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The Queen v MAH [2005] NTCCA 17

PARTIES: THE QUEEN

v

MAH

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 20 of 2005 (20427080)

DELIVERED: 2 December 2005

HEARING DATES: 11 November 2005

JUDGMENT OF: MILDREN, THOMAS & SOUTHWOOD JJ

CATCHWORDS:

CRIMINAL LAW – Crown appeal – sentencing – sexual offence – child under 16 – whether sentence inadequate – considerations when sentencing – appeal allowed

Criminal Code Act (NT) s 132(2), s 132(4), s 410, s 429, s 429(2)
Supreme Court Rules (NT) r 84.06, r 84.06(1), r 84.16
Evidence Act (NT) s 21B, s 21B(2)
Sentencing Act (NT) s 43, s 5(2)(a)

M v The Queen (1994) 181 CLR 487, applied
R v Morton (2001) 11 NTLR 97, applied
The Queen v Day [2004] NTCCA 2, applied
Dyers v The Queen (2002) 210 CLR 285, referred to
Green v R (1989) 95 FLR 301, referred to
Markarian v The Queen [2005] 215 ALR 213, referred to
McDonald v The Queen (1992) 110 FLR 232, referred to
MFA v The Queen (2002) 213 CLR 606, referred to
R v Pham [2005] NSWCCA 94, referred to
R v S (2003) 1 Qd.R. 76, referred to
R v Tait and Bartley (1979) 24 ALR 473, referred to
R v Thi Bach Tuyet Do [2005] NSWCCA 258, referred to
Rostron v The Queen (1991) 1 NTLR 191, referred to
The Queen v Emin Kansiz VCCA (unreported, delivered 7 December 1982), referred to
Dauphin v R [2002] WASCA 104, followed

REPRESENTATION:

Counsel:
Appellant: T. Pauling QC with Ms S. Brownhill
Respondent and Applicant
on the Cross Appeal: Mr P. Elliott

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent and Applicant
on the Cross Appeal: De Silva Hebron

Judgment category classification: B
Judgment ID Number: Mil 05362
Number of pages: 24

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v MAH [2005] NTCCA 17
No. CA 20 of 2005 (20427080)

BETWEEN:

THE QUEEN
Appellant

AND:

MAH
Respondent

CORAM: MILDREN, THOMAS AND SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 2 December 2005)

Mildren J:

Introduction

[1] On 4 August 2005, the respondent was found guilty and convicted of two counts of unlawful and indecent dealing with a child under the age of 10 years, namely 7 years, contrary to s 132(2) and s 132(4) of the Criminal Code. The offences were alleged to have occurred on 27 November 2004. On 5 August 2005, the respondent was sentenced to 11 months imprisonment on the first count, seven days imprisonment on the second count to be served concurrently and the total sentence was suspended after the respondent had served four months. On 2 September 2005, the appellant lodged a notice of appeal against the sentence imposed.

[2] On 26 October 2005 the respondent filed an application for an extension of time within which to cross appeal against his conviction on the ground that the verdict of the jury was unreasonable and cannot be supported having regard to the evidence, thereby leading to a miscarriage of justice.

[3] At the time of the filing of the notice of appeal by the appellant, the respondent was legally unrepresented and serving his sentence at the Darwin Correctional Centre. The notice of appeal was served upon the respondent on 22 September 2005.

[4] According to the affidavit of Ms Savvas, the respondent’s solicitor, the respondent originally indicated following his sentencing that he was not financially in a position to fund an appeal against his conviction or sentence and he instructed his then solicitors not to file a notice of appeal. It was only after service upon him of the notice of appeal by the Crown and following a discussion with his solicitor and counsel on 30 September 2005 that he subsequently gave instructions to file an application for an extension of time within which to appeal against his conviction.

[5] It is well established that s 410 of the Criminal Code does not confer a right of appeal against conviction on the ground that the verdict was unsafe or unsatisfactory, or as the ground is now more properly described, that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. Such a ground does not involve a question of law alone and therefore leave to appeal is required: see Rostron v The Queen (1991) 1 NTLR 191 at 205.

[6] Rule 84.06 provides as follows:

“(1) A respondent who desires to appeal from the whole or any part of a conviction, special finding, sentence, determination, declaration, order or judgment, or to seek a variation of the whole or any part of a conviction, special finding, sentence, determination, order or judgment, need not institute a substantive appeal, but shall, within 14 days after the service on him of the notice of appeal, or within such further time as the Court allows –

(a) file a notice of cross-appeal; and

(b) serve a copy of that notice on the appellant and any other person affected by the relief which he seeks.”

[7] Counsel for the respondent advised that he believed that the respondent had until 14 days after service upon him of the Crown’s notice of appeal in order to lodge a cross-appeal against his conviction, relying upon r 84.06(1). I have already ruled that the r 84.06(1) does not apply in circumstances where an appellant needs to obtain leave to appeal but applies only where there is a substantive right of appeal. Accordingly, the respondent, if he wishes to appeal against his conviction, must seek leave to appeal and must also obtain an extension of time within which to lodge an appeal out of time. In any event, the application, which the respondent had made, recognised that he was already out of time for the lodging of a cross-appeal even if r 84.06(1) gave him a right of appeal in the circumstances.

[8] It is well established that this Court will not grant an extension of time to appeal unless satisfied that the grounds upon which the appellant seeks to argue his appeal have reasonable prospects of success: see Green v R (1989) 95 FLR 301 at 303-304 per Asche CJ. This is a similar test to that which is required on an application for the grant of leave to appeal: see McDonald v The Queen (1992) 110 FLR 232 at 235 per Asche CJ:

“It seems therefore that one should take the broad view here and determine whether there is an arguable case that his Honour's sentencing discretion has miscarried or whether there appears any real element of injustice which might operate against the applicant if the leave is refused. In other words, it seems to me that the purpose of the application for leave to appeal against sentence is to weed out the obvious cases where it is plain that the appeal cannot succeed, but not otherwise to deprive an applicant of his right of appeal.
Even if the individual judge hearing the application feels that on the probabilities the applicant will not succeed, if there is a real possibility that the applicant might suffer injustice by refusal, leave should be granted.”

[9] The same tests are applied in respect of applications for leave to appeal against conviction.

[10] Pursuant to orders made by me on 1 November 2005, the respondent filed and served an application for leave to appeal and a supporting affidavit and the matter came before me pursuant to r 84.16 to decide whether or not to grant an extension of time and to grant leave to appeal. Such applications are made on the papers without oral submissions in accordance with s 429 of the Criminal Code. Having considered those applications I refused them. Section 429(2) provides that in those circumstances the applicant is entitled to have the matter determined by the Court of Criminal Appeal constituted by three judges.

[11] After hearing extensive oral argument from Mr Elliott on behalf of the respondent, I am still of the opinion that the application for an extension of time and for leave to appeal should be refused.

[12] At the trial, the Crown’s case was as follows. A few months before the 27 November 2004 the complainant’s mother (M) and her children, having separated from her ex-partner moved to an address in Fannie Bay. M’s ex partner had introduced her to the respondent. Approximately a fortnight before 27 November, M received a telephone call from the respondent advising her that he had moved back to Darwin and he asked if he could stay with her because he had nowhere else to go. M agreed that the respondent could stay for a short time. During this period, the respondent slept on a lounge in the lounge room.

[13] M’s daughter J, the complainant, was born on 13 February 1997. On Saturday 27 November 2004, J was seven years of age. At sometime during the day J went into the lounge room at a time when the respondent was lying on the lounge. The respondent took hold of J’s left hand and put it down the front of his pants in the genital region. She was able to feel the respondent’s erection. After approximately 10 seconds, the respondent put his hand down J’s pants and fondled her bottom. He then took hold of J’s hand again and placed it on his erection for a short period of time, some three or four seconds.

[14] Subsequently J told her aunt later that afternoon. The complaint was repeated subsequently to the complainant’s mother. Count 1 dealt with the touching of the penis and count 2 dealt with the touching on the bottom. It should be noted that the evidence was at all times that the complainant was touched on her pants and not on her skin. J’s evidence had been previously recorded in accordance with s 21B of the Evidence Act. That recording was played to the jury as that witness’ evidence in accordance with s 21B(2). At the time that J’s evidence was recorded, she was eight years of age. Following an examination of J by the Judge conducting the preliminary hearing, she was permitted to be affirmed.

[15] Initially J was reluctant to give evidence of what happened between her and the respondent:

“Now, J did anything happen when A (the respondent) was staying at your house?---Yes.
In Fannie Bay – can you tell us what happened?---I don’t want to tell you.
When A was staying on the – in the lounge room, was he ---?---Yes.
---actually sleeping on the sofa or was he sleeping near the sofa in the lounge room where was he sleeping?---He was sleeping near the table.
Were you ever alone in that room with A?---Yes.
And how many times were you alone with him in that room?---I can’t remember.
Was it more than once or?---Yes.
And did A ever speak to you, did you ever have a conversation with him when you were with him in the lounge room on your own?---Can’t remember.
And were you ever in the lounge room when A was lying down on the lounge?---Yes.
And were you the only one in the room when you saw him do that?---Yes.
Did anything happen when he was lying on that lounge room?---Yes.
Can you tell me what that was?---No.
Do you remember what happened?---Yes.
Are you a little bit shy?---Yes.
J, you don’t have to be shy when you tell that story because we want to hear that story or what you---?---I don’t want to.”

[16] At that time it was approximately 11:15 am. His Honour granted the prosecution an adjournment until 2:00 pm when J was recalled to give evidence. On this occasion, her evidence in chief was broadly as previously outlined.

[17] During examination in chief she was asked:

“How many times did he grab your hand and put it down the front of his pants---?---A few times.
How many?---Once.
Sorry I didn’t---?--- Just once.
And how many times did he put his hand down your back?---I think lots of times, I don’t know.

[18] According to J, her mother was in the home at the time as were several of her siblings, the incident occurred sometime in the morning, when she made her complaint to her aunt later that day it was dark. However, according to the aunt this occurred later in the afternoon sometime after 4:00 pm. The mother’s evidence was also that it was late in the afternoon. J was asked why she did not tell her mother immediately after the incident happened and she stated that she did not know.

[19] There was some evidence that the first complaint, which was made to the aunt, was made shortly after the child had heard her aunt and her mother discussing the respondent in derogatory terms. However J had no recollection of this:

“…were you in auntie T’s house listening to mummy and auntie T talking about A that nighttime?---They weren’t talking about A.
All right, well when you told auntie T about A, hadn’t she been talking about A to you?---Yes.
She’d been saying what a nasty man he was hadn’t she?--- I don’t know.
Hadn’t she been saying to you and your mother that she didn’t like A, he was a nasty person?---Maybe, I don’t know.”

[20] It was put to J during cross-examination that she had practiced her evidence and had learnt what to say, the inference being that the child had been schooled by her mother:

“You’ve learnt what you have to say in court haven’t you? You’ve had to learn what you’re going to say?---Yes.
And you practised what you were going to say in court before you came today didn’t you?---Yes.”

[21] In re-examination:

“J, just about that word ‘practise’. Do you know what that means?---Yes.
Yes, what does it mean?---It means that – that you know the words that you can say.
Yes?---And what you do.
All right and also, do you know the word learn?---Yes.
Ane do you know what that means?---Yes.
Is what you told the court today what happened to you?---Yes.
And how did you practise what to say to the court? What do you mean by that? How did you do that?---That mum said – mum – mum said that you need to practise and she told me all the things to say and that.
Well, what did she tell you to say?---She told me to tell the truth and she said if you don’t tell the truth I might get in trouble from her.
And are you telling the truth?---Yes.”

[22] The mother denied discussing with J what she was to say in court or telling her what she should say.

[23] Some reliance was placed upon the fact that the complainant’s mother had offered her a treat during the interval when the evidence was being pre-recorded. J was asked about this in cross-examination:

“Okay do you remember your mother saying to you if you tell the court, if you say what happened I’ll take you out this afternoon for a treat, remember her saying that?---Yes.
What was the treat that she was going to take you out on?---It was a surprise.
Okay so what was – you don’t know what its going to be then?---Yes.
Do you know what its going to be , what’s the surprise?---No.
You don’t know what it is, but its going to be something good isn’t it?---Yes.
And your looking forward to that?---Yes.
And that’s why your giving your evidence the way you are now isn’t it, because your looking forward to that treat?---Yes.”

[24] The complainant’s mother was asked about this as well:

“…are you seriously telling this jury you haven’t discussed with your daughter what she is going to say in court?---No, I haven’t. I’ve told her to be strong, I’ve told her not to be scared. I told her that A can’t touch her again.
You, I suggest to you, have most certainly tried to convince your daughter as to what sort of things she ought to say in court?---I haven’t told my daughter what to say in court.
Your daughter, you recall, didn’t want to give evidence when she came along to this court the first time, did she?--- That’s right.
Why was it so important to you to offer her a treat – I’ll start that again. Why was it so important to you that she gave evidence that you would offer her a treat to do that?--- Because often that would give her encouragement.
Beg your pardon?--- It usually works on me when I take her shopping and she doesn’t behave.
Why, if she didn’t want to give evidence, didn’t you accept that?---Why?
Yes?--- Because I’m not going to lay down and let someone get away with what happened to her.
You don’t know whether it happened to her, do you?---No I don’t, but I had to encourage my daughter to keep her strong and let her speak about it.”

[25] Another point made by Mr Elliott, was that J gave evidence that at the time the respondent touched her, or made her touch him, he was lying on the lounge and she was “near the lounge”. The transcript reveals that she placed herself within a few inches of the respondent.

[26] When the child made her complaint to her aunt, her aunt said that J told her that both J and the respondent were lying on the lounge at the time when these things happened.

[27] The aunt’s evidence was as follows:

“Did you tell J to do anything?---I asked her to show me.
What did she do?---She laid down on my lounge with her head against the arm rest. She left a gap between herself and the back of the lounge, and indicated to me that that’s where A would be laying. She proceeded to show me that A got her hands and put them down his pants and she – she, well she indicated that to me on herself, and she – you know, kind of wriggled around a bit and I asked her what did she feel, and she said ‘hard’.”

[28] In cross-examination:

“Now as I understand your evidence, is it that both people were lying on the couch, that is A and J were lying on the couch when these things happened?---That is what she indicated to me. That’s correct.
Not that she was sitting somewhere else other than on the couch?---No.”

[29] The test to be applied where it is argued that the verdict of a jury is unreasonable or cannot be supported having regard to the evidence is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their judgment in M v The Queen (1994) 181 CLR 487 at 493, where their Honours said:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

[30] That test was recently confirmed by the High Court in MFA v The Queen (2002) 213 CLR 606. In M v The Queen, their Honours went on to say at 494:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

[31] In this case, the substance of Mr Elliott’s submission is that there were a number of discrepancies in J’s evidence; that there was some inconsistency between the evidence of the complainant and the complaint made to J’s aunt; that there was an inducement held out to the complainant to give evidence; and material from which the jury might feel that J had made her complaint only because she overheard the conversation between her aunt and her mother during which the aunt “bagged” the respondent. Also, it was put that there was an animus between the mother and the respondent which provided a motive for the mother to put words into the prosecutrix’s mouth as to what in fact happened.

[32] As was said by Callinan J in Dyers v The Queen (2002) 210 CLR 285 at 331 (par 134):

“The complainant's evidence contained some major inconsistencies. It departed from the way in which the prosecutor opened it, both by omission and addition. The appellant contends that the complainant's account was implausible, particularly her claim to have maintained such an uncomfortable posture during the session, and to be practically unclothed for so long on a cold day. Instances of inconsistency in the mother's evidence were also demonstrated. The mother had, it was also put, an animus against the appellant. These are, it may be accepted, arguable points and ones which a jury might well find persuasive. They do not however entitle this Court to enter a verdict of acquittal.”

[33] That passage was concurred in by Gaudron and Hayne JJ at 297 (par 22). In the same case Kirby J said at 312 (par 74):

“Obviously, the case for the prosecution had distinct evidentiary weaknesses. Nevertheless, the accusation by the complainant of improper behaviour on the part of the appellant was ultimately consistent, adhered to in sworn testimony and, in one sense, more believable because it was relatively confined. It would have been open to the jury to reason that, if the complainant were truly minded to make a false accusation, she could have embellished the complaints that she actually made. A great deal depended upon the impression that the complainant made upon the jury. If the trial was conducted fairly and accurately, I could not conclude that this was a case where the jury ought to have experienced a reasonable doubt about the guilt of the appellant.”

[34] Of course it is true that the complainant in Dyers case was 13 years of age rather than the tender age of the complainant in this case, but on analysis the matters pressed upon us by Mr Elliott are not such as to enable me to reach a conclusion there is a risk that a miscarriage of justice has occurred.

[35] It is clear that the child’s initial reluctance to give evidence against the respondent was readily attributable to her embarrassment at describing what had happened.

[36] As to the inducement being offered, the complainant agreed in cross-examination that her mother had said to her that if she told the Court what happened she would be taken out in the afternoon for a treat which she expected would be something good. The jury were entitled to take the view that the complainant was being forthright and honest in this account and therefore forthright and honest in her evidence that the matters of which she is complaining were also true.

[37] Similarly, I do not think that the passage of the evidence to which I have referred relating to the number of times the respondent grabbed the complainant’s hand and put it down the front of his pants, etc, is necessarily anything more than confusion by the witness as to whether the question related to the second period during which the respondent allegedly placed her hand down his pants or whether it referred to the number of times the respondent placed her hand down in his pants in total. Similarly, the evidence the complainant gave when asked how many times the respondent put his hand down her back is explicable by the fact that the complainant’s mother gave evidence that the complainant had complained to her on a previous occasion that when the respondent hugged her he touched her on the bottom. So far as the assertion is concerned relating to the different places which it is said the complainant placed the respondent and herself on the couch at the time of the offending, the jury may well have concluded that as the complainant was giving a demonstration with herself sitting on the couch, her aunt may well have misunderstood what the complainant had said to her about where she, the complainant, was at the relevant time.

[38] As to the complainant’s failure to make a complaint to her mother about the offending sooner, the jury were no doubt aware that by virtue of s 4(5)(b)(iv) and s 4(5)(b)(v) of the Sexual Offences (Evidence and Procedure) Act delay in complaining does not necessarily indicate that a complaint is false and that there may be good reasons why the victim of sexual offence may hesitate to complain about it. In any event, the complainant did give a reason in examination in chief, viz that she was scared of telling her mother and her auntie.

[39] So far as the suggestion that the mother may have coaxed the daughter to tell an untruthful story is concerned, that suggestion was denied by the mother and there is simply no evidence to support it.

Crown appeal against inadequacy of sentence

[40] One of the grounds put forward as a separate ground in this case is that the learned sentencing judge erred in taking into account as a relevant consideration the fact that if sentenced to a term of imprisonment for 12 months or more, the respondent may not have been granted a visa to remain in Australia or alternatively that his existing visa to remain in Australia may have been cancelled. In sentencing the respondent, the learned sentencing judge said:

“You are here under a temporary protection visa. The Migration Act permits the Minister to refuse to grant a visa or to cancel a visa if the person does not pass the character test. A person will fail the character test if the person has a substantial criminal record. A person has a substantial criminal record if the person has been sentenced to a term of imprisonment of twelve months or more. Such a sentence would leave you vulnerable to action of that kind.
In my view, the prospect of such exposure is not a matter that should lead me to impose a sentence that I would not otherwise regard as appropriate. The exposure is a consequence of you committing an offence of this level of seriousness. However, in a case such as this where the appropriate head sentence is in the order of imprisonment for twelve months, it is permissible to take that consequence into account in determining where, within the appropriate range, to fix the head sentence. I have adopted that approach.”

[41] In my opinion, the possibility of deportation is an entirely irrelevant matter for sentencing purposes. In Dauphin v R [2002] WASCA 104, Steytler J said:

“In my opinion, this submission is without merit. In R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311, Street CJ (with whom the other members of the Court were in agreement) said that "the prospect of deportation is not a relevant matter or consideration by a sentencing Judge, in that it is the product of an entirely separate legislative policy area of the regulation of society". Those remarks were cited with apparent approval by Brennan and McHugh JJ in R v Shrestha (1991) 173 CLR 48 at 58. Furthermore, as McPherson JA explained in R v Simard [2001] QCA 531 at [6], taking the prospect of the applicant's deportation into consideration has the potential to "produce a regime under which visitors or non-permanent residents [are] sentenced more leniently than Australians who [have] committed the same kind of offence. That cannot be a proper result in the administration of justice".”

[42] Anderson and McKechnie JJ concurred.

[43] There are a number of authorities from other jurisdictions to the same effect: see R v Pham [2005] NSWCCA 94 at [13]-[14] per Woods CJ at CL with whom Hislop and Johnson JJ agreed; R v Thi Bach Tuyet Do [2005] NSWCCA 258 at [24] per Buddin J (with whom Brownie AJA and Latham J agreed); R v S (2003) 1 Qd.R. 76 at [5] per McPherson JA with whom Thomas JA and Mullins J agreed.

[44] It is apparent from his Honour’s remarks that his Honour did take it into account albeit to a very limited extent. In my opinion, he was in error to do so. However, there appears to have been no submission by the Crown that his Honour would have been in error to have given the submission any countenance and that is a relevant factor in considering whether this Court ought now interfere.

[45] Next, the Crown complains that the learned sentencing judge’s sentencing remarks provided no explanation as to the reason why he thought it appropriate to suspend any part of the sentence. It was submitted that a sentencing judge has a duty to give reasons before taking this course. It must be remembered that judges, when imposing sentences, often give brief ex tempore reasons, and I would not wish it to be thought that it was necessary for a sentencing judge to give, in elaborate detail, reasons why a sentence is suspended in every case. Usually the reason will appear from the matters which his Honour has taken into account in determining the gravity of the offence and from the matters taken into account in mitigation.

[46] However, in this particular case, there were really very few mitigating circumstances other than the fact that the respondent did not have any criminal history. The only matter that was put on his behalf to the sentencing judge was the fact that he had lost his employment as a result of the need to be present for his trial.

[47] I think it was within his Honour’s discretion to impose a suspended sentence. The objective facts of the offending were not so serious as to require the whole of any sentence imposed to be served, without either the fixing of a non-parole period or the imposition of a partly suspended sentence. Although there was no plea of guilty, the child had to give evidence, and the respondent was not contrite, he had no prior convictions and this too was a factor which suggested that a partly suspended sentence was not inappropriate.

[48] The Crown also complains that the sentences imposed were manifestly inadequate and that his Honour erred in not making the sentences cumulative. I am unable to understand why there was necessarily a need for cumulative sentences. The whole of the offending took place over a very short period of time and on one occasion. So far as count 2 is concerned, the offending on that occasion was at the very lowest end of the scale.

[49] So far as count 1 is concerned, again the offending was of a very short duration. Clearly, it was the more serious of the two counts and consisted of the respondent taking hold of the prosecutrix’s hand and placing it on his erect penis for 10 seconds and then again for some three-four seconds. It is not clear whether the hand actually touched the penis or whether it simply touched the respondent’s clothes outside of the erect penis, but in any event it was not accompanied by any threats and it was desisted in by the respondent voluntarily.

[50] On the other hand, the Parliament has recently increased the sentences for this kind of offending from a maximum of imprisonment for 10 years to imprisonment for 14 years. That increase in penalty came into effect some eight months before the offences. The maximum penalty for an offence is a factor to which the Court is directed to have regard by s 5(2)(a) of the Sentencing Act. Further in Markarian v The Queen [2005] 215 ALR 213 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ said at page 222 par [31]:

“It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”

[51] This followed a quotation from Stockdale and Devlin on Sentencing (Waterlow Publishers, London 1987, pars 1.16-1.18) to this effect:

“A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].”

[52] In the present case, the increase in penalty was quite recent and can only have been the result of a conscious decision by Parliament that the previous maximum penalty was inadequate. There is nothing in his Honour’s sentencing remarks to indicate that his Honour had taken this into account. Again that is a matter that does not appear to have been the subject of any particular submission, although the prosecutor did point out to his Honour that the maximum was 14 years.

[53] A number of sentences in other cases were handed up to his Honour by counsel both for the respondent and for the Crown at the time of sentencing. Suffice it to say that all of those cases involved pleas of guilty rather than conviction after a trial by jury. Furthermore, they were all cases decided before the maximum penalty was increased. To that extent, they were of very limited value.

[54] Moreover, the learned sentencing judge had to bear in mind that the victim was only seven years old at the time of the offence, that the respondent was, on the other hand, aged 32 years that it was an aggravating circumstance that the respondent was a guest in the house of the victim, in a position where he was trusted to be left alone with the children of the family and that he took advantage of that trust. Although the respondent had no prior convictions, no character references were presented to the Court and the complainant’s victim impact statement indicates that the offending did have a negative impact upon her.

[55] In my opinion, having regard to all of these factors, the sentences actually imposed were manifestly inadequate and demonstrably so. In my opinion, a head sentence of two years on count 2 was required and a considerable portion of that sentence ought to have been served.

[56] However, as this is a Crown appeal, there are special considerations which are peculiar to Crown appeals which the Court needs to bear in mind. These have been referred to in a number of other cases. It is perhaps sufficient to refer only at this stage to The Queen v Day [2004] NTCCA 2, where I said at [54]:

“Despite the width of s 414(1)(a), this court will not interfere unless error either of fact or law is shown. Error includes the correction of a manifestly inadequate sentence, even if no particular error can be pointed to. However, the error must lead to the conclusion that the sentence imposed by the trial judge was not just inadequate but so obviously inadequate as to be unreasonable or plainly unjust.”

[57] On the other hand, as has been pointed out in R v Tait and Bartley (1979) 24 ALR 473, as well as by myself in R v Morton (2001) 11 NTLR 97 at 101-102 at pars [11]-[13], this Court will not necessarily interfere if the error has been the product of the failure by the prosecutor to draw the sentencing judge’s attention to matters of principle or matters of law which have led his Honour into error. In this regard as I have said before that the prosecutor did not draw his Honour’s attention to the fact that the penalties had been increased and what might flow from that; nor had his Honour been referred to any of the cases dealing with the relevance, or lack of it, of the possibility of deportation.

[58] Notwithstanding those matters, as was pointed out in R v Morton (supra) at 101-102 at [11], such matters would not necessarily preclude this Court from interfering if this Court thought the error was substantial.

[59] I consider that the combination of the errors made in this case are such that this Court ought to interfere, but nevertheless the Court ought to exercise the restraint which is usually exercised when this Court allows an appeal by the Crown against inadequacy of sentence: see R v Morton (supra) at 103 at [15] where I said:

“… the fact that the respondent has been twice placed in jeopardy, requires this Court to exercise restraint in re-sentencing the respondent, and justifies the imposition of a sentence which is less than the minimum sentence which ought to have been imposed in the first instance.”

[60] I would allow the appeal against sentence insofar as it relates to count 2 and substitute therefore a term of imprisonment of 18 months to be served concurrently with the sentence in relation to count 1. So far as the appeal against the sentence in relation to count 1 is concerned, I would dismiss the appeal. I would order that the sentences so imposed be backdated to commence from 4 August 2005. I would order that the respondent be released after having served nine months and that the balance of the sentence be held in suspense. I would fix the period of 18 months commencing 4 August 2005 as the period during which the respondent must not commit another offence punishable by imprisonment if the respondent is to avoid the consequences of s 43 of the Sentencing Act. So far as the conditions of the suspended sentence are concerned, I consider the conditions originally imposed by the learned sentencing judge to be appropriate and I would order the same conditions as were originally imposed.

Thomas J:

[61] I agree with the decision of Mildren J that for the reasons he states the appeal against conviction cannot succeed.

[62] I also agree that the appeal against inadequacy of sentence on Count 2 should be allowed. I am in agreement with the head sentence of 18 months on Count 2 concurrent with the sentence on Count 1, to be released after nine months.

Southwood J:

[63] I have had the advantage of reading a draft of the Reasons for Decision of Mildren J. I agree with both his Honour’s Reasons and proposed orders.

[64] There is a dichotomy between the authorities in Western Australia and New South Wales on the one hand - see, for example, Dauphin v R (supra); R v Pham (supra) at par [13] – [14] and Victoria on the other - see, for example, The Queen v Emin Kansiz VCCA (Unreported, Delivered 7 December 1982) in relation to whether the prospect of deportation of an offender is a relevant matter for consideration by a sentencing judge. In my opinion the approach adopted by the Court of Appeal in New South Wales and the Supreme Court in Western Australia is the correct approach. The risk of deportation is a risk that is a product of an entirely separate legislative policy area of the regulation of society. To take such a risk into account is potentially to undermine that legislative policy. It also has the potential to produce a regime under which visitors or non-permanent visitors may be sentenced more leniently than Australians who have committed the same kind of offence. I agree with Steytler J that such a result cannot be a proper result in the administration of justice: Dauphin v R (supra).