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Parties: The Queen (Appellant) Aaron John Miller (Respondent)

Representation: Counsel M Jones (Appellant) J Sabharwal (Respondent)

Solicitors ACT DPP (Appellant) Sharman & Robertson (Respondent)

File Number: ACTCA 6 of 2019

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 8 February 2019 Case Title: R v Miller Citation: [2019] ACTSC 18

BURNS AND LOUKAS-KARLSSON JJ

1. On 21 November 2018 the respondent entered a plea of guilty to one count on an indictment dated 12 September 2018 alleging that between 12 and 15 January 2018 the respondent had engaged in sexual intercourse with CB without her consent, and at the time was reckless as to whether she was consenting. The offence is one contrary to s 54(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 12 years’ imprisonment.

2. On 8 February 2019 the respondent was sentenced by the primary judge to a term of 2 years’ imprisonment, which was fully suspended with a Good Behaviour Order for a period of two years with a condition that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or that person’s delegate for that period of two years or such lesser period as deemed appropriate by the Director-General. There was an additional condition that the respondent was to engage in such programs as decided by the Director-General in respect of alcohol abuse.

3. The Crown appeals from the orders made by the primary judge. The grounds of appeal are:

(a) the primary judge erred in failing to assess the objective seriousness of the offence; and

(b) the sentence imposed is manifestly inadequate.

4. With regard to the second ground of appeal, the Crown made it clear that it did not submit that the sentence of two years’ imprisonment was manifestly inadequate. Its complaint was solely with respect to the sentence being fully suspended.

Principles relevant to Crown sentence appeals

5. The principles relevant to the present appeal are not in dispute. This Court in R v Avery [2018] ACTCA 57 (‘Avery’), at [6], summarised the relevant principles as follows:

(a) Although s 37E of the Supreme Court Act permits an appeal to the Court of Appeal from any order of the Supreme Court, courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly. (b) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle. (c) Examples of the occasions for the bringing of a Crown appeal are: (i) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (ii) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person; (iii) to enable the courts to establish and maintain adequate standards of punishment for crime; (iv) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (v) to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that public confidence in the administration of justice can be maintained; and (vi) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing. (d) The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown. (e) In resentencing after a successful Crown appeal, the Court is bound to consider the matters set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) and impose a sentence that was appropriate in the first place.

The facts

6. An agreed Statement of Facts was placed before the primary judge, and as such the primary judge was not called upon to determine any factual disputes. The complainant was employed as an escort at premises in Fyshwick known as Tiffany’s Palace. At about 11:10 pm on 13 January 2018 the respondent attended those premises in an intoxicated state. In an introduction room within those premises he was introduced to three escorts, one of whom was the complainant. During her introduction, the complainant told the respondent that a standard session with her included a massage, oral sex and sexual intercourse. The complainant would provide extra services for an additional fee. The complainant, however, explicitly told the respondent that she did not engage in any anal activity and would not do any “butt stuff” or “butt play”. The complainant expressly told the respondent that he was not to do anything which was off-limits, and the respondent acknowledged this. The respondent indicated that he wished to employ the services of the complainant, and paid the required fee to the receptionist. At this point, the complainant reiterated that she would not engage in any anal activity.

7. Subsequently, the complainant and the respondent engaged in sexual activity in one of the rooms of the premises. During the course of this activity, the respondent told the complainant that he wanted “her to be his” and wanted her to come home with him. He became annoyed when she declined. Later, while the complainant was engaged in fellatio, the respondent grabbed the complainant’s hair and pulled, causing the complainant to protest that he was pulling her hair too roughly. The respondent rolled his eyes and continued to pull her hair and to push her head onto his penis roughly despite the complaints of the complainant.

8. The complainant moved to straddle the respondent and as she sat astride him he slapped her left breast, causing pain and redness to her breast. The complainant told the respondent that this had hurt and to not do it again. The respondent said that he had not hit her too hard and again slapped her left breast, causing pain and redness. The complainant warned the respondent that if he did that again he would be taken out of the establishment. In response, he rolled his eyes, grabbed the complainant by the throat, placed his hand over her mouth and told her to “shut the fuck up”. The respondent then lay on his back with the complainant on top of him. The complainant noticed that the condom which the respondent was wearing was coming off, and reached over for another condom on the bedside table. In doing so, her genital area was directly above the respondent’s head. The respondent then began to lick the complainant’s vulva. He licked from the front of her vulva backwards and then licked her anal sphincter. The complainant told the respondent to stop as she did not like that, and reminded him that “no butt stuff” was permitted. Despite this warning, the respondent again licked the complainant from the front of her vulva backwards and then licked her anal sphincter.

9. The complainant told the respondent to stop and that this was his final warning, otherwise he would be ejected from the establishment. The respondent then licked the complainant’s vulva and inserted his finger into her anus to about the first knuckle. The insertion of his finger into the complainant’s anus was the basis of the charge of sexual intercourse without consent. The complainant immediately moved away from the respondent and told him to leave. The respondent became angry, rolled his eyes, got off the bed and said “I’m not fucking here for this. I’m not here to be talked to like this”.

10. The complainant was yelling and crying, and told the respondent that she was doing her job and just wanted to be safe. She told the respondent to leave. She then walked out of the room and into the reception area, where she told the receptionist to “get rid of” the respondent. At this time, the complainant was naked and visibly distraught. The respondent then left the premises. Police were later called.

11. On 13 February 2018 the respondent participated in an interview with police where he stated that he had no recollection of the events of the night of 13 January 2018 as he was intoxicated. He could not recall visiting Tiffany’s Palace, booking an escort or engaging in sexual services with an escort. He told police that he had previously used escort services, and understood that rules were set by escorts. He also told police that he enjoyed rough sex, was “into” anal sexual activity and could get carried away during sex. The decision of the primary judge

12. The primary judge referred to the facts in an abbreviated form. In his recitation of the facts the primary judge made no specific reference to the reinforcement of the prohibition on anal sexual activity given to the respondent when he paid the service fee, and made no reference to the further warning given to the respondent when he initially licked her anus. The primary judge also made scant reference to the respondent’s violent conduct leading up to the offence. The primary judge correctly identified that the fact that the offence occurred against a sex worker did not lessen its severity, and that the statement made by the respondent to the effect that he may have engaged in the offensive conduct because he got “carried away” while having sex was no justification.

13. The primary judge noted that the respondent was 40 years old and had a consistent employment record. He noted that the respondent had been required to perform work in Canberra, away from his family, where he apparently became lonely. References tendered on behalf of the respondent described him as a “good family man”. The primary judge accepted that the respondent’s conduct was out of character and influenced by his consumption of alcohol. His Honour correctly noted that these circumstances did not offer an excuse for the respondent’s conduct. His Honour then noted that the respondent was currently in full-time employment and working in a contract with the potential to continue for some years. He also noted that the respondent had a criminal record in Victoria which included some offences of violence, but not in relation to sexual offending.

14. A report from the Department of Justice and Regulation in Victoria assessed the offender as having a high risk of reoffending. The report nevertheless stated that the respondent was suitable for a Community Correction Order which would be administered in Victoria. His Honour noted that the sentencing option of imposing an Intensive Correction Order under the Crimes (Sentencing) Act 2005 (ACT) (‘Crimes (Sentencing) Act’) was not available to him because the respondent resided in Victoria. His Honour said that counsel for the respondent had suggested that the same outcome could be achieved by imposing a fully suspended sentence with a Good Behaviour Order with conditions which could be supervised in Victoria. His Honour noted that the Crown had argued against this submission, instead submitting that there should be a period of full-time imprisonment. The Crown referred his Honour to the decision of this Court in Livas v The Queen [2015] ACTCA 54 (‘Livas’), where the offender had been sentenced to a term of imprisonment which included both full-time imprisonment and a suspended portion for an offence of sexual intercourse without consent with a sex worker, and appealed regarding the length of the sentence of full-time imprisonment imposed. In dismissing that appeal, this Court said, at [25]:

Her Honour was correct to describe the offence as a serious one. In our view, a period of full-time custody was inevitable and the period he was ordered to serve was modest…

15. Before the primary judge, counsel for the respondent submitted that this decision could be distinguished as the respondent’s offence, unlike that in Livas, was not premeditated and was an impulsive act which occurred over a very short period of time.

16. The primary judge then referred to the effect of the respondent’s plea of guilty, noting that he had originally pleaded not guilty in the Magistrates Court and only pleaded guilty after committal for trial. His Honour stated, however, that the respondent was entitled to a discount on sentence because of his plea of guilty. After referring to the provisions of s 33 of the Crimes (Sentencing) Act, setting out those matters required to be taken into account in sentencing, the primary judge then referred to the importance of s 10 of that Act “because it tells the Court that an offender should not be imprisoned unless there is no other alternative”. The primary judge then went on to say:

17. I have found sentencing this offender very difficult. My initial impression is that he must serve a period of full-time imprisonment. Sex workers, like any other employees, as I have said above must be able to carry on their professions in a safe environment where they are not in constant fear of being assaulted. This particular sex worker, although there is no victim impact statement, has obviously suffered from the experience. I note that in the Statement of Facts, at [21], it is stated: The complainant felt angry, shaken up and uncomfortable by this act as she had been anally raped by her first boyfriend years prior. This act brought back flashbacks for her. 23. This offender and potential offenders at large must know that offences of this type are simply not acceptable and is no excuse that the victim is a sex worker. 24. On the other hand there are strong subjective features in this matter. The offender is a family man, has full-time employment and the capacity to contribute to society. But of course he must deal with his alcohol problem. I have been particularly influenced by the Victorian recommendations which I think should be followed as far as possible. 25. This approach is I think consistent with the exhortation made by s 10 of the [Crimes (Sentencing) Act]. There is an alternative, namely the recommendation made in the Victorian Pre-Sentence Report and it conforms with s 10 that I should substantially adopt that recommendation.

18. The primary judge then imposed a sentence of two years’ imprisonment, wholly suspended, with the Good Behaviour Order to which we have referred.

Ground of appeal (a) – failure to assess the objective seriousness of the offence

18. The Crown submitted that this amounted to a specific error, but was also relevant to the allegation that the sentence imposed was manifestly inadequate. The Crown referred us to the decision of the High Court in The Queen v Kilic [2016] HCA 48; 259 CLR 256 (‘Kilic’), where the Court said, at [19]:

Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty – as the offending was agreed to be here – a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called. (References omitted)

19. In R v Cage [2006] NSWCCA 304 (‘Cage’), Latham J, with whom Hunt AJA and Johnson J agreed, said, at [17] with regard to the obligation of a sentencing judge to identify the objective seriousness of an offence:

A bare recitation of the facts constituting the offences and a reference to the “objective features of the offences” does not satisfy the requirements of sentencing. The correct approach to imposing a sentence for an offence has been the subject of repeated pronouncements of this Court since the decision in R v Rushby [1977] 1 NSWLR 594, as the following excerpt from the Court’s judgement in R v Gordon (1994) 71 A Crim R 459 at 468 demonstrates :- The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform - even though those purposes overlap and sometimes are in conflict: Veen (No 2) (1988) 164 CLR 465 at 476... It is important always to have regard first of all to the gravity of the crime viewed objectively for, without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place… (Emphasis as in original)

20. The decision in Cage on this issue was cited with approval by Macfarlan JA, with whom Latham and Campbell JJ agreed, in Sponberg v R [2017] NSWCCA 120.

21. In Beniamini v Craig [2017] ACTSC 30 (‘Beniamini’), Refshauge J said, at [117]-[122]:

Thus, there is no legal requirement in this Territory to identify whether an offence is in the low, low to mid, mid, mid to high, or high range, or some other quasi-mathematical scale for the purposes of sentencing. There is no direct consequence of such a finding as there is in NSW. There is no basis for identifying the objective seriousness in this way of an offence for any special purpose: it will not determine the length of the sentence nor, in this jurisdiction, even the length of the non parole period. At best, it can be a short-hand for the objective seriousness of an offence, but which can only be described by identifying the aggravating and mitigating factors. That is not to say that the objective seriousness of the offence is not an important matter; indeed, it will be an essential part of the factors, all of which must be taken into account in determining the sentence to be imposed by application of the instinctive synthesis required of a sentencing court. In my view, this will usually be best done by identifying the relevant factors relating to the offence, its nature, and the circumstances of its commission and its effects, some of which will aggravate the seriousness of the offence and others which will mitigate it. This is usually more helpful in sentencing than trying to assess some quantitative range of seriousness that masks the discretionary nature of sentencing. Sometimes, it will be possible to assess these factors against those to be found in the comparable cases to which the Court may be taken by counsel and to which it is entitled to have regard: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 73; [38]. Of course, crime being a human activity, the circumstances, conduct, nature and effects of an offence will be quite varied and individual factors will point in different ways. Hence the need for that synthesis. In this Territory then, the relevance of identifying factors that aggravate or mitigate an offence is presented to the Court a picture of the offence, the offender, and any “third category” of factors…so that a just and adequate sentence can be imposed. While there is no error in classifying the seriousness of an offence in the quasi-mathematical way, there is no need and, in my opinion, this can, and often does, deflect the sentencing court from the task which the High Court in Markarian v The Queen has required of it.

22. There is, in New South Wales, authority for the proposition that a sentencing judge does not fall into error because they do not explicitly specify whether a particular offence falls into the low, mid, or upper range of such offences. In Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 at [56], Hoeben CJ at CL, with whom Harrison and Beech-Jones JJ agreed, said:

While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.

23. In the present appeal, the Crown submitted that there is a potential tension between the judgment of Refshauge J in Beniamini and that of the High Court in Kilic. There may be some merit in this submission, but it does not require resolution in the present appeal. The submission of the Crown in the present appeal is, in effect, that the primary judge undertook no real assessment of the objective seriousness of the offence, as demonstrated by his Honour’s failure to refer to a number of matters relevant to an assessment of the objective seriousness of the offence, including:

(a) the respondent being warned by the complainant about pulling her hair and pushing her head onto his penis too roughly;

(b) the respondent twice licking the complainant’s anal sphincter resulting in him being given a “final warning” by the complainant; and

(c) the respondent’s reaction upon being told that he was being ejected from the premises, in saying to the complainant “I’m not fucking here for this. I’m not here to be talked to like this”.

24. It is true that the primary judge made no reference to these matters in his sentencing remarks. It is also true that these are matters relevant to an assessment of the objective seriousness of the offence. We accept the Crown submission that these matters were important in assessing the respondent’s moral culpability for the offence, because they revealed an attitude on the part of the respondent that he was entitled to deal with the complainant’s body as he wished. These circumstances were relevant as establishing the context of the offence as one in which the respondent considered he had a right to exercise power over the physical integrity of the complainant.

25. We do not accept that the primary judge entirely failed to consider and assess the objective seriousness of the offence. At worst, there may have been a failure to take into account relevant matters in assessing the objective seriousness of the offence. In our opinion, however, it is unnecessary to go so far as to determine this issue. On a Crown appeal, it would be inappropriate, based upon a specific error such as that alleged in the present matter, to interfere with the sentence imposed unless it was clear that the sentence was outside the range of sentences available to the primary judge in the proper exercise of his sentencing discretion. In other words, the real relevance of a failure by the primary judge to refer to the matters mentioned above is by way of providing an explanation for the imposition of a sentence which was manifestly inadequate, if that be the case.

Ground of appeal (b): Manifest inadequacy

26. A determination that a sentence is manifestly inadequate is a conclusion, to be inferred from the sentence itself: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (‘Dinsdale’) at [6]. In Henry v The Queen [2019] ACTCA 5, this Court stated, with regard to determining whether a sentence is manifestly excessive, at [30] – [32]:

A claim of manifest excess calls into question what is quintessentially a discretionary decision: Lowndes v The Queen [1999] HCA 2; 195 CLR 665. The applicable principles were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]: The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well-settled. They include the following:  Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).  The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].  In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].  It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

27. The above principles are also applicable where there is an allegation that a sentence is manifestly inadequate: The Queen v Rappel [2019] ACTCA 11 at [12].

28. The Crown submitted that reference to the ACT Sentencing Database reveals that in the period from 1 July 2012 to 31 December 2018, of the 69 offenders sentenced for an offence of sexual intercourse without consent, 65 of these offenders, or 94 per cent, received a period of full-time imprisonment. The Crown submitted that this was consistent with the acceptance by this Court in R v Wyper [2017] ACTCA 59 at [114] of the following “unifying principles” concerning sentencing for sexual offences:

(a) Sexual offences are regarded as objectively serious offences by the courts;

(b) The serious nature of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence;

(c) A period of full-time imprisonment is usually necessary to give effect to the above sentencing principles.

29. Sexual penetration for the purposes of the offence of sexual intercourse without consent may take different forms, but there is no presumption that any one form is more or less serious than another: Ibbs v The Queen (1987) 163 CLR 447 at 452. In particular, digital penetration is not to be generally regarded as less serious than penile sexual intercourse: R v Hibberd [2009] NSWCCA 20; A Crim R 1 at [21].

30. The Crown drew our attention to a number of prior sentences imposed in the Supreme Court for similar offending. In R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014), the offender digitally penetrated a woman while she was asleep and was sentenced to a term of 18 months’ imprisonment, of which six months was to be served by way of periodic detention. The offender was 19 years old and, as such, rehabilitation was a very important sentencing consideration. The Crown in that matter conceded the offence was at the bottom end in terms of objective seriousness. Such a concession was not made by the Crown in the present matter before the primary judge. Periodic detention is a sentencing option that is no longer available in this Territory.

31. In R v Taylor [2015] ACTSC 43 (‘Taylor’), the offender was convicted of digitally penetrating the victim while she was intoxicated, and was sentenced to two years’ imprisonment, suspended after six months’ imprisonment, with a Good Behaviour Order for two years and six months including a requirement that he perform 300 hours of community service. The offender demonstrated remorse and there were a number of references attesting to his good character. In imposing a period of full-time imprisonment, Refshauge J said “…this is an offence which requires general deterrence and denunciation to show the community that such behaviour is completely unacceptable”.

32. In R v Aroub [2017] ACTSC 187 (‘Aroub’), the offender was a 25 year old male who digitally penetrated the victim while she was asleep. The act of sexual intercourse without consent “involved impulsive, brief, digital penetration”. The offender was sentenced to two years’ imprisonment, suspended after six months with a Good Behaviour Order. Murrell CJ observed that it was important for the Court to send a message that offences of sexual violence against women would not be tolerated. Her Honour concluded that a short but significant period of full-time imprisonment should be imposed despite the strong subjective features of the offender in order to reflect the objective seriousness of the offence.

33. In R v Stevens (No 3) [2017] ACTSC 297, the offender and the victim met on an online dating site. Prior to engaging in any sexual activity, the victim explained to the offender that her anus was a “no go area”. The parties had consensual vaginal intercourse, following which the offender withdrew his penis and inserted it into the victim’s anus. The offender was sentenced to two years’ imprisonment, which formed part of an aggregate sentence of five years and eight months’ imprisonment with a non-parole period of three years and four months.

34. In the present matter, the primary judge referred to the fact that the respondent committed the offence in the complainant’s workplace, and that the complainant was entitled to carry on her work with safety. This is undoubtedly true, but it does not go far enough. The nature of the work undertaken by an escort such as the complainant commonly requires them, as it did here, to be alone with their client and to be undressed. Sex workers are subsequently in a particularly vulnerable position. In addition, sex workers must extend a degree of trust to their clients so that they can perform the services requested by the client. These matters were not alluded to by the primary judge.

35. The primary judge appears to have accepted a submission made on behalf of the respondent that his offending conduct was not premeditated and was essentially an impulsive act which occurred over a very short period of time. The short duration of a sexual assault will not ordinarily be considered as a factor which reduces the objective seriousness of the offence: R v Daley [2010] NSWCCA 223 at [48]. The apparent acceptance by the primary judge that the offence was not premeditated and was an impulsive act needs to be considered in the light of the evidence that the respondent had been given multiple warnings about his conduct, and in particular that any sexual activity involving the complainant’s anus was not consented to by the complainant.

36. It appears to have been accepted in the proceedings before the primary judge that the offence warranted a term of imprisonment. No submission to the contrary has been made by the respondent in the present appeal, nor could it be. The submission made by the respondent to the primary judge was directed to persuading the primary judge that a suspended sentence of imprisonment would be adequate. In ultimately accepting that submission, the primary judge was clearly influenced by the respondent’s subjective features. In particular, the primary judge appears to have been influenced by his assessment that the respondent is a “family man”, is in full-time employment and has the capacity to contribute to society.

37. It is a fundamental principle of sentencing that a sentence must be proportional to the objective seriousness of the offence. This principle of proportionality sets both the upper and lower limits of a sentence that may be imposed in the proper exercise of the sentencing discretion for a particular offence. Just as it would be outside the proper exercise of the sentencing discretion to impose a sentence more severe than the objective gravity of the offence permitted because the court believed the community needed to be protected from an offender, a court cannot impose a sentence so lenient that it does not reflect the objective gravity of the offence because of the offender’s subjective features. The subjective features of the offender are important, but they cannot justify the imposition of a sentence which does not adequately reflect the objective seriousness of the offending.

38. In R v Dodd (1991) 57 A Crim R 349, the NSW Court of Criminal Appeal (Gleeson CJ, Lee CJ at CL, and Hunt J), in upholding a Crown appeal against inadequacy of sentence, at 354, warned of the risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case. In the earlier case of R v Rushby [1977] 1 NSWLR 594, the NSW Court of Criminal Appeal (Street CJ, Lee and Slattery JJ), again in the context of a Crown appeal against inadequacy of sentence, after acknowledging the subjective case for the offender, said, at 597, that it is inevitable that a sentencing judge will be influenced by subjective considerations, “… a judge is not cast adrift on an uncharted sea involving his bearing unaided a personal burden of attempting to achieve abstract justice”. The Court went on to say:

The judicial discretion underlying the formulation of a sentence must be exercised with due regard to principles of law deducible from authoritative decisions. The philosophy of the Common Law requires adherence to established doctrines and principles that have over years, and in multiple instances, been found to be best calculated to serve the ends of justice. The adjudicative process, if it is to be consistent and ordered, must observe and apply these doctrines and principles, and thus must necessarily be attended by a requisite disengagement and detachment. It is cool reason, not passion or generosity, that must characterize sentencing, as all other acts of judgment. Although the discretion left to the judge is wide, the doctrines and principles established by the Common Law in regard to sentencing provide the chart that both relieves the judge from too close a personal involvement with the case in hand, and promotes consistency of approach on the part of individual judges.

39. Sentencing judges in most jurisdictions, including the ACT, must now also give consideration to various statutory provisions as well as common law principles in arriving at an appropriate sentence with regard to a particular offence and offender. Common law considerations, such as retribution, deterrence, denunciation, protection of the community, and recognition of the harm done to the victim nevertheless remain important considerations in sentencing in this Territory: s 7, Crimes (Sentencing) Act.

40. The respondent’s subjective circumstances were not compelling. He was 40 years old at the time he was sentenced by the primary judge. It was, with respect, rightly accepted that he had a good employment record. In the Pre-Sentence Report prepared by the Department of Justice and Regulation in Victoria, the respondent stated that he had been heavily consuming alcohol at about the time of the offence, including on the day of the offence, as he was feeling isolated from his family in Melbourne. He reported having close relationships with his extended family, particularly his twin brother and his daughter. The respondent stated he was not currently in a relationship. He had a not insignificant prior criminal history, although no convictions for prior sexual offending. In 2013 he was sentenced in the Melbourne Magistrates Court to three months’ imprisonment for an offence of trafficking in cocaine, but this sentence was wholly suspended. He has not previously served a term of full-time imprisonment.

41. The report referred to a Risk/Need Assessment of the respondent which was designed to “identify key areas of criminogenic need”. The respondent was assessed as having high to very high needs in seven out of the eight areas assessed. The report made recommendations as to how the respondent’s needs in each of those areas could be addressed so as to reduce his prospects of reoffending. The recommendations made by the authors of the report were clearly sensible, and compliance with those recommendations on the part of the respondent would clearly be to his benefit and the benefit of the community. The report concluded with the following summary:

Mr Miller is a 40 year old male with a criminal history [redacted]. He has been assessed as a high risk of generalist re-offending and has a number of needs with criminogenic potential. Mr Miller is considered suitable for a Community Correction Order and it is the view of the writer that Mr Miller’s risk can be appropriately managed in the community with specific and tailored interventions. Should Mr Miller be placed on a community-based disposition, Corrections Victoria has approved acceptable of (sic) supervision. This acceptance means that Corrections Victoria will supervise Mr Miller on behalf of the ACT. Should any non-compliance occur, supervision will be withdrawn and the matter returned to the ACT. Should the court be of the view that a community based order is an appropriate sentence, it is respectfully recommended that the court consider allowing for an 18 month order to allow sufficient time for an extensive assessment with the specialised offender assessment and treatment services (SOATS) program. This is with the view that Mr Miller may be found eligible for a sex offender program in light of his current offences. The following conditions recommended would be as follows:  Supervision condition  Treatment and Rehabilitation condition – any assessment and treatment for alcohol abuse or dependency, including testing  Treatment and rehabilitation condition – any program that addresses factors related to his or her offending behaviour. (Emphasis added)

42. The authors of the report were careful to recognise that it is the responsibility of the Court to determine whether a particular offence and offender requires the imposition of a custodial sentence, or whether they may be dealt with by way of community-based orders. The report provides an opinion that any risk that the respondent poses to the public can be appropriately managed in the community by Corrections Victoria. The report also provides options available to address areas of criminal need, if the Court determines that a community-based order is the appropriate disposition. There is nothing in the report that would place the respondent’s circumstances outside of the range of circumstances that one would find with respect to others who commit this type of offence. Many criminal offenders have family; many criminal offenders have full-time employment; many criminal offenders have the capacity to contribute to society. These circumstances do not justify the imposition of a sentence for a particular criminal offence which does not adequately reflect the objective seriousness of the offence.

43. An Intensive Correction Order under the Crimes (Sentencing) Act in this Territory was not a sentencing option available to the primary judge as the respondent resided in Victoria. It is not clear, but the primary judge may have felt compelled to impose a suspended sentence in circumstances where he would otherwise have imposed an Intensive Correction Order. This may explain his Honour’s reference to s 10 of the Crimes (Sentencing) Act, which provides that a court may only sentence an offender to imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. In the present case, the primary judge, in determining to impose a wholly suspended sentence as opposed to a sentence incorporating some period of full-time imprisonment, stated that this approach was consistent with the requirements of s 10. In fact, the provisions of s 10 had no application to the circumstances before his Honour; the provisions of s 10 apply to the decision of a sentencing judge at the point of time where she or he assesses whether the offence calls for a sentence of imprisonment. This decision logically precedes a determination of whether the sentence of imprisonment is to be served by way of full-time imprisonment, is to be wholly suspended, or is to be served by some combination of these options: see Dinsdale per Kirby J at [79]. Although the primary judge’s reference to s 10 appears to be an error, a priori, a sentence of full-time imprisonment should not be imposed if some alternative, such as a suspended sentence is adequate to reflect the objective gravity of the offence and to otherwise satisfy the requirements of sentencing.

44. The primary sentencing considerations for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim. In the proceeding before the primary judge there was little by way of remorse demonstrated by the respondent beyond his plea of guilty to the offence. Personal deterrence should have been a relevant consideration at that time. General deterrence, or deterrence of others from committing like crimes, is always an important consideration in imposing a sentence for sexual offending. The above does not deny the relevance of rehabilitation in sentencing offenders such as the respondent, but in sentencing for sexual offences rehabilitation will ordinarily be given lesser weight than the other considerations to which we have referred due to the gravity of the offending.

45. In our opinion the sentence imposed by the primary judge was manifestly inadequate insofar as it did not require the respondent to serve any period of full-time imprisonment. When all of the surrounding circumstances are taken into account, the offence committed by the respondent should be assessed as in the mid-range of such offences, albeit towards the lower end of that range. The objective gravity of the offence made a period of full-time imprisonment inevitable, and, in any event, the respondent’s subjective features could not be described as compelling. Accepting that the head sentence of two years’ imprisonment was appropriate, the respondent should have been required to serve a period of at least six months’ full-time imprisonment before being released as part of a Suspended Sentence Order. This would have been consistent with the sentences imposed in Taylor and Aroub: see [31] to [32] above.

The residual discretion

46. The Crown accepted that this Court has an overriding discretion to decline to intervene notwithstanding the finding that the sentence imposed by the primary judge was manifestly inadequate: see Avery at [5] above.

47. The Crown provided the Court with a further report from the respondent’s case manager in Victoria for the purposes of determining whether the Court should decline to interfere with the sentence imposed by the primary judge, and, if not, to determine the appropriate sentence which should now be imposed: Betts v The Queen [2016] HCA 25; 258 CLR 420 at [2] and [11]; Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [43]. The report states that the respondent’s supervision commenced on 8 February 2019, and that between that date and 8 August 2019 he attended on nine occasions as scheduled for supervision. The report states that in his interactions with his caseworkers, the respondent has appeared to show remorse for his actions, becoming teary when discussing his offending behaviour. The respondent is reported to have taken full responsibility for his actions. He was referred to the Australian Community Support Organisation (ACSO) for an assessment into his suitability for drug and alcohol treatment on 8 March 2019, and was found suitable for a standard course of treatment with South East Consortium of Alcohol and Other Drug Agencies (SECADA), which was intended to assist him in addressing issues relating to his substance use with a focus on relapse prevention, harm minimisation and increasing self-efficacy. The respondent completed all four sessions of drug treatment and did not incur any absences. Given the nature of his offending, the respondent was also referred to the Specialised Offender Assessment and Treatment Service (SOATS) for an assessment. On 16 July 2019, it was determined that a further risk assessment be conducted to determine the respondent’s suitability for treatment, individual treatment needs and responsivity factors. The respondent is currently placed on the priority list for that assessment.

48. The contents of the further report were not challenged by the Crown in the course of this appeal. We accept, therefore, that the respondent has demonstrated a degree of remorse for his actions, such that individual deterrence does not assume the significance that it might otherwise have. This Court can have confidence in the genuineness of the remorse expressed by the respondent to his caseworkers, because it was expressed after sentencing by the primary judge and at a time when the respondent was not aware that this Court would seek a further report. Despite this factor, the sentence imposed by the primary judge remains manifestly inadequate because it does not adequately address the requirements of general deterrence, and denunciation, and nor did it appropriately recognise the harm done to the victim.

49. The onus is on the Crown to negate any reason why the residual discretion not to intervene should not be exercised: R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at [12]; CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346. The categories of circumstances relevant to determining whether the Crown has satisfied the onus cast on it are not closed, but certain recognised circumstances have been acknowledged in previous cases. One such circumstance is the progress made by the offender in rehabilitation since sentence was imposed: Green v The Queen [2011] HCA 49; 244 CLR 462 (‘Green’) at [43]. The further report from the respondent’s case managers in Victoria demonstrate that he has taken positive steps to address alcohol abuse and has participated in supervision directed towards reducing criminogenic factors. He is apparently cooperating in the process of assessment for a sex offender program. There is a risk that the respondent’s progress towards rehabilitation will be detrimentally affected if he is now required to serve a term of full-time imprisonment. It is also relevant to observe that any term of full-time imprisonment this Court now imposes must of necessity be relatively modest; six months in our estimation. It is also relevant to observe that the respondent has not previously served a term of full-time imprisonment.

50. The purpose of a Crown appeal is to “lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”: Green at [1], [36], quoting Barwick CJ in Griffith v The Queen (1977) 137 CLR 293 at 310. That object will be achieved in the present appeal by the judicial pronouncement that the sentence imposed by the primary judge was manifestly inadequate, and by the statements of principle reinforced in this judgment. It is a very finely balanced question, but the Crown holds the onus of establishing that this Court should not exercise its discretion not to interfere with the sentence imposed by the primary judge, and we are not convinced that the Crown has satisfied that onus.

Conclusion

51. Whilst the Crown has established that the sentence imposed by the primary judge was manifestly inadequate, in the exercise of the Courts residual discretion the appeal should be dismissed.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns and Loukas-Karlsson.

Associate:

Date:

BROMWICH J

52. I have had the advantage of reading the reasons for judgment of Burns and Loukas-Karlsson JJ (Majority), and gratefully adopt their Honours’ summary of the statement of facts and of the principles to which their Honours refer. I agree with the Majority’s conclusion that the sentence imposed by the primary judge was manifestly inadequate. I respectfully disagree, however, as to the Majority’s conclusion as to what would be the appropriate duration of a sentence of full-time imprisonment (at [45]) and their Honours’ ultimate conclusion that this Court should not intervene in the sentence imposed by the primary judge (at [49]-[50]).

53. As to the sentence that should be imposed, for the following reasons, I consider that an appropriate sentence would be a head sentence of imprisonment for two years and that the respondent be required to serve a period of 12 months full-time imprisonment before being released.

54. The primary principle at issue in this appeal, once the conclusion of manifest inadequacy was reached, is the nature and the duration of the sentence ordinarily called for in the fair and consistent administration of justice. As to the nature of the sentence for sexual offending generally, in R v Wyper (No 2) [2017] ACTSC 103, Refshauge J noted at [7] that: [s]exual offending is, of course, a very serious matter which ordinarily warrants a term of imprisonment to be served in full-time custody because of the need to respect sentencing purposes such as general deterrence, punishment, the need to make the offender accountable for his or her actions, or to denounce the conduct, and to recognise the harm done to the victim.

55. In R v Wyper [2017] ACTCA 59, this Court accepted the Crown’s statement on appeal of “unifying principles” in respect of sentencing for sexual offending, set out by the Majority above at [28], including that a “period of full-time imprisonment is usually necessary to give effect” to those principles. The Crown in the present appeal noted that, in terms of current sentencing practice, nearly all offenders dealt with in the Territory for an offence against s 54(1) in the period from 1 July 2012 to 31 December 2018 (some 94%) had imposed upon them a period of full-time imprisonment. This involves a focus on disposition, not duration. Of the four offenders recorded as having not been sentenced to a period of full-time imprisonment, one was an erroneous classification (and in fact was sentenced to full-time imprisonment), and another received periodic detention, which is no longer available as a sentencing option in the ACT. A non-custodial sentence for an offence against s 54(1) must therefore be seen as a rare and unusual outcome.

56. As to duration, the Crown brought to the Court’s attention a number of prior sentences imposed in the ACT Supreme Court for similar offending. I adopt the Majority’s summary of those cases, set out above at [30]-[33]. Bearing in mind the High Court’s warning against the use of statistical analysis in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [66], applied in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48], and The Queen v Pham [2015] HCA 39; 256 CLR 550 at [28(4)] and [28(5)], the cases and sentencing outcomes referred to by the Crown are no more than a yardstick to assist in arriving at a just sentence when weighing up all competing considerations. However they are a very important yardstick, as was emphasised in Hili v The Queen at [54] and Barbaro v The Queen at [40]-[41]. As Gleeson CJ pointed out in Wong v The Queen at [65] in warning against taking a purely statistical approach to the sentence to be imposed: To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Publishing a table of predicted or intended outcomes masks the task of identifying what are relevant differences.

(emphasis in original)

57. Taking that proper comparative approach, the cases referred to by the Crown were for similar, yet less serious, offending, for which sentences of full-time imprisonment were imposed, other than for one young offender with no relevant criminal history, whose term was served in part by way of periodic detention, and another offender with no criminal record and of otherwise excellent character, assessed as a low risk of re-offending, whose term was served by way of an intensive corrections order. I disagree with the Majority at [45] in characterising the offending in the cases described by their Honours’ at [31]-[32] as warranting a similar penalty being imposed upon the respondent. The respondent’s offending was more objectively serious, and had less by way of mitigating circumstances. The respondent committed the offence in the complainant’s workplace, following numerous warnings being given by her prior to his offending conduct.

58. I also echo the comments of the Majority above at [34]. By the very nature of her profession, the complainant was placed in a vulnerable position, necessitating a level of trust being extended by her to the respondent. The complainant was entitled to conduct her work in a safe environment under the protection of the law and within the confines of the clear parameters that she made expressly known to the respondent.

59. As noted by the Majority above at [40], the respondent’s subjective circumstances were not compelling. They gave no basis for considerably more lenient treatment than for less serious offenders. The respondent was 40 years old at sentencing and had a criminal history, including a 2013 sentence of three months’ imprisonment, wholly suspended, in the Melbourne Magistrates’ Court for an offence of trafficking in cocaine. The respondent was also assessed as a high risk of re-offending in a report from the Department of Justice and Regulation in Victoria. Specific deterrence therefore loomed large, paying due heed to the possible consequences of failing to give effect to that assessment.

60. Yet when it came to specific deterrence for the respondent, there was little remorse shown by him at the time of sentencing beyond his plea of guilty. That plea was entered after committal for trial in the face of what appears to have been a strong Crown case, which included, for example, the corroboration of the receptionist as to the contemporaneous reaction of the complainant to what the respondent had done to her.

61. The Crown provided this Court with a further very short report from the respondent’s case manager from the Victorian Department of Justice and Regulation, prepared during an adjournment. I respectfully disagree with the Majority’s comments at [48] that the Court can have confidence in the genuineness of the respondent’s remorse indicated by the updated report upon the basis that it was expressed after sentencing by the primary judge and at a time when the respondent was not aware that this Court would seek a further report. The respondent was sentenced on 8 February 2019 and the Crown lodged its notice of appeal less than one month later. The updated report was prepared in the shadow of the Crown’s appeal, which the respondent must have been acutely aware of during the majority of his nine sessions of scheduled supervision.

62. Noting the High Court’s comments in Green v The Queen [2011] HCA 49; 244 CLR 462 at [43] as to the effect of re-sentencing on a respondent’s rehabilitation being relevant to the exercise of the Court’s residual discretion, it appears from the updated report that the respondent has positively engaged in supervision directed towards reducing criminogenic factors, including an initial assessment for a sex offender program. It is clear that an imposition of a sentence of full-time imprisonment would interrupt the respondent’s current rehabilitation program. However, that would likely be the inevitable outcome in the majority of successful Crown appeals on the ground of manifest inadequacy in which an offender is undergoing community-based rehabilitation and is re-sentenced to a term of full-time imprisonment.

63. Both general and specific deterrence is of greater importance in this instance than the respondent’s engagement with community supervision, noting that he has completed a drug and alcohol treatment program, but has not yet been further assessed for suitability under the Specialised Offender Assessment and Treatment Service. Given my conclusion that an appropriate period of actual full-time imprisonment would be 12 months, with an additional period of 12 months to be served in the community, the exercise of resentencing would not be an unwarranted or gratuitous interruption to the respondent’s community-based rehabilitation, also taking judicial notice of rehabilitation programs within prison.

64. There needs to be a more compelling reason for the respondent to be placed in a different category to nearly every other person who has contravened s 54(1) by being required to serve a period of time in custody, especially when this was a serious example of this type of offending. In Hili v The Queen [2010] HCA 45; 242 CLR 520 at [47], six justices of the High Court said the following (at [47]-[49]): As Gleeson CJ pointed out, in Wong v The Queen [(2001) 207 CLR 584 at 591 [6]]: “All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.” (Emphasis added.) Consistency is not demonstrated by, and does not require, numerical equivalence. … The consistency that is sought is consistency in the application of the relevant legal principles. …

65. The issue here is not merely numerical equivalence in terms of the duration of sentence, but also reasonable consistency in the principle of disposition by way of a custodial sentence of an appropriate duration. A departure from what must be taken to be a reasoned process of sentencing in nearly all prior cases in recent times for the same offence must be properly justified. Yet I can see no proper reason for departing from the principle that offences of this kind need a more compelling reason before a custodial sentence is dispensed with.

66. As to the residual discretion, in addition to the comments above about the application of Green v The Queen in relation to the interruption of rehabilitation, like The Queen v Rappel [2019] ACTCA 11 at [32], this was not a case in which the Crown contributed to the errors in sentencing, and the Crown lodged the appeal within a month of the sentence being imposed. The appeal has also been heard and determined with reasonable dispatch. Further, the resentencing exercise I propose is substantial both as to the judicial pronouncement that the sentence imposed was manifestly inadequate for the guidance of sentencing courts and the specific intervention warranted in all of the circumstances for the respondent. The Crown has satisfied the onus of establishing that the Court should not exercise its residual discretion not to intervene despite the sentence being shown to be manifestly inadequate. Put positively, the Crown has demonstrated to my satisfaction why the Court should quash the sentence imposed by the primary judge and resentence the respondent as outlined above.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Bromwich.

Associate:

Date: