Court of Appeal (ACT)|2014-08-29|Before: Refshauge, Burns and Ross JJ

PR v The Queen [2014] ACTCA 40 (29 August 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL - GENERAL PRINCIPLES - Excessive or Inadequate Damages - Whether sentence manifestly excessive - Sentencing a process of instinctive synthesis - No error in not identifying mathematically the amount of the reduction in sentence given for delay - Sentence imposed not manifestly excessive - Appeal dismissed

Duncan v The Queen (1983) 47 ALR 746

House v The King (1936) 55 CLR 499

Hughes v The Queen [2013] NSWCCA 129

R v Campbell [2010] ACTCA 20

R v Williams [2014] ACTCA 30

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Court/Tribunal: Supreme Court of the Australian Capital Territory

1. Between 1 October 1989 and 14 September 1991, the appellant, PR, committed two serious sexual offences on his step-daughter, the complainant.

2. Although his then wife confronted PR with these offences in September 1991, when he left their home and moved to Western Australia, and the complainant made disclosure to the Child At Risk Assessment Unit of The Canberra Hospital later that year, no police action appears to have been taken until police laid informations on 24 August 2011.

3. PR was arrested in Western Australia on 24 December 2011, extradited to the Territory and, on 16 January 2012, was charged with and pleaded not guilty to various charges. He was committed to trial to the Supreme Court on 20 February 2012.

4. A trial of the offences was set for 22 July 2013, but, on 28 May 2013, his counsel informed the Court PR would plead guilty to the offences on which he was ultimately sentenced. This was accepted in satisfaction of the indictment.

5. Thus, on 9 July 2013, he pleaded guilty to the offence of committing, between 1 October 1989 and 20 February 1991, an act of indecency on the complainant, then under the age of ten years and, to the offence of engaging between 1 February and 14 September 1991, in sexual intercourse with the complainant, still under the age of ten and, to his knowledge, his step-child, an offence known as incest.

6. The charged offence of committing an act of indecency is an offence against s 61(1) of the Crimes Act 1900 (ACT) for which the maximum penalty is twelve years' imprisonment. The charged offence of incest is an offence against s 62(1) of the Crimes Act for which the maximum penalty is twenty years' imprisonment.

7. On 12 September 2013, PR was sentenced in this Court as follows:

(a) for the offence of committing an act of indecency - two years and six months' imprisonment to commence on 9 April 2013;

(b) for the offence of incest - five years and one month to commence on 9 September 2014, being concurrent as to 13 months on the first sentence;

8. PR has now appealed against the sentence on the grounds

(i) that his Honour erred in not quantifying the discount for the delay in prosecution of the case;

(ii) that the sentences imposed were manifestly excessive in all the circumstances.

9. The first offence was committed when the complainant and PR were lying together on a couch in the lounge room of the house in which PR and his then wife lived. PR pulled up the complainant's nightdress, put his penis between the cheeks of her bottom and repeatedly rubbed the outside of her vagina for about five to ten minutes. PR's wife was present in the room at the time but the doona hid from her what PR was doing.

10. The second offence was committed when PR called the complainant into his bedroom, where he was naked, his penis erect and masturbating. He told the complainant to kneel in front of him and forced her mouth onto his penis, moving her head up and down. The complainant was crying and gagging and he pushed her away and ejaculated into a towel.

11. On 14 September 1991, the complainant told her mother, PR's then wife, of these and other incidents of a sexual nature that PR had committed on or with her. PR's then wife confronted him and he made an oblique admission and left the house. As noted, he then moved to Western Australia.

12. PR is said to have told his parents what he had done, but he claimed, when arrested, to have no recollection of the offences. He told the author of the Pre-Sentence Report that he pleaded guilty on the evidence and accepted that it happened as he could not think of any reason why the complainant would have lied.

13. PR was born in 1962, one of four children born to his parents. His father is deceased and his mother and one brother lives in Western Australia.

14. His parents were members of the Salvation Army and he was raised in a loving and supportive environment. He made an unconfirmed claim to have been sexually assaulted as a child by some members of the Salvation Army, which he says explains the commission of these offences.

15. PR attended school until Year 10 and then gained employment as a labourer, a baker, a salesman and, later, a nurse.

16. He made a claim to have begun drinking alcohol at age thirteen and to have drunk to excess on weekends. He also claimed that he attended work while intoxicated, sometimes blacking out. His brother, mother and ex-wife were unable to support these claims.

17. He began smoking cannabis when he was thirteen and later, aged twenty-two, used amphetamines and cocaine regularly until 1991.

18. He suffered a back injury at work in 1995 and underwent a lumbar spinal fusion but continues to suffer from lower back pain. He also suffers from hypertension and gastric reflux.

19. He has a history of depression and anxiety dating back to his childhood leading to a suicide attempt. He was prescribed antidepressants in 1995 and has since then engaged with mental health professionals. He has been under the care of a psychiatrist in Western Australia, but that appears to be limited to monitoring his medication. He was, however, subsequently diagnosed with a post-traumatic stress disorder and later with a chronic major depressive disorder and a generalised anxiety disorder in partial remission as well as depression with psychosis.

20. On 5 June 1984, PR was dealt with by a magistrate in the Local Court at Wollongong, New South Wales, for an offence of assault occasioning actual bodily harm and two offences of assault. On 24 November he was dealt with by a magistrate in the Magistrates Court at Midland, Western Australia for driving a motor vehicle with 0.82 grams of alcohol in 100 ml of breath, an offence committed on 26 August 2010.

21. Both the complainant and her mother made Victim Impact Statements which were tendered. They showed serious and long-lasting personal harm suffered by both. They described ongoing psychological disturbance and distress, relationship disruption and social disability of significant seriousness shown to have been suffered by both of them.

22. As the appeal against sentence is an appeal against a discretionary decision, PR, as the appellant, must show error of the kind described in House v The King (1936) 55 CLR 499.

23. That is to say, he must show a specific error, such as that the sentencing judge acted upon a wrong principle, took into account an extraneous or irrelevant consideration, mistook the facts or failed to take into account a material consideration.

24. Where no such specific error is identified or identifiable an appeal court may still interfere when the sentence is, in all the circumstances, unreasonable or plainly unjust as where it may be manifestly excessive or manifestly inadequate, bespeaking an error the precise nature of which may not be discoverable.

25. Without such an error, however, the appeal court may not interfere especially not simply because it would have come to a different decision. It is the responsibility of the sentencing judge to impose a just and appropriate sentence with which an appeal court may only interfere where error is shown.

26. In the grounds of appeal, the first ground was said to describe an error of the first type, namely a specific error, the second ground an error of the second type. It is convenient to deal with each separately.

27. There was clearly a long delay before PR was sentenced for the offences to which he had pleaded guilty. It was, in fact, over twenty years, though his Honour incorrectly stated it to be twelve years.

28. There was, however, no explanation for the delay; any such delay does not seem to have been attributable to any failing on behalf of police or prosecution authorities.

29. There is no doubt that, in an appropriate case, delay in the prosecution of what becomes a stale offence should, however caused, be taken into account in formulating an appropriate sentence. See R v Merrett [2007] VSCA 1; (2007) 14 VR 392 at 400; [35]. As was explained by Wood CJ at CL, with whom Bell J and Smart AJ agreed, in Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at 306; [16]:

The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: see, in addition to Todd and Mill, the decision in Harrison (1990) 48 A Crim R 197 at 198-199 and King (1998) 99 A Crim R 288.

30. Wood CJ at CL then identified relevant issues in that case, a number of which are applicable here. His Honour said at 306; [17]:

The present was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of his ways. However, it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account on sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them.

31. There can be no doubt, however, that, in this case, the learned sentencing judge was aware of the delay and took it into account when sentencing PR.

32. PR had not been approached, much less arrested, by police until 2011, two years before sentence was imposed. In that sense, he suffered no suspense, uncertain as to whether the authorities were going to take any action. Indeed, he had, it appears, quite forgotten about the incidents and, in those circumstances, it could not be said that he was suffering by being fearful as to whether he would be charged. No doubt there was a shock when he was ultimately arrested, but that is likely to be so whenever a person is arrested.

33. It is now much better known that victims of sexual abuse, especially young victims, can take some time, even years, before they are ready or emotionally strong enough to disclose such abuse or to face the further trauma that comes with a prosecution of such offences.

34. So far as rehabilitation of PR is concerned, the question is a little more complicated. PR has not been charged with any further offences of a similar kind; indeed, he has not been charged with any offences of a serious kind since the offending to which he has pleaded guilty. That is a powerful factor in his favour. It evidences a reduced need for the protection of society. See Duncan v The Queen (1983) 47 ALR 746 at 749.

35. Nevertheless, he had forgotten about the offending and had certainly taken no specific steps to address the matters that caused or may have contributed to his offending behaviour.

36. The thrust of the complaint by PR, however, was that there was no identifiable reduction that had been given for this factor in the sentences imposed. A comparison was made with the discount expressed for the plea of guilty, given as fifteen percent in the case of the sentence for each offence.

37. That is, however, quite different, for there is a statutory obligation imposed on sentencers by s 37 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) to state the discount by stating the penalty that would have been imposed but for the discount given for the plea of guilty.

38. Mr J Sabharwal, counsel for PR, relied on the decision of the NSW Court of Criminal Appeal in Hughes v The Queen [2013] NSWCCA 129 where Davies J with whom Hoeben CJ at CL and Hall J agreed, considered an appeal against sentence which was challenged on the basis that the sentencing judge had failed to give weight to various factors, including delay. Davies J considered the assistance that the appellant had given to the authorities and applied a percentage discount after commenting that the sentencing judge did not specify the amount to be given. In this jurisdiction, the Sentencing Act requires any discount for this factor also to be specified.

39. Davies J then addressed delay (the second ground of the appeal), noting (at [50]) that the sentencing judge there had referred to delay, saying

It is not disputed that there had been a significant delay in the prosecution by which [the appellant] is entitled to some mitigation of penalty.

It must be assumed that [the sentencing judge] has discounted for the delay but in the absence of any figures it is not possible to determine if this ground of appeal has been made out. Application of the principles discussed above will be considered further when dealing with Ground 4 [ie that the sentence was manifestly excessive].

41. When his Honour came to consider the ground that the sentence was manifestly excessive, his Honour said (at [68]):

If the Sentencing Judge discounted a further 5% for delay, remorse and rehabilitation the starting point would have been approximately 5 years and 9 months. If discounted by 10% the starting point would have been a little over 6 years. The latter seems to be the minimum discount likely because it embraced three matters.

42. His Honour went on to hold that even a notional "starting point" of six years' imprisonment was not manifestly excessive.

43. Mr Sabharwal submitted that this case showed that a sentencing judge is required to quantify the reduction in sentence given for the delay. It shows, however, nothing of the kind.

44. In the first place, his Honour did not uphold the second ground of appeal, notwithstanding what his Honour said, which is quoted above (at [39]).

45. Secondly, the application of a mathematical approach to factors in sentencing is contrary to the clear direction by the High Court that sentencing is not a two-stage process, but is one of instinctive synthesis. In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611; [74]- [75], Gaudron, Gummow and Hayne JJ expressly disapproved of a mathematical or two-staged approach, saying

Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be "increment[s]" to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a "two-stage approach" to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

46. Whether it is an error to specify a mathematical discount, as was done in Hughes v The Queen, is not a matter that needs to be decided here. It is, however, no error not to identify mathematically the amount of the reduction in sentence given for delay.

47. This court has referred in R v Campbell [2010] ACTCA 20 at [32]- [34] to the task of an appellate court considering the ground that a sentence is manifestly excessive. The court there said:

32. In Hawkins v Hawkins [2009] ACTSC 148; (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):

The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]). > > 33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461): > > What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

48. As was pointed out in R v Williams [2014] ACTCA 30, it is necessary to identify the relevant factors from which the conclusion is to be drawn that the sentence is manifestly excessive or manifestly inadequate.

(a) the maximum penalties provided for the offences, which have been set out above (at [6]);

(b) the offences were serious examples of the offences;

(d) the offences were not isolated acts but part of a course of conduct;

(e) the offences caused serious and lasting harm to both the complainant and her mother, including a breakdown in their relationship;

(f) PR was generally of good character, but this has somewhat lesser weight in respect of such offences: R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152;

(g) there was significant delay in the prosecution of the offences, but the prosecution was not responsible for that delay;

(h) PR has committed no further relevant or significant offences since these offences were committed;

(i) PR pleaded guilty, though not at the earliest opportunity;

(j) while PR suffers depression, this was not relevantly associated with the offending behaviour or causative of it, nor will it have a bearing on the kind of sentence imposed or mean that the sentence will weigh more heavily on him. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32];

(k) PR has, in the assessment of the author of the Pre-Sentence Report, been unwilling to accept responsibility for his offending;

(l) PR did not display insight into the effect his offending had on the complainant but acknowledged it would have led to "a loss of innocence";

(m) PR did wish to contact the complainant and apologise to her and to seek her forgiveness.

50. Giving due weight to all these factors, it cannot be said that the sentence imposed was manifestly excessive.

52. Neither of the grounds of appeal have been made out. The appeal must be dismissed.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

On cover page under 'Cases Cited' and in paragraph [29]

(Sentencing) Act 2005

PR v The Queen [2014] ACTCA 40

At a glance

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Judgment (96 paragraphs)

PR v The Queen [2014] ACTCA 40 (29 August 2014)

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Legislation Cited (1)

Cases Cited (7)