R v SG

It was also unclear from his Honour's remarks whether he took into account as a circumstance of aggravation, the fact that the applicant had pleaded not guilty, had lied on oath and had conducted a defence which, through his own evidence and cross-examination of the complainant, had advanced the proposition that the complainant had fabricated the allegations. Had these been made in the context that the applicant was denied the benefit of contrition and remorse then no error would have been disclosed. If they were being treated as circumstances aggravating the criminality of the applicant then this was a serious error for the reasons outlined in Signanto v The Queen.

Although proper regard was had for the applicant's good character, rehabilitation, the delay in prosecution, the alternatives to full time custody and the fact that the offences with which the applicant was convicted could have been dealt with in the Local Court as summary offences, but appropriately dealt with on indictment, the overall sentences were excessive, being outside the proper range of sentencing discretion. Additionally the sentencing was not constructed in a manner that accorded with the decision in Pearce v The Queen.

Orders:

1. Leave to appeal against sentence granted
2. Sentences imposed in the District Court are quashed.
3. Applicant sentenced to fixed terms of imprisonment for 9 months to date from 8 November 2002 for Counts 1 and 2
4. Applicant sentenced to fixed terms of imprisonment for 9 months to date from 8 November 2002 for Counts 3 and 4
5. Applicant sentenced to fixed terms of imprisonment for 12 months to date from 8 November 2002 for Counts 5 and 6
6. Applicant sentence to fixed term of imprisonment for 12 months to date from 8 November 2002 for Count 7.

IN THE COURT OF CRIMINAL APPEAL 60160/03

WOOD CJ at CL SIMPSON J ADAMS J

1 WOOD CJ at CL: The applicant seeks leave to appeal against the sentence which was imposed upon him by his Honour Nash DCJ, in the District Court at Sydney, on 8 November 2002. 2 The applicant, who is aged twenty three years, was arraigned in that Court, on an indictment which contained seven counts laid under s 61J of the Crimes Act 1900 alleging that he had sexual intercourse with his fourteen year old cousin, SP, without her consent, knowing that she was not consenting in circumstances of aggravation. 3 These charges involved three separate groups of offences, the first of which was alleged to have occurred at the applicant's apartment in Chatswood and the second and third of which were alleged to have occurred in the complainant's family home at Epping. 4 The first group of offences involved acts of digital penetration and cunnilingus performed in the applicant's bedroom at the Chatswood apartment, following his instruction to the complainant to lie on his bed, after which he removed her pants and underwear and performed the acts complained of. They gave rise to counts 1 and 2. 5 The second group of offences occurred when, during the night, at a time when other members of the household were either absent from the home or asleep, the applicant entered into the complainant's bedroom at her parents' home and there performed identical acts. They gave rise to counts 3 and 4. 6 The third group involved similar acts which were again committed in the complainant's bedroom, although at this time the applicant additionally required the complainant to perform fellatio upon himself. These acts gave rise to counts 5, 6 and 7. 7 The applicant entered a plea of not guilty to each count and the matter proceeded to trial. Verdicts were returned, in each case, of not guilty of those charges but guilty of the statutory alternative under s 66C(1) of the Crimes Act, namely having sexual intercourse with a person under the age of sixteen years, an offence for which the maximum prescribed penalty is imprisonment for eight years. 8 The applicant was sentenced to an overall term of imprisonment of three years with an effective non-parole period of one and a half years. The sentence was made up as follows:

(a) Counts 1 and 2, each nine months fixed term. (b) Counts 3 and 4, each twelve months fixed term. (c) Counts 5 and 6, each eighteen months fixed term. (d) Count 7, three years imprisonment with a non-parole period of eighteen months. 9 All of these sentences were directed to be served concurrently and, together with the non-parole period, they were directed to commence from the date of sentencing, namely 8 November 2002. 10 Special circumstances were found referable to the applicant's prior good character, and the findings that as a New Zealand resident he would not have the support of his family while in custody, that he was unlikely to re-offend and that by reason of the offences he may face a difficult time in custody.

Pearce v The Queen 11 Prior to framing the sentencing order in a way which his Honour regarded as reflecting the principles of totality, and the decision in Pearce v The Queen (1998) 194 CLR 610, and also as making allowance for what he described as some delay in the arrest of the applicant and the finalisation of the proceedings, he observed that: "If you were facing sentence in respect of the offences contained in each incident separately, appropriate sentences in respect of counts 1 and 2 would be of nine months imprisonment to be served concurrently, in respect of counts 3 and 4 taking into account that the two previous offences had been committed, appropriate sentences should be twelve months in respect of each to be served concurrently and in respect of counts 5, 6 and 7 taking into account that the four previous offences had been committed, appropriate sentences should be in respect of counts 5 and 6, eighteen months imprisonment and in respect of count 7 two years imprisonment, also to be served concurrently." 12 That exercise his Honour stated would have resulted in a total sentence of three years and nine months which he reduced in the way which I have previously mentioned. 13 It may be assumed that, for this part of the exercise, his Honour had accumulated the sentences for the three groups of offences, treating that for the third group as being the sentence for count 7. 14 In relation to the final sentencing order, it is submitted by the applicant, and conceded by the Crown, that his Honour did not correctly apply the principle in Pearce v The Queen. With that submission I would agree. 15 The proper course for his Honour would have been to have fixed sentences that were individually appropriate, and then to have allowed for totality when determining whether they should be served concurrently or cumulatively, taking into account also the question whether they should be regarded as involving a continuing episode of criminality or a discrete offences. 16 It seems to me that his Honour did not approach the exercise in this fashion. Rather what he did was to increase the sentences for the subsequent groups of offences by reason of the earlier offences, thereby arriving at sentences, particularly that set for count 7, which were disproportionate to the gravity of the criminality involved. To that extent I am of the view that error has been shown and that leave to appeal should be granted. 17 I turn therefore to the remaining aspects of complaint which relate essentially to certain factual findings which were made by his Honour, along with the submission that his Honour used those findings in a way which was inappropriate.

Objective Criminality 18 In the course of his reasons for sentence, his Honour observed: "The jury quite clearly accepted beyond reasonable doubt the victim's evidence that the various acts of sexual intercourse as alleged in fact occurred. I have no doubt that the jury also accepted her evidence that she did not consent to any of those acts. I certainly do. However, in view of the actions of the victim the jury were quite entitled to, I have no doubt that they did, conclude that they were not satisfied beyond reasonable doubt that you knew she was not consenting to each of the acts the subject of the charges." 19 It was submitted that his Honour erred in making this finding and taking it into account as an aggravating factor on sentence. 20 The issue of consent was strictly irrelevant, insofar as sexual intercourse with a child under the age of sixteen years is an offence of strict liability. It is not however the case that circumstances surrounding the commission of the offence, including the existence of consent or not, cannot be taken into account in determining the objective criminality of the offender. 21 For example, where the conduct was consensual that might well be taken into account, depending upon the age of the offender and victim, as a circumstance rendering the objective circumstances somewhat less serious. If his Honour had merely been directing his mind to that circumstance, then no error would appear. 22 However, his Honour did not make it at all clear, in the remarks on sentence, as to whether he was confining himself to that issue, or whether he regarded the absence of consent as a circumstance calling for an increase in the sentence. 23 It is appropriate where factual findings are made, in the course of reasons for sentence, that the purpose of those findings be made clear, otherwise there is a risk of uncertainty of the kind which has arisen in this case. 24 As a matter of law, his Honour was not obliged to sentence the offender on the most favourable version of facts, nor was he required to determine the basis upon which the jury had reached its verdict, subject naturally to the constraints that the facts found are consistent with the verdict, and that any facts found adversely to the offender are arrived at beyond reasonable doubt. (See Regina v Isaacs (1997) 41 NSWLR 374 and Cheung v The Queen (2001) 76 ALJR 133). 25 Clearly, it would have been an error for his Honour to have sentenced the applicant for conduct that would have amounted to a s 61J offence since he had been acquitted of that offence. That his Honour was not doing so, is clear from the passage which followed the complained of passage, in which his Honour expressly noted that the applicant stood for sentence in respect of the less serious offences. 26 Ultimately whether or not his Honour took the finding of an absence of consent into account as an aggravating circumstance does need to be considered in relation to the next matter of complaint, and also in the light of the overall sentence. 27 The next matter of complaint is that his Honour also took into account the fact that the applicant had pleaded not guilty, had lied on oath and had conducted a defence which, through his own evidence and cross-examination of the complainant, had advanced the proposition that the complainant had fabricated the allegations, as a circumstance of aggravation. 28 Clearly, if his Honour had done that, then he would have fallen into serious error for the reasons outlined in Siganto v The Queen (1998) 194 CLR 656. It was the following passage in the reasons for sentence, together with his Honour's observation that the jury had rejected the applicant's denials, that formed the basis for this argument: "Naturally, in the course of the evidence at the trial it was put quite strongly and properly on your behalf by Ms Marty that for whatever reason the victim had made it up, that is the allegations, and was a liar. The same sort of cross-examination of course occurred to you. You knew that you had committed these offences but nevertheless were denying them and therefore lying. The victim should at least get some comfort from the fact that the jury accepted her evidence and rejected yours." 29 Those observations do need to be read in context but, again, it is regrettable that his Honour did not make it clear what purpose he had in mind so far as determining an appropriate sentence was concerned. 30 Had his Honour been making those observations simply in the context of noting that the applicant was denied the benefit of contrition and remorse, or that attaching to a plea of guilty, then no error would have been disclosed. Also, had his Honour been making it plain that all he was seeking to do, was to explain to the family what it was that the verdict meant, and in particular to reassure them that the complainant had been believed, then again there would have been no error. However, if his Honour was treating those circumstances as aggravating the criminality of the applicant, then error would have been shown. 31 Again, it appears to me that the proper test as to whether his Honour did take the matter into account inappropriately, does depend upon a consideration of the sentences as a whole.

Sentence Excessive 32 It was submitted, in this regard, that the overall sentence was excessive, and that error was made in not suspending it, having regard to the delay in prosecution, the excellent character and subjective material concerning the applicant, and the circumstance that the offences of which he was convicted could have been determined in the Local Court as summary offences. 33 It was the fact that the complaint was first made in May 2000; that, after being asked to leave the home of the victim's parents, the applicant resigned his employment and returned to New Zealand where he commenced a new business, settled down with a wife and provided considerable assistance to his parents; that he voluntarily returned to Australia in June 2001 when he was arrested; and that he was not tried until September 2002 or sentenced until November 2002. It was also the case that his Honour did regard the applicant as a man who, apart from these matters, had done very well for himself and for the community, had maintained his very good character and was a person who was unlikely to offend again. 34 Additionally, it was the case, had the alternative charges been preferred, rather than the more serious charges under s 61J of the Act, that the proceedings could have been heard in the Local Court with the consequence that the maximum available sentences of imprisonment would have been only two years. 35 It is not correct that his Honour overlooked that latter circumstance, since it was expressly noted by him. Additionally, it is not the case that his Honour overlooked the prior good character of the applicant, or the fact that for a time he had refrained from further offending, even though he had shared a bedroom with the complainant. 36 In this regard, his Honour expressly noted that, while general deterrence needed to be taken into account, he saw no need for the sentence to reflect the interests of personal deterrence. 37 I would not have regarded the delay as exceptional, particularly as that fact also provided the applicant with a chance of reinforcing the evidence of his prior good character. The circumstance that the matter could have been dealt with in the Local Court, did not for the reasons mentioned in Regina v Doan (2000) 50 NSWLR 115 and Regina v Sewell (2002) NSWCCA 453 mean that his Honour was limited to the maximum sentence available in that Court for a single offence. The repetition of the conduct, in the present case, and the serious nature of the offences, particularly that which is the subject of count 7, meant in my view that it was entirely appropriate for the charges to be dealt with on indictment. 38 It is similarly not the case that his Honour neglected to consider the alternatives to full time custody. Express consideration was given to that question and the alternatives were, in my view, properly ruled out by reason of the serious nature of the offences involved. 39 However, I am of the view that overall the sentences were excessive, being outside the proper range of sentencing discretion. In that regard it appears to me that the matters previously mentioned may have caused his Honour to approach the matter in an inappropriate way, so far as this may have led him to regard the applicant's conduct as objectively more serious than was warranted. 40 In my view, leave to appeal against sentence should be granted and the appeal allowed. I would propose that the sentences below be quashed and that in lieu thereof, in relation to counts 1 and 2 that the applicant should be sentenced to fixed terms of imprisonment for nine months to date from 8 November 2002, those sentences to be served concurrently. In relation to each of counts 3 and 4 I propose that the applicant be sentenced similarly to fixed terms of nine months, to be served concurrently and also to date from 8 November 2002. In relation to counts 5 and 6 I would propose that he be sentenced in relation to each count to fixed terms of imprisonment, each of twelve months, to be served concurrently and also to date from 8 November 2002. In relation to the last count, that is count 7, I propose that he be also sentenced to a fixed term of imprisonment for twelve months, to be served from 8 November 2002. 41 In proposing that sentences be fixed terms, I would take the view that this is the appropriate course since I would regard the matters as having been substantially part of a continuing enterprise. As such there is no occasion for there to be an accumulation of sentences. The nature of the offences and the objective criminality is however such that I consider the sentences should involve full time custody. Having regard to the applicant's place of residence, his very favourable prospects for rehabilitation, and the absence of any particular benefit in requiring him to submit to the supervision of an otherwise hard pressed Probation and Parole Service, I see no reason to impose other than fixed terms. 42 SIMPSON J: I agree. 43 ADAMS J: I also agree. 44 WOOD CJ AT CL: The orders of the Court will therefore be as I have proposed.

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