R v Chatfield [2012] ACTCA 32

Court of Appeal (ACT)|2012-06-29|Before: Higgins CJ, Lander JJ

The appeal be allowed.
The sentences imposed in respect of counts 1 and 4 on the indictment be set aside.
In respect of count 1 on the indictment, the period of imprisonment be increased from four years and six months to six years and three months.
In respect of count 4 on the indictment, the period of imprisonment be increased from two years to two years and eight months and the period of accumulation be increased from six months to one year.
The sentences imposed in respect of count 2 and 3 on the indictment be confirmed.
The respondent be sentenced to a total of seven years and nine months' imprisonment.
A non-parole period of six years be imposed.

IN THE SUPREME COURT OF THE ) No. ACTCA 34 - 2011

2. The respondent pleaded guilty to the following four counts on the one indictment:

(a) one count of sexual assault in the third degree contrary to s 53(1) of the Crimes Act 1900 (ACT); and

(b) two counts of acts of indecency without consent contrary to s 60(1) of the Crimes Act; and

3. At about 4.00am on 20 September 2009, the female complainant was walking north along Northbourne Avenue from the direction of Civic while she was speaking to her male friend on her mobile phone.

4. At or about 4.40 am, while she was still on her phone, the complainant walked past the ABC Radio Station building on the corner of Northbourne Avenue and Wakefield Avenue in Dickson, when she turned around and saw the respondent walking about 100 metres behind her. A few moments later she noticed the respondent was only about 10 metres behind her, and that he was running towards her. She stepped aside hoping that the respondent would run past her. However, the respondent grabbed hold of her from behind and grabbed her hair. The complainant screamed into the phone for help. The respondent told the complainant that he had a knife and he placed the knife against her neck. He told her to "shut the fuck up, relax, calm down" or he would stab her. The respondent dragged her 10 to 15 metres into a darkened grass area. While this occurred, her phone rang and she answered it, screaming for help from her male friend. She lost hold of the telephone.

5. The complainant tried to grab the knife and in doing so she received a small cut to the webbing between her thumb and pointer finger on her left hand. The complainant believed that the respondent, who was describing what he intended to do, intended to rape her. The complainant felt the knife point in her back.

6. She was dragged to the ground and was on her knees being held by the hair. She offered the respondent money from her wallet if he would agree to let her go and she gave him $70, being all of the cash she had on her. The respondent took the money but did not let her go. The taking of the money comprised count 4, aggravated robbery, the maximum penalty for which is 25 years' imprisonment.

7. The respondent touched the complainant's breast by putting his hand down her shirt and her bra. He tried to take the complainant's pants off and turn the complainant over. He then put his hand down the back of her jeans and felt her lower back and buttocks.

8. The touching of the left breast and the lower back and buttocks comprised the two acts of indecency, the maximum penalty for each offence being, at the relevant time, five years' imprisonment.

9. The complainant continued to struggle and bit the respondent on the hand. During that struggle, the respondent hit the complainant on the right side of her head, on her ear. Eventually the complainant broke free of the respondent and ran to Northbourne Avenue. She ran in front of a taxi. While the taxi did not stop, the police arrived shortly after.

10. Count 1 comprised the assault with the knife, being a sexual assault in the third degree: s 53(1) of the Crimes Act. Section 53(1) provides for the offence of sexual assault in the third degree, which is punishable on conviction by imprisonment for 12 years where a person unlawfully assaults or threatens to inflict grievous or actual bodily harm on another person with intent to engage in sexual intercourse with that other person.

11. On 24 September 2009, the respondent was arrested at his home and was taken into custody where he remained until he was sentenced.

12. On 21 January 2010, the respondent was committed for trial. On 8 February 2011, the respondent's trial was listed to start on 30 May 2011.

13. On 29 March 2011, a new indictment was filed which was in the same terms as the previous indictment, except that the second charge of an act of indecency was added.

14. On 12 April 2011, the respondent pleaded guilty to all four counts on the indictment.

15. On 22 June 2011, a judge of this Court imposed the following sentence:

(a) on count 1: four years and six months' imprisonment;

16. On account of the respondent's plea of guilty, the sentence on count 1 was reduced by six months; on count 2 by six months; on count 3 by six months; and on count 4 by six months.

17. There is a disparity in the reduction of the sentences on the four separate counts. In respect of count 1 the reduction is 10%; in respect of counts 2 and 3 the reduction is 25%; and in respect of count 4 the reduction is 20%. The sentencing judge did not explain why the discount rate varied for the three separate offences and the four counts.

18. The sentences on counts 2 and 3 were ordered to be served concurrently but were accumulated on count 1 by six months. The sentence on count 4 was accumulated on counts 1, 2 and 3 by a further six months.

19. The head sentence totalled five years and six months. The sentencing judge set a non-parole period of four years.

20. The sentence was backdated to 24 September 2009 when the respondent was taken into custody.

But for your pleas of guilty, I would have accumulated the sentences by nine months instead of six months, giving a total sentence of six and a half years and a non-parole period of four and a half years.

22. There is an error in that statement because if she had done what she said, the head sentence would have been six years and the non-parole period four years and six months.

23. On 2 July 2012, the Crown appealed against the sentence on the ground that the sentence was manifestly inadequate. The appeal was heard on 2 May 2012.

24. For the reasons that follow, we agree with the Crown's principal contention that the sentences imposed were manifestly inadequate.

25. The respondent is an Aboriginal person who was born in Shepparton in Victoria on 22 June 1968. He has five siblings: four brothers and one sister. Prior to leaving home at the age of 12 his family life was violent and he suffered abuse. At the age of 12 years he was detained in a juvenile detention centre.

26. He occasionally visits his brothers and mother. He has been estranged from his sister for some months, but would like to see her again.

27. He has a partner who lives in Coffs Harbour, New South Wales, and they have three children from their relationship. His partner has two children from a previous relationship.

28. The respondent was educated to the equivalent of Year 7, but his schooling was interrupted by either being expelled or banned because of anger management issues. He said that he hated school and learned very little from the experience. His schooling ended when he was detained in the juvenile centre at the age of 12.

30. He has a problem with marijuana and alcohol, and says that he has previously attended rehabilitation programmes.

31. The psychological assessment indicates a diagnosis of both post-traumatic stress disorder and a major depressive disorder. The respondent has used alcohol in an attempt to remediate his post-traumatic and depressive symptoms and he has become psychologically and physiologically dependent on alcohol.

The severity of Mr Chatfield's psychological disturbance indicates that he requires intensive treatment. Such treatment must address not only his chronic substance abuse, but also the sequelae of his childhood experiences and his adult traumatisation. It is imperative that Mr Chatfield receive appropriate treatment following his release from prison. His past experience demonstrates conclusively that without extensive support and monitoring, relapse to heavy drinking (and hence to criminal activity) is highly likely. To ensure that Mr Chatfield receives the support he requires and to protect the community from further criminal acts, it is my respectful suggestion that a relatively lengthy parole period be imposed so that Mr Chatfield can be monitored and also receive appropriate treatment in the community.

33. The respondent has also been subject to a psychiatric assessment. The consultant psychiatrist, Dr George, summarised his opinion:

Mr Chatfield is a 41 year old man who presents for psychiatric assessment in relationship to current charges. Mr Chatfield does not present with any evidence to suggest that he has a functional mental illness. However, he does present with symptoms suggesting that he may have a mild organic mental disorder with specific cognitive deficit in relationship to short term memory. This may well relate to his assault some five years ago when he was in a coma for eight weeks, according to his descriptions, or alternatively, it may relate to chronic alcohol abuse/dependence some years ago. Other substance abuse when he was a youngster such as glue sniffing or petrol sniffing could also contribute to an organic mental disorder in his adulthood.

Other than this, he does not have any other stigmata of mental illness. He does not have mental impairment. He does have what would be regarded as an entrenched mixed personality disorder with significant antisocial traits.

Mr Chatfield has been a repeat offender over the years and to a large degree much of his criminal behaviour appears to be driven by substance abuse. At the present time, he has been prescribed an antidepressant, Cipramil 40mg daily, due to the fact that he did present with some symptoms of depression initially when he was inducted into the Alexander Maconochie Centre. However I believe that his depression has more of a characterlogical basis as opposed to, perhaps, his suffering from a major depression as such. To a large degree, I believe that the antidepressant he is taking would, to a certain extent, ameliorate any self destructive impulses and agitated behaviour. However, I do not perceive him as being able to fulfil all the criteria for a diagnosis of any serious depressive disorder.

34. A further psychological report was obtained from Mr Sutton on 10 May 2011. Relevantly, he found:

The role of traumatic brain injury in increasing the risk of developing a later dementia is currently somewhat controversial. The majority of studies do indicate there is an increased risk, a minority not. A small percentage of individuals do seem to have an increased risk of earlier dementia following brain injury, dependent upon possessing certain genetic and other biochemical markers. Mr. Chatfield's history [sic] a significant brain injury five years ago, of multiple concussions and alcoholic amnesias further increase the likelihood. That is, as Mr. Chatfield grows older, he has a higher probability of developing a dementia, and will become less able to inhibit anti-social impulses.
There are no psychological or psychiatric treatments of his dependency conditions which I am aware of, other than controlled environments where abstinence is enforced.
He does not have a mental impairment as defined in section 27, in terms of cognitive dysfunction, brain damage, psychosis, mood disorder or personality disorder (as currently defined). His substance dependencies are disorders as defined in the DSM.

35. The respondent's criminal history was appropriately described by the appellant as "atrocious".

36. On 1 October 1984, he was convicted of aggravated rape and sentenced to six years' imprisonment.

37. On 1 February 1988, he was convicted of two counts of aggravated rape and sentenced to eight years on the first count, and six years on the second count, to be served concurrently.

38. He has been consistently before courts since that time, charged with a number of burglaries and thefts. Most relevant, however, are his appearances for crimes of violence on 3 December 1993, 31 July 1997 and 15 February 2000.

39. He has been regularly sentenced to imprisonment up to the time of the commission of these offences.

40. In relation to these offences, the sentencing judge made only a brief assessment of the criminality of the respondent's conduct. She said:

The sexual assault and the two acts of indecency are all serious examples of these offences, while the aggravated robbery, although involving only a relatively small amount of money that was initially offered by the complainant, is also serious having regard to the circumstances in which it was committed.

41. She said that the respondent had been drinking for three days before the offences and could not remember committing the offences, but accepted that the evidence indicated his guilt. The sentencing judge said:

In these circumstances it seems likely that the offence was opportunistic, rather than premeditated. I can identify no mitigating factors, and no aggravating factors that are not already accounted for in the offences charged.

42. She noted that the respondent had expressed remorse by referring to how he would feel if one of his own three daughters had been assaulted in a similar manner, and that he understood that the offence would always be in the mind of the complainant.

43. She said that general and specific deterrence were important in the sentence to be imposed.

I also note that Mr Chatfield's prior similar offences, the assessed risk of re-offending, and Mr Sutton's suggestion that Mr Chatfield is at risk of developing a dementia rendering him increasingly less able to inhibit his anti-social impulses, mean that the protection of the community, one of the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT), may be particularly relevant here and may justify heavier rather than lighter sentences within the appropriate range.

45. The Crown contended that the sentences imposed in relation to counts 1 and 4 were inadequate in two ways. First, the individual head sentence for each count was manifestly inadequate. Secondly, the trial judge failed to properly accumulate the sentence on count 4 with counts 1, 2 and 3.

46. In his oral submissions, the Director of Public Prosecutions ("the DPP") said that the sentence on count 1 was manifestly inadequate having regard to the offender's antecedents, the late plea, the lack of any real remorse or contrition, the absence of any compelling subjective circumstances, and the fact that the maximum penalty for the offence was 12 years' imprisonment.

47. The DPP did not contend that the head sentences imposed on counts 2 and 3 were inadequate, although he did maintain that the sentence for count 4 was manifestly inadequate for the reasons advanced in relation to the inadequacy of the head sentence in count 1, and given that the offence carried a maximum penalty of 25 years' imprisonment.

48. An appeal is a creation of statute: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at 322 per Kirby J. It is only in comparatively recent times that the Crown has had a right to appeal to the Court of Criminal Appeal of a State or Territory. The right given to the Crown to appeal "cut across time-honoured concepts of criminal administration": Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447 at 452 per Barwick CJ. An appeal by the Crown ought to be a rarity and brought for the purpose of establishing "some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having a duty of sentencing convicted persons": Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310 per Barwick CJ.

49. In The Queen v Osenkowski (1982) 30 SASR 212 at 213, King CJ identified the role that prosecution appeals play in the criminal justice system, being to "maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

50. A ground of appeal should not be brought for the purpose of persuading the Court of Criminal Appeal to substitute its sentence for the sentence imposed by the sentencing judge. Rather, it should only be brought if the sentence indicates some error, departure from principle or manifest inadequacy.

51. Unless the Crown is able to identify an error in the sentencing process, the Crown must rely upon the ground of manifest inadequacy, which is, of course, a conclusion reached by the Court after examining the sentence under consideration: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325 - 326 per Gleeson CJ and Hayne J.

52. One of the issues which arose on the appeal was that if the Court was of the opinion that the sentence was manifestly inadequate, should the Court, in re-sentencing the respondent, have regard to the concept of double jeopardy? In relation to this issue the Court was referred to the decision of the High Court in Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 284 ALR 445 ("Bui v Director of Public Prosecutions (Cth)").

53. In that case, the appellant was convicted of one count of the importation of a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). She was sentenced in the County Court of Victoria to a term of three years' imprisonment, but the whole of the term of imprisonment was suspended on her entering into a recognisance of $5,000 to comply with the condition that she be of good behaviour for three years.

54. The Commonwealth DPP appealed against the sentence imposed on the ground that it was manifestly inadequate. The Court of Appeal of the Supreme Court of Victoria identified two separate errors in the sentencing judge's approach, and did so by reference to s 16A of the Crimes Act 1914 (Cth) ("Commonwealth Crimes Act"), a section which appears in Division 2 of Part IB of that Act.

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

56. Section 16A(2) identifies the matters which a court must take into account in addition to any relevant matters. The errors identified by the Court of Appeal in the sentencing judge's application of matters in s 16A(2) are not relevant for present purposes. They required the Court of Appeal, however, to re-sentence the respondent. Questions then arose as to the applicability of the common law principle of double jeopardy to the re-sentencing. Section 16A(2) does not require the sentencing court to have regard to the concept of double jeopardy when re-sentencing on appeal.

57. Further, s 289(2) and s 290(3) of the Criminal Procedure Act 2009 (Vic) require a court when re-sentencing, after allowing an appeal, not to take into account double jeopardy in the re-sentencing process.

58. Two questions arose: first, whether s 289 applied where the Court of Appeal in Victoria was re-sentencing in relation to a Commonwealth offence; and, if not, whether s 16A precluded the Court of Appeal from taking into account the concept of double jeopardy in the re-sentencing process.

59. The High Court concluded that s 16A of the Commonwealth Crimes Act laid down a code for the sentencing of offenders for a Commonwealth offence. In those circumstances, s 289 had no part to play in determining the appropriate penalty where the Court of Appeal was called upon to re-sentence an offender for an offence under the Commonwealth Crimes Act.

60. However, the High Court also found that s 16A, in its terms, does not accommodate the concept of double jeopardy in the re-sentencing process. The Court of Appeal was required, when re-sentencing for a Commonwealth offence, to apply the provisions of s 16A of the Commonwealth Crimes Act, which meant that it should not take into account the concept of double jeopardy.

61. In the ACT, sentencing is regulated by the Crimes (Sentencing) Act 2005 (ACT) ("Sentencing Act").

62. Section 7 of the Sentencing Act identifies the purposes of sentencing. It relevantly provides:

(1) A court may impose a sentence on an offender for 1 or more of the following purposes:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

63. Section 33 of the Sentencing Act requires a court to consider the matters contained in the paragraphs of s 33(1) of the Sentencing Act, if relevant and known to the court, in deciding how an offender should be sentenced. Section 33(1) includes some 26 matters that a court must take into account in deciding how an offender should be sentenced, none of which include the concept of double jeopardy.

64. Like the first words of s 16A(2) in relation to the list of relevant sentencing matters in the section, s 33(3) of the Sentencing Act provides that the list of relevant sentencing matters in s 33(1) does not limit the matters a court may consider in deciding how an offender should be sentenced for an offence. In Bui v Director of Public Prosecutions (Cth), however, it was held that s 16A did not accommodate the principle of double jeopardy as the sentence had to be appropriate in its severity in all the circumstances of the case. Moreover, the matters listed in s 33(1), to which the sentencing court must have regard, are to be applied by all courts, drawing no distinction between the matters to be taken into account by a sentencing court at first instance or by a court on appeal.

65. Section 7(1)(a) 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.

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

67. 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.

68. 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.

69. 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.

70. 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.

71. 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.

72. 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.

73. 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.

74. We think the sentences that were imposed by the sentencing judge are manifestly inadequate. We do not think the sentences reflect the respondent's culpability and his antecedents. We would set aside the sentences on counts 1 and 4 and sentence the respondent afresh.

75. If it had been argued, we would have imposed a higher sentence than 18 months' imprisonment for the acts of indecency, which was the sentence imposed by the sentencing judge after a discount for the respondent's plea. However, it has not been argued that those sentences should be increased, so in fairness to the respondent it would be inappropriate to increase those sentences.

76. However, the sentences in respect of counts 1 and 4 should be set aside. The respondent's conduct was such as to require the Court to impose a severe sentence. He threatened the complainant with a knife, and then held that knife to her neck and threatened to stab her. He pushed the knife point into her back. The complainant suffered an injury trying to protect herself from the respondent's use of the knife.

77. The respondent made it clear in the coarsest terms that he intended to rape her by describing in graphic and vile terms that which he intended to do.

78. The respondent further terrorised the complainant by the acts of indecency which could have only reinforced in the complainant's mind the likelihood that she was to be raped.

79. He further took advantage of her fear by taking the money that she offered in the hope that he would let her go.

80. The respondent's conduct in relation to count 4 is not ameliorated because it was the complainant who offered money to the respondent. The complainant was in fear of him. She feared he would rape her. She tried to protect herself by that action. The respondent took advantage of that fear by taking the money. It was a robbery which was able to be carried out because the respondent used a knife and threatened rape. But for the knife and the further threats, it may have been that the complainant would not have offered the money.

81. The objective circumstances of the respondent's conduct call for a severe penalty.

82. Women are entitled to walk the streets of Australian cities without being terrorised by offenders looking for sexual gratification. This Court should impose a severe sentence to send a strong message that conduct of that kind will not be tolerated. There is a pressing need for general deterrence in this case.

83. There is little to be said for the respondent's subjective circumstances that would indicate that the sentence should be reduced.

84. The respondent has spent nearly the whole of his life in the criminal justice system and appears unable to understand that he must obey the law.

85. He has twice been before a court for aggravated rape, and on the second occasion for two counts.

86. On the first occasion he was sentenced to six years' imprisonment, and on the second occasion eight years' and six years' imprisonment for the two counts. Although those offences occurred 15 and 11 years before these offences, and although this Court cannot re-sentence him in respect of those previous offences, those offences indicate that the Court cannot offer any leniency or mercy to the respondent in respect of these offences. There is also a pressing need for personal deterrence.

87. The respondent did not plead guilty until 18 months after he was arrested and imprisoned, and only pleaded guilty six weeks before his trial was to commence.

88. It cannot be said that he pleaded guilty because a fresh indictment was filed, because that indictment added a further count of indecency to the previous indictment.

89. It is more likely that the respondent pleaded guilty because of the strength of the prosecution case.

90. We would not reduce the respondent's sentences to the same extent as the sentencing judge. We would also not reduce the sentences by different percentages, because the reasons for the reduction in the sentences are the same in relation to each of the offences. Therefore, the extent of the discount should be the same. However, because no complaint was made of the sentences for counts 2 and 3, the respondent will obtain the benefit of a discount which we think is higher than appropriate.

91. We would reduce the sentences to be imposed upon the respondent by 10% for his guilty pleas, because those pleas ultimately allowed the complainant not to have to give evidence of what must have been a most frightening and distressing ordeal.

92. In our opinion, an appropriate sentence to reflect the matters to which we have referred in respect of count 1 would be seven years' imprisonment, which would be reduced by 10%, which is approximately nine months, to six years and three months. In respect of count 4, the appropriate sentence in our view would be three years' imprisonment reduced by 10%, which is approximately four months, to two years and eight months.

94. We would not disturb the accumulation of six months in respect of counts 2 and 3 because, again, no suggestion was made that that accumulation was inappropriate. Because the head sentences for those two counts have remained as they are, the accumulation should stay as it is. Those counts will be accumulated on the first count by six months.

95. However, in respect of count 4, we would accumulate the total sentence by one year. That makes a head sentence of seven years and nine months' imprisonment. There is no reason to think that this offender would benefit from a short non-parole period. He has shown no evidence that he is a candidate for rehabilitation over the many years he has been in the criminal justice system. We would set a non-parole period of six years.

96. For those reasons, we would allow the appeal and impose the sentences to which we have referred.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Director of Public Prosecutions for the ACT

Solicitor for the Respondent: Legal Aid ACT

Criminal Code Act 1995(Cth)

(Sentencing) Act 2005

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