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Legislation Cited: Crimes Act 1900 (ACT), s 61(2) Crimes (Sentencing) Act 2005 (ACT), ss 10(2), 11, 12, 12(3), 29, 33(1)(za), 36(4), 37

Cases Cited: AB v The Queen (1999) 198 CLR 111 Bugmy v The Queen (2013) 249 CLR 571 CMB v Attorney-General (NSW) (2015) 243 A Crim R 282 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Keen v Tither [2010] ACTSC 130 Markarian v The Queen [2006] 228 CLR 357 R v Ang [2014] ACTCA 17 R v CJK (2009) 194 A Crime R 364 R v King [2013] ACTCA 29 R v NR (SCC 428/2009, Refshauge J, 29 March 2010) The Queen v Brewer [2004] ACTCA 10 The Queen v Williams [2014] ACTCA 30

Parties: The Queen (Appellant) DK (Respondent)

Representation: Counsel Mr J White SC (Appellant) Mr R Livingston (Respondent) Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent)

File Number: ACTCA 33 of 2014

Decision under appeal: Court: ACT Supreme Court Before: Burns J Date of Decision: 30 June 2014 Case Title: R v DK Citation: [2014] ACTSC 173

THE COURT:

Introduction

1. This is a Crown appeal against sentences imposed on DK for five acts of indecency on a person under 16 years. The offences are created by s 61(2) of the Crimes Act 1900 (ACT), which sets a maximum penalty including imprisonment for 10 years. The offences were committed against DK’s two step-children during the period 1 January to 12 February 2013.

The facts

2. In 2010 DK married a woman with two children, a boy and a girl. The children spent alternate weeks with their father, and with their mother in the house she shared with DK. In early 2013, DK’s step-son was 13 years old and his step-daughter was 10 years old.

3. Each incident giving rise to a charge involved DK going into the child’s bedroom at a point when he expected the child to be sound asleep, kneeling down beside the bed, putting his hands inside the child’s clothing and fondling the child’s genitals. There were two acts involving his step-daughter; in each case DK rubbed the outer labia of her vagina, but there was no vaginal penetration. In the three incidents involving his step-son, he put his hand around the boy’s penis and rubbed up and down.

4. DK admitted to about 10 separate incidents (including the charged acts) involving his step-daughter during the period charged, and 12 to 15 incidents involving his step-son. It seems that neither of the children woke during any of the incidents.

5. In mid-February 2013, apparently on his own initiative, DK began attending counselling with Sexaholics Anonymous. In June 2013 he confessed some of the acts of indecency to his wife. She excluded him from sleeping at the house when the children were staying there, but allowed him to visit in the evenings for dinner and also on the weekends while she was present.

6. Later, DK disclosed his actions to a Sexaholics Anonymous counsellor, who told him the disclosure would be reported. In October 2013, DK’s wife told staff of Child Protection Services (CPS) about DK’s disclosure. DK was interviewed by CPS staff in November 2013 and by police in December 2013. In that interview, he told police that he was not aroused by touching the children but felt an adrenalin rush because of the danger of his behaviour.

7. Police proceeded against DK by summons, and he pleaded guilty on 28 February 2014, the first mention in the Magistrates Court. He was sentenced in the Supreme Court on 30 June 2014.

Subjective circumstances

8. A pre-sentence report provided to the sentencing Judge indicated that DK, who was 36 when he was sentenced, came from a stable and loving family, but suffered sexual abuse by a friend’s father between the ages of 10 and 14. His family remained generally supportive after learning of these offences. He is currently separated from the mother of the victims, but wishes to reconcile with her, and she has indicated that she has not ruled out this possibility when her children are older. The pre-sentence report author expressed concern about this possibility and the risks it might create for the victims of these offences.

9. DK has two university degrees and worked as a teacher for some time. Since early 2013 he has been employed as a mechanic; his employer described him as a reliable employee.

10. DK began drinking in his early 20s, and by his early thirties was drinking to excess. After these offences came to light he acknowledged that his alcohol use and the associated disinhibition were problematic, and by the time he was sentenced he had begun to accept treatment from ACT Health Alcohol and Drug Services.

11. By the time he was sentenced, DK was still attending his church, and was receiving psychological counselling. He claims to have a sex addiction, which was what had initially led him to Sexaholics Anonymous.

12. The sentencing Judge also received an assessment and treatment report prepared by Professor Bruce Stevens, a psychologist.

13. Professor Stevens diagnosed DK with an adjustment disorder with mixed Anxiety and Depressed Mood, while pointing out that this was a result of the charges rather than a contributing factor to the offences. Professor Stevens reported that DK was not optimistic about the chances of a reconciliation with his wife. He referred to DK’s claim that his childhood sexual abuse led him to an interest in pornography, for which he obtained counselling in his early 20s, and that the increasing use of pornography created a need to do something physical. Professor Stevens, noting DK’s “realistic” expressions of remorse and regret, his willingness to take responsibility, his education, employment, family and church support, employability, and capacity to benefit from counselling, opined that DK had the potential to make “a full recovery”, and recommended continuing counselling.

14. DK had no criminal history.

The sentences

15. On 30 June 2014, starting at 10.00 am, the sentencing Judge heard sentencing evidence and submissions. At 11.41 am (without any break in proceedings identified in the transcript), his Honour proceeded to hand down sentence, concluding at 11.52 am.

16. His Honour sentenced DK to 12 months imprisonment for each of the offences against his step-daughter, to be served concurrently, and to 12 months imprisonment for each of the offences against his step-son, those three sentences to be served concurrently with each other and accumulated on the first two sentences so as to add 6 months, giving a total sentence of 18 months imprisonment which was immediately suspended subject to an 18-month good behaviour order.

Appeal grounds

17. The Crown has appealed against those sentences on the following grounds:

a) The sentence was manifestly inadequate.

Particulars – manifest inadequacy:

i. Each of the head sentences is manifestly inadequate;

ii. There was inadequate accumulation of the sentences resulting in an overall sentence that was manifestly inadequate;

iii. His Honour gave too much weight to the respondent’s disclosure of the offences;

iv. His Honour gave insufficient weight to the context of numerous other admitted uncharged sexual offences in which the offences occurred when sentencing the respondent;

v. The sentence being wholly suspended resulted in a sentence that was manifestly inadequate.

b) His Honour made specific errors of principle.

Particulars – Specific Error:

(i) His Honour erred in applying subsection 10(2) of the Crimes (Sentencing) Act to the question of whether the sentence of imprisonment should be suspended;

(ii) His Honour erred in failing to state the penalty that would otherwise have been imposed but the for the plea of guilty as required to by section 37 of the Crimes (Sentencing) Act;

(iii) His Honour erred in failing to state the penalty that would otherwise have been imposed but for the assistance to law enforcement authorities as required to by section 37 of the Crimes (Sentencing) Act.

18. In written submissions, the Crown abandoned ground (b) to the extent that it relied on asserted failures to comply with s 37 of the Crimes (Sentencing) Act 2005 (ACT). Thus, the grounds of appeal are essentially as follows:

(a) The sentence outcome was manifestly inadequate in that the individual sentences were too short, there was not enough accumulation of the various sentences, and the head sentence should not have been wholly suspended.

(b) His Honour erred in his application of s 10(2) of the Crimes (Sentencing) Act to his determination of the kind of sentence that was appropriate.

19. We note first that, although the Crown has on other recent occasions conceded that specific circumstances that are said to point to manifest inadequacy in the sentences imposed should be identified as particulars of the manifest inadequacy ground, the Crown has persisted in this appeal in trying to particularise manifest inadequacy by reference to errors made by the sentencing Judge in the process of determining sentence.

20. This is despite repeated recent explanations of the nature of an appeal on the ground of manifest inadequacy or excess by both the High Court and the ACT Court of Appeal, discussed below.

21. In this case, the Crown has submitted that the sentencing Judge gave too much weight to one matter (DK’s disclosures) and insufficient weight to another (the uncharged acts). In doing so the Crown has ignored:

(a) that specific errors by the sentencing judge must fall into one of the categories of error identified in House v The King (1936) 55 CLR 499;

(b) that manifest inadequacy and excess raise another kind of appeal ground, in which the appeal court is asked to infer error from a finding that the sentence is, in general terms, just wrong; and

(c) that, as explained in R v Ang [2014] ACTCA 17 at [22], relying on Gageler J’s comments in Bugmy v The Queen (2013) 249 CLR 571:

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”.

22. In asserting that a sentence is just wrong, it will often be necessary for an appellant to point out the aspects of the case that could lead the appeal court to accept that submission, but it is unnecessary and unhelpful to frame these factors as specific errors by the sentencing judge, and especially as specific errors constituted by having inadequate regard to or placing inappropriate weight on, particular factors. See also The Queen v Williams [2014] ACTCA 30 at [17] to [19].

23. For instance, in this case the Crown could have submitted that the sentences were far too lenient when one considered that the offences actually charged were representative of a much greater number of offences admitted to during the period specified in the indictment, or that they were far too lenient even accepting the fact that the offences would never have come to notice but for the offender’s voluntary and unsolicited disclosures. Whether what is said to be excessive leniency resulted from an inappropriate weighting process undertaken by the sentencing judge or from some entirely unrelated aspect of his Honour’s approach is irrelevant, and the Crown’s apparent determination to continue to rely on weighting errors is simply incorrect.

24. The Crown does, however, assert one error that would, if established, be a specific sentencing error. It is in this case convenient to deal with that issue first.

Specific sentencing error

Operation of s 10(2)

25. The Crown says that the sentencing Judge erred in applying s 10(2) of the Crimes (Sentencing) Act 2005 (ACT), which is as follows:

The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

26. His Honour appears to have been referring to that provision when he said:

The Crimes (Sentencing) Act provides that I should only impose an immediate term of imprisonment in circumstances where no other sentence will be adequate to reflect the needs of sentencing. In my opinion, taking into account all of the circumstances, a suspended term of imprisonment, with respect to these matters, will be adequate to reflect the needs of sentencing.

27. We agree with the Crown’s submission that his Honour’s words suggest that he has conflated the two issues that arise in relation to the imposition of a term of imprisonment, being:

(a) first, whether a sentence of imprisonment is the only appropriate penalty (s 10(2)); and

(b) secondly, whether any or all of a term of imprisonment needs to be served in immediate full-time custody.

28. Further, we accept the Crown’s implied submission that s 10(2) should be read, irrespective of the words “for all or part of the term of the sentence”, as providing that:

(a) a sentence may consist of or include a term of imprisonment only if no other penalty than imprisonment is appropriate; and

(b) that the determination whether any other sentence would be appropriate involves consideration of whether it is necessary to impose a term of imprisonment at all, but not (for the purposes of s 10(2)) consideration of whether such term should or might be served in whole or in part in full-time custody.

29. Section 12 of the Crimes (Sentencing) Act permits a court to suspend in whole or in part a term of imprisonment to which an offender has been sentenced, thereby offering the offender a chance to complete the sentence in the community (by complying with a good behaviour order for a period at least as long as the prison term specified) instead of serving any or all of the term in custody.

30. Once a term of imprisonment is imposed, the offender remains at risk of serving that sentence in full-time custody until the sentence has been completed. This is so whether the sentence is ultimately completed in full-time custody, by periodic detention, by compliance with a good behaviour order for an appropriate period, or by any combination of them. However, when a term of imprisonment is imposed, there is an immediate further question whether, and if so what part of, such a sentence must immediately be served in full-time custody.

31. Section 10(2), in our view, relates only to the first issue identified at [27] above, that is, whether a term of imprisonment is the only appropriate penalty for the court to impose. Certainly that interpretation is consistent with the views of Kirby J (in Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale) at [74] to [81]) about the need, when considering suspending a term of imprisonment, to engage in a two-stage process. The first stage requires a decision whether it is necessary to impose a prison term at all, and the second and separate stage requires a decision about whether any or all of a required prison term needs to be served in some kind of custody or whether it can be suspended and served within the community.

32. Sections 11 and 12 of the Crimes (Sentencing) Act provided, at the time that DK was sentenced, for a sentence of imprisonment to be served by way of periodic detention (s 11) or to be suspended in whole or in part (s 12). That is, the question of how a sentence of imprisonment is to be served is to be determined under those sections, and there is no need to read s 10(2) as also providing for the exercise of the s 11 or s 12 discretion.

33. As well, the reference in s 10(2) to sentencing an offender to imprisonment “for all or part of the term of the sentence” need not be read as referring to how much if any of a sentence of imprisonment is to be served in full-time custody, since it is clear that the “term” of a sentence may extend beyond the term of any sentence of imprisonment. In particular, a good behaviour order, which must be made if any part of a prison sentence is suspended (s 12(3)), and may be made as part of a combination sentence with a term of imprisonment, may extend beyond the specified term of the prison sentence (s 12(3)), and if made as part of a combination sentence, may run beyond the end of the term of imprisonment or may begin immediately after the end of that term (s 29, including example 2). In fact, the examples to s 29 all use the expression “the term of the sentence” to refer to sentences that extend beyond a term of imprisonment into a period during which the offender is subject to a good behaviour order but is not at risk of any custodial time.

34. The term of a sentence may also be extended beyond the end of any prison sentence by, for instance, a driver licence disqualification order (many of which extend beyond the maximum period of imprisonment available for the offence concerned).

35. In summary, the reference in s 10(2) to sentencing a person to imprisonment for “all or part of the term of the sentence” refers in our view to the imposition of a term of imprisonment that runs for the whole term of the sentence, or for part only of a term that extends beyond the specified term of the imprisonment by reason of an order such as a good behaviour order or a licence disqualification order.

36. Once it is recognised that “all or part of the term of the sentence” in s 10(2) does not refer only to the term of a prison sentence imposed, it is clear that s 10(2) does not apply to a decision about how much of a prison term that is imposed as, or as part of, a sentence needs to be served in full-time custody.

37. Furthermore, it would be a sentencing error to impose a suspended prison term, on the assumption that none of it would be served in custody, if in reality a prison term is not justified by the circumstances of the case (Dinsdale at [79]). Such an approach would be an error whether it was adopted so as to make the sentence look more severe than was really intended or for some other reason. Avoiding this error also requires that consideration of whether a term of imprisonment is necessary (the question raised by s 10(2)) must be undertaken separately from consideration of how any such sentence might be served.

Did his Honour fall into error?

38. The sentencing Judge’s reference to s 10(2) applying to an “immediate” term of imprisonment suggests a misunderstanding of the requirement of s 10(2), although it is by no means clear to us how the Crown would describe the error or its consequences. First, the conclusion that his Honour expressed in the words criticised could equally well have been described as two separate conclusions, being that his Honour was satisfied that terms of imprisonment were the only appropriate sentences but that he was not satisfied in the circumstances of the case that those terms needed to be served (in whole or in part) in full-time custody.

39. Alternatively, his Honour may have genuinely fallen into error in determining that prison sentences were appropriate without considering whether there were any other appropriate sentences and concluding that there were not.

40. However, if his Honour did fall into a specific error constituted by the imposition of prison sentences without considering non-custodial sentences, it would provide little help to the Crown in its appeal against what it says is an inadequate sentence. On the face of it, such an error was likely to have disadvantaged DK by possibly leading his Honour to impose a prison sentence where a proper approach to s 10(2) would have produced the conclusion that no prison sentence was required.

41. For that reason, it would be difficult (although not necessarily impossible) for the Crown to establish that a different and even more severe sentence should nevertheless be passed – unless of course the Crown could separately establish that the sentence was manifestly inadequate.

42. The Crown argued in written submissions that, as a result of mis-describing the effect of s 10(2), his Honour:

posed to himself – and answered – an irrelevant question: would a suspended term of imprisonment adequately reflect the needs of sentencing?.

43. It may be true that this question does not accurately address the operation of s 10(2), and that its generality means that it would not have been particularly helpful to his Honour in determining an appropriate sentence, but this does not make it irrelevant. On the contrary, the question as framed by the Crown may be the logical next step after determining that a sentence of imprisonment is required in accordance with s 10(2).

44. The Crown’s submission about s 10(2) concludes that his Honour’s “erroneous approach infected the whole sentencing exercise” and that in this case “the intervention of [the Court of Appeal] is justified”.

45. Presumably, then, the Crown’s unarticulated argument was:

(a) that what is said to be his Honour’s erroneous approach to s 10(2)’s application to the sentencing task re-opens the sentencing discretion;

(b) that the Court of Appeal should be satisfied that another sentence is appropriate; and

(c) that the Court of Appeal should exercise that re-opened discretion to impose a sentence involving, at least, some immediate custodial time.

46. We accept that identification of a specific error does re-open the sentencing process (irrespective of any identifiable effect of the error on the ultimate sentence), and does require the offender to be re-sentenced:

unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.

47. See Keen v Tither [2010] ACTSC 130 at [43], quoting Hayne J in AB v The Queen (1999) 198 CLR 111 at 160. Conclusion

48. However, even if we accept that his Honour’s possible misinterpretation of s 10(2) has re-opened the sentencing discretion, the Crown has not for this purpose articulated any basis on which this Court should find that another sentence is appropriate, being a basis that goes beyond, or raises different issues from, the matters relied on for the claim that DK’s sentence is manifestly inadequate.

49. Thus, while it may be useful for the Court to discuss the operation of s 10(2) as has been done at [25] to [37] above, we cannot identify his Honour’s apparently incorrect description of the operation of s 10(2) of the Crimes (Sentencing) Act as amounting to a sentencing error in circumstances that persuade us of the need to re-sentence DK. This appeal ground is not made out.

50. We note finally in this context that the risk of minor infelicities in the pronouncement of reasons for sentence may be increased by moving immediately to sentence without taking even a few minutes to reflect on the proper formulation of those reasons.

Manifest inadequacy

51. The Crown’s arguments about manifest inadequacy are effectively as follows:

(a) that the individual sentences were too short;

(b) that the various sentences were not sufficiently accumulated; and

(c) that the total sentence should not have been wholly suspended.

52. In summary, the Crown says that the total sentence should have been longer, and that some of it should have been served in custody.

53. In support of those submissions, the Crown points to the following features of the offences:

(a) the victims were very young; the younger victim was at the bottom of the victim age range for offences usually charged under the relevant provisions (there is a more serious offence that can be charged where a victim is under 10), and the older victim was in the middle of that range;

(b) the conduct was explicitly sexual;

(c) the offences involved a serious breach of trust;

(d) the offences involved an invasion of the sanctity of the victim’s home and bedrooms;

(e) these were representative charges and reflected other uncharged offending;

(f) what the Crown describes as “the lack in the subjective material of any explanation for the conduct”.

54. As well, the Crown sought to minimise the matters conceded to be in DK’s favour, such as his disclosure of the offences and his obvious remorse and regret. The Crown also made submissions about “comparable” sentences, about his Honour’s approach to accumulation and suspension, and about the significance of DK’s rehabilitation needs. Age of victims and sexual nature of offences

55. The Crown is right to point out the age of the victims and the explicitly sexual nature of the conduct (although one might think this latter feature was a common if not necessary feature of offences constituted by acts of indecency).

Breach of trust/invasion of sanctity of victims’ home and bedrooms

56. While the breach of trust involved in these offences is indisputable, it is not so clear that invading “the sanctity of the home and, indeed, bedrooms of the victims” is a meaningful aggravating factor, given that DK lived in the house and had every right to be in the house and the children’s bedrooms for proper reasons. We cannot see that committing the offences in the children’s bedrooms made the offences more serious than if they had been committed anywhere else in the house in breach of DK’s responsibility to the children.

Representative counts

57. The respondent points out that the charges are not “representative counts” as submitted by the Crown, because there has been no consent by DK to the charges being treated in that way; see R v CJK (2009) 194 A Crim R 364 at [38] (per Warren CJ, Vincent and Neave JJA agreeing).

Absence of explanation

58. It is true that there was no expert diagnosis or explanation of DK’s actions provided, but nor were the offences to be assessed in a vacuum – as his Honour noted, DK had himself been the victim of sexual abuse, and the Crown’s submission that this should have made him more empathetic to the victims, while superficially appealing, suggests to us an incomplete understanding of the complex impacts of early sexual abuse. There was also DK’s claim to police about the adrenalin rush he obtained from the riskiness of his behaviour – certainly this is not a complete explanation, but it may be a genuine one as far as it goes. Finally, it is hard to imagine any rational explanation for DK’s behaviour, so DK’s inability to produce such an explanation does not necessarily aggravate his offences.

Disclosures

59. The Crown sought to minimise the significance of DK’s disclosures by pointing out that his disclosures were not made directly to police. This seems to display a lack of understanding of the complexities of the situation, not just from DK’s point of view but also from the perspective of his wife and the victims.

60. We note also that in CMB v Attorney-General for New South Wales (2015) 243 A Crim R 282, decided shortly after this appeal was heard, the High Court (French CJ and Gageler J at [41]; Kiefel, Bell and Keane JJ at [77] and [78]) confirmed the significance of voluntary disclosures of guilt in the sentencing process and pointed out that lesser penalties imposed in recognition of an offender’s assistance to authorities must not be “unreasonably disproportionate to the nature and circumstances of the offence” (the formulation also used in s 36(4) of the Crimes (Sentencing) Act of the ACT). That is, the penalty may be “disproportionate” to the nature and circumstances of the offence as long as it is not “unreasonably” disproportionate. Remorse and regret

61. As to remorse and regret, the Crown said that “His Honour correctly identified that not only did [DK’s] voluntary disclosure indicate an acceptance that the conduct was wrong it also indicated a desire for change”, but went on to say, in what can only be described as nitpicking, that “a desire to change does not of itself equate with remorse” (emphasis in original). This is no doubt correct as a matter of language – but it does not mean that remorse cannot be inferred from actions such as the pursuit of change, and it certainly does not mean that explicit expressions of remorse are the only, or even necessarily the most convincing, evidence of remorse. One might think that expressions of remorse after one’s offences have come to light are far easier, and involve far less personal cost, than voluntarily bringing one’s offences to light when they would never otherwise have been discovered. Indeed, such disclosures are likely to show more surely that an offender is actually remorseful than, as often happens in such cases, he or she merely saying so, even on oath.

“Comparable” sentences

62. In asserting that the individual sentences were manifestly inadequate, the Crown referred to two other sentences imposed in the ACT for acts of indecency against children, being those in the cases of R v NR (SCC 428/2009, Refshauge J, 29 March 2010) and R v King [2013] ACTCA 29.

63. The case of R v NR involved a grandfather who touched the genitals of his 14-year-old granddaughter; two offences were charged, which were apparently the last in a series of similar offences over a period of about six months. NR was sentenced to a total of 18 months imprisonment, of which three months was to be served in full-time custody and a further nine months as periodic detention.

64. In R v King, the offender had been dealt with for 25 sexual offences including 16 acts of indecency on a person over the age of 10 but under the age of 16 years. He had been sentenced to a total of 12 years imprisonment with a non-parole period of 7 years and 6 months. The victims were teenage boys and the offender was their cricket coach. On appeal, the Court of Appeal increased the total sentences to 19 years imprisonment with a non-parole period of 11 years and 10 months. The sentences for the 17 acts of indecency originally ranged from 9 months imprisonment (count 5) to 25 months imprisonment (count 20). The Court of Appeal at [14] and [25] respectively described the offences receiving those lowest and highest sentences as follows:

Counts 5, 6, 7, 8 and 9 related to offences against the complainant D. D met the respondent when D was 13 years old. The respondent gave D personal cricket training. Count 5 alleged an act of indecency, which occurred on an occasion in 1994, when the complainant was 15 years old, and he went to the respondent’s house for personal cricket training. They walked to the cricket nets at a local school. The respondent asked the complainant to show him his penis, which he did. The primary judge imposed a sentence of 9 months’ imprisonment.

...

Counts 19 and 20 alleged acts of indecency. On this occasion, the complainant was again at the respondent’s house and lying naked on the bed. The respondent kissed the complainant and started playing with his penis before suggesting that the complainant masturbate the respondent’s penis. The complainant did this until the respondent ejaculated. The primary judge imposed sentences of 1 year 8 months’ imprisonment with respect to Count 19 and 2 years 1 month’s imprisonment with respect to Count 20.

65. On appeal, the 9-month sentence remained, but the 25-month sentence was increased to 42 months.

66. The Crown drew our attention to the range of sentences imposed on Mr King on appeal, but made no submissions about any available comparisons or distinctions between Mr King’s offences and the sentences imposed and the offences and sentences in the current case.

67. These are only two of the many sentences for such offences that have been imposed in the ACT in recent years and that may be relevant in assessing “current sentencing practice” (Crimes (Sentencing) Act, s 33(1)(za)); as far as we can see, there is nothing about the circumstances of either of those cases that makes them particularly similar or “comparable” to the current offences.

68. Counsel for the respondent noted that the ACT Sentencing Database showed that over the roughly three years before the hearing of this appeal, there had been 34 sentences imposed for offences under s 61(2) of the Crimes Act.

69. The Crown offered no useful analysis of either the two cases it relied on or any of the others recorded in the Sentencing Database. We note, however, that the 34 sentences recorded in the Sentencing Database ranged from good behaviour orders to wholly or partly suspended sentences and imprisonment for periods ranging from six months to three years.

Accumulation

70. The Crown also criticised his Honour’s approach to the accumulation of the sentences relating to the same victim, saying that his Honour’s failure to accumulate the second and subsequent sentences for offences against a single victim, in circumstances where the offences were representative, made the total sentences manifestly inadequate. As well as relying on the “representative count” argument that does not seem to be sound (at [57] above), this argument founders on the point made earlier (at [21] above) about the nature of the manifest inadequacy ground: a sentence may be manifestly inadequate because it is too short – it is not manifestly inadequate because his Honour has taken a particular approach to accumulation and concurrency. Similarly, the total sentence may be manifestly inadequate if it does not properly reflect the seriousness of DK’s conduct, but this is not because his Honour has erred in relation to the principle of totality, it is because the sentence is too short having regard to the conduct concerned.

Suspension

71. The Crown further says that the suspension of the entire sentence “is indicative of manifest inadequacy”’; at the risk of labouring a point that has been laboured many times before but to little apparent effect, a sentence may be manifestly inadequate because it is too short or is the wrong kind of sentence, but such explanations describe the nature of its inadequacy, rather than establishing that inadequacy.

Need for rehabilitation

72. Finally, the Crown argued in written submissions that DK had no need of a suspended sentence because he had no significant need for rehabilitation, and that his good character, having been taken into account in setting a modest head sentence, should not be again taken into account in determining whether the sentence should be fully or partly suspended.

73. The Crown relied for this proposition on The Queen v Brewer [2004] ACTCA 10, in which the Court of Appeal was persuaded that fully suspending a sentence of imprisonment imposed for serious social security fraud by a person of prior good character was erroneous. To the extent that the Court of Appeal cited Dinsdale in support of the proposition that rehabilitation “may not be the only rationale for suspending a sentence but it is usually a significant factor”, it has in our view conveyed a misleading impression of what the High Court in Dinsdale really had to say about the significance of rehabilitation in suspending a sentence. Certainly Dinsdale recognised rehabilitation as a significant factor in relation to whether a sentence should be suspended, but the Court made it clear that the lack of a need for rehabilitation would not be determinative and that other sentencing considerations were also relevant. The High Court rejected as erroneous an approach taken by some members of the Western Australian Court of Appeal to the effect that the discretion to suspend a sentence could only be exercised by reference “wholly, mainly or specifically” to the likely effect of suspension on the rehabilitation of the offender. Instead, the High Court said, the factors that are relevant in deciding whether to impose a sentence of imprisonment are also relevant in deciding whether that sentence should be suspended (Gleeson CJ and Hayne J at [18]; Gaudron and Gummow JJ at [26]; Kirby J at [85]). The High Court also made it explicit that accounting for a relevant sentencing consideration in determining a sentence of imprisonment and considering that factor again in determining whether to suspend the sentence was not only not an error of principle (contrary to the conclusions of the Court in Brewer) but was in general required.

74. Furthermore, in our view, the Crown’s submissions smack of the mathematical approach to sentencing that was rejected in Markarian [2006] 228 CLR 357, to the extent that they imply that if a factor is taken into account in relation to a particular aspect of the sentencing it must not be further considered because this would involve some kind of double counting.

75. Quite apart from the double-counting issue, it would seem to be a bizarre and unjust approach to sentencing to say that a person who does not need any rehabilitation because he or she has already been rehabilitated should not receive a suspended sentence but a person who for whatever reason still requires rehabilitation (possibly including a person who has neither the wish nor the capacity for rehabilitation) may be treated more leniently. Furthermore, the Crown’s implication, that once rehabilitation has been achieved it is a permanent state, seems remarkably simplistic. Rehabilitation achieved before sentencing could, in the case of many offenders, be seriously compromised by a subsequent custodial sentence. To the extent that an offender’s rehabilitation is relevant in deciding whether to suspend a sentence, preserving rehabilitation that has been achieved would seem to deserve the same consideration as furthering rehabilitation that seems achievable. We note also that even where rehabilitation appears to have been achieved, some ongoing supervision may be useful in maintaining that rehabilitation.

Unspecified discounts for guilty pleas and disclosure

76. It is unfortunate, as the Crown points out (although without pressing this as an appeal ground), that his Honour did not specify the starting sentences or the discounts that he had provided both for DK’s early guilty pleas and for his actions in coming forward and making his offences known, in circumstances in which, almost certainly, they would never otherwise have come to light. However, those two factors alone could in the circumstances have justified the sentencing Judge in reducing the sentences by as much as 50%, thus allowing the possibility that his Honour had started with sentences that could have been as high as three years imprisonment in total.

Conclusion

77. The Crown has not established that the sentences imposed were manifestly inadequate.

Order

78. The appeal is dismissed.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 31 March 2016