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[2016] ACTCA 50
Court of Appeal (ACT)
2016-09-30
Refshauge ACJ, Penfold and North JJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL - JURISDICTION, PRACTICE AND PROCEDURE - Appeal against sentences - sexual offences - principle of restraint in re-sentencing following successful appeal against conviction - whether sentence manifestly excessive - whether primary judge erred in accumulation of sentences - whether "crushing" sentence amounts to error - whether discount provided for plea of guilty - impact of delay in finalisation of proceedings on appellant's eligibility for parole - discretion to resentence following finding of specific error - appeal upheld - appellant re-sentenced.
AB v The Queen [1999] HCA 46; 198 CLR 111
Allred v The Queen [2015] ACTCA 21; 10 ACTLR 325
Attorney-General v Tichy (1982) SASR 84
Coggan v The Queen [2013] ACTCA 49
Drayton v The Queen [2013] ACTCA 44
Johnson v The Queen [2004] HCA 15; 205 ALR 346
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R H McL v The Queen [2000] HCA 46; 203 CLR 452
Citation: [2014] ACTSC 360
1. Michael Alan Gillard has appealed against the sentences imposed on him by Burns J for sexual offences committed between late 1995 and early 2000 against two complainants, identified only as DM and JM, who were the daughters of a friend and colleague of the appellant.
2. The offences were dealt with in two separate trials, one before Higgins CJ and the other before Burns J. All the charges arose out of the same general circumstances (described at [3] below) but, with one qualification, involved a different complainant in each trial. The qualification is that the trial before Higgins CJ involved one offence against JM, the complainant in the trial before Burns J, being an offence against JM constituted by the commission in her presence of a sexual act with her sister DM, the complainant in relation to all the other charges tried before Higgins CJ.
3. The factual background to this matter was set out in Gillard v The Queen [2013] ACTCA 17 at [8] as follows (that judgment referred to DM and JM as DD and JL respectively):
Between January 1990 and 1991 or 1992 [X] and [Y] and their four children [A, DD, JL and B] resided at [an army base in the ACT]. [X] was in the armed services at this time. It was through the armed services that he met [the appellant], who became a family friend.
In around 1991 or 1992 the ... family relocated from the ACT to [T, in Victoria]. [B] did not move with the family as he [suffered a severe disability] and required 24 hour care. [B] remained in the ACT in a care facility.
Between December 1992 and January 2000 [DD] and [JL] and occasionally their older sister [A], would visit [B] during the Christmas school holidays. Whilst in the ACT they would stay with [the appellant] at his home ... in the ACT. [The appellant] resided in the unit alone and [the victims] considered him to be an uncle type figure and an unofficial godfather. [The appellant] would drive to [T] to pick them up and take them to Canberra. They would leave [T] sometime from New Years Day onward and stay with [the appellant] for a week. The visits took place during the summer school holidays.
When [DD], [JL] and [A] stayed with [the appellant] they slept in the spare bedroom located at the rear of the premises, which contained a standard single bed and a fold out single bed.
4. It is convenient to outline the somewhat complex procedural background to this appeal by means of a table providing a chronology of the sentencing processes that led to the current position.
1. Jury finds the appellant guilty of eight sexual offences against two complainants DM and JM. Jury acquits the appellant of eight other charges.
Guilty verdicts were returned on counts 2, 3, 4, 13, 14, 16, 18 and 19.
2. Jury finds the appellant guilty of two sexual offences against JM.
Sentencing delayed pending finalisation of appeals in SCC254A
3. Higgins CJ sentences the appellant to 9 years and 9 months imprisonment, with a non-parole period of 5 years and 3 months.
4. The appellant files Notice of Appeal against convictions and sentences in SCC254A.
5. ACT Court of Appeal delivers decision on the appellant's appeal. Gillard v The Queen [2013] ACTCA 17.
6. Expiry of sentences on counts 2, 3 and 4, and 19 (as a result of re-setting of sentence date: at event 10.1 below).
7. High Court delivers decision on the appellant's appeal: Gillard v The Queen [2014] HCA 16; 236 A Crim R 586.
Convictions on counts 13, 14, 16 and 18 overturned, new trial ordered.
8.1 New indictment signed on counts 13, 14, 16 and 18 (which become counts 1, 2, 3 and 4).
9.1 The appellant pleads guilty to counts 2(14) and 3(16).
Pleas accepted in full satisfaction of outstanding matters (including counts 1(13) and 4(18) on new indictment).
9.2 Agreed statement of facts tendered on counts 2(14) and 3(16).
10.1 Burns J resets commencement date for sentence on count 19.
The sentences imposed by Burns J are the subject of the current appeal.
10.2 Burns J sentences the appellant on pleas of guilty to counts 2(14) and 3(16).
10.3 Burns J sentences the appellant on two counts in SCC254B.
5. In summary, the sentences imposed by Higgins CJ in December 2011 for eight offences (the original total sentence) totalled 9 years and 9 months, with a non-parole period of 5 years and 3 months.
6. After two charges from the trial before Higgins CJ were abandoned, and Burns J:
(a) re-sentenced the appellant for two of the other offences originally dealt with by Higgins CJ; and
(b) sentenced the appellant for two other offences;
the sentences (the new total sentence), also for eight offences, totalled 10 years and 9 months, with a nonparole period of 7 years.
7. A more specific comparison between the first and the second total sentences is that between the total sentence imposed for the four offences dealt with by Higgins CJ and the total sentence imposed for the remaining two of those offences for which the appellant was re-sentenced by Burns J. For the four offences dealt with by Higgins CJ (identified as Offences A, B, C and D in the table at [8] below), his Honour imposed terms that totalled 13 years and 6 months and, as a result of provision for concurrency, added a total of 8 years to the overall sentence. For the two offences on which the appellant was re-sentenced by Burns J (Offences B and C), Burns J sentenced the appellant to a total of 4 years and 6 months, with no concurrency, and accordingly added the full 4 years and six months to the overall sentence.
8. The offences on which the appellant's convictions were set aside by the High Court, and the offences for which the appellant was later sentenced by Burns J, and their relevant facts, were as follows:
The appellant forced DM to fellate him, in the presence of DM's younger sister JM, aged 16.
[Sentence: 5 years imprisonment, accumulated so as to add 4 years to the total sentence.]
Guilty verdict before Higgins CJ (Count 13 on original indictment) set aside by High Court.
Abandoned (after pleas of guilty to Offences B and C).
Offence B. Act of indecency in the presence of a person without consent
Trial before Higgins CJ: the appellant was fellated by DM in the presence of JM, aged 16. The act of indecency was the conduct constituting Offence A.
[Sentence: 6 months imprisonment, fully accumulated on prior sentences but fully concurrent with next subsequent sentence.]
Trial before Burns J: Offence A had been abandoned, so the act of indecency was no longer separately identified as an offence.
[Sentence: 6 months imprisonment, fully accumulated.]
Guilty verdict before Higgins CJ (Count 14 on original indictment) set aside by High Court.
Trial before Higgins CJ: the appellant digitally penetrated DM.
[Sentence: 4 years imprisonment, accumulated so as to add 2 years and 6 months to the total sentence.]
Trial before Burns J: the appellant digitally penetrated DM.
[Sentence: 4 years imprisonment, fully accumulated, but concurrent as to 6 months with next subsequent sentence.]
Guilty verdict before Higgins CJ (Count 16 on original indictment) set aside by High Court.
[Sentence: 4 years imprisonment, accumulated so as to add one year to the total sentence.]
Guilty verdict before Higgins CJ (Count 18 on original indictment) set aside by High Court.
Abandoned (after pleas of guilty to Offences B and C).
Offence E. Act of indecency on person under 16 years
The appellant touched JM (aged 13) in the area of her vagina.
[Sentence: one year's imprisonment, accumulated so as to add 6 months to the total sentence.]
Offence F. Attempted sexual intercourse with person under 16 years
Shortly after Offence E, and having left the room to obtain a condom, the appellant returned, spread JM's legs open, lay partly on top of her, and rubbed his penis in the area of JM's vagina, before JM extricated herself and left the room.
[Sentence: 4 years imprisonment, fully accumulated.]
(a) The sentences in their totality, in respect of the head sentence and/or the nonparole period, are manifestly excessive.
(b) His Honour accumulated the sentences to an inappropriate degree so that the final result was crushing.
(c) In respect of the sentences for counts 1 and 2 of 254B the degree of accumulation failed to take into account that the two counts formed a single criminal incident.
(d) Contrary to principle and/or law His Honour gave no discount for the plea of guilty in respect of counts 2 and 3 of 254A.
(e) Contrary to principle and/or law His Honour failed to exercise the required restraint in resentencing following a successful conviction appeal by applying a higher starting point than originally imposed by Higgins CJ for counts 2 and 3 of 254A.
10. It is convenient to deal with these grounds out of order.
Appeal ground (d): failure to take account of pleas of guilty
11. The appellant said that the sentence imposed by Burns J on his plea of guilty to Offences B and C was the same as that imposed by Higgins CJ after a jury trial; in other words, either the appellant had received no benefit for his guilty plea or the starting sentence had been higher than the sentence imposed by Higgins CJ for the same offence.
12. Counsel for the appellant conceded that ground (d) as such could not be made out, because Burns J explicitly said that he started with higher sentences than Higgins CJ for the same offences, and gave a discount for the guilty pleas. Clearly the pleas of guilty had been taken into account.
Appeal ground (c): two offences arising from single incident
13. For the two offences of which the appellant was found guilty in the trial before Burns J (Offences E and F), his Honour imposed a total sentence of 5 years, 4 years and 6 months of which was accumulated on the sentences remaining from the trial before Higgins CJ. The sentence imposed by Burns J for Offence E was concurrent as to 6 months with the sentence on Offence C, but there was no concurrency at all between the sentences for Offences E and F.
14. The appellant said, however, that Offences E and F were closely related. The act of indecency (Offence E) involved the appellant touching JM's vaginal area. Immediately after this, the appellant left the room and returned wearing a condom, after which he attempted penile penetration of JM, constituting the attempted sexual intercourse (Offence F). That is, counsel said, the offences were part of a single course of conduct in which the appellant sought to have sexual intercourse with JM, and that therefore the complete accumulation of the second sentence was inappropriate. In fact, the appellant said, the two sentences should have been entirely concurrent.
15. The appellant relied for this submission on the comments of Gleeson CJ in Johnson v The Queen [2004] HCA 15; 205 ALR 346 (Johnson). In that case, his Honour at [4] quoted at some length from the remarks of Wells J in Attorney-General v Tichy (1982) SASR 84, including the following:
what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. ... Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.
Ultimately, justice requires due consideration of whether, and to what extent, the appellant "was truly engaged upon one multi-faceted course of criminal conduct", and whether the sentences imposed properly reflected the outcome of that consideration.
17. We accept that imposing concurrent sentences for the two offences would have been available to Burns J, but we do not consider that Gleeson CJ's remarks can be read as requiring sentences imposed in circumstances such as the current ones to be entirely or even partly concurrent. There are, of course, varying ways that a sentence for acts which form part of a single course of conduct can be structured, as noted by the plurality in Johnson at [26].
18. However, it was unfortunate that Burns J did not explain why he considered it appropriate for the second of the two sentences to be entirely accumulated on the first sentence, given that the two offences related to sexual activity on a single occasion. Gleeson CJ's conclusion implies that it is desirable for a sentencing judge who is dealing with multiple offences to explain the approach to concurrency and accumulation that he or she has adopted in the sentencing process.
19. Nevertheless, the total sentence for Offences E and F does seem to reflect the total criminality of the relevant conduct of the appellant.
21. Counsel for the appellant submitted that a successful appellant who is re-sentenced after a second trial should not receive a longer sentence for the same offence, lest this be seen as a punishment for having appealed. In R H McL v The Queen [2000] HCA 46; 203 CLR 452, Gleeson CJ and Gaudron and Callinan JJ said at [23]:
In the course of argument in this Court, references were made, not by counsel, but by members of the Court, to the decision in Gilmore in which Street CJ referred to a consideration which a judge, resentencing after a second trial an offender who had earlier appealed successfully against the conviction at a first trial, ought to take into account. In brief, in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction. The weight to be given to that consideration depends, of course, upon the circumstances of the individual case.
(citations omitted)
Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial . If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.
23. In Pollock v Western Australia [2011] WASC 133 (Pollock), Mazza J, with whom Martin CJ and McLure P agreed, said at [37]-[39]:
24. In Pollock, the Court of Appeal of Western Australia concluded that, without explicitly finding that the first sentencing judge's sentences were inadequate (a claim that had been made in a prosecution appeal against sentence which had been "derailed" by the offender's successful conviction appeals), the second sentencing judge had found, and expressed, adequate reasons for imposing higher sentences on the same offences after a second trial (at [80]).
25. It is apparent that this "principle" or "rule" of restraint has various exceptions, and that, especially if a judicial officer has provided an explanation for sentencing in a way that might be seen as inconsistent with the principle or rule, such inconsistency is unlikely to provide a basis for a finding of error.
26. The position in this case is, however, somewhat complex.
27. In his sentencing remarks, Burns J adverted in general terms to the "rule of restraint", accepting at [7] that "it would be inappropriate to impose a sentence of greater severity than that imposed by Higgins CJ". However, this was after Burns J had explained that he considered that there was a basis on which he could identify an "initial sentence" (before any plea of guilty discount) higher than the sentences imposed by Higgins CJ after a defended trial. That basis was that, contrary to what Burns J regarded as the view of Higgins CJ, the appellant was not a person of good character at the time when he committed the offences concerned.
28. In adverting to the principle of restraint, accepting that this constrained his re-sentencing to some extent, and providing an explanation for determining that the appropriate sentences for the offences concerned were in the abstract more severe than those imposed by Higgins CJ (albeit able to be reduced in the re-sentencing because of the pleas of guilty), Burns J appears to have done what is necessary to avoid any finding of error by reference to the proposition that in re-sentencing after a successful appeal, restraint is generally appropriate.
29. However, the appellant submitted, Burns J's explanation suggests a misinterpretation of the factual circumstances in which he was re-sentencing the appellant.
30. Burns J said at [7], in relation to the two offences for which he was re-sentencing the appellant (Offences B and C):
I would have started at a higher initial sentence than that imposed by Higgins CJ. He approached your sentencing on 2 December 2011 on the basis that you were a person of prior good character. The offences for which he sentenced you occurred in the period from late 1998 to early 1999. On 30 November 2011, you were convicted in a separate trial of two further sexual offences against JM which occurred in late December 1995 or early January 1996. I will refer to those charges in greater detail in a moment. It is therefore clear that you were not a person of prior good character at the time that you committed the offences for which you were sentenced by Higgins CJ on 2 December 2011. However, I accept that it would be inappropriate to impose a sentence of greater severity than that imposed by Higgins CJ, and accordingly I will reimpose the sentences that he imposed for those offences.
31. We note first, although it has no particular significance in this context, that Burns J described the offences he was dealing with for which Higgins CJ had initially sentenced the appellant as having been committed in "late 1998 to early 1999" (the period in which Offence B was committed), but Offence C was in fact committed in early 2000. It is enough for present purposes to refer to Offences B and C as the 1999/2000 offences.
32. What is significant is that Burns J concluded that by the time his Honour re-sentenced the appellant for the 1999/2000 offences, the appellant could no longer claim to have been of good character when he committed those offences, because the appellant had in a separate trial (before Burns J) been convicted of similar offences committed in December 1995 or January 1996 (the two 1995/1996 offences); therefore, Burns J concluded, the appellant was deserving of more severe sentences on re-sentencing than those initially imposed on him by Higgins CJ.
33. We note first Burns J's reference to the appellant having been "convicted" in a separate trial of the two 1995/1996 offences. In those sentencing remarks, which also related to the two 1995/1996 offences, his Honour formally recorded convictions for the relevant offences only after giving his reasons and immediately before specifying terms of imprisonment. We assume, therefore, that the references in the quoted extract from Burns J's sentencing remarks to the appellant being "convicted" were in fact references to the jury's findings of guilt rather than the formal recording of convictions. That is, what Burns J seems to have been saying is that because, by the time Burns J sentenced the appellant for the 1999/2000 offences, he had already been found guilty of similar offences committed several years earlier, he could not claim to have been a person of good character in relation to the 1999/2000 offences.
34. The appellant pointed out that, by the time Higgins CJ sentenced the appellant for the 1999/2000 offences, the appellant had also been found guilty (albeit in the same trial before Higgins CJ) of three other similar offences (acts of indecency on a person under 16 years but over 10 years), committed between 1995 and 1997 (the three 1995-1997 offences). Higgins CJ did not in his sentencing remarks explicitly record convictions, and it may be that his Honour had done so immediately after the jury returned their verdicts, or perhaps the recording of convictions was treated as implicit in the imposition of sentences of imprisonment.
35. Either way, the appellant's position in relation to the three 1995-1997 offences was the same when Higgins CJ sentenced the appellant for the 1999/2000 offences as the appellant's position in relation to the two 1995/1996 offences when Burns J re-sentenced the appellant for the 1999/2000 offences. That is, at the time of each sentencing for the 1999/2000 offences, the appellant had already been found guilty of similar offences committed between 1995 and 1997 - and conversely, at the time of committing the 1999/2000 offences, the appellant had committed all five of the offences found to have been committed in 1995, 1996 or 1997, but had not been found guilty of any of them.
36. In fact, the chronology at [4] above indicates that the second trial (before Burns J) had ended, with findings of guilt on the two 1995/1996 offences referred to by Burns J, two days before the appellant was sentenced by Higgins CJ. That is, when Higgins CJ sentenced the appellant, and when Burns J re-sentenced him, he had already been found guilty of all five of the offences committed between 1995 and 1997.
37. If Burns J was correct that findings of guilt on earlier offences arising from the same general set of circumstances and against one of the same complainants were enough to deprive the appellant of any benefit of prior good character at the time the offences were committed, we cannot see why it would matter whether the findings of guilt were made in the same trial or in separate trials arising out of the same circumstances.
38. In any event, it is not clear that Higgins CJ did approach the appellant's sentencing on 2 December 2011 "on the basis that [he was] a person of prior good character". Higgins CJ said:
The only thing really that can be said in favour of the accused is that he has no prior convictions of any relevant kind. He has, I assume, served with honour in the army. Certainly there is nothing to suggest that his discharge from the army was anything but honourable. His service is therefore entitled to be taken into account in his favour, as is the fact that he has a minimal number of prior convictions for nothing that would be relevant for present purposes.
Ameliorating against that, of course, is the fact that if he had had a record of sexual interference with young girls, it is highly unlikely that his good friend would have entrusted him with his daughters. It was in fact his good reputation, both in the army and generally speaking, that enabled him to be in the position in which he was. That is not to say he does not get any credit for it, but it does to some extent ameliorate the leniency that can be afforded to him in respect of his reputation and army service.
39. That is, his Honour noted that there were no prior convictions for relevant offences. In so finding, Higgins CJ appears to have been referring only to formal convictions recorded before the trial over which his Honour had presided, as distinct from, in respect of all but the earliest offence of which the appellant was found guilty in that trial, findings of guilt of earlier offences that were made in that same trial. In noting the absence of prior convictions, Higgins CJ also noted that the appellant would not have had the opportunity to commit the offences if he had already been a person of relevantly bad character.
40. What Higgins CJ said about the appellant's character, namely that the appellant had no prior convictions of any relevant kind when he committed the offences, that he had served with honour in the army, and that it was known he had committed similar offences in 1995, was as true at the time he was sentenced by Higgins CJ as when he was sentenced by Burns J. Higgins CJ was aware at that time that the appellant had committed offences in 1995.
41. In summary, at the point when Higgins CJ sentenced the appellant for Offences B and C, and at the point when Burns J sentenced the appellant for Offences B and C, a jury had found the appellant guilty also of similar offences committed earlier than either of those offences. In each case, such findings had been made both in a trial before the sentencing judge, and in a separate trial before the other judge.
42. Accordingly, we are satisfied that the explanation given by Burns J for imposing more severe sentences on re-sentence than were imposed by Higgins CJ originally was based on an incorrect interpretation of the circumstances in which his Honour undertook that re-sentencing, that his sentencing therefore did not properly address the principle of restraint, and that this ground of appeal has been made out.
43. A finding of specific error by a sentencing judge does not require an appellant to be resentenced unless the appellate court is also satisfied that a different sentence should be imposed (see, for instance, AB v The Queen [1999] HCA 46; 198 CLR 111 (Hayne J at 160); Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35] and [42]).
44. Before determining whether a different sentence is appropriate in this case, it is appropriate to consider briefly the matters raised by the appellant in relation to appeal grounds (a) and (b), namely that the sentence was manifestly excessive and that it was "crushing".
Appeal grounds (a) and (b): manifest excess and "crushing sentence"
45. The appellant's submissions in relation to the claim of manifest excess relied almost entirely on a comparison between the sentences imposed by Burns J and those imposed by Higgins CJ for the same offences. The only argument that related specifically to the sentences arising out of the trial before Burns J was that identified in appeal ground (c) and rejected at [19] above, namely that the two offences dealt with in the trial before Burns J arose from a single incident and Burns J erred in not making the sentences completely or even partly concurrent.
46. However, we are not convinced that a claim that a sentence is manifestly excessive can be established, in effect, by demonstrating that the sentence is more severe than the sentence imposed in an earlier but comparable sentencing process. It is well accepted that there is no single correct sentence in any particular case (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27], Gleeson CJ, Gummow, Hayne and Callinan JJ), and the mere fact that a sentence imposed on re-sentence is more severe than the original sentence (even where the original sentence has previously been identified by a Court of Appeal as severe) could not in our view establish that the new sentence is manifestly excessive.
47. Thus, in the absence of any useful submissions demonstrating that Burns J's sentence as such was manifestly excessive, we consider that appeal ground (a) can be rejected without examining whether, on a fair comparison of the two, the sentence imposed by Burns J was more severe than that imposed by Higgins CJ.
48. Appeal ground (b), that as a result of the accumulation of the various sentences, the new total sentence was "crushing", must also be rejected.
49. That claim is not in our view recognisable as an independent appeal ground. Without needing to consider in any detail the nature of the claim that a sentence is "crushing", we are satisfied that there is no sentencing principle that a sentence must not be "crushing", and in some cases any sentence that properly reflects the offender's total criminality will be "crushing", the obvious example being offences for which a life sentence is available and otherwise justifiable. See Allred v The Queen [2015] ACTCA 21; 10 ACTLR 325 at [48]-[53].
50. However, having found error in relation to the principle of restraint, it is appropriate for the purpose of determining whether another sentence is warranted to consider the appellant's submission that although the four offences dealt with by Burns J (Offences B, C, E and F) were overall less serious than the four offences originally dealt with by Higgins CJ (Offences A, B, C and D), the new sentences imposed by Burns J were, inexplicably, significantly more severe than those imposed by Higgins CJ.
51. There were several aspects to the general claim that the four relevant offences dealt with by Higgins CJ were more serious than those dealt with by Burns J while the four sentences imposed by Burns J were more severe than those imposed by Higgins CJ.
52. The Court of Appeal that heard the appellant's original appeal described the original total sentence as severe although not manifestly excessive, and noted that the comparatively short non-parole period was intended to ensure that the sentence was not "crushing" (at [125]).
53. Counsel submitted that the new total sentence related to "a lesser total criminality" than the sentences imposed by Higgins CJ. Burns J's substantial extension of both the length of the total sentence and, disproportionately, the length of the non-parole period were, the appellant said, inexplicable, because the four offences dealt with by Burns J could not properly have been assessed as more serious than the four offences for which the appellant's convictions had been overturned by the High Court.
54. The appellant relied on the following matters of comparison to found the argument that the new total sentence reflected "a lesser total criminality" and that the sentences imposed by Burns J should not have extended the total length, or the non-parole period, of the sentences originally imposed by Higgins CJ:
(a) That one of the two offences that had been abandoned before the re-sentencing (Offence A) had been described by Higgins CJ in his sentencing as "the most egregiously outrageous" of the appellant's offences.
(b) That, as a result of the abandonment of Offence A, Offence B bore a somewhat different character by the time Burns J sentenced the appellant for it than it had when Higgins CJ considered it.
(c) That Burns J had incorrectly sentenced on the basis that the appellant no longer had the benefit of prior good character.
55. The opinion expressed by Higgins CJ clearly affected the sentences imposed by his Honour. The sentence for Offence A was the longest sentence imposed by his Honour, and provided the most substantial extension of the total sentence.
56. However, Burns J was not required to sentence the appellant for this offence, and Higgins CJ's opinion about its seriousness was not directly relevant to Burns J's sentences; nor did it require Burns J to take any particular approach to the offences for which Burns J subsequently sentenced the appellant.
57. On the other hand, this does not preclude either the appellant, or this Court, noting Higgins CJ's approach to the abandoned Offence A in comparing the outcome of the sentencing exercises engaged in by Higgins CJ and Burns J.
58. The appellant said that one of the offences on which he was re-sentenced by Burns J (Offence B) had, in effect, changed its character since Higgins CJ first sentenced him for the offence.
59. In the original indictment, Offence A involved the appellant forcing DM to fellate him, and Offence B involved the appellant being fellated by DM in the presence of JM without JM's consent. That is, the original charge relating to Offence B involved the appellant, in the presence of JM and without her consent, committing an act of indecency that was also separately charged as a sexual assault on JM's sister.
60. The appellant's conviction for Offence A was set aside by the High Court, and was then abandoned by the Crown when the appellant pleaded guilty to two other offences, Offences B and C. Thus, when the appellant was sentenced for Offence B, there was no surviving charge alleging that the appellant had committed an offence involving forcing DM to fellate him and nor, properly, was any such allegation included in the statement of facts upon which the appellant was re-sentenced.
61. That meant that for Offence B, when dealt with by Burns J, the act of indecency committed in the presence of JM without her consent could no longer be characterised (as it had been when charged as Offence A) as a sexual assault by the appellant on DM, only as sexual activity between the appellant and DM.
62. The appellant submitted that Offence B when charged as count 2 in the new indictment could not have been assessed as objectively more serious than Offence B when charged as count 14 in the original indictment and when sentenced for by Higgins CJ.
63. As to the claim that the new total sentence was "crushing", counsel for the appellant submitted that the relatively short non-parole period set by Higgins CJ was the only thing preventing the earlier sentences being "crushing", and pointed out that the new total sentence was not only longer than the original total sentence but also had a disproportionately longer non-parole period.
64. Under the current non-parole period, the appellant will not be eligible for release on parole until just before his 65th birthday, and his sentence will not expire until he is 68 years old, whereas under the sentences imposed by Higgins CJ the appellant would have been 67 years old when his sentence expired.
65. The previous Court of Appeal at [125] said of the total sentence imposed by Higgins CJ that, while it was severe, it was not manifestly excessive, and concluded that:
the comparatively short non-parole period reflects not the trial judge's recognition that he had imposed an excessive head sentence but an intention to ensure that the head sentence, while severe, was not crushing and would serve the twin purposes of leaving some hope in the appellant for a worthwhile life after his return to the community and enabling a period of substantial supervision to ensure his reform.
66. The point of the Court's comment was, primarily, to deal with the submission that the relatively short non-parole period set by Higgins CJ hinted at his Honour's realisation that the head sentence imposed was in fact excessive. The Court did not say that any increase in the non-parole period, or any increase in the head sentence, would necessarily have rendered the overall sentence crushing.
67. We are not convinced that the sentences imposed by Burns J, if originally imposed in that form, would have been crushing. While it is true that the appellant would, under Burns J's sentences, be older than many other prisoners by the time he is eligible for release, the same could be said in relation to Higgins CJ's sentences. However, the appellant's relatively advanced age reflects simply that the relevant offending began when he was in his early 40s, continued until he was in his late 40s and, in circumstances common in relation to offending of that kind, did not come to light for nearly 10 years after the end of the offending. There were no submissions explaining why the longer non-parole period set by Burns J, which deferred the appellant's eligibility for parole from early in his 64th year to late in his 65th year, should make any significant difference to any expectation of a worthwhile life after his return to the community, or has otherwise rendered the new sentence "crushing".
68. The claim that Burns J imposed a "crushing" sentence has not been made out, and nor has that concept anything to contribute to the determination of whether another sentence is warranted in this case.
69. The original non-parole period represented roughly 54% of the total sentence, while the new non-parole period represented 65% of the new total sentence. While it is generally undesirable to assess non-parole periods on a mathematical basis, it is difficult to compare two non-parole periods, in the way required in this case, in any other way.
70. The original non-parole period was a relatively lenient one. The new non-parole period sits within the "normal" range of non-parole periods imposed in this jurisdiction: certainly it is not in the abstract a severe non-parole period. For instance, in Coggan v The Queen [2013] ACTCA 49 the Court of Appeal said at [25]:
No express reasons were given for the particular non-parole period that was set. However, having regard to the doubts expressed by his Honour, when he noted the appellant's failure to take advantage of previous rehabilitation opportunities offered, about the appellant's claimed commitment to rehabilitating himself, and to the fact that at 60% of the total sentence the non-parole period actually set was a medium level rather than a severe non-parole period, there is no obvious basis for a claim that any further explanation by his Honour was necessary.
71. In Drayton v The Queen [2013] ACTCA 44, the Court of Appeal said at [31], of a nonparole period representing roughly 69% of the total sentence:
While it is acknowledged by the Crown that the relationship of the non-parole period to the head sentence is somewhat higher than the range of such proportion that is commonly the case in this Territory, it cannot be described as manifestly excessive.
72. For reasons already discussed, we consider that the appellant has made out the following propositions:
(a) That the two new offences to which the appellant pleaded guilty on the new indictment filed after his successful High Court appeal could not have been regarded as objectively more serious, nor the appellant's culpability greater, than the seriousness of, and the appellant's culpability in relation to, the equivalent offences for which he had been sentenced by Higgins CJ to a total term of imprisonment 6 months shorter, and involving 18 months less accumulation.
(b) That the appellant's prior character in respect of the 1999/2000 offences was no different when he was sentenced by Burns J from his prior character when he was sentenced by Higgins CJ, and therefore his lack of relevant bad character before Higgins CJ did not justify more severe sentences on resentence.
(c) That, having regard to the abandonment of two charges on which Higgins CJ had sentenced the appellant and to his pleas of guilty on the other two of those charges, the appellant could reasonably have expected that the new total sentence would have been similar to, or at least not significantly longer, than the original total sentence, the head sentence of which had already been identified as severe although not manifestly excessive.
73. In those circumstances, we consider that, since the re-sentence after the successful appeal in this case both:
(a) increased the head sentence; and
(b) increased the non-parole period disproportionately to even the increased head sentence;
that re-sentence could easily give rise to "the perception ... that the offender was being punished for pursuing his right to appeal" (Pollock, quoted at [23] above).
74. We are accordingly satisfied that a different sentence from that imposed by Burns J, specifically a somewhat more lenient sentence, is appropriate in this case.
75. Difficulties with the appellant's access to rehabilitation programs, specifically the Adult Sex Offenders Program (ASOP), were raised as relevant to any possible re-sentencing.
76. The appellant had been assessed for the ASOP, an important part of rehabilitation for most sex offenders. He had been found to be at moderate-high risk of sexual re-offending, and to be suitable for the ASOP.
77. Counsel for the appellant submitted that he had shown some progress in rehabilitation before he was sentenced by Burns J, but that his capacity to undertake the ASOP while in custody had been affected by his appeals.
78. When this appeal was heard, the appellant had not yet begun the ASOP. He had advised the ASOP assessor in September 2014 that "he would prefer to await finalisation of both Court matters before commencing the ASOP". The assessor also noted, however, while confirming the appellant's suitability for the ASOP, that "Mr Gillard's legal situations will be required to [be] finalised before he can commence the program".
79. It is possible that an offender cannot undertake the program unless and until he admits his guilt of the relevant offences, and making the necessary admissions would obviously be inconsistent with maintaining a conviction appeal. Unfortunately, however, the court had no information about those matters.
80. The 2014 ASOP assessment contained the following information:
Detainees may commence the program in the AMC and complete it in a community ASOP group while on parole or other post-prison supervision.
...
It is estimated that most offenders will take about two years to complete the group program. Higher risk offenders will likely take longer than this.
81. As noted, the ASOP generally takes roughly two years to complete; despite what was said in the 2014 ASOP assessment quoted above, there was some uncertainty at the hearing of this appeal about whether that program had to be completed in custody (and if so whether this might delay a grant of parole to the appellant to ensure that he completed it) or whether, even if it could be completed in the community, his failure to undertake the program in custody might have affected the willingness of the Sentence Administration Board to grant him parole at any particular point. We understood that the parties were to file a note after the hearing providing any further information they could discover about the ASOP, but no such note has been provided.
82. In the absence of any such note, but having regard to the material quoted at [80] above, it seems to us that the appellant's failure to begin the ASOP, at least after it became clear that there would be no further conviction appeal, does him no good in the current exercise, but nor does it do him any harm. In particular, we do not see that it has any significance in re-sentencing; it prevents him from claiming any relevant rehabilitation progress that might justify a reduction in the new sentences, but equally it does not seem to require any new non-parole period to be extended to ensure that he has time to complete the ASOP in custody. Unless it emerges that the appellant is not in fact inclined to undertake the ASOP, we cannot see why, given the history of this matter, the Sentence Administration Board would see any need to refuse the appellant's release on parole until he actually completed the program. Indeed, even in the case of reluctance on the appellant's part, release on parole with a condition requiring him to undertake the ASOP would seem to provide an adequate incentive for the appellant to cooperate in completing the ASOP.
83. It was put on behalf of the appellant that the various pre-sentence reports prepared in this matter showed some change in the appellant's attitude to the offences.
84. Three presentence reports were available to us, dating from November 2011 in relation to the offences tried before Higgins CJ, and from September 2014 and October 2014 in relation to the offences tried before Burns J.
85. The 2011 pre-sentence report (prepared while the appellant's first appeal was pending) noted the appellant's denial of a number of the offences, claiming that the relevant sexual activity had been a "mistake" on his part, and blaming the young teenage victim whom he said was flirtatious and a manipulator.
86. By the time of the October 2014 pre-sentence report, the appellant expressed regret, and "a degree of victim empathy", in relation to the offences tried before Burns J, but still refused to accept full responsibility for his actions, blaming them on a "misunderstanding".
87. Even if these reports do demonstrate a real change in the appellant's attitude rather than a recognition of the attitude that he ought in his own interests to express, we do not consider that they demonstrate a change in attitude sufficient to justify any further leniency on re-sentencing than seems to be required by the principle of restraint.
88. In summary, there is nothing in the material relating to the appellant's rehabilitation that would justify any reduction in his sentencing beyond what is otherwise required by the matters already considered.
89. For reasons explained above, we cannot see any legitimate basis on which the appropriate sentences for the offences originally dealt with by Higgins CJ should be longer than those set by Higgins CJ. Having regard to the pleas of guilty entered in relation to those offences, there is also no basis on which to refuse the appellant a plea of guilty discount.
90. We note the respondent's submission that the 15% discount given by Burns J was in any case too high for what was a very late plea, and also the direct benefit to the appellant arising from the pleas of guilty and the negotiations with the Crown. For those reasons, we consider that the plea of guilty discount should be small, and that it need not be applied to further reduce the already generous concurrency provided by Higgins CJ.
91. Accordingly, we uphold the appeal, and re-sentence the appellant to imprisonment as follows:
(a) for Offence B (act of indecency): 5 months, reduced from 6 months for the plea of guilty, cumulative on the sentence imposed for Count 19 before Higgins CJ;
(b) for Offence C (sexual intercourse without consent): 3 years 8 months, reduced from 4 years for the plea of guilty, accumulated on the Offence B sentence as to 30 months;
(c) for Offence E (act of indecency on person under 16 years): 12 months, accumulated on the Offence C sentence as to 6 months;
(d) for Offence F (attempted sexual intercourse with person under 16 years): 4 years, entirely accumulated on the Offence E sentence.
92. We note the sentences imposed by Higgins CJ and confirmed by Burns J for the offences charged in Counts 2, 3, 4 and 19 in the first indictment and confirm the adjustment made to the starting date of the sentence on Count 19. Those sentences, together with the sentences set out at [91] above, give a total sentence of 9 years and 2 months imprisonment, to run from 2 December 2011 to 1 February 2021.
93. We specify the same non-parole period as set by Higgins CJ, being 5 years and 3 months starting from 2 December 2011 and expiring on 1 March 2017.
94. On the day before the day listed for this judgment to be delivered, and after the judgment had been settled for delivery, the Court received a document fitting the description of the note mentioned at [81] above. The delay in providing the note seemed to lie largely with the appellant and his lawyers, although the respondent had not dealt with promptly with the draft document eventually provided by the appellant's lawyers.
95. The note relevantly provided the following information about the ASOP and the appellant's capacity to undertake it:
(a) the indicators of unsuitability for undertaking the ASOP;
(b) that the duration of the program is on average 240 hours;
(c) that as at 6 June 2016 there had been no delay in the appellant beginning the ASOP, because the preferred position of ACT Corrective Services is for offenders to begin the program at a time such that they will complete the program before, but not too long before, their earliest release date;
(d) that since the appellant's earliest release date is currently in December 2018, there would not have been any plan for him to begin the program earlier than June 2016;
(e) that the ASOP may be begun in the AMC and completed in the community, or vice versa.
96. The information did not indicate the period over which an offender would usually be expected to complete the 240 hours of the program.
97. Nothing was put before us suggesting that any of the indicators of unsuitability applied to the appellant.
98. In our view, there is nothing in that information that is inconsistent with the basis on which we expressed our comments at [75] to [82] above, and nothing that requires us to reconsider any of our conclusions.
I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Gillard
The Queen [2016] ACTCA 50