Director of Public Prosecutions (NSW) v Dowd

Judgment

1. BASTEN JA: On 2 February 2018 the respondent, Djanni Dowd, appeared before Judge McClintock SC for sentencing with respect to a single count of sexual intercourse without consent, knowing that the victim was not consenting, in contravention of s 61I of the Crimes Act 1900 (NSW). The matter had proceeded to verdict before McClintock DCJ as the trial judge sitting without a jury. As the judge noted at the commencement of the sentencing judgment, a full account of his findings of fact had been made in the trial judgment. The judge imposed a sentence of 5 years imprisonment, with a non-parole period of 2 years 6 months. The Director appealed against the sentence on the sole ground of manifest inadequacy. There has been no delay in commencing or addressing the appeal.
2. Although the Director did not seek to particularise specific errors in the judgment on sentence, the written submissions did identify possible bases upon which an inadequate sentence may have been imposed. There was merit in that course in seeking to engage the power of this Court to intervene. As French CJ, Crennan and Kiefel JJ affirmed in Green v The Queen, [1] the primary purpose of an appeal by the Director under s 5D of the Criminal Appeal Act 1912 (NSW) is, in the words of Barwick CJ in Griffiths v The Queen, [2] "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." The Court referred, in support of that principle, to the historical account of the statutory right of the Attorney (and later the Director of Public Prosecutions) to appeal against sentence, as set out by six members of the Court in Lacey v Attorney-General (Qld). [3]
3. The purpose of the exposition in Lacey was to provide some background to the conferral in 1975 under s 669A(1) of the Criminal Code (Qld) of a power for the appeal court, on an appeal by the Attorney General, to vary a sentence "in its unfettered discretion". [4] After referring to the statement of Barwick CJ in Griffiths, the joint reasons in Lacey noted that the statement had been endorsed in Everett v The Queen, [5] as including in the notion of a "matter of principle", both manifest inadequacy and inconsistency in sentencing standards. Lacey also referred to the reasoning in Hili v The Queen, [6] where six members of the Court had noted that "the consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence." [7]
4. Hili was a case in which the Director advanced a single ground of manifest inadequacy. The joint reasons stated: [8] "As was said in Dinsdale v The Queen, [9] '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out [10] in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say [11] in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'."
5. The joint reasons in Hili affirmed the observations of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa: [12] "As her Honour pointed out, [13] a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: [14] 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. [15] Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence'. [16] (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'. [17] "
6. These observations were apt for the present appeal; this was not merely a case in which the Director relied upon a single ground of manifest inadequacy, it involved an offence which, notoriously, covers widely disparate circumstances and hence a range of potentially appropriate sentences. However, while the Judicial Commission's statistics may be of little if any value to a sentencing judge, they may be relevant in determining whether this Court should intervene.
7. Counsel for the Director referred the Court to three specific passages in the reasons of the sentencing judge as indicating possible explanations of the inadequate sentence. First, she referred to the statement that "[t]hese matters and the other matters previously mentioned make it a matter where I view the standard non-parole period as not applicable to this offence." [18]
8. It is, as counsel noted, not entirely clear what was meant by this statement. Section 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (in its amended form) merely provides that the standard non-parole period for an offence "is a matter to be taken into account by a court in determining the appropriate sentence for an offender". That section is undoubtedly applicable; the sentencing judge's description of the standard non-parole period as "not applicable" cannot be taken literally. Rather, the sentencing judge seems to have meant that he gained little assistance from the standard non-parole period as a guidepost in this particular matter. The Director understood the passage in the same way, but submitted that "the circumstances of this case were eminently suitable for the standard non-parole period to be used as a guidepost for sentence." [19]
9. While the standard non-parole period cannot be ignored, it is clear that the sentencing judge did not ignore it: he identified (correctly) both the maximum penalty (14 years) and the standard non-parole period (7 years). [20] However, this is an offence for which it is difficult to know how much guidance the guidepost gives. If one applies the standard ratio (absent special circumstances), pursuant to s 44 of the Sentencing Procedure Act, the standard non-parole period would form part of a sentence which would be two-thirds of the maximum sentence for the offence (namely 9 years 4 months). That would generally be thought an appellably high sentence for an offence in the middle range of objective seriousness, in the terms of s 54A of the Sentencing Procedure Act. The impugned words in the reasons of the sentencing judge should not be taken literally and are found in a passage which is otherwise unexceptionable.
10. Secondly, the Director submitted that the sentencing judge may have "conflated the finding that the standard non-parole period did not apply, with the finding of special circumstances." [21] The basis for this proposition was obscure. In the context, the matters to which the judge was referring when speaking of the usefulness of the standard non-parole period were imprecisely identified, but were clearly intended to cover the earlier findings both as to the objective seriousness of the offence and the offender's particular (subjective) circumstances. The judge's reasoning continued, after the reference to the standard non-parole period: [22] "This is a difficult sentencing matter. The offender is still a very young man and will need assistance in order to maintain a constructive and crime-free existence. I intend to find special circumstances for the reasons above and I am concerned that a short period of supervision may not be adequate to ensure his successful transition back into the community and as a law-abiding citizen."
11. The judge went on to summarise his findings as to objective seriousness, in a passage to which reference will be made shortly. However, the point made by the Director appeared to be no more than that the judge may have relied on some of the circumstances which he viewed as rendering the standard non-parole period inapplicable in determining that there should be a finding of special circumstances, although he also gave two specific reasons relevant to the latter finding. It is not possible to say that there was a conflation of two separate and independent considerations. In fact, the judge was entitled to take the same matters into account in the way that he did; he did not conflate two separate concepts. As the Director accepted, there was no dispute before the sentencing judge that a finding of special circumstances was appropriate.
12. At the heart of the Director's case was the proposition that the overall sentence imposed (5 years) was less than the standard non-parole period (7 years) and that the non-parole period itself was half of the overall term. The sentence, it was submitted, failed adequately to reflect "a brutal sexual assault that was aggravated by violence and the threat of violence".
13. The Director had no quarrel with the judge's assessment of the objective circumstances, expressed in the following terms: [23] "In summary, this was a significant and serious offence involving callous and brutal sexual violation of an ostensible friend of the offender. The offender's sense of sexual entitlement was reinforced by violence and threats. There has to be a custodial sentence that reflects the seriousness of such conduct. There has to be an element of general and specific deterrence involved in the sentence. … The sentence has to denounce such totally unacceptable conduct."
14. The judge then went on to say that he had taken into account "issues relating to the background of the offender, his medical condition and psychological condition and the hope of his rehabilitation." The Director submitted that the sentence imposed must therefore have resulted from undue weight being given to personal circumstances of the offender.
15. Caution is called for with respect to this challenge. This Court is generally reluctant to reassess the evaluative judgment of objective seriousness undertaken by a trial judge; it should be even more reluctant to reassess findings as to the subjective circumstances of the offender. Particularly is that so where the trial judge has had an opportunity to assess the offender both in the witness box during the trial and in giving evidence on sentence. The judge dealt with these matters with obvious care. He accepted that "at the time of the offence he was having difficulty with his drug addiction." [24] He accepted that the offender was now "off drugs" and that he had been in no trouble whilst in custody. The offender had had repeated consultations with his psychologist, who also gave oral evidence. The offender affirmed the contents of a letter which had been written to the court explaining his background and why he had not pleaded guilty. He had been medicated at school for attention deficit disorder. He had a supportive family to whom he asserted "a strong sense of obligation and responsibility". [25] The judge said: [26] "It is clear that the offender presents as a person of good character and proud of his Aboriginal heritage. However, there is a significant disconnect between the respectful and indeed fragile individual who appears within the reports and the conduct of the offender on the day. … Ultimately I conclude from the material that the offender is a troubled young man with a significant drug addiction problem. His anxiety and other psychological issues make him vulnerable on one level but his psychology also seems to predispose him to legally risky and reckless conduct. There is a disturbing element in some of the material of posturing and overinflated claims. The offence itself, as I have indicated, among other things appears to demonstrate a disturbing egotistical focus and a lack of empathy. This may reflect his immaturity and I intend to take his immaturity into account in the sentencing process consistent with the authorities."
16. The statement by an experienced trial judge that he considered this to be a "difficult sentencing matter" should not be disregarded. The question for this Court is not whether the judge imposed a lesser sentence than this Court thinks would have been appropriate, but whether the intervention of this Court is required to establish a proper sentencing standard.
17. While the parties accepted all the usual qualifications with respect to sentencing statistics, including the fact that the current offence could encompass a wide range of circumstances, one lesson which can be derived from those statistics is that the present sentence did not fall outside the range, however imprecisely it may be defined. Thus between 2009 and 2017, there were 22 cases involving a principal offence under s 61I alone, with offenders between 18 and 20 years. The sentence periods ranged from 18 months to 7 years with almost half falling in the range of 2 years to 3 years. The bulk of the non-parole periods for such offending (73%) fell within the range of 18 months to 36 months. Indeed, 61% of all offenders (the total pool being 279) fell within that range for the non-parole period.
18. Those figures would, of course, include a large number of guilty pleas with variable discounts. With respect to not guilty pleas, the judge was not provided with statistics for the 18 to 20 year old cohort, but was provided with figures for all not guilty pleas (115 cases), of whom some 80% received sentences between 3 years and 8 years, with 53% receiving non-parole periods within the range of 18 to 36 months.
19. The trial judge was also invited to take account of the decision of this Court in Bullock v R. [27] Mr Bullock had been sentenced to imprisonment for 6 years with a non-parole period of 3 years and 6 months, after allowing a 25% discount for an early guilty plea. The offender appealed and this Court reduced his sentence to a non-parole period of 2 years 6 months with a balance of term of 2 years 6 months, giving an overall sentence of 5 years. The sentence in the present case was more lenient, because an identical sentence was imposed in circumstances where no discount was available.
20. For present purposes, it is not relevant to itemise the precise similarities and differences between the cases; suffice it to say that each involved a degree of violence and an assault which continued over several minutes.
21. Since the present sentencing in the District Court, this Court handed down judgment in an appeal by the Director with respect to the adequacy of three sentences imposed for offences under s 61I in R v Shortland. [28] The trial judge had imposed three wholly concurrent 2 year sentences and had suspended their operation. This Court intervened, but only for the purpose of removing the suspension, fixing a non-parole period of 15 months. However, R A Hulme J would have intervened to impose a degree of accumulation which would have resulted in an effective sentence of 3 years imprisonment with a non-parole period of 1 year 10 months. Although that case involved a level of force being applied to the victim, it did not, as in this case, involve a direct punch nor the express threat of physical violence. On the other hand, the punch administered in the present case did not cause actual bodily harm or, as the prosecutor noted on sentence, there would have been a more serious offence of an aggravated sexual assault. [29]
22. Again, the purpose of referring to Shortland is not to invite a meticulous analysis of similarities and differences, but rather to support the proposition that this Court should be reluctant to intervene at the behest of the Director in circumstances where (a) a not insignificant period of mandatory imprisonment has been imposed, (b) the length of which is within a broadly identifiable range of appropriate sentences based on past experience, (c) the specific sentence depended on difficult evaluative judgments as to objective seriousness and personal circumstances, and (d) there has been no clear misstatement of principle or erroneous approach warranting correction.
23. In these circumstances, the Director's appeal should be dismissed.
24. BUTTON J: I have had the benefit of reading the draft judgements of Basten JA and Fagan J.
25. I agree with their Honours that the Crown appeal should be dismissed.
26. I also agree with the analysis undertaken by their Honours of the legal principles applicable to Crown appeals against sentence.
27. My own approach to the question of whether the Crown has demonstrated that the sentence imposed was manifestly (that is, patently, or obviously) inadequate is as follows.
28. As the learned sentencing judge himself remarked, this was a difficult sentencing exercise.
29. On the one hand, the respondent had inflicted very significant sexual violence upon the victim in the form of penile/vaginal penetration without her consent. There was other violence, in the form of a punch to the face, and the threat of its repetition. The respondent well knew that the victim was not consenting. The victim was not yet an adult, and indeed had just turned 16 years of age.
30. The respondent was not otherwise of good character, in the sense that he was a supplier of prohibited drugs. He had shown no remorse at any stage for his crime. A sentence of full-time imprisonment was inevitable.
31. On the other hand, the offence was not premeditated. The respondent had just turned 19 when the offence was committed, and was 20 years of age when he was sentenced. The sentencing judge found that his level of maturity was below his age. His refusal to take responsibility for what he had done may well have been a function of that immaturity.
32. The respondent had never been convicted of (or otherwise dealt with for) any crime before the commission of this offence, let alone a crime of sexual or other violence. After the offence, he had been convicted merely of a single offence of shoplifting, which can be disregarded.
33. His life had been distorted by the abuse of prohibited drugs from an early age. There was evidence that he had been motivated to seek psychological help, and indeed had been in a drug rehabilitation centre for a time. The sentencing judge accepted evidence that, at least by the time of sentence, the respondent was not abusing drugs in custody. It seemed that his incarceration before sentence had proceeded without incident.
34. Although his upbringing was not grossly deprived, and indeed was privileged in some ways, it had been damaged by the psychological difficulties of his mother.
35. There was evidence placed before the sentencing judge from a large number of sources that, despite the descent of the respondent into the abuse and supply of prohibited drugs, and his commission of this grave offence, he remained a young man of some potential. By the time of sentence, he had become a qualified carpenter, and retained the support of his romantic partner, who was a person of good character.
36. The head sentence of five years was not an insignificant one to impose upon a young man who had previously been free of criminal convictions. And a mandatory period of incarceration of two years six months cannot be dismissed as inherently trivial.
37. As Basten JA has shown, recent decisions of this Court in very broadly similar circumstances do not compel acceptance of the proposition that the sentence imposed here is erroneous.
38. In my opinion, taking into account all of the objective and subjective features of the matter, the head sentence is lenient, and the non-parole period markedly so. I am not affirmatively satisfied, however, that either is so far beyond the discretion reposed in the sentencing judge as to be capable of being characterised as manifestly inadequate.
39. FAGAN J: Basten JA has identified the sentencing decision from which this appeal arises at [1]. The single count of sexual assault contrary to s 61I of the Crimes Act was committed by the respondent on 10 June 2016. The maximum penalty under s 61I is imprisonment for 14 years. A standard non-parole period of 7 years applies.
40. The sentence of imprisonment for 5 years with a non-parole period of 2 years and 6 months was in my view very lenient for a sexual assault without consent involving violence, by a strong young man against a defenceless 16-year-old girl, in the absence of remorse or any acknowledgement of responsibility and with no compelling background circumstances. The sentence is low to the point of approximating sentences passed or upheld by this Court in cases which are comparable across a number of significant sentencing factors, but where the offenders received 25% discounts for early pleas and demonstrated genuine remorse: for example Stewart v R [2012] NSWCCA 183 (severity appeal dismissed, sentence of 4 years 6 months, with a non-parole period of 2 years 8 months upheld); Bullock v R [2016] NSWCCA 131 (severity appeal allowed, resentenced to 5 years with a non-parole period of 2 years 6 months).