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[2001] FCA 409
Federal Court of Australia
1998-06-25
Crispin J, Miles CJ, Beaumont ACJ, Gyles JJ
Original judgment source is linked above.
THE COURT: 1 On 16 October 2000, the appellant was found guilty by a jury of an offence charged on indictment that he: " . . .on the 7th day of September 1995 at Canberra in the Australian Capital Territory . . .did engage in sexual intercourse with Colleen Burnell without her consent and knowing she did not consent." 2 The appellant was, on 17 October 2000, sentenced by the trial judge, Miles CJ, to eight years imprisonment. A non-parole period of five years was fixed. There having been no previous time in custody, the sentence was expressed to commence on 17 October 2000. 3 Despite the fact that the appellant had, during the trial, denied his guilt, giving sworn evidence that he had not been the person who committed the crime, this appeal was confined, from its inception on 2 November 2000, to the severity of the sentence imposed. 4 After hearing sentencing submissions proffered on 16 October 2000, the Chief Justice sentenced the appellant the next day. The appellant declined the opportunity for an adjournment for the purpose of preparation of a pre-sentence report or any other material which might have assisted the Chief Justice on sentencing. 5 The only material additional to the evidence given at trial was a Victim Impact Statement dated 27 September 1999 and a prior police record relating to the appellant which was tendered without objection. He had no relevant criminal history in his previous 42 years of life. There were only three entries: "· Disobey red light Offence 27/07/1982 Fine $50.00. · Speed Offence 17/10/1982 Fine $50.00. · ACT Destroy/Damage Property Offence 30/08/1999 Convicted with Recognizance." 6 The Chief Justice's remarks on sentencing were as follows: "John Barrington Parker was found guilty by a jury on one count of engaging in sexual intercourse with a 59 year old woman without her consent and knowing that she did not consent. The maximum sentence for the offence is 12 years' imprisonment. The offence occurred at about 9 pm on Thursday, 7 September 1995. The victim came home from work to her darkened house in a Canberra suburb. She opened the front door and then, remembering that rubbish collection was the next day, went and put the bin out in the street. On her return she entered the house and was immediately seized from the rear in what was described as a bear hug. She was forced to the floor and held there for some time. She was then released and at that stage she managed to make out some features of the man who had seized her. The offender then took her to a bedroom at the back of the house where he undressed her and threatened to hurt her unless she did what she was told. He placed a body suit which belonged to her and a pillowcase over her head. After an initial and unsuccessful attempt at penile penetration, he went to the adjoining en suite bathroom. He switched on the light and brought back a plastic bottle of liquid soap. He used the soap to lubricate the victim's private parts which he then penetrated with his fingers and then his erect penis. There was no ejaculation. The prosecution elected to rely on one act of anal penetration by the penis as constituting the offence, but the whole of the circumstances must be taken into account. The offender left after demanding money and then taking a purse. He instructed the woman not to move for 10 minutes. After that time she got up, cleaned and dressed herself and telephoned the police. Fingerprints were found in various places, including on the bottle of liquid soap, but they could not be matched to prints then in the possession of the police. The offence gained some publicity in a local newspaper about a week later. The offender's wife had some suspicion that he was involved and questioned him about it. He brushed off the questions and his wife took it no further until some 4 years later when she reported what she knew to the police. Consistently with the jury's verdict, I find it established that the offender, a health and sports enthusiast, was absent from his home on the pretence that he was merely out jogging and used the opportunity to commit the offence. Police conducted a search late last year at his previous home and where he was then living and found clothing consistent with what the victim described as worn by her assailant. He was arrested and fingerprinted. The print of his right thumb was found to match that of a latent print on the soap bottle. An offence of sexual intercourse without consent may be of greater or lower degree of seriousness, but the facts thus described indicate an offence of great seriousness and in my view well within the most serious category. Aggravating factors include the invasion of the victim's home and privacy, the theft of her clothing, that is to say the body suit from a clothes line in the yard, the humiliating and degrading use of the soap, the physical aggression and threats against the woman in the darkness and the persistence in attempting penetration. I regard the theft of the wallet as an attempt to disguise the nature of the offence in order to make it look partly like a robbery and to deflect attention from those investigating from someone otherwise appearing to lead a life of regularity and respectability. The extent to which the offence was the result of premeditation is not clear. The conduct of the offender suggests some familiarity with the layout of the house. The offender was also a member of the club where the woman worked and may have been familiar with her work hours and habits. On the other hand, he may have been on the premises with the original intent of stealing from the clothes line and took the opportunity to get into the house when the woman unexpectedly left the front door open and took the rubbish bin out to the street. The issue of premeditation in relation to the sexual assault would in my view have to be resolved in favour of the offender. However, the background of being in the backyard at night for the purpose of stealing clothing from the line is disturbing enough in itself and in my view a substantial aggravating factor. It should also be said that the victim suffered no physical injury and presented to the Commonwealth Medical Officer as composed in the early hours of the next day. However, a Victim Impact Statement indicates the extent of the psychological trauma, by now all too familiar in these sorts of cases. The woman has become nervous, she has developed defensive habits in relation to her own security and she has sold the house which she obviously kept so immaculately and which the offender defiled. The offender was born on 2 November 1957. He is an electrician by trade and has been with his present employer for some 10 years and a previous employer for a similar period. He has distinguished himself at sport and has organised sporting activities at his children's school. He has no prior convictions of relevance. His marriage broke up some 15 months ago and he has not seen his wife and children since he was arrested and granted bail. The conviction and sentence may well have a devastating effect on the welfare of his family. Although he called no evidence on sentence and did not raise character in the trial, he has to be given some credit for the absence of previous convictions of relevance. On the other hand, there can be no leniency or discount for contrition. On the facts, there is in my view a strong indication that he is in need of psychiatric attention which would be in the interests of the community as well as his own. But until he comes to terms with what he has done, that course would not appear to be practicable. In many ways he remains a mystery. The sentence must reflect a strong element of general deterrence and perhaps more importantly the abhorrence with which the general community regards the conduct constituting the offence. In short, in the absence of mitigating psychological or psychiatric factors, the offence calls for heavy punishment. Stand, Mr Parker. You are sentence to 8 years' imprisonment and I fix a non-parole period of 5 years. Both periods are to commence today. I do not wish to lecture you or to rub salt into the wound but I am obliged to explain to you what that means. I do not think it needs much explanation. You will have to serve a minimum period of 5 years in prison at the end of which you may be eligible for release on parole. During the remaining 3 years you must accept parole supervision and if you are in breach of that supervision or commit any further offence you will have to serve the remaining 3 years."
The Submissions on Appeal. 7 All parties agreed that it was open to an appellate court to interfere with a sentence imposed at first instance, at least in the case of an appeal stricto sensu (as this is), only if it can be shown that the sentencing judge had been in error in acting upon: (a) a wrong principle; or (b) a misunderstanding or wrong assessment of some salient feature of the evidence. 8 It may be that such an error appears in what the sentencing judge said in the proceedings. Alternatively, the sentence itself may be so excessive or inadequate as to manifest such an error - see R v Boudelah and Charlston (1991) 28 FCR 176. 9 The proposition that an appellate court is not empowered simply to substitute its own sentencing discretion for that of the primary judge, in the absence of identifiable error of that kind, was recently confirmed by the High Court in Dinsdale v R [2000] HCA 54; (2000) 175 ALR 315; (2000) 74 ALJR 1538. 10 It was also accepted that sentences previously imposed in apparently similar cases are of limited assistance (see R v Boudelah and Charlston (supra)). 11 Counsel for the appellant, Mr Purnell SC, submitted that the following matters referred to by the Chief Justice in his sentencing remarks constituted identifiable errors: · "Use of a pillowcase by the appellant - there was no positive evidence from the victim that it was a pillowcase that had been placed over her head. · Theft of a body suit belonging to the victim from her clothes line in her back yard - the evidence supported a view that the appellant took the body suit and used it in the course of the sexual assault so as to prevent the victim seeing him but as he left it behind it could not be assumed that the taking amounted to "theft." · Theft of the victim's wallet as an attempt to disguise the nature of the offence i.e making it look as if robbery had been intended thus diverting attention from persons such as the appellant, a man with no prior history of crime - the evidence did not address the motive for the theft of the wallet. · The purpose of the appellant entering the backyard being to steal clothing - that conclusion was not open on the evidence. · The "strong indication" that the appellant was in need of psychiatric attention - there was no material to support that finding. It also contradicts the reference to the absence of mitigating psychological or psychiatric factors. · The use of soap as a lubricant being an "aggravating factor."- It was, at worst, neutral." 12 It was submitted that there was no sufficient consideration given, as required by s 429A of the Crimes Act 1900 (ACT) ("Crimes Act"), to the prospects for rehabilitation of the offender (s 429(c)) or to the impact of the sentence on his family (s 492A(1)(m)). 13 To the objection that his Honour had been denied information on those issues by the appellant's request that sentencing proceed forthwith, Mr Purnell SC responded that it had been an error for his Honour to accede to the appellant's request to proceed forthwith to pronounce sentence. If his Honour had been unable to conclude that there was a particular impact on the appellant's family or some particular need or prospects for rehabilitative treatment, he could and should have directed a pre-sentence report (see s 454 Crimes Act). It was conceded that his Honour had not been requested to order a pre-sentence report, nor was his Honour's failure to do so of his own motion relied upon expressly as a ground of appeal. 14 Finally, Mr Purnell SC submitted that, in any event, the sentence was markedly out of line with those in other cases of a similar nature, and so, manifestly excessive. 15 Mr Refshauge SC, for the respondent, conceded the first, second and fourth points outlined above were errors as Mr Purnell SC submitted. However, he contended that those errors did not affect the appropriateness of the sentence. He submitted that the other matters referred to were not errors. 16 As to the reference to the use of a pillowcase, whilst it was not established that such an item had been used, it made no difference that it was, apparently, only the body suit that was used to cover the victim's face and eyes. 17 Further, the assumption made by his Honour as to the appellant's purpose in being in the backyard as expressed by the second and fourth points above, even if impermissibly speculative, merely supported his Honour's conclusion that the sexual assault was committed opportunistically rather than with premeditation commencing much earlier. It had been suggested, for example, that the appellant's criminal intent might have resulted from having observed the victim at her workplace (that being a licensed club of which the appellant was a member). Hence it was less aggravating as a scenario than had premeditation been assumed. 18 It is true that his Honour did not consider a third possible scenario, e.g. that the appellant whilst passing by otherwise innocently, saw the victim either shortly before or as she put her wheelie bin out and then conceived his criminal intention, entering the back yard and seizing the body suit to use to cover the victim's eyes during his intended assault. 19 Mr Refshauge SC contended that, even if that scenario had been assumed, it would not have materially affected the sentence. 20 As to the theft of the victim's wallet referred to in the third point, Mr Refshauge SC submitted that it had been open to his Honour to have drawn the inference that he did. 21 Mr Refshauge SC further submitted that, whilst his Honour voiced suspicion that some psychiatric condition might explain the appellant's conduct, it is clear that his Honour made no positive finding on that issue. Indeed, his Honour had said that the absence of positive evidence of such a condition prevented a finding that, to any extent, there had been some diminution of moral responsibility for the offence by reason of mental abnormality. 22 As to the use of the liquid soap, Mr Refshauge SC contended that it was open to his Honour to view the use of soap, in the circumstances, as an aggravating factor because it involved a further indignity to the victim and, of course, permitted the appellant to continue the assault. Otherwise, he may have desisted from further attempts at penetration. 23 To the submission that his Honour should have ordered a pre-sentence report of his own motion, Mr Refshauge SC responded that, even if his Honour had suspicions as to some underlying mental disorder or had adverted to the fact that he lacked information relevant to the rehabilitative prospects and family circumstances of the appellant, it was no error to act on the request of the appellant through his counsel to proceed immediately to sentence him without of his own motion directing a pre-sentence report. 24 We agree with this latter submission. Even if that issue is open on this appeal, it would have risked usurping the role of counsel for the appellant for his Honour to have directed a pre-sentence report over the clear objection of counsel to delay in proceeding to sentence the appellant. It may be that the appellant's counsel had formed the view that such a report would not assist the appellant. It was not suggested, nor could it have been, that counsel appearing for the appellant had acted with any lack of competence in failing to ask his Honour to delay sentencing to enable a pre-sentence report to be prepared. 25 That is not to say that his Honour was obliged to proceed without directing a pre-sentence report. It was a matter for his discretion to do so of his own motion if he thought fit. However, it is not apparent in this case that his Honour's discretion in that respect in any way miscarried. 26 As to the specific matters referred to as representing errors, we agree with Mr Refshauge SC that none of the errors so identified, to the extent that they are accepted as errors, affect the sentencing discretion adversely to the appellant. 27 More particularly, the "theft" of the body suit, whilst identified as "aggravating," also supported the view that the crime had been somewhat more adventitious than if the intent to assault the victim had been formed at an earlier point in time. It did not matter if it was a pillowcase or some other item that was used to cover the victim's head. It was we believe, open to his Honour to have concluded that the theft of the wallet was a diversion but, even if the appellant had stolen it for some other reason, that does not, in our view, render his crime any the less despicable. 28 Further, it does not seem to us, on a fair reading of his Honour's remarks, that his Honour assumed for the purpose of sentencing that the appellant suffered from a psychiatric condition. Rather his Honour was, we consider, pointing to the aberrant nature of the conduct engaged in. As the appellant had consistently denied that he had been the perpetrator, it was not possible for his Honour to form a view, otherwise than speculatively, as to what may have motivated him to act in such an aberrant manner. 29 It remains only to consider the appellant's submission that, in any event, even if no relevant error can be identified as having rendered it defective, the sentence was manifestly excessive. 30 Counsel for the Crown had, in the sentencing proceedings, referred his Honour to two prior sentencing decisions, that of Short v R (1994) 49 FCR 556 and that of R v Gell (unreported, 25 June 1998, ACTSC, Crispin J). 31 In the first of those two matters, a Full Court of this Court (Davies, von Doussaand Higgins JJ) considered an appeal against sentence. Short had pleaded guilty to two counts of sexual intercourse without consent. He had been sentenced to twelve years imprisonment with a non-parole period in respect of that sentence of eight years. By reason of a prior sentence, part of which had yet to expire, the effective non-parole period was eleven years two months and eighteen days from the imposition of that earlier sentence. 32 There were greater circumstances of aggravation in the case of Shortthan in the present matter, namely: · There was a prior conviction for rape. · The circumstances of that prior conviction (in 1989) were similar to the offence in question. On that prior occasion Short had threatened the victim with a knife, punched her in the stomach and gagged her. · Short was on parole at the time of the offence in question. · There was a threat of violence by "slitting your throat" although no knife was actually produced. · The psychiatric evidence disclosed that there was a very real possibility of further offending. 33 The sentence for the 1989 rape had been 6 years with a non-parole period of 2˝ years. 34 Mr Purnell SC suggested that the 1989 sentence was the appropriate benchmark for the present matter. 35 It is true that the 1989 sentence imposed on Short was more lenient than that imposed on this appellant. The relative leniency might, however, be explicable on the grounds that, as in 1993, Shorthad pleaded guilty and made full admissions. In 1989, as with this appellant, Short apparently had no relevant previous criminal record. He was then 24 years of age and may also have had reasonable prospects, albeit illusory in hindsight, for rehabilitation. He did express regret and remorse to the victim following the attack. This appellant had none of those latter mitigatory factors. 36 Accordingly, whilst it may be argued that Short's first offence had some circumstances of aggravation (overt threats of violence, punching and use of a gag) absent in this case, the objective circumstances were otherwise not much different. In the present case there was no plea of guilty, no remorse, and no evidence positively supporting prospects for rehabilitation. 37 The sentence imposed on Short for the 1993 rape was not, on appeal, considered manifestly excessive. 38 In Gell, there was a plea of guilty to two counts of sexual intercourse without consent and unlawful detention. Crispin J imposed a head sentence of ten years with a non-parole period of six years. The matter involved greater circumstances of aggravation than in the present case, namely: · The victim was attacked in her own bed by the offender who broke through a window to attack her. · The victim was punched and slapped a number of times. · The sexual attacks were more gross and varied than the present case. · The various attacks lasted for five hours. · The victim fell pregnant as a result of the assaults and was left seriously psychologically scarred and fearful of disease being transmitted, particularly as Gell had indicated he was stealing her money to buy heroin and later denied her access to his medical records which may have assisted to reassure her as to that fear. · Gell had a lengthy criminal history. He had been on parole and on bail when he attacked the victim. 39 Though Gell pleaded guilty at committal, he then withdrew the plea, albeit that he did plead guilty shortly before his trial was to take place. 40 Gell had cooperated in the preparation of a pre-sentence report. Whilst it indicated a psychiatric disorder, it did not offer much hope for rehabilitation. There was a lengthy record of prior offences. Even the offender himself expressed concern about his escalating pattern of re-offending. 41 It is not possible to view Gell's sentence as an indication that the sentence imposed by Miles CJ on this appellant was manifestly excessive. Although Gell'scrimes had a greater degree of objective seriousness, he had, albeit belatedly, pleaded guilty. He did express remorse and showed insight into his escalating tendency towards more violent crime. 42 Some prior sentencing patterns for sexual assaults, although only before February 1991, were alluded to by way of the tender of a schedule detailing them. 43 For the most part they are not particularly helpful. Some cases were of sentences imposed before "truth in sentencing." Others were imposed under earlier legislation. However, whilst acknowledging that some offenders had received lesser sentences for rape than that imposed on this appellant, some offenders had received sentences at least as severe. Much obviously depends on the circumstances of the offence and that of the offender as well as the aftermath in terms of the impact on the victim and the conduct of and prospects for rehabilitation of the offender. 44 In the present case, we are not persuaded that the sentence under appeal, though severe, was manifestly excessive. 45 The appeal will be dismissed. I certify that the Forty Five (45) preceding paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Date: 12 April 2001 Counsel for the Appellant: Mr J Purnell SC Solicitor for the Appellant: Ray Swift & Associates Counsel for the Respondent: Mr R Refshauge SC Solicitor for the Respondent: ACT Director of Public Prosecutions Date of hearing: 12 February 2001 Date of judgment: 12 April 2001
John Barrington Parker
The Queen