JNB v The Queen [2011] NTCCA 5

 

PARTIES:                                         JNB

 

                                                         v

 

                                                         THE QUEEN

 

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

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          CA 26 of 2010 (20807446)

 

DELIVERED:                                   19 May 2011

 

HEARING DATES:                           4 April 2011

 

JUDGMENT OF:                              MILDREN, SOUTHWOOD, BLOKLAND JJ

 

APPEAL FROM:                               KELLY J

 

CATCHWORDS:

 

CRIMINAL LAW – SENTENCING – Appeal against sentence – assessment of value of plea prior to a re-trial – plea to lesser charge – 3 grounds of Appeal – Failure to give adequate recognition to guilty plea – appropriate weight not given to prospects of rehabilitation – sentence manifestly excessive – Appeal Dismissed.

 

Criminal Code (NT) ss 131(A)(2) & (4), 132(1)(a), 410(c)

Sentencing Act (NT) ss 106A, 106B

 

        R v Damaso (2000) 130 A Crim R 206; followed

 

Atholwood v The Queen (1999) 109 A Crim R 465; Cameron v The Queen [2001-2002] 209 CLR 339; Gilligan v The Queen [2007] NTCCA 08; Kelly v The Queen (2000) 10 NTLR 39; NJB v The Queen [2010] NTCCA 05; Siganto v The Queen (1998) 194 CLR 656; Spencer v R [2005] NTCCA 3; referred to.

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     Ian Read

    Respondent:                                  Matthew Nathan

 

Solicitors:

    Appellant:                                     Northern Territory Legal Aid Commission

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       Blo1105

Number of pages:                             16


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

JNB v The Queen [2011] NTCCA 5

CA 26 of 2010 (20807446)

 

 

                                                     BETWEEN:

 

                                                     JNB

                                                         Appellant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:     Mildren, Southwood, Blokland JJ

 

REASONS FOR JUDGMENT

 

(Delivered 19 May 2011)

 

The Court:

Introduction

[1]       This appeal raises the question of the assessment of the value of the Appellant’s plea of guilty entered just prior to a retrial on a reduced charge.  On 1 November 2010 the Appellant pleaded guilty to one count of maintaining a relationship of a sexual nature with a child under the age of 16 years,[1] with an attendant circumstance of aggravation, that he indecently dealt with the child.[2]  The offending took place between 1 January 2007 and 8 March 2008.

[2]       The Appellant was sentenced to seven and a half years imprisonment commencing from 5 June 2010.  A non parole period of five years and three months was set.  The sentence was ordered to be served concurrently to the extent of six months with a sentence previously imposed on the Appellant.

[3]       Leave was granted by a Judge of this Court[3] to argue the first ground of appeal: “That the learned sentencing judge failed to give adequate recognition to the plea of guilty”.  The Appellant sought a re-hearing of a refusal to grant leave to argue two further grounds: “That the learned sentencing judge did not give appropriate weight to the applicant’s prospects of rehabilitation” and “That in all the circumstances the sentence was manifestly excessive”.[4]

Material before the learned Sentencing Judge

[4]       The agreed facts in support of the charge were as follows:  The victim “AC” was born on 15 January 1997.  The Appellant commenced a relationship with the AC’s mother in October 2004.  The Appellant moved to Darwin in July 2006 to assist his son in the son’s business.  AC’s mother and her children including AC followed in September 2006.  The mother’s work required her to be absent from home for travel approximately once per month for periods between two days to a week.  She married the Appellant in September 2007.  After the marriage, the mother and the children including AC moved into the Appellant’s home. 

[5]       In many respects the Appellant assumed the role of father of the three children.  When AC’s mother was away for reasons of her employment, the Appellant was effectively the sole carer of all children.  He had authority from AC’s mother to care for her and the other children and discipline them as required.  The mother instructed all children to do as the Appellant told them. 

[6]       Between 1 January 2007 and March 2008 the Appellant, (who at that time was aged either 54 or 55 years), maintained an unlawful relationship of a sexual nature with AC who was then between 10 and 11 years old.  During the 14 month unlawful relationship the Appellant committed offences of a sexual nature while AC’s mother was away.  The majority of the offending occurred in the Appellant’s bedroom he shared with AC’s mother.  On some of the occasions of sexual misconduct AC’s siblings were also in the house.  The sexual contact included the Appellant rubbing AC’s vagina, licking around her vaginal area, masturbating in front of her, making her masturbate him with her hands and showing her pornographic movies.  A disclosure was first made by AC to her mother after she discovered AC and the Appellant naked together in the swimming pool.

[7]       An entry on the “Information for Courts”[5] shows the Appellant was fined for firearms offences in 2008.  The more significant record is his conviction and sentence on 10 March 2009 for one count of indecent dealing with AC’s sister.  The Appellant was convicted of that count after the commission of offences against AC, however it was committed before the offending against AC the charge before the learned Sentencing Judge.  The learned Sentencing Judge concluded the offending against AC’s sister was not far removed in time from the offending against AC. 

[8]       A detailed Victim Impact Statement was read by AC’s mother.  It was accepted in the plea proceedings AC’s mother was a person who suffered harm arising from the offence.[6]  The Victim Impact Statement outlined the detrimental changes to AC, the destruction of trust and feelings of guilt the mother has experienced.  The mother expressed a strong desire the Appellant be punished given the impact of his offending on AC.

[9]       The Appellant wrote a statement which was read and tendered during the plea expressing “deep remorse” for his “indiscretions”.  His statement explained he had been in denial for some time and he pointed to alcohol abuse and denial of depression playing a part in his actions.  He acknowledged shame for the despair he caused “all concerned”.[7]  A medical report and medical records were received by the Court indicating a previous history of depression, in particular at the time of detection of the offences.  Further, a number of testimonials from the Appellant’s first wife, his son and a family friend attested to the Appellant being a hard worker, committed family man and committed volunteer for many organisations.[8]  Family support was confirmed to be available on his release from prison.  A bundle of certificates covering various achievements in training, volunteering and employment across a wide range of areas were also tendered on his behalf.[9]

[10]     Submissions were made about the Appellant’s prior good character and positive prospects for rehabilitation.  Submissions were also made about the value of the Appellant’s plea of guilty and the appropriate discount and there was some probing of this issue by the learned Sentencing Judge.  Counsel for the Appellant conceded the plea of guilty was not an early plea but maintained it was a plea to a lesser charge than those originally pleaded.  The original charges involved an element of penetration.  The count pleaded to on 1 November 2010 did not. 

Ground One: – That the learned Sentencing Judge failed to give adequate recognition to the plea of guilty.

[11]     Some history of the proceedings is required to properly appreciate the approach taken by the learned Sentencing Judge.  The Appellant entered the plea of guilty shortly before the commencement of the trial.  The trial was listed to commence on Monday 1 November, 2010.  On Friday 29 October 2010, a voir dire in relation to the admissibility of evidence and argument on an issue about calling AC was to commence prior to the hearing of the trial proper.  At that time discussions commenced between counsel for the Appellant and counsel for the Crown with a view to resolving the trial by way of a plea to one count of maintaining a relationship of a sexual nature with a child comprised of indecent dealing rather than acts of sexual intercourse.  On Friday 29 October 2010 the Court was advised of the negotiations.  The trial was settled on the basis of the indictment to which the Appellant pleaded guilty, that is, the charge of maintaining a relationship of a sexual nature consisting of incidents of indecent dealing.  The trial was vacated, the Appellant was arraigned and formally entered his plea on Monday 1 November 2010.

[12]     What complicated the assessment of the value to be given to the Appellant’s plea of guilty was that the trial which was listed for 1 November 2010 and then vacated was a re-trial.  The indictment on which the Appellant was arraigned at the first trial contained more serious counts, including allegations of sexual intercourse with a child under the age of 16, than the count to which the Appellant ultimately pleaded guilty.  The Appellant was convicted following the first trial.  However, his convictions were set aside on Appeal on 17 June 2010 and the Court of Criminal Appeal ordered a retrial.[10]  The Crown initially elected to retry the accused on an indictment charging 8 counts including seven counts of sexual intercourse with a child but after negotiations between the Crown and the Appellant on 29 October and 1 November 2010 the Appellant pleaded guilty to a single lesser count.  It was in this context the learned Sentencing Judge assessed the value of the plea of guilty. 

[13]     The Appellant gave evidence at the first trial denying not only the more serious charges which did not proceed after the plea negotiation between 29 October and 1 November 2010, but also denied any sexual conduct with AC at all.  The cross-examination of AC, consistent with what was then the Appellant’s case, involved suggesting to AC she had lied about the sexual abuse.  These were matters the learned Sentencing Judge traversed with both counsel as being relevant to the issue of the value of the plea in sentencing terms.[11]

[14]     The learned Sentencing Judge determined a sentence of eight years imprisonment would have been appropriate if not for the Appellant’s plea of guilty.  Her Honour indicated that although there should be some discount for reason of the plea of guilty, she did not think it should be very great and allowed a reduction in sentence of six months.  Her Honour acknowledged[12] the plea represented some indication the Appellant had accepted responsibility for his actions and some indication of remorse.  The utilitarian value of the plea in saving the cost to the community of a trial and sparing the victim and other potential witnesses the stress and anxiety of giving evidence was also acknowledged.  The learned Sentencing Judge however qualified the potential entitlement significantly.  Her Honour’s reasons for that qualification were as follows:

First, the plea comes at a very late stage after one trial and a successful appeal and on the day the retrial was due to begin.  The victim has already been put through the trauma of having to give evidence and being cross-examined by defence counsel suggesting that she had lied about you abusing her.  As late as Friday she was facing the prospect of being recalled for further cross-examination about a supposed motive she had for lying.  I have no doubt that this long drawn-out legal process has significantly added to the trauma suffered by this family as a result of your abuse of the victim.

You are of course entitled to plead not guilty and to appeal and you are not to be punished for that, but the consequence of having chosen that course of action is that if you later plead guilty you will not receive the same discount on your sentence as you would have received for an earlier plea which saved the victim the additional trauma she suffered from the trial process.

Your counsel has argued that you could not have been expected to plead guilty at an earlier stage when the particulars previously included matters of a more serious nature to which you have not admitted.  I accept that.  However, it has not been put on your behalf that you were always prepared to plead guilty to the charge in its current form.  Rather, at the first trial you gave evidence on oath that you had not sexually abused the victim at all, evidence which, by your agreeing to the Crown facts in this matter, you have now admitted to be false.

Your counsel has conceded that in those circumstances you are not entitled to as big a discount as you would have had you indicated at an earlier time a willingness to plead to the charge in its present form.  Giving of false evidence is not a matter that I can take into account on sentencing other than in the general sense outlined above that you were not entitled in the circumstances to a large discount for your plea of guilty.

[15]     In Cameron v The Queen[13] a majority of the High Court considered the Appellant in that case could not have been expected to have entered a plea of guilty to a drug offence before the charge was amended to correctly identify the substance he had in his possession.  Assessing whether a plea was indicated or entered at the earliest reasonable opportunity, Gaudron, Gummow and Callanan JJ[14] adopted what was said in Siganto v The Queen:[15]

A plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial.  The extent of the mitigation may vary depending on the circumstances of the case.

[16]     Their Honours go on to note remorse is not necessarily the only subjective matter revealed by the plea of guilty; the plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice. 

[17]     It is clear from the course of submissions and the learned Sentencing Judge’s remarks that the factors emphasized in Cameron v The Queen were carefully considered by Her Honour.  The extent of mitigation as a result of a plea of guilty may vary even where there has been a late change in the indictment which reduces the seriousness of the offence or offences charged on the indictment.  In the circumstances of this case it was open to Her Honour to conclude the willingness on the part of the Appellant to facilitate the course of justice was very recently acquired.  There was no suggestion he had offered to plead to a charge representing less serious facts at any time prior to 29 October 2010.  The indictment on which the first trial proceeded included conduct which formed the basis of the Appellant’s plea of guilty.  The Appellant chose to place all matters in issue in the first trial and to deny under oath all sexual misconduct. 

[18]     It is accepted, as acknowledged in Cameron v The Queen that the question of whether it was possible for a person to plead at an earlier time is not one that is answered “simply by looking at the charge sheet”. [16]  In Cameron, Gaudron, Gummon and Callanan JJ approved of the principles to be applied in similar cases as expressed by Ipp J in Atholwood v The Queen:[17]

It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted.  Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him.  During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognised his guilt on other counts … to persist in a not guilty plea to all counts.  In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.”

[19]     Her Honour could not be criticized for making “mechanical” assumptions about the timing of the plea.  Her Honour’s reasoning is clear.  We are mindful there may be cases where it is advisable that an accused not offer a plea to lesser counts so as not to suffer forensic prejudice if that is a real, rather than hypothetical concern.  Given the course of proceedings in which the Appellant had previously specifically denied lesser misconduct and cross-examined AC accordingly, (although the sentence is not to be aggravated because of that), it was open to the learned Sentencing Judge to conclude that this was a case where the discount by virtue of the plea at the commencement of the second trial would not be significant.

[20]     The approach taken by the learned Sentencing Judge was not inconsistent with the approach taken by this Court in Gilligan v The Queen.[18]  In Gilligan a plea of guilty was entered at trial after a complainant had given evidence in chief but before cross-examination.  In those circumstances Mildren J held a discount of 10 percent, resulting in a reduction of imprisonment for one year was appropriate in the circumstances.[19]  Riley J (as he then was), made similar observations:

The applicant pleaded guilty after the complainant had completed her evidence in chief.  It could not be said to have been an early plea and, given that the trial was underway, the utilitarian benefits that flowed from the plea were limited.  The learned sentencing Judge observed that the witness had been assembled and were ready to give their evidence.  The change of plea probably saved three to four days of hearing and were, to that extent, of benefit.

The most significant aspect of the change of plea was that it reflected a realisation on the part of the applicant of the gravity of his actions and a recognition of the harm he had caused.  The plea demonstrated remorse on the part of the applicant and the learned sentencing Judge accepted that to be so.  His Honour observed:

“Your instructions to counsel not to say anything which might cause further grief to the victim or members of her family and friends who were present in the court, also indicated to me that you were genuinely sorry for what you had done.  It took a long time, caused the victim further unnecessary distress and anxiety along the way, but you are entitled to some credit for that.”

Although the change of plea resulted in the complainant not being cross-examined it had still been necessary for her to give her evidence in chief in the presence of a jury and others in the court.  Her ordeal extended over a period of two days.  It is clear from the sentencing remarks that the process caused the complainant significant distress and that, in part, led to the applicant’s change of plea.

[21]     His Honour concluded the discount provided by the Sentencing Judge of 10 percent while at the low end of the available range was never the less in range.

[22]     In Spencer v R[20] Riley J (as he then was), with whom Martin (BR) CJ and Thomas J agreed, considered the value of an unaccepted offer to plead to a count of manslaughter after the Appellant was ultimately acquitted at trial of murder but convicted of manslaughter.  In relation to the assessment of the value of the plea His Honour said:[21]

In determining what weight should be given to an offer of this kind it is necessary to consider all of the circumstances in which the offer is made, including any terms attached to the offer, the time at which it is made and the prospects, assessed at the relevant time, of conviction in relation to more serious offences on the indictment.  Factors that will determine the extent to which leniency may be accorded those who plead guilty will include whether the plea demonstrates remorse, the utilitarian benefits that flow from the plea, the strength of the Crown case, and the extent to which the plea serves the self-interest of the accused.  It may also be significant that the offender, whilst indicating a preparedness to plead guilty to one or more, but not all, charges on an indictment, subsequent pleads not guilty to all counts and fully contests the proceedings.  Such was the case in this matter.

[23]     In the circumstances of this case, although we are of the view that a discount of seven percent is at the low end of the available range, it was nevertheless within the range given the history of the proceedings that were well ventilated before the learned Sentencing Judge.  Her Honour was entitled to make the findings she did on whether the Appellant had appreciated the seriousness of the consequences of his offending and the implication that has for assessment of remorse.  We would not interfere with the exercise of the learned Sentencing Judge’s discretion. 

[24]     In specifying the assessed reduction of six months imprisonment, Her Honour’s approach was consistent with the principles approved by this Court in Kelly v The Queen.[22]  As was said in Kelly v the Queen, it is not possible to lay down a tariff of what the reduction should be.  The Court held in Kelly v The Queen:[23]

In our opinion it is desirable that a sentencing court should indicate the extent to which, and the manner in where, a plea of guilty has been given any weight as a mitigating factor, but we do not consider that it is possible to lay down any tariff.  The weight to be given to the plea will vary according to the circumstances.

[25]     This ground will be dismissed.

Ground 2 - The learned Sentencing Judge did not give appropriate weight to the applicant’s prospects of rehabilitation.

[26]     The learned Sentencing Judge referred to a number of factors which might generally be understood in combination to contribute to an assessment of the prospects of rehabilitation.  Her Honour referred to the positive role of the Appellant as a father which was attested to in references from his former wife and one of his sons and to the volunteer and other community work the Appellant did in Victoria and the Northern Territory.  Other material about the Appellant’s prior good character and his acceptance of responsibility was tendered during the plea.  The material was persuasive and it suggested that the Appellant may have good prospects of rehabilitation.  The learned Sentencing Judge took account of those matters, including “positive aspects in your character”,[24] however on character the learned sentencing Judge stated what must have been obvious, that the Appellant had also abused AC’s sister.  She noted however the Appellant did not have a serious prior criminal history.  It is clear from Her Honour’s remarks[25] she gave those factors some weight but was also conscious to balance those factors as she was obliged to, against the seriousness of the offending.  While it may be helpful and in some cases preferable for sentencing Judges to make express assessments of the prospects of rehabilitation, the fact Her Honour did not express herself in those terms does not lead us to conclude Her Honour was in error in that regard when it is clear Her Honour weighed the relevant material in support of rehabilitation against other serious aspects of the case.

[27]     We would not grant leave to appeal on this ground.

Ground 3 – That in all the circumstances the sentence was manifestly excessive.

[28]     Taking into account the further offending for the indecent dealing against AC’s sister, the total effective sentence was 9 years with a non-parole period of 6 years and 9 months.  On behalf of the Appellant it was argued he had been sentenced in a way that was referrable to the more serious case of maintaining a sexual relationship involving sexual intercourse.  Clearly sexual intercourse was not part of the Appellant’s offending.  There were however other aspects of the Appellant’s offending that justified the sentence the learned Sentencing Judge ultimately passed.  Those features included the young age of AC; the mature age of the Appellant and the significant age disparity; the serious breach of trust while AC’s mother was away for work; the duration of the offending; although not penetration, the highly intrusive nature of the indecencies and the significant detrimental impact on AC.  Further, it is clear the principles of general deterrence, denunciation and the need to protect young children as vulnerable members of the community inform the overall sentencing process in cases of this kind.  The sentencing discretion will not be disturbed unless well known principles are enlivened.  As this court observed in R v Damaso:[26]

The presumption is that there is no error in sentencing; an appellant must demonstrate that the sentencer erred, either by acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the facts: Raggett (1990) 50 A Crim R 41.  In applying these principles to submissions that a sentence is “manifestly excessive”, it is for the appellant to show that the nature of the sentence itself affords convincing evidence that in some way the exercise of the discretionary sentencing power was unsound.  To do so, he must show that the sentence was clearly and obviously, and not just arguable, excessive: Cranssen (1936) 55 CLR 509 at 520.

[29]     We would not grant leave to appeal on this ground.

Orders

1.               The application for leave to appeal grounds two and three is dismissed.

2.               The appeal is dismissed.

________________________



[1] Contrary to s 131A(2) & (4) Criminal Code (NT).

[2] S 132(1)(a) Criminal Code (NT).

[3] S 410(c) Criminal Code(NT); SCR 86-14B(1).

[4] Grounds 2 & 3.

[5] Exhibit P2, AB 40.

[6] (AB 15) S 106A Sentencing Act (NT) defines “victim” as a person who suffers harm arising from an offence; “victim impact statement” refers to “an oral or written statement”.  S 106B Sentencing Act (NT) allows a person other than the prosecutor to present a victim impact statement “with permission of the court”.

[7] Exhibit D1, AB 45.

[8] Exhibit D5 AB 64-72.

[9] Exhibit D6 AB 73-91.

[10] NJB v The Queen [2010] NTCCA 05.

[11] AB 24-29;35.

[12] AB 95.

[13] [2001-2002] 209 CLR 339.

[14] Cameron at 343.

[15] (1998) 194 CLR 656 at 663-664.

[16] Cameron v The Queen at 20.

[17] (1999) 109 A Crim R 465.

[18] [2007] NTCCA 08.

[19] Gilligan, paras [2]–[6].

[20] [2005] NTCCA 3.

[21] Spencer at [12].

[22] (2000) 10 NTLR 39.

[23] Para [27].

[24] AB 97.

[25] AB 98.

[26] (2000) 130 A Crim R 206 at [46].