GJ v R

the application for leave to appeal 21 Initially, the only ground advanced was that the sentence imposed is manifestly excessive. However, at a later stage and after a change of counsel, the grounds were amended to include complaints to the effect that his Honour erroneously believed that unless the case were shown to be exceptional, he was compelled (by precedent and authority) to impose a full time custodial sentence, and proceeded to sentence on that erroneous basis; and that the sentencing starting point, before reduction referable to the plea of guilty, was too high in the circumstances and that the judge failed to give sufficient weight to the need for the appellant to undergo treatment for his offending behaviour. These additional grounds could well be seen as an explicit specification of the ground that the sentence was manifestly excessive, and, in substance, reflect what was contained in the written submissions filed in support of the original ground. In the context both of the original and the additional grounds, the submission made at sentencing was repeated that, in all of the circumstances of the case, it was not necessary that a full-time custodial penalty be imposed; and that, even if such a penalty were to be imposed, that the sentence selected was manifestly excessive. 22 The reference to "Hunt CJ" in the passage from the remarks extracted above was a shorthand reference to a decision that had been urged upon the sentencing judge as authority for the proposition that it is not necessary, in all cases of offences against s61O, that a full-time custodial sentence be imposed. That was a decision in R v Baxter (unreported, NSWCCA, 26 May 1994). 23 There, dealing with three charges of committing an act of indecency (as distinct from, but of the same genre as, inciting a complainant to commit an act of indecency) upon his 10 year old daughter, the offender, who had also faced similar charges in Victoria, was given the benefit of a deferred sentence. The acts of indecency involved fondling the complainant's vagina, and having her wash his penis in the shower whilst he washed her vagina. On a Crown appeal against asserted inadequacy, Hunt CJ at CL, with whom Finlay and McInerney JJ agreed, said: "The present case did not involve even indecent assault charges. The charges were only for committing acts of indecency. The difference is not insignificant, in that the maximum sentence prescribed for an indecent assault committed with or towards a person under the authority of the prisoner was one and a half times that for an act of indecency in similar circumstances. I do not believe that it is appropriate for this Court to lay down a requirement that a custodial sentence should ordinarily be imposed in relation to the lesser charge. " (emphasis added) 24 Counsel's argument was that the passages extracted above indicate that Kinchington DCJ misunderstood the effect of Baxter, interpreting it as holding that only in an exceptional case of an offence against s61O would it be appropriate to impose a non-custodial sentence. Counsel who appeared for the Crown on appeal agreed that, if that were the effect of those passages, and that his Honour could be shown to have been under that impression, the passages are indicative of error in the approach taken by the judge. However, counsel pointed to other aspects of the remarks on sentence that would point to a contrary construction of what was said. In between the two passages I have already extracted, the following appears: "In particular Mr Ritchie referred me to the observations made by Hunt CJ at CL in the case of Regina v Baxter ... In that case Hunt CJ, in delivering the judgment of the court, made the following comments about this type of offence: 'I do not believe that it is appropriate for the Court to lay down a requirement that a custodial sentence should ordinarily be imposed in relation to this lesser charge.' - In that regard he was comparing this type of charge to the charge of sexual assault. As I understand what Hunt CJ is saying in that case is, that a court sentencing a person on a charge such as this, must not inevitably come to the conclusion that a custodial sentence is called for and he does not overrule a court coming to that conclusion but says that it is within the range for this type of offence with in certain circumstances may justify a non-custodial sentence." 25 This would indicate to me that Kinchington DCJ was fully aware of what was held in Baxter. Counsel for the applicant, however, argued that the words to "in certain circumstances" in the closing part of the passage last extracted, was further support for the proposition that his Honour was under the misapprehension that exceptional circumstances had to be established before a non-custodial sentence could be imposed. That would involve reading the word "certain" as "exceptional" - a reading I do not think is open on the material. 26 There is, in my opinion, another interpretation of the passages under consideration that is equally open. That is that Kinchington DCJ had in mind the serious objective nature of the circumstances of the applicant's offence, and considered that, against that objective seriousness, it would be necessary to show exceptional ameliorating or countervailing circumstances before a non-custodial penalty could be imposed - that is, that in these remarks his Honour was focussing upon the particular circumstances of the offence with which he was dealing, and, importantly, on the objective gravity of the offence itself. In my opinion, that is a correct analysis of the remarks. The objective circumstances of this offence were such that only something exceptional in the subjective circumstances or other material would justify the imposition of a non-custodial sentence. And, as counsel for the Crown pointed out in the relevant passages, there were a number of references to "this matter" or "a case such as this". His Honour was, correctly, focussing upon the case that was before him, both the objective circumstances, and the subjective circumstances. 27 I am satisfied that his Honour did not misunderstand Baxter, and did not misdirect himself with respect to the necessity to impose a full-time custodial sentence. 28 But even if he had, in my opinion, this was not a case that would have warranted the imposition of any sentence other than one of full-time custody. The applicant's subjective circumstances were by no means exceptional. Counsel for the applicant urged that his need for rehabilitation was of paramount concern. Two answers may be made to this. The first is that, while an offender's need for rehabilitation is a relevant sentencing consideration, it does not take paramountcy over other sentencing objectives, such as denunciation, punishment, and general and specific deterrence. The second answer is that the evidence suggested that the treatment of the kind required by the applicant could have been available in prison. On the evidence before his Honour, it was not a case of the applicant having treatment available to him only if he were given a non-custodial sentence. 29 A further submission that was made was that his Honour treated the explanation given by the applicant as an aggravating feature. This was a reference to his Honour's observation that the explanation in no way excused his conduct, but if anything "probably makes it a little bit worse". I do not know that inflicting sexual abuse upon an 11 year old child for the purpose of punishing her mother is worse than inflicting sexual abuse on the same child for the purpose of sexual gratification. However, I do not think his Honour treated the explanation as an aggravating feature in the sense that it had an adverse (to the applicant) effect on the selection of sentence. 30 A further argument was put that, by reason of the applicant's explanation for his conduct, the need for the sentence to reflect considerations of general deterrence was diminished. In my opinion, this denotes a misunderstanding of the role of general deterrence in sentencing. Sentences are required, in appropriate cases, to contain a component referable to general deterrence for the express purpose of deterring others from committing the same crime, or type of crime. They are not required to contain a deterrence component for the purpose of deterring others from committing the same crime for the same reason, or motivation. Motivation is irrelevant to issues of general deterrence. 31 I would reject these bases of the application. 32 In written submissions it was urged upon the Court that the applicant: "...has been punished to some real extent by reason of the loss of his family reputation and self esteem."