious and not merely regulatory. She held, however, that Mr Mingay was not engaged in a process designed to deceive police or evade their surveillance.
58. Her Honour acknowledged the distress to the family with whom Mr Mingay stayed. Her Honour also acknowledged that two days is a long time in the context of a requirement to report within twenty-four hours,
59. Her Honour accepted that a sentence of imprisonment is appropriate where there have been continued and serious breaches. Her Honour assessed the seriousness of the prior offending by the penalties then imposed and considered that from the penalties for those offences a term of imprisonment for this offence was too extreme a progression.
60. Her Honour also acknowledged the stress and anxiety suffered by Mr Mingay and held that the circumstances took the offending out of the level of being contumacious.
61. Accordingly, her Honour made a good behaviour order for eighteen months with a probation condition.
62. The informant appealed against the sentence on the grounds that
(a) the sentence was manifestly inadequate; and
(b) her Honour erred in taking into account irrelevant considerations.
63. The second ground of appeal was abandoned at the hearing of the appeal.
64. The prosecution accepted that an appeal against sentence by the informant attracted the same principles as a Crown appeal against sentence set out in decisions such as Griffith v The Queen (1977) 137 CLR 293 at 310, Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306, Director of Public Prosecutions v Ip [2005] ACTCA 24 at [38], R v Osenkowski (1982) 30 SASR 212 at 212-213 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340.
65. In brief, such appeals should be a rarity, only brought to establish some matter of principle, including to enable appellate courts to maintain adequacy and consistency in sentencing standards, to enable idiosyncratic views of individual judges to particular crimes or types of crimes to be rectified and to correct sentences that are so disproportionate to the seriousness of the crime as to shock the public conscience.
66. An appeal against the manifest inadequacy of a sentence is, like an appeal against the manifest excess of a sentence an appeal against a discretionary order. I have set out in Hawkins v Hawkins (2009) 3 ACTLR 210 at 218-21; [39]-[54] the principles to be applied. I do not need to repeat them here, but I apply them here.
67. In particular, the comments of the Court of Appeal in Balthazaar v The Queen [2012] ACTCA 26 at [61] are apposite where the Court said
It is not enough on appeal that the members of the appeal court would have imposed a different sentence. As Maxwell P, with whom Eames JA and Habersberger AJA agreed, pointed out in R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306 at 309; [14]:
[T]he ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.
68. The appellant referred to what it submitted were aggravating factors for the current offending.
69. The first was the prior offending of Mr Mingay, together with the caution administered in 2012 and the fact that he had been reminded of his obligations at the annual review.
70. The second was that the address to which he moved were premises at which young children also lived. The appellant relied on the assertion that Mr Mingay had unsupervised access to the children and that he had not informed their parents that he was a registrable offender.
71. The third was that the appellant adopted the assessment of the author of the Pre-Sentence Report that he
failed to provide an adequate explanation for his behaviour; particularly as he has had prior warnings and convictions for this issue.
72. It was submitted that the sentence was such as would "shock the public conscience" and that, instead, a sentence that reflected both specific and general deterrence was required. It was submitted on appeal, though not, at least not expressly, on sentence to the learned Magistrate, that a term of imprisonment was warranted and that it should not be suspended.
73. A central feature of the appellant's submissions was that the offending was contumacious.
74. In Cotter v Corvisy (2008) 1 ACTLR 299 at 308; [38], I discussed the meaning of contumacy. I said
I note that the Shorter Oxford English Dictionary defines contumacy relevantly as "[w]ilful disobedience to the summons or order of the court" and the Macquarie Dictionary defines it relevantly, and similarly, as "wilful refusal to obey an order of a court." An act becomes contumacious, as opposed to merely wilful, when the person doing it knows that it is prohibited and has no reasonable excuse for doing it, or no reasonable belief that it can be excused: In the Marriage of Kitchener (1978) 20 ALR 535 at 541. As many of the cases suggest, contumacy is defiance - defiant disobedience to authority: Witham v Holloway (1995) 183 CLR 525 at 542; Doyle and Ors v Commonwealth and Anor [1985] HCA 46; (1985) 156 CLR 510 at 516; Australian Consolidated Press Limited v Morgan and Anor [1965] HCA 21; (1965) 112 CLR 483 at 489.
75. The learned Magistrate held that the offences were not contumacious. There is no direct challenge in the appeal grounds to this finding.
76. It seems to me that, in any event, it was open to her Honour to so find. She accepted that Mr Mingay was under stress at the time and suffered from anxiety. He had indicated that his focus was on finding accommodation and getting to work.
77. Acceptance of those matters permits her Honour to say that it was not wilful where Mr Mingay was aware at the time of the criminality. Added to this is, of course, the fact that he did in fact report the change, though late, but nevertheless well within the time frame that had pertained for more than five of the six years since he had been subject to the Child Sex Offenders Act and which for many years had been regarded in the legislation as an adequate time frame for reporting.
78. The prior convictions are of concern and should be properly taken into account, but I note that the offences were committed in 2009, four years earlier. I also note that two of them were committed on the same day. This may have related to a failure to advise of a change of address (one charge) and a change of motor vehicle details (the other charge). I do not know because the details were not provided to me or to the learned Magistrate. In this case, it seems to me that their effect as antecedents is somewhat reduced to below the effect they would have had if they had been committed on two separate occasions. I also note that the third offence was committed fourteen days after the first two which also puts the prior offending into a particular context. Again, we have no details of what details it was that Mr Mingay failed to report.
79. It is clear that her Honour was well aware of the prior convictions and gave thought to them and what they meant for this offence and the sentencing for it. Although not expressed, I am satisfied that her Honour was also aware of the fact Mr Mingay had been cautioned. She read the Pre-Sentence Report and showed a clear knowledge of its contents. It was also addressed in submissions.
80. I am also satisfied that she was aware of the annual review; indeed, inquired as to the contents of the document produced at it, though it does not seem to have been actually admitted into evidence.
81. There was no challenge on appeal to suggest that her Honour did not take these matters into account.
82. The fact of the caution - about which we have no evidence of the content - is of some relevance, as is the information at the annual review - about which again we have no specific information - but these do not seem to me to require a finding contrary to that of the learned Magistrate which was the offence was not contumacious.
83. Significant reliance was placed by the appellant on the fact that Mr Mingay's friends had children and that he did not inform them that he was a registrable offender. This again is relevant, but its relevance must be clearly evaluated.
84. I expressly inquired whether it was illegal for Mr Mingay to reside at the residence where there were children and not to disclose that he was a registrable offender; I was told that it was not. Thus, had he reported the place of residence within twenty-four hours, he would have committed no crime, despite not informing his then friends of his status or the fact that children resided there. No doubt, his friends would have been just as distressed had he reported within time and had they later found out his status, though no crime would have been committed.
85. This is an important way to evaluate precisely how to take this issue into account.
86. It would, of course, be very relevant to an assessment of the seriousness of the offence if it was held that the failure to report the change of details was intended to deceive the police, for example, or to manipulate the situation so that he could have unobstructed and predatory access to children whom he may molest. There was, subject to one matter addressed below, no evidence of that and that submission was not put at sentence or on appeal.
87. The learned Magistrate was satisfied, as was open to her, that Mr Mingay was not seeking to have access to children but was simply seeking accommodation, having been evicted from his partner's home. That was not the subject of contrary submissions by the prosecution at sentencing and her Honour's finding was not challenged on appeal.
88. In fact, contrary to what was submitted to me, there may have been some illegality in what Mr Mingay did, for, as I noted above (at [52]), s 59(1)(a) (in conjunction with s 54) of the Child Sex Offenders Act requires Mr Mingay to report the names and ages of children who reside at the same household as he does and with whom he has unsupervised contact. This, however, was not raised and, indeed, to take it into account in the sentence for this offence may well have breached the principles established by the High Court in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
89. The appellant also relied on the fact that Mr Mingay had unsupervised access to the children at this residence. Again, this is a complicated matter, for that, in itself, is neither illegal or prohibited. It may well, of course, be relevant to an assessment of the intention behind the failure to report as I have noted above (at [86]).
[The mother of the children at the premises] also advised Police that on the morning of Saturday 11 May 2013, [Mr Mingay] had unsupervised contact with her children when she went to work
...
[Mr Mingay] denied having any unsupervised contact with the four children.
91. Though the appellant sought to rely on the fact that Mr Mingay had unsupervised contact with the children, her Honour made no finding about that matter and was not required to do so.
92. That Mr Mingay denied the allegation meant that, if the prosecution wished to rely on it as an aggravating fact, it had to be proved beyond reasonable doubt. I have set out in R v Carney [2013] ACTSC 266 at [149] the principles that apply when facts are disputed at sentence. In particular, I said
The prosecution does not have to prove every fact upon which the sentence is based beyond reasonable doubt, but must prove beyond reasonable doubt any matters adverse to the offender or which may aggravate the culpability of the offender: R v Storey (1996) 9 A Crim R 519 at 530; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; [27].
A court may not be able to resolve every fact that is disputed, just as it may not be able to ascertain all matters relevant to the circumstances of the offence or personal to the offender, but an absence of persuasion of a fact of mitigation is not the equivalent of persuasion of the opposite fact of aggravation: R v Olbrich at 278; [16]; Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at 636; [19], 638; [24].
93. The learned Magistrate was simply left with an assertion and a denial. The appellant sought to argue that, because the statement of facts containing the assertion had been read out without objection, the assertion was accepted.
94. There are at least three answers to this. In the first place, the facts as read out to the court contained the assertion and the denial. The assertion was just that: what the mother of the children had told police. It was not a statement of fact, as was much of the rest of the State of Facts. The fact of the denial being included meant that the issue was joined and it could not be said that absence of objection amounted to acceptance of the mother's assertion.
95. In any event, Mr Mingay also expressly articulated to the learned Magistrate his challenge to the assertion. He did not accept it. That brings into play the approach I described in Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at 549-50; [20]- [23]. That approach was not adopted by the prosecution at sentence and so the mother's assertion remained just that, an assertion.
96. Finally, the court must recognise that Mr Mingay was unrepresented on sentence. To rely on what lawyers know, that unchallenged assertions of fact may be accepted on sentencing, is not something that a litigant who has no legal representation is likely to know. The obligation of the court, if it were going to make a finding on this issue, would have been to alert Mr Mingay to that and what it was going to do. See Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41], where I point out that it is necessary for a court to ensure that an unrepresented litigant is aware of his or her substantive and procedural rights.
97. There was, in any event, no finding by the learned Magistrate on this issue and I could not make one on the material available.
98. This case is quite different from Weston v Arley which was much more serious in terms of the circumstances of the offence and the offender's antecedents.
99. I remain of the view that offences of this kind must be treated seriously and deterrent sentences, with elements of both specific and general deterrence, be part of the sentence.
100. I am not satisfied that a sentence of full-time custody was warranted in all the circumstances of this case. I can see no error of fact or law in the assessment by her Honour of the seriousness of the offence or the circumstances under which it was committed.
101. While lenient, the sentence did place Mr Mingay on conditional liberty such that he could be recalled before the Court and re-sentenced, including for further breaches, and that could include a term of imprisonment, including one that would require an actual period of custody.
102. In my view, the sentence is at the lower end of the range of appropriate sentences, but cannot be regarded as manifestly inadequate.
104. I make one final comment. The good behaviour order included a requirement that Mr Mingay
is to attend such educational, vocational, psychological, psychiatric or other programs or counselling as the offender is directed to, particularly in relation to: referred to in p.s.r of 18 November 2013.
105. This appears to be a condition without any particular basis in the material before the Court. For example, it is entirely unclear why Mr Mingay should attend any educational or vocational courses. It is clear that he may benefit from a Sex Offenders Course and that would be appropriate. That may include psychological or psychiatric programs but the direction is entirely open-ended. This is inconsistent with the need for individualised sentencing. As Ipp AJA pointed out in R v Hoang [2002] NSWCCA 128; (2002) 128 A Crim R 422 at 426; [16] "[t]he system of justice in this country works on the basis each individual is entitled to individualised justice".
106. Conditions to good behaviour orders should not be more onerous than the actual circumstances require: R v Harvey (1989) 40 A Crim R 102 at 103.
107. As Bray CJ said in Macpherson v Beath (1975) 12 SASR 174 at 181
I have more than once deprecated the tendency to insert unusual conditions into recognisances designed to control the defendant's private life in contexts only indirectly related, if at all, to the crime for which he is being punished. I have allowed appeals against such conditions: see Neil v Steel (1973) 5 SASR 67; Baddock v Steel (1973) 5 SASR 71. To my mind they tend to favour of excessive paternalism and in extreme cases of tyranny. I realise that views differ on this matter, but mine are strongly held.
108. I respectfully agree. See also Philp [1999] NSWCCA 253; (1999) 108 A Crim R 336 at 339; [15].
109. In the New South Wales court of Criminal Appeal, Kirby J, with whom Bryson JA and James J agreed, said in R v Bugmy [2004] NSWCCA 258 at [61], after a review of the authorities on the question of conditions attached to orders that grant an offender conditional liberty,
110. While it would be appropriate for only such conditions as are directly and designedly relevant to an offender's individual circumstances to be imposed, I do not consider in this particular case that it is necessary to interfere, though it may be necessary or desirable in the future.
111. The appeal must be dismissed and I shall make appropriate orders.
I certify that the preceding one-hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Solicitor for the appellant: ACT Director of Public Prosecutions
Solicitor for the defendant: Legal Aid ACT
Byrne
Mingay [2014] ACTSC 126
(2010) 5 ACTLR 151
(2008) 1 ACTLR 299
(2000) 202 CLR 321
(1994) 181 CLR 295
(1977) 137 CLR 293
(2009) 3 ACTLR 210
(1975) 12 SASR 174
(2012) 7 ACTLR 216
(1981) 147 CLR 383
(1982) 30 SASR 212
(1978) 20 ALR 535
(1995) 183 CLR 525
(1985) 156 CLR 510
(1965) 112 CLR 483
(1999) 199 CLR 270
(2003) 212 CLR 629
(1973) 5 SASR 67
(1973) 5 SASR 71