FEDERAL COURT OF AUSTRALIA woe... 2... DISTRICT REGISTRY ecw eer oaee DIVISION No of Action ....c\..... or \@M TITLE oF action .T HE. QUEEN... tyr. MARIN LEACH eeosee CTT ee eee cao ce se ere sere wee rae reer eorrere ror ceneseersenee 23.11 719 Date(s) of hearing ../ei....id.......... Date judgment delivered. "7r.'). 04, Counsel and { . We, Ao GP Lies WP ar in . Me, P: CAMERON escaee ae ( : ( Instucted Solicitors for ( eee ccc c cece leccee ecw acc e ecco neees vee eee er es eeces . ( « aot mend Lava Si 200 ec GO Counsel and ( HA ST: WATERS | Caro mn ee cw cerca anu vesucacs sees ( ° ( "VS. Solicitors for ( , MSvucded by Corer ccc oe eeee Deane tact ae eene ( ( | BestompenT, (| Witevs GAMES, y O'NEILL . Signed wee SH OA, FADES... wee een . {Assceciate) 3B, 12 74, Dates wccccrscececsovcee (NOTE: To be despatched to Principal Registry, Sydney for on-forwarding to Law publishers) Ad CATCHWORDS Criminal law -— crown appeal against leniency of sentence - rape at knife point ~ breaking and entering and committing a felony (rape) - suspended sentence inadequate - retributive and deterrent aspects given insufficient weight -— imprisonment substituted for suspended sentence The Queen v. Martin Leach NTG No.22 of 1979. Coram: St.John, Fisher, and Gallop JJ. Darwin 23 November, 1979. GENERAL DIVISION IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY No NTG 22 of 1979. BETWEEN + THE QUEEN Appellant AND : MARTIN LEACH Respondent ORDER JUDGES MAKING ORDER : St.John, Fisher and Gallop JJ. DATE OF ORDER =: 23 November, 1979 WHERE MADE : Darwin The Court orders that: 1. The appeal is allowed. 2. The respondent is imprisoned on each charge for a period of three years. such sentences to be served concurrently with a non-parole period of one year and six months. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 22 of 1979. ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN : THE QUEEN Appellant AND : MARTIN LEACH Respondent 23 November, 1979 ST.JOHN, FISHER AND GALLOP JJ. This is a Crown appeal against sentence imposed by the Supreme Court of the Northern Territory of Australia following convictions on the jury's verdicts at the respondent's trial on an indictment charging him with the following offences: Count 1: Rape on 3 May, 1979 at Room 10, 2 Searcy Street, Darwin of Sandra Ann Gibbs. Count 2: Rape on the same night at Room 6, 2 Searcy Street, Darwin of the same woman. -2- Count 3. Burglary on the same night at Darwin in that he broke and entered the dwelling house of the same woman namely Room 10, with intent to commit a felony therein, namely rape. Count 4: Breaking and entering and committing a felony in that he broke and entered the dwelling house of the same woman and committed a felony therein namely rape upon the same woman. Upon his arraignment, the respondent pleaded not guilty to each charge. The jury returned verdicts of guilty of the rape alleged in Count 1, not guilty of the rape in Count 2, not guilty of the charge of burglary alleged in Count 3 and guilty of the charge-of breaking and entering and committing a felony alleged in Count 4. On the count of rape on which the jury found the respondent guilty, the court imposed a sentence of three years' imprisonment with hard labour and on the count of breaking and entering and committing a felony in the dwelling house the court imposed a sentence of twelve months' imprisonment, both sentences to be served concurrently, and fixed a non-parole period of two years. The court suspended the operation of those sentences upon the respondent entering into a recognisance self in the sum of $500 with one surety of a similar amount, conditioned that he be of good behaviour for a period of three years, that he submit himself to the supervision of a probation officer and that during the period of the three years he seek such treatment as Dr Lopes may advise and obey his directions as to such treatment. /3 The grounds of appeal relicd upon by the Crown as set out in the notice of appeal herein are that the learned trial judge erred in: (a) imposing a manifestly inadequate sentence upon the respondent; \b) amposing a sentence so lenient that it did not accord with the general moral sense of the community; 1c) imposing a sentence so lenient that it did not give proper consideration to the deterrent aspect of sentencing; \d) failing to give proper consideration to the retributive aspect of sentencing; \e) failing to give proper regard to the respondent's prior convictions. The facts proved by the Crown and accepted by the jury in their verdicts of guilty on the Ist and 4th Counts were clear and the sentencing judge accepted the necessary implication of those facts. It was necessary for him to do so because there was a range of penaities available. The maximum penalty prescribed for both these offences is imprisonment for life with hard labour. Such a penalty reflects the seriousness of the crimes. The judge's task was to assess the gravity of the crimes committed and to place them somewhere in the scale of all crimes of rape and burglary to ascertain whether they were more or less serious cases. In other words his task was to determine the real culpability of the respondent so as to decide whether he should be given a determinate sentence with a specification of some non-parole period, as opposed to the indeterminate sentence of life imprisonment. The most severe penalty of life imprisonment should be reserved for the most serious cases. The facts proved by the Crown and accepted by the jury in relation to the lst and 4th Counts were as follows. The respondent and the prosecutrix were living in separate rooms at a boarding house at 2 Searcy Street, Darwin. They were acquainted with each other but, it appears, were not particularly good friends. The prosecutrix was 18 years of age on 3 May, 1979 and the respondent was 20 years of age. After she arrived home from work on that day, the prosecutrix accepted an invitation from the respondent to have coffee in his room so that he could talk to her about his wife having recently left him. Actually the lady referred to at that stage was not his wife but subsequently and after the commission of the offences the respondent and the lady referred to were reconciled and married.) The prosecutrix and the respondent had coffee in-the respondent's room from about 5.45 p.m. until 6.45 p.m. or thereabouts. She then left the respondent and ultimately arrived back at her own room. During the evening the respondent attempted to induce the prosecutrix to come back to his room by putting notes through the louvres to her room. There were about six such invitations but she ignored them. She went to bed shortly after midnight. At about 5 a.m. the respondent broke and entered her room by manipulating the lock to the room with a knife. On entering he went to the bed where the prosecutrix was sleeping and put his hand over her mouth and a knife to her throat. When she awoke, she managed to ask what 1t was that the respondent wanted and he took his hand from her mouth. There was then some short conversation and the respondent kissed and caressed the prosecutrix and tried to . 2/5 Y¥ remove her pants, which was the only clothing that she was wearing at the time. She resisted him and at one stage he tried to cut the pants off with the knife. The girl was very frightened and made it plain to the accused that she did not want to have intercourse with him. So as to create an opportunity to escape she told the accused that she would remove the pants herself. At the same time she tried to get the knife but it slipped and fell to the floor. She tried to go to the door, but he stepped in front of her and pushed her back on the bed. As he did so her pants came off. He then forcibly had intercourse with the girl. After the intercourse the respondent asked the girl if she would come to his room to talk to him about his break ' up with his 'wife'. The girl dressed hereself in a sarong, picked up her key and went to the respondent's room either with him or ahead of him. The evidence is not clear whether they went together or separately. When they were in the respondent's room and after some further discussion, a further act of intercourse took place. This was the act which founded the second charge of rape alleged in the indictment and the charge of which the respondent was acquitted by the jury. As part of the Crown case leading to the respondent's convictions for rape and breaking and entering the dwelling house and committing the felony of rape therein ithe Ist and 4th Counts), the jury had before it evidence of a record of interview between the respondent and Detective Constable Lethbridge conducted on 4 May, 1979. In that interview the respondent admitted that he had broken and entered the girl's bedroom by slipping the catch on the bedroom door with the aid of the knife, entered the bedroom, put his hand over her mouth in case she screamed, and had the knife in his hand held about - « «f/6 elle eee eee eer we ea | cane aan SL i ee ee ame eight inches from her body. He admitted that she had submitted to sexual intercourse the first time in her room because he had the knife in his hand. The knife which was produced by the Crown on the hearing of the appeal was a large pocket-knife measuring seven inches long in its extended position with a very sharp point. The respondent's own assessment to police was that she had submitted through fear. He admitted that the girl was frightened, that he had raped her and in various other ways described the act of intercourse in her room as having taken place without her consent and because she was frightened. The respondent gave sworn evidence before the jury, in which he alleged that he had broken and entered the girl's room by using the knife to slip the catch on the door. He entered the room, approached her bed and because he thought she was going to scream he covered her mouth with his hand and was holding the knife in his left hand, probably eight or twelve inches away from her body. He denied it was anywhere near her neck. He took his hand away when she had calmed down. His defence was that the girl not only consented to intercourse, but was a very active and co-operative partner. This version of the facts was obviously rejected by the jury. In his remarks on passing sentence the learned Chief Justice did not advert to all the facts which must have been found by the jury, but adverted sufficiently to such facts as were implicit in the verdicts. There is nothing in what His Honour said which could be construed as being inconsistent with the jury's verdict. His remarks were: "You were living in a boarding house in Darwin in which the prosecutrix also lived. ed TTT TRE TE UENCE CET TE CT —— on = "After trying to interest her and attract her attentions in rather childish ways, you armed yourself with a knife which you used to spring the lock on the prosecutrix's door. The verdict of the jury means that at the time you broke in you had no intention of committing a felony but that after you entered the room, that intention was formed. You threatened the girl with the knife and raped her. Not long afterwards, the girl accompanied you to your own room upstairs where a further act of intercourse occurred. The jury found that this subsequent act did not constitute rape, which verdict mitigates, to some extent, the seriousness of the first one." In The Queen v. Tait and Bartley (1979) 24 A.L.R. 473 the court set out the principles governing the review of the sentencing discretion particularly in the case of an appeal by the Crown on the ground that the sentence is inadequate. The principles were repeated in The Queen v. Hall \an unreported decision delivered on 28 June, 1979). It is unnecessary to repeat what was set out in those cases. It is sufficient to observe that the court will only interfere if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. As indicated in those cases, the relevant provisions of the Federal Court of Australia Act do not provide any basis for distinguishing = 1. oa * i ow ergs - ere reo alata eC as aaa aie between the general principles to be applied by the court on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a convicted person. There are in Crown appeals special considerations which may apply, but none of those special considerations applies in the circumstances of this appeal (see Harris v. R. (1954) 90 C.L.R. 652 which was followed by this court in Kovac v. R. (1977) 15 A.L.R. 637, citang Cranssen v. R. (1936) 55 C.L.R. 509 and see generally Skinner v. R. (1913) 16 C.L.R. 336 at 339-340;R. v. Withers (1925) 25 S.R. (N.S.W.) 382 at 394; Whittaker v. R. (1928) 41 C.L.R. 230 at 249; i Griffiths v. R. (1977) 15 A.L.R. 1 at 15-17). In the laght of these principles we turn to the exercise of the sentencing discretion in the present appeal. The Crown submitted that the learned sentencing judge imposed sentences so manifestly inadequate as to call for the intervention of this court. It was submitted that His Honour's error is manifest from the inherent nature of the offences themselves, the circumstances surrounding the commission of the offences, the character of the respondent, particularly when consideration is given to his prior convictions and the failure to advert to the retributive and deterrent aspects of punishment. The thrust of the Crown's submission was that His Honour gave too much weight to the reformative aspect of punishment and insufficient weight to the retributive and deterrent aspects. The facts of the offences proved by the Crown and accepted by the jury are grave indeed. His Honour deemed it appropriate to consider the jury's verdict of not guilty in respect of the second count in his determination of the offences of which the respondent had been found guilty. As to this matter, His - - -/9 ee - hoe ao Seed Lie csc and A nee 4 sete Mal ore -- =~ wee ee ee Honour said: "the jury found that this subsequent act did not constitute rape, which verdict mitigates, to some extent, the seriousness of the first one". Plain it is that the duty of the sentencing judge is to form his own view of the facts and to decide how serious the crime is that has been committed and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts, must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits it is for him and for him alone to form his judgment of the facts (Rv. Webb (1971) V.R. 147 at Pages 152-153 citing R. v. Harris (1961) V.R. 236 at 237). In the present case the jury was not satisfied beyond reasonable doubt that the respondent had raped the girl in his room. What His Honour meant by his observation that the verdict mitigates to some extent the seriousness of the rape of which he was convicted was that the harm, physical or psychological, to the girl could not have been very great, as within a very short time after that offence had been committed upon her the girl engaged in sexual intercourse with the respondent in circumstances which were insufficient to warrant a conviction. Indeed, in his remarks on sentence, the learned judge at a later point said that the prosecutrix suffered little, if any, physical harm although she must have been frightened. This finding was favourable to the respondent and was certainly supportable by the evidence and the jury's verdict of acquittal on the second count. ~10- One of the arguments advanced on the hearing of this appeal by the Crown was that His Honour erred in ignoring the prior convictions of the respondent. Part of the material produced by the Crown for the assistance of the sentencing judge was a document purporting to be a record of convictions relating to the respondent. This record, however, was defective. It did not even specify the courts in which the convictions were recorded and when the document was ultimately included in the appeal record before this court, it was difficult to interpret. In any event the learned sentencing judge regarded its contents as irrelevant for the purposes of sentence. We do not think that this court ought to take any different course. We take the opportunity to state that in this respect the Crow failed to give that degree of assistance to the sentencing court which that court was entitled to expect. There was included in the record of convictions a conviction for burglary. Obviously a prior conviction for burglary would have been a relevant matter for the sentencing judge, yet the Crown failed to prove it properly. It would not be proper for this court now to take that conviction into account. As was said in R. v. Tait and Bartley (supra) at page 477 there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him. There was psychiatric and psychological material before the learned sentencing judge in the form of written reports. The report of -li- the senior specialist psychiatrist Dr W.P. Lopes of the Department of Health, Darwin opened as follows: "This is a very immature young man who clinically does not show any evidence of mental illness. His "depressive" moods are a reflection of his life long personality disorder. Head injury has an effect of exacerbating these abnormal behaviour tendencies which has occurred in this case. ' The overdose with Valium would have had the same disinhibiting effect as alcohol, and therefore he is fully responsible for his actions. Future prognosis is uncertain here because of his life-long personality difficulties, and whatever sentence the court prescribes I would like him to undergo psychiatric counselling therapy with a view to improving his social behaviour. There is still hope hope sic) here!" Mr R.W. Dawson of the Department of Health Psychology Section, Darwin Hospital, summarized his psychological examination of the respondent as follows: "In summary the test results suggest personality difficulties centering around emotional lability, inappropriate reactions to stress and an extreme self directedness. In view of the | configuration of scores obtained from both tests and the obtained life history these difficulties appear to be long standing and stable. It is beyond doubt that Martin's recent accident, the circumstances of his rehabilitation, - - -f/12 ~12- his trial and subsequent charge have exacerbated his underlying personality problems. However, 1t can only be conjective \sic) to comment on the extent of this influence. Future prospects for Mr Leach will be a primary function of psychological treatment/help to change the abovementioned behavioural tendencies. With such assistance and the possible stabilising influence of family responsibilities he may be able to favourably modify his behaviour, particularly his reaction to stress. However, at present appropriate social behaviour appears to be positively related to favourable external events. As such external events become unfavourable it 1s likely that inappropriate social behaviour of some form, and certainly not necessarily rape, will follow in consequence. From a psychological viewpoint no prognosis can be certain. But this direct relationship between behaviour and external events will likely remain in the absence of psychological help." But there was nothing in the psychiatric and psychological evidence which tended to reduce the respondent's culpability for his crimes. His personality disorder did not render him any less than fully responsible. The disinhibiting effect of the overdose of valium, self-induced as 1t was, affords no ground for mitigation of penalty in his case. Having considered the opinions set out above, the sentencing judge said: - . ./13 -13- "You are a young man with a number of problems. You have quite a severe personality disorder of a depressive nature. You have no relevant record. Not long before the incidents which gave rise to these charges many things have combined to go wrong for you. You suffered head injuries in a motor vehicle accident which affected your physical capabilities and contributed to your depression. A child has been born of your de facto relation- ship with a young woman. Because of your disabilities you felt incapable of properly looking after the child and the mother, from whom you were then parted. I am delighted to know that you have come together again and are now married. In this marriage, and in the psychiatric treatment recommended by Dr Lopes, are your main hopes for rehabilitation. It is considered unlikely that you will offend in this way again. The prosecutrix suffered little, if any, physical harm, although she must have been frightened. You have been in custody for something over five weeks awaiting trial and for more than two months since the jury's verdict. Having given anxious consideration to the whole matter, I have come to the conclusion that sentences of imprisonment are warranted but in view of your youth, the unusual nature of the rape and the other matters put to me by Mr Waters, on your behalf, reasons exist whereby I can suspend the operation of those sentences." It seems clear that the respondent impressed the learned sentencing judge as a young man with distinct disorders of eens OSE Qe ge teerorerqy mee ere om _— wee ~14- personality. His Honour clearly held the view that the respondent was capable of being rehabilitated provided he had the support of a probation officer and psychiatric treatment. The psychiatric and psychological evidence was not tested in any way, and in the circumstances, although it appears a little unsatisfactory, this court should not make a finding contrary to His Honour's conclusion as to the respondent's prospects of 1 rehabilitation. There are, however, other factors to be considered in fixing an appropriate sentence so as to discharge the true function of the criminal law and the purposes of punishment, namely the protection of society. The nature and type of offence, as well as the factors personal to the offender have to be taken into account. Courts have not infrequently attempted analysis of the several aspects of punishment \R. v. Goodrich (1952) 70 W.N. 42) where retribution deterrence and reformation are said to be its threefold purposes (Channon v. R. (1978) 20 A.L.R. 1 at Page 5). In endeavouring to strike a balance between these various considerations His Honour seems to have given considerable weight to the respondent's prospects ' of rehabilitation but his remarks on sentence do not express his having given sufficient weight to the other aspects of retribution and deterrence. We do not doubt that His Honour did have regard to these factors, but looking at all the circumstances of the the offences and the respondent's antecedents and personality, we are left with the impression that he attached far too much weight to the respondent's prospects of rehabilitation. The result of the sentences imposed was not to provide well- deserved punishment nor to reflect the general moral sense of - - -/15 es cna, | - 15 - the community (Channon v. R.(1978) 20 A.L.R. 1), In our judgment the sentencing discretion has miscarried and this court should intervene, As the two offences arose out of the same set of facts and within a very limited time it is appropriate to order that any sentences to be served in respect of those offences be served concurrently. Having determined to review the sentencing discretion this court is required to consider what sentence would represent the appropriate, duly proportionate and properly balanced sentence (per Smithers J, in Anderson v, R. (1977) 19 A.L.R. 212 at 221 cited with approval in R. v. Prindable (1979) 23 A.L.R 665 at page 670), Paying due regard to all the circumstances, including the youth of the respondent and the absence of physical harm to the girl, we propose to impose a head sentence of three years' imprisonment on each charge and order that the sentences be served concurrently. We turn to the specification of a non-parole period. In the Northern Territory of Australia a judge sentencing a convicted person in relation to offences involving a term of imprisonment of twelve months or longer is required to specify a non- parole period except where the court considers the nature of the offence or offences or the antecedents of the offender do not warrant the specifying of a lesser term of imprisonment or if the offender is sentenced to imprisonment for life; see the Parole of Prisoners Ordinance 1976 (N.T.). -/16 a -1l6- In this matter we consider that His Honour's views about the respondent's prospects of rehabilitation can properly be reflected in the specification of a non-parole period. The capacity in the respondent to reform is a most material matter in the decision to fix a non-parole period and the legnth of the period (see Power v. R. (1974) 131 C,L,R. 623 at 622; 3 A,L,R. 553 at 557). In the present case His Honour specified a non-parole period of two years. In our view this does not make due provision for the operation of the parole system. The respondent was in custody for something over five weeks awaiting trial and for a further two months after the jury's verdict awaiting sentence, - We would propose to reflect those periods of custody and the judge's assessment of the respondent's rehabilitation prospects in the specification of a non-parole period, The judgment of the court is that the appeal is allowed and that the respondent be imprisoned on each charge for a period of three years, the sentences to be served concurrently and we specify a period of one year and six months during which the respondent will not be eligible to be released on : parole. 7 1 i Re ee —- ae a eee ere pe