R v Meyboom [2012] ACTCA 48

Court of Appeal (ACT)|2012-12-11|Before: Connolly J

[2012] ACTCA 48 (11 December 2012)

APPEAL - In general and right of appeal - Criminal law - Crown appeal against sentence - General principles

APPEAL - Appeal against sentence - Manifest inadequacy - General principles - Multiple sentences - Accumulation and concurrency principles - Totality - Sentences not manifestly inadequate - No appellate intervention necessary

CRIMINAL LAW - Sentencing - Sex offences - Objective seriousness - Need for reasons to justify assertions that offences are "among the worst examples" - Use to be made of comparative cases

Crimes Act 1900 (ACT), ss 26, 53(1), 54(1), 60(1)

Crimes (Sentencing) Act 2005 (ACT), ss 13, 33(1)(m)-(r), (t), (v)

Attorney-General v Tichy (1982) 30 SASR 84 at 88

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

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

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

Griffith v The Queen [1977] HCA 44; (1977) 137 CLR 293

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

Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346

Kennewell v Rand [2006] ACTCA 10

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

R v BJ (Unreported, Supreme Court of the ACT, 28 August 2007)

R v Campbell [2010] ACTCA 20

R v Chatfield [2012] ACTCA 32

R v Eisenach [2011] ACTCA 2

R v Holder [1983] 3 NSWLR 245

R v King [2008] ACTCA 12

R v Maloney and Sione (Unreported, Supreme Court of the ACT, Connolly J, 12 March 2004)

R v Morse (1979) 23 SASR 98

R v Robertson [2010] ACTCA 19

R v Thorn [2010] ACTCA 10

R v Twala (unreported, NSW Court of Criminal Appeal, Badgery-Parker J, 4 November 1994)

R v WA (Unreported, Supreme Court of the ACT, Penfold J, 17 June 2010)

Rama v The Queen [2006] ACTCA 25

Ritter v The Queen [2012] NSWCCA 121

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 1994

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 11 - 2011

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 353B of 2007

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

IN THE SUPREME COURT OF THE ) No. ACTCA 11 - 2011

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 353B of 2007

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

1. After a trial by judge alone, the respondent, Craig Paul Meyboom, was found guilty on 4 February 2011 of the following charges:

(a) two counts of engaging in sexual intercourse with a young woman without her consent, and knowing she did not consent or being reckless as to whether she consented or not; and

(b) three charges of committing an act of indecency in the presence of three different young women.

3. On 25 March 2011, he was sentenced to a total period of imprisonment for seven years and six months with a non-parole period of five years.

4. The Crown has appealed against the sentence on the ground that it was manifestly inadequate.

5. On 20 September 2012, we dismissed the appeal and said that our reasons would be delivered later. These are our reasons.

6. An appeal by the Crown against sentence is permitted without leave under s 37E of the Supreme Court Act 1933 (ACT). The courts have, nevertheless, articulated an approach to such appeals that they should, as Barwick CJ described it in Griffith v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310, be "a rarity".

7. Recently in R v TW (2011) 6 ACTLR 18, Refshauge J summarised the principles to be distilled from the authorities that have considered the position of Crown appeals against sentence. In a passage with which Penfold and Lander JJ agreed, his Honour said (at 20-21; [4]-[6]):

The principles have been helpfully set out by Charles JA (with whom Winneke P and Hayne JA, as his Honour then was, agreed) in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522, after a careful consideration and analysis of the cases. I summarise those principles as follows:

(i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.

(ii) Occasions may arise for the bringing of a Crown appeal:

(a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;

(b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;

(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 the crime as to shock the public conscience; and

(f) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.

(iii) When, in response to a Crown appeal, the court decides to resentence an offender it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat lesser than the sentence it considers should have been imposed at first instance.

(iv) The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.

These principles were adopted by this Court in R v Eisenach [2011] ACTCA 2 (at [8] to [10]).

In addition, the court has to approach the appeal in accordance with principles applicable to all appeals against sentence, namely:

(v) The court is not 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. The court only interferes if there is an error of fact or law by the sentencing judge of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5, or where there is such manifest inadequacy or excess in sentence as to indicate error.

8. In the light of the decision of this court in R v Chatfield [2012] ACTCA 32, the principle numbered (iii) above is no longer the law in this Territory.

9. In Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306-7, McHugh J described as follows the approach to the determination of a Crown appeal against sentence, though in the context of an application for leave to appeal:

If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence.

10. The charges arose out of four incidents. The first was the subject of the first three charges referred to above (at [1]) and occurred on 5 April 2006.

11. The second incident involved an attack on two women on 7 April 2006 and resulted in two charges of assault.

12. The third incident, also occurring on 7 April 2006, resulted in two charges of committing an act of indecency in the presence of the same two women.

13. The fourth incident occurred on 5 June 2006 and resulted in a further charge of committing an act of indecency in the presence of a different young woman.

14. In finding Mr Meyboom guilty of the charges arising out of the first incident, the the facts were very briefly described in the judgment following the trial as follows:

The ... event ... occurred on 5 April 2006. The complainant [AF] was ... set upon by an assailant [Mr Meyboom] who apparently intended to sexually assault her. The assailant struck her causing her to fall to the ground. He indicated he wanted to 'touch' her, not to 'rape' her. He undressed her and inserted several fingers into her vagina. He then knelt between her legs and placed his tongue into her vagina. [AF] resisted the assailant. The assailant then broke off the attack, stealing [AF]'s mobile phone. ... the accused gave that phone on the next day to his then girlfriend.

15. No mention was made of the facts of the first incident, or any of the other incidents, in the reasons for sentence, but a Case Statement (originally prepared for the trial of these offences) was tendered by the prosecution on the sentencing hearing. The summaries below are taken from that Statement.

16. The second incident occurred at a bicycle path in the suburb of Weston at about 11.15 pm on 7 April 2006. The victims, two young women, were looking for the boyfriend of one of them when they saw a male, who was Mr Meyboom. Thinking he was someone else they knew, one of the young women called out to him and he turned and walked back towards them.

17. The young women continued walking past Mr Meyboom as they realised he was not their friend, but Mr Meyboom grabbed one of the young women by the neck and lifted her off the ground. He then spun her around and threw her on the ground. He continued to hold her neck and said, "Tell your friend to go away or I will kill you", but her friend said "Let her go or I will scream".

18. Mr Meyboom then let go of the neck of the young woman on the ground and went over to the other one, pushing her shoulders so that she also fell to the ground. Mr Meyboom then touched her on the bottom as she tried to stand. The other young woman screamed and Mr Meyboom ran off. These events resulted in the two charges of assault.

19. A little later that same evening, in the third incident, two other women were at a playground near the shopping centre at Weston when they saw Mr Meyboom walk past them at least three times, coming close to them each time. The women left the playground and walked towards a neighbouring suburb through the shopping centre. They noticed Mr Meyboom walking near them.

20. The women continued to walk but became scared for their safety when they saw Mr Meyboom walking in some bushes near them and heading towards them. They stopped to let him pass, which he did. A little later they passed him again, and when they turned to see if he was following them, they saw he had pulled his pants and underpants to his ankles with his penis exposed. He yelled at them "Do you want to suck this?" This conduct constituted two of the offences of committing an act of indecency.

21. Finally, the fourth incident, on 5 June 2006, involved a young woman who was riding her bike from the suburb of Holder to Waramanga when she was approached by Mr Meyboom. He said "Do you want to earn one hundred dollars?" and she said "No". He showed her the money and said "All you have to do is let me lick your pussy" and she replied "No". He said "Are you sure? Just for five minutes" and she repeated "No". Mr Meyboom then removed his penis from the top of his pants and showed it to the woman who became really scared and rode away on her bicycle. This was the third offence of committing an act of indecency.

22. On sentence, a Pre-Sentence Report, Criminal History, Assessment for the Adult Sex Offender's Program and two Victim Impact Statements were tendered. A Report by Dr Stephen Allnutt, Forensic Psychiatrist, was tendered for Mr Meyboom.

23. The sentencing remarks did not set out the background and subjective circumstances of Mr Meyboom, but, from the above material, the following may be accepted.

24. Mr Meyboom was aged 30 when the offences were committed. He had lived most of his life in Canberra where he had a difficult childhood due to arguments between his parents before their separation, their substance abuse and their instability, with frequent relocation throughout NSW and the ACT.

25. His mother re-partnered to a man who committed domestic violence on her and which Mr Meyboom witnessed. As a result of abuse from his step-father, Mr Meyboom was placed in the Marymead Child and Family Centre when he was nine. His poor relationship with his step-father soured his relationship with his mother and he said he was "left alone a lot, I started using drugs at a young age, ran away a lot, couldn't be told what to do. Ended up in Quamby at fourteen and in and out ever since."

26. His relationship with his four siblings, all younger, was also poor and they fought and argued. He has little current contact with them. He has, however, a positive relationship with his father, who has been supportive of him. His father has offered him accommodation and employment on his release from custody.

27. He went to a number of schools in the ACT and NSW. He found it difficult to concentrate and did not like school. His attendance and grades were poor and he left at age 15 during Year 10. He has, however, completed a Year 10 certificate while in custody in Grafton Correctional Centre. He has also completed other courses while in custody.

28. Mr Meyboom has had employment of an unskilled kind, including window cleaning, trolley collection, roofing, bricklaying, cleaning, the longest period of employment being for about 18 months. Before being remanded in custody, he had been employed in contract management which he said was a promotion beyond his capabilities and put him under considerable pressure resulting in him resorting to the use of methylamphetamine. His escalating drug use led him to resign the position in May 2006. He has been employed while in custody, since his remand, which began in November 2006 when his parole was revoked, and the Manager of Prisoner Employment Services at the Alexander Maconochie Centre reported that he has performed excellently.

29. Mr Meyboom has a long and entrenched drug history. He first drank alcohol and used cannabis in his early teens due to the use of these drugs by his mother and step-father. On leaving school, the use escalated to daily use.

30. He first used amphetamines and heroin when he was 17, though he gave up heroin until he was serving a term of imprisonment at Lithgow Correctional Centre, when he re-commenced regular heroin use. His use increased after his release but, when imprisoned for an armed robbery offence in 2000, he ceased its use while in custody.

31. He was released on parole in 2005 and abstained from illicit drugs for a time but his partner smoked cannabis and he eventually fell back into use of cannabis and, later, with the pressure of work, into use of the drug "ice". This also led to an increase in alcohol consumption.

32. Again, when returned to custody for the current offences, he generally ceased using illicit drugs, though he conceded he had used some drugs during this time.

33. Mr Meyboom has not had any serious relationships. He learned about sex from his peers, his first sexual experience was at age 14 with an older girl. He has, since then, had a number of partners but denies ever having had intercourse with a female under 16 years of age. He said to Dr Allnutt that when he was in the community his sex drive was relatively high.

34. The Pre-Sentence Report stated that Mr Meyboom had reported to the author that, when incarcerated in November 2006, he was suffering from a drug induced psychosis and was moved to Long Bay Hospital D Ward after a suicide attempt. Mr Meyboom reported that he was prescribed antipsychotic medication two years ago.

35. Dr Allnutt reported that, at the time of his examination, Mr Meyboom was manifesting mild depressive symptoms consistent with an adjustment disorder with a depressed mood. He also noted that Mr Meyboom had experienced some panic attacks. He noted further that, when using drugs, Mr Meyboom experiences persecutory beliefs. Dr Allnutt also suggested there was some possibility of underlying paraphilia which was a cause for concern. He recommended that Mr Meyboom be referred to a psychiatrist and that he would benefit from drug and alcohol rehabilitation and counselling and a sex offender program.

36. Mr Meyboom was assessed as suitable for the ACT Corrective Services Adult Sex Offenders Program. The suitability assessment set the current level of his risk of

re-offending as high, compounded by his general criminality. That mirrored the risk of re-offending assessed in the Pre-Sentence Report.

37. Mr Meyboom has a long and depressing criminal history. It includes 122 offences dealt with in 20 court appearances. They include a range of traffic offences, dishonesty offences including burglaries, damage property offences, escaping lawful custody offences, some offences of assault and some drug offences. The more serious include using a weapon to avoid apprehension, robbery, armed robbery and conspiracy to commit armed robbery. He has spent significant periods in custody since his first custodial sentence. He has not, however, been convicted of any offences similar to the offences the subject of this appeal.

38. At the time of the offences, Mr Meyboom was on parole. The evidence and the submission of the prosecution at sentencing was that he was doing well on parole. He had, as the prosecutor submitted, "shown that he can be a pro-social member of the community".

39. On parole, Mr Meyboom had been offered support through the Canberra Men's Centre and was an active participant in its program for him. He commenced employment and continued to be compliant with supervision. He had, in fact, been promoted. He was a trusted employee and appeared to take his responsibilities in the organisation quite seriously. The promotion, however, did lead to some stress as noted above (at [28]) and this led to a decline in his attitude, especially after the organisation indicated that it may have to conduct criminal checks on its employees, which may have resulted in a risk to his job and embarrassment. He resigned his position, very disappointed, having returned to the use of drugs. It was during this period that the offences occurred.

40. Victim Impact Statements made by the victim of the offences in the first incident and by her mother were tendered. The statement from the victim was read aloud.

41. As expected, the statements make sobering reading, showing serious and long-term effects from the offences. The victim stated that the offences had changed her life, leaving her feeling ashamed, disgusted and violated. She said she felt "foreign in [her] own skin".

42. She noted that the offences affected her relationships with those close to her, particularly as they expected her to get better quickly. She suffers from Post Traumatic Stress Disorder and has become prone to panic attacks, agoraphobia, severe bouts of nausea, tiredness, loss of appetite and vivid flashback nightmares. She experiences "dark periods" and periods of not coping, leading to her being unable to work for several periods.

43. She has, however, some ability to see beyond the court proceedings to a future, though there are clearly some challenges yet to be met.

44. The victim's mother confirmed the descent of her balanced young daughter into "a kind of hell" requiring significant support, practically, emotionally and financially. She corroborated the range of symptoms listed by her daughter and referred to the effect of these problems on her as a mother, requiring her to seek "complex social and psychological assistance to get through this time".

45. Mr Meyboom was sentenced in respect of all the offences on 25 March 2011. The offences and the maximum penalties are set out below:

1 000 penalty units or 10 years imprisonment or both

46. The convictions for these offences constituted a breach of a recognizance to be of good behaviour imposed on 13 September 2005 for an offence of receiving stolen property. Although entered into before the Crimes (Sentencing) Act 2005 (ACT) commenced on 2 June 2006, this recognizance was deemed to be a Good Behaviour Order under s 13 of that Act by virtue of s 337 of the Crimes (Sentence Administration) Act 2005 (ACT) (a transitional provision that has since expired), and a breach was therefore to be dealt with under that latter Act. Accordingly, his Honour re-sentenced Mr Meyboom and imposed a sentence of 12 months imprisonment to commence on 22 May 2014.

47. For the total sentence of seven years and six months, his Honour then set a non-parole period of five years from 22 November 2007.

48. On 12 April 2011, the Director of Public Prosecutions filed a Notice of Appeal against the sentence on the sole ground that "the sentences imposed were manifestly inadequate".

49. Mr S Gill, who appeared for Mr Meyboom, raised a preliminary objection. It is necessary to summarise briefly the contentions of the Director in his written submissions to explain the objection.

50. In those submissions, the Director summarised the complaints about the sentences as follows:

(1) the individual sentences for the sexual assault offences and the act of indecency offences were manifestly inadequate;

(2) there was a lack of any accumulation for the offences committed on 5 April 2006; and

(3) there was a lack of accumulation for the offences committed in respect of the four incidents.

51. Mr Gill submitted that these amounted to complaints of specific error in relation to cumulation and concurrency not encompassed in the sole ground of the appeal. He submitted that the written submissions of the Director were not the place to amend the grounds of appeal, that only were leave given to amend the Notice of Appeal should the Director be permitted to raise the second and third complaints, and that such leave should be refused.

52. Appellate pleading, especially in sentencing appeals, has not been highly regulated. Thus, in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; [5], Gleeson CJ and Hayne J said:

The prosecution's notice of appeal to the Court of Criminal Appeal advanced four grounds:

"1. The learned Judge erred in failing to pay proper regard to the principles of general deterrence and the need for condign punishment to protect children in the community.

The learned Judge erred by making an order which failed to adequately reflect the seriousness of the offences and the Respondent's breach of a position of trust in relation to the complainant.
The learned Judge erred in placing undue emphasis on factors personal to the Respondent.
In the circumstances the sentence of 18 months suspended was so inadequate as to manifest error in the sentencing discretion."

Properly understood, the first three grounds seem to have been little more than particulars of the last. Thus, as was accepted in argument in this Court, the appeal to the Court of Criminal Appeal was based upon an allegation of manifest inadequacy rather than specific error. That is, the error assigned was of the third kind mentioned in House v The King.

53. This Court has followed that approach in R v Eisenach [2011] ACTCA 2, where the Court said (at [38]-[40]):

The Director of Public Prosecutions lodged a notice of appeal on 22 May 2009. It set out seven grounds of appeal as follows:

(a) The sentence imposed is manifestly inadequate;

(b) The sentences imposed on each count were too low;

(c) His Honour failed to have proper regard to the principle of totality;

(d) His Honour erred in providing a discount for the plea of guilty that resulted in a lesser penalty that was unreasonably disproportionate to the nature and circumstances of the offence;

(e) That his Honour erred in failing to give sufficient weight to deterrence and punishment in relation to the Respondent;

(f) That his Honour erred in failing to give sufficient weight to the objective seriousness of the crime;

(g) That his Honour failed to give sufficient weight to the harm done to the victims of the crime;

In the way that the appeal was argued by the Director of Public Prosecutions, it became clear that grounds (b) to (g) are aspects of the sentencing process that the Director wished to touch upon in support of the ground of manifest inadequacy set out in ground (a).

While separate comments were made in the Director's written submissions on the matters referred to in grounds (d) and (g), they were not, in the way the appeal was argued, submitted to have resulted in a specific error, but rather in a manifestly inadequate sentence. The Director's written and oral submissions did not address the other ground separately from ground (a).

54. While the written submissions of the Director expressed the complaints as set out above (at [50]), they did not elaborate on them in a way that was inconsistent with the characterisation of the grounds (b) to (g) in [38] of R v Eisenach. None of the authorities relied on by the Director addressed the issue of totality or cumulation and concurrency directly as a separate issue of principle.

55. It may have been preferable for the Director to have identified the three complaints in the Notice of Appeal as particulars of the ground of appeal. There is no prohibition against that approach. Indeed, that is how the pleading was approached in Attorney-General v Tichy (1982) 30 SASR 84 at 88. It would certainly help to give notice of the aspects in which the Director considered that the manifest inadequacy had arisen.

56. In any event, Mr Gill's written submissions addressed the issue of cumulation and concurrency in detail. He was not taken by surprise and was well prepared to make responsive submissions.

57. For these reasons, the Court did not require amendment to the Notice of Appeal or prevent the Director from addressing those issues.

58. The submissions indicated confusion about the distinction between specific, identifiable errors in a sentencing judge's approach to the sentencing task and errors that are not specifically identifiable but can be inferred from the manifest inadequacy (or manifest excess) of the sentence itself, as described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5.

59. A claim of specific error (error of law, error of fact, failure to take account of relevant considerations or taking account of irrelevant considerations) is a claim that the process adopted by the sentencing judge has gone wrong in an identifiable way - for instance, that the sentencing judge has failed to take account of a plea of guilty, or has sentenced on a view of the facts that was inconsistent with the evidence before him or her. If such a failure of process can be identified, the appeal court may re-exercise the sentencing discretion, and will do so if it considers that a different sentence is warranted. That latter constraint on appellate intervention recognises that an appeal court may identify an error but conclude that, despite that error, there is no reason to interfere in the outcome of the sentencing process. This reflects the fact that a process error, especially in a process with a substantial discretionary component, will not necessarily produce an erroneous outcome.

60. A claim of manifest inadequacy or manifest excess, in contrast, is a claim that the outcome of the sentencing process, of itself, is so obviously wrong as to permit an inference that somehow the process must have gone wrong, despite the fact that no obvious process error can be identified. A conclusion that the outcome of the sentencing is obviously inappropriate permits the drawing of the inference of process error, though not always its identity, but also necessarily implies a conclusion by the appeal court that there must be appellate interference in the sentencing outcome.

61. There also seemed to be confusion about the significance of the two techniques of providing for sentences to be concurrent, and accumulating sentences, and their relationship with the totality principle.

62. Determining a total sentence where multiple sentences must be imposed will require consideration and possible application of the techniques of concurrency and accumulation. It is true that there are certain practices, possibly even deserving of the description "principles", in relation to the choice between concurrency and accumulation depending on the nature and circumstances of the several offences for which sentences are being imposed. See the discussion below at [77]-[80]. For the sake of argument, they are referred to as the concurrency and accumulation principles, although it is clear from the consideration below that they provide general guidance rather than clear principles.

63. However, apart from the initial consideration of whether particular sentences should run concurrently or consecutively, concurrency and accumulation also have an important role as techniques for implementing the totality principle as described in Mill v The Queen (1988) 166 CLR 59 (Mill) at 62-63:

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'.

See also Ruby, Sentencing, 3rd ed. (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

64. That is, the High Court recognised that the task of imposing the appropriate sentence for the totality of the offender's criminal behaviour may require more than just choosing the appropriate individual sentences and then providing for them to run concurrently or consecutively in accordance with the concurrency and accumulation principles. A sentencing judge may need to provide for more or less concurrency or accumulation than the concurrency and accumulation principles would suggest, in order to ensure that the total sentence matches the totality of the criminal behaviour.

65. On that analysis, a failure to provide for concurrency or accumulation in accordance with the concurrency and accumulation principles might reflect not an error in applying those principles but rather the use of those techniques in order to comply with the totality principle, a principle which, in our view, must take priority over the general guidance provided by the concurrency and accumulation principles. It seems to follow from that possibility that an apparent failure to apply the concurrency and accumulation principles should not necessarily be identified as erroneous unless the total sentence concerned seems to be inadequate or excessive.

66. Whether a total sentence for multiple offences is inadequate or excessive must relate to an obvious inconsistency between the length of the total sentence and the totality of the offender's criminal behaviour, assessed by reference to all relevant objective and subjective circumstances. That is the test for manifest inadequacy or excess.

67. If the individual sentences have been appropriately set, then any inadequacy or excess might have resulted from the way in which they were accumulated or made concurrent, though there may have been no identifiable error in the application of the accumulation or concurrency principles. The inadequacy or excess is, then, more likely to have been a result of the application of the principle of totality, which is applied as a "last look" after the setting of the individual sentences and the application of, inter alia, the accumulation and concurrency principles.

68. While the failure to apply the accumulation and concurrency principles correctly will increase or decrease the length of the sentence, it will not necessarily make it manifestly excessive or manifestly inadequate. We leave for another day whether such an error is a specific error which requires appellate intervention.

69. The issue here is that the question whether the sentence is manifestly inadequate is not answered by asking whether the sentences have been appropriately accumulated; as the plurality held in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 (Johnson) at 356; [26], the total sentence is not the only matter to which a sentencing court must have regard. Whether the sentence is manifestly inadequate, however, can only be answered by assessing whether the totality of the sentence adequately reflects the total criminality of the offending, having regard to the objective circumstances of the offences and the subjective circumstances of the offender.

70. Of course, in examining the question whether a total sentence consisting of sentences imposed for multiple offences is inadequate or excessive, it will be necessary to consider what would have been an appropriate sentence for each offence, and whether any of those individual sentences appears to be manifestly inadequate or excessive. However, having considered what individual sentences, or perhaps what sentencing ranges, would have been appropriate, a conclusion about what total sentence was appropriate can finally only be reached, after adverting to concurrency and accumulation principles, by considering the appropriate total sentence for the offender's overall criminality.

71. This is because, as Mill makes clear, concurrency and accumulation principles do not necessarily answer the ultimate question of what is the appropriate total sentence; they also provide a mechanism for achieving that total sentence once the offender's overall criminality has been worked out. If the total sentence is clearly inappropriate, it may in many cases be corrected by a different approach to concurrency and accumulation. However, this may not mean that the total sentence is inappropriate because concurrency and accumulation have been used erroneously; it may mean only that an error in determining a total sentence has been given effect by the use of the techniques for combining sentences, and that once an appropriate total sentence is identified, it will need to be constructed by a different application of those techniques (or possibly, but less desirably, as recognised in Mill though authorised in appropriate cases in Johnson, by the imposition of different individual sentences).

72. Thus, the question before us in this appeal, the ground for which was that Mr Meyboom's sentence was manifestly inadequate, is not whether the sentence was reached by an erroneous process but whether the total sentence is clearly too low, or manifestly inadequate as it is usually described.

73. The Director's main complaint was that the sentence imposed for the offences arising out of the first incident were so inadequate as to require appellate intervention. He described the offending as having the following features:

(a) The offences were among the worst examples of offending of this type;

(b) there was no contrition expressed by Mr Meyboom;

74. As to the offences involving the commission of acts of indecency, the Director submitted that the offending had the following features:

(a) The offences were serious, tending to the mid-range;

75. He further submitted that there should have been "appropriate accumulation" between each of the four incidents. He added, "[i]t follows from the fact that the head sentences on the acts of indecency counts are inadequate that the accumulation is inadequate."

76. The Director relied on a number of decisions of this Court. His written submissions described them as follows, at [71]-[74]:

In Maloney and Sione (Connelly [sic] J 12 March 2004) the victim caught a cab home with Sione who was vaguely known to her and Maloney who was not known to her. The victim rejected Maloney's advances in the cab. She then asked the driver to stop the taxi and all 3 passengers got out. The victim then decided to walk through the grounds of a nearby school to a friend's house. She was then sexually assaulted by both men. It was the early hours of the morning. In relation to each of the offenders there were reasonably early pleas to counts of sexual intercourse without consent with a maximum penalty of 12 years. In relation to Sione who was a young offender with a very early plea of guilty and a limited criminal history he was sentenced to 6 years imprisonment with a non parole period of 3 years. In relation to Maloney (who again was a young offender but whose contribution to the assault was more serious and who had a more serious record) he was sentenced to 7 ½ years head sentence with a non parole period of 4 ½ years. In both cases there were reductions in the head sentence for the comparatively early pleas of guilty.

In BJ (Crispin J 28 August 2007), the offender pleaded not guilty and was found guilty of sexual assault on a 17 year old woman in 2005. The victim was dragged off a bike path in Lyneham while walking home from work at night and sexually assaulted at knife point. BJ was sentenced to 8 years imprisonment on that matter. On a further unrelated matter which was an act of indecency where he had approached a young woman on a path around a lake and ejaculated upon her, he was sentenced to 2 ½ years. The total sentence on both matters was 9 years imprisonment, with a non parole period of 4 ½ years.

In R v PM [2009] ACTSC 24 the offender approached the victim from behind when she was walking to work in the early hours of the morning. He punched her repeatedly in the head threw her to the ground sexually assaulted her and also stole her handbag. The victim sustained significant injuries. The offender pleaded guilty to one count of sexual assault in the first degree, two counts of sexual intercourse without consent and one count of theft. The offender was 17 years old at the time of the offences and pleaded guilty shortly before his trial was due to commence. He was 18 years old at the time of sentence. He had no record. He was sentenced under the Children and Young People Act 2008. He was sentenced to a total of 7 years imprisonment to be released after serving 3 years. His youth and aboriginality playing [sic] a significant part in the amelioration in his sentence.

In R v Chatfield [2012] ACTCA 32 the offender pleaded guilty (though late) to a series of offences arising out of the same incident, being sexual assault in the third degree, two acts of indecency, and an aggravated robbery. The offender attacked a woman walking home early in the morning in an isolated spot, threatening her with a knife, indecently assaulting her and stealing some cash. The offender had previous sexual assaults in his record. On a Crown appeal, the offender was re-sentenced to a total of 7 years 9 months, with a non parole period of 6 years. The head sentence on the sexual assault in the third degree was 6 years 3 months, reduced from 7 years for the plea of guilty. (emphasis in original)

77. Mr Gill submitted that the High Court had, in Johnson (at 356; [26]), set out the relevant principles in respect of cumulation and concurrency and, through these, to totality. He summarised the approach to be taken by a sentencer as:

(1) assess an appropriate sentence for each offence;

(2) consider concurrency or accumulation in accordance with the principles applicable to that issue; and

(3) consider the aggregate result to determine whether it is just and appropriate.

78. Mr Gill submitted that the second step involved an assessment of the appropriate application of the approach that where the crimes comprised "one multi-faceted course of criminal conduct" (Johnson at 348; [5] per Gleeson CJ) the sentences should be concurrent.

79. Thus, as Wells J explained in Attorney-General v Tichy at 93:

Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences to be just and convenient.

80. It should be remarked that, at this stage, the approach set out in Pearce v The Queen (1998) 194 CLR 610 (Pearce) at 623; [40], needs also to be taken into account, namely that:

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

81. Then, Mr Gill submitted, the principle of totality, as outlined in Mill at 63, as approved in Pearce and Johnson, should be applied.

82. Mr Gill submitted that the offences in the first incident were, as his Honour found, a single, unified criminal act upon the victim so that the sentence for each offence should be concurrent, consistent with authority. It might also be said that there were common elements in the two more serious of the three offences then committed.

83. As to the two assaults in the second incident, he submitted that these were in reality part of one incident which it was open to his Honour so to characterise. He noted that these were made wholly concurrent on each other but were actually made wholly cumulative on the earlier sentence.

84. The first two of the three acts of indecency comprised in the third incident were clearly one single criminal act - the exposure of Mr Meyboom's penis to both women at the same time. Mr Gill submitted that it was entirely proper that the sentences be concurrent but noted that, again, they were actually made wholly cumulative on the earlier sentences.

85. The sentence for the final act of indecency, in the fourth incident, also was actually made wholly cumulative on the earlier sentence, as was the re-sentence as a result of the breached Good Behaviour Order.

86. The Director did not really challenge this analysis, though he had submitted that there should be "appropriate accumulation between each of these incidents". Contrary to what might be implied from that submission, there was, in fact, full accumulation of the sentences between the four incidents as, indeed, the prosecutor at sentencing had submitted was required.

87. Mr Gill also commented on the comparable sentences referred to by the Director. He noted significant aggravating features of a number of them compared to the offences committed by Mr Meyboom. For example:

(a) In R v Maloney and Sione (Unreported, Supreme Court of the ACT, Connolly J, 12 March 2004), the sexual intercourse was accompanied by actual bodily harm and the offences were committed in company, which Mr Gill submitted was "part of a pack rape".

(b) In R v BJ (Unreported, Supreme Court of the ACT, Crispin J, 28 August 2007), the offender had previous convictions for similar offences. He had actually chased the victim, grabbed her and, with an exposed erect penis ejaculated on her. On the defended matter, BJ had also forced a woman at knife point to perform fellatio on him.

(c) R v PM [2009] ACTSC 24 involved the infliction of grievous bodily harm with intent to engage in sexual intercourse. For each of two offences of sexual intercourse without consent the offender was sentenced to three years imprisonment.

(d) R v Chatfield involved a threat with a knife and a struggle during which the victim was cut. The offender had three prior convictions for aggravated rape.

88. Mr Gill also referred to the decision of R v WA (Unreported, Supreme Court of the ACT, Penfold J, 17 June 2010) where, after a trial, the accused was found guilty of sexual intercourse without consent, described as "a particularly unpleasant incident", where the victim was the partner of the accused's son. While they were waiting at the accused's flat for a taxi to take her to court, he produced a knife and forced her to have penile vaginal intercourse with him.

89. For that offence, he was sentenced to imprisonment for four years and six months. An additional sentence of 12 months, cumulative as to six months, was imposed for trafficking in cannabis, and the non-parole period was set at three years.

90. Mr Gill also pointed out that, for all the Director's comparable cases, the non-parole periods set in each, other than R v Chatfield, was lower than that set for the sentences imposed on Mr Meyboom.

91. Mention should also be made of R v King [2008] ACTCA 12, a decision to which the learned Sentencing Judge's attention was drawn by the prosecutor. In that case the respondent had sexual intercourse without consent of a woman into whose room he had entered as a trespasser and while she was asleep. A Crown appeal against sentence was upheld and the respondent re-sentenced to four years imprisonment with a non-parole period of two years and six months.

92. In R v TW, Refshauge J set out (at [59]-[61]) some of the principles on which a court proceeds when considering whether a sentence is manifestly excessive or, indeed, inadequate. His Honour said (at [59]-[61]):

Neither party to the appeal really provided an insight into the current sentencing standards by which the court could judge the sentence, what has been called "the collective wisdom of the judges": per Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 at 460.

In R v Campbell [[2010] ACTCA 20], this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]-[35]):

32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):

46. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).

47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

35. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court.

93. Here, of course, the parties did provide some decisions from which some assessment can be made. The cases all referred, however, only to the more serious offences for which Mr Meyboom had been sentenced, apart from some reference in R v Chatfield to the offence of committing an act of indecency.

94. Recently, the NSW Court of Criminal Appeal has had occasion to consider the approach to sentencing statistics and reference to comparable cases. After referring to the statistics of the Judicial Commission and the need for caution in their use, R J Hulme J, with whom Hoeben JA agreed, Fullerton J dissenting, said in Ritter v The Queen [2012] NSWCCA 121 at [24]-[25]:

Similar criticisms may be made when an attempt is made to argue from what happened in one or a limited number of cases, what should happen in an instant case under consideration. Rarely is there an incentive in counsel arguing for a particular result to search for a fair or representative sample and rarely is such a sample produced. It was not in this case. Indeed, when regard is had to the cases referred to in a schedule to these reasons, only two of which were referred to, it is fair to say that the sample to which the court was referred is positively misleading.

The issue where the ground of appeal is that a sentence is manifestly excessive is whether it is unreasonable or plainly unjust - Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] - whether it is outside the appropriate range of sentences open in the exercise of a sentencing discretion as to demonstrate error. It is not enough simply to show that the sentencing judge could have taken a different course or that the appellate judges would have done so - House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.

95. No error can be seen in the approach his Honour took to the issue of cumulation and concurrency as between the four incidents. The sentences for the separate incidents were wholly accumulated as would be expected.

96. The sentences in respect of the third incident should clearly have been directed to be served concurrently. No argument suggested otherwise. See Kennewell v Rand [2006] ACTCA 10 at [49]-[56].

97. The two more serious offences in the first incident, while clearly two separate offences, shared significant common elements and were each part of one violation of the victim's physical integrity. They were, in reality, part of the same criminal enterprise. It was open to the learned Sentencing Judge to direct that the sentences should be served concurrently. Whether considerations of concurrency or of totality led to the theft sentence being made concurrent is not clear, but the approach adopted by his Honour did not produce manifest inadequacy.

98. As to the second incident, reasonable minds may differ as to whether the two assaults were so connected that the sentences for each should be served concurrently.

99. The Director asserted that the offences were serious, as indeed they were. He asserted that the sexual intercourse offences in the first incident were "among the worst examples of offending of this type" but did not analyse or justify that conclusion. This is, therefore, not dissimilar to the position taken by the Director in R v Robertson [2010] ACTCA 19, where assertion was made but no real material provided to support it.

100. In Tu v The Queen [2011] NSWCCA 31; (2011) 205 A Crim R 566 at 575; [55], Hall J said of the question of whether an offence is in the worst category:

The determination of an offence as being within a worst category of offence involves an evaluative judgment having regard to the nature of the offence and, taking all relevant matters into account, its objective criminality. In R v Twala (unreported, Court of Criminal Appeal, NSW, No 60187 of 1993, 4 November 1994), a case involving a charge of murder, Badgery-Parker J stated that, in order to characterise any case as being in the worst case category (and so attracting the maximum prescribed penalty), it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime. Such observations are of particular relevance in cases involving crimes of violence.

101. In the current case, the acts of sexual intercourse committed on the victim in the first incident subjected her to violence and a reprehensible invasion of her bodily integrity when she was put in fear. It was described by the Director as a terrifying ordeal, though these are not terms used by the victim in her Victim Impact Statement.

102. There was, however, an absence of the kinds of significant aggravating features which are, regrettably, encountered in other examples of this offence. For instance:

(a) there was no ejaculation or, indeed, penile penetration which, especially when unprotected, can bring risks of sexually transmitted infections or, in relevant cases, pregnancy;

(b) the assault was not committed in company, which would have increased the humiliation for the victim; and

103. If any of these features had been present, they would have increased the objective seriousness of the offences and rendered them worse versions of the offence. This is not a case of using ingenuity to try to conjure up a worse version of the offence, an approach rejected by the plurality in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478. It is an assessment by reference to relevant and not uncommon aggravating features which, indeed, had been present in some cases in the comparable decisions upon which the Director relied.

104. These offences were mid-range versions of a serious offence.

105. As to the offences of committing an act of indecency, the Director asserted that these were "tending to mid-range". However, they did not involve any indecent touching of the victims, or of Mr Meyboom by the victims, which would have made them more serious. They were not committed in the presence of others, so that the victims might have been humiliated, and they were of quite short duration. Indeed, the acts in the third incident were a little more, but not a lot more, than indecent exposure.

106. They were less than mid-range versions of the offence.

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