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Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The appellant appeals against the severity of a sentence imposed upon by him on 31 October 2003 consequential upon his plea of guilty to one count of engaging in sexual intercourse with a 13 year old girl on 30 March 2003. He was sentenced to four years imprisonment to be suspended after a period of 12 months upon entering into a good behaviour bond for a term of three years in the sum of $1000.00 and upon condition that he accept supervision of the Director of Adult Corrective Services.

The facts

2. The facts giving rise to the sentence under appeal relate to an incident which occurred after the appellant had picked up the complainant and her friend and taken them for a drive shortly after 10 o’clock at night. The car was parked off the Monaro Highway in a truck stop. After the complainant’s friend left the car the appellant, apparently after some intimacy had taken place, said to the complainant “will you suck my cock”. The complainant said “no” but the request was repeated a number of times and the complainant eventually complied. The complainant later stated that she had been scared at the time, as she had not previously performed an act of this kind. There was no allegation that the appellant had been aware of her fear. The complainant reported the matter to the police at least a month after the incident. The appellant made full admissions but claimed that he had been told that the complainant was 15 years old. He admitted that he knew that it was wrong to have sexual intercourse with a person under 16 but he had not thought about it at the relevant time.

3. The grounds of appeal were directed to the issues as to whether sufficient weight had been given to the appellant’s personal circumstances and to his prospects of rehabilitation and the claim that, in all the circumstances the sentence was manifestly excessive. Amendment to grounds of appeal

4. In the appellants written submissions the appellant raised an issue, which appeared to challenge the sufficiency of the sentencing judge’s reasons for judgment. At the hearing leave was granted to amend the grounds of appeal to add the following further ground- His Honour failed to state, or to adequately state, the reasons for his decision that no sentence, other than a sentence of imprisonment, was appropriate to be passed upon the appellant. Principles governing sentencing appeals

5. The principles upon which a court of appeal acts in sentencing matters are set out in the following two passages from judgments in the High Court and need no further elaboration by this court- The necessity to show error…is fully accepted by courts deciding appeals against sentence…Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts. (Dinsdale v The Queen (2000) 202 CLR 321 at 339-40 per Kirby J, with whom Gaudron and Gummow JJ agreed). Reference is made in House (House v The King (1936) 55 CLR 499) to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residual category of error, which in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In the second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principles, even though where and how is not apparent from the statement of reasons. (Wong v The Queen (2001) 207 CLR 584 at 605 per Gaudron Gummow and Hayne JJ). The errors complained of

6. The error that the appellant sought to identify related to the point taken about the sufficiency of the sentencing judge’s reason for imposing imprisonment. However, a fair reading of those reasons demonstrates that there is no substance in that point, or in the related point that insufficient weight was given to the appellant’s personal circumstances and to his prospects of rehabilitation. The sentencing judge’s reasons

7. The sentencing judge commenced with his findings regarding the circumstances of the offence. He said- It need scarcely be said that this is a serious offence. The prisoner was at the time 26 years of age, some 13 years older than the complainant. Furthermore, the offence was committed at night in circumstances not involving any prior relationship of affection between the prisoner and the complainant. And it was committed in circumstances in which, even if the prisoner had been unaware that the complainant was actually afraid, he should reasonably have anticipated that a situation of that kind would be likely to cause anxiety in a young girl. Furthermore, he persisted even after she had initially refused his request. The law is intended to protect young people from conduct of this kind, and especially from conduct of this kind on the part of people who are significantly older. He then went on to take into account in detail the appellant’s personal circumstances and his prospects of rehabilitation. He noted that the appellant had produced some evidence of good character and that he had no relevant prior convictions. The appellant had made full admissions to the police and entered an early plea of guilty. The appellant had produced evidence from a consultant psychiatrist that indicated that the appellant had elements of mixed personality disorder involving poor impulse control and or occasions, perhaps poor control of anger. His Honour also noted that the appellant’s personal history had to some extent exacerbated the matters referred to by the psychiatrist. It was also noted that the appellant was admitted to a psychiatric ward some time after the offence with symptoms that were attributable to inter alia, the proceedings against him. The appellant’s contention

8. The appellant maintained that the only rationalisation given for the sentence that was imposed is a remark of His Honour that “the circumstances of this offence are too serious for that”. Not only does that submission misconstrue the context in which that remark was made but it also fails to give due regard to the care and consideration that was given by the sentencing judge to the matters referred to above which are pertinent to the question of whether imprisonment was the only penalty appropriate in the circumstance of the case. The sentencing judge’s conclusion

9. At the conclusion of his consideration of the personal factors the sentencing judge said- I take all of these factors into account in considering the appropriate sentence to be imposed. Mr Hockridge has urged me to take the course of imposing a sentence of imprisonment, but wholly suspended it upon condition that he agrees to participate in an adult sex offender program and take any other steps towards rehabilitation that he may be advised to take by the Director of ACT Corrective Services.

10. That demonstrates effectively a conclusion that imprisonment is the only appropriate sentence, a conclusion concurred in by the appellant’s counsel. Further consideration was then given by the sentencing judge to a submission that allowance, should be given for the effect of the appellant’s problems on his ability to control his impulses before determining the appropriateness of a wholly suspended sentence.

11. It is there and in that context that the sentencing judge makes the remark that the appellant submits in the written submissions is the only reason given. The sentencing judge says- Whilst I have taken into account all of the material upon which Mr Hockridge relies, I am not satisfied that it would be appropriate to adopt the course that he suggests. Nor can I accept his alternative submission, which is that it would be adequate to order that any sentence be served by way of weekend detention. The circumstances of this offence are, in my opinion, too serious for that to occur.

12. The appellant’s complaint is that s 345 of the Crimes Act requires reasons to be given and that he was unable to understand why he was required to serve an immediate term of full time imprisonment rather than periodic detention or be ordered to be subject to a wholly suspended term of imprisonment.

13. Section 345 of the Crimes Act provides- (1) A court shall not pass a sentence of imprisonment on any person for an offence against a Territory law unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case. (2) If a court passes a sentence of imprisonment on a person for an offence against a Territory law, the court shall- (a) state the reasons for its decision that no other sentence is appropriate; and (b) cause those reasons to be entered in the records of the court. (3) The failure of a court to comply with the provisions of this section does not invalidate any sentence. (4) This section applies subject to any contrary intention in the law creating the offence. The effect of s 345 of the Crimes Act

14. The reasons required by s 345 of the Crimes Act are concerned with the decision to impose imprisonment as a sentence of last resort. Before either periodic detention or a suspended term of imprisonment are available as sentencing options there must be a determination that imprisonment is the appropriate sentencing option.

15. The option of ordering periodic detention is only available to the court where the court would otherwise sentence the person to a term of imprisonment of not less than 3 months but not more than 24 months (see s 4 of the Periodic Detention Act 1995).

16. The nature of a suspended sentence is one of imprisonment with the option for its suspension. When the concept of suspended sentences were introduced in the United Kingdom Lord Parker CJ said in R v O’Keefe [1969] 2 QB 29 at 32- This Court would like to say as emphatically as can be said that suspended sentences should not be given when, but for the power to give a suspended sentence, a probation order was the proper order to make. After all, a suspended sentence is a sentence of imprisonment. Further, whether the sentence comes into effect or not, it ranks as a conviction, unlike the case where a probation order is made, or a conditional discharge is given. Therefore, it seems to this Court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines, and then say to itself this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence given? To similar effect are the remarks of Mitchell ACJ in R v Palliaer (1983) 35 SASR 569 where she said- The proper approach [to sentencing] was to decide first whether there was any appropriate alternative to imposing a sentence of imprisonment; if the answer to that was in the negative then to decide what was the proper term of imprisonment to be imposed; and then, and only then, to decide whether it would be appropriate or inappropriate to suspend the term of imprisonment.

17. In R v JCE (2000) 120 A Crim R 18 Fitzgerald JA, with whom Whealy and Howie JJ agreed, in considering s. 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which requires the court to not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate, remarked- The legislative intention seems plain. Section 5(1) of the Crimes (Sentencing Procedure) Act requires a court to consider all possible alternatives and be satisfied that no penalty other then imprisonment is appropriate before it sentences an offender to imprisonment, including a sentence of imprisonment which is suspended. A sentence of imprisonment which is suspended is nonetheless a sentence of imprisonment. A sentence of imprisonment, including a sentence of imprisonment, which is suspended, is a heavier sentence than a non-custodial sentence and is inappropriate if a non-custodial sentence, such as a good behaviour bond, is appropriate. He went on to say- A sentencing judge must explain his or her decision. That might require discussion of some other sentencing options with reasons why those options were not adopted. For example, that is implicit in s 5(1) and expressly provided for by s 5(2) of the Crimes (Sentencing Procedure) Act. However, it is obviously unnecessary for every possibility to be discussed in every case. For example, it is unnecessary to explain why community service is not an appropriate sentence for a murderer. Further, the ultimate decision, for example, whether a term of imprisonment should be eight years or nine years, frequently involves a subjective judgment, based on experience as well as information, which cannot be precisely and comprehensively articulated.

18. In this case the reasons for imposing a sentence of imprisonment were clearly set out in the sentencing remarks by setting out the relevant factors under consideration. In dealing with cases where there is an obligation to give reasons McHugh J sitting as a Judge of Appeal in the NSW Court of Appeal observed in Soulemenzis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280- If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. The statement by reference to an essential ground or grounds being formulated was adopted by Gaudron and Gummow JJ in Dinsdale v The Queen (supra) at 329. In Wong v The Queen (supra) Kirby J applied a similar process in the criminal sentence context where sentences are liable to be set aside by an appeal court by requiring that- “The channels of logic” (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 436, per Meagher JA) should normally be displayed so the persons affected, a court to which appeal may lie and the community are aware of the essential chain of reasoning that brought about the judgment a warranted alteration of the sentence that was imposed (at 627). There can be no doubt that the sentencing judge in this case, by taking the particular factors that he identified into account, expressed the essential grounds upon which his decision rested. There was no failure to give reasons nor any question which arises as to their adequacy. Similar Cases

19. Finally it was suggested in the appellants written submission that a number of cases decided in this jurisdiction indicated that a sentence of imprisonment was not appropriate. That contention was not pressed on the appeal nor does it have any force.

20. It may be noted that in respect of the cases referred to by the appellant’s counsel and the Director of Public Prosecutions the norm appears to be a sentence of imprisonment albeit suspended and sometimes wholly suspended rather than any lesser sentencing option. Further, if the appellant’s submissions were confined, as they were at the hearing, to seeking the suspension of the whole term of what is considered the appropriate term of imprisonment, that submission also derives no real support from the cases referred to.

21. A review of the terms of imprisonment considered appropriate in those cases indicates that the sentence is within the range that might be expected to be imposed for an offence that contained the factors referred to by the sentencing judge. In the context of a sentence of 4 years imprisonment the suspension of such a sentence after serving only 12 months may be considered as extending considerable leniency to the appellant.

22. It is for these reasons that, at the hearing of this matter on 16 February 2004, the Court dismissed the appeal.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 25 February 2004

Counsel for the Appellant: Mr A Doig

Solicitor for the Appellant: Legal Aid Office (ACT)

Counsel for the Respondent: Mr R Refshauge SC

Solicitor for the Respondent: Director of Public Prosecutions (ACT)

Date of order: 16 February 2004

Date of judgment: 25 February 2004

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