FEDERAL COURT OF AUSTRALIA Criminal Law - Crown appeal against sentence - conviction for inflicting actual bodily harm with intent to engage in sexual intercourse - whether sentence manifestly inadequate - whether Court should disturb the sentence - principles applying to a Crown appeal against sentence Crimes Act 1900 (ACT), ss 92B(1), 556B(1), 556C(4) Federal Court of Australia Act 1976 (Cth), s 24 Parole Act 1976 (ACT), ss 20, 21, 22 R V Boudelah (1991) 28 FCR 176 at 185 applied R v Tait (1979) 46 FLR 386 at 388 applied R v Osenkowski (1982) 30 SASR 212 at 212-213 applied The Queen v Drewett (1983) SASR 344 at 345-346 applied Matter No. ACT G86 of 1997 THE QUEEN v TERRENCE JAMES MITCHELL WILCOX, VON DOUSSA & MADGWICK JJ ADELAIDE (heard in Sydney) 9 DECEMBER 1997 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACT G86 of 1997 BETWEEN: THE QUEEN Applicant AND: TERRENCE JAMES MITCHELL Respondent JUDGES: WILCOX, VON DOUSSA & MADGWICK JJ DATE OF ORDER: 9 december 1997 WHERE MADE: adelaide (heard in SYDNEY) THE COURT ORDERS THAT: The appeal be dismissed. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACT G86 of 1997 BETWEEN: THE QUEEN Applicant AND: TERRENCE JAMES MITCHELL Respondent JUDGES: WILCOX, VON DOUSSA & MADGWICK JJ DATE: 9 december 1997 PLACE: adelaide (heard in SYDNEY) REASONS FOR JUDGMENT THE COURT: This is a Crown appeal against sentence. The respondent pleaded not guilty to a charge, contrary to s 92B(1) of the Crimes Act 1900 ACT ("the Crimes Act"), of inflicting actual bodily harm with intent to engage in sexual intercourse. After a trial before judge and jury in the Supreme Court of the Australian Capital Territory, the respondent was convicted. Upon his conviction he was sentenced to a term of three years imprisonment with a direction for his conditional release after six months in custody. The sole ground of appeal is that the sentence was manifestly inadequate. At the conclusion of the hearing of the appeal the Court announced that the appeal would be dismissed, and said that reasons for that decision would be published at a later date. The reasons of the Court now follow. This appeal is brought pursuant to s 24 of the Federal Court of Australia Act 1976. By s 24(1)(b) of that Act this Court is given jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory, and by definition "judgment" means, inter alia, a sentence: see R v Boudelah (1991) 28 FCR 176 at 185. The maximum penalty prescribed for an offence contrary to s 92B(1) of the Crimes Act is 14 years imprisonment. The direction for the conditional release was made in exercise of the power contained in s 556B(1)(b) of the Crimes Act. Section 556B(1) provides: "556B.(1) Subject to this section, where a person is convicted of an offence against the law of the Territory, the Court by which he or she is convicted may, if it thinks fit, by order: (a) release the person without passing sentence upon him or her upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that: (i) he or she will be of good behaviour for such period as the Court specifies in the order; (ii) he or she will, during the period so specified, comply with such conditions (if any) as the Court thinks fit to specify in the order, which conditions may include: (A) the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being appointed in accordance with the order; (B) the condition that the offender will obey all reasonable directions of a person so appointed; and (C) the condition that the offender will comply with an order made pursuant to section 437; and (iii) he or she will pay to the Territory such penalty (if any) as the Court specifies in the order on or before a date specified in the order or by specified instalments as provided in the order; or (b) sentence the person to a term of imprisonment but direct that the person be released, upon his or her giving a like security to that referred to in the last preceding paragraph, either forthwith or after he or she has served a specified part of the sentence imposed upon him or her." The subsection empowered the Court to release the respondent on a recognizance to be of good behaviour for a period that exceeded the duration of the head sentence of imprisonment. In the present case the respondent's release after serving six months imprisonment was ordered to be conditional upon his entering into a recognizance to be of good behaviour for three years commencing on the date of his release from prison. Section 556B(1) also authorised the Court to specify additional conditions to be complied with during the period of the recognizance. Pursuant to that power the sentencing judge required that the respondent immediately upon his release "... proceed directly to and remain with the Mancare Program and submit to that residential program for between 11 and 12 months, that is, until its conclusion. During that time you are to obey the reasonable directions of the Director of the Mancare Program and you are also to submit to the supervision on probation of the Director of ACT Correctional Services or the nominee of the Director and you are to obey the reasonable directions of the Director of ACT Corrective Services or nominee. It is a further condition of that recognizance, and you will appreciate this is for a period now of approximately three and a half years, you are to abstain from intoxicating liquor and illicit drugs." Assuming that the respondent is willing to enter into the recognizance after serving six months in prison, he will be released forthwith. When released, he will not be on parole on such conditions as the Parole Board of the Australian Capital Territory thinks fit (ss 21 and 22 of the Parole Act 1976 (ACT)). Moreover, his release will not be dependent upon a favourable decision of the Parole Board at that time. Once released, the respondent will not be liable to the revocation of parole for failure to comply with conditions of a parole order. The effect of the order made by the sentencing judge for the conditional release of the respondent excluded the operation of the parole system: see R v Boudelah at 185. If a breach of the conditions of the recognizance occur, the respondent may be brought before the Supreme Court and dealt with pursuant to s 556C(4)(e) which provides: "(e) in a case where the person having been sentenced, was released forthwith or after he or she had served a specified part of the sentence imposed on him or her - commit the person to prison to undergo imprisonment for such term, being a term not exceeding the sentence or the balance of that sentence, as the case requires, or make any order (including an order under subsection 556B(1)) which the Court would, if he or she had then and there been sentenced for the offence of which he or she was originally charged, be empowered to make." Counsel contended that the head sentence and the period of actual incarceration in prison required by the sentence were each manifestly inadequate. Counsel contended that the restrictions on liberty imposed upon a person participating in the residential Mancare Program do not equate with the restrictions, rigours and stigma of actual detention under a custodial sentence. At the date of the commission of the offence, 12 January 1997, the respondent was almost 26 years of age. The victim of the offence was a Korean woman studying in Canberra. The Court was informed from the bar table that she was slightly older than the respondent. The offence occurred at about 3.30 a.m. The victim had attended a nightclub in the City of Canberra with a number of friends. She left to walk to her place of residence nearby. As she was walking on the footpath she heard a male across the road say "you are very beautiful". A little later she was suddenly grabbed from behind and "squeezed" on her neck. On the evidence, the male who called out from across the road must have been the assailant, and the remark indicates a degree of premeditation on the assailant's part. The assailant's hand was placed over the victim's mouth. A struggle then ensued during which the assailant's grip remained tight, and pressure remained on the victim's neck. She says she then "fell down on my tummy, the man was behind on my back, continuously he didn't let it go, his right arm on my neck". She said that she continuously screamed and struggled to get free. She described being grabbed by the hair and having her forehead smashed on the concrete footpath three or four times. After the attack she had abrasions to the forehead consistent with this account. The assailant said "I want to have sex with you", and she felt him pull her pants down, and she felt pressure of his legs upon her after which he began to undo his belt. At this stage she was able to make good her escape. The victim ran back to the nightclub to get assistance. Employees of the club accompanied her back to the scene. They helped her find her glasses, keys, handbag and items of clothing. They noticed bruises, blood and scratches on various parts of her body and observed that her clothes had been ripped. The police were contacted. They arrived shortly afterwards and took into custody the respondent, who was still at the scene. When searched, the respondent was found to have a knife amongst his possessions which he told the police was for his own protection. The knife was not used in the attack, and the victim was unaware that the respondent had a knife. The evidence, including photographs, established that the victim had grazes and bruises on the centre of her forehead, on the right side of her neck, on her right elbow and her upper back. There were also grazes and bruising to her legs and feet. In a victim impact statement, the victim said that "this man changed my life ... I thought I was going to be dead. I feared the worst because I can't communicate well." She had only been in Australia for about three months. Evidence at trial suggested that the respondent was considerably intoxicated at the time of the offence, and he was at times incoherent in his speech and disoriented as to his true whereabouts. However, he was able to communicate with the police when they conducted an interview with him. Acting on advice after speaking with a solicitor he declined to participate in a line-up or provide hair or body samples. Throughout the interview he repeatedly denied that he had been the offender. The ground upon which the respondent defended the charge at trial was that of identity. He maintained his denial that he was the offender. At one point following the committal proceedings, the respondent indicated that he would plead guilty, but later withdrew that plea. It will be necessary to return to the reasons advanced by him for the withdrawal of that plea. As the respondent maintained his innocence it was necessary for the victim on two occasions, at the committal and at trial, to give evidence. The respondent is entitled to no credit for having saved the victim from the stress and humiliation of giving evidence by pleading guilty. The pre-sentence report available to the sentencing judge indicated that the respondent had experienced a difficult upbringing, initially in a home dominated by an extremely violent alcoholic father, and later, when his mother remarried, he did not get on with his stepfather. He left home at the age of 17 years. The respondent had a number of prior convictions which were proved by the production of a computer generated report of criminal matters from the Australian Federal Police. The report gave the following information about the respondent's record as an adult: Date of conviction Offence Result 4 May 1990 Assault police Conviction, released on entering recognizance, $200 TBGB 2 years 4 January 1991 Assault police Fined $500 Offensive language Fined $200 Hinder police Fined $150 June 1991 Offensive behaviour Fined $200 2 July 1991 Recklessly or intentionally inflict actual bodily harm One charge - offence date 22 November 1990 - Conviction 6 months imprisonment suspended on entering recognizance $2,000 TBGB 2 years. 12 months supervision on probation ACS 30 hours anger management August 1992 Aid and abet armed robbery One charge - offence date 21 January 91 - 12 months imprisonment suspended on entry recognizance $1,000 TBGB 2 years. Compensation $50 2 December 1992 Self-administer prohibited ) On each charge, fined $150 drug ) Possession of equipment ) 6 July 1993 Common assault 9 months imprisonment to be released after 2 months upon entering recognizance $2,000 TBGB 2 years. Accept supervision for 2 years - counselling - anger management and drug and alcohol abuse Possess offensive weapon with intent to commit offence involving violence Offence date 26 February 1993 - 2 months imprisonment concurrent Breach recognizance of 22 July 1991 One charge - offence date 26 February 1993 - imprisoned 2 months concurrent 2 May 1997 Resist police One charge - offence date 10 November 1996 - $100 fine The pre-sentence report informed the Court that the respondent said that he had started drinking alcohol regularly at the age of 13. He gave a history of regular and excessive consumption thereafter. He said that he commenced smoking cannabis at age 15 and had continued to use the drug almost daily since then, and used amphetamines from the age of 18 until he met his current partner with whom he commenced to live in 1993. He said that she disapproved of drugs and he had restricted his drug use to cannabis and alcohol thereafter. The pre-sentence report said that the respondent had lived in a de facto relationship since 1993 with this partner, and that the couple have three daughters under four years of age. His partner reported that the relationship was stable and that the respondent is a loving father who is tolerant and devoted to his children. The respondent himself openly expressed his love and commitment towards the children. The respondent informed the Community Corrections Officer who prepared the pre-sentence report that his previous offences all related to drugs, alcohol and family conflict or influence. The Community Corrections Officer commented, "his behaviour on this occasion appears inconsistent with previous types of offences and what can be observed of the offender's character." Unfortunately, the sentencing judge was left without adequate information regarding the previous offending of the respondent. A bare list of prior convictions, containing information as set out above, gives the sentencing judge virtually no detail of the seriousness of each of the offences for which convictions have been entered, nor any information about the conduct which was involved. In the course of argument on this appeal, a question arose as to whether the offence before the Court was "out of character". Counsel for the respondent argued that as the present offence was one of a sexual nature it was a different kind of offence from those in the past, whereas counsel for the Crown contended that the earlier offences exhibited tendency to personal violence, and the subject offence was of the same kind. These submissions demonstrate the desirability of the Crown placing before a sentencing judge sufficient information about prior convictions to enable the Court to identify matters of similarity and distinction between earlier offences and that upon which a defendant is to be sentenced. The bare information contained in the report tendered before the sentencing judge is inadequate for this purpose. In sentencing the respondent the learned sentencing judge said: "There is no doubt in this case that the offender ... committed what was a vicious, unprovoked and cowardly attack on a defenceless woman. There is also no doubt that his intention then was to sexually molest that woman and without her consent. Now, that is conduct that used to be described as 'attempted rape' and that is a crime that deserves severe condemnation. It is hardly to be said, but I will say it anyway that it is a crime that (is) abhorred by the community, both on the basis that it is a crime of violence and on the basis, that it is degrading to the position of women in society. Both protection of the community by way of general deterrence and punishment to recognise such serious criminal behaviour determines the punishment in this case should be severe..." Those observations are wholly justified by the circumstances of the crime. The Crown however contended that the learned sentencing judge failed to give effect to his description of the crime, and imposed a punishment that failed to reflect the objective seriousness of the offence, and failed to pay sufficient regard to the respondent's criminal record. The learned sentencing judge, after describing the seriousness of the crime, discussed two matters urged in mitigation on the respondent's behalf by his counsel. One was that the respondent was very drunk at the time. His Honour dismissed this submission, correctly explaining that drunkenness is no excuse, and did not lessen the seriousness of the offence. The other was that the offence was "uncharacteristic", the prior record of convictions not containing any offence against a woman. Having referred to these matters in his sentencing remarks, the learned judge then said: "It might be added, too, that an intoxicated person can be the more alarming because of the lack of inhibition and control, however, it does assist in this case only (in) this respect, it does explain why this offender behaved in what must be accepted to have been an uncharacteristic manner. It helps to explain, though it does not excuse that uncharacteristic conduct. It further points up a need for rehabilitation which can be properly reflected in the sentence...". Counsel for the Crown contended that the learned sentencing judge erred in accepting, as this passage suggests that he did, that the conduct on the night of the offence was "uncharacteristic". We are not persuaded that his Honour fell into error in this regard. In referring to the respondent's conduct as "uncharacteristic" we interpret his Honour's remarks as referring to the fact that the earlier offences, such as the nature of them was disclosed by the record, did not involve sexual offences or offences against women. Interpreted in that way, his Honour's remarks are unexceptionable. We do not interpret what his Honour said as indicating that he overlooked that there was a continuing pattern of physical violence. The materials placed before the sentencing judge make reference to the Mancare Program, and do so in a way that assumes that the trial judge and those involved in the sentencing process were familiar with the program. The pre-sentence report included a statement that the respondent: "... has been assessed suitable for admission to the Mancare Residential Rehabilitation Program. Given his history of extensive drug and alcohol abuse, and his state when committing the offence, it is considered his participation in which a program will significantly reduce the likelihood of further offending behaviour." However, the materials did not include a description of the program, or of its aims and requirements. It is desirable that when consideration is to be given to requiring a prisoner, as a part of the sentencing package, to undergo a rehabilitation program or treatment of some kind, that details of that program or treatment be included in the material before the Court. This is not only for the possible benefit of the sentencing judge (who, if experienced, as here, may not need it), and a court of appeal called to consider the sentence, but for anyone who is later called on to review the progress of the respondent's intended rehabilitation, or to enforce the sentence. This Court was informed from the bar table that the Mancare Program is a well regimented and structured rehabilitation program. The program is a residential one, the completion of which takes 11 to 12 months. The rules of the program require that upon admission, a person will have no outside contact with anyone for the first six weeks, and no outings are permitted for the first seven weeks. From the seventh to the fifteenth week outings are permitted in controlled circumstances, and after the fifteenth week weekend leave only is permitted. Although those undergoing the program do so voluntarily, compliance with the requirements of the program are closely controlled, and non-compliance by the respondent would be likely to come to the attention of the authorities. Counsel for the Crown contended that the information before the sentencing judge did not warrant the emphasis which the sentence gave to the question of rehabilitation. In particular it was contended that the respondent has failed to show an acceptance of responsibility for his actions, and to show remorse for the offence committed by him. Counsel submitted that his failure to do so does not bode well for successful rehabilitation. Counsel referred to the respondent's persistent failure to acknowledge the force of the evidence against him, even accepting that he was unable, by reason of intoxication, to remember the events of the offence itself. Further, counsel contended that the respondent's withdrawal of his plea of guilty provided a further indication of a lack of remorse and his failure to accept his wrongdoing. After conviction, in the course of giving evidence at the sentencing hearing, the respondent said that he had withdrawn his plea under pressure from his de facto partner who was distressed by the notion that he was guilty of the offence. There is force in the submission that the respondent's failure to fully and frankly acknowledge his involvement in the crime is a factor militating against successful rehabilitation. In our view it was a weighty consideration against ordering the conditional release of the respondent pursuant to s 566B of the Crimes Act, and in favour of applying the parole system to the respondent. Had he been subject to an order permitting release on parole, it would then have fallen to the Parole Board to decide when, and on what conditions, it would be appropriate to allow the release of the respondent: s 20 of the Parole Act. An important factor in the consideration of the Parole Board would be whether, at the time that parole was considered, the respondent acknowledged his guilt for the crime. However, a sentencing judge has a wide discretion, and in the present case his Honour obviously considered that the Mancare Program, and the prospect of rehabilitation offered by it, in conjunction with the balance of the sentence, offered the appropriate protection of society: see Channon v The Queen (1978) 33 FLR 433 at 437 per Brennan J. However, whilst it was open to the learned sentencing judge to structure the sentence in this way, the overall sentencing package was required to be one that appropriately marked the gravity of the offence. Whilst counsel for the Crown submitted that the learned sentencing judge should have invoked the parole system, this was not the principal ground of attack on the sentence. The principal complaint was that the period of imprisonment ordered both by way of the head sentence and the period to be served before conditional release are insufficient to reflect the seriousness of the crime, and to provide the appropriate deterrence both to the respondent and to society generally. Counsel suggested that the learned sentencing judge appears to have treated the period of participation in the Mancare Program as equivalent to a like period served in prison. Plainly this is not so and we think it is unlikely that the learned trial judge proceeded on that misapprehension. Participation in the Mancare Program does involve significant restrictions on personal liberty but they cannot be equated with a custodial sentence. We feel bound to say that we consider that the overall sentencing package does not adequately reflect the degree of wrongdoing nor provide the sort of deterrence to others which is required for a serious sexual assault. In our view the head sentence was at the very bottom of the appropriate range, if not marginally below it. However, it is primarily the short duration of the custodial sentence which causes us to think that the overall sentence is inadequate. We consider that a head sentence in the order of four years would have been more appropriate, although, as we have indicated, the sentencing discretion vested in the trial judge may have permitted a sentence as low as three years if the balance of the sentence gave public expression to the seriousness of the crime. The short duration of the custodial sentence was in this case inadequate. Even allowing for the restrictive nature of the Mancare Program, we consider that the sentence should have required the respondent to serve in the order of 12 to 18 months in custody. However this assessment of the sentencing package is not in itself sufficient to justify this Court interfering with the sentence on a Crown appeal. A Full Court of this Court in R v Tait (1979) 46 FLR 386 at 388 said: "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: see generally Skinner v The King (1913) 16 CLR 336 at 339-340; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v The King (1928) 41 CLR 230 at 249; Griffiths v The Queen (1977) 137 CLR 293. Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration': per Barwick CJ in Peel v The Queen (1971) 125 CLR 447 at 452. A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal': per Issacs J in Whittaker v The King (supra), (at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court. In R v Osenkowski (1982) 30 SASR 212 at 212-213, King CJ, in the following passage which has been cited in many cases subsequently, said: It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." The observations of King CJ are of particular relevance in this case where it is apparent that the trial judge has taken the view that the leniency extended by his sentence to the respondent at his particular stage in life might lead to reform. It was open to the learned trial judge to give weight to the fact that almost all of the respondent's earlier convictions occurred before he formed his present relationship with the mother of his three children, and to take the view that his responsibilities and feelings for his children could provide motivation to succeed in the Mancare Program. The authorities regarding Crown appeals against sentence were reviewed in R v Boudelah at 185-187 and R v Hillsley (1992) 105 ALR 560 at 565-566. See also Everett v The Queen (1994) 181 CLR 295 at 299. We would add an additional reference to the judgment of King CJ in The Queen v Drewett (1983) 35 SASR 344 at 345-346 where the learned Chief Justice said: "Mere disparity, however, even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal against sentence. I think that it is clear that appeals by the prosecution against sentence cannot be decided on the same basis as defence appeals against sentence: Griffiths v. The Queen (1937) 137 CLR 293; The Queen v Bitter (1981) 27 SASR 183 at 185; The Queen v Osenkowski (1982) 30 SASR 212, at 212-213. An appellate court should be cautious about allowing a prosecution appeal against sentence, thereby taking a second bite at the sentencing process for the purpose of imposing a more severe penalty on a prisoner. It seems to me that it should only be done where it is necessary to achieve one of the legitimate purposes of prosecution appeals against sentence to which I referred in The Queen v Osenkowski (1982) 30 SASR 212. I think that those purposes can be achieved in the present case by indicating clearly that the sentence imposed is substantially less than this Court regards as appropriate for crimes of the type which were committed by the respondent. It is unnecessary to go further and to disturb the present sentences." Notwithstanding that we consider that the sentence imposed upon the respondent fails to adequately reflect the degree of wrongdoing by the respondent, and to provide the sort of deterrence required, we are not satisfied that the sentence was so disproportionate that, having regard to the principles enunciated in the above cases, this Court should actually disturb the sentence. Rather, we consider that the legitimate purposes of this appeal will be sufficiently served by an intimation from this Court that we consider that the sentence was inadequate. For these reasons above, the appeal is dismissed. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the The Court Associate: Dated: 9 December 1997 Counsel for the Applicant: Mr T Buddin SC Solicitor for the Applicant: The Director of Public Prosecutions (ACT) Counsel for the Respondent: Mr T J O'Donnell Solicitor for the Respondent: Mr C J Staniforth Date of Hearing: 28 November 1997 Date of Judgment: 9 December 1997