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THE COURT:

1. This matter was remitted to the Court of Appeal by the High Court for consequential orders with respect to sentence.

Procedural history

2. It is convenient to the set out the procedural background for the remittal made by the High Court.

3. After a trial by jury, GW (the offender), was convicted on one count of an act of indecency in the presence of a child under the age of ten years, being the offender’s five-year-old daughter.

4. It is not necessary to set out further facts in relation to the offending for present purposes. It is sufficient to record that the trial judge sentenced the offender to imprisonment for two years. The first three months of that sentence was to be served by periodic detention. The remainder of the sentence was to be suspended upon the offender signing an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years. That Good Behaviour Order was subject to conditions that:

(a) For such a period not exceeding two years as ACT Corrective Services considers necessary, the offender accept the Director-General’s supervision and obey all reasonable directions;

(b) The offender undertake such counselling, courses, programmes or treatment as directed by his supervising officer and;

(c) The offender be assessed and, if found suitable, undertake the Adult Sex Offender Program.

5. This sentence was handed down by the trial judge on 14 July 2014. After lodging an appeal against his conviction the offender applied, on 23 July 2014, for a stay of execution of his sentence. By this date the offender had served some short period of imprisonment. The stay was granted.

6. The offender prosecuted his appeal against conviction in the Court of Appeal. There was no appeal against sentence either by the offender or by the Crown.

7. On 24 April 2015, the Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial: [2015] ACTCA 15.

8. On 16 October 2015, the High Court granted the Crown special leave to appeal the orders of the Court of Appeal.

9. On 2 March 2016, the High Court set aside the orders made by the Court of Appeal: R v GW [2016] HCA 6. This had the effect of reinstating the offender’s conviction. The proceeding was remitted back to the Court of Appeal for consequential orders with respect to sentence.

10. Consequential orders are necessary because of the enactment of the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) which commenced on 2 March 2016. That Act rendered periodic detention no longer available to the offender. Counsel did not submit that any of the transitional provisions in that Act were applicable to the offender’s circumstances.

11. It was common ground on appeal that the so called “ceiling” principle applied so that the trial judge’s sentence could not be increased in its severity: see Armstrong v Regina [2015] NSWCCA 273 at [41]–[45] where the application of this principle is discussed.

Submissions on appeal

12. The Crown’s primary submission was that the head sentence of two years imprisonment ought not be disturbed, and that the number of remaining days to be served under the periodic detention order be converted into a full time custody equivalent. This was the approach taken in Quzag v The Queen (Unreported, Court of Appeal of the Australian Capital Territory, Refshauge, Burns and Wigney JJ, 2 November 2015), a decision of this Court where reasons have not yet been delivered. Such an approach has the benefit of being able to be objectively calculated, but it does not take account of other differences between full-time imprisonment and periodic detention.

13. The offender’s primary submission was that, having regard to subjective factors and the delay caused by the finalisation of the proceedings, the two-year sentence should now be wholly suspended, with the Good Behaviour Order to continue and to include the conditions set out by the trial judge.

14. There may be cases where a court will accede to such a submission owing to changed circumstances. However, we are of the view that in the circumstances of this case there is good reason to give effect, as far as is practicable, to the trial judge’s sentence. There is every reason why an appellant, who applies for a stay of execution of a sentence pending the outcome of an appeal, should serve that sentence when the appeal is resolved. At the very least, that should be the starting position.

15. In this case, the trial judge explicitly said that she was “satisfied that there is no need for any of his sentence to be served in full-time custody”: The Queen v GJ [No. 3] [2014] ACTSC 193 at [29].

16. At [21]–[22] under the heading of “Sentencing options”, the trial judge said:

17. The Pre-Sentence Report assessed GJ as unsuitable for community service but suitable for periodic detention. The unsuitability for community service was due to health concerns. GJ provided a report from his GP about his general health with particular reference to his suitability for community-based sentencing options. His doctor provided detailed medical information and concluded: In summary, GJ is a 65 year old male who is slightly overweight who suffers from hypertension that is adequately controlled. There is nothing in his medical history or examination that precludes him from performing community work with the following suggested restrictions. No heavy manual labour that involves lifting, pushing or pulling more than 20kg or pick and shovel work. He is fit to paint, pick up litter and other light manual work. 22. The Pre-Sentence Report author was invited to review her assessment of GJ as unsuitable for community service by reference to that medical advice, but no further advice was formally received. Defence counsel, however, said that his instructing solicitor, but not apparently the prosecutor or the court (which I regard as an entirely unsatisfactory approach by Corrective Services), had been advised that the medical advice did not change the assessment of unsuitability. The instructing solicitor has since indicated that this was because of the limited kinds of community service that were available to sex offenders as a group. I am surprised at the implication of the Corrections advice that community service is not available to a sex offender who cannot lift, push or pull more than 20 kilograms or engage in pick and shovel work. Among other things, this might well exclude a greater proportion of female offenders than male offenders, an outcome which would seem to be unacceptable, although I accept that the majority of sex offenders are male.

18. Upon the hearing of the appeal, having regard to the trial judge’s remarks the Court suggested that the availability of community service work should be revisited. The hearing of the appeal was adjourned for a number of hours pending a further assessment of the offender as to his current suitability for community service. Both counsel embraced this option.

Further ACT Corrective Services report

18. The Court Duty Officer reported to the Court that pursuant to s 90 of the Crimes (Sentencing) Act 2005 (ACT), the offender had been assessed as suitable for a community service work condition and that work is available.

Disposition

19. We consider that a community service order gives effect, as far as is possible, to the trial judge’s remarks on sentence and that approach ought to be preferred to a mathematical one that attempts to calculate the period of full time imprisonment that would be equivalent to the unserved periodic detention.

Orders

20. The sentence ordered by the trial judge is set aside.

21. In lieu thereof:

(a) The Court sentences the offender to imprisonment for two years, suspended forthwith for two years.

(b) The offender be required to sign an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years, commencing on 29 March 2016, with security in the amount of $5,000 subject to the following conditions:

(i) The offender is to perform 200 hours community service within 12 months.

(ii) For such period not exceeding two years as ACT Corrective Services considers necessary, the offender is to accept the Director-General’s supervision and obey all reasonable directions of the Director-General or her delegate;

(iii) The offender is to undertake such counseling, courses, programs or treatment as directed by his supervising officer; and

(iv) The offender is to be assessed and, if found suitable, the offender is to undertake the Adult Sex Offender program. (c) The offender is to report to Eclipse House within 48 hours of the entry into the above good behavior order.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of the Court.

Associate:

Date: 30 March 2016