R v R J E [1999] VSCA 79

Court of Appeal (Vic)|1999-05-20|Before: BROOKING, BATT and CHERNOV, JJ.A.

The applicant pleaded guilty to all five counts and admitted 47 prior convictions from 15 appearances, mostly for offences of dishonesty, although there was a conviction for common assault in 1992, which led to a suspended sentence of nine months' imprisonment, subsequently activated.

After hearing a plea the judge obtained a pre-sentence report from Dr Walton, the psychiatrist, who reported that the applicant was of normal intelligence and had no discernible mental condition, and that he denied raping his de facto wife, but admitted a "small affair" with his daughter. It was accepted on the plea that sentences of imprisonment on counts 1 and 2 would result in the applicant's becoming a serious sexual offender for the purposes of the two counts of rape.

The applicant has appeared in person in support of his contention that the sentence was manifestly excessive. He has told us that he had been drinking heavily and was heavily dependent on drugs at the time of all these offences and that this matter had not been brought to the judge's attention. Nothing was sought to be made of drink or drugs on the hearing of the plea and the pre-sentence report from Dr Walton, which her Honour took the precaution of obtaining, states that, according to what he was told by the applicant, his ingestion of alcohol and drugs was not of such an order that it could be regarded as having contributed to these offences. In these circumstances, nothing can be made of this point now.

Having considered the circumstances of this case and her Honour's reasons for sentence, I find myself unable to say that there is manifest excess in any of the individual sentences, or in the total effective sentence, or in the non-parole period, but one other matter must be mentioned. Mr Elston, to whom the Court is indebted, raised it in his submission.

In the course of the plea there was discussion on the significance of the date - 1 September 1997 - on which the Sentencing and Other Acts (Amendment) Act 1997 commenced. The offences charged in counts 1 to 4 were all committed before the date on which that Act commenced in so far as it prescribed new maximum penalties. The rape of the girl was committed after it. The 1997 Act increased the relevant maximum penalty for incest from 20 to 25 years and increased the maximum penalty for intentionally causing injury from seven and a half to ten years.

The reasons for sentence show that her Honour mistakenly took the maximum penalty for incest to be 25 years, five years more than it was, and the maximum penalty for intentionally causing injury to be only five years. The latter mistake was in favour of the applicant and, in any event, the sentence passed was only one of six months. The former mistake was, in the mathematical sense, with regard to the maximum, against the applicant. The actual sentences on the relevant counts were of five years and four years.

The maximum penalty for an offence is ordinarily an important consideration, but it cannot, I think, be the law that a mistake made by a sentencing judge about the maximum will necessarily and in all circumstances vitiate the exercise of the sentencing discretion in relation to that offence where a sentence of imprisonment is passed for it. It may be possible to characterise the error as immaterial. This was the view of the Court of Criminal Appeal in R v Hung Quoc Chau (unreported, 31 July 1991), where the judge passed a sentence of four years' imprisonment for aggravated burglary in the mistaken belief that the maximum penalty was 25 years when in fact it was 20 years and the Court (Crockett, McGarvie and Phillips, JJ.) declined to regard what had been said in the Western Australian case of R v. Stol (1989) 44 A.Crim.R. 137 by Malcolm C.J. at 138 as a determination that any error concerning the maximum must always vitiate the sentence or, at all events, a sentence of imprisonment. In Stol the sentence passed was of six years in the belief that the maximum was not ten years but 25 years. The error concerning the maximum was very great in that case. It should also be noted that Wallace J., at 141, thought that the judge had not been led into error by the inaccurate information given to him about the maximum penalty and that Brinsden J. said nothing about the point. In R v. Maher (Court of Appeal, unreported, 21 May 1998) a sentence of 18 months was imposed where the maximum was seven and a half years and the judge thought it was ten years. The Crown there conceded that this mistaken belief reopened the discretion and Callaway, J.A., speaking, in effect, for the Court, described the concession as correct and referred to R v. Morton [1986] VicRp 82; [1986] V.R. 863 at 865 and R v. Ma (Court of Appeal, unreported, 18 March 1998) at pp.5-6 and 11. The judgment of Callaway, J.A. in Maher contains nothing to suggest that his Honour considered that if a judge misapprehends the maximum, a sentence of imprisonment will always be quashed. In Morton a five year sentence was imposed in the belief that ten years, not five, was the applicable maximum. That was a striking mistake: the judge thought that the longest sentence available was double what was in law available and unintentionally passed the maximum sentence. The Court of Criminal Appeal described the slip as sufficient to show that the discretion had miscarried. In Ma the mistake was (as in Morton) a gross one, the maximum being taken to be 12 and a half years instead of seven and a half years. The sentence passed was of three years. Vitiating error was, no doubt rightly, conceded by the Crown. The judgment of Winneke, P. at pp.5-6 does not suggest that any error concerning the maximum will always be fatal, and it is noteworthy that Callaway, J.A. at p.11 observed:

"His Honour was invited by counsel who appeared below, but not before us, to steer by the wrong maximum. It is inconceivable that he would have imposed a sentence of three years' imprisonment on count 1 in the circumstances that the learned President has described if he had been correctly informed that the maximum custodial penalty was seven and a half years' imprisonment."

This is one of the passages to which the Court drew attention in Maher and it seems to me to accept that whether the error is material and so fatal to the exercise of discretion depends on the circumstances.

I am disposed to think that in all the circumstances of the present case the mistake made with regard to the maximum penalty for incest was not material and so did not vitiate the exercise of discretion, but I find it unnecessary to decide this question, for, even if I considered that the mistake had influenced or might have influenced the sentence actually passed, so that we were called upon to re-exercise the sentencing discretion, I would not be of opinion that a different sentence should have been passed on either of the counts of incest.

Accordingly, I think that this application must fail.

The order of the Court is that the application is dismissed.

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