FEDERAL COURT OF AUSTRALIA IN v The Queen [2002] FCAFC 135 CRIMINAL APPEAL – appeal against penalty – whether the sentence imposed by the learned trial judge was manifestly excessive Crimes Act 1900 (ACT) s 403 House v The King (1936) 55 CLR 499 applied R v Tait (1979) 46 FLR 386 applied Lowndes v R (1999) 195 CLR 665 applied Dinsdale v The Queen (2000) 202 CLR 321 applied The Queen v Davey (1980) 50 FLR 57 cited Parnis v The Queen (1993) 49 FCR 304 followed R v Letteri (Gleeson CJ, Sheller JA and Badgery-Parker J, New South Wales Court of Criminal Appeal, 18 March 1992, unreported) cited R v Mooney (Young CJ, Lush and Jenkinson JJ, Victorian Court of Criminal Appeal, 21 June 1978, unreported) cited Webb v O'Sullivan [1952] SASR 65 referred to McDonald v The Queen (1994) 48 FCR 555 referred to IN v THE QUEEN A 68 of 2001 SPENDER, O'LOUGHLIN AND DOWSETT JJ 17 MAY 2002 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORYDISTRICT REGISTRY A 68 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: IN APPELLANT AND: THE QUEEN RESPONDENT JUDGES: SPENDER, O'LOUGHLIN AND DOWSETT JJ DATE OF ORDER: 14 MAY 2002 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The head sentences of six years and three years (to be served concurrently) be confirmed, each of them to date from 27 February 2001; 3. The non-parole period of eighteen calendar months be set aside; 4. In lieu thereof, pursuant to s 403 of the Crimes Act 1900 (ACT), that the said concurrent sentences of imprisonment be suspended from, and that the appellant be released on, Friday 17 May 2002, conditional upon him giving security in the sum of $1000 self to the satisfaction of the Registrar on the following conditions: (1) That he will be of good behaviour until 26 February 2007; and (2) That he be under the supervision of the Director of Adult Corrective Services, or his nominee, for a period of eighteen calendar months from 17 May 2002, and that he comply with all reasonable directions of the Director, or his nominee, during that period, including any directions as to medical treatment. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORYDISTRICT REGISTRY A 68 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: IN APPELLANT AND: THE QUEEN RESPONDENT JUDGES: SPENDER, O'LOUGHLIN AND DOWSETT JJ DATE: 17 MAY 2002 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT 1 This is an appeal against penalty. As the victims of the offences to which the appellant pleaded guilty were his wife and children, the learned sentencing judge directed that his and their names be suppressed from publication, lest his wife and children suffer further distress by being identified by any publicity. That order was appropriate and will not be disturbed by these proceedings. 2 The charges to which the appellant pleaded guilty were that on 27 February 2001 at Canberra were that: · he assaulted his wife occasioning her actual bodily harm; and · he unlawfully confined her. 3 On the charge of assault occasioning actual bodily harm, he was sentenced on 2 November 2001 to imprisonment for a period of three years. On the count of unlawful detention, he was sentenced to six years imprisonment. The sentences were to be served concurrently; a non-parole period of eighteen calendar months was imposed and both sentences and the non-parole period were backdated to 27 February 2001, the date when he was taken into custody. The maximum penalty for assault occasioning actual bodily harm is five years but unlawful confinement earns a maximum period of imprisonment of ten years. 4 At the conclusion of argument in this matter on 14 May 2002, the Court announced that it was on the unanimous view that this appeal should be allowed to a limited extent as it considered that, having regard to the particular circumstances of the appellant, he had spent enough time in gaol. What follows are the reasons of the Court for coming to that conclusion. 5 The appellant and his wife had separated on 7 February 2001, some three weeks before the commission of the offences. He had moved out of the family home but had visited from time to time to see their children. On some occasions he had stayed overnight and, when that happened, he slept in his son's bedroom. They had been married for ten years and had three children. His wife had another daughter by a previous relationship who had lived with them also. 6 During the evening when the offences were committed, he had stayed at the house to mind the children whilst his wife attended a meeting at the children's school. She was subsequently driven home by one of the teaching staff; the teacher had stopped his car about four doors down the street and the appellant, who had been waiting outside for his wife to return, saw the teacher and his wife kiss. When she came into the house, he proceeded to ask her about her relationship with the man and an argument developed. The appellant then left the house; his wife showered and went to bed. 7 Later that night, the appellant returned to the house and knocked on a window. His wife let him in, expecting that he was again intending to stay overnight in his son's room; she returned to her own bedroom. The appellant then entered her bedroom, closed the door behind him and proceeded to sit on top of her with his legs on either side of her stomach. He placed a sharp object against her throat and said "This is a knife. If you move I will fucking kill you". He then removed a number of strips of duct tape, which he had pre-cut and placed on his stomach, and placed them over her mouth and eyes. He bound her wrists and ankles with further pieces of tape and then used a strap to tie her hands and feet to each other. He said "You'll have your wish – you'll see me die tonight, you'll see me die". As his wife experienced some difficulty in breathing, the appellant removed the tape from her mouth. He then proceeded to interrogate her about her relationship with the teacher. She said that he placed the knife under her nose and told her that he was going to cut it off if she was lying to him. She told him that she had seen the teacher on the previous Sunday and the appellant then struck her several times around the head and shoulders. He broke off the assault and left the room saying "If you fucking move I'll kill you". Shortly afterwards he returned with the telephone book, asked his wife for the teacher's telephone number and left the room to telephone him. 8 His wife said that she next heard the appellant go into the kitchen and heard him run some water. He then entered the nearby bedroom which was occupied by their two daughters and she heard him say "Now take this darling. I know it tastes awful, doesn't it". 9 The appellant then returned and continued to question his wife about her relationship with the teacher. During the course of this conversation, he told her that he was going to kill himself and take the children with him. He again struck her around the head and shoulders. Later he said "I'm going to take you all out to the bush, tie you to a tree and you can sit and watch us all die and think about [the teacher]". He also told her that "You will wake up in the morning and know what it's like to lose your family". Later in the conversation he added "I was going to leave [the eldest girl], but she's coming too". 10 The appellant eventually became tearful, untied the strap and the tape from one of his wife's wrists and left the house. His wife hopped down the hall and rang the "000" emergency number. She asked for an ambulance "for my babies" obviously believing that they had been poisoned. Her eldest daughter woke and found her mother in the kitchen making the call. The appellant returned to the house and she asked him to untie her mother. He did so and then helped carry her to the bedroom. When the ambulance arrived he proceeded to show them the other children who appeared to be sleeping normally. The police were called and he again left the house. He subsequently rang a number of times to speak to his wife, threatening to kill himself. 11 Later on the following morning, the appellant attended the Tuggeranong Police Station where he was interviewed. His car was subsequently searched and a number of items including a six metre length of garden hose were found. A hardware store receipt indicated he had purchased a roll of duct tape and six metres of garden hose at about 2.00 pm on 25 February 2001. 12 During the proceedings before the learned sentencing judge, the appellant admitted that he had tied his wife up as she had alleged. He also admitted he had told her that she would see him die. He claimed that he had, in fact, intended to kill himself. He denied threatening to kill the children and denied placing the knife under his wife's nose and threatening her as she had claimed. Because of these factual disputes, both the appellant and his wife gave evidence in the court below. His Honour found that the wife was a very impressive witness and, despite the appellant's denials, he was satisfied beyond reasonable doubt that the incident occurred essentially as she had described. His Honour also found that the appellant had been in a state of extreme agitation throughout much of the incident; he formed the impression that the appellant had not lied about the extent of his behaviour, but rather, that he had no memory of having acted as he did, and could not accept that he had done so. His Honour said that whilst the threats to the appellant's children evoked grave concerns for their safety, he noted that both psychological evidence and the report of an experienced probation and parole officer assigned to the appellant's case, suggested that there was a low risk that he would commit any further offences. 13 The learned sentencing judge identified five important factors, and he acknowledged that each of them was to be taken into account for the benefit of the appellant when determining the punishment that had to be imposed. They were: · the appellant's plea of guilty which indicated a measure of remorse. It represented a saving to the community and it avoided the need for the wife's eldest daughter (the appellant's step-daughter) having to give evidence; · his Honour's finding that the appellant did not, when he entered the house on the second occasion, intend to threaten his wife with the knife or intend to kill the children. Those threats occurred during a time of extreme agitation and, in what his Honour called, "the agony of the moment"; · his Honour's finding that the appellant broke off the course of threats and violence and voluntarily released his wife; · the appellant's serious psychological illness, including acute depression, suicidal tendencies and an adjustment disorder which his Honour considered was relevant when assessing the degree of his moral culpability. He has, since his offending, obtained psychological counselling and achieved a significant measure of rehabilitation. Even so, as his Honour pointed out, he was still in need of further assistance; · the appellant was aged forty-seven when he was sentenced; his employer had held his job open for him and had given character evidence on his behalf. His Honour said that the appellant also had a network of friends who were willing to support him. At the time of sentencing, he had already been in custody for eight months and that had led to a loss of contact with his children. 14 However, as his Honour pointed out, there were aspects of his offending which, in his Honour's opinion, called for severe punishment. Foremost among those matters was the terrifying experience that his wife suffered. In rejecting counsel's submission that he should impose a short non-parole period equal to the time spent in custody, his Honour summarised the factors that weighed against the appellant in these terms: "In my view the offences which the prisoner committed were too serious to be dealt with in that manner. His wife was confined for an extended period and, whether he now remembers it or not, he behaved in a manner which was clearly calculated to terrify her. He plainly made no attempt to conceal his identity, yet put tape over her eyes. It is difficult to imagine any explanation for that conduct other than that it was calculated to cause fear. Even if he did not intended to carry them out, it is obvious that his threats to kill the children were also made for that purpose. Furthermore, his conduct in turning on the tap in the kitchen, going to his daughter's bedroom and saying in a voice loud enough for his wife to hear 'Now take this darling, I know it tastes awful, doesn't it' amounted, in my view, to an exercise in sadistic cruelty. A tape recording of his wife's telephone call to obtain an ambulance was admitted in evidence. It records what one might have expected, a mother almost incoherent with fear that her children may have been poisoned." To this must be added a measure of premeditation on the part of the appellant. He did not act spontaneously. He left after his argument with his wife but later returned with the duct tape cut into strips and stuck to his body. 15 A discussion on the basis upon which an appellate court can interfere with the exercise of a discretionary power by a judge in the court below often starts with a consideration of the remarks of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 16 Many years later, a Full Court of this Court repeated those remarks. In R v Tait (1979) 46 FLR 386, Brennan, Deane and Gallop JJ said at 388: "An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error …." (citations omitted) 17 The application of the principles in House v The King was concisely stated by the High Court in Lowndes v R (1999) 195 CLR 665 at 671-2 in the following way: "… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." 18 More recently, the High Court has again re-stated the requirements for a successful appeal against sentence in Dinsdale v The Queen (2000) 202 CLR 321 where at 339-40, Kirby J said (Gummow and Gaudron JJ agreeing) at [58]: "The necessity to show error… is fully accepted by courts deciding appeals against sentence … Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts." 19 The appellant has appealed against the severity of his sentences, alleging that they were manifestly excessive and that the learned sentencing judge failed to place adequate weight upon the appellant's mental condition. It was submitted that his mental condition should have displaced the need for general and specific deterrence having regard to the circumstances of this case. 20 Muirhead J in The Queen v Davey (1980) 50 FLR 57 at 65 said "the purpose of the Criminal Law is to bring wrong doers to justice for the protection of the community. First and foremost, it is the protection of the community a sentencing judge must bear in mind". Earlier, at 65, he had referred to the two conflicting responsibilities that are vested in a sentencing judge – one that is owed to the prisoner, to rehabilitate him and to treat him gently – the other that is owed to society which is to punish, to levy retribution and to deter. In every case, the sentencing judge must do the best that he or she can do to strike the right balance. It is a difficult task and an appellate court should not be quick to interfere with the way in which the sentencing judge has exercised his or her discretion. 21 Counsel for the appellant submitted that, if this court was of the opinion that the learned sentencing judge had failed to place adequate weight upon the appellant's mental condition, that would justify intervention of this Court and it would not be necessary for the appellant to address the first ground of appeal – that the sentence was manifestly excessive. That does not necessarily follow. Even if this Court did conclude that his Honour had given insufficient weight to the appellant's mental condition, that does not mean, without more, that the penalty was excessive – let alone manifestly excessive. There is, of course, a relationship between the two grounds of appeal but they are not inextricably linked to each other. 22 There was no doubt that his Honour accepted that the appellant suffered a psychological illness. So much is evident from passages of his sentencing remarks to which counsel for the appellant referred the Court: "… that the prisoner acted at a time of acute stress and under the influence of serious psychological illness; … it was unlikely that he would have behaved in this manner had it not been for the severity of his psychological condition; … the prisoner had been in a state of extreme agitation throughout much of the incident; … that he had not lied about the extent of his behaviour but rather that he had no present memory of having acted as he did, and could not accept that he had done so." It is difficult to accept, readily, that his Honour failed to place adequate weight upon the appellant's mental condition in light of his Honour's frequent references to that very subject. 23 A court is to have regard to both general and specific deterrence when sentencing any offender. However, when the appellant's conduct is partly excusable because of some mental disorder or psychological overlay, it might be appropriate, in the particular circumstances of the offender to give less weight to general deterrence. That was the view of a Full Court of this Court in Parnis v The Queen (1993) 49 FCR 304 at 305, where the Court accepted, subject to one qualification, the following comments of the New South Wales Court of Criminal Appeal in R v Letteri (Gleeson CJ, Sheller JA and Badgery-Parker J, 18 March 1992, unreported): "The principle then is clear enough. It is correctly stated as follows – that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap." The qualification was that the Full Court did not think it necessary to use the adjective "severe". The Full Court in Parnis also endorsed the observations that had been made by Young CJ when delivering the judgment of the Victorian Court of Criminal Appeal in R v Mooney (21 June 1978, unreported): "In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight … general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others." Counsel for the appellant acknowledged that the learned sentencing judge had said, during the course of his sentencing remarks, that: "… the extent of his psychological condition is relevant to the issue of general deterrence." However, it was submitted that an examination of the entire remarks of sentencing judge made it clear that his Honour had not accorded less weight to general deterrence as a result of the appellant's condition. Thus, his Honour had said: "Many people no doubt experience great stress upon the break up of their marriages or other close relationships and in some cases they may suffer from symptoms of an underlying psychological illness or even become psychologically ill for the first time. One may and should respond with sympathy. However, when a person commits serious criminal acts against a former spouse or partner the court must take into account the need to deter other people from similar conduct. The risk of serious injury and, as in this case, grave emotional trauma may be at least as serious when the offender is psychologically ill." 24 Read in isolation it might be said that his Honour was emphasising deterrence notwithstanding the psychological condition of the appellant. However, that passage was immediately followed by the recognition by his Honour that he had to engage in a balancing exercise: "Accordingly, the need for deterrence should be given due recognition, though the weight which should be given to that factor will vary according to the circumstances of the case, and the actual sentences must be determined by reference to all relevant factors referred to in s 429A of the Crimes Act 1900." 25 Counsel for the appellant argued that the learned sentencing judge should not have made any allowance for general deterrence when composing the sentencing package. That submission cannot succeed. Making every allowance for the appellant and his mental condition, there was still a justifiable reason to have regard to matters of both special and general deterrence. There is no rule of law that general deterrence is irrelevant when an offender has a psychological disorder, nor is there a rule of law that general deterrence can only be given slight weight in sentencing such a person. Each case is to be decided on its own facts. manifestly excessive 26 The appellant, in circumstances that can only be described as terrifying, assaulted his estranged wife, threatened her with a knife, gagged her and sadistically pretended to poison one or more of their children. In the final result, he incurred concurrent head sentences totalling six years with a non-parole period of eighteen calendar months. At first glance, that would seem to be a reasonable head sentence and a low non-parole period. The head sentence matched the severity of the crime and the non-parole period was intended to match the personal circumstances of the appellant. However, a court should impose a sentence which is the minimum sentence consistent with a due regard for the public interest: Webb v O'Sullivan [1952] SASR 65 at 66; McDonald v The Queen (1994) 48 FCR 555 at 563. It could not be said that the head sentences were manifestly excessive and the non-parole period, which was low, was an attempt of the part of the learned sentencing judge to assist the appellant in his rehabilitation. However, we have concluded that it was not low enough. The appellant was a man of exemplary character, he had pleaded guilty and he was obviously full of remorse for this conduct. Such conduct appears to have been out of character and was no doubt a reaction, although disproportionate, to the break-up of his marriage with the inevitable associated disruption of his relationship with his children. Added to these factors, account had to be taken of the state of his mental health. 27 At the time when sentence was passed, the appellant had already spent eight months in custody. That was not a sufficient custodial term having regard to the nature of his offending but, so it seems to the Court, the learned sentencing judge, in handling the balancing exercise that he was required to undertake, fell into error in fixing a non-parole period of eighteen months. It is not possible to point to a passage in his Honour's sentencing remarks so as to identify it as an error. Rather, it is a case of standing back, reviewing all the relevant material and concluding that the sentencing exercise went astray – the period of eighteen months was manifestly excessive. 28 The Court is of the view that the appeal should be allowed in order to reflect the views of the Court as expressed in these reasons. Although it is not disposed to interfere with the head sentences, the Court feels that the appellant has now served a sufficient custodial term. It recognises that the authorities will need a short period of advance notice so that all administrative arrangements can be satisfactorily implemented. To allow for this, the Court composed a series of orders on 14 May 2002 that will see the appellant released from prison on Friday 17 May 2002. 29 The orders of the Court are therefore as follows: 1. That the appeal be allowed. 2. That the head sentences of six years and three years (to be served concurrently) be confirmed, each of them to date from 27 February 2001; 3. That the non-parole period of eighteen calendar months be set aside; 4. In lieu thereof, pursuant to s 403 of the Crimes Act 1900 (ACT), that the said concurrent sentences of imprisonment be suspended from, and that the appellant be released on, Friday 17 May 2002, conditional upon him giving security in the sum of $1000 self to the satisfaction of the Registrar on the following conditions: (1) That he will be of good behaviour until 26 February 2007; and (2) That he be under the supervision of the Director of Adult Corrective Services, or his nominee, for a period of eighteen calendar months from 17 May 2002, and that he comply with all reasonable directions of the Director, or his nominee, during that period, including any directions as to medical treatment. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender, O'Loughlin and Dowsett JJ. Associate: Dated: 17 May 2002 Counsel for the Applicant: Mr G Brady Solicitor for the Applicant: Pappas, j – attorney Counsel for the Respondent: Mr R Refshauge SC Solicitor for the Respondent: Director of Public Prosecutions Date of Hearing: 14 May 2002 Date of Judgment: 17 May 2002