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Appellant

AND: DANIEL LEWIS BUDA-KAA

Respondent

ORDER

Judges: Penfold and North JJ and Nield AJ

Place: Canberra

Date: 15 November 2013

REASONS FOR JUDGMENT

THE COURT:

1. On 24 July 2012 the respondent, Daniel Lewis Buda-Kaa, was found guilty by a jury of:

(a) on 3 May 2011, engaging the complainant, Ms JW, in sexual intercourse, that is, penetrating her vagina with a finger, without her consent and being reckless as to whether she was consenting to sexual intercourse;

(b) on 3 May 2011 committing an act of indecency upon the complainant, that is, touching her on her right breast, without her consent and being reckless as to whether she was consenting to the act; and

(c) on 3 May 2011 committing an act of indecency upon the complainant, that is, trying to touch her genitalia, without her consent and being reckless to whether she was consenting to the act.

2. On 30 November 2012 Burns J sentenced the respondent for the offences as follows: (a) the offence of sexual intercourse without consent: imprisonment for 3 years from 24 April 2012 to 23 April 2015; (b) the offence of committing an act of indecency: imprisonment for 9 months from 24 April 2012 to 23 January 2013; and (c) the offence of committing an act of indecency: imprisonment for 9 months from 24 April 2012 to 23 January 2013; with a non-parole period of 1 year 6 months from 24 April 2012 to 23 October 2013.

3. On 17 December 2012 the DPP filed the Crown’s Notice of Appeal against the sentences imposed upon the respondent. The grounds of appeal were: 1. that the head sentence on each count was manifestly inadequate; 2. that the non-parole period was manifestly inadequate; 3. that His Honour erred in making the sentences on each count wholly concurrent;

4. that His Honour erred in giving a disproportionate amount of weight to the respondent’s mental illness;

5. that His Honour erred in considering that the lack of violence on the part of the respondent in committing the offences was a mitigating factor;

6. that His Honour erred in considering that digital as opposed to penile penetration of the complainant was a mitigating factor.

7. On 21 December 2012 the respondent’s solicitor filed the respondent’s Notice of Appeal against both the convictions and the sentences. The grounds of appeal were:

8. there was a miscarriage of justice due to [the respondent] standing trial when:

(i) he was unfit to plea; and/or

(ii) his psychiatric condition at the time of trial restricted his capacity to give rational and plausible evidence when the only rational defence available was his reasonable belief that the complaint was consenting;

2. the sentence was too severe;

3. there was not proper consideration of [the respondent’s] mental condition;

4. there was not proper consideration of how the prison sentences were to be structured and to be served.

5. On 23 July 2013 the respondent’s solicitor informed the court that the respondent did not intend to prosecute the appeal against either conviction or sentence.

6. On 6 August 2013 the Crown’s appeal came on for hearing before us. After hearing submissions from the DPP for the Crown and counsel for the respondent, we announced that the Crown’s appeal was dismissed and that the respondent’s appeal was dismissed after being withdrawn and that our reasons would be delivered in due course.

7. The following are our reasons for our decision.

8. The circumstances in which the respondent committed the offences are as follows.

9. The complainant had been known to the respondent for some time. She had been a friend of his mother for about 14 years, and lived not far away from where the respondent at the time of the offence was living with his mother.

10. At some time on the night of 2 May 2011 the complainant retired to her bed in the bedroom of her home. Her children were asleep in their bedrooms.

11. At about 5.45 am on 3 May 2011 the complainant was awakened from her sleep by the respondent getting into her bed alongside her when he was naked. At first, she thought that the respondent was one of her children.

12. After getting into her bed, the respondent kissed the complainant on the back of her head; he spoke to her, at which moment she realised who he was; he touched her right breast; he tried to touch her genitalia; and then he penetrated her vagina with a finger; all notwithstanding that she had pushed him away from her.

13. The principles applicable in an appeal against sentence are well known. Suffice it to say that an appeal court should not interfere unless error of fact or law by the sentencing judge is shown or if the sentence is so inadequate or excessive as to indicate error by the sentencing judge.

14. As to the principles applicable in Crown appeals against sentence, the expectation of restraint in any resentencing (often referred to as a recognition of “double jeopardy”), was dealt with in Bui v Director of Public Prosecutions (2012) 244 CLR 638. In R v Chatfield [2012] ACTCA 32, the ACT Court of Appeal considered Bui v DPP and said at [65] to [73]: 65. Section 7(1)(a) [of the Crimes Sentencing Act 2005 (ACT)] is in similar terms to s 16A(1) of the Commonwealth Crimes Act. Pursuant to s 16A(1), a court must impose a sentence which is of severity appropriate in all the circumstances of the offence. Pursuant to s 7 of the Sentencing Act, a court must impose a sentence to ensure that the offender is adequately punished for the offence in a way that is just and appropriate.

15. Section 7 of the Sentencing Act and s 16A of the Commonwealth Crimes Act are not in pari materia.

16. However, the intent of the sections is the same, and that is to ensure, to use the words in s 16A, that an offender is appropriately sentenced, and in the words of s 7, adequately punished, for the offence for which the offender stands to be sentenced.

17. Section 16A(2) and s 33(1) are also not in pari materia, but they serve a like function, and that is to require the sentencing court to take into account the matters identified in the respective subsections. In each case the court has an obligation to have regard to the matters contained in the two subsections.

18. Neither subsection prevents the sentencing court from having regard to other matters that are relevant for the purpose of determining the appropriate sentence in the case of a Commonwealth offence and for adequately punishing an offender for an offence under an ACT law.

19. For that reason, a court proceeding under s 16A, or an ACT court proceeding under s 33(1), may have regard to common law principles of sentencing that have developed over time, including general deterrence, proportionality and totality.

20. As we have already said, the High Court in Bui v Director of Public Prosecutions (Cth) said that s 16A(2) did not accommodate the “principle” of double jeopardy. Moreover, the High Court said that if on re-sentencing the court had regard to the “principle” of double jeopardy, the court would not thereby be imposing a sentence which is of a severity appropriate in all the circumstances of the offence.

21. For the same reasons, in our opinion, if this Court is to re-sentence the respondent, this Court should not have regard to the “principle” of double jeopardy, because to do so would be inconsistent with the terms of s 7(1)(a) of the Sentencing Act, which require the Court to impose a sentence on an offender to ensure that the offender is adequately punished for the offence. If regard were had to the “principle” of double jeopardy, and the sentence was thereby reduced, it could not be said that the offender was being adequately punished.

22. While it was not argued, the further words in s 7(1)(a), “in a way that is just and appropriate”, should not be overlooked, although, in our opinion, those words do not require this Court to reason differently from the High Court in Bui v Director of Public Prosecutions (Cth) and to have regard to the “principle” of double jeopardy.

23. We consider that it is appropriate to deal with the grounds of appeal in an order different to the order in the Crown’s Notice of Appeal. His Honour erred in considering the lack of violence on the part of the respondent in committing the offences to be a mitigating factor (ground 5 ) and his Honour erred in considering that digital as opposed to penile penetration of the complainant to be a mitigating factor (ground 6)

24. In his reasons for sentence (R v Buda-Kaa, SCC 281 of 2011, 30 November 2012), Burns J said: I take into account that no violence was used by you in the course of these offences. I also take into account that the penetration... was digital penetration only and was momentary.

25. The DPP submitted: (a) as to ground 5, that it was “either incorrect, or beside the point, or both...” because it “was a violent act” for the respondent to force himself upon the complainant, who was at a physical disadvantage; and (b) as to ground 6, that “there is no basis whatsoever for the suggestion that that form of penetration would in the circumstances be any less traumatic so far as the victim is concerned to any other form of penetration”.

26. The respondent’s counsel submitted, as to grounds 5 and 6, that: His Honour was... obliged to consider the conduct of (the respondent) in the course of making an assessment as to the seriousness of the offending.

... [His Honour] did not describe these factors as mitigation. It was wholly appropriate for His Honour to have regard to these matters in determining the culpability of the conduct.

19. We agree with the respondent’s counsel. We consider that, as he had to make an assessment of the objective seriousness of the offence of sexual intercourse without consent, so as to place the offence within the range of objective seriousness for offences of its kind, it was entirely proper, and also necessary, for Burns J to have noted and taken into account the fact that the act of penetration was digital and momentary and that violence, in the sense of physical force, was not used in the commission of the act. His Honour erred in giving a disproportionate amount of weight to the respondent’s mental illness (ground 4)

20. In his reasons for sentence, Burns J said: You have a long history of involvement with mental health professionals and he recited details of that involvement and then he concluded: On the evidence of Dr Sullivan, I accept that you suffer from a significant mental illness, being Schizophrenia. However, I am not satisfied that this condition was operating upon you on 3 May last year such that you did not know what you were doing or the gravity of your actions. I do not accept that your mental illness reduces your moral culpability for your actions. I am satisfied that you behaved as you did due to disinhibition as a consequence of the drugs and alcohol that you had consumed.

21. The DPP submitted that the sentences imposed upon the respondent, being inadequate, shows that “His Honour placed too great a weight on the mental condition of the respondent”.

22. The respondent’s counsel submitted that: His Honour noted the extensive history of mental health issues. This evidence, in combination, none of which was challenged by the Crown, provided overwhelming support for the proposition that when sentenced the Respondent suffered from a major mental illness. That this circumstance was relevant to the sentencing of the Respondent is clear (R v Champion (1992) 64 A Crim R 244; R v Tsiaras [1996] VR 398 and R v Verdins [2007] 16 VR 269 and see Ross on Crime, 4th Edition, at p 1269).

23. Again, we agree with the respondent’s counsel. The state of mental health of the respondent at, both, the time of the commission of the offences and the time of sentencing was a relevant and appropriate factor to be taken into account by Burns J in the determination of an appropriate sentence for each of the offences (see section 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT)). We consider that the Crown’s reliance upon the decision of Besanko J in R v King [2008] ACTCA 12 is misplaced. In King, Besanko J concluded at [27] that “the evidence before the sentencing judge ... did not establish that [King] had a significant mental illness”. However, in the present case, Burns J found that the respondent did suffer from a significant mental illness, and the opinion of Dr Sullivan, psychiatrist, that “the diagnosis is of paranoid schizophrenia” justifies the finding.

24. We fail to see the basis for the DPP’s submission when it is noted that Burns J said that the respondent’s mental illness did not reduce his moral culpability for his actions and that the respondent knew what he was doing and knew the gravity of his actions. The head sentence on each count was manifestly inadequate (ground 1)

25. As we have said already, Burns J imposed the following sentences: (a) count 1: sexual intercourse without consent: imprisonment for 3 years; (b) count 2: commit an act of indecency: imprisonment for 9 months; and (c) count 3: commit an act of indecency: imprisonment for 9 months.

26. In his reasons for sentence, Burns J referred to the following factors: (a) the circumstances in which the offences were committed, including that violence was not used in the commission of the offences and that the penetration was digital penetration and was momentary; (b) the offences were committed upon the complainant in her home; (c) the offences were committed upon the complainant in breach of trust; (d) the significant effect that the offences have had upon the complainant; (e) the respondent’s plea of not guilty to each offence; (f) the respondent’s commission of the offences when on parole for an earlier committed offence; (g) the respondent’s significant criminal history; (h) the respondent’s age; (i) the respondent’s background and upbringing; (j) the respondent’s alcohol and drug abuse and his state of physical and mental health; (k) the respondent’s acceptance of responsibility and remorse for what he had done; (l) the respondent’s moderate risk of reoffending; and (m) moderation of deterrence because of the respondent’s state of mental health.

27. The DPP submitted that: ... the individual head sentences for the sexual intercourse without consent and the counts of act of indecency where (sic) each manifestly inadequate. Specifically it is argued that the head sentence of 3 years for sexual intercourse without consent was manifestly inadequate given the available maximum of 12 years, the serious nature of the offending, the aggravating circumstances surrounding the offending, and the maintenance of the plea of not guilty.

Similarly the head sentence for the 2 act of indecency charges, being 9 months on each against a possible maximum of 5 years were each manifestly inadequate. The offending was serious, tending to mid range, involved a breach of trust, and must be considered in the context of a maintenance of a plea of not guilty.

and that, relying upon the decision of the Court of Appeal in R v King (supra):

Balancing everything off, a head sentence on the first count of at least 5 years was indicated here.

Further, the sentences for each of the acts of indecency, of 9 months were manifestly inadequate. The acts were in themselves highly sexual and invasive, and committed in the same circumstances as the sexual intercourse without consent. The offences were at least of mid range of seriousness. Nine months against an available maximum of 5 years, and where there was no discount available for a plea of guilty, was far too low.

28. The respondent’s counsel submitted that: The Crown appeal against sentence asserts that the sentences imposed upon the Appellant are manifestly inadequate, or as said in R v Clarke [1996] 2 VR 520 at 522 “...as reveal(ing) such manifest standards as to constitute an error in principle”. The Appellant submits that the sentences imposed in this matter are not manifestly inadequate. If the case of King is relied upon as providing in effect a template for sentences in similar factual circumstances, in the Respondent’s submission, the sentence imposed upon the Respondent is not ‘out of kilter’ with that sentence. Rather it is consistent with it, with proper allowances being made for factors such as a less protracted sexual assault, the mental health of the Respondent, and the differences in their respective criminal antecedents. Whilst...King’s case involved a sentence following a plea of guilty,...the sentence of the Respondent was unusual in that the sentencing judge took into account the remorse expressed by the Respondent. Even if the Court concludes that, taking all differences into account, the sentence imposed upon the Respondent is less severe than that imposed upon King, that conclusion still does not demonstrate that the sentences imposed upon the Respondent is [sic] manifestly inadequate.

29. Although we consider the sentences imposed upon the offender by Burns J to be lenient, and to be at the low end of the appropriate range of sentences for offences of their kinds, we do not consider those sentences to show an error in fact or law on the part of Burns J, or to be so inadequate to indicate some error in principle on his part.

30. We consider that, in determining the sentences to be imposed upon the offender, Burns J took into account all relevant factors and that he gave appropriate weight to those factors. His Honour erred in making the sentence on each count wholly concurrent (ground 3)

31. The DPP submitted that: ... some measure of accumulation was called for in relation to the act of indecency counts, instead of subsuming them completely within the sentence for the first count. While the acts all formed part of the one transaction so to speak, the acts of indecency were separate violations of the integrity of the victim, initiating and continuing the conduct, and should have been marked with some accumulation. Not to do so constituted an error, which has itself contributed to a total head sentence which is manifestly inadequate.

32. The respondent’s counsel submitted that: The two offences of committing an act of indecency both occurred during the sexual assault that culminated in the charge of sexual intercourse without consent. The three acts all occurred within a short time frame, probably within seconds of one another. It is concluded that they involved a single episode. The act of indecency offences involve touching of the victim in an effort to have sexual intercourse with her which occurred, and was the subject of the primary charge. In the circumstances that behaviour is part and parcel of the behaviour that drew the sentence imposed in relation to the primary charge. It did not warrant additional punishment, and His Honour was correct in the way in which he dealt with those charges.

33. Although he did not say why he ordered that each sentence commence to run on the same date, so that each sentence was to be served concurrently with the other sentences, we infer that Burns J considered that the three offences constituted a single course of conduct and that, therefore, the sentence for each offence should be served concurrently with the sentences for the other offences.

34. We accept that there is force in the DPP’s submission, and that it would have been open to Burns J to accumulate the act of indecency sentences on the sexual intercourse sentence to some extent, but we are also satisfied that it was open to his Honour to order that the three sentences be served concurrently, and that the failure to order that the sentences be served partly consecutively one upon the other does not justify our intervention. The non-parole period was manifestly inadequate (ground 2)

35. The DPP submitted that: There was no attempt by His Honour to explain how he had arrived at the non parole period. In particular, His Honour did not refer to rehabilitation in the context of the setting of the non parole period. What remains is a non parole period which is unexplained, but is manifestly inadequate and, indeed, so disproportionate to the seriousness of the crime as to shock the public conscience.

As the High Court noted as long ago as Power (1974) 131 CLR 623, 628, in setting a non parole period the sentencing judge must have regard to “the minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such determination”. The conditional freedom offered by the parole period, is appropriate “once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of the offence” (at 629).

In the present case, there is nothing to show that His Honour turned his mind to such matters, and the manifest inadequacy of the non parole period attested that he did not.

36. The respondent’s counsel submitted that:

His honour considered the Respondent’s prospects of re offending. He noted his prior criminal record, and the fact that he was on parole at the time of the commission of the offence. He noted his prior involvement with the mental health authorities. He also noted that since [being] remanded in custody he had been the subject of a mental health treatment order. He made specific reference in his reasons to the assessment of the Pre-Sentence reporter that “...he had gone a long way towards addressing criminogenic risk factors such as the use of illicit substances and mental health issues.” He noted in his reasons the need for close monitoring when the Respondent is returned to the community. In all the circumstances the Crown assertion that the length of the non-parole period, or the proportion that it bears and to the head sentence demonstrates appellable error, is in the Respondent’s submission unfounded.

37. Unfortunately, as with the orders that each sentence commence to run on the same date, Burns J did not say why he fixed the non-parole period to be 1 year 6 months. Perhaps the reason was, as the Respondent’s counsel submitted, the likelihood of the offender not re-offending, or perhaps his Honour saw a benefit in an extended period of close monitoring after the respondent was released into the community. However, we are unable to infer the reason for the decision.

38. We accept that a longer non-parole period would have been within range, but not that the non-parole period actually fixed was so low in the circumstances as to be manifestly inadequate and therefore to require or justify our intervention.

39. For these reasons, we dismissed the Crown’s appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 15 November 2013

Counsel for the applicant: Mr J White

Solicitor for the applicant: ACT Director of Public Prosecutions

Counsel for the respondent: Mr R Livingston

Solicitor for the respondent: Bevan Snell Lawyers

Date of hearing: 6 August 2013

Date of order: 6 August 2013

Date of reasons: 15 November 2013

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