R v King [2013] ACTCA 29

Court of Appeal (ACT)|2013-07-26|Before: Gilmour JJ, Nield AJ

[2013] ACTCA 29 (26 July 2013)

APPEAL AND NEW TRIAL - Crown appeal from sentence - multiple offences of acts of indecency or sexual intercourse with a young person - whether sentences individually and/or in aggregate are manifestly inadequate - the operation of the principle of totality - the limited utility of other cases to demonstrate inadequacy - inadequacy demonstrated by reference to prescribed maximum penalties - appeal upheld and respondent resentenced

(ACT) , 92D, 92E, 92EA, 92K

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Nguyen v Regina [2007] NSWCCA 14

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

R v Chatfield [2012] ACTCA 32

R v Eisenach [2011] ACTCA 2

R v Fernando (1992) 76 A Crim R 58

R v Hitanaya [2010] NTCCA 3

R v Keen [2004] NSWCCA 86

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 28 - 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Count 1 - 30 months' imprisonment commencing 3 July 2008 and expiring 2 January 2011;

Count 2 - 3 years 4 months' imprisonment commencing 3 October 2008 and expiring 2 February 2012;

Count 3 - 20 months' imprisonment commencing 3 September 2010 and expiring 2 May 2012;

Count 4 - 20 months' imprisonment commencing 3 December 2010 and expiring 2 August 2012;

Count 5 - 9 months' imprisonment commencing 3 February 2012 and expiring 2 November 2012;

Count 6 - 20 months' imprisonment commencing 3 June 2011 and expiring 2 February 2013;

Count 7 - 30 months' imprisonment commencing 3 December 2010 and expiring 2 June 2013;

Count 8 - 34 months' imprisonment commencing 3 February 2011 and expiring 2 December 2013;

Count 9 - 30 months' imprisonment commencing 3 October 2011 and expiring 2 April 2014;

Count 10 - 20 months' imprisonment commencing 3 December 2012 and expiring 2 August 2014;

Count 11 - 30 months' imprisonment commencing 3 July 2014 and expiring 2 January 2017;

Count 12 - 34 months' imprisonment commencing 3 September 2014 and expiring 2 July 2017;

Count 13 - 3 years 4 months' imprisonment commencing 3 November 2014 and expiring 2 March 2018;

Count 14 - 30 months' imprisonment commencing 3 January 2016 and expiring 2 July 2018;

Count 15 - 34 months' imprisonment commencing 3 January 2016 and expiring 2 November 2018;

Count 16 - 3 years' imprisonment commencing 3 May 2016 and expiring 2 May 2019;

Count 17 - 3 years 9 months' imprisonment commencing 3 May 2016 and expiring 2 February 2020;

Count 18 - 3 years 9 months' imprisonment commencing 3 November 2016 and expiring 2 August 2020;

Count 19 - 32 months' imprisonment commencing 3 March 2018 and expiring 2 November 2020;

Count 20 - 3 years 6 months' imprisonment commencing 3 November 2017 and expiring 2 May 2021;

Count 21 - 3 years 9 months' imprisonment commencing 3 March 2018 and expiring 2 December 2021;

Count 22 - 4 years' imprisonment commencing 3 January 2019 and expiring 2 January 2023;

Count 23 - 12 years' imprisonment commencing 3 July 2014 and expiring 2 July 2026;

Count 24 - 4 years' imprisonment commencing 3 January 2023 and expiring 2 January 2027;

Count 25 - 3 years 4 months' imprisonment commencing 3 March 2024 and expiring 2 July 2027.

3. There be a non-parole period of 11 years 10 months commencing 3 July 2008 and expiring 2 May 2020.

IN THE SUPREME COURT OF THE ) No. ACTCA 28 - 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. On 29 June 2012, the respondent was sentenced by a judge of this Court for 25 sexual offences committed on five boys aged between 10 and 16 years. The offences occurred between 1989 and 1997. The respondent was sentenced to an aggregate sentence of 12 years' imprisonment with a non-parole period of 7 years 6 months. Both the head sentence and non-parole period commenced on 3 July 2008.

2. The offences committed by the respondent fall into four categories:

a) 16 counts of committing an act of indecency on a person over the age of 10 years but under the age of 16 years, contrary to s 92K(2) of the Crimes Act 1900 (ACT) (in its then form), with a maximum penalty of 10 years' imprisonment;

b) maintaining a sexual relationship with a young person, contrary to

s 92EA(2) of the Crimes Act 1900, with a maximum penalty of life imprisonment;

c) sexual intercourse with a person over the age of 10 years but under the age of 16 years, contrary to s 92E(2) of the Crimes Act 1900, with a maximum penalty of 14 years' imprisonment; and

d) sexual intercourse without consent, contrary to s 92D(1) of the Crimes Act 1900, with a maximum penalty of 12 years' imprisonment.

3. The appellant appealed from the sentences imposed by the primary judge on the ground that the sentences imposed are manifestly inadequate. It submitted that each of the individual sentences imposed are manifestly inadequate, that there was inadequate accumulation of sentences resulting in an aggregate head sentence that is manifestly inadequate, and that the non-parole period is inadequate. Regarding the last contention, the appellant initially proposed that the non-parole period was inadequate both as to its length and as a proportion of the aggregate head sentence. However, during the course of the appeal, the appellant withdrew the contention that the non-parole period was inadequate as a proportion of the head sentence. It ultimately submitted that, if this Court upheld the appeal, the proportion between head sentence and non-parole period imposed by the primary judge should be maintained with regard to any increased aggregate head sentence imposed by this Court.

4. The respondent contended that the sentences imposed, both individually and in the aggregate, are not manifestly inadequate. Alternatively, to the extent that this Court is satisfied that the sentences are manifestly inadequate, this Court in resentencing the respondent should take into account evidence that the respondent was assaulted in custody by reason of his conviction for these offences, resulting in significant injury.

5. The primary judge made an error in sentencing the respondent on Count 13 to a term of imprisonment that was not wholly concurrent with the sentence imposed on Count 23, the charge of maintaining a sexual relationship with a young person.

6. The principles governing the appeal are not in dispute. The imposition of a sentence for criminal offending is a discretionary judgment, which should not be interfered with on appeal unless error is first identified in the sentencing process of the kind contemplated by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499, where Dixon, Evatt and McTiernan JJ said, at 504-5:

The judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

7. In R v Eisenach [2011] ACTCA 2 this Court (Gray P, Refshauge and Ryan JJ) cited with approval the summary of principle of Charles JA in the case of R v Clarke [1996] VicRp 83; [1996] 2 VR 520 (at 522):

The principles which apply to Crown appeals are well established: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ at 310; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 234; Everett v R [1994] HCA 49; (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299. These principles were recently stated in summary form in the judgment of the Court of Criminal Appeal of New South Wales in R v Allpass (1993) 72 A Crim R 561 at 562-3. See also R v Osenkowski (1982) 30 SASR 212 at 212-13 per King CJ.

The relevant rules may be stated in the following propositions:

An appeal by the Crown should be brought only in "the rare and exceptional case" (Everett at 299) to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy" (Malvaso at 234).
Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to law down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3).

8. Whether a sentence is manifestly inadequate is a judgment to be drawn by an appeal court. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Gleeson CJ and Hayne J said at [6]:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

9. The respondent, an indigenous man, was born in 1943 and, as the primary judge noted, gained prominence in the community as a first class cricketer. In the 1987/88 cricket season he began playing for a Canberra district club, and in the following season became the third grade captain and coach. He became involved in coaching junior players at the club, and held positions within ACT Cricket. He offered private coaching to a number of young males. It was in this context that the offences occurred.

10. Counts 1 and 2 related to offences against the complainant P. The complainant considered the respondent to be a friend and mentor. At the time of the offences P was 13 years old and the respondent was about 46 years old. On an occasion when P was at the respondent's home, the respondent told him that he had some pornographic videos which he could show him and teach him everything he wanted to know about sex. The respondent then undid P's pants and began to masturbate him. The primary judge imposed a sentence of 18 months' imprisonment with respect to this offence, being the first count.

11. The second count was one of sexual intercourse with a young person. The offence occurred when P was again at the respondent's house and the respondent performed fellatio on him until P ejaculated. The primary judge imposed a sentence of 2 years 6 months' imprisonment.

12. Counts 3 and 4 concerned offences against the complainant R. At that time R was 14 or 15 years old. Count 3 alleges the respondent committed an act of indecency against R. On that occasion, at the respondent's home, the respondent started talking about sex and stated that the way R held his penis when masturbating was the way he should hold his cricket bat. The respondent then pulled R's pants down and traced his hand along R's scrotum and penis while breathing heavily.

13. Count 4 also allegeed an act of indecency. On this occasion, the complainant R was again at the respondent's house for personal cricket training. The respondent pulled R's pants down and caressed his scrotum and penis with his fingertips. The primary judge imposed sentences of 10 months imprisonment for Counts 3 and 4.

14. 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.

15. Count 6 also allegeed an act of indecency. The accused had a large mirror at his house in front of which he had the complainant stand to practice his batting technique. As the training sessions progressed, the respondent asked the complainant to take his clothes off to practice naked. On one of these occasions when the complainant was at the respondent's house for personal cricket training, the respondent had the complainant stand naked in front of the mirror. He then pointed out particular muscles and began touching the complainant thighs, penis and testicles as though inspecting them. The primary judge imposed a sentence of 10 months' imprisonment.

16. Count 7 alleged an act of indecency. On occasions when the complainant was at the respondent's house, the respondent would play pornographic videos and suggest that the complainant sit on a beanbag and masturbate. On one occasion the respondent showed the complainant a pornographic video and the complainant was masturbating on the beanbag. The respondent suggested that he give the complainant a hand and started masturbating the complainant but the complainant did not ejaculate. The primary judge imposed a sentence of 1 year 3 months.

17. Count 8 also alleged an act of indecency. On that occasion the respondent put on a pornographic movie and masturbated the complainant until he ejaculated. The primary judge imposed a sentence of 1 year 6 months imprisonment.

18. Count 9 also alleged an act of indecency. On this occasion the respondent put on a pornographic movie in the presence of the complainant, and encouraged the complainant to masturbate himself. The respondent then masturbated the complainant. The complainant's older brother then arrived to collect him. The respondent went to the front door whilst the complainant put his clothes back on. The primary judge imposed a sentence of 1 year 6 months imprisonment.

19. Count 10 alleged an act of indecency by the respondent against the fourth complainant, V. In about 1990, the complainant met the respondent whilst playing cricket. On one occasion during the holidays in about 1992 or 1993, when the complainant would have been 14 or 15 years old, the respondent went to the complainant's home for personal cricket training. Afterwards, the respondent asked the complainant whether or not he was ejaculating at that time. He then put his hands inside the complainant's underpants and fondled the complainant's penis and told him he was enjoying it. This incident was preceded by conversations between the accused and the complainant where the accused would ask whether the complainant had hair on his genitals and if he had ejaculated. The primary judge imposed a sentence of 10 months imprisonment.

20. Counts 11 to 25 involved offences against the complainant J. In about 1993, the complainant met the respondent at a pre-season development camp run by ACT Cricket. The respondent told him that the way he holds his penis should be the way he holds his cricket bat. Later the complainant began personal training with the respondent. Count 11 alleged an act of indecency. On one occasion in about 1994 after a training session, the complainant had a shower. After showering, the complainant walked out with a towel around his waist. The respondent handed him a pornographic magazine and told him to go into the bedroom and masturbate. They both went into the bedroom and the respondent masturbated the complainant's penis. The primary judge imposed a sentence of 1 year 3 months imprisonment.

21. Count 12 also alleged an act of indecency. On that occasion, the complainant again walked out of the shower at the respondent's house with a towel around his waist. The respondent told him to go into the bedroom to masturbate. The respondent again masturbated the complainant's penis until he ejaculated. The primary judge imposed a sentence of 1 year 6 months imprisonment.

22. Count 13 alleged an act of sexual intercourse with a young person. On this occasion, when the complainant was at the respondent's house for personal cricket training, the respondent grabbed the complainant, who was naked, before he got into the shower, took him into the bedroom and kissed him and placed the complainant's hand over his penis. The respondent began to play with the complainant's penis and then performed fellatio on him until he ejaculated. The primary judge imposed a sentence of 2 years 8 months imprisonment.

23. Counts 14 and 15 allegd acts of indecency. On another occasion when the complainant was at the respondent's house, the respondent again kissed him and placed the complainant's hand onto his penis. The respondent then let go of the complainant's hand and began to masturbate the complainant until he ejaculated, while continuing to hold the complainant's hand on his own penis. The primary judge imposed terms of 1 year and 8 months imprisonment with respect to each of these offences.

24. Count 16 alleged an act of indecency and Counts 17 and 18 are counts of sexual intercourse with a young person. On this occasion, the complainant was at the respondent's house lying naked on the bed with the respondent next to him. The respondent kissed the complainant and played with his penis. He then pushed the complainant's head down until it was at the respondent's groin. The complainant then performed fellatio on the respondent. The respondent then kissed the complainant and rolled him onto his back and performed fellatio on him until he ejaculated. With respect to the offence of committing an act of indecency, the primary judge imposed a term of 2 years imprisonment. With respect to each of the charges of sexual intercourse with a young person, the primary judge imposed terms of 2 years 1 month's imprisonment.

25. 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.

26. Counts 21 and 22 alleged offences of sexual intercourse with a young person. On this occasion the complainant was again at the respondent's house and lying naked on the bed with the respondent. The respondent kissed the complainant and fondled his penis and performed fellatio on him. The respondent then moved position such that the complainant felt that he had no option but to perform fellatio on the respondent, which he did. With respect to Count 21 the primary judge imposed a sentence of 2 years 1 month imprisonment. On Count 22 he imposed a sentence of 2 years 10 months imprisonment.

27. Count 23 was one of maintaining a sexual relationship with a young person. The facts alleged in Counts 11 to 22 inclusive were relied upon as the basis for this charge. The primary judge imposed a sentence of 9 years' imprisonment.

28. Count 24 alleged an offence of sexual intercourse without consent. In 1996, the complainant, who was then about 15 years old, continued to attend at the respondent's house for personal cricket training. On one occasion they were lying on the bed when the respondent kissed the complainant, fondled his penis and performed fellatio on him. The respondent also penetrated the complainant's anus with his finger. The complainant told the respondent it hurt and tried to push him away put the respondent persisted. The primary judge imposed a sentence of 2 years imprisonment with respect to that offence.

29. Count 25 alleged an offence of sexual intercourse with a young person. On this occasion the respondent drove the complainant to the Cotter reserve where they went bush walking. When they came to a secluded area the respondent started kissing the complainant. He placed a towel on the ground and told the complainant to lie down. The respondent then removed the complainant's pants and underpants and performed fellatio on him until he ejaculated. The primary judge imposed a term of 2 years 1 month imprisonment.

30. As noted above, the primary judge imposed the following sentences:

Count 1 - 18 months' imprisonment commencing 3 July 2008 and expiring 2 January 2010;

Count 2 - 30 months' imprisonment commencing 3 July 2008 and expiring 2 January 2011;

Count 3 - 10 months' imprisonment commencing 3 September 2009 and expiring 2 July 2010;

Count 4 - 10 months' imprisonment commencing 3 September 2009 and expiring 2 July 2010;

Count 5 - 9 months' imprisonment commencing 3 January 2010 and expiring 2 October 2010;

Count 6 - 10 months' imprisonment commencing 3 March 2010 and expiring 2 January 2011;

Count 7 - 15 months' imprisonment commencing 3 April 2010 and expiring 2 July 2011;

Count 8 - 18 months' imprisonment commencing 3 April 2010 and expiring 2 October 2011;

Count 9 - 18 months' imprisonment commencing 3 April 2010 and expiring 2 October 2011;

Count 10 - 10 months' imprisonment commencing 3 April 2011 and expiring 2 February 2012;

Count 11 - 15 months' imprisonment commencing 3 April 2011 and expiring 2 July 2012;

Count 12 - 18 months' imprisonment commencing 3 May 2011 and expiring 2 November 2012;

Count 13 - 2 years 8 months' imprisonment commencing 30 September 2010 and expiring 29 May 2013;

Count 14 - 20 months' imprisonment commencing 3 February 2012 and expiring 2 October 2013;

Count 15 - 20 months' imprisonment commencing 3 February 2012 and expiring 2 October 2013;

Count 16 - 2 years' imprisonment commencing 3 March 2012 and expiring 2 March 2014;

Count 17 - 2 years 1 month's imprisonment commencing 3 March 2012 and expiring 2 April 2012;

Count 18 - 2 years 1 month's imprisonment commencing 3 March 2012 and expiring 2 April 2012;

Count 19 - 20 months' imprisonment commencing 3 December 2012 and expiring 2 August 2014;

Count 20 - 2 years 1 month's imprisonment commencing 3 December 2012 and expiring 2 January 2015;

Count 21 - 2 years 1 month's imprisonment commencing 3 January 2013 and expiring 2 February 2015;

Count 22 - 2 years 10 months' imprisonment commencing 3 January 2013 and expiring 2 November 2015;

Count 23 - 9 years' imprisonment commencing 3 April 2011 and expiring 2 April 2020;

Count 24 - 2 years' imprisonment commencing 3 June 2018 and expiring 2 June 2020;

Count 25 - 2 years 1 month's imprisonment commencing 3 June 2018 and expiring 2 July 2020.

31. Annexed to these reasons is a chart depicting the extent to which the various sentences imposed by the primary judge were to be served concurrently and consecutively (Annexure A).

32. The aggregate head sentence was 12 years imprisonment commencing 3 July 2008 and expiring 2 July 2020. His Honour imposed a non-parole period of 7 years 6 months commencing 3 July 2008 and expiring 2 January 2016.

SENTENCING FOR MULTIPLE OFFENCES - GENERAL PRINCIPLES

33. Offenders being sentenced for multiple offences may fall into one or both of two categories. First, there are those whose charges arise out of the same act or contemporaneous series of acts. The facts in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 provide an example of such an offender. Pearce broke into the victim's home, and assaulted him causing life-threatening injuries. He was charged with an offence under s 33 of the Crimes Act 1900 (NSW) of maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm, and with an offence under

s 110 of the same Act of breaking and entering a dwelling house and inflicting grievous bodily harm on the victim. Pearce applied to the primary judge for a stay of the proceedings on the grounds that they constituted an abuse of process, or that they were oppressive. He submitted that by proffering the two charges arising out of the one incident he was placed "in double jeopardy". The application was refused and Pearce then pleaded guilty to both charges. He was sentenced to concurrent terms of imprisonment on each charge. An appeal to the New South Wales Court of Criminal Appeal was dismissed. Pearce then appealed to the High Court. In dismissing the appeal, the plurality (McHugh, Hayne and Callinan JJ) said at [40]:

To the extent to which two offences of which an offender stands contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.

34. Their Honours go on to observe that by sentencing Pearce to identical, concurrent terms of imprisonment on each charge, he had been punished twice for the common element, being the infliction of grievous bodily harm. Their Honours then posed the question whether that mattered when both sentences were to be served concurrently? To this, they answered at [49]:

To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

35. In cases where the charges arise out of the one incident or transaction, the sentences imposed will frequently be made concurrent, although there is no general rule to that effect. Thus, in Nguyen v Regina [2007] NSWCCA 14, Howie J, with whom Sully and Price JJ agreed, said:

There is no rule that sentences for offences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence: see generally R v MMK [2006] NSWCCA 272. The position was explained in Cahyadi v R [2007] NSWCCA 1 as follows:

27 ..... there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

36. The second category of offender facing multiple charges is one whose charges arise out of discrete acts of criminality. It is clear from the passage from Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, quoted with approval by Howie J in Nguyen v Regina, above, that the general principles stated therein apply equally to cases where multiple offences arise out of discrete criminal acts. In R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 Simpson J, with whom Mason P agreed, said at [7]-[8]:

Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong.

As a result of the decision of the High Court in Pearce [1998] HCA 57; (1998) 194 CLR 610; 103 A Crim R 372, the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce, a judge is required to fix "an appropriate sentence" for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced.

37. Her Honour went on to say at [12] with respect to the offences on appeal that:

the extent to which the two drug offences had common elements, and were committed during the same period, and involved the same participants, was one relevant consideration in assessing the total criminality, and is relevant... in determining the extent to which the sentences should be made concurrent.

38. In all cases of sentencing for multiple offences the sentencing judge is required to consider the principle of totality. In Mill v R [1988] HCA 70; (1988) 166 CLR 59 (at 62-63) Wilson, Deane, Dawson, Toohey and Gaudron JJ said:

The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57, as follows (omitting references):

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when...cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

39. Strict compliance with the principles enunciated in Pearce v R could lead to difficulties in particular cases, such as the sentencing of offenders who commit offences in different jurisdictions and come to be sentenced in one jurisdiction long after they were sentenced in another. If the principles in Pearce v R were strictly applied, there would be no facility to reduce a sentence in such circumstances to apply the principle of totality, as was contemplated in Mill v R. In Johnson v R [2004] HCA 15; (2004) 205 ALR 346 the High Court rejected the proposition that there was an inconsistency between Mill v R and Pearce v R. Gummow, Callinan and Heydon JJ said at [26]:

The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected...

40. Subsequently in R v Keen [2004] NSWCCA 86, the New South Wales Court of Criminal Appeal, (Simpson J, with Sully and Sperling JJ agreeing) said at [42]:

Compliance with the dictates of Pearce requires that a sentencing judge's first task is to fix the correct sentence for each offence, and then consider questions of totality and concurrence or accumulation. It seems to me that, logically, the issue of totality must follow the fixing of the sentences and precede the accumulation or concurrence question. Once totality is determined accumulation and concurrence will fall into place, although, the more offences that are being dealt with, the more complex is likely to be the exercise.

41. After referring to her comments in R v Hammoud (at [36] above) Simpson J went on to say at [44]:

Since the first draft of this judgment was prepared, the High Court has delivered judgment in Johnson v R (2004) [2004] HCA 15; [205 ALR 346;] [2004] HCA 15 in which the Pearce principles were considered. There is nothing in the judgments, as I read them (and particularly having regard to [26]) that would require revision of what I said in Hammoud. The judgment in Johnson has, however identified the level of flexibility in sentencing that was widely perceived by sentencing judges, and judges of this Court, as having been limited by Pearce.

42. On 15 May 2008, the respondent was charged in the Magistrates Court. He subsequently pleaded not guilty and on 22 April 2009 he was committed for trial to this Court. A trial date of 23 May 2011 was set. On 13 October 2010, the respondent entered pleas of guilty to 22 of the 41 counts in the indictment SCC 164/09. Subsequently, a separate indictment was prepared in relation to complainant J containing 20 counts: SCC 164A/09. These counts had previously been part of SCC 164/09. On 15 February 2011, the respondent was arraigned on indictment SCC 164A/09 and pleaded guilty to 12 counts, being counts to which he had already entered pleas of guilty on indictment SCC 164/09. The remaining 8 counts remained listed for trial on 23 May 2011. On 23 May 2011 the respondent pleaded guilty to a further 3 counts in full satisfaction of the indictment.

43. In August 2011, an issue was raised concerning the respondent's fitness to plead. A forensic mental health report and a fitness to plead assessment were ordered.

On 20 September 2011, the respondent was found fit to plead.

44. Evidence and submissions were taken on 15 and 16 February 2012, and sentence was delivered on 29 June 2012.

45. At the time of sentencing, the respondent was 69 years old. He had a limited prior criminal history consisting of some minor traffic offences, and some limited criminal convictions of no relevance to sentencing for these offences.

46. A Pre Sentence Report dated 20 May 2010 and an Updated Pre Sentence Report dated 12 July 2011 were tendered at the sentence hearing. The respondent was born in Queensland. His mother was indigenous and his father was an African American sailor, who the respondent never knew. His mother's second partner was reported to be a violent alcoholic. The respondent reported being exposed to alcohol abuse, violence and promiscuity in Aboriginal bush camps from age 11. During his adolescence he obtained money through male prostitution. He worked in various occupations, including labourer, storeman and packer, green keeper and in retail. He represented Queensland as a cricketer in the Sheffield Shield competition.

47. The respondent reported arriving in the ACT in 1987 as part of his employment as a sports consultant. He commenced coaching cricket players, which brought him into contact with the victims of his offences.

48. After leaving the ACT he returned to Brisbane for a brief period, which coincided with the death of his mother, before travelling to South Australia where he obtained employment picking fruit.

49. The respondent reported being estranged from his siblings, and having no intimate relationships. He told the author of the report he was "not gay".

50. The respondent reported no problematic use of alcohol or other drugs.

51. When questioned about the offences, the respondent admitted his actions, but said these activities "were initiated by the victims". He explained his behaviour as being part of the training of the victims as cricketers and their development as males. He stated that he has felt ashamed of his behaviour, "emotionally scarred", "depressed and lost".

52. In the later Updated Pre Sentence Report the respondent continued to maintain that his actions had been designed to assist the victims' development as cricketers, and that he had only done what the victims had consented to.

53. In his assessment in the Updated Pre Sentence Report the author said:

Mr King's account continues to be most disturbing. It indicates the systematic manner in which he preyed upon young adolescent boys, groomed and prepared them for the sexual activity he proceeded to perpetrate. The extent of his distorted thinking is such that he continues to maintain what occurred was consistent with coaching the victims to enhance their cricket skills. He further views it in the context of mentoring.

The account is of no comfort to the victims. His dismissal of what was perpetrated continues the trauma already suffered. Even in the admissions of responsibility, he mitigates his culpability by suggesting occurrences were inadvertent or responsive to expressed need. Whilst his abuse of trust has most profoundly impacted on the victims, it equally extends to their families, to work colleagues, cricket clubs and the wider community.

Taking into consideration Mr King's account and reflection on his behaviour reinforces the determination he is a high risk of recidivism [sic].

54. While in custody awaiting sentence the respondent was referred to ACT Mental Health for a neuropsychological assessment. In her report dated 17 January 2012 Dr Abigail Fargher, a clinical psychologist, concluded that the respondent's neuropsychology profile revealed low average to average intellectual functioning, with no signs of executive dysfunction.

55. A report from Tom Sutton, a clinical psychologist retained by the respondent's lawyers, dated 30 September 2010, was tendered in the sentence hearing. In response to specific questions put to him by the respondent's lawyers, Mr Sutton said:

Psychosocial factors influencing his offending behaviour: he is an isolated, introverted man who has poor interpersonal capacities and distorted thinking processes. This is not to say he is not able to reality test (he can), know right from wrong, nor problem solve (he is average intelligence)[sic]. He is best described as having neurotic components to his personality, which allow for reality judgements and a degree of social insight, but borderline features wherebye [sic] psychotic thinking and perceptions are contained. There are also elements of psychosexual arrested development, egocentricity, Schizoid and Schizotypal social isolative patterns. There used to be an older term - Pseudoneurotic Schizophrenia - which may come closes as a diagnosis. As he had no internal capacity to think his way through internal needs and no social network within which to discuss them, he has no brakes on his behaviour.
The influence on his upbringing: I have only his reporting of his history and perception of his experiences to go on. However, they are not necessarily delusional given the nature of the circumstances of the segregated early camps he was brought up in, his mixed parentage, and the probability of alcoholism and sexual molestation documented in other accounts in those environments. There is a high possibility he was exposed to sexual abuse and isolation during his formative years he recounts [sic]. My clinical hypothesis is there was almost certainly major developmental damage, and psychological and emotional arrest: essentially he did not gain the capacity for normal adult relationships, being emotionally, and cognitively able to only interact with adolescents.
Insight into his offending behaviour: he has no insight into why he committed the acts. His thinking here is delusional.
Re-offending: difficult to predict, meaning there is a possibility. Because he has some distorted thinking processes, I just can't tell how he will psychologically interpret future experiences nor if failing inhibitory frontal systems (due to past boxing etc) mean less capacity to prevent internal needs being expressed. He is now 67 and has been absolutely reliant upon his body as a source of identity and sense of self (similar to the adolescent). As it begins to fail, he will deteriorate psychologically: my guess is that at some stage, probably abruptly rather than gradually, he will require future care of some form whether it be custodial, psychiatric or otherwise - he will increasingly be less able to successfully open as an isolated individual. Suicidal risk is also always present.
High risk to the community: he certainly has been. See above for my comments on future risk.
Treatment: I am sorry to say I have no suggestions. He needs a 'family' to take care of him, but the damage to his psyche and psychosexual development, is to my mind, [sic] irreparable.

56. Mr Sutton also gave evidence before the primary judge. Mr Sutton considered the respondent to have delusional thinking, in that he believed he had done nothing wrong. The respondent saw his actions as part of helping the victims develop as cricketers and as men.

57. A number of Victim Impact Statements were received by the primary judge. They speak eloquently of the sense of betrayal felt by the victims, and the great harm done to them by the respondent. That harm continued up to the date of sentencing, and it may reasonably be inferred that it will continue indefinitely.

58. On behalf of the respondent a letter from Professor Paul Zimmet dated 12 July 2011 was received. In it, Professor Zimmet speaks of the respondent's traumatic upbringing, including sexual abuse, and his achievement as an Aboriginal sportsperson, particularly in cricket and boxing. He also speaks of the work undertaken by the respondent in the field of indigenous health.

59. The primary judge set out the facts relating to the offences and the subjective circumstances of the respondent. He observed, referencing Markarian v R [2005] HCA 25; (2005) 228 CLR 357, that the maximum penalties provided by the legislature for these offences demonstrated that they were serious offences. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v R at [30]-[31]:

Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance ... [C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant other factors, a yardstick.

60. The primary judge then referred to the duty of the courts to protect children, who are particularly vulnerable to abuse of trust. His Honour noted that "the [legal] authorities" make it clear that in cases such as the respondent's a lengthy term of imprisonment is "almost inevitable" due to the requirement that any sentence made a very strong denunciation of the conduct, to deter those likely to offend in a similar way, to vindicate the victims and to recognise the damage it has occasioned to them, and to protect the community.

61. The primary judge stated that while rehabilitation "can never be ignored", in the present case the respondent's lack of insight into his offending reduced his prospects of rehabilitation. He also noted that with respect to the charge of maintaining a sexual relationship with a young person contrary to s 92E of the Crimes Act 1900 (ACT) is, because of its ongoing nature, a much more serious offence then the individual offences of which it is constituted.

62. In that regard, the primary judge referred to R v D [1997] SASC 6350; (1997) 96 A Crim R 364 where Doyle CJ at 374 expressed the view that future cases of offences of persistent sexual abuse of a child contrary to s 74 of the Criminal Law Consolidation Act 1935 (SA), which carried a maximum penalty of life imprisonment, where the victim is over the age of 12 years, should have "as a starting point" a head sentence of about 10 years imprisonment. The primary judge also referred to the Northern Territory case of R v Hitanaya [2010] NTCCA 3 where the Court of Criminal Appeal considered in the context of a Crown appeal against inadequacy of sentence at [86], that the appropriate starting point for the offence of maintaining a sexual relationship with a child under 16 years of age, should have been 8 years' imprisonment. We will refer to the usefulness of these cases as comparators shortly.

63. The primary judge identified a number of aggravating factors attending the respondent's offending in respect to the charge of maintaining a sexual relationship with a young person:

a) the period of the relationship was relatively lengthy, between 1 January 1994 and 30 September 1996;

b) the victim was just 12 years old when the relationship began;

c) while there was no penile penetration, there was a case of anal digital penetration and a number of occasions of fellatio.

64. The primary judge also referred to the fact that there were a number of victims, although it is unclear whether there was concurrent offending.

65. His Honour also referred to the "aggravating elements of deception and the exploitation of the victims" for the respondent's own purposes. While the respondent maintained that he was attempting to assist the victims, the primary judge was satisfied that the respondent "gained some sexual arousal and benefit from the encounters". His Honour noted the evidence of the respondent's prior good character, but acknowledged that the respondent's prior good character had facilitated or allowed the offences to occur, reducing the weight to be given to that evidence in mitigating the respondent's offences.

66. The primary judge noted the evidence of Mr Sutton, but was not persuaded that the respondent suffered from a mental illness which would warrant elimination or substantial reduction of the general deterrent aspect of any sentences. Indeed, he considered there was a real role for personal deterrence in sentencing the respondent, to make clear to him how unacceptable his behaviour was.

67. His Honour also referred to the principles enunciated in R v Fernando (1992) 76

A Crim R 58 concerning the sentencing of Aboriginal persons. He noted the respondents appalling background and upbringing, and determined that some moderation of sentence should be given in accordance with those principles.

68. After stating that no sentences other than immediate imprisonment were appropriate, his Honour said:

I have carefully considered the length of each of the sentences I propose to impose, to ensure that when there are overlapping common elements between any of the offences Mr King is not punished twice. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same activity or otherwise.

I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for Mr King when he returns to the community.

Where necessary to achieve this, I have adjusted the cumulation [sic] or the concurrency of the individual sentences, including reducing the accumulation that would otherwise be likely to have been imposed so as to ensure the totality principle is respected.

69. The Crown did not submit that the primary judge made any identifiable error of fact or law in the sentencing of the respondent. With respect, we agree with that proposition. The Crown's case is that error is to be inferred as the individual sentences, and the aggregate sentence, imposed were manifestly inadequate.

70. Counsel for the respondent criticised the Crown for not supporting its contentions by reference to sentences imposed in other cases demonstrating that the sentences imposed by the primary judge were inadequate. The use of the other cases to demonstrate inadequacy of sentence with respect to a particular offender is always problematic. In R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38 the offender was sentenced to imprisonment for manslaughter. On appeal, he argued that the sentence imposed was manifestly excessive, referring to a number of sentences imposed in other cases of manslaughter. The Court of Criminal Appeal of New South Wales (Wood CJ, Adams and Kirby JJ) said at [48]:

It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993) 70 A Crim R 368; R v Salameh (unreported, Court of Criminal Appeal, NSW, Hunt CJ at CL, McInerney and Blanch JJ, No. 60728 of 1993, 9 June 1994) and R v Trevenna [2004] NSWCCA 43 at [98]- [101] per Barr J. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.

71. In R v Hitanaya, referred to by the primary judge, the maximum penalty for the crime of maintaining a sexual relationship with a child under the age of 16 years was

20 years' imprisonment, whereas the maximum penalty under s 92E of the Crimes Act 1900 (ACT) is life imprisonment. At [70] of the decision, the Court said:

As we pointed out in JO, in the absence of a tariff, while some guidance can be obtained from previous individual sentences, a comparison with prior sentences is of "limited assistance'. In particular, as sentencing standards may vary between jurisdictions, the assistance to be offered by sentences imposed in other jurisdictions may be limited.

72. In the second case referred to by the primary judge, R v D, Doyle CJ made it clear (at 374) that he was not suggesting a "precise figure" as the starting point for offences of persistent sexual abuse of a child, acknowledging that in an appropriate case the starting point may be higher or lower.

73. The appropriate starting point is to consider the sentences imposed for the offences of committing an act of indecency. The Crown accepted that the sentence of 9 months' imprisonment imposed on Count 5 was appropriate. That count involved the respondent simply looking at D's penis. There was, unsurprisingly, no suggestion by the respondent that the sentence imposed on Count 5 was inappropriate or excessive. Against this yardstick, the Crown submited that the sentences imposed for offences of committing an act of indecency involving the respondent touching the victims are inadequate, and to such a degree as to warrant appellate review.

74. Against this yardstick, and bearing in mind the self-evident fact that none of the offences committed by the respondent can be described as isolated, we consider that the remainder of the individual sentences imposed by the primary judge are manifestly inadequate. We consider that the individual sentences imposed by the primary judge pay insufficient regard to the maximum penalties provided by the legislature. Whilst offences of committing an act of indecency may encompass a wide variety of acts, those offences do not include acts of sexual intercourse as defined by s 50 of the Crimes Act 1900 (ACT). An act of sexual intercourse, as defined, with a young person constitutes a more serious offence. As such, the legislature provided the maximum penalty for offences of committing an act of indecency on a child in the knowledge that the range of acts encompassed by the offence did not include acts of sexual intercourse as defined.

75. In addition, we consider that the aggregate sentence imposed by the primary judge does not adequately reflect the totality of the respondent's criminality with regard to these offences. We do not doubt that the respondent knew that what he was doing was wrong, and constituted serious criminal conduct. He abused the trust of the victims, their parents and the members of the cricket club to prey upon children. Like the primary judge, we also are satisfied that there was an element, even a large element, of personal sexual gratification in the respondent's conduct. The reality is, that the respondent has shown little true remorse for his offending, and must be considered to be a significant risk of reoffending. His prospects for rehabilitation, at his age and with his entrenched views about his conduct, are bleak.

76. The respondent differs from the hypothetical offender referred to by Doyle CJ in R v D in that the offence of maintaining a sexual relationship with a young person to which he pleaded guilty was part of a range of sexual offences he committed with respect to a number of children. It was not an isolated offence, in the sense that his sexual offending with respect to children was not isolated to the child who was the victim of that offence.

77. Reference to the annexed chart reveals that the primary judge ordered that all of the sentences were to be served, at least in part, concurrently with at least one other sentence. In some cases, where there were common elements to the offending, that result was dictated by accepted principle. It is clear, however, that the extent to which many of the sentences were to be served concurrently, or partly concurrently, was determined by his Honour's application of the totality principle. We acknowledge, with respect, his Honour's correct enunciation of that principle, but we are satisfied that his Honour erred in application of the principle by imposing an aggregate sentence that did not adequately reflect the respondent's criminality.

79. It falls to us to resentence the respondent. In resentencing him we are not to have regard to the common law principle of "double jeopardy" in Crown appeals on sentence: Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638; R v Chatfield [2012] ACTCA 32.

80. However, in resentencing the respondent we accept that we should take into account the fresh evidence adduced by him in the course of the appeal. On 27 January 2013, the respondent was violently attacked by another inmate of the AMC, apparently by reason of the attacker identifying the respondent as a paedophile. As a result, the respondent sustained a serious injury to his left eye, resulting in its loss. The respondent now has a prosthetic eye and, of course, has reduced vision. These facts should be taken into account as evidencing extra curial punishment and because, to some extent, the respondent's continuing disability, and need for protection in prison, will make the respondent's sentence more difficult for him than for the general prison population: see R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398.

81. Taking all circumstances into account, the respondent is resentenced as follows:

Count 1 - 30 months' imprisonment commencing 3 July 2008 and expiring 2 January 2011;

Count 2 - 3 years 4 months' imprisonment commencing 3 October 2008 and expiring 2 February 2012;

Count 3 - 20 months' imprisonment commencing 3 September 2010 and expiring 2 May 2012;

Count 4 - 20 months' imprisonment commencing 3 December 2010 and expiring 2 August 2012;

Count 5 - 9 months' imprisonment commencing 3 February 2012 and expiring 2 November 2012;

Count 6 - 20 months' imprisonment commencing 3 June 2011 and expiring 2 February 2013;

Count 7 - 30 months' imprisonment commencing 3 December 2010 and expiring 2 June 2013;

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Cases Cited (11)