Kilpatrick v The Queen

SPENDER AND MATHEWS JJ: 1 On 11 February 2000 the Court ordered that: Martin Joseph Kilpatrick have leave to appeal out of time; the appeal by Kilpatrick against the severity of sentences imposed on him on 9 July 1999 in respect of each of the two counts of which he was convicted by a jury on 28 May 1999 be allowed; in lieu of the sentences imposed he be sentenced to a term of imprisonment to expire on 11 February 2000; and that he be released forthwith. 2 The Court made those orders because we were of the view that they were appropriate. Miles J indicated that, while he would allow the appeal against the sentence of two and a half years imprisonment on the first count and substitute a sentence of imprisonment for six months on that count, he would not interfere with the sentence imposed by the learned primary Judge in respect of the second count. 3 These are our reasons for the orders which the Court made on 11 February 2000. 4 On 28 May 1999 the appellant was convicted at trial by jury of one act of indecency on a person under ten years of age (the first offence), against s 92K(1) of the Crimes Act 1900 (ACT) (the Crimes Act), and one act of indecency on a person under sixteen years of age (the second offence), against s 92K(2) of the Crimes Act. He was sentenced to two and a half years imprisonment on the first count, and two years imprisonment on the second. Pursuant to s 443 of the Crimes Act, the sentences would be served concurrently. A non-parole period of 10 months was set. 5 Both offences of which the appellant was convicted were committed against his step-daughter (NH): the first in 1991 when NH was aged seven; and the second in 1997 when she was thirteen. The jury acquitted the appellant in respect of another count of indecency, which was said to have been committed upon NH in 1997 when she was aged thirteen (shortly before the commission of the second offence). 6 The sentences were imposed on 9 July 1999. On 3 November 1999, nearly 4 months later, the appellant filed an application for an extension of time within which to appeal, and a Notice of Appeal was filed on 23 November 1999. The application to appeal out of time was neither consented to nor opposed by the Crown. Having regard to the circumstances advanced by the appellant for the delay, the absence of any prejudice to the respondent and, in particular, the merits of the substantial application, we indicated that the Court should grant the application for leave to appeal out of time. 7 The appellant had lived with the mother of NH for about ten years prior to 1997, having moved in with her when NH was three years old. The learned sentencing Judge gave a brief recital of the facts in each of the two offences: "…the first offence was committed when [NH], then…seven years of age, came into his bedroom to jump playfully on his bed and the accused took hold of her and rubbed her up and down against the genital region of his body, there being, however, a doona between the two bodies. The second offence occurred again in the bedroom when, some six years later, [NH] came in with her then little brother, who had been born subsequent to the first offence, and again got onto the bed and on that occasion the prisoner touched her breasts and commented, 'nice boobs'. The touching on the second occasion occurred over her clothing. At the time of these offences the prisoner had been living in a de facto relationship with [NH's] mother, that having been a relationship which had been interrupted for some years and then resumed …. Accordingly Mr Kilpatrick was in the position of, if not strictly speaking, stepfather, at least in a position of loco parentis in relation to the child. And the offences involved in each case a significant betrayal of trust." 8 The learned sentencing Judge continued: "After the first offence there was some confrontation between [NH's] mother and the prisoner, as a result of which it was agreed that counselling would be arranged for the prisoner and he duly embarked upon some measure of counselling although during the course of his evidence at trial he purported to not really understand the purpose of that counselling since he denied that any offence had been committed. Following the first offence and following the counselling there was a measure, obviously, of estrangement between [NH] and the prisoner but her evidence, and that of her mother, was that thereafter the relationship between her and the prisoner resumed and was substantially restored, although it may not have been restored to the point that it was before that. Following the second offence … the relationship between the prisoner and [NH's] mother was terminated…". 9 His Honour then said: "A number of factors must be taken into account on the prisoner's behalf… The first is, that the prisoner has no previous convictions. Indeed character evidence was called on his behalf at trial. I accept that, save in relation to these two incidents, he has been a person of previously good character. The second is that the offences for which he has been convicted, appear to have occurred spontaneously, rather than having been pre-meditated, and that on each occasion the offence was maintained for a comparatively short period. Furthermore, there was no skin to skin contact between them. I think in all the circumstances it has to be conceded that the offences fall towards the lower end of the range of offences of this kind. A further factor which it seems to me has to be taken into account, is that the consequences of having committed these offences have already been very serious as far as the prisoner's own interests are concerned. As a result of the commission of the second offence, as I have indicated, the victim's mother terminated the relationship which she had previously had with the prisoner. As a consequence of that termination, and the legal proceedings which followed, the prisoner has lost his house, as well as the relationship, he has lost custody of his son, and he is now facing a debt of some $10,000 for legal costs. It is also true that having regard to the separation that has taken place, there has been virtually no contact between the prisoner and the victim, and that there is no reasonable likelihood of any further offences being committed on the victim, nor is there anything in the evidence before me to indicate the likelihood of any further offences on anyone else. Although, as the learned Crown prosecutor points out, the fact that the prisoner continues to maintain his innocence and has not therefore confided in a counsellor, means that there is only limited range of material from which any prediction can be made as to the risk of offending in future. Nonetheless, that risk has to be considered in light of the fact that the evidence suggests that the prisoner who is now 43 years of age, has otherwise led a blameless life. Nonetheless, offences of this kind are very serious indeed." 10 The learned sentencing Judge later concluded that: "…a sentence involving some measure of imprisonment is nonetheless mandatory." 11 This conclusion was in the context of the following remarks by his Honour: "The community is entitled to expect that courts will take a firm line in relation to offences of the sexual character committed upon children. Children, especially children as young as seven, are entitled to receive the protection which the law affords, and in order to maintain that protection, it seems to me that a custodial sentence will normally be imperative, save in the most exceptional circumstances. The first offence was, as I say, committed on a child of seven, and committed in circumstances involving a breach of trust. Following that offence, the prisoner had the opportunity of counselling, and the opportunity to maintain the family together as a family unit, and to make a fresh start, and to put that incident behind him. He had a second chance not offered to everybody who commits an offence of this kind. Nonetheless, he committed a further offence upon a child then 13, the same child, but then aged 13, which again involved a serious breach of trust. In these circumstances, it is difficult to [accede] to Mr Pilkinton's submission that a non-custodial sentence should be imposed." 12 We turn now to our reasons for our conclusion that the sentences of two and a half years and two years with a non-parole period of ten months were, in all the circumstances, manifestly excessive. 13 The principles involved were discussed in R v Tait & Bartley (1979) 24 ALR 473, where the Court (Brennan, Deane & Gallop JJ) said at 476: "An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error…" 14 Section 92K of the Crimes Act provides that the maximum penalty for a person who commits an act of indecency on a person under ten years is imprisonment for twelve years, and where the act is committed on a person under sixteen years, imprisonment for ten years. Submissions by the Director of Public Prosecutions acknowledge: "The offending behaviour covered by section 92K of the Crimes Act 1900 is very wide, and so sentences will range from those at or close to the maximum for the worst type of cases to non-custodial sentences." 15 The first matter to be appreciated is that each of the offences involved in this appeal is at the lower end of the scale as to the physical conduct that was involved. The learned sentencing Judge found that the offences occurred "spontaneously, rather than having been pre-meditated" and, on each occasion, were "maintained for comparatively short periods" and that "there was no skin to skin contact between them." Nonetheless it has to be accepted that the first offence was committed when NH was aged seven. Both the offences involved a breach of trust. The second offence was committed some six years after the appellant had had the opportunity of counselling, keeping the first instance "in the family" and making a fresh start. The fact that the appellant had pleaded not guilty and, despite his convictions, maintained his innocence simply meant that there was no possibility of the Court allowing leniency for remorse. 16 As opposed to that, at the time of sentence: the appellant was 43 years old and had led a blameless life aside from these offences; he had no previous convictions; he had never been imprisoned; he had a solid employment history with the Public Service; his relationship with NH's mother, which was of long-standing, had come to an end; he had lost custody of his natural son; he had lost his house; he was facing significant debt; and he had been dismissed from his employment. 17 We do not accept the ground of appeal that the learned sentencing Judge did not consider available options other than imprisonment in imposing the sentences which he did. In our opinion, his Honour considered that, notwithstanding that the offences were at the lower end of the scale, "some measure of imprisonment" was called for in the circumstances. It seems clear to us that his Honour was sensitive to the need to consider options other than imprisonment, but felt constrained to order imprisonment in all the circumstances. 18 As to whether the sentences were manifestly excessive, it is not to the point that some Judges would, in the circumstances, have considered that non-custodial sentences were appropriate. So much follows from the observations in R v Tait & Bartley, set out above. 19 Accepting that the view of the learned sentencing Judge that "some measure of imprisonment is…mandatory" was a view well open to him, nonetheless, in our opinion, a sentence of two and a half years on the first count and two years on the second count, with a non-parole period of ten months, was manifestly excessive in the circumstances of this case. Those sentences required that at least ten months actual imprisonment would be served in respect of the two offences. Where the physical dimensions of each offence were as in the present case, and where the consequences to the appellant have been so serious, such a term of imprisonment, in our respectful opinion, cannot be maintained. 20 As the judgments in this appeal show, in the emotionally charged area of sexual offences against children judicial minds can differ as to which sentences are appropriate and which are manifestly excessive. 21 Some support for our view, and some guidance on relevant matters of principle, is to be found in the observations in the judgment of the Court of Appeal delivered by the Chief Justice, Lord Bingham of Cornhill in Reg. v. Howells [1999] 1 WLR 307 at 311: "There is no bright line which separates offences which are so serious that only a custodial sentence can be justified from offences which are not so serious as to require the passing of a custodial sentence. But it cannot be said that the 'right-thinking members of the public' test is very helpful, since the sentencing court has no means of ascertaining the views of right-thinking members of the public and inevitably attributes to such right-thinking members its own views. So, when applying this test, the sentencing court is doing little more than reflect its own opinion whether justice would or would not be done and be seen to be done by the passing of a non-custodial sentence. In the end, the sentencing court is bound to give effect to its own subjective judgment of what justice requires on the peculiar facts of the case before it. It would be dangerous and wrong for this court to lay down prescriptive rules governing the exercise of that judgment, and any guidance we give, however general, will be subject to exceptions and qualifications in some cases. We do however think that in approaching cases which are on or near the custody threshold courts will usually find it helpful to begin by considering the nature and extent of the defendant's criminal intention and the nature and extent of any injury or damage caused to the victim. Other things being equal, an offence which is deliberate and premeditated will usually be more serious than one which is spontaneous and unpremeditated or which involves an excessive response to provocation; an offence which inflicts personal injury or mental trauma, particularly if permanent, will usually be more serious than one which inflicts financial loss only. In considering the seriousness of any offence the court may take into account any previous convictions of the offender or any failure to respond to previous sentences…and must treat it as an aggravating factor if the offence was committed while the offender was on bail… In deciding whether to impose a custodial sentence in borderline cases the sentencing court will ordinarily take account of matters relating to the offender. (a) The court will have regard to an offender's admission of responsibility for the offence, particularly if reflected in a plea of guilty tendered at the earliest opportunity and accompanied by hard evidence of genuine remorse, as shown (for example) by an expression of regret to the victim and an offer of compensation. … (b) Where offending has been fuelled by addiction to drink or drugs, the court will be inclined to look more favourably on an offender who has already demonstrated (by taking practical steps to that end) a genuine, self-motivated determination to address his addition. (c) Youth and immaturity, while affording no defence, will often justify a less rigorous penalty than would be appropriate for an adult. (d) Some measure of leniency will ordinarily be extended to offenders of previous good character, the more so if there is evidence of positive good character (such as a solid employment record or faithful discharge of family duties) as opposed to a mere absence of previous convictions. It will sometimes be appropriate to take account of family responsibilities, or physical or mental disability. (e) While the court will never impose a custodial sentence unless satisfied that it is necessary to do so, there will be even greater reluctance to impose a custodial sentence on an offender who has never before served such a sentence. Courts should always bear in mind that criminal sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these things. Courts cannot and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system. Where the court is of the opinion that an offence, or the combination of an offence and one or more offences associated with it, is so serious that only a custodial sentence can be justified and that such a sentence should be passed, the sentence imposed should be no longer than is necessary to meet the penal purpose which the court has in mind." [emphasis added] 22 We have had regard to the contents of the Victim Impact Statement which was before the learned sentencing Judge. His Honour made no specific reference to this, and we have to say that there are features about it which require it to be treated with a degree of caution. It contains allegations, for instance, that the appellant "would yell at me, say horrible things and hit me", that "I started to worry about the way I dressed around him because he would make sexual comments", and that "it makes me feel upset that his family thinks I'm a liar." It has to be borne in mind that the appellant was to be sentenced in respect of the two offences on which he had been convicted by a jury, and not in respect of any other gratuitous allegations. It has to be recognised that the jury acquitted the appellant in respect of the count where NH claimed the appellant had put his hands down her shirt and rubbed her breasts. The appellant had, in the course of the record of interview, said of this allegation: "I just deny that I put my hands inside her shirt. That's bloody ridiculous. I'd say it's because she's been coerced into that." 23 On 11 February 2000, the appellant had already served approximately seven months imprisonment. 24 For the above reasons, and being of the view that there was no need in this case for probation or supervision, any further imprisonment would, in our respectful opinion, be an excessive punishment of the appellant. 25 We therefore ordered: that the appeals be allowed and the sentences imposed on 9 July 1999 be set aside; that, in lieu, the appellant be sentenced to a term of imprisonment to expire on 11 February 2000; and that he be released forthwith. I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender and Mathews.