R v Rushby

Federal Court of Australia|1991-03-14|Before: Lee J, Madgwick JJ

The Crown appeals to this court from a decision of the Chief Justice of the Supreme Court of the Australian Capital Territory. The appellate jurisdiction of the court is conferred by s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth), which reads, " (1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine: ... appeals from judgments of the Supreme Court of a Territory; ..."

"Judgment" is defined in s 4 to mean, "a judgment, decree or order, whether final or interlocutory, or a sentence".

The powers of the Court in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence (s 28(5)).

The Crown appeals against the leniency of the sentence imposed by his Honour upon the accused, Gordon Charles Partridge, on 6 November 1997 at Canberra.

The accused was arraigned on 17 September 1997 on 25 counts relating to alleged offences against his three step-daughters contrary to various provisions of Parts III, IIIA and VIII of the Crimes Act 1900 (ACT). The terms of the indictment were, "The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT between the 24th day of December 1991 and the 16th day of August 1995 at Canberra in the Australian Capital Territory Gordon Charles Partridge being an adult, maintained a sexual relationship with a young person under the age of sixteen years, namely Jamie Michelle Martinelli.

SECOND COUNT AND FURTHER THAT on the 30th day of June 1994 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Jamie Michelle Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

THIRD COUNT AND FURTHER THAT on the 30th day of June 1994 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Jamie Michelle Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

FOURTH COUNT AND FURTHER THAT between the 29th day of June 1995 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Jamie Michelle Martinelli who was then under the age of sixteen years, and who was to his knowledge his stepchild.

FIFTH COUNT AND FURTHER THAT between the 29th day of June 1995 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Jamie Michelle Martinelli who was then under the age of sixteen years, and who was to his knowledge his stepchild.

SIXTH COUNT AND FURTHER THAT between the 29th day of June 1995 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge committed an act of indecency upon Jamie Michelle Martinelli who was then under the age of sixteen years, and who was to his knowledge his stepchild.

SEVENTH COUNT AND FURTHER THAT between the 29th day of June 1991 and the 31st day of December 1994 did procure the commission of an offence under a law of the Territory by Kylie Marie Martinelli in that Kylie Marie Martinelli, in the Australian Capital Territory, between the 1st day of January 1991 and the 31st day of December 1994, engaged in sexual intercourse with Jamie Michelle Martinelli, the said Jamie Michelle Martinelli then being a person above the age of ten years but under the age of sixteen years.

EIGHTH COUNT AND FURTHER THAT between the 10th day of August 1995 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Jamie Michelle Martinelli who was then under the age of sixteen years, and who was to his knowledge his stepchild.

NINTH COUNT AND FURTHER THAT between the 10th day of August 1995 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Jamie Michelle Martinelli who was then under the age of sixteen years, and who was to his knowledge his stepchild.

TENTH COUNT AND FURTHER THAT between the 10th day of August 1995 and the 16th of August 1995 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Jamie Michelle Martinelli who was then under the age of sixteen years, and who was to his knowledge his stepchild.

ELEVENTH COUNT AND FURTHER THAT between the 29th day of June 1991 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge committed an act of indecency upon Jamie Michelle Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

TWELFTH COUNT AND FURTHER THAT between the 29th day of June 1991 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge committed an act of indecency upon Jamie Michelle Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

THIRTEENTH COUNT AND FURTHER THAT between the 29th day of June 1991 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge committed an act of indecency upon Jamie Michelle Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

FOURTEENTH COUNT AND FURTHER THAT between the 28th of August 1992 and the 16th day of August 1995 at Canberra aforesaid Gordon Charles Partridge being an adult maintained a sexual relationship with a young person namely Kylie Marie Martinelli who was then under the age of sixteen years.

FIFTEENTH COUNT AND FURTHER THAT on the 27th of November 1992 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Kylie Marie Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

SIXTEENTH COUNT AND FURTHER THAT between the 16th day of May 1995 and the 16th day of June 1995 at Canberra aforesaid Gordon Charles Partridge assaulted Kylie Marie Martinelli.

SEVENTEENTH COUNT AND FURTHER THAT between the 16th day of May 1995 and the 16th day of June 1995 at Canberra aforesaid Gordon Charles Partridge attempted to engage in sexual intercourse with Kylie Marie Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

EIGHTEENTH COUNT AND FURTHER THAT between the 28th of August 1992 and 31st of December 1994 at Canberra aforesaid Gordon Charles Partridge committed an act of indecency upon Kylie Marie Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

NINETEENTH COUNT AND FURTHER THAT between the 28th of August 1992 and 16th of August 1995 at Canberra aforesaid Gordon Charles Partridge committed an act of indecency upon Kylie Marie Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

TWENTIETH COUNT AND FURTHER THAT between the 28th of August 1992 and 16th of August 1995 at Canberra aforesaid Gordon Charles Partridge committed an act of indecency upon Kylie Marie Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

TWENTY FIRST COUNT AND FURTHER THAT between the 28th of August 1992 and 16th of August 1995 at Canberra aforesaid Gordon Charles Partridge committed an act of indecency upon Kylie Marie Martinelli who was then above the age of ten years but under the age of sixteen years, and who was to his knowledge his stepchild.

TWENTY SECOND COUNT AND FURTHER THAT between the 27th of November 1992 and 16th of August 1995 at Canberra aforesaid Gordon Charles Partridge being an adult maintained a sexual relationship with a young person namely Nicky Louise Martinelli who was then under the age of sixteen years.

TWENTY THIRD COUNT AND FURTHER THAT between the 27th of November 1992 and 16th of August 1995 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Nicky Louise Martinelli without her consent and knowing that she did not consent

TWENTY FOURTH COUNT AND FURTHER THAT between the 27th November 1992 and 16th of August 1995 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Nicky Louise Martinelli without her consent and knowing that she did not consent.

TWENTY FIFTH COUNT AND FURTHER THAT between the 27th November 1992 and 16th of August 1995 at Canberra aforesaid Gordon Charles Partridge engaged in sexual intercourse with Nicky Louise Martinelli without her consent and knowing that she did not consent."

In summary the indictment contained 12 counts in relation to his step-daughter Jamie Michelle Martinelli. Those counts were: one of maintaining a sexual relationship, two of incest (which were pre-1995 offences), five of incest (post 1995) and four of acts of indecency.

It contained eight counts in relation to his step-daughter Kylie Marie Martinelli. Those counts were; one of maintaining a sexual relationship, one of incest (pre-1995), one of assault, one of attempted incest (pre-1995) and four of acts of indecency (pre-1995).

It contained four counts in relation to his step-daughter Nicky Louise Martinelli. Those counts were; one of maintaining a sexual relationship and three of sexual intercourse without consent.

There was also a single count alleging an offence of procuring sexual intercourse between two of the step-daughters.

Upon arraignment, the accused pleaded guilty to three counts of committing an act of indecency upon Jamie Michelle Martinelli (counts 11, 12 and 13). He also entered pleas of guilty to three counts of committing an act of indecency upon Kylie Marie Martinelli (counts 19, 20 and 21). He pleaded not guilty to each of the remaining counts. In the course of the trial, the trial judge directed verdicts of not guilty in respect of counts 5 and 7 for insufficiency of evidence.

The jury returned verdicts of guilty on counts 1, 6, 14, 15, 16 and 17. Not guilty verdicts were returned in respect of counts 18, 23, 24 and 25 and the jury were unable to reach verdicts on counts 2, 3, 4, 8, 9, 10 and 22.

The 25 counts in the indictment fell into separate categories in relation to each of the accused's three step-children. In relation to Jamie Michelle Martinelli, the accused was convicted on his pleas of guilty and upon the verdicts of the jury of one count of maintaining a sexual relationship and four counts of committing an act of indecency. In relation to Kylie Marie Martinelli, he was convicted on his pleas of guilty and upon the verdicts of the jury of one count of maintaining a sexual relationship, one count of engaging in sexual intercourse, one count of assault, one count of attempting to engage in sexual intercourse and three counts of committing an act of indecency. In relation to the youngest child Nicky Louise Martinelli, the jury was unable to reach a verdict on one count and returned verdicts of not guilty on the other counts.

In relation to the child Jamie Michelle Martinelli: Count 1 - Maintaining a sexual relationship with a young person - five years imprisonment to commence from 19 September 1997; Count 6 - Committing an act of indecency upon a person under the age of 16 - one year's imprisonment, concurrent with count 1; Count 11 - Committing an act of indecency upon a person under the age of 16 - no sentence passed; Count 12 - Committing an act of indecency upon a person under the age of 16 - no sentence passed; Count 13 - Committing an act of indecency upon a person under the age of 16 - no sentence passed. In relation to the child Kylie Marie Martinelli: Count 14 - Maintaining a sexual relationship with a young person - six years imprisonment, five of which are concurrent with counts 1 and 6; Count 15 - Engaging in sexual intercourse with a person under the age of 16 - no sentence passed; Count 16 - Assault - did not proceed to final sentence; Count 17 - Attempting to engage in sexual intercourse with a person under the age of 16 - one year's imprisonment, to be served concurrently. The sentencing judge did not indicate the sentence with which this sentence was to be served concurrently; Count 19 - Committing an act of indecency upon a person under the age of 16 - one year's imprisonment, to be served concurrently. The sentencing judge did not indicate the sentence with which this sentence was to be served concurrently; Count 20 - Committing an act of indecency upon a person under the age of 16 - one year's imprisonment, to be served concurrently. The sentencing judge did not indicate the sentence with which this sentence was to be served concurrently; Count 21 - Committing an act of indecency upon a person under the age of 16 - one year's imprisonment, to be served concurrently. The sentencing judge did not indicate the sentence with which this sentence was to be served concurrently.

In respect of all of the above sentences, the sentencing judge ordered that they were to be suspended after the accused had served one year's imprisonment, upon his entering into a recognisance without surety self in the sum of $5,000 to be of good behaviour for a period of five years. A further condition imposed was that the accused attend upon the Supreme Court of the ACT for completion of sentence on count 16 on 18 September 1998. The sentencing judge indicated that on that date he would sentence the accused to serve 52 periods of periodic detention.

In relation to the child Jamie Michelle Martinelli, the offence of maintaining a sexual relationship with a young person, count 1, carried a maximum penalty of 14 years imprisonment. The offences of committing an act of indecency carried maximum penalties of ten years imprisonment (counts 6, 11, 12, and 13).

In relation to the child Kylie Marie Martinelli, the offence of maintaining a sexual relationship with a young person, count 14, carried a maximum penalty of life imprisonment. The offence of engaging in sexual intercourse with a person under the age of 16 years who is, to the accused's knowledge his step-child, carried a maximum penalty of 15 years imprisonment (count 15). The offence of assault carried a maximum penalty of two years (count 16). The offence of attempting to engage in sexual intercourse with a person under the age of 16 years, who is, to the accused's knowledge, his step-child, carried a maximum penalty of 15 years imprisonment (count 17). The offences of committing an act of indecency upon a person under the age of 16 years carried a maximum penalties of two years imprisonment (counts 18, 19, 20 and 21).

The offence of maintaining a sexual relationship with a young person was created by s 92EA(2) of the Crimes Act 1900 (ACT). An adult shall be taken to have maintained a sexual relationship with a young person if the adult has engaged in a sexual act in relation to the young person on three or more occasions (s 92EA(3)). The three acts of a sexual nature in relation to the children Jamie Michelle Martinelli and Kylie Marie Martinelli relied upon by the Crown and constituting the offence of maintaining a sexual relationship with each child were the three offences of committing an act of indecency upon each child, to which the accused pleaded guilty.

The maximum penalty in relation to the child Kylie Marie Martinelli for engaging in a sexual relationship was life imprisonment by reason of operation of s 92EA(6)(b) which reads, " (6) If a person convicted under subsection (2) is found, during the course of the relationship, to have committed another offence under this Part in relation to the young person (whether or not the person has been convicted of that offence), the offence under subsection (2) is punishable by imprisonment - ... if the other offence is punishable by imprisonment for a period of 14 years or more - for life."

The maximum penalties in relation to the other offences invoking the operation of sub-s (6)(b) were, 1) 15 years imprisonment for engaging in sexual intercourse with a person under the age of 16 and who is, to the accused's knowledge, his step-daughter (s 92L(2)); 2) 15 years imprisonment for attempting to commit the same offence (ss 92L(2) and 347).

As indicated, the sentencing judge did not impose sentences in relation to counts 11, 12, 13 and 15. No doubt this was an oversight, as he referred to them in his remarks on sentence by acknowledging the pleas of guilty to the first three counts and the guilty verdict on the final count. Indeed, his Honour clearly stated his intention to "sentence on all matters except the 16th count" and to have regard to the totality principle in doing so.

This oversight on the part of the sentencing judge was not brought to his attention either by the Crown or the accused. It is the duty of the Crown to ensure that errors or omissions do not occur in the sentencing process. The court is entitled to expect the utmost assistance from the Crown.

Furthermore, as was acknowledged by the Crown on the hearing of this appeal, some counts in the indictment contained surplusage in added averments which were not elements of the offences charged. The added averments were the words "above the age of ten years but" and "and who was to his knowledge his stepchild". (See counts 6, 11, 12, 13, 19, 20 and 21, all charging offences against s 92K(2).) In drafting an indictment, it is the duty of the Crown to phrase the counts with precision and accuracy. It was not suggested that the accused was prejudiced in any way by the addition of the averments, but when an accused is convicted of an offence which has not been charged in the terms of the statutory provision creating the offence, an inaccurate record of a conviction against that person may result. That should not occur and it is up to the Crown to ensure that it does not.

The child Jamie Michelle Martinelli, was born on 29 June 1981. In relation to count 6, Jamie Michelle Martinelli was at home one night after her 14th birthday. Her mother was out but the accused was home. He told her to sit on the couch, which she did. He then went into his bedroom and came back carrying a vibrator. At this time, the child was wearing a nightie and a pair of underpants which the accused removed from her body. He then turned the vibrator on and placed it on her vagina. The vibrator did not penetrate her vagina.

In relation to counts 11, 12 and 13, to which he pleaded guilty, the accused admitted sexually abusing Jamie Michelle Martinelli since she was approximately 10 years old. He admitted rubbing her vagina under her clothing up to maybe a dozen times over a three or four year period.

The child Kylie Marie Martinelli was born on 28 August 1982. In relation to count 15, on the first night her mother went to work at the Statesman Hotel, Kylie Marie Martinelli was at home with the accused when he called her into the lounge room. He wrestled with her and pinned her to the ground. The accused then removed her underwear and put his right index finger half-way into her vagina. She kicked him in the penis, got away and went to her bedroom. She was 11 years old at the time of the offence.

In relation to counts 16 and 17, on the last night her mother worked at the Statesman Hotel Kylie Marie Martinelli was at home and walked into the lounge room where the accused punched her in the head with his fist. The next recollection she had was lying on her back still wearing her nightie but with her underpants removed. The accused had his body on top of her trying to place his erect penis into her vagina. The evidence of the child was that his penis did not enter her vagina but slid across it. The only other thing she recollected was being hit and waking up in bed the following morning. She was approximately 14 years of age at the time of the attack.

The evidence in relation to counts 19, 20 and 21, to which he pleaded guilty, is contained in the admissions made by the accused to the police in his record of interview. He admitted sexually abusing Kylie by placing his hand on her vagina and rubbing it. He said he started doing this when she was about 10 years old and that he had done it probably five or six times. He thought he kept doing it until Kylie was about 12 years old.

The minimum length of the period over which the offences against Jamie Michelle Martinelli were committed was three years and the child was, on the best view of matters for the respondent aged 11 to 14.

The minimum length of the period over which the offences against Kylie Marie Martinelli were committed was about four years and, on the best view of matters for the respondent, the child was aged 10 to 14.

The Crown submitted that individually the offences required condign punishments to be imposed and, because the offences were repeated with serious aggravating circumstances, a substantial custodial sentence should have been imposed.

The verdicts indicate that the jury accepted that the accused had, over a number of years, subjected his two step-daughters to repeated sexual molestations of the most degrading kind when they were young girls and vulnerable to abuse of his authority over them. In a case of this kind, where an adult takes advantage of his family relationships with the victims to sexually abuse them over a long period of time, the sentencing judge was required to impose a substantial custodial sentence and that he failed to do so manifests an error of principle such that this court should intervene and re-sentence the accused.

The Crown submitted that sentencing principles have recognised the gravity of sexual assaults on children and such principles have been reinforced by the legislature in s 92EA(6)(b) of the Crimes Act 1900 (ACT) by the provision of a maximum sentence of life imprisonment for maintaining a sexual relationship with a young person, where the offender is also found to have committed another offence under that Part where such offence carries a maximum penalty of imprisonment for a period of 14 years or more. This is the penalty applicable for count 14 in the indictment relating to Kylie Marie Martinelli.

The Crown further submitted that the sentencing judge must have failed to appreciate the seriousness of the offences, despite his Honour having briefly referred to such matters only once in his sentencing remarks. In these circumstances, it was submitted, the sentences imposed so seriously underestimated the objective seriousness of the crimes as to indicate appellable error. In making the submission that the sentences were manifestly inadequate, the Crown acknowledged that there are constraints operating upon courts when considering Crown appeals.

It was submitted on behalf of the Crown that the accused was not entitled to any significant discount on account of his pleas of guilty to a number of acts of indecency. This is because, notwithstanding those pleas, he required the young victims to give evidence at his trial. He was found guilty by a jury after that trial. On balance, the Crown submitted, whatever contrition he demonstrated by his pleas of guilty, his denial of the more serious charges and the consequent trial compel the conclusion that any contrition he felt was of a most modest kind and that certainly the total sentence should not have been discounted by any significant amount, if at all, on account of contrition or remorse.

The Crown further submitted that his Honour "somewhat perversely" gave the accused credit for not subjecting the victims to even more trauma than was inflicted on them. The Crown submits that in doing so his Honour fell into error.

Appellate courts have frequently stated the principles to be applied by a court in passing sentence and stressed the primacy to be accorded the seriousness of the offence. In R v Rushby (1977) 1 NSWLR 594 at p597-598, the NSW Court of Criminal Appeal said, "The law upon the matter of sentencing is well stated in the judgment of the Court of Appeal in New Zealand in R v Radich [1954] NZLR 86, at p87, a passage which has been cited in other judgments on numerous subsequent occasions: "... one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent [sic] the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment.""

More recently in R v Dodd (1991) 57 A Crim R 349 at p354, the same court said, "As Jordan CJ pointed out in Geddes (1936) 36 SR (NSW) 554 at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594."

Brennan J (as he then was) in this court in Channon v The Queen (1973) 33 FLR 433 at p437-438 made the following remarks, "The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes. Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of an offender can sometimes be assisted. Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose. In Reg. v Cuthbert (1967) 86 WN (Pt1) (NSW) 272, at p274, Herron CJ in a judgment in which Sugerman and Walsh JJA agreed, said: "The function of the criminal law and the purposes of punishment cannot be found in any single explanation, for it depends both upon the nature and type of offence and the offender. But all purposes may be reduced under the single heading of the protection of society, the protection of the community from crime. The sentence should be such as, having regard to all the proved circumstances, seems at the same time to accord with the general moral sense of the community and to be likely to be a sufficient deterrent both to the prisoner and others: per Jordan CJ, R v Geddes (1936) 36 SR (NSW) 554. Courts have not infrequently attempted further analysis of the several aspects of punishment (Reg v Goodrich (1952) 70 WN (NSW) 42, where retribution, deterrence and reformation are said to be its threefold purposes). In reality they are but the means employed by the courts for the attainment of the single purpose of the protection of society". Retribution, deterrence and reformation are related, however, to the specific conduct in respect of which the offender is sentenced. Deterrence (whether of the offender or others) from committing other kinds of crime, reformation in respect of other failures, or retribution for other kinds of social misconduct are not purposes to which the judicial discretion in sentencing is directed. But a sentence which is imposed with the object of deterring the offender from committing offences of the same kind again, and with the object of rehabilitating him by reducing or eliminating the factors which contributedto the conduct for which he is sentenced, serves the appropriate purpose provided the sentence is apt to secure those objects." (Emphasis added)

Crown appeals ought to be sparingly made and rigorously assessed. In R v Osenkowski (1982) 30 SASR 212 at p212-213, as applied in R v Boudelah and Charlston (1991) 28 FCR 176 at p186, the following observations were made, "The proper role for prosecution appeals, in my view, is (1) to enable the courts to establish and maintain adequate standards of punishment for crime; (2) to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; and (3) occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

In R v Tait and Bartley (1979) 24 ALR 473 at p475-476, this court held, "The relevant provisions of the Federal Court of Australia Act do not provide any basis for distinguishing between the general principles to be applied by the court on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a defendant. The principles which limit the exercise by an appellate court of its jurisdiction with respect to a discretionary sentence apply in each class of case. Those principles were expressed in Harris v R (1954) 90 CLR 652, which was followed by this court in Kovac v R (1977) 15 ALR 637, and which (at 642-3) contains a citation from Cranssen v R (1936) 55 CLR 509 at 519-20: "...the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority." An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R (1928) 41 CLR 230 at 249; Griffiths v R (1977) 15 ALR 1 at 15-17). Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time-honoured concepts of criminal administration" (per Barwick CJ, Peel v R (1971) 125 CLR 447 at 452; [1972] ALR 231 at 233). A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J, Whittaker v R, supra at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."

Similar observations were expressed by the High Court in Everett v The Queen (1994) 181 CLR 295 at p299, "An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed."

Those principles were recently restated by this court in The Queen v Terrence James Mitchell (unreported, 9 December 1997, Federal Court of Australia).

(iii) COMMUNITY ABHORRENCE OF SEXUAL ABUSE OF CHILDREN

The seriousness of sexual assaults on children, including intra-familial offences, is not in doubt. In an unreported decision of the NSW Court of Criminal Appeal, Lee J said in R v Dent (14 March 1991), at p6, "One begins with the proposition, and his Honour pointed this out, that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under sixteen ... That acknowledgement has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset confusion and difficulties in later life, caused by such conduct. When a child is living in the family situation he or she is particularly vulnerable to sexual molestation from the male parent, or step-parent. The community regards the family unit as one in which each parent is in a position of trial respect of the child, under a duty to rear it and give it pro guidance and to refrain from using the child for sexual pleasure. The child is usually helpless to protect itself against sexual attack from the parent - as in this case - and that can be seen in so many other cases of a like kind that come before us. One sees in such cases that the child is too embarrassed, too afraid or develops too great a sense of guilt to complain. When the male parent takes advantage of the helplessness of the child, he not only commits a breach of trust, but it is a cowardly breach of trust: The protector of the child's body, the guide and mentor of the child, in those circumstances has abandoned his proper role in order to gratify his lust on the child."

Further, in R v Fisher (1989) 40 A Crim R 442 at p446, Maxwell J stated, "... the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities."

As to s 92EA6(b) of the Crimes Act 1900 (ACT), a similar provision was considered by the Queensland Court of Appeal in Dirk Knijff (1993) 69 A Crim R 236 at p239, "In Jones the court noted that: "Section 229B was enacted in 1989 with the obvious intention of providing for a heavier penalty where the offender was an adult and the sexual relationship was maintained over a period involving at least three separate acts. The offence is obviously more serious than that of unlawful carnal knowledge simpliciter and that must be reflected in the sentence imposed.""

The starting point for a consideration of the objective seriousness of an offence is always the maximum penalty which is provided. In Paul James Oliver (1982) 7 A Crim R 174 at p177 the NSW Court of Criminal Appeal said, "The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course, absolutely bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory maximum."

In R v Boudelah and Charlston (supra), Gallop J said at p186, "There is no difficulty in the case of sexual offences in determining the single voice of the community. In relation to other offences, such as those relating to drugs, there may be stratas of society which hold disparate views. But in the case of sexual offences the voice of the community, through the legislation enacted by Parliament, expresses its abhorrence."

Turning to the question of the accused's contrition, in the pre-sentence report which was in evidence before the sentencing judge, the author stated "it is difficult to detect genuine feelings of remorse surrounding the offences".

The Crown pointed out that the accused appeared not to accept responsibility even at the sentencing stage for his actions by attributing some blame for the offences to the immodest behaviour of his step-daughters. This was also noted in the pre-sentence report.

However, the author also noted that the accused viewed himself as being responsible for destroying the lives of his step-daughters "or close to it". He said that he was sorry for what he had done to them.

The sentencing judge gave significant credit to the accused for his limited contrition. He said, AB p183.35-184.6, "In relation to contrition, it is also to be said that apart from the matters which he has consistently denied, he was co-operative with the police in respect of the matters to which he admits and to which I have already said go beyond the matters charged in the indictment. I think that he does show contrition in respect of the matters which he admits although he is not abject about it. I take into account also that he did not insist on separate trials in relation to each of the girls concerned and had he done so he probably would have been entitled to separate trials. The girls in that regard would have been placed under, probably placed under greater strain and the community certainly would have had to bear a greater cost as the price of his conviction. I also take into account that Mr Sabharwal who appeared for him, and no doubt acting on instructions, cross-examined the girls with thoroughness but without subjecting them to indignity."

In relation to the subjective features of the case, the sentencing judge said at AB p183, "In March 1996, whilst on bail, he formed a further de facto relationship with a lady who gave evidence and who is the mother of children who were then, I think, aged 10 and 12. I accept the evidence she gave. She has every confidence in the offender and despite the transgressions to which he admits she trusts him, as does her daughter. She thinks that he offended out of stress and depression. She appears to be a responsible woman. To all appearances, the offender was a good step-father. He is unable to explain why he committed the offences. He says that he obtained no sexual gratification from them. In my view he appears not to be one of the stereo-typed male sex abusers who are said by some to be motivated by lust for children and by others to seek to wield power over otherwise helpless and disadvantaged persons. At the age of 37 he is very much an enigma who still has to come to terms with his own role and position in life. For what it is worth I express the doubt that he can be labelled a paedophile."

There was some evidence to support those observations if, as we think his Honour intended, their burden was to indicate that the prisoner appeared not to be in the category of a compulsive offender against children generally. The prisoner had said in his police record of interview that at least for the offences of which he admitted his guilt, he obtained no sexual gratification. He told the author of the pre-sentence report the same and gave evidence to the same effect. The Crown's contention is that insofar as the sentencing judge used those findings to mitigate the accused's conduct, the sentencing judge was in error. We do not accept that submission. No doubt the inference could have been drawn that the accused in the family environment took advantage of his physical and psychological domination of his step-children to gratify his sexual urges. The fact that the sentencing judge did not say that he had drawn that inference does not mean that he did not. As has been said many times before, a sentencing judge cannot be expected to articulate all the matters he or she has taken into account.

The longest period of imprisonment imposed by the sentencing judge was six years in respect of count 14. Where other sentences of lesser duration were imposed, except for counts 17, 19, 20 and 21, they were ordered to be served concurrently with that sentence. The maximum penalty for count 14, maintaining a sexual relationship with a young person is, as stated earlier, life imprisonment.

In our opinion, a head sentence of six years was appellably inadequate having regard to the criminality exhibited. This case involved sustained and relatively serious sexual abuse of two children, not stopping short of violence to one of them, by an adult of mature years with, so far as is known, no grave weakness of mind nor any overwhelming emotional suffering. One of the offences carried life imprisonment as a maximum and another two each carried fifteen years. No other unusually compelling feature in mitigation was demonstrated which might have justified the imposition of an exceptionally low effective head sentence. It seems to us that the sentence under review appellably undervalued the objective seriousness of the prisoner's crimes. We are of the opinion that at first instance a head sentence of no less than eight years would have been necessary, after applying the totality principle.

His Honour ordered that all sentences were to be suspended after the accused had served one year's imprisonment as referred to in paragraph 16 of these reasons, having made specific enquiry of whether the accused was prepared to enter into such a recognisance. Thus, the accused was required to serve only one-sixth of the overall sentence. His Honour referred to that as "perhaps an extraordinary short time in full time custody" but noted that the period of full time custody would be followed by a period of periodic detention which, his Honour intimated, he would order when the accused came back before him to be finally sentenced in respect of his conviction on the 16th count. His Honour said that on 18 September 1998 he would order that the accused serve 52 detention periods to begin on a date not before 18 September 1998. In our opinion this was also an unduly lenient approach.

In R v Hillsley (1992) 105 ALR 560, Gallop J said at p572, "It is clear law that the nature of the crime is a relevant factor for the sentencing judge to take into account in fixing a non-parole period because a more serious offence will warrant a greater non-parole period due to its deterrent effect upon others and the need to give close attention to the danger which the offender presents to the community."

In our view, at first instance, it would not have been appropriate to fix a non-parole period of less than about half of the effective head sentence.

The sentence structured by his Honour was such that upon entering into the recognisance ordered, the accused would not be kept in custody any longer than 12 months. When released he will not be on parole on such conditions as the Parole Board of the Australian Capital Territory thinks fit (ss 21 and 22 of the Parole Act 1976 (ACT)). Nor will he be liable to have his parole revoked for failure to comply with the conditions of his parole order as would a prisoner released on parole. The sanction for breach of the recognisance to be entered into by the accused is committal to prison for a further term not exceeding the balance of the sentence to be served: s 556c(4)(e) of the Crimes Act. In choosing the option of fixed sentences and an order for release on a recognisance after one year the sentencing judge has excluded the operation of the parole system (R v Boudelah and Charlston, supra, at p185). In the case of serious offences, so to do ought to be regarded as an exceptional measure.

In our opinion there was not a properly structured sentence in the circumstances of this case. We have come to that conclusion because of the place where the facts of the case lie in a spectrum at one end of which lies the worst type of sexual assault, see Ibbs v The Queen (1987) 163 CLR 447 at p452, "The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined."

Applying the principles of appellate restraint in resentencing, when appellable error has been shown in an appeal by the Crown, the orders we propose are, 1. The appeal be allowed. 2. In substitution for the sentence of six years imprisonment in respect of count 14 of maintaining a sexual relationship with a young person, the accused be sentenced to seven years imprisonment. 3. All other sentences be confirmed and served concurrently with the sentence of seven years imprisonment in respect of count 14. 4. In respect of counts 11, 12 and 13 of committing an act of indecency upon a person under the age of 16 years which his Honour overlooked, the accused be sentenced to two years imprisonment on each count concurrent. 5. In respect of count 15 of engaging in sexual intercourse with a person under the age of 16 years which his Honour also overlooked, the accused be sentenced to three years imprisonment on this count concurrent. 6. All sentences date from 6 November 1997. 7. A non-parole period of three years be fixed.

The overall effect of those orders is that the accused be sentenced to seven years imprisonment with a non-parole of three years imprisonment.

It is also necessary to direct that any record of the accused's convictions in respect of counts 6, 11, 12, 13, 19, 20 and 21 be amended so as to delete the added averments referred above. I certify that this and the nineteen (19) preceding pages are a true copy of the Reasons for Judgment herein of the Court. Associate: Date: 29 May 1998 Counsel for the Appellant: Mr T Golding Solicitor for the Appellant: Director of Public Prosecutions Counsel for the Respondent: Mr James Sabharwal Solicitor for the Respondent: Legal Aid Office (ACT) Date of hearing: 6 March 1998 Date of judgment: 29 May 1998

Pt III, IIIA, VIII Parole Act 1976(ACT)

Parole Act 1976(ACT)

At a glance

Court

Decision date

Before

Source

Judgment (89 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (17)