Hawke v The Queen [2019] VSCA 276

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 The appellant pleaded guilty in the County Court to seven offences on an indictment containing two State charges and five Commonwealth charges. On 19 April 2018, he was sentenced to a total effective sentence of 10 years and 3 months' imprisonment, with a non-parole period of 7 years and 6 months.[1]

2 In respect of the State offences, the judge imposed a total effective sentence of 4 years, with a non-parole period of 18 months, commencing on the date of sentence (19 April 2018). In respect of the Commonwealth offences, the judge imposed a total effective sentence of 8 years and 9 months' imprisonment, and fixed a non-parole period of 6 years. The judge ordered that the first of the Commonwealth sentences to be served would commence on 19 October 2019, 18 months after he imposed sentence. Thus, the effect of the judge's sentences and orders was to require the appellant to serve 18 months of the total effective State sentence (being the entirety of the State non-parole period) before serving the terms of imprisonment imposed for the Commonwealth offences.[2]

3 The substance of the various sentences and orders made by the judge was as follows:

Producing child abuse material outside Australia, contrary to s 273.6(1) Criminal Code (Cth)

Sexual assault contrary to s 40(1) Crimes Act 1958 (Vic)

Use carriage service to transmit child pornography material contrary to s 474.19(1) Criminal Code (Cth)

Knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958 (Vic)

Do an act with the intention of planning an offence against s 272.8 Criminal Code (Cth) contrary to s 272.20(1) Criminal Code (Cth)

Engage in conduct to encourage an offence against Division 272 of the Criminal Code (Cth) (namely s 272.8(1) and s 272.9(1)) contrary to s 272.19(1) Criminal Code (Cth)

Engage in conduct to procure a child believed to be under 16 to engage in sexual activity outside Australia contrary to s 272.14(1) Criminal Code (Cth)

Section 6AAA Statement: 13 years, with a non-parole period of 10 years.

4 As a result of the sentences imposed on charges 2 and 3, the judge sentenced the appellant as a serious sexual offender on charge 4. The record of orders completed subsequently, however, incorrectly records the appellant as being sentenced as a serious sexual offender in respect of charges 2 and 4. Whatever the outcome of this appeal, the appellant submits that this error in the record should be corrected pursuant to s 325 of the Criminal Procedure Act 2009 ('Criminal Procedure Act').

5 On 7 August 2018, the appellant filed an application for leave to appeal against sentence, identifying six proposed grounds of appeal. On 9 November 2018, a judge of this Court granted the appellant leave to appeal on proposed ground 4, and refused leave in respect of the appellant's other proposed grounds.[3] The ground upon which leave was granted is as follows:

1. The judge erred in imposing a sentence on charge 2 that was manifestly excessive.

6 As the sole ground of appeal is whether the sentence imposed on charge 2 was manifestly excessive, it is not necessary at this stage to describe the details of the offending constituted by charges 1 and 3 to 7. It is sufficient for present purposes to describe the offending constituting charge 2.

7 The offending constituting charge 2 occurred during the course of an incident in early 2017 when the appellant, who was then 68 years of age, assaulted the complainant, a 23 year old woman who resided in the same share house with him. The complainant was cognitively impaired. The offending was revealed to police, by the complainant, during the execution of a search warrant of the house on 31 March 2017.

8 In summary, sometime between 1 January 2017 and 30 March 2017, the complainant went into the appellant's bedroom and asked him for his car keys. The appellant was not wearing pants or underwear and he did not cover himself. After telling the appellant that she had obtained her licence to drive, he gave her a hug. Because the appellant was half naked, the hug made the complainant uncomfortable. The appellant said words to the effect, 'You look after me, I'll look after you'. He grabbed her hand and tried to put it on his penis. The complainant pulled away, said 'no' and left.

9 The judge commenced his reasons for sentence with a description of each of the offences to which the appellant pleaded guilty. Those details included:

(1) Charge 1 involved the production of a video in 2015 when the appellant was in Thailand. In the video, the appellant is naked and whipping a naked 16 year old girl. The child's wrists are bound above her head and she is wearing a dog collar around her neck.

(2) Charge 2 involved the sexual assault to which we have already referred.

(3) Charge 3 involved the transmission of child pornography images, a number of which were classified as falling in 'the most serious category involving sadism and bestiality'.

(4) Charge 4 involved the possession of child pornography. This material included depictions of sexual penetrations between a child and an adult, the child being aged between 10 and 12 years. Analysis of the appellant's electronic devices revealed search terms used by him including 'school girl torture stories', 'school girl caning video', 'Japanese virgin deflowered', 'pre-teen school girl whipping videos' and 'young girls trained as sex slaves'.

(5) The offending constituted by charges 5, 6 and 7 involved conversations between the appellant and another person, GM. GM was the mother of D, the girl depicted in the video the subject of charge 1. The appellant and GM discussed the possibility of the appellant committing further offences against D and D's two year old daughter, GD. The conversations included the appellant encouraging GM to engage in sexual activity with GD by placing GM's fingers in the baby's anus to see how many fingers could be inserted so that the appellant could penetrate GD's anus with his penis when next he travelled to Thailand. In another conversation, the appellant telephoned GM and stated that he wanted to anally penetrate GD and that he wanted GD to suck his penis while he again whipped D. As the judge put it:

The conversations are very disturbing, depicting scenarios that amount to the most serious and depraved sexual and physical abuse of very young children.[4]

10 The judge referred to the appellant's personal circumstances, noting that he was 69 years of age and single, had never married and had no children; that following the completion of his schooling, he had been extensively employed in marketing, sales and manufacturing industries; and that he suffered from a number of identified medical conditions. The judge described the appellant as having limited support in the community and having for the last 10 years 'effectively led a nomadic lifestyle travelling'.[5]

11 Next, the judge turned to relevant sentencing considerations, noting that the appellant had no prior convictions. The judge said that specific deterrence had a part to play in the sentencing synthesis, and that just punishment and denunciation were also relevant sentencing considerations.[6]

12 After dealing with the principles of totality and parsimony and a submission made about the appellant's personal circumstances and health issues, the judge turned to the appellant's plea of guilty and prospects of rehabilitation.[7] The judge said that the appellant's plea of guilty had facilitated the course of justice, although there was no evidence of any genuine remorse over and above the plea of guilty. The judge described the appellant's prospects of rehabilitation as having to be 'approached with caution'.

13 Finally, the judge said he took into account the victim impact statement made by the complainant in relation to the sexual assault and the effects of that crime on the complainant. The judge described the complainant as 'a vulnerable person' whom the appellant had sexually assaulted in an opportunistic way.[8]

14 In support of his contention that the sentence he received on charge 2 was manifestly excessive, in his written case, the appellant relied upon the following matters:

(1) He had no prior convictions.

(2) He pleaded guilty.

(3) The offending against the complainant was the only act of its kind by him against the complainant.

(4) The offending was opportunistic, occurring when the complainant entered the appellant's bedroom at a time when he was undressed.

(5) The physical contact with the complainant was limited to grabbing her hand.

(6) The appellant made no attempt to maintain contact when the complainant pulled away and did not obstruct her departure from his room.

(7) The episode was fleeting.

(8) While the complainant had a cognitive impairment and was found by reason of that impairment to be vulnerable, it could not be found as a matter of aggravation that the appellant in any way preyed upon that vulnerability to undertake the offending.

(9) The appellant did not fall to be sentenced as a serious sexual offender on charge 2.

(10) While s 6E of the Sentencing Act 1991 contained a presumption of cumulation in respect of charge 4, justifying some cumulation between that charge and charge 2, the cumulation of one year was manifestly excessive 'in circumstances where charge 2 took place within the period of charge 4'.

(11) Section 16(1) of the Sentencing Act 1991 provided for a presumption of concurrency between charge 2 and the Commonwealth charges.

15 In oral argument, the appellant relied in particular on points (2) to (7) and the fact that, while the complainant may have initially been too frightened to disclose the appellant's offending against her, the evidence did not disclose any basis for suggesting that the complainant's 'fear' was cultivated by the appellant. In relation to the appellant's plea of guilty, it was submitted that this was a significant plea in circumstances where the appellant said he had no memory of the incident alleged by the complainant.

16 In response, the respondent contended that the sentence of 2 years on charge 2 was not manifestly excessive for an offence carrying a maximum penalty of 10 years when regard was had to the nature and circumstances of the offence. The respondent then made the following points:

(1) The assault was committed on a 23-year-old cognitively impaired woman.

(2) The complainant was vulnerable and resided in the same house as the appellant - a place where she was entitled to feel safe.

(3) The offending was opportunistic, and the appellant took advantage of the complainant's desire to borrow his car by telling her words to the effect of 'You look after me, I'll look after you'.

(4) The complainant was too frightened to disclose the offending to anyone else.

(5) It was clear from the victim impact statement that the complainant was harmed by the offending.

(6) The 'modest degree of cumulation, being only 12 months', was justified to reflect what was a distinct and different instance of offending involving another individual victim.

17 As a fall-back argument, the respondent submitted that even if this Court found that the sentence imposed on charge 2 was manifestly excessive, the appeal should be dismissed because no different total effective sentence or non-parole period should now be imposed. In making that submission, the respondent relied upon a passage in the judgment of the plurality of the High Court in Kentwell v The Queen.[9]

18 Kentwell was a case involving the application of s 6(3) of the Criminal Appeal Act 1912 (NSW). That section relevantly provided:

On an appeal ... against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal.

19 In their consideration of the section, the plurality of the High Court[10] said:

After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal.[11]

20 The respondent submitted that the emphasised passage in Kentwell set out above entitled this Court to dismiss the appellant's appeal if we concluded that, despite a manifestly excessive sentence being passed in relation to charge 2, the seriousness of the appellant's offending on other charges meant that there should be no reduction in the total effective sentence or the non-parole period imposed by the judge.

21 In response to the respondent's Kentwell submission, the appellant contended that the course suggested by the plurality was, in the light of the relevant statutory provisions in the Criminal Procedure Act and their legislative history, not open to this Court. Relying upon this Court's decision in Ludeman v The Queen,[12] the appellant submitted that, if this Court found there was an error in the sentence on charge 2 and that a different sentence should be imposed on that charge, then this Court would be required by s 281(1) of the Criminal Procedure Act to allow the appeal and impose the sentence that we considered appropriate.[13]

22 The appellant drew attention to the amendment made to s 280 of that Act, following Ludeman, which permits this Court to refuse an application for leave to appeal against sentence if there is 'no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed'. No corresponding amendment was made to s 281 in relation to the determination of an appeal. It was submitted that the failure to amend s 281 told against the Court having any power to dismiss an appeal on the same basis - there being no express statutory provision allowing such a course to be taken once leave to appeal has been granted.

Does Kentwell permit this Court to take the course contended for by the respondent?

23 In Ludeman, this Court determined that the word 'sentence' in ss 280 and 281 of the Criminal Procedure Act was intended to refer to sentences for individual offences and not to include the 'total effective sentence' in a multi-sentence case.[14] Following this Court's decision in Ludeman, s 280 of the Criminal Procedure Act was amended so as to permit the Court of Appeal to refuse an application for leave if there was no reasonable prospect that the Court would reduce the total effective sentence despite there being an error in the sentence first imposed. A definition of 'total effective sentence' was inserted in s 3 of the Act as follows:

Total effective sentence means the product of individual sentences and orders for cumulation or concurrency of those sentences imposed on a person on the same occasion.

24 No corresponding amendment was made to the Court's powers under ss 281 and 282 in relation to the determination of an appeal. Once leave has been granted, therefore, the Court must allow an appeal if it considers that an individual sentence is erroneous, even if the total effective sentence will be unaffected by the correction of that sentence.

25 That said, having regard to the different legislative history of the Criminal Procedure Act from that of the Criminal Appeal Act 1912 (NSW), the ability of this Court to take the course contended for by the respondent must be seriously doubted. In the circumstances of this case, however, and for reasons which will become apparent, it is not necessary for us to resolve this question in this case. We will leave the matter to be resolved in a case where the issue is critical to the outcome of an appeal.

26 In order to establish manifest excess it is necessary to show that the sentence was wholly outside the permissible range of sentencing options available to the judge. As this Court has repeatedly emphasised, the test of manifest excess is a stringent one.

27 There can be no doubt that the sentence on charge 2 in this case was very high. Whether it was so high as to be wholly outside the permissible range is a more difficult question. For a man in his late 60s to commit a sexual assault on a vulnerable, cognitively-impaired young woman in her home, where she was entitled to feel safe, is undoubtedly serious. That said, and without diminishing the seriousness of the appellant's offence, there are many examples of the offence of sexual assault that are more serious than the present case.

28 In his reasons for granting leave to appeal on ground 4, Ashley JA concluded that the sentence on charge 2 was 'outside the bounds of the reasonable exercise of the judicial discretion'.[15] Having considered the matter for ourselves, and notwithstanding the powerful arguments advanced by counsel for the respondent, we accept that a sentence of 2 years' imprisonment on a plea of guilty for an offender with no prior convictions was, in all the circumstances, outside the permissible range. While we think a term of imprisonment was called for, 2 years was, with respect, manifestly excessive for the limited form of the offending that constituted charge 2.

29 We turn now to what follows from this conclusion.

30 As we have already observed, the difficulties and complexities which confront a sentencing judge when required to sentence on multiple State and Commonwealth offences are well known. In Director of Public Prosecutions v Swingler,[16] this Court identified three possible ways in which a sentencing judge faced with such a case might proceed. In sentencing the appellant, the judge adopted the second of those possibilities, which the Court had described in these terms:

The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime. [17]

31 In adopting that approach, the judge made orders directing that the Commonwealth sentences commence at the end of the 18 month non-parole period for the State offences. That is, as a result of all of the sentences passed and orders made by the judge, the appellant will only be required to serve a total 18 months for the State offences (charges 2 and 4).

32 When one looks at all of the criminality for which the appellant fell to be sentenced, requiring him to serve only 18 months for the State offences in addition to the Commonwealth head sentence and non-parole period of 8 years and 9 months and 6 years respectively was, to say the least, a modest approach. In our view, there is much to be said for the proposition that the appeal should be dismissed on the basis that, adopting what was said in Kentwell, the appellant should have been sentenced to a longer term in respect of the State offences and longer terms in respect of the Commonwealth offences. As we have already observed, however, the question of whether that approach is open in this case, having regard to the relevant provisions of the Criminal Procedure Act and their legislative history, must be doubted.

33 The effect of our conclusion that the sentence imposed on charge 2 was manifestly excessive is that there is an error in that sentence and that a different sentence should be imposed. In such circumstances, ss 281 and 282 of the Criminal Procedure Act require this Court to allow the appeal, set aside the sentence imposed on charge 2 and (unless we were to remit the matter to the County Court) now impose the sentence which we consider appropriate.

34 The setting aside of the sentence and order for cumulation on charge 2 then raises the question of what other sentences or orders this Court might have power to alter. Questions of this kind arise from time to time and the answer in each case depends on the nature and extent of the error in the sentence(s) under appeal.[18] The answer in the present case is provided by Ludeman. The Court there held that, where a sentence for an individual offence is erroneous, ss 281 and 282 of the Criminal Procedure Act permit this Court to alter not only that sentence but also any non-parole period which has been fixed and any orders for cumulation attached to that sentence.[19]

35 In granting leave to appeal, Ashley JA expressed the view that the reasonable range of sentences on charge 2 was 'not more than 3 to 6 months' imprisonment'.[20] His Honour went on to say:

Of course, even if this Court concluded that there must be some reduction in the total effective State sentence and the State non-parole period, it would not necessarily follow that the applicant could successfully impugn the global total effective sentence or global non-parole period. It appears to me very probable that, if there was to be any adjustment at all in the global total effective sentence and non-parole period by reason of the sentence on Charge 2 being manifestly excessive, it would be modest indeed. I am inclined, indeed, to think that it is improbable that there would be any such reduction.[21]

36 While Ashley JA was inclined to think that it was improbable that a resentencing on charge 2 would result in a lower global total effective sentence and non-parole period, he did not avail himself of the power in s 280(1)(b) of the Criminal Procedure Act to refuse leave to appeal. His Honour observed that, in sentencing the appellant, the judge had in fact imposed three total effective sentences. He then said that, while it might be correct to read the definition of 'total effective sentence' in s 3 of the Act as applying only to the global total effective sentence (enabling s 280(1)(b) and (3) of the Act to be applied if appropriate) in the absence of argument, and sitting as a single judge, he was not prepared to so conclude.[22] Leave to appeal having now been granted by his Honour, however, the question of whether s 280(1)(b) could have been utilised does not arise for our consideration in this case.

37 Having examined the circumstances of the sexual assault committed by the appellant and his personal circumstances, we are in substantial agreement with the conclusions of Ashley JA. In our view, the appropriate sentence to be imposed on charge 2 is 6 months' imprisonment, 3 months of which should be served cumulatively upon the sentence imposed on charge 4. This would make a total effective State sentence of 3 years and 3 months.

38 Notwithstanding the forceful submissions of counsel for the appellant, we are entirely unpersuaded that there should be any reduction in the State non-parole period of 18 months. Nor (assuming we had power to do so) would we alter the commencement dates of the Commonwealth sentences.

39 On a State head sentence of 3 years and 3 months, 18 months (being less than half) is, in the circumstances of this case, an entirely appropriate non-parole period. And the expiry of the non-parole period is the appropriate commencement date of the Commonwealth sentences.

40 The appeal must be allowed for the purpose of correcting the sentence imposed on charge 2. That sentence will be set aside, and in its place the appellant will be sentenced on charge 2 to a term of imprisonment of 6 months, 3 months of which will be ordered to be served cumulatively on the sentence imposed on charge 4. This makes a total effective State head sentence of 3 years and 3 months. We will confirm the State non-parole period ordered by the judge, namely 18 months. Additionally, we will make orders confirming the Commonwealth sentences, their commencement dates and the Commonwealth non-parole period. The effect of the orders we will make is that the appellant will again be sentenced to a total effective sentence of 10 years and 3 months, with a total effective non-parole period of 7 years and 6 months.

41 The judge sentenced the appellant as a serious sexual offender in respect of charge 4. As we have already observed, the record of orders completed subsequently, however, incorrectly recorded the appellant as being sentenced as a serious sexual offender in respect of charges 2 and 4.

42 The parties accept that the order recording the appellant as having been sentenced as a serious sexual offender on charges 2 and 4 is an ancillary order within the meaning of s 325(1) of the Criminal Procedure Act 2009, and should be corrected.[23] Accordingly, pursuant to s 325, we will order that the ancillary order recording the appellant as having been sentenced as a serious sexual offender on charges 2 and 4 be varied to delete the reference to charge 2.

[1] DPP v Hawke [2018] VCC 518 ('Reasons').

[2] As to the difficulties and complexities that confront a judge, and the possible approaches that may be taken, when he or she is required to sentence an offender for multiple State and Commonwealth offences, see DPP v Swingler [2017] VSCA 305, [63]-[87], and in particular [78] (Ferguson CJ, Maxwell P and Weinberg JA). See also Gaunt v The Queen [2019] VSCA 241, [18], [34] (Whelan JA).

[3] Hawke v The Queen [2018] VSCA 287 (Ashley JA) ('Leave Reasons').

[9] (2014) 252 CLR 601 ('Kentwell').

[10] French CJ, Hayne, Bell and Keane JJ.

[11] Kentwell (2014) 252 CLR 601, 618 [43] (citations omitted) (emphasis added).

[12] (2010) 31 VR 606 ('Ludeman').

[13] See ss 281 and 282 of the Criminal Procedure Act.

[14] Ludeman (2010) 31 VR 606, 616 [62] (Ashley and Redlich JJA).

[16] [2017] VSCA 305 ('Swingler').

[17] Ibid [78] (Ferguson CJ, Maxwell P and Weinberg JA) (citation omitted).

[18] See, eg, Smith v The Queen [2012] VSCA 5 ('Smith'). Cf DHC v The Queen [2012] VSCA 52.

[19] Ludeman (2010) 31 VR 606, 616 [63]-[64] (Ashley and Redlich JJA); DPP v Jones (a pseudonym) [2013] VSCA 330; (2013) 40 VR 267, 274-5 [18] (Redlich and Priest JJA).

[23] See Gaunt v The Queen [2019] VSCA 241, [4] (Whelan JA); Lyons v The Queen [2019] VSCA 242, [43] (Whelan JA).