R v Pickard [1998] VSCA 50

Court of Appeal (Vic)|1998-09-28|Before: WINNEKE, P., CHARLES and CALLAWAY, JJ.A.

CRIMINAL LAW - Sentencing - Risk of re-offending - Held (by majority), R. v. Storey [1998] 1 V.R. 359 applies to assessment of such risk.

The facts relevant to this application for leave to appeal against sentence have been set out in the judgment of Callaway, J.A. and we need not repeat them. The only ground argued at length by Mr. Tehan, Q.C. on behalf of the applicant was ground 4, and the impugned passage in the reasons for sentence of the learned judge is set out in the judgment of Callaway, J.A.

The learned judge imposed a sentence which was clearly not manifestly excessive, having regard to the circumstances of the offences with which the applicant was charged. There is no substance in grounds 1, 2 and 3 of the application. As to grounds 4 and 5, his Honour was plainly required to take specific deterrence into account, having regard to the nature of the offences, and the contents of the report of Mr. Jeffrey Cummins, a clinical psychologist, to the effect that the applicant's offending behaviour was "situational offending", that the applicant still requires counselling, and that "there is still some degree of denial associated with his situation". The applicant's behaviour was, as he himself admitted in his interview with the police, inexcusable. He was well aware from the outset that what he was doing was wrong. He himself said he was "too weak-willed to ... sort of listen to my own voice".

Almost every day sentencing judges assess and balance risks of re-offending and prospects of reform as part of the intuitive process of sentencing without the need to articulate their findings in terms of standards of proof. But if there is a dispute and the judge resolves it adversely to the interests of the accused by assessing the risk of re-offending to be such as to warrant an aggravation of penalty then the judge must be satisfied of the existence of such an aggravating factor according to the standard of which the majority spoke in R. v. Storey [1998] 1 V.R. 359 at 371. With great respect, we do not agree with Callaway, J.A. that their Honours in the majority in Storey were speaking in their judgment only of what his Honour calls sentencing facts, or that the principles laid down were not intended to apply to such matters as a likelihood of reoffending or prospects of rehabilitation. Both of these matters were in our view clearly adverted to in the majority judgment at 365-366, in a lengthy passage which included reference on three occasions to the sentencing issue, whether the prisoner's condition (or personality) was such that he or she might be a danger to the community.

An assessment by the judge of the risk of a prisoner reoffending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence. This says no more than the majority decided in Storey's case (supra).

In this case, and for good reason, the judge perceived such a risk. He was clearly not in error in doing so.

We agree with Callaway, J.A. that the application should be dismissed.

The applicant, who is now aged 43, pleaded guilty in the County Court to five counts of incest (counts 1, 2, 4, 5 and 6) and two counts of indecent assault (counts 3 and 7). The maximum penalties at the relevant time were 20 years' imprisonment for incest and five years' imprisonment for indecent assault. Counts 3, 4, 6 and 7 were representative counts. The applicant had no previous convictions. After hearing a plea for leniency on his behalf the learned sentencing judge sentenced the applicant on 17th March 1998 to five years' imprisonment on each of counts 1, 4, 5 and 6, four years' imprisonment on count 2 and three years' imprisonment on each of counts 3 and 7. His Honour directed that one year of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of six years' imprisonment. A non-parole period of four years was fixed and a declaration made regarding pre-sentence detention.

The applicant seeks leave to appeal on five grounds, the fourth and fifth of which were added by leave of the Registrar on 24th July 1998. The grounds of appeal are:

"1. The sentence was manifestly excessive in all the circumstances.

2. The sentencing judge failed to place sufficient weight upon the hardship my family is facing by my incarceration.

3. The sentencing judge failed to take into account my prospects of rehabilitation.

4. The learned sentencing judge erred in finding that there was a risk that the applicant would re-offend.

5. The learned sentencing judge erred in placing too much weight upon specific deterrence."

The complainant was born on 9th August 1977. Her parents separated two years later and her mother married the applicant in 1983. The offences occurred between January 1990 and February 1992. The facts giving rise to each count may be summarized as follows:

1. In the course of a family holiday at Apollo Bay the applicant took the complainant fishing late one night. As they were driving home he stopped the car by the side of the road and they climbed into the back seat. The applicant lay on top of the complainant, inserted his penis into her vagina and engaged in sexual intercourse.

2. The applicant and the complainant attended a race meeting at Ballarat on 1st March 1990. On the way home he asked the complainant to fellate him. She complied and he ejaculated into her mouth.

3. This count was representative of offences that occurred during 1990. The complainant recalled frequent occasions when the applicant performed cunnilingus on her in the master bedroom of the family home.

4. This count was representative of offences that occurred during 1991. The complainant recalled many occasions on which the applicant engaged in sexual intercourse with her in the family home.

5. One day in mid-1991 the applicant was at a shop owned by the applicant. He closed up at the end of the day's trading and laid a rug on the floor at the back of the shop. He then lay on the rug, asked the complainant to sit on top of him, inserted his penis into her vagina and engaged in sexual intercourse.

6. This count was representative of offences that occurred between late 1991 and early 1992, when the complainant was 14 years old. She recalled having sexual intercourse with the applicant on many occasions at the family home.

7. The last count was representative of offences that occurred in 1991 when, the complainant said, the applicant frequently performed cunnilingus on her.

In a record of interview the applicant described himself as having had a developing relationship with the complainant. His marriage was failing and, he said, he fell out of love with her mother and in love with her. He realized it was wrong, although he did not think of it at the time as a breach of trust. He said that he was too weak-willed to desist.

Mr. Tehan, Q.C., who appeared with Mr. Wraight for the applicant, argued ground 4 first. At the hearing of the plea counsel for the applicant had submitted that the risk of his re-offending was virtually non-existent. That precipitated some discussion between Bar and Bench as to the applicable standard of proof. The learned judge said that he had to be satisfied beyond reasonable doubt of findings adverse to the applicant and that, applying that standard, he would not find that the applicant was going to re-offend. It was therefore up to counsel, his Honour continued, to persuade him on the balance of probabilities that his client was not going to re-offend. It is against that background that the following passage in his Honour's sentencing remarks is to be understood:

"It is said that you are unlikely to offend again and I have heard psychiatric evidence as to that. Nevertheless, I have reservations. I am not satisfied that the probability is that you will not offend again. Equally, I am far from satisfied that you will. I do, in short, perceive a risk that you may offend again. Specific deterrence - that is, the need to deter you from so re-offending - is therefore a relevant sentencing factor." (Emphasis added.)

The discussion on the plea and that passage misapprehend what was said by Winneke, P., Brooking and Hayne, JJ.A. and Southwell, A.J.A. in R. v. Storey [1998] 1 V.R. 359, especially at p.371. Their Honours were speaking of sentencing facts. The principles that they laid down were not intended to apply to such matters as a likelihood of re-offending or prospects of rehabilitation. I dealt with that topic in my judgment (in which I concurred in the orders made, for reasons that were different from those of the other members of the Court in only one significant respect) at p.376. I referred to what the High Court had said about future predictions in the context of damages and related those observations to sentencing. In fn. 65 I said, "For example, in assessing the prisoner's prospects of rehabilitation, judges properly take into account the likelihood of rehabilitation. They do not find as a fact that the prisoner will, or will not, offend again." See also p.380 fn.86.

That view depends on no refined analysis. It is a matter of common sense and ordinary sentencing practice. It is an unusual case where a judge can make a finding that a prisoner will, or will not, offend again. More often it is a matter of assessing the degree of risk. The prisoner may be a very low risk, low risk, medium risk or high risk offender. (Those expressions are not terms of art. I use them only as examples.) The judge simply makes the best assessment that he or she can and factors it into the instinctive synthesis. The same is true of prospects of rehabilitation, which may be a broader question than the risk of re-offending. Compare s.5(1)(b) and (c) of the Sentencing Act 1991 . Although the matter does not have to be decided, I am inclined to think that it is true of any prediction involved in the sentencing process, except where the matter is dealt with by specific legislation. See, for example, s.18B of the Sentencing Act. The prediction must not, of course, be a guess. It must be based on the evidence and other material before the court, assessed in the light of the judge's experience and knowledge of human nature.

As Mason, C.J., Dawson, Toohey and Gaudron, JJ. pointed out in Sellars v. Adelaide Petroleum NL [1994] HCA 4; (1994) 179 C.L.R. 332 at p.350, there is a sense in which no standard of proof applies to a prediction. A court may think that an event will probably not occur but nevertheless take the risk of its occurrence into account. The court must still be satisfied that its assessment of the risk is more likely than not to be correct, for otherwise it would be irrational to act on the assessment. It might be thought that a sentencing judge must be satisfied beyond reasonable doubt where an assessment of risk is adverse to the offender, but that is not my understanding of the law. I do not overlook what was said in R. v. Harrison (1997) 93 A.Crim.R. 314 at pp.319-320. That case illustrates the unfortunate consequences of at least one of the opposing views, for the issue of dangerousness was left in limbo (p.320).

I am reinforced in my view by a consideration of the practical difficulties to which different standards of proof would give rise if they were applied to predictions. A judge might not be satisfied on the balance of probabilities that the prisoner is a low risk offender, but equally he or she might not be satisfied beyond reasonable doubt that the prisoner is a high risk offender. (I assume that the former conclusion is to be regarded as favourable, even though it means that specific deterrence has some relevance. It would ordinarily go hand-in-hand with a conclusion that the prisoner had good, although not very good or excellent, prospects of rehabilitation.) The judge cannot compromise by saying that the prisoner is a medium risk offender. Quite apart from the artificiality of the reasoning process, that is surely another adverse conclusion. It would also have to be established beyond reasonable doubt, especially if the suggestion in fn.60 of my judgment in Storey's Case is correct. The judge cannot simply ignore the risk of re-offending or the prospects of rehabilitation. That would be an abdication of the sentencing function that would be in the interests neither of the prisoner nor of the public.

I acknowledge that the common-sense view of the matter expressed in para. 13 above means that it is theoretically possible for a strongly adverse conclusion to be drawn of which the sentencing judge is not satisfied beyond reasonable doubt. Making the best assessment that he or she can, the sentencing judge may conclude that the prisoner is a high risk offender and factor that assessment into the instinctive synthesis. Three points must, however, be borne in mind. First, propositions relating to the proof or establishment of facts have no necessary application to the making of predictions. Secondly, it would be a corollary of proof beyond reasonable doubt that, although the judge believed the prisoner to be a high risk offender, he or she could not act on that assessment if there were a reasonable possibility that it was wrong. That would not be in the public interest, nor is it required by the golden thread of Woolmington's Case [Woolmington v. Director of Public Prosecutions [1935] UKHL 1; [1935] A.C. 462 at p.481]. Compare s.5(1)(e) of the Sentencing Act and, in the case of serious offenders, s.6D(a). Thirdly, prediction is notoriously difficult, especially if the judge endeavours to look far into the future. See, for example, B_ugmy v. R._ [1990] HCA 18; (1990) 169 C.L.R. 525 at p.537. A judge will therefore be cautious in making any prediction, and in deciding the appropriate weight to give it, especially if it is a prediction that would cause substantial injustice if it were wrong. Compare Veen v. R. [No. 1] [1979] HCA 7; (1979) 143 C.L.R. 458, especially at pp. 464 and 472.

In the present case the learned judge reached a conclusion that was well open to him when he said, "I ... perceive a risk that you may offend again". The difficulty is that his Honour reached that conclusion via an artificial process of reasoning. He believed that he was constrained to adopt that process of reasoning by the majority judgment in Storey's Case but, as I have explained, that was not so. There was some debate before us as to whether the sentencing discretion was thereby re-opened. I shall assume, without deciding, that the discretion is re-opened and that we must consider the matter for ourselves.

Mr. Tehan emphasized that the applicant had no prior or subsequent convictions and that, over a period of nearly six years since the last offence was committed, he had formed a new and stable relationship with a woman by whom he had fathered two children who were financially dependent on him. He had set about establishing a business, which had involved a good deal of time and effort. In the record of interview he had recognized his conduct as "disgraceful" and, had it not been for his admissions to the police, there would have been no certainty of conviction. I should explain that, although the police were not involved until 1997, the offences had first come to light in 1992. At that stage the applicant had denied any impropriety.

The applicant's de facto partner has two children from a previous marriage, one of them a little girl who was five at the time of the plea, as well as the applicant's two children. She gave evidence at the plea that the two younger children doted on their father and that the two older children had a good relationship with him and spent a lot of time in his company. Her father, who also gave evidence, said that the applicant had been very caring, had looked after the children and helped his daughter a great deal over the period of time that they had been together. A psychologist testified that, in his opinion, the applicant's offending had been situationally motivated and the risk of his re-offending was very small, indeed minimal, even if he perceived that another child of a similar age to the complainant at the time of the offences was encouraging sexual advances on his part. Counsel submitted that, if it fell to us to reconsider the sentencing discretion, we should accept that assessment. Reference was made to R. v. Flynn (1993) 68 A.Crim.R. 294 at p.296. I do not accept that submission. The material before us, including the matters to which I have referred earlier in this judgment, leads me to believe that the risk is more than minimal. In my opinion the applicant is a low, as opposed to very low, risk offender. The learned judge was correct in refusing to exclude the real possibility that he might again be too weak-willed to resist a temptation to exploit a child in his care.

It is unnecessary to refer to the occasions on which it has been said by this Court and other courts that incest is an abhorrent crime, destructive of family relationships and frequently involving a gross breach of trust. It is not only family relationships that suffer. The complainant in the present case has experienced protracted and intense symptoms of a post-traumatic stress disorder as a consequence of the offences. The impact of the applicant's incarceration on his de facto partner and his new family is greatly to be regretted, but it is not exceptional: cf. R. v. Carmody (unreported, Court of Appeal, 18th March 1998) at pp.6-7 and 10 and R. v. Panuccio (unreported, Court of Appeal , 4th May 1998) at pp.6-8

Although I would accept that the applicant's prospects of rehabilitation are good, specific deterrence is not irrelevant to the sentencing task at hand. Compare para. 15 above_._ More significant, however, are the offences themselves, the age of the complainant, the period of time over which they were committed, the representative character of four of the counts, the importance of general deterrence and the fact that the applicant is to be sentenced as a serious sexual offender on a majority of the counts. Balancing all the relevant factors I consider that, within the meaning of s.568(4) of the Crimes Act 1958, no different sentence should be passed. I include the non-parole period, which gives adequate recognition to the applicant's prospects of reformation without undermining the other objectives of the sentencing disposition.

For these reasons I would dismiss the application.

I wrote the above before reading the reasons for judgment of Winneke, P. and Charles, J.A. I have left my judgment unchanged, but paragraph 12 must now be read in the light of their Honours' conclusion that the majority in Storey's Case did intend sentencing facts to include a judge's assessment of the likelihood of re-offending and prospects of rehabilitation and the possibility that there are other significant differences between the two judgments in that case.

The common law, as settled in Victoria by Storey's Case and the present decision, includes the following features:

1. An offender, once he or she is convicted, does not receive the benefit of a reasonable doubt about what happened unless it was a circumstance of aggravation. See, for example, R. v. Arts and Briggs [1998] 2 V.R. 261 at pp.262-263 and 269 and compare R. v. Wayne Smith (unreported, Court of Criminal Appeal, 18th April 1986), especially but not only in the judgment of Kaye and O'Bryan, JJ. at p.12. The law is understood differently in England and some other Australian States.

2. If I understand the judgment of Winneke, P. and Charles, J.A. correctly, a judge who is satisfied on the evidence and other material properly available that a person being sentenced is a danger to the community cannot take that into account by aggravating the penalty if there is a reasonable possibility that the person is not such a danger, for that is the corollary of requiring proof beyond reasonable doubt. That is so notwithstanding ss.5(1)(e) and 6D(a) of the Sentencing Act and the consideration that, except where s.6D(b) applies, the person being sentenced is protected by the principle of proportionality.

There is no tension between my own views as expressed in Storey's Case and in the present application. I would give the prisoner the benefit of the doubt as to what happened, such as provocation or an epileptic fit, for just as the punishment to be exacted should not be affected by the boundaries of particular offences, so too it should not be affected by the, often accidental, way in which an offence is defined. Compare Pearce v. R. [1998] HCA 57 at 40 and Storey's Case at p.379 lines 1-3. But I consider that assessments about the future are quite different. In relation to them the community interest is paramount, whether it be in the prospect of the offender's reformation or in its own protection.

I had previously thought that the majority judgment in Storey's Case was silent on the rule to be applied to facts that are aggravating or mitigating depending on how you interpret the evidence (fn.60) and silent on the difference between a circumstance of aggravation and the absence of a mitigating factor (fn.70). Re-reading the majority judgment, especially pp.367 lines 25-31 and 371 lines 6-29, I am no longer confident that that is so but, as Sir Owen Dixon said in one of the Transport Cases, a judge who disagrees with a doctrine is the wrong person to explain it.

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