Sentencing Act 1997 (Tas), s19.

R v Sparkes 73/1997_; R v McCrossen_ [1991] TASSC 1; (1991) Tas R 1; R v Hueston [1995] TASSC 110; (1995) 5 Tas R 210; R v Gill 52/1989, followed.

R v Butcher [1986] VicRp 4; [1986] VR 43; Brown v R 69/1987; R v England 42/1989; Criminal Injuries Board, Ex p Clowes (DC) [1977] 1 WLR 1353, considered.

Judgment ID Number: [1999] TASSC 25

2 Application for declaration referred back to Crawford J for determination.

1 I have had the advantage of reading the Reasons for Judgment prepared by Wright J. I agree with them and with the orders which he proposes. There is nothing I can usefully add.

2 The respondent, James Maxwell Evans, was convicted by a jury of one count of attempted rape in August 1998. This crime had been committed twelve weeks after his release on parole after serving part of an 8½ year sentence of imprisonment in respect of twelve counts of rape and two counts of indecent assault, of which he had been convicted in April 1992. Upon his conviction of attempted rape in August last year, the Crown applied that the respondent be declared a dangerous criminal, pursuant to the provisions of the Sentencing Act 1997, s19 ("the Act"). Section 19(1) and (2) are in the following terms:

"19 - (1) A judge before whom an offender is convicted or brought up for sentence after being convicted may declare the offender to be a dangerous criminal if -

(a) the offender has been convicted for a crime involving violence or an element of violence; and

(b) the offender has at least one previous conviction for a crime involving violence or an element of violence; and

(c) the offender has apparently attained the age of 17 years; and

(d) the judge is of the opinion that the declaration is warranted for the protection of the public.

(2) In determining whether to declare an offender a dangerous criminal a judge may have regard to all or any of the following -

(a) the nature and circumstances of the crimes referred to in subsection (1);

(d) any other matter that the judge considers relevant."

3 In passing sentence and dealing with the Crown's application, Crawford J made the following observations:

"Particularly disturbing and of significance is the prisoner's record for crimes of a sexual nature. In 1974 he was convicted of defilement for which a 2 year probation order was made. His counsel explained that crime as involving the prisoner, then aged 19 years, having a six month relationship with a 15 year old girl and in the course of that relationship having consensual sexual intercourse. Then in 1975, when he was aged about 21 years, he was convicted of two counts of indecent assault for which he was sentenced to 6 months' imprisonment. Counsel for the Crown explained that the indecent assaults were committed on two young girls, both aged 10 years. He pulled the jeans down of one, inserted his finger in her vagina, lay on top of her and rubbed his penis on her vagina. Shortly after he pulled the other girl's pants down, laid on top of her and rubbed his penis on her vagina. The Crown does not assert that the prisoner got his way with the girls by the use of violence, that is to say that in any sense he overcame resistance by the girls by the use of force. The Crown accepts that the crimes were committed by him, as an adult taking advantage of his superior position with respect to young children, being able to have his way with them. To put it another way it seems to me, they felt overborne by him and did not try to stop him from doing what he in fact did.

In about April 1992 he was convicted of twelve counts of rape and two counts of indecent assault for which he was sentenced to 8½ years' imprisonment from 13 February 1992. The crimes were committed on twelve separate occasions between March 1985 and December 1990. The victim was a girl who was aged 7 when he first raped her in March 1985 and 12 when he last did so in December 1990. He lived with the girl's mother and was in a position akin to that of a step-father. The sentencing judge said of the crimes:

'Without any apparent consideration for the welfare of this young girl, you simply used her body as an object for the gratification of your sexual lust. Your criminal conduct constituted a total abrogation of the trust this child had placed in you and which you had permitted her to place in you. This is a very bad case of child abuse ...'

Subsequently on 27 August 1994, the prisoner escaped and was sentenced to a further 6 months' imprisonment to be served at the expiration of the 8½ year sentence of imprisonment.

The Crown has applied pursuant to the Sentencing Act 1997, s19, for an order declaring the prisoner to be a dangerous criminal. Before a judge may make that order it must be established, among other things, that the offender has been convicted of a crime involving violence or an element of violence and that he has at least one previous conviction for a crime involving violence or an element of violence. I have no hesitation in concluding that on this occasion the conviction for attempted rape amounted to a conviction for a crime involving violence but I am not persuaded that he has at least one previous conviction for a crime involving violence or an element of violence, notwithstanding that he has been convicted of a number of crimes of a sexual nature.

It seems that his commission of the crime of defilement for which he was convicted in 1974, did not involve violence or an element of violence. Defilement of course was a crime involving sexual intercourse with a young person and it could be committed without any violence being involved. Similarly with regard to his convictions for two indecent assaults in 1975. Those crimes were committed with respect to children. Violence is not an element of the crime of indecent assault which needs to be proved and nothing was put before the Court to satisfy me that violence or an element of violence was involved when the accused committed those crimes against the two girls.

Counsel referred to R v Gill 52/1989, a judgment of Wright J, and to R v England, 42/1989, a case before the Court of Criminal Appeal. Both those cases, as I understand it, concerned rapes committed in violent circumstances and there is nothing in the judgments which persuades me that in every case of rape or in every case of indecent assault against children there necessarily must be involved violence or an element of violence. The point must be made that the legislation does not give courts the power to declare an offender a dangerous criminal for committing sexual crimes, only for committing crimes involving violence or an element of violence.

I have concluded that it is not possible for me to be satisfied that the twelve rapes and two indecent assaults, for which the prisoner was convicted in 1992, involved violence or an element of violence. I hold that rape and indecent assault can be committed against children without violence being involved, as that word is used in s19. For example, so far as rape is concerned, the elements of that crime consist of having sexual intercourse without the consent of the victim. In the case of a young child in particular, there might be absence of a legal consent because although the child consented in fact it was not freely given because it was procured by reason of the child being overborne by the nature or position of the offender. There is nothing in the comments of passing sentence of Underwood J, when sentencing the prisoner to 8½ years' gaol, which indicates that violence was involved in the commission of those crimes. Counsel for the Crown handed to this Court a transcript of the evidence of the girl in that case and pointed to passages in her evidence in which she said that, on occasion, the act of intercourse hurt and that, on occasion, she agreed to do what the prisoner asked her to do because she was scared of him. The jury may or may not have accepted what she said. The conclusion I have come to is that because I do not know the legal basis upon which the crimes were left to the jury by Underwood J, because his Honour's comments on passing sentence are silent about violence and because I do not have all of the transcript of the evidence at that trial, I am unable to determine, adverse to the prisoner, that any of those crimes of which he was convicted in 1992 involved violence or an element of violence.

I am therefore left in the position of not being satisfied under the Sentencing Act 1997, s19(1)(b), that the prisoner has at least one previous conviction for a crime involving violence or an element of violence. For that reason I decline to declare him to be a dangerous criminal."

4 The Crown has now appealed against that decision upon the following grounds:

"1 That the Learned Sentencing Judge erred in fact and law in holding that the crime of vaginal rape committed against a pre-pubescent girl did not involve violence.

2 That the Learned Sentencing Judge misdirected himself in holding that the crimes of Rape and Indecent Assault can be committed against children without violence being involved."

Because of the views which I have formed concerning the second ground of appeal, I see no reason to deal separately with ground 1.

5 As to ground 2, I make the following observations. The Act, s19(1), prescribes those matters which must be established before the sentencing court has jurisdiction to declare an offender a dangerous criminal. Section 19(2) enumerates factors which the judge exercising that jurisdiction may (and normally would) take into account in exercising his discretionary judgment whether or not to declare the offender a dangerous criminal.

6 Section 19(1)(b) is of particular relevance to the question now under appeal. It provides that the candidate for declaration must be shown to have "at least one previous conviction for a crime involving violence or an element of violence". It has been established that the phrase "a crime involving violence or an element of violence" does not make it incumbent upon the Crown to prove a crime, an essential ingredient of which is violence (see R v Gill 52/1989; R v McCrossen [1991] TASSC 1; (1991) Tas R 1 and Hueston [1995] TASSC 110; (1995) 5 Tas R 210). In McCrossen, Green CJ said (at 4):

"I agree with respect with the view expressed by Wright J. in Reg v Gill Serial No 52/1989 that in order to satisfy the requirements of s392(1)(a) the 'element of violence' involved need not be an essential ingredient of the crime. The section provides that the crime of which the accused is convicted must be a crime 'involving' an element of violence. The word 'involving' is not the equivalent of 'one of the essential ingredients of which is' and there is no reason not to give the word its ordinary meaning. However if the element of violence relied upon is not an essential ingredient of the particular form of the crime with which the accused is charged I think that the crime may only be regarded as 'involving an element of violence' if the violence relied upon is so connected with one of the ingredients of the crime that the court would be entitled to take it into account when exercising its ordinary sentencing discretion without violating the principle referred to in Reg v De Simoni [1981] HCA 31; (1981), 147 CLR 383 and Lovegrove v The Queen [1961] Tas SR 106 that a judge may not take into account aggravating circumstances if the effect of his doing so is that the accused is sentenced for a crime other than that of which he has been convicted."

The meaning of the word "violence" was also discussed in these cases and it is quite clear from what was said that the concept of violence involves not only actual physical force, but also threats of such force. Because of the nature and extent of the material placed before the Court in Gill, McCrossen and Hueston, it was possible for the sentencing judge to determine as a matter of fact, that the criminal conduct in question involved either actual physical force or threats of force, but this is not the only way in which the requirements of s19(1)(b) can be satisfied.

7 There are some crimes which "intrinsically" involve violence - see R v Butcher [1986] VicRp 4; [1986] VR 43 at 49 where the following passage appears:

"In R v Vickers [1957] 2 QB 664 a Court of Appeal comprising five Judges had to interpret the new Homicide Act 1957, s 1(1), and in the course of delivering the judgment of the Court, Goddard LCJ referred to the law as to 'constructive malice' before the passage of the Homicide Act. His Lordship used expressions such as 'a felony which involves violence', 'a moderate or even small degree of violence', 'a little violence', and 'a felony involving violence'. The learned editor of the 12th edition of Russell comments: 'The vagueness of the word can be seen in the judgment of the Court of Criminal Appeal in R v Vickers.'

When speaking of 'crime involving violence' and 'crimes of violence' it appears that reference was intended to be made to such crimes as robbery and rape. However, in the Court of Appeal the distinction, if any, to be drawn between felonies 'intrinsically involving violence' such as rape or robbery and felonies which merely happened to be accompanied by violence does not appear to have been consistently drawn."

It is significant that the English Court of Criminal Appeal regarded "rape" as a crime falling into this category. Similar views have also been expressed previously in Tasmanian decisions.

"Rape is a crime of violence properly so called even if threats express or implied have been sufficient to overbear the victim's will without the offender resorting to a direct physical attack."

The other members of the Court (Neasey and Nettlefold JJ) agreed with these views.

9 In R v England 42/1989, the unanimous Court of Criminal Appeal said:

"The fact that the complainant sustained no physical injuries at the hands of the respondent is of little consequence. Rape is an abhorrent act of violence. It is particularly abhorrent when it consists of serial offences perpetrated over a substantial period of time by a person in loco parentis to the victim. It is difficult to imagine a graver breach of parental responsibility."

10 The degree of violence used in the course of perpetrating a relevant criminal act need not be of a high level (see R v Mason [1820] EngR 108; 168 ER 876 and Harrison 22 CAR 82) and the absence of aggression or threats of force does not deprive an offence, which is an inherently violent offence, of the characteristic of violence (see R v Ireland [1997] UKHL 34; (1997) 4 All ER 225). The words of Eveleigh J in R v Criminal Injuries Board, Ex p Clowes (DC) [1977] 1 WLR 1353 at 1358 illustrate the point:

"One would then bear in mind that Parliament has set up a board to administer this scheme, which is an ex gratia scheme, and to provide compensation as the board shall decide bearing in mind the terms of paragraph 5. In that context, if I ask myself what kind of crime do I regard as a crime of violence, it would at once spring to my mind that the most well-known crime of violence is murder. Then if I were to ask: but is it necessary that that murder shall be committed by some particular force, or by excessive force? I would answer 'No,' because I would regard any murder in common parlance as a crime of violence. In my opinion, a man in the street who is asked 'Is murder a crime of violence?' would answer 'Yes, it is,' even though no actual external physical force can be discerned in the commission of the murder.

Killing by poison is murder. There is no external violence displayed in that offence. Nevertheless in my view the ordinary man would regard a person who has died from poisoning as having died a violent death. He would have suffered death by violence to the human system.

Consequently, in my view it is not necessary in order to constitute a crime of violence in the context of this scheme for there to be actual physical force."

11 Similarly, one may predicate the case of a sleeping woman being raped by a male visitor to her house. In such circumstances, whether or not the rapist passes himself off as her husband or achieves his purpose by stealth without arousing his victim from her slumbers, he has committed a crime involving violence, in my opinion, and ex necessitate rei his victim has been violated. In this respect, I find myself quite unable to agree with Crawford J.

12 In my opinion, the crime of rape always involves violence in the relevant sense and it follows from this that if an offender has been convicted of rape in the past and that fact is proved or admitted, the details or circumstances of that offence need not be established for the provisions of s19(1)(b) to be satisfied. Those details or circumstances may, of course, be significant to the sentencing judge in determining whether or not he will exercise his discretion adversely to the offender by declaring him to be a dangerous criminal, but that is not the issue currently before this Court. The learned Director of Public Prosecutions did not put his case as broadly as I have and was content to argue that, upon the material placed before Crawford J, the facts elicited as to the respondent's earlier convictions for rape in 1992 precluded his Honour from holding that "Rape and indecent assault can be committed against children without violence being involved as that word is used in s19." In my opinion, the principle now in question can be stated in much wider terms than those contended for.

13 Any assault involves the intentional application of force. An unlawful sexual assault derives its unlawfulness either from the absence of consent or the tender years of the alleged victim but, whether lawful or unlawful, any assault involves an element of violence. Similarly with rape, an act of intercourse is a constituent element of the offence and its unlawfulness derives from the absence of consent by the alleged victim. It matters not whether the absence of consent results from force, threats or fraud - if it is absent and any defence of honest and reasonable mistake is negatived, the crime has been established and, for the purposes of s19, that crime is one involving violence or an element of violence. There is no warrant in precedent or logic for excluding the relevant act of assault or intercourse from consideration, and looking only to the peripheral facts and circumstances which preceded or accompanied that conduct in determining whether the requirements of s19 have been established.

14 In Gill and Hueston, it was possible to discern the requisite element of violence from the evidence placed before the Court. In Hueston in particular, it may not have been possible to make findings as to that element without detailed material concerning the earlier convictions, but merely because that process was utilised in those cases does not mean that a simple analysis of the essential ingredients of the earlier convictions may not be utilised in the way I have described to reveal the necessary violent element.

15 In my opinion, rape is the quintessential example of criminal violence, whether accomplished by overt brutality or crafty guile, the act of penetration providing the requisite violence to activate the section.

16 Accordingly, the appeal must succeed and the Crown's application for a declaration must be referred back to Crawford J for his consideration as to how his discretion should be exercised.

17 This appeal involves consideration of whether the crimes of rape and indecent assault, irrespective of their manner of completion, are crimes of violence within the meaning of the Sentencing Act 1997, s19, ("the Act"). The respondent was convicted of the crime of attempted rape in August 1998. During the sentencing hearing the Crown applied, pursuant to the Act, s19, that the respondent be declared a dangerous criminal. The application was made on the basis that the respondent, in 1974, had been convicted of two acts of indecent assault, and in 1992 was further convicted of twelve counts of rape and two counts of indecent assault. There was no evidence before the learned sentencing judge as to whether the verdict of the jury reached, and for which convictions were recorded, arose because of a finding of actual physical violence, or whether the age of the victims had vitiated the element of consent. The Act, s19, provides:

"19 - (1) A judge before whom an offender is convicted or brought up for sentence after being convicted may declare the offender to be a dangerous criminal if -

(a) the offender has been convicted for a crime involving violence or an element of violence; and

(b) the offender has at least one previous conviction for a crime involving violence or an element of violence; and

(c) the offender has apparently attained the age of 17 years; and

(d) the judge is of the opinion that the declaration is warranted for the protection of the public.

(2) In determining whether to declare an offender a dangerous criminal a judge may have regard to all or any of the following -

(a) the nature and circumstances of the crimes referred to in subsection (1);

(d) any other matter that the judge considers relevant."

It was submitted that the words, "crime involving violence or an element of violence" permit two interpretations, and that given the consequence of a declaration to an individual, the narrower approach ought be taken. The first could be determined by reference to the nature of the crime itself, and the second by reference to the manner in which the particular criminal conduct was committed. However, if the words are to be regarded as meaning the manner of commission, then there is no additional purpose to be gained by s19(2)(a). The effect of the section as a whole is that the crime referred to in the Act, s19(1)(a) and (b), is generic. The threshold question is whether the crime is one which, by its nature, is one of violence. The addition of the words "an element of violence" is to make a distinction between the nature of a crime which might be generically neutral. A conviction for burglary simpliciter would not constitute a "crime involving violence or an element of violence". A conviction of unlawful entry with intent to commit an assault or an act of rape would be a crime "involving an element of violence", R v Sparkes 73/1997 (see also R v McCrossen [1991] TASSC 1; [1991] Tas R 1, R v Hueston [1995] TASSC 110; (1995) 5 Tas R 210). It is the nature of the crime (which of necessity requires a particular intent or state of mind) which brings into operation the precondition required by the Act, s19(1)(a) and (b).

18 Rape involves the violation of the body of another. Whether the violation of the body is achieved by physical force, threats, fraud or the incapacity of the other person to give consent is irrelevant. Violation means "Infringement, flagrant disregard, or non-observance of some principle or standard of conduct ... The action of treating or handling violently and injuriously", The Shorter Oxford English Dictionary 3rd ed (1975) at 2478. For there to be a conviction of rape, the plea or verdict must represent an acknowledgement or finding that there had been penetration of the body of another without the consent of that person. The plea or verdict must also represent the rejection that the offender honestly and reasonably believed that consent had been given. Parliament has provided for situations where physical acquiescence is not to be regarded as constituting consent. The Criminal Code ("the Code"), s2A, relevantly provides:

"2A - (1) In the code, unless the contrary intention appears, a reference to consent means a reference to a consent which is freely given by a rational and sober person so situated as to be able to give a rational opinion upon the matter to which the consent is given.

(2) Without limiting the meaning that may otherwise be attributable to the expression 'freely given', a consent is freely given where -

(a) it is not procured by force, fraud, or threats of any kind;

(b) it is not procured by reason of a person being overborne by the nature and position of another person

(c) it is not given by a person so affected by liquor or drugs, or so otherwise affected, as to be incapable of giving a rational opinion upon the matter to which the consent is given.

(3) Where a person, against whom a crime is alleged to have been committed under chapters XIV or XX, suffers grievous bodily harm as a result of, or in connection with, such a crime, the grievous bodily harm so suffered is prima facie evidence of the lack of consent on the part of that person."

In such circumstances, no real consent is given. Thus, there is injury to another by a physical indignity to the body without consent. The act is one of violation. Whereas the crime of defilement is defined by reference to age alone, that of rape involving young persons is not.

19 The same conclusion is reached in relation to the crime of indecent assault. Parliament has provided that a young person is unable to give consent to an act of indecency (the Code, s127). Physical acquiescence is not regarded as consent. Thus the crime involves an act committed against the body of another without consent (actual or imputed) by statute, and as such is a crime of violence.

20 It is not necessary for the purpose of this appeal to consider whether an aggravating matter connected with the commission of a non-violent crime, per se, is one which brings into operation the provisions of the Act, s19(1)(a) and (b). I am conscious of the import the decision of Green CJ in R v McCrossen (supra). An act of stealing might be followed by a gratuitous act of violence and the sentence might reflect that conduct as an aggravating matter. But it does not necessarily follow that if the only conviction is for the act of theft, that the aggravating matter makes the crime one "involving violence or an element of violence" (see R v Vickers [1957] 2 QB 664; R v Butcher [1986] VicRp 4; [1986] VR 43).

21 The circumstances of a particular act of rape or indecent assault ought be considered in relation to the issue of future danger and protection of the public as provided by the Act, s19(1)(d) and (2). The learned sentencing judge did not consider the circumstances of the previous conduct of the respondent in relation to those provisions since he concluded that the precondition required by the Act, s19(1)(a), had not been met. Given that I have reached, with respect, a different conclusion, I propose that the application for a declaration be referred back to the learned sentencing judge for further consideration of the exercise of discretionary power.