R v Ang [2014] ACTCA 17

Court of Appeal (ACT)|2014-05-30|Before: Refshauge, Penfold and Ross JJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - Crown appeal against making of non-conviction order - one offence of act of indecency without consent - offender foreign national studying at Australian Defence Force Academy - offence committed against another cadet - extra-curial punishment - strong evidence that offender otherwise person of good character - whether impact of living in different environment in Australia constituted extenuating circumstances - whether impact of living in different environment in Australia could otherwise be taken into account by sentencing judge - no error in sentencing judge's approach to impact on offender of living in different environment.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - grounds of appeal against sentence require either identification of specific errors or claim of manifest inadequacy or excess permitting inference of error - appeal grounds relating to judicial failure to pay proper regard or to give adequate weight to particular matters do not properly invoke either ground of appellate intervention - claim of manifest inadequacy or excess should not be framed by reference to inappropriate weight given to particular circumstances but to inadequacy or excess having regard to particular circumstances.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - nature of appeal process - appeal court not entitled simply to substitute its own opinion - sentence not manifestly inadequate - appeal dismissed.

EVIDENCE - General - judicial notice - claim that offence involved breach of trust - appellant unable to articulate circumstances of trust or nature of breach - judicial notice not to be taken of proposition unable to be clearly formulated to court.

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323

Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022

House v The King [1936] HCA 40; (1936) 55 CLR 499

R v Osenkowski (1982) 30 SASR 212

1. On 6 June 2013 Yong Chuean Benedict Ang was sentenced in the Supreme Court, having previously been found guilty by a jury of one count of act of indecency without consent under s 60 of the Crimes Act 1900 (ACT). The trial judge declined to record a conviction, but ordered Mr Ang to sign a good behaviour undertaking for a period of eighteen months, with a supervision condition.

3. The sentencing judge described the offence as follows:

I am satisfied that in the early hours of 6 May 2012 you went to the complainant's room at ADFA. At that time both you and she were cadets at that institution. You knew that she was heavily intoxicated and, as such, was vulnerable. You entered her room asking her if she was awake. She did not reply. You closed the door and moved to her bed and lay down beside her on top of the doona. At that time she was under the doona and was facing away from you. You massaged her shoulders, and I am satisfied that you then took hold of her face and held it while you attempted to kiss her. When she would not open her mouth, you covered her nose, forcing her to open her mouth breathe, at which time you forced your tongue into her mouth. She was able to force your tongue away, and I accept that she had made it clear to you by her words and actions during the course of these events that she was not consenting and that your actions were unwelcome.

4. Mr Ang, who was twenty-one at the time of the offence, is a Singaporean national who was awarded a scholarship to study at the Australian Defence Force Academy (ADFA) in 2012, as a result of being the top cadet and being awarded the Sword of Honour at officer cadet school in Singapore. As a result of being accused of the offence concerned, he was suspended from ADFA and his scholarship was cancelled. The sentencing judge noted that it was unlikely that he would be allowed to return to ADFA. He was also suspended from the Singapore Navy on half pay. The sentencing judge, having received a number of very favourable character testimonials at the sentencing hearing, said:

in this case there is very strong evidence that you are a person who is otherwise of good character. The evidence before me was evidence not simply of the absence of bad character in the sense that you had no previous convictions but was evidence of positive good character. The evidence relating to your antecedents is also very much to your credit.

6. Section 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) is relevantly as follows:

(1) This section applies if an offender is found guilty of an offence.

(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b) a good behaviour order under section 13.

...

(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(b) the seriousness of the offence;

(c) any extenuating circumstances in which the offence was committed.

(4) The court may also consider anything else the court considers relevant.

7. In determining not to record a conviction, the sentencing judge took account of Mr Ang's good character and his age (relevant under s 17(3)(a)) and the importance of rehabilitation as a sentencing consideration in relation to people of his age. His Honour noted that the offence was "in the bottom half" of the range for offences of this nature (relevant to s 17(3)(b)). As to extenuating circumstances (an available consideration under s 17(3)(c)), his Honour noted that, at the time of the offence, Mr Ang was away from home and in a very different environment, which his Honour suggested might have had a "somewhat disinhibiting effect" on him.

8. His Honour also noted that the proceedings against Mr Ang and the consequences of his actions had no doubt brought home to him the risk of real consequences from behaviour of the relevant kind.

9. Submissions seeking a non-conviction order were made on behalf of Mr Ang, but the Crown did not engage specifically with those defence submissions. Instead, having referred his Honour to several other cases involving acts of indecency, counsel said only:

But on balance, the Crown submits that a term of imprisonment is necessary in order to achieve the appropriate denunciation and the deterrence, both specific and general. And the court then needs to consider the way in which that is carried out.

10. The Crown's submission that a term of imprisonment was necessary was apparently overlooked by the sentencing judge, who mistakenly said, in relation to the application for a non-conviction order, that the Crown opposed such a disposition "but does not suggest that any punishment beyond a conviction and good behaviour order should be imposed."

11. The Crown's original notice of appeal identified four grounds, which can be summarised as follows:

(a) that the sentence was manifestly inadequate;

(b) that the sentencing judge took account of irrelevant matters;

(c) that the sentencing judge "failed to have regard or sufficient regard to material considerations"; and

(d) that the sentencing judge acted on a wrong principle by misapplying s 17 of the Sentencing Act.

12. In written submissions the Crown abandoned the second appeal ground, being the complaint that the consequences or possible consequences of Mr Ang's behaviour on his studies and career were irrelevant matters taken into account by the sentencing judge.

13. In those written submissions, the Crown also conceded that the grounds were generally not well-framed and, referring to the comments of Gageler J in Bugmy v The Queen [2013] HCA 37; (2013) 302 ALR 192 (Bugmy), restated the appeal grounds as:

(a) that the sentence was manifestly inadequate; and

(b) that there was an error of law in finding that the offence was committed in extenuating circumstances.

14. It is convenient to deal with the second of the revised grounds first.

15. In argument, the Crown conceded that even if the disinhibiting effect of Mr Ang's living in a very different environment was not an extenuating circumstance as such, his Honour was entitled to consider it under s 17(4) of the Sentencing Act (at [6] above), which permits the court to "consider anything else the court considers relevant". However, the Crown noted that there was no evidence of the significance of the different environment Mr Ang lived in at ADFA or in Australia, and submitted that in any case such a difference would not have reduced Mr Ang's moral culpability to any appreciable degree.

16. After the appeal hearing, by leave, counsel for Mr Ang provided a list describing evidence given at Mr Ang's trial that, he said, supported the sentencing judge's reliance on the disinhibiting effect of Mr Ang's experiences in Australia and at ADFA. These included claims:

(a) that living away from home had contributed to Mr Ang's stress;

(b) that Mr Ang had been consuming more alcohol than he would have at home and that a couple of weeks before the night of the offence he had been reprimanded for excessive alcohol consumption; and

(c) that in Singapore he had been accustomed to a high standard of discipline where orders were followed, compliance was expected and the consequences of breaches were more serious, but that at ADFA some members seemed to lack the inclination to follow the orders they were given.

17. Once it is conceded that his Honour was entitled to consider the fact that Mr Ang was living in a very different environment, and that there was some evidence of the implications of that given in Mr Ang's trial before the sentencing judge, there is no basis for identifying his Honour's treatment of that fact as involving any specific error.

18. The Crown noted that the other matters it had raised in the appeal were really particulars of its claim of manifest inadequacy, which were explained as follows:

In particular it is a particular of manifest inadequacy that as pleaded in ground 4(c) the sentencing judge failed to have sufficient regard to the objective seriousness of the offending and the absence of remorse. Similarly it is a particular of manifest inadequacy as pleaded in ground 4(d) that the sentencing judge gave too much weight to the matters set out in paragraph 17(3)(a) to the exclusion of other factors; and failed to acknowledge or give sufficient weight to the seriousness of the offence.

(a) failure to have sufficient regard to the objective seriousness of the offending and to the absence of remorse (grounds 4(c) and (d)); and

(b) giving too much weight to the matters set out in s 17(3)(a) of the Sentencing Act to the exclusion of other factors (ground 4(d)).

20. In order to deal with the manifest inadequacy ground, it is necessary to consider first the nature of the issues arising in Bugmy that prompted Gageler J's comments on grounds of appeal mentioned at [13] above. In Bugmy, three specific appeal grounds were added to an original claim of manifest inadequacy, as follows:

Ground 1: His Honour failed to properly determine the objective seriousness of the offence.

Ground 2: His Honour failed to properly acknowledge the category of the victim as a serving prison officer in the lawful performance of his duties.

Ground 3: The weight his Honour afforded the [appellant]'s subjective case impermissibly ameliorated the appropriate sentence.

21. In Bugmy at 205; [51]-[54], the approach to identifying appeal grounds adopted in that case was criticised by Gageler J as follows:

To enliven the discretion of the Court of Criminal Appeal, under s 5D of the Criminal Appeal Act 1912 (NSW), to vary a sentence and impose such sentence as to it seems proper, the Director of Public Prosecutions must establish that the sentence under appeal either: (1) turned on one or more specific errors of principle or of fact; or (2) in the totality of the circumstances was unreasonable or plainly unjust.

The Director's first ground of appeal to the Court of Criminal Appeal clearly invoked the second of those categories of appellate intervention. To establish that "the sentence pronounced was manifestly inadequate", it was incumbent upon the Director to establish that the sentence was outside the range of available sentences in all the circumstances of the case.

The Director's three "additional grounds of appeal" to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure "properly" to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of "weight". It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.

The appellant in this Court submitted that all three of the additional grounds were properly to be understood as no more than particulars of the ground of manifest inadequacy. The Director did not contend otherwise, submitting only that the errors found by the Court of Criminal Appeal in determining those grounds were "tantamount to a finding of manifest inadequacy". The problem with that submission is that the Court of Criminal Appeal either found manifest inadequacy or did not. To the extent it went so far as to assert that such a finding was implicit, the submission is falsified by the express holding of the Court of Criminal Appeal that it was not necessary to deal with the ground of manifest inadequacy because the errors identified in analysing the additional grounds of appeal were "of such a kind that it will be necessary to re-sentence".

22. That is, appeal grounds framed to assert "failures" by the sentencing judge to have proper or adequate regard to a matter, or to complain about the weight given to particular matters by the sentencing judge, do not properly "invoke either category of appellate intervention".

23. The Crown's particulars of manifest inadequacy in this case, still framed as failures on the part of the sentencing judge, suggest an ongoing misunderstanding of the difference between a claim of specific error of the kind described in House v The King [1936] HCA 40; (1936) 55 CLR 499 and a claim of manifest inadequacy or excess. The former is an explicit claim that the sentencing process has gone wrong in an identifiable way, which might or might not have produced an inappropriate result; this is why an identifiable error in the sentencing process will only require re-sentencing if the appeal court considers that another sentence is appropriate (that is, that the outcome of the flawed process is also flawed).

24. A claim of manifest inadequacy or excess is a claim that despite the absence of identifiable error in the process, the outcome is so dramatically inappropriate that error of some kind must be inferred. We note in relation to inferred error Gageler J's comments in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 at 336; [61] to the effect that the inferred error:

may be found in nothing more or less than effect having been given in the exercise of the discretion to "views which are extreme or misguided". A sentence may be "unreasonable or plainly unjust" simply "because the sentence imposed is manifestly too long or too short" and a sentence which is manifestly too long or too short is, without more, erroneous "in point of principle". [citations omitted]

25. Where manifest inadequacy or excess is found, there is no separate step for the appeal court of considering whether another sentence is appropriate; that conclusion is implicit in the finding of manifest inadequacy or excess. In considering a claim of manifest inadequacy or excess, particular aspects of the sentencing judge's consideration are not in issue; what may well be in issue, however, are the facts and circumstances that were available for consideration in the sentencing process. Thus the Crown's claim of manifest inadequacy in this case would properly be framed as that the sentence was manifestly inadequate, not by reference to errors or failures by the sentencing judge but simply having regard to:

(a) the seriousness of the offending and the absence of remorse; and

(b) matters other than those specified in s 17(3)(a) of the Sentencing Act.

26. Because of the way the Crown's appeal grounds were developed, the matters other than those referred to in s 17(3)(a) of the Sentencing Act were not made explicit. However, as well as the seriousness of the offending and the absence of remorse, the appellant noted as factors relevant to assessing manifest inadequacy:

(a) the maximum penalty (seven years imprisonment);

(b) the aggravating circumstances of the offending; and

(c) the need to deter offending of this kind, to denounce the offender's behaviour, and to recognise the harm done to the victim.

27. At the appeal hearing, the Crown accepted his Honour's categorisation of the offence as "in the bottom half of offences of this nature".

28. However, counsel put to the court that the offence was still serious having regard to the breach of trust involved in the offence and the vulnerability of the victim. Queried by the court about how this offence involved a breach of trust, counsel for the appellant invited the court to take judicial notice that:

military institutions are closed institutions and that allegations of sexual assault are particularly sensitive issues in those military institutions, and ... there is a victim impact statement in this case and that provides some direct evidence of the effect in this particular matter.

29. Counsel then quoted from the Victim Impact Statement:

Although I considered ADFA's reputation before reporting the incident, what had happened was wrong. By reporting the incident, I felt embarrassed for reporting another ADFA incident. ADFA being such an unusual environment meant that both work and downtime was surrounded by incident and people talking about it.

30. Pressed about his submission, counsel mentioned taking judicial notice "of the environment in which the offending happened", and the need for denunciation:

given that it was so difficult and it is so difficult for victims in this situation to come forward and given that these environments are closed environments where secrecy and camaraderie are hallmarks of the environment as they need to be.

31. There are a number of problems with these submissions.

32. The first is that no such submissions were put by the Crown in the proceedings at first instance. This Court is reviewing the exercise of a discretionary judgment, not conducting a rehearing of the plea. An appeal is not the occasion to revise and reframe the case presented below. Absent exceptional circumstances a party will ordinarily be held to the position adopted on the plea.

33. The second problem with the appellant's submissions is that they lack merit. Two points may be made in this regard.

34. First, the matters mentioned did not seem to relate to the question whether the offence involved a breach of trust. A breach of trust must arise out of a position of trust (formal or informal) held by the accused in relation to the victim (whether personally or as a member of a class of persons). A breach of trust is not established by a general reference to military institutions as closed institutions or by the claim that allegations of sexual assault are particularly sensitive issues in such institutions. Nor is it established by reference to the impact on the victim, or the fact that the environment in which the victim found herself made it generally difficult to come forward about the assault. Such a difficulty might be an incident of a particular relationship of trust, but it does not seem to establish such a relationship.

35. Furthermore, counsel was asking the court to take judicial notice of something that was not formulated with any degree of clarity. It was not clear that the matter as formulated had any particular meaning (for instance, what exactly is a "closed institution"?), and it was not clear on what basis the court could have taken judicial notice of the general statements being proposed by counsel. It does not seem appropriate for a court to take judicial notice of a proposition the content and significance of which is not agreed even within the courtroom.

36. As to lack of remorse, it is true that since Mr Ang maintained his innocence he had not expressed remorse in relation to the offence as such, but at the sentence hearing his counsel made the following submission:

However, he does give me the following express instructions. He concedes that he went into the complainant's room. The complainant did not go into his room he went into her room. He went into her room when she was affected by alcohol and when he was affected by alcohol. He went into her room in the early hours of the morning.

Even on his version of the events he engaged in conduct which he ought not to have engaged in and which was contrary to the rules. And so he acknowledges without reservation that what he did was wrong and that the consequence of what happened is a consequence of what he did, not a consequence of what anybody else did and he regrets those consequences, that is the consequences to Ms King. So, your Honour, whilst the presentence report is absolutely right in what it says, there is nonetheless on my instructions a degree of remorse and acceptance of wrongdoing in this case.

37. This submission, and its significance, were rejected by the Crown as "argumentative macramé" that did not amount to remorse.

38. No doubt Mr Ang's acceptance of wrong-doing would have been more convincing if given by way of sworn evidence rather than via counsel, but it is not correct to say that the record indicates a complete rejection of any kind of culpability by Mr Ang.

39. Even having regard to the categorisation of the offence as mentioned above and to the matters taken into account by the sentencing judge in Mr Ang's favour, his Honour's sentence was very lenient. Nevertheless, as King CJ said in R v Osenkowski (1982) 30 SASR 212 at 213, "There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case". This is, of course, constrained by the requirement that a sentence is not manifestly inadequate.

40. It must also be remembered that the appeal is not a new hearing. The Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it disagrees with that sentence.

41. Accepting the matters already canvassed about the facts and circumstances of the offence and the offender, including:

(a) the need for deterrence and denunciation;

(b) the need to recognise the harm done to the victim (although not accepting that there was a breach of trust involved);

(c) Mr Ang's otherwise good character; and

(d) the significant extra-curial punishment suffered by him (at [4] above);

and noting the Crown's concession that the offence was objectively of relatively low seriousness ("in the bottom half of offences of this nature"), we have not been convinced that his Honour's failure to convict Mr Ang makes the sentence so lenient that it must be found to be manifestly inadequate.

42. Since the Crown has not established either a specific sentencing error or that the sentence was manifestly inadequate, the appeal must be dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

(Sentencing) Act 2005

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