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[2017] ACTCA 17
Court of Appeal (ACT)
2017-05-09
Refshauge, Burns and Rangiah JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Singh v The Queen
Citation: [2017] ACTCA 17
Hearing Date: 1 November 2016
Decision Date: 9 May 2017
Before: Refshauge, Burns and Rangiah JJ
Decision: 1. The appeal be upheld.
(d) for the offence of unlawful confinement, three years imprisonment to commence on 11 August 2015.
(e) for the second offence of sexual intercourse without consent, five years imprisonment to commence on 11 August 2014. 3. A non parole period be set to commence on 11 October 2013 and end on 10 August 2017.
Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – co-offenders for offences – whether sentence was manifestly excessive – abducting another person by force – unlawfully confining or imprisoning another person – committing an act of indecency on another person without consent – engaging in sexual intercourse with another person without consent – parity of sentences with co-offender – appropriate distinction in the culpability – re-sentence
Legislation Cited: Crimes Act 1900 (ACT), ss 34, 54(1), 60(1), 63 Crimes (Sentencing) Act 2005 (ACT), s 49 Supreme Court Act 1933 (ACT), s 37E
Court Procedure Rules 2006 (ACT), r 5510
Cases Cited: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 House v The King (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Quzag v The Queen (No 4) [2016] ACTCA 27 Rubino v The Queen [2015] ACTCA 22 R v Morse (1979) 23 SASR 98 R v Toumo’ua [2017] ACTCA 9 R v TW [2011] ACTCA 25; 6 ACTLR 18 R v Williams [2016] ACTSC 389 Singh v The Queen [2015] ACTCA 65 Williams v The Queen [2016] ACTCA 15; 75 MVR 482
Parties: Randhir Singh (Appellant) The Queen (Respondent)
Representation: Counsel Mr J Sabharwal (Appellant) Ms M Jones (Respondent)
Solicitors On London Legal (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number: ACTCA 4 of 2016
Decision under appeal: Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Rares J Date of Decision: 22 September 2014 Case Title: R v Randhir Singh; R v Agitpal Singh Citation: [2014] ACTSC 250
THE COURT:
On 26 September 2013, the appellant, Randhir Singh, and his co-offender, Ajiptal Singh, kidnapped a woman and took her to an apartment where they committed various sexual acts on her.
They were later arrested and charged with various offences arising from the incidents on that date. They pleaded not guilty to the charges, but, on 8 September 2014, a jury found them guilty. The appellant was convicted, jointly with his co-offender, of abducting the victim with intent to have sexual intercourse with her. He was also convicted of unlawfully confining the victim, committing an act of indecency on her, and two counts of engaging in sexual intercourse with her without her consent.
On 22 September 2014, the appellant was sentenced to a total head sentence of eight years imprisonment with a non parole period of five years and six months.
On 5 April 2016, he appealed against the sentence on the sole ground that it was manifestly excessive in all the circumstances.
The appeal should be upheld and the appellant re-sentenced for the following reasons.
Jurisdiction
This Court has jurisdiction to hear and determine appeals against sentences imposed by judges of this Court under s 37E of the Supreme Court Act 1933 (ACT).
An appeal from a sentence is an appeal from a discretionary decision of the sentencing Judge. The principles to be applied in such appeals are well settled and well-known.
On the appeal, the appellant must demonstrate an error in the exercise of the discretion; the Court is not entitled to substitute its own opinion for that of the sentencing Judge merely because it would have imposed a different sentence. As the High Court pointed out in Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 672; [15], the discretion which the law commits to a sentencing Judge “is of vital importance in the administration of our system of criminal justice.”
The errors to which an appellant may point are set out by the High Court in House v The King (1936) 55 CLR 499 at 504-5. On the one hand, there may be specific errors, that is, if the sentence is infected by application of a wrong principle, by the consideration of extraneous or irrelevant matters, or by a mistake about the facts.
Even if specific error cannot be demonstrated, error may be inferred because the sentence is unreasonable or plainly unjust. A sentence will be unreasonable or plainly unjust where it is manifestly inadequate or excessive: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 371; [25].
Gleeson CJ and Hayne J pointed out in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325; [6] that whether a sentence is manifestly excessive or inadequate is a conclusion which can only be drawn if the excess or inadequacy of the sentence is plainly apparent.
The task faced by such an appellant has been described by this Court in R v TW [2011] ACTCA 25; 6 ACTLR 18 at 27-8; [60]-[61], an approach that has been followed in this Court on many occasions.
Of course, the question of whether a sentence is manifestly excessive or inadequate will need to be considered in the context of the statutory maximum penalty which serves as an indication of the relative seriousness of the offence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133; [31]. The maximum penalty is reserved for the “worst possible case”: Markarian v The Queen at 372; [31].
The offences
Abducting another person by force is an offence contrary to s 63 of the Crimes Act 1900 (ACT), which provides for a maximum penalty of 10 years imprisonment.
Unlawfully confining or imprisoning another person is prohibited by s 34 of the Crimes Act and attracts a maximum penalty also of 10 years imprisonment.
Committing an act of indecency on another person without consent is an offence against s 60(1) of the Crimes Act which renders the offender liable to a maximum penalty of 7 years imprisonment.
Finally, engaging in sexual intercourse with another person without consent contravenes s 54(1) of the Crimes Act which specifies a maximum penalty of 12 years imprisonment. It is, therefore, the most serious of these offences.
It is, however, important to bear in mind, as the High Court pointed out in Ibbs v The Queen (1987) 163 CLR 447 at 451-2, that where the range of ways and circumstances under which a particular offence can be committed is wide, the heinousness of the offence depends not merely on the statutory definition of the offence, but on the facts of the case.
The facts
In this case, it is not necessary to rehearse the facts in detail.
The victim of the offences had discovered that her husband had been having an affair and she felt isolated and vulnerable. She engaged in social media contact with the appellant through the phone application “Tango”.
The messages became more sexually explicit. Unknown to the victim, the appellant had been sharing the communications with the co-offender and another male. When asked by the appellant, however, the victim did not agree to engage in “threesome sex”.
The victim and appellant agreed to meet on 26 September 2013 at a shopping centre and, when she got to the agreed meeting place, the victim saw the appellant, whom she recognised because of his turban, sitting in a car with two other males, being the co-offender and the third male. Instead of going to the agreed meeting place, she went inside the shopping centre. The appellant followed her and spoke to her. She said that she had changed her mind and did not want to have sex with him.
After discussion with the others, the appellant urged her again to come with him as arranged. The appellant, however, could still not persuade her, so he phoned the co-offender who joined them and threatened the victim that he would show her husband the text messages. They pressured the victim by stating that they may involve her son by also showing him the messages.
The victim, described by the sentencing Judge as “in effect ... blackmailed ... against her will”, agreed to go with the appellant, but him alone, as long as he agreed not to show the text messages to her husband. She said that they were forcing her to do this.
These events constituted the count of abduction.
Arrangements were made by the co-offender for a separate car to be obtained, but, unknown to the victim, this was so the co-offender and a third male could also go to the apartment they were to use for the sexual encounters. The appellant and victim drove there alone.
On the way to the apartment, the appellant asked and then applied some force to the victim to cause her to perform fellatio on him. It was of short duration. This was the first act of sexual intercourse without consent. The sentencing Judge described the act as “of short duration” but “not, however, minor”, especially as she could not leave, being in a moving car.
When they arrived at the underground car park for the apartment, the appellant told the victim that he wanted to have sex with her in the car. He pulled his pants down to some extent but was not able to position himself so that he could penetrate her. The victim felt his erect penis on her knees. This was the count of committing an act of indecency without consent.
When he realised that he could not have sexual intercourse with the victim in the car, the appellant got dressed and took her to the lift. The third male was, at this stage, in the car park and the three took the lift and entered the apartment. The victim repeatedly asked the appellant to let her go and that she had only agreed to go with him, not any others.
The appellant took the victim into a bedroom and still refused to let her go. At this stage, there was, as well as the third male, a fourth male in the apartment and, as a result, the appellant knew that the victim could be unable to leave unless he let her go, which was not his intention. This was the count of unlawful confinement.
In the bedroom, the appellant tried to kiss the victim but she told him she did not like it. He then guided her to the bed, pulled her pants down and got her to lie down. He undressed, lying on top of her and had penile/vaginal intercourse with her until he ejaculated. The sentencing Judge estimated that it lasted for approximately 10 minutes. This was the second count of engaging in sexual intercourse without consent.
The co-offender also unlawfully confined the victim, when he found her trying to hide in a cupboard in the bedroom, obviously distressed and crying loudly. He then engaged in penile/vaginal intercourse with the victim without her consent, while she was crying loudly.
During this act of intercourse, the bed collapsed. Nevertheless, the co-offender then asked the victim to get on top of him, but, when she refused, he forced her to face toward the broken foot of the bed, positioned himself behind her and, from that position, had penile/vaginal intercourse with her again.
He then had penile/anal intercourse with her, though the victim said that it was painful; he inserted his penis twice into her anus, causing her pain.
In describing the offences, the sentencing Judge engaged in a complex identification of where on a scale of seriousness the offences fell. As the Court of Appeal said in R v Toumo’ua [2017] ACTCA 9 at [24], such references:
are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case. Subjective circumstances
The appellant was an Indian national, 20 years old at the time of the offending.
He arrived in Australia in July 2013. His sister and her family lived in Canberra, but he enrolled in an educational institution in Queensland, intending to study for a Diploma in Management.
He experienced anxiety and depression and, when he visited his sister later in July, he consulted a general practitioner, who recommended that he move to Canberra to address his mental health.
He did so and gained employment as a trolley-collector with his co-offender, also an Indian national, who operated a significant trolley collecting business in Canberra.
The appellant’s family live in a small village in India and news of his arrest and conviction has spread through social media. His parents are in frail health; his mother is gravely ill. His father lost his assets in flooding in 2013. The appellant is close to his parents, but his incarceration makes communication with them difficult.
Despite experiencing bullying and bashing and being the subject of racist remarks while he has been in custody, the appellant has undertaken a number of courses and programs in prison and told the sentencing Judge that he had learnt from his mistake. He wanted to participate in the sex offender’s program and undertake further courses in prison to become a better person.
At the time of the appeal, the appellant had completed the Adult Sex Offender’s Program while in custody. This is likely to reduce his chance of recidivism and is to his credit.
He has no prior criminal record at all.
The sentencing Judge commented:
I am satisfied that he will suffer some hardship while in prison because of his inability to have contact with his family at home in India. He has reasonable prospects of rehabilitation and has shown some insight by acknowledging that what he did was unacceptable. The co-offender
It is appropriate to make brief reference to the subjective circumstances of the co-offender. He was, at the time of the offences, older than the appellant; he was 31 years old. He was the appellant’s employer and boss.
He had what the sentencing Judge described as “a small criminal history”; it included two offences of drink driving, an offence of driving whilst disqualified and another minor traffic offence in the ACT, and offences of assault and stalking in New South Wales.
He came from a poor family in India and obtained a trade certificate as a boiler maker. He entered into an arranged marriage but it “unravelled” when the couple came to Australia in 2008 and they subsequently divorced. The NSW offences were committed following the break-up of a relationship in Sydney. He then commenced a relationship with a Canberra woman but that had deteriorated by the time the offences were committed.
He was an entrepreneur, starting his own business which enabled him to send funds to his family in India. He, too, had experienced bullying and racism while in custody. He, too, wished to participate in a sex offender’s program.
Victim Impact Statement
The victim provided a victim impact statement as she was entitled to do under s 49 of the Crimes (Sentencing) Act 2005 (ACT). A copy was in the Appeal Book. It shows a heightened fear the offences have caused her, leading to her isolating herself, losing her only friend and suffering from shame and guilt.
The sentencing Judge noted these fears and that the offences had “made her more withdrawn from the community”. The sentence
The sentencing Judge, after reciting the penalties for the offences, the background to the offences, a careful description of the offences and a statement of the personal circumstances of each of the appellant and co-offender, considered the appropriate sentence.
His Honour formed the view that it was important to denounce the offending and to deter others. His Honour described each offence as serious and concluded that only a sentence of full-time custody was appropriate. His Honour held that the offences formed part of an entire course of conduct which justified a significant degree of concurrency.
So far as the appellant was concerned, his Honour accepted that relevant matters included that these were his first offences, he was relatively young and that his boss was the co-offender, so that he felt somewhat under his influence. He had, however, chosen to involve the co-offender by showing to him texts he had exchanged with the victim.
His Honour was satisfied that the co-offender would be unlikely to be able to return to his home in India because of the shame his offending had caused. His Honour was satisfied that he was the ringleader and, indeed, suggested the “threesome sex”.
His Honour then proceeded to impose the following sentences.
Sentences imposed on the appellant:
Count Offence Crimes Maximum Sentence Act Penalty (accumulation)
1 Abduction (joint s 63 10 years 6 years commission)
3 Sexual intercourse s 54 12 years 5 years (+9 months) without consent
4 Act of indecency s 60 7 years 2.5 years (+3 months) without consent
5 Unlawful confinement s 34 10 years 6 years (+6 months)
6 Sexual intercourse s 54 12 years 7 years (+6 months) without consent
Head sentence: 8 years (11 October 2013 – 10 October 2021)
Non parole period: 5.5 years (11 October 2013 – 10 April 2019) Sentences imposed on the co-offender
Count Offence Crimes Maximum Sentence Act Penalty (accumulation)
1 Abduction (joint s 63 10 years 7 years commission)
9 Sexual intercourse s 54 12 years 8 years (+1 year) without consent
10 Sexual intercourse s 54 12 years 8 years (+1 year) without consent
11 Sexual intercourse s 54 12 years 10 years (+2 years) without consent
7 Unlawful confinement s 34 10 years 8.5 years (+1 year)
Head sentence: 12 years (11 October 2013 – 10 October 2025)
Non parole period: 8 years (11 October 2013 – 10 April 2021)
Co-offender’s appeal
The appellant’s co-offender appealed against the sentences imposed. On 22 December 2015, the Court of Appeal upheld the appeal: Singh v The Queen [2015] ACTCA 65.
The grounds of the appeal were:
(a) the individual sentences are manifestly excessive; (b) the overall sentence does not properly reflect the principle of totality; (c) the sentences do not properly reflect the principles applicable to the setting of a non-parole [sic] period; and (d) the sentences do not reflect the proper application of the parity principle.
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
Consequently, the appellant’s submissions examined each count by reference to the objective seriousness of the conduct, the available maximum penalty, and, to the extent possible, the current sentencing patterns applicable to offences of the type.
Sentencing is a discretionary judgement and there is no single correct sentence for an offender and an offence.
While some of the offences were specific to the co-offender, the reasons in relation to those offences were, in some cases, also applicable to offences of which the appellant had been convicted.
The abduction offence was a joint offence, committed by both the offender and co-offender. The Court of Appeal rejected the appellant’s challenge to the sentencing Judge’s approach to any premeditation associated with that offence, finding that his Honour did not find that the abduction was premeditated.
The Court of Appeal was, however, concerned at two matters. In the first place, the Court (at [90]), expressed concern that his Honour did not refer to sentencing practice for cases of this nature.
Secondly, the Court considered that his Honour did not make a distinction between the pressures applied to the victim to come to the apartment and the events that took place there. The Court of Appeal commented (at [91]-[92]):
... That is not an easy distinction to make. Many cases in which an offender engages in sexual intercourse without consent involve the forcible taking of the victim to the place of the offence. In those cases the forcible abduction is taken into account in sentencing as part of the circumstances of the sexual assault. Regularly there is no separate charge relating to the process by which the victim is brought to the place of the offence. That is not to say there is no separate criminality in the abduction. But it does warn against penalising the offender twice for the same criminal conduct. 92. When the circumstances of the abduction are separated from the sexual assaults which occurred as a result of it, and when regard is had to sentencing patterns in abduction cases, the sentence imposed by the primary judge on the appellant for Count 1 was unreasonable and plainly unjust.
It is, of course, necessary to approach this distinction carefully for the reasons that flow from what the High Court said in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623; [40].
This finding that the co-offender’s challenge to the sentence on this ground had been made out is entirely relevant to the sentence imposed on the appellant for this offence.
There were separate counts of unlawful confinement preferred against the appellant and the co-offender for separate periods and in somewhat different circumstances. Nevertheless, the approach to the offence committed by the co-offender and the sentence imposed for it is relevant to the like offence committed by the appellant and the sentence to be imposed for it.
Here again, the Court of Appeal was concerned about the consideration of the offence itself rather than facts that were particular to the two offences, though the comments made it clear that the seriousness of the offence committed by the co-offender was somewhat greater than that committed by the appellant.
The Court of Appeal expressed its views in the following paragraphs. It is to be noted that references in them to “appellant” is, of course, to the person whom in these reasons is described as the co-offender. The appellant in these reasons is referred to in the extract below by his name, Randhir Singh. The Court of Appeal said:
Just as in the case of the abduction offence, the threat made by the appellant to the complainant to reveal the text messages to her husband was cruel. The circumstances of the confinement in the apartment were more threatening and distressing to the complainant. There was the addition of the threat to reveal the photo taken by [the fourth male], and there was the circumstance that Randhir Singh had already engaged in sexual intercourse with the complainant without her consent. The complainant had become more distressed as the ordeal went on. The appellant knew that he was continuing and prolonging the distress of the complainant. 112. But, as in the case of the abduction offence, the primary judge did not refer to sentencing patterns in such cases. Counsel for the appellant referred to more cases in this category than in the category of abduction cases. Most of the cases referred to involved sentences of less than half the sentence imposed in this case and those cases were no less serious than the present. Even in the extreme circumstances of the confinement in Catanzariti a sentence of four years imprisonment was imposed. 113. There is force in the contention of counsel for the appellant that the very heavy sentence imposed by the primary judge suggests that there was too much regard given to the offences which occurred during the period of confinement when fixing the sentence. Just as in the case of the abduction offence, it is necessary to draw a distinction between the criminality involved in the confinement and the criminality involved in the offences committed in the course of the confinement. Otherwise, the offender will be punished twice for the same conduct. As in the case of the abduction offence, confinement is often an element in the criminality of the offence of engaging in sexual intercourse without consent. Regularly, offenders are charged with the offence of engaging in sexual intercourse without consent but not additionally charged with confining the victim in order to commit the offence. The confinement is taken into account in sentencing as part of the culpability of the offender for the sexual assault. Thus, when the confinement offence is separated from the offences which occurred during the period of confinement, and sentencing patterns in confinement type cases are considered, we regard the sentence imposed by the primary judge on the appellant for Count 7 as unreasonable and plainly unjust.
Again, this finding that the challenge was made out is very relevant to the sentence imposed on the appellant for the equivalent offence.
It is only necessary to refer briefly to the offences of engaging in sexual intercourse without consent. While the appellant and the co-offender committed different offences, the approach of the Court of Appeal to sentencing for the offences committed by the co-offender is highly relevant to the principles and approach to be applied to the sentences imposed on the appellant.
In particular, the Court of Appeal considered at [127]-[128], that:
the offences committed by the co-offender occurred over about one and a half hours, being considerably more than those of the appellant, which were described by the sentencing Judge as “not of long duration”;
the offences were committed by the co-offender after the two acts of sexual intercourse in which the appellant had already engaged with her; thereby the co-offender “continued her ordeal”; the co-offender told the victim of the “control that he exercised over the other men in the apartment”, making it clear she had no way out and this aggravated the sexual assaults; and
the sentencing Judge did not refer to sentencing practice, which showed that only offences that were much more serious than the charged offences had been sentenced to terms of imprisonment approaching in length those imposed on the co-offender.
The Court of Appeal was asked to address issues of concurrency, accumulation and totality on the non parole period. Given that the Court of Appeal proposed to re-sentence the co-offender, it was not necessary for it to consider these matters in any detail.
The Court of Appeal was also asked to consider the issue of parity. The principle is clearly stated in Postiglione v The Queen (1997) 189 CLR 295 at 301-2 when Dawson and Gaudron JJ said:
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (Footnotes omitted)
See also Rubino v The Queen [2015] ACTCA 22 at [26]; Quzag v The Queen (No 4) [2016] ACTCA 27 at [49]; Williams v The Queen [2016] ACTCA 15; 75 MVR 482 at 496-7; [60]-[65].
The co-offender had argued that the sentencing Judge extended greater leniency to the appellant which, it was submitted, was not warranted.
The Crown, however, submitted to the Court of Appeal in the co-offender’s appeal that the differences were justified and listed seven significant matters to justify that.
The Court of Appeal generally accepted the Crown’s case and the findings of the sentencing Judge. It suggested, however, that the sentencing Judge may have been more generous than was appropriate in the differential he recognised should be expressed in the sentence imposed on each of the offenders. The Court of Appeal said at [166]:
There were aspects of the appellant's offending which made his conduct more culpable than the conduct of Randhir Singh. The primary judge said that the appellant was marginally more culpable for the joint offence than Randhir Singh by reason of his age and that he was the employer of Randhir Singh. That observation followed from the primary judge’s view formed from hearing the evidence and sitting through the trial. His Honour's assessment should be accorded some deference. Further, the appellant made the threats to the complainant at the shopping centre which forced her to go with Randhir Singh. And the sexual assaults were committed by the appellant in more distressing circumstances to the complainant because they came after Randhir Singh had committed the earlier sexual assaults on her. Importantly, the appellant demonstrated no remorse, whilst Randhir Singh did. The totality of the sentence imposed on the appellant should reflect a somewhat greater culpability on the appellant. However, the differential applied by the primary judge between the two offenders overemphasised to an unreasonable degree the culpability of the appellant compared with the culpability of Randhir Singh.
Again, references in that paragraph to the appellant are to the person who in these reasons is referred to as the co-offender, and Randhir Singh is, of course, the appellant in these proceedings.
Accordingly, the Court of Appeal also upheld the appeal against the sentences imposed on the co-offender.
The Court of Appeal then re-sentenced the co-offender, at [167]-[168], as follows:
Count Offence Sentence Accumulation
1 Abduction (joint 3 years Base commission)
7 Unlawful confinement 4 years +1 year
9 Sexual intercourse 5 years +1 year without consent
10 Sexual intercourse 5 years +1 ½ years without consent
11 Sexual intercourse 6 years +2 years without consent
The head sentence is eight and a half years’ imprisonment. We set a non-parole [sic] period of five years to reflect the fact that, as the appellant has no significant prior criminal record and no history of imprisonment, there are reasonable prospects of rehabilitation. The appeal
As noted above (at [4]), the appellant challenged the sentences on the ground that they were manifestly excessive.
The Notice of Appeal was filed well after the Court of Appeal had delivered its decision as to the appeal commenced by the co-offender.
The Acting Registrar granted leave to the appellant to appeal out of time under r 5510 of the Court Procedure Rules 2006 (ACT). The Director of Public Prosecutions did not oppose the grant of leave.
It is clear that the real issue was that the decision of the Court of Appeal meant that the sentences imposed on the appellant were now to be seen as manifestly excessive.
In part, this relied on a question of parity. Arguably, this may be a specific error, but it is not necessary in these proceedings to address whether that is so. The findings of the Court of Appeal and in its reasoning show, at least in the case of the offences of abduction and unlawful confinement, that the sentences imposed on the appellant were manifestly excessive.
Rather curiously, the Crown in this appeal took a different view of parity than it had before the Court of Appeal in the co-offender’s appeal. As noted above (at [76]), the Crown had argued that the differences were justified and referred to the following factors:
(a) The co-offender was the ring leader of the plot. With regard to count 1, it was the co-offender who went into the shopping centre and threatened the victim when it looked as though she may not go with the appellant. The co-offender then arranged for a second car to be brought to the location as part of a deception to have the victim accompany the appellant. His was the dominant role in carrying out count 1.
(b) The sexual acts by the appellant were of far shorter duration (10 minutes as opposed to an hour and a half) and the period of unlawful confinement by the appellant was thus also far shorter.
(c) During the unlawful confinement by the co-offender, he continued to intimidate the victim about the text messages and with photos taken by the fourth male and with a suggestion he would take her to Sydney.
(d) During the sexual acts and unlawful confinement by the co-offender, the victim was visibly more distressed. Her evidence was she was struggling, crying loudly, and continued to beg to be released.
(e) The victim’s evidence was that the appellant was ‘gentle’ with her whereas the co-offender was not. The co-offender’s sex acts were very humiliating and more painful to the victim than those of the appellant, in particular the anal penetration in count 11.
(f) The co-offender showed little or no remorse into his offending and in his evidence at the sentencing hearing continued to deny the seriousness of his offending. Contrarily, the appellant wrote a statement to the sentencing Judge in which he apologised for his offending.
(g) The co-offender was about 10 years older than the appellant and had a criminal history, albeit a fairly short one, whereas the appellant was not known to the authorities.
These are relevant factors and justified the finding of the Court of Appeal, noted above (at [77]), that some aspects of the co-offender’s conduct made him more culpable than the appellant.
In this appeal, the Crown did not refer to any of these matters in its submissions. It did concede “that the co-offender’s offences were objectively serious justifying heavier sentences on him”, but submitted that the Court should not replicate the disparity in sentences imposed by the sentencing Judge. In so submitting, the Crown relied on the following matters:
It was the appellant who first made contact with the complainant. When the complainant indicated at the shopping centre that she did not want to go with him, the appellant did not walk away and leave her alone – rather he went back to [the co-offender], where they agreed that the appellant would return and try to persuade the complainant to come with him, and if she refused [the co-offender] would come into the shopping centre and tell the complainant he would show the text messages she had exchanged with the appellant to her husband and son. The appellant after failing to change the complainant’s mind, phoned [the co-offender]. The appellant must have known what [the co-offender] would do to coerce the complainant to go with the appellant. The complainant made it clear to the appellant that that she was only going to go with him (and him alone) because of the threat to show the messages – she made it clear she did not want to go of her own free will. The appellant then contacted [the co-offender] to organise a car, and spent 45 minutes communicating with [the co-offender] while the arrangements were being made. The appellant and [the co-offender] both intended that they and [the fourth male] would be at the apartment where the complainant was taken to. On the way (and when he was not under the direction of [the co-offender] the appellant forced the complainant to perform fellatio upon him (count 3). This was followed by the appellant rubbing his erect penis on the complainant in the car park, again, in the absence of [the co-offender] and therefore not under his direct influence (count 4). The appellant took her up to the apartment knowing there were other men present and knowing that [the co-offender] would soon arrive. The appellant then engaged in sexual intercourse with the complainant, without her consent, knowing she was not consenting, in which he ejaculated, and did not use a condom, thus exposing the complainant to the risk of pregnancy and an STD (count 6) ... The complainant, aware there were other men present, then begged the appellant to let her go. The appellant did nothing to assist the complainant. While she was crying, he picked up his clothes and said ‘sorry’ and walked out. The complainant was then sexually assaulted over one and half hours by [the co-offender], including having to endure anal intercourse. The complainant gave evidence that during the th ordeal she considered jumping out of the window (which was on the 14 floor). Consideration
There is no doubt that the sentences imposed on the appellant were manifestly excessive for the reasons given by the Court of Appeal in Singh v The Queen. The sentences need to be adjusted.
It is also clear that there is some appropriate difference in the culpability of the appellant as compared to that of the co-offender.
The offences were serious, committed on a defenceless victim and constituting a grave invasion of her bodily integrity. The application of proper sentencing principles required a severe sentence to punish the appellant, to deter others who might be inclined to offend in this way, to denounce the conduct as unacceptable in our community and to recognise the substantial harm done to the victim.
Nevertheless, as with all sentences, they must not be disproportionate to the criminality actually committed; they must be just and adequate.
There is an appropriate distinction to be made between the culpability of the appellant and the co-offender. While the appellant had the initial contact with the victim on the Tango application, there is no suggestion that he was doing so in contemplation of any of the offences.
While the co-offender clearly made the more serious threats to the victim at the shopping centre, it was all part of the same effort by both offenders to take the victim to the apartment where they could engage in sexual intercourse with her.
The unlawful confinement of the victim by the appellant was for a shorter duration than that of the co-offender. That is a relevant consideration: R v Williams [2016] ACTSC 389 at [53].
The co-offender’s sexual conduct was more serious than that of the appellant for the reasons advanced by the Crown on the co-offender’s appeal, none of which reasons were abandoned or undermined by the matters to which the Crown referred on this appeal.
Taking all the relevant factors into account, the proper sentences are:
(a) Count 1 – abduction (joint commission): three years imprisonment to commence on 11 October 2013;
(b) Count 3 – first offence of sexual intercourse without consent: four years imprisonment to commence on 11 October 2013 that is to be cumulative as to 12 months on the sentence for abduction;
(c) Count 4 – act of indecency without consent: two years and six months imprisonment to commence on 11 August 2015, that is to be cumulative as to four months on the sentence for the first count of sexual intercourse without consent;
(d) Count 5 – unlawful confinement: three years imprisonment to commence on 11 August 2015 that is to be cumulative as to six months on the sentence for committing an act of indecency without consent;
(e) Count 6 – second offence of sexual intercourse without consent: five years imprisonment to commence on 11 August 2014, that is to be cumulative as to 12 months on the sentence for the offence of unlawful confinement.
That is a total sentence of five years and 10 months. A non parole period should be set for three years and 10 months to commence on 11 October 2013 and end on 10 August 2017.
The Court will so order.
I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment the Court.
Associate:
Date: 9 May 2017
Singh
The Queen [2017] ACTCA 17
(1936) 55 CLR 499
(1987) 163 CLR 447
(1997) 189 CLR 295
(1979) 23 SASR 98