Regina v J C E [2000] NSWCCA 498

Reported Decision : 120 A Crim R 18

New South Wales Court of Criminal Appeal

CITATION : Regina v J C E [2000] NSWCCA 498 FILE NUMBER(S) : CCA 60593/00 HEARING DATE(S) : 27/11/00 JUDGMENT DATE : 27 November 2000

PARTIES : Regina (Appellant) Joseph Carl Ewart (Respondent) JUDGMENT OF : Fitzgerald JA at 1; Whealy J at 32; Howie J at 33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3211 LOWER COURT JUDICIAL Goldring DCJ OFFICER :

COUNSEL : P G Berman SC (Crown) R Burgess (Respondent) SOLICITORS : S E O'Connor (Crown) Wilkinson Throsby & Edwards (Respondent)

Criminal Appeal Act 1912 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Pre-Trial Diversion of Offenders Act 1985 CASES CITED: Dinsdale v R [2000] HCA 54 DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CA 60593/00 DC 98/21/3211 FITZGERALD JA WHEALY J HOWIE J

MONDAY 27 NOVEMBER 2000

REGINA v J C E

JUDGMENT

1 FITZGERALD JA: The respondent is a 42 year old male. His childhood has been described as "happy and unremarkable". He was a qualified fitter and turner and has a stable employment history. The complainant is his daughter. 2 The respondent and the complainant formerly lived with other members of their family at an address in Moss Vale. During that period the respondent sexually assaulted the complainant. 3 On an afternoon during the third school term of 1994, the respondent approached the complainant from behind while she was alone in an upstairs bedroom at her grandmother's residence. He placed his hands underneath her shirt and around her breasts. He then took her shirt, jeans and underpants off and put a finger in her vagina and moved it around. He removed his finger and then licked the complainant on and around her vagina. When he stopped he told her not to tell anyone as it was their little secret. 4 The respondent and his wife, the complainant's mother, separated about five years ago after they had been married for approximately 14 years. On a number of occasions after the respondent and her mother had separated, the complainant stayed at the respondent's premises in Moss Vale for access visits. During one visit, between 30 January and 30 March 1997, the respondent carried the complainant into his bedroom, removed her clothing, rubbed her breasts, licked her in and around the vagina and inserted one of his fingers into her vagina. 5 On 22 November 1997 the complainant informed the police that she had been sexually abused by the respondent. The respondent subsequently participated in an electronically recorded interview in which he admitted some of the complainant's allegations and said that he could not remember other matters but that whatever she said was correct. 6 On 21 August 1998 the respondent pleaded guilty at Campbelltown District Court to two counts of aggravated sexual intercourse with the complainant without her consent when she was under the age of 16 years, contrary to s 61J(1) of the Crimes Act 1900. The maximum penalty for each offence was imprisonment for 20 years. 7 On that day, Ford ADCJ dealt with the respondent under the Pre-trial Diversion of Offenders Act 1985. The respondent undertook to attend a program at Westmead (the "diversion program") for two years. The conditions of his undertaking required him to undertake the diversion program conscientiously, reside outside Moss Vale and not enter the Moss Vale area except to use a particular road to travel between his home and work and not contact his children, including by telephone calls and messages via third parties. 8 On 26 April 2000 the Director of the diversion program notified the District Court that the respondent had been suspended from participation in the program due to his unsatisfactory progress and breaches of his undertaking. 9 On 14 July 2000 the respondent appeared before Goldring DCJ in Campbelltown District Court and was sentenced to imprisonment for two years with a minimum term of 15 months, suspended for two years upon his entering into a good behaviour bond for the period of his sentence upon condition that he: (i) appear for sentence if called upon; (ii) be of good behaviour; (iii) not live within five kilometres of Moss Vale railway station; (iv) advise the Registrar of any change in his residential address; (v) not have contact with his children physically or by telephone or by mail or through third parties for the period of his sentence and not visit them; and (vi) accept the supervision of the New South Wales Probation and Parole Service, including assessment, therapy and courses, including the COBAC Program, as directed. 10 On 31 October 2000 the Director of Public Prosecutions appealed to this Court pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent by Goldring DCJ. The Director of Public Prosecutions submitted that the sentence imposed on the respondent was manifestly inadequate. 11 Subsection 5(1) of the Crimes (Sentencing Procedure) Act 1999 provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Understandably, the respondent did not submit that the sentencing judge erred in his conclusion that imprisonment was the only sentence appropriate for the offences committed by the respondent. 12 Because the sentence of imprisonment imposed on the respondent was not for a term of more than two years, the sentencing judge had power under s 12(1) of the Crimes (Sentencing Procedure) Act to suspend the execution of the sentence of imprisonment for a period of not more than the term of imprisonment which he imposed and to direct that the respondent be released from custody provided that he entered into a good behaviour bond for a term not exceeding that period. 13 The Director of Public Prosecutions referred the Court to an article entitled Suspended Sentences and Preventative Sentences: Illusory Evils and Disproportionate Punishments by a Lecturer, Mr Mirko Bagaric, in the University of New South Wales Law Journal 1999 pg 535 and placed emphasis upon Kirby J's reference in Dinsdale v R: "...the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend." It was submitted that the "structure of the [ Crimes (Sentencing Procedure) Act ] as it concerns suspended sentences...provides something of a conundrum." 14 An attempt was made to highlight the perceived "conundrum" by pointing out that the sentencing judge had not (and perhaps it was implicitly suggested could not) explain why a suspended sentence was appropriate although a good behaviour bond was not appropriate. The unstated premise appeared to be that there is a necessary inconsistency between conclusions that a good behaviour bond is inappropriate but a suspended sentence of imprisonment is appropriate. Somewhat similar submissions were made in relation to the conclusions necessary to support a decision that there is no alternative other than the sentence imposed and a decision that a suspended sentence is appropriate. 15 It is desirable not to complicate the sentencing process unnecessarily. The legislative intention seems plain. Subsection 5(1) of the Crimes (Sentencing Procedure) Act requires a court to consider all possible alternatives and be satisfied that no penalty other than imprisonment is appropriate before it sentences an offender to imprisonment, including a sentence of imprisonment which is suspended. A sentence of imprisonment which is suspended is nonetheless a sentence of imprisonment. 16 A sentence of imprisonment, including a sentence of imprisonment which is suspended, is a heavier sentence than a non-custodial sentence and is inappropriate if a non-custodial sentence, such as a good behaviour bond, is appropriate. 17 If the court is satisfied that no penalty other than imprisonment is appropriate, it must determine what term of imprisonment is appropriate. Other questions then arise. By subs 12(1) of the Act, one of the questions to be considered when the appropriate term of imprisonment is not more than two years, is whether execution of the sentence should be suspended. When that question falls for consideration, the same considerations as were relevant in determining whether a sentence of imprisonment was called for and if so what term of imprisonment was appropriate, again fall for consideration in determining whether execution of the sentence should be suspended. Broadly stated, as Kirby J pointed out in Dinsdale, the material considerations are the objective features of the offence and the personal considerations applicable to the offender including considerations of rehabilitation and mercy. 18 Often, as in the present case, the material considerations in sentencing will point in different directions. The sentencing process requires the court to balance those considerations. A balancing of the considerations which led to a conclusion that no sentence other than imprisonment is appropriate may, nonetheless, lead to a decision that execution of the sentence should be suspended. 19 A sentencing judge must explain his or her decision. That might require discussion of some other sentencing options with reasons why those options were not adopted. For example, that is implicit in s 5(1) and expressly provided for by s 5(2) of the Crimes (Sentencing Procedure) Act. However, it is obviously unnecessary for every possibility to be discussed in every case. For example, it is unnecessary to explain why community service is not an appropriate sentence for a murderer. Further, the ultimate decision, for example, whether a term of imprisonment should be eight years or nine years, frequently involves a subjective judgment, based on experience as well as information, which cannot be precisely and comprehensively articulated. 20 The nature of the decision-making process involved in sentencing is recognised by the established principles concerning appellate review of sentencing. An appeal court is not entitled to intervene unless a specific error is identified or the sentence is so manifestly unjust or unreasonable that an unidentifiable error must have occurred. Even then an appeal court has a discretion not to intervene on a prosecution appeal and generally is reluctant to do so. It is rare for an appellate court to intervene if the prosecution is unable to point to a specific error. 21 In the present case the trial judge's sentencing remarks were completely orthodox and devoid of identifiable error. In particular, his Honour referred to the importance of general deterrence in sentencing for offences of the nature of those committed by the respondent. 22 In this Court the Director of Public Prosecutions relied on the respondent's exclusion from the diversion program and the conduct which had led to his exclusion. Broadly stated, although the respondent's progress was initially satisfactory, the Director of the diversion program considered that it became unsatisfactory after about eight months and thereafter continued to be unsatisfactory. Further, the respondent did not comply with his undertaking to remain out of Moss Vale and avoid contact with his children. He had ongoing contact with his son and an isolated and, according to his evidence, unintentional contact with the complainant, whom he attempted to persuade to keep the contact secret. 23 Although the respondent submitted that it is impermissible for his failure to comply with his undertaking and exclusion from the diversion program to be taken into account in sentencing, he accepted that his conduct was relevant. The sentencing judge took account of what the diversion program reports revealed, together with other circumstances favourable to the respondent, and concluded that the respondent had made efforts to comply with his undertaking and the program, that he was remorseful and that there were prospects of rehabilitation. Those conclusions were open. 24 Another submission by the Director of Public Prosecutions was that "...not only is it likely that the respondent will be effectively unpunished for offences of a most serious kind, but he may be also effectively untreated." 25 The first proposition is patently incorrect. A suspended sentence of imprisonment is punishment. 26 The second proposition is also unjustified. Indeed, as the respondent pointed out, it is inconsistent with the position adopted by the prosecution before the sentencing judge. The attitude of the prosecution at that time would be material to this Court's exercise of its discretion if it were persuaded that the sentence imposed on the respondent is manifestly inadequate. It is sufficient to dispose of this aspect of the matter to say that the prosecution tendered a pre-sentence report to the sentencing judge which indicated that appropriate treatment is available for an offender such as the respondent through the Probation and Parole Service. It would be regrettable if the position were otherwise. 27 It is finally possible to come to the area of the crux of the case for the Director of Public Prosecutions. His essential argument is that the offences committed by the respondent were so serious, and general deterrence of such offences is so important, that a suspended sentence is less than the minimum sentence which the sentencing judge could reasonably and justly impose. 28 The respondent's submissions pointed out that a suspended sentence of imprisonment does include an element of general deterrence, that his participation in the diversion program had restricted his liberty, that there had been a significant period between his sentencing and this appeal, and that he has been complying with his good behaviour bond and making satisfactory progress in a program which he is undergoing under the auspices of the Probation and Parole Service. Although those matters are not necessarily determinative, all are relevant to the exercise of the Court's discretion on a prosecution appeal. 29 The respondent also drew attention to the ultimate decision in Dinsdale. There a suspended sentence had been imposed on an offender in relation to one count of sexual penetration on a child under 13 and one count of indecently dealing with that child on a separate occasion. The Western Australian Court of Criminal Appeal held that the sentence was manifestly inadequate. The High Court allowed an appeal. It was emphasised that ordinarily such offences merit immediate imprisonment for a significant period. However, each case must be decided on its merits and a sentencing judge has a discretion to be lenient in an individual case. 30 In my opinion the respondent should have received a heavier sentence than he did. However, in the circumstances it would be a departure from the established principles applicable to the exercise of this Court's power on an appeal by the Director of Public Prosecutions against a sentence which has been imposed for the Court to intervene. 31 Accordingly, I dismiss the appeal. 32 WHEALY J: I agree. 33 HOWIE J: I agree. This is not a matter which warrants the intervention of this Court and therefore the appeal should be dismissed. 34 FITZGERALD JA: The order of the Court is that the appeal is dismissed. **********