Solicitors:
Office of Director of Public Prosecutions
Benjamin & Leonardo Criminal Defence Lawyers
File Number(s): 2013/241860
[2]
REMARKS ON SENTENCE
On 4 November 2016 Robert John Hall was found guilty by a jury of four offences relating to the sexual assault of a young woman on 25 March 1990. The victim was at the time 23 years of age and working as a sex worker in the Wollongong area, employed by an escort agency. The offender was then aged 32.
The four offences comprise two counts of threaten to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse [contrary to s 61C(1)(b) of the Crimes Act 1900] and two counts of sexual intercourse without consent [contrary to s 61D(1) of the Crimes Act]. Both offences are patently serious, as indicated by the maximum penalty then prescribed for them by Parliament, being respectively 12 years imprisonment and 8 years imprisonment.
The offender is currently on bail and has served no time in custody in relation to these offences.
The facts of the offending are set out in a document headed "Statement of Facts" tendered with the Crown materials. One version of the tendered statement reflected on its face a dispute between the parties concerning some of the factual details derived from the evidence of the victim. In essence, the dispute concerned actions and words of the offender attributed to him by the victim. Crudely summarised, the submissions on behalf of the offender were to the effect that having regard to the passage of time since the offending, and the different accounts concerning the disputed matters given at different times by the victim, the Court could not be satisfied beyond reasonable doubt that the offender said or did the specific things that are disputed and attributed to him in the version of the facts contended for by the Crown.
With one qualification, I think the careful submissions made on behalf of the offender by Mr Hammond are reasonably based. I accept most, but not all, of them. However, ultimately, I do not consider that my general accedence to those submissions has a marked bearing on an assessment of the gravity of the offending. For all the reasons put on behalf of Mr Hall, I am not confident I can find beyond reasonable doubt that the disputed statements attributed to him were made precisely in the terms contended for by the Crown. Likewise, I think there is a credible basis for doubt concerning specific aspects of some of the disputed actions. Nonetheless, as will reflect in the facts which I recount shortly, I am satisfied beyond reasonable doubt from the victim's evidence that when he spoke to her Mr Hall generally spoke to the victim in a threatening, aggressive and demeaning manner, and that when he physically handled her he did so in a rough manner and that he acted otherwise in a way that gave rise in the victim to a real and reasonably based fear for her life. Taking one aspect of the disputed facts to exemplify the point I have made, I do not think the objective gravity of the offending is more than marginally effected by my inability to find beyond reasonable doubt that the offender ripped off the victim's dress. One way or another she became undressed. However that physically was achieved, it happened against her will and in the face of threats that gave rise to the reasonable fear that if she did not do whatever the offender demanded she was at risk of serious injury, or worse.
The qualification I referred to in respect of the offender's submissions related to an attack on the victim's credit by reference to the jury's finding of not guilty to count 5. That verdict did not reflect a rejection of the victim's evidence in my view. The Crown case on that count was entirely circumstantial. The victim's evidence was accepted for all of the counts for which she gave direct evidence. I too regard her as a witness of truth. I do think, understandably with the passage of time, that some of the inconsistencies in her accounts of some details reflect the frailty of memory over time and the human capacity to fill gaps in memory with some embellishment or reconstruction. I am satisfied beyond reasonable doubt, however, that the account given by the victim, though perhaps not accurate as to some specific details, fairly reflected the tone and tenor of the events as she experienced them, both in terms of the general manner in which the offender spoke to her and handled her physically and in terms of the fear his conduct reasonably instilled in her.
The statement of facts, adjusted to reflect the findings I make in resolution of the factual dispute between the parties, records the following matters.
On 25 March 1990, the victim, then aged 23, was employed as an escort by an agency in Wollongong. It was her first day of employment at this agency.
At around 10pm the offender contacted the agency requesting the service of an escort to attend his location at a motel in Kiama. The victim agreed to attend and was advised by the agency's receptionist that she was to collect $200 from the offender and that a taxi was coming to pick her up and take her to the location.
The taxi arrived and took the victim to the motel. Once at the motel, the taxi parked outside room number 2, which was the room designated for her appointment. The victim asked the taxi driver to wait outside to ensure there were no problems.
The victim knocked on the door of the room and the offender answered the door and let her inside. The victim had never seen the offender before. She described the offender as being of a stocky build with a beer stomach, dark brown hair with some greyness through it. The offender wore pants and a T-shirt and had tattoos around the elbow area up to his forearms. He was around 5'7 or 5'8 in height and aged, according to her description, no more than 30 years of age.
The victim advised the offender that it would cost him $200. The offender gave the victim $200 which she put into the side compartment of her makeup bag.
The victim went back outside and informed the taxi driver that she was okay and that she would not be any longer than one hour. The victim went back into the motel room where she was alone with the offender. The victim then rang the escort agency from the motel room telephone to advise that she had arrived safely.
The offender then asked the victim if she would like a coffee or something similar. She replied that she wouldn't mind a glass of water. Eventually the victim got herself a glass of water. The victim was standing up watching the TV when the offender came up from behind her and put his left arm over her shoulder and held a knife, similar to a large flick knife, in his right hand. The offender threatened the victim with the knife by holding it up towards her neck. He pinned the victim up against himself. The offender told the victim to do exactly what he told her to do otherwise she would get hurt. The victim feared that the offender might cut her throat with the knife.
The offender forced the victim alongside the bed and told her to kneel down. While he did this he forced her to her knees by pushing down on her shoulders. The knife remained at her neck while she went to her knees. Once on her knees the victim was facing the wall and the offender was behind her. The victim felt the knife leave her neck and could hear some paper rattling. She turned around and the offender then came back at her with the knife at her neck and said that if she didn't continue to face the wall, he would stick the knife in her. The victim turned around to face the wall and said, 'Please don't hurt me. Please don't hurt me.' The offender said, 'If you do that again I'll fucking kill you.'
The offender then placed something like sticky plasters over the victim's eyes. The victim was then only able to see slightly out of the corner of her right eye. The offender told the victim, 'Now get up and take your fucking clothes off'. The victim stood up and got undressed. The offender shoved her back onto her knees.
The offender then pulled the victim by her ear which caused her pain as she was wearing earrings. He then pushed her head onto his penis and demanded she suck his penis. The offender was sitting on the bed. As the victim wouldn't move, he put his hands on the back of her head and pushed her up and down. He said, 'I paid the money now you just lay back there and I can do whatever I fucking want.' The offender had his hands on the back of the victim's head and was pushing it up and down. While the offender's erect penis was in the victim's mouth she started to dry retch and felt like she wanted to throw up. The offender continued to push her head up and down on his penis for about 10 to 15 minutes.
Eventually the offender stopped and then dragged the victim up by the ear onto the bed and laid her in a star position facing down. The offender told the victim to get onto the bed and up onto her knees. He said to do exactly as he said or she would pay the consequences and that he would use the knife.
He then put his penis all the way into her vagina. The victim was scared for her life. The offender thrust back and forwards for about 10-15 minutes. Prior to the offender withdrawing, the victim felt a weird feeling inside of her. She believes that the offender ejaculated inside her. The offender was not wearing a condom.
The offender told the victim to have a shower. He threw the victim some tissues and told her to wipe herself before she went and washed. The victim wiped herself with the tissues. The victim then tried to find the shower as the plasters remained over her eyes. The offender forced the victim into the direction of the shower. The victim showered and then asked the offender if she could take the sticky plaster off her eyes and the offender told her to leave them on. After the victim got out of the shower he told her to leave the taps on as he also wanted to shower. The victim complied and returned to the bedroom area. The victim called out as she was unsure if the offender remained in the room.
The offender left the motel room leaving the front door partially open. The victim took the plasters off her eyes and realised that the offender had left. She cried and slowly looked out of the door to see if anyone was around. She could see the taxi waiting for her. The victim wrapped a towel around her and went outside. The victim told the taxi driver what had occurred. She then spoke to the receptionist at the motel and the police were called.
Police took the victim to Kiama Police Station and then to Wollongong Hospital for examination. The victim was examined by a doctor. Examination revealed that semen was found on the high vaginal, low vaginal and vulval swabs and smears.
In 1990 the investigation was closed and no suspect was identified. In 2007, the offender was charged with an offence in Queensland (failing to pay for petrol) in which a DNA sample was voluntarily obtained. This sample was placed on the National DNA database. In 2010, New South Wales police were notified that a DNA profile matching that of the offender and linking him to the sexual assaults of the victim had been obtained.
On 9 August 2013 a warrant was granted for the arrest of the offender in Queensland. The offender was arrested in Queensland on 24 September 2013. On 27 September 2013 the offender appeared before Wollongong Local Court. A reference sample was also taken from the offender and again compared to the samples.
Analysis revealed that the DNA profiles recovered from the victim's high vaginal, low vaginal and vulval swabs had the same profile as the offender. That profile is expected to occur in fewer than one in one hundred billion individuals in the Australian population.
This sentencing exercise requires a complex synthesis of a number of competing factors.
First, as the facts I have outlined reveal, it involves objectively quite terrible criminal conduct, which demands a response appropriately reflective of the community's abhorrence for and condemnation of such conduct. Subject to also balancing the considerations informed by the other competing factors, that response must address the sentencing objects of general deterrence, denunciation and punishment. Recognition must also be given to the harm caused to the victim. I understood it to be common ground that the offending is sufficiently serious that no penalty other than imprisonment is appropriate. That is certainly my conclusion. There was an issue raised as to how that term of imprisonment must be served.
Second, the conduct occurred over a quarter of a century ago, a fact which itself gives rise to at least the next two levels of complexity.
Third, consideration must be given to identifying, to the extent one possibly can, an appropriate range of the penalties that might have applied for like conduct at the time of the offending.
Fourth, a determination must be made as to the extent to which it is appropriate to give favourable account for changes in the offender's circumstances in the meantime. He was aged in his early thirties at the time of the offending. He had at the time a number of criminal convictions for offences all committed when he was a teenager or a very young man. None involved conduct of the character of the present offending. In the time since this offending he has married, established a stable and, with one minor qualification, law abiding life, which includes a degree of public service as a volunteer fire-fighter and an exemplary devotion to his family. The only blemish in the intervening period is a conviction for a minor offence, failing to pay for petrol, in Queensland in 2007. As I have recounted, a DNA sample taken in the context of that offending led to detection of the present offending. In addition to the delay occasioned by the time the offence went undetected, there has been some delay in the finalisation of these matters since the offender was charged in September 2013. It is submitted on behalf of the offender he should have some favourable account by reason of that delay.
Finally, whether or not an appropriate historical range can be identified, it is necessary to determine the penalty appropriate in all the circumstances of the case, including determining the minimum time that the offender must serve if, as I have concluded he must be, the offender is sentenced to a period of full-time custody. An argument was put on Mr Hall's behalf that in all the circumstances of the case any period of imprisonment could be served in the community by the imposition of a suspended sentence. I indicated at the time of the sentencing hearing my firm conclusion that, having regard to the objective gravity of the offending, and notwithstanding the historical nature of the offending and a reasonably strong subjective case developed in the intervening period, any sentence must necessarily exceed the upper limit permissible for imposition of a suspended sentence. Apart from stating that conclusion, I otherwise reserved my decision in relation to sentence. At the time I gave Mr Hall an option to have his bail revoked then and to commence serving a sentence, or to have his bail continue. The choice was only offered because I was aware from the evidence before me both that Mr Hall had only very recently had a hip replacement operation (indeed that was one of several matters that delayed the sentence hearing in the time since verdict) and that he had a consultation with the surgeon appointed in several weeks time in circumstances where he had been suffering some post-operative pain. Not unreasonably in the circumstances, Mr Hall opted for bail to continue until today.
To a large degree, the facts I have recounted speak for themselves. However, there are a number of specific features which sensibly inform an assessment of the objective gravity of this offending.
Firstly, it was of relatively short duration from beginning to end. The whole incident seems likely to have been no longer than 20 or 30 minutes or so. The victim described the incident as lasting some 15 or 20 minutes in total.
Secondly, I am satisfied that the victim was a vulnerable person by reason of her occupation and the location. She was a sex worker who was retained to come into the residence for the time being of the offender to perform services that by their nature give rise to a degree of defencelessness and vulnerability. She relevantly became a soft target for a man to exert physical superiority over her. That is precisely what occurred. By analogy, it is difficult to see how a sex worker in that position is in any different position, in terms of an assessment of their vulnerability, to say a taxi driver performing their occupation and stuck inside a car with an offender.
Third, there is some limited physical violence in the form of a degree of rough handling, but I accept it is limited and no substantial or lasting physical hurt or wounding inflicted. That fact operates to take this offending away from the most serious end of the spectrum of conduct that might be caught by the offending.
Fourth, there is a degree of psychological hurt, which has plainly endured, because of the nature and circumstances of the offending, including no doubt the implicit threat of violence in all the circumstances. The offender intentionally created fear in the victim in order to perpetrate the offences and obtain compliance. However, that is a circumstance captured by the elements of counts 1 and 3, and accordingly does not operate to aggravate the offending. The victim impact statement gives voice to precisely the sort of harm or suffering that one might reasonably expect to follow from offending of this character. It is perhaps in increasing recognition of that sort of harm that the penalties for offences like these have increased over time since the commission of these offences. In circumstances where this type of harm, including enduring harm, might reasonably be expected to flow, it would be wrong to include it as an aggravating factor.
Fifth, notwithstanding that I am unable to make conclusive findings as to the precise words used, I am satisfied that the victim was handled and spoken to in a manner intended to cause, and which did in fact cause, fear, humiliation and degradation. This is exemplified in particular, among other matters, by the placing of sticking plaster over the victim's eyes.
I do not consider the first and third counts are aggravated by the presence of the knife. I do not accept the Crown submission that because the relevant offence is capable of being committed by threats making reference to a knife, without in fact producing one, that it follows the presence of the knife is then capable of being an aggravating feature. What occurred here was threatening by means of offensive weapon, the knife. That is an aspect of the charged offence and not a feature further aggravating the offending. Strictly, the presence of the knife might be said to aggravate the offending in respect of the other two counts, but it rather highlights the significant correspondence between the two counts in terms of the criminality that they embrace.
There does appear to be a limited degree of planning attaching to the offending, however the evidence doesn't extend so far as to admit of a conclusion free of doubt that the offending conduct was contemplated at the time the services of the victim were booked. I think it likely that it was, however I cannot be satisfied beyond reasonable doubt that the conduct wasn't simply opportunistic or spontaneous.
In my assessment, though it is a long way from the most serious conduct that might be caught by these offences, this is objectively very serious criminal conduct.
It seems to me that for present purposes there are only two significant practical consequences of the delay in the detection of these crimes.
First, is the extent to which it has provided in the meantime an opportunity for the offender to establish an essentially pro-social life, and so demonstrate rehabilitation since the commission of these offences
Second, is the need to sentence the offender in accordance with any identified trends and the practice at the relevant time.
I will deal with each of these matters separately, shortly.
The period of time between when the offender was finally charged with these matters and their ultimate disposition has been lengthier than is ideal. However, delays of that magnitude are not extraordinary and are a regrettable feature of the current environment, in which the resources devoted to the various integral aspects of the criminal work of this Court are patently inadequate for the volume of work.
There has plainly been stress and financial difficulty for the offender and his family in the intervening period. That is an inevitable incident of the offender having to answer these charges at a time so far removed from the commission of the offences. He should have some limited favourable account for the stress and anxiety suffered in the meantime, but in all the circumstances, I think it should only be limited. He chose to defend the proceedings, as is his right, and there was nothing in relation to their progress which is out of the ordinary course.
The offender has for the time being been on bail and has served no time in custody in respect of these offences. He should also have some limited account for the restriction on his liberty occasioned by his bail status over a period of years, but the conditions were not onerous and again it calls for only limited consideration.
In the course of argument, I was taken to a number of cases and publications addressing trends in sentencing since 1990. The material before me is inadequate for the purposes of determining at this remove a range applicable at the relevant time for offending of this character. It is clear from that material, however, that there has been a clearly discernible trend in the time since this offending. The best articulation of the situation appears to be that sentences were much shorter at the relevant time than they are now for like offending. Frankly, that is hardly surprising, particularly given the leniency apparent in the maximum penalties then prescribed by Parliament compared with the present-day analogues. For all practical purposes, it seems to me that recognition of a movement in sentencing practices adverse to the offender in the time since these offences were committed must inevitably have its expression in an extension to the offender of a degree of leniency that would not otherwise have featured in the synthesis and which would be thoroughly inappropriate if addressing contemporary offending of a like character.
Whilst the offender is entitled to an account being taken of that general trend, too concentrated a focus on earlier decisions that are at best only marginally comparable, so far as one can tell from the limited information available in the reports and summaries of them, runs the considerable risk of subverting the proper exercise of the discretion in this particular case. In this synthesis, the trend in sentencing practices in the meantime is only one of many factors which must be taken into account. It seems to me it would be wrong to attempt a slavish reproduction of the sentence which, viewed from this distance in time, one speculates might have been imposed almost 30 years ago. Indeed, the sentence that might have been imposed contemporaneously with the offending would not have been the product of grappling with the practical consequences of, among other matters, the circumstances that must be taken into account now by reason of the intervening passage of time. However, it was at the relevant time, and is now, necessary to ensure that any non-parole period represents the minimum period of imprisonment required to be served by an offender, having regard to all of the demands of justice, assessed against the objective gravity of the offending and in light of the offender's subjective circumstances.
The offender did not give evidence on sentence. What follows concerning his subjective circumstances is taken from material tendered or read on his behalf. That material included an affidavit from his wife, letters from other family members and some other references and correspondence.
It is not unheard of for people to have a wayward early life, characterised by offending, sometimes even quite serious offending, and other anti-social conduct which, with developing maturity and insight, is ultimately forsaken for a more law abiding, productive and pro-social existence. Mr Hall appears to be one such person. As a teenager and young adult he had more than a few interactions with the criminal justice system. None for offending of this character, but certainly there are some convictions for serious property offences reflected in his history. When he was 20 he was convicted on a number of counts of armed robbery and related offences and sentenced to 12 years imprisonment. His history denies him some leniency he might otherwise have attracted. However, with the sole exception of the apparently minor indiscretion in Queensland ten years ago, things appear to have changed for the offender from sometime very close in time to the present offending, which of course was committed not in his teens or early twenties, but rather in his early thirties.
Mr Hall and his wife have been together now for 29 years and have been married for 20 of those years. In that time, he appears to have consistently demonstrated strong family values and has raised his wife's three daughters since they were very young and as though they were his own. He and his wife have six grandchildren, one of whom they have raised as their own child. Another of the six currently lives with the offender and his wife. The offender is close to his step-children and their children and has been an important positive influence in all their lives. He is idolised by them. The offender has shown complete devotion to his family and he has worked hard to ensure they were happy, healthy and supported, not only financially but also emotionally. He provides safety and security to all of his grandchildren and is the only stable father figure in their respective lives. The family has been shattered by these proceedings and the convictions and expects to suffer further in the event of the offender's incarceration.
A reference from a work colleague and sometime employer of the offender indicates that in his work as an earthmoving subcontractor the offender is regarded as professional and conducts himself with integrity. He is highly regarded by customers and well-liked and respected by work colleagues. The offender has also given selflessly to the community by way of volunteering his time and skills for various volunteer organisations, including in times of significant crisis. His contributions in respect of bush fires in NSW in 1994 and floods in S-E Qld in 2011 have been recognised in letters and certificates of appreciation from relevant government authorities.
The offender's wife has some significant health problems that prevent her from working and she has been financially reliant upon him for a number of years. The stress and anxiety of these proceedings, together with the financial hardship that has accompanied the defence of them, have served to exacerbate those health problems. If the offender is incarcerated, his wife will have to reside with one of her daughters as the income from her disability pension is apparently insufficient to cover the couple's rent.
Defending the proceedings has taken a huge physical and financial toll on the offender and his wife. He and his wife sold the family home to meet the fees and expenses associated with his defence, including the cost of travelling to and from their home in Queensland. Those close to him have observed a marked decline in his well-being over the past four years and he is currently being treated for depression. He is assessed as being at chronic medium risk of suicide. His treating psychologist expressed the view that he has the potential for high risk depending on court outcomes. Apparently, his current symptoms have severely impacted on his level of functioning. He lost his most recent employment on account of the stress associated with defending the proceedings. His psychologist opines that he will require further therapy in order to instil a sense of hope, self-determination, meaning and purpose. In addition, he has recently had a hip replacement operation, in the period between trial and sentence, and he has suffered some post-operative pain in the period since. I am satisfied that on account both of the state of his mental and physical health any period in custody will be more burdensome for Mr Hall than it would otherwise be, and this should be taken into account in his favour. In particular, Mr Hall's general mental state has been deleteriously effected by the anguish that he feels for the hardship his present circumstances have inflicted upon his family and his wife in particular. That hardship, especially in so far as it relates to his mental health, will be exacerbated by the fact his entire support network lives in Queensland and visiting him in prison will accordingly be more difficult and more expensive, thus isolating him more than he otherwise might be. All these various matters are appropriately taken into account in his favour in my view in assessing the penalty appropriate in all the circumstances.
I intend to impose an aggregate sentence. In doing so there will be some implicit accumulation in the effective result. This was all one course of criminal conduct of relatively short duration. It is appropriate in those circumstances that the degree of accumulation be limited. I think there needs to be some accumulation as between counts 1 and 2 on the one hand, and counts 3 and 4 on the other, but otherwise I think the relevant criminality for each of counts 1 and 2 viewed together, and each of counts 3 and 4 viewed together is relatively co-extensive, so that there should be significant if not complete concurrency between the sentences for counts 1 and 2 and also as between the sentences for counts 3 and 4.
There is no question but that the present offending requires punishment and denunciation. It is objectively very serious offending by which the offender intentionally created fear in the victim in order to obtain compliance for the purposes of his own sexual gratification. There is also no question but that the harm occasioned to the victim, then and enduring, must be recognised. I have no doubt, even sitting where he is presently, Mr Hall would acknowledge that if any of his step-daughters, or indeed his wife, had ever been the victim of conduct of this character then he would expect, as would the community generally, that the law would give substantive recognition to their situation, even after so many years.
However, pulling necessarily against those considerations are the practical consequences of the delay and, more acutely, the rehabilitation that has been demonstrated by reason of it.
As the Crown very fairly conceded, as a result of the delay this sentencing exercise calls for a measure of understanding and flexibility of approach in order to give just recognition to factors such as demonstrable progress towards rehabilitation. The impact of the present exercise upon the offender's family might not otherwise fall squarely within the descriptor "extraordinary", as that characterisation is often contemplated in authorities concerning third party hardship. However, I think that the combination of the delay and the rehabilitation in the meantime combine to properly admit of the conclusion that the circumstances are rendered extraordinary, where they might not have been so characterised if the offending was being dealt with more contemporaneously. I am satisfied that it is appropriate to extend some favourable account by reference to those considerations.
As has been observed in the decided cases, an extensive passage of time between offence and sentence will frequently lead to considerations of fairness to the offender in his or her present situation playing a dominant role in the determination of an appropriate penalty and sometimes requires what might otherwise be "a quite undue degree of leniency" being extended to the offender (see eg R v Todd [1982] 2 NSWLR 517 at 519). I think in all the circumstances this is one such case. Mr Hall has already established that he can rehabilitate himself, and indeed has. He has become a fully participating, productive member of society. In addition to the demonstrable contribution he has made to the life of his family, through his voluntary work the offender has given back to society far more in the last 25 years than many ordinary citizens manage in a lifetime. Also relevant in the present context is another authoritative observation to the effect that where there has been delay in a matter's disposition and there has been demonstrated rehabilitation in the meantime then "… it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct" (R v Moon ((2000) 117 A Crim R 497 at [81] per Howie J; later endorsed in PWB v R [2011] NSWCCA 84 at [80]).
In my assessment, the appropriate way to structure a sentence in all of the present circumstances is to fix a head sentence that, so far as one sensibly can, recognises the objective gravity of the offending assessed against the sentencing practices of the relevant time and for the considerations of leniency that I have outlined to reflect primarily in the non-parole period that is set. It seems to me that in all sensible respects those considerations bear most rationally upon an assessment of the minimum time that must be served in all the circumstances, taking into account also the observation of Howie J that I referred to a moment ago. So structuring a sentence has the consequent effect of a significant departure from the statutory ratio. All of the circumstances I have outlined justify a finding of special circumstances appropriate to that adjustment.
There has in a recent decision of the CCA been an expression of a view that it is only in "the most extraordinary circumstances" that a very low statutory ratio could be justified (R v Tuhakaraina [2016] NSWCCA 81 especially at [91]). In that case, the ratio in the sentence overturned on appeal was 20%.
The justification outlined for that view was that a sentence with that ratio was "incapable of performing the functions required by s 3A of the Crimes (Sentencing Procedure) Act, and of adequately reflecting the seriousness of the respondent's crime". The learned judge in that case went on to say: "absent some highly exceptional feature, it is difficult to see how a non-parole period of twenty per cent of the head sentence could perform the manifold functions of sentence specified by s 3A of the Crimes (Sentencing Procedure) Act, including as they do punishment, denunciation, making an offender accountable, recognition of harm, and general deterrence".
These observations seem to be reflective of a particular sentencing orthodoxy in this State that appears to depart somewhat from the instinctive synthetic approach endorsed in various articulations of the High Court concerning the individualised nature of the exercise of the sentencing discretion.
Predominance seems more frequently to be given to deterrence, in particular general deterrence, and punishment above all other sentencing objects. That approach also appears to proceed upon the basis that in any contest or tension between objective and subjective factors bearing upon the determination of the penalty appropriate in the individual circumstances of the particular case, clear predominance should invariably be given to objective factors.
There does not appear to me to be any warrant in the language or policy of the relevant statute for necessarily giving predominance to deterrence or punishment over other objects of sentencing nor for giving predominance to objective over subjective factors.
In addition to being apparently outside the language and policy of the relevant legislative scheme, any approach that necessarily gives predominance to punishment or deterrence (or indeed any object or objects) over another or other objects or which necessarily gives predominance to the objective gravity of the offending ahead of other relevant considerations, would in my understanding of them be contrary to statements of principle by the High Court (see e.g. Markarian v R (2005) 228 CLR 357 at [37] and [84]).
Giving predominance to the objective features of particular offending seems to be most frequently justified by reference to considerations of proportionality. As is evident from Veen [No 2] ((1988) 164 CLR 465 at [8] per Mason CJ, Brennan, Dawson and Toohey JJ), the principle of proportionality is primarily intended to mark the outer limits of the imposition of penalty. Whilst it must be accepted that sentencing outcomes (including minimum and maximum periods of imprisonment) should bear a degree of proportionality to the objective gravity of the offending, notions of proportionality are not, at least not insofar as I understand the relevant pronouncements of the High Court, intended to undermine in any respect the requirement that in fixing an appropriate penalty in any particular case, regard must be had to all the circumstances of the case. Proportionality is not a principle that dictates predominance must be given to the objective gravity of the particular offending over and above any other relevant features and circumstances of an individual case, nor does it dictate that particular objects of sentencing necessarily or inevitably predominate over others.
Distilled in combination, the scheme of the Act and the various articulations of principle by the High Court appear to require that the proper exercise of the sentencing discretion involves a careful balancing, not simply of the subjective matters against the objective seriousness of the offending with priority accorded the objective considerations, but rather a balancing of all considerations relevant to determining the appropriate penalty in the circumstances of the particular case.
Properly understood, that approach might result, in the circumstances of a particular case, in greater significance attaching to the objective gravity of the offending than to other considerations. In a different case, perhaps more exceptional, but not unheard of, the just imposition of an appropriate penalty might necessitate priority being given to subjective considerations, notwithstanding the gravity of the offending and might attract prominence to some objects of sentencing ahead of others. Two things are certain. The first is that the task is rarely, if ever, easy. The second is that in the case of any individual sentencing exercise, minds might reasonably differ as to the appropriate balance and the weight properly to be accorded the multitude of considerations relevant to that exercise. The corollary of the latter proposition is that the ultimate synthesis of those considerations will likely be amenable to a range of outcomes in terms of the penalty appropriate in a given case. Both propositions are exemplified by the present exercise, which to my mind tests the bounds of the exercise of the sentencing discretion and raises serious questions about what it is as a community we expect and require when sentencing an offender and what collectively we hope to achieve by any particular sentencing result.
Anything purporting to be an expression of principle, or even a general rule, to the effect that only in the "most extraordinary", or "highly exceptional", circumstances can a very low ratio be justified because it otherwise would fail to perform the manifold functions of sentence specified by s 3A of the Crimes (Sentencing Procedure) Act is apt to operate as an unjustified, and indeed, as a matter of principle, unjustifiable, fetter on the exercise of a broad and inevitably complex discretion and to necessarily give predominance to some objects over others. It would by its nature be similar in effect to the so-called principle that has purported to require a sentence of full-time custody for trafficking in a substantial degree, unless exceptional circumstances are shown (see eg Robertson v R [2017] NSWCCA 205). The weight or priority properly to be accorded any object or objects in any individual case, and the determination of the penalty accordingly appropriate, will depend upon a balancing of all the circumstances of the particular case.
Indeed, as the same learned judge said in Tuhakaraina (at [91]), it "is neither necessary nor prudent to state any general rule or formula for the determination of a proper ratio of sentence once a finding of special circumstances has been made, that being a discretionary matter…". I respectfully agree. I do not read the remarks otherwise in that case as dictating a particular outcome in any individual case. Whether or not the circumstances of this case are reasonably assessed as "most extraordinary" or "highly exceptional" is likely to be the subject of differing views. I think the combination of all the circumstances I have outlined justify that characterisation. Whether they are or not, I consider that combination of circumstances justifies the imposition of a penalty which reflects a ratio quite removed from the statutory prescription. The delay, the rehabilitation, the age, the present state of the mental and physical health of Mr Hall and the impact on his family of the necessary outcome of this offending, all militate in favour of that conclusion.
Maintaining a head sentence by reference to the factors I have indicated serves a number of substantial purposes in my assessment, notwithstanding that it otherwise appears disproportionate to the assessment of the minimum period that must be served. It recognises the objective gravity of the offending and simultaneously gives appropriate account to considerations of general deterrence, punishment, denunciation and recognition of the harm to the victim. In addition, it gives account to considerations of specific deterrence. Having regard to the age and circumstances of the offender, considerations of specific deterrence do not immediately appear to demand significant attention. However, as the Crown points out, the offender continues to deny these offences and has exhibited no remorse or contrition. These facts justify some advertence to this object in this exercise. The prospect of a further lengthy period of custody will serve as a substantial incentive against any departure by Mr Hall from the general trend of good behaviour that has characterised his later adult life. Otherwise, in all the circumstances of this case, the interests of justice, particularly insofar as they comprehend the community's best interests, are served by ensuring that the substantial positive steps Mr Hall has taken in establishing a productive, law-abiding life are successfully maintained. Any risk that those rehabilitative steps might be halted or potentially reversed by a period of time spent in custody should be minimised, so far as it can be consistently with the competing demands of the countervailing objects.
For all of the foregoing reasons, I make the following orders.
For all four offences the offender is convicted. As I have indicated, I will impose an aggregate sentence of imprisonment. I re-emphasise that this sentence does not represent an appropriate sentence for such offences committed today, or in the more recent past, and it reflects considerable leniency on account of the substantial rehabilitation demonstrated over the long period since the offending that would not otherwise have been appropriate.
The aggregate sentence I impose consists of a non-parole period of 1 year commencing from today, 1 September 2017 and expiring 31 August 2018, and a balance of term of 4 years. That is a total effective sentence of 5 years. The offender will become eligible to be released to parole on 31 August 2018.
The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are:
For each of counts 1 and 3, a sentence of 4 years.
For each of counts 2 and 4, a sentence of 3 years.
[3]
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Decision last updated: 06 September 2017