R v MAO; ex parte Attorney-General
[2006] QCA 99
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- R v MAO; ex parte Attorney-General[2006] QCA 99
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R v MAO; ex parte Attorney-General[2006] QCA 99
R v MAO; ex parte Attorney-General[2006] QCA 99
SUPREME COURT OF QUEENSLAND
PARTIES: | R |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 7 April 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 March 2006 |
JUDGES: | de Jersey CJ, Williams and Keane JJA |
ORDERS: | 1. Allow the appeal2.Set aside the sentences imposed in the District Court on 19 January 20063.In respect of each count, order that the respondent be imprisoned for 12 months, suspended after six months for an operational period of two years, the sentences to be served concurrently4.Declare that the periods already served in custody, referable to these offences, being two days from 24 May 2004 to 25 May 2004, and 70 days from 19 January 2006 to 30 March 2006, are taken to be time already served under the sentences now imposed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether otherwise appropriate sentence should be modified to avoid risk of deportation – whether sentencing Judge did so – whether risk of deportation of any relevance to sentencing process Migration Act 1958 (Cth), s 501 The following cases were cited: A-G (Qld) v T [2001] QCA 398; Appeal No 118 of 2001, 24 September 2001 |
COUNSEL: | S G Bain for the appellant |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant |
[1] de JERSEY CJ:The Attorney-General appeals in relation to a sentence of 11 months three weeks imprisonment suspended after three months for an operational period of two years, imposed in the District Court following the respondent’s pleas of guilty to two counts of unlawful and indecent dealing with a female child aged under 12 years.
[2] The grounds are that the sentencing judge erred in principle, “by imposing a lesser sentence to avoid the possibility of deportation”, and that the sentence is manifestly inadequate.
[3] The offences occurred at about 3 am on 14 May 2004. The complainant was the eight year old daughter of a family with whom the respondent and his wife and children were friendly. They are all of Samoan descent, resident in South East Queensland. The respondent, then 34 years old (and with no relevant prior criminal history), is not an Australian citizen, and has since the year 2000 been living in Australia with his family on a permanent residency visa. He had been in stable employment, supporting his wife and (now) six children.
[4] On the evening prior to the morning of the commission of the offences, the respondent and his family were present at the complainant’s parents’ home, as guests of her parents. Prior to the offences, the respondent’s children had been taken back to their own home. The complainant was sleeping on a lounge suite in the lounge room. The adult members of the party were together, engaged in social activity on the patio. The complainant called out to her mother, who went to her. She told her mother to the effect that the respondent had inappropriately touched her.
[5] A few days later, the complainant’s mother reported the matter to the police. The respondent was originally charged with rape, in addition to the counts to which he pleaded guilty in the District Court, but the Crown did not proceed with the rape charge. The pleas, taken with the Crown’s withdrawal of the rape charge, meant the complainant was spared having to give evidence.
[6] The respondent was sentenced for the following conduct. The complainant had been asleep. She awoke to feel the respondent touching her on the genital area, inside her panties. As put by the Crown Prosecutor: “with his fingers, he was rubbing her clitoris and her genitals inside the outer labia”. The respondent was kneeling beside her. As the complainant attempted to sit up, the respondent pushed her back, opened her legs, pulled the panties to one side, put his arm on her leg to hold her down and licked her genital area. As put by the Prosecutor, “he was doing the same thing with his tongue that he had been doing with his fingers”. The complainant then started shaking and crying, and the respondent desisted.
[7] When a little later challenged by the complainant’s mother, the respondent denied the allegations. He informed the police, subsequently, that he was “too drunk” at the time, and conceded that in the claims the complainant made, she must have been telling the truth.
[8] In her victim impact statement dated 24 November 2005, the complainant speaks of substantial diminution in her self esteem, and of the adverse effect these events have had on her friendships and social activities. In another statement of the same date, that is 18 months after the commission of the offences, the complainant’s mother speaks of her daughter’s consequent distrust of men. The mother also refers to a cultural consideration that “once you have been touched by a man, you are no longer a girl you are a woman”, and says that the respondent has “taken her innocence and girlhood away from her”.
[9] The sentence imposed by the Judge was more lenient than the penalty sought by either Counsel. The Crown Prosecutor submitted that a sentence of 12 months imprisonment suspended after a period to reflect the pleas of guilty would be appropriate. The prosecutor agreed with the Judge’s observation that “perhaps the sentence of 12 months is down towards the very bottom of the range”. Counsel for the respondent submitted before the sentencing Judge that the relevant range “is probably as low as nine months imprisonment up to over 12 months”, and sought a sentence of 10 months imprisonment suspended after four months. The sentence imposed was more lenient than that, in that it required the serving of only three months. In addition to observing, during the submissions, that a sentence of 12 months imprisonment was “down towards the very bottom of the range”, the Judge described the Crown’s approach as “very generous”. There is no particular explanation why he adopted the lenient course of requiring only three months to be served.
[10] In my view a head sentence of 12 months imprisonment would have been lenient for this sort of offending, because of the aggregation of these features: the nature of the acts done to the complainant – not casual touching, but exploratory conduct, using the fingers and, then, the tongue; there being two offences (the touching, and then the licking); the complainant’s tender age, and the substantial age difference between them; her having been asleep, in her own home, when the offending began; his having persisted notwithstanding the complainant’s attempt to sit up, physically overcoming her resistance; his desisting only when she began to shake and cry; the residual effect on the complainant; and the supervening consideration that he was, at the time, a guest of the complainant’s parents, a person they obviously would have trusted not to treat their child in this shameful way.
[11] In considering an appropriate range of penalty, one begins with the acknowledgement that save in exceptional cases, adults who indecently deal with children should serve a term of actual imprisonment. That was confirmed as long ago as 1996 in R v Pham [1996] QCA 003, CA No 435 of 1995; 6 February 1996, and the attitude of the courts has hardened since then.
[12] The decided cases do not greatly assist in determining the length of the term to be served. Cases such as R v GA [1999] QCA 009, CA No 417 of 1998; 4 February 1999 and R v O [2001] QCA 040, CA No 310 of 2000; 15 February 2001 would tend to support a view this respondent should spend at least six months in actual custody. Cases of sentencing following trial (eg R v YD [2002] QCA 489, CA No 186 of 2002; 15 November 2002, R v B [2003] QCA 105, CA No 336 of 2002; 14 March 2003, R v Richardson [2000] QCA 166, CA No 18 of 2000; 8 May 2000, R v Watson [1996] QCA 337, CA No 255 of 1996; 27 August 1996, R v Moffat [2003] QCA 095, CA No 439 of 2002; 11 March 2003, R v Hill [1995] QCA 450, CA No 303 of 1995; 5 September 1995, Pham, and GA), though relevant, need to be treated on that account with some care.
[13] Mr Moynihan referred to a number of cases. R v GO; ex parte A-G (Qld) [2004] QCA 453, CA No 201 of 2004; 26 November 2004 was different in that he was 22 years old, younger than this offender. In R v K [2003] QCA 521, CA No 290 of 2003; 20 November 2003, K was sentenced to 12 months imprisonment followed by 12 months probation. While there were two children involved there, they were older. There were four offences, two involving digital penetration. Allowing for those differences, it would generally sit comfortably with a penalty here which would require the serving of six months actual custody. In R v M [2003] QCA 556, CA No 359 of 2003; 11 December 2003, M received an effective 18 month term of imprisonment suspended after four months, for three offences, in circumstances where the complainants’ parents urged that he not be imprisoned and there was no evidence of lasting adverse effect. During that offending, the victims showed no resistance for a period, and when they finally did, he stopped at once. In R v W [2002] QCA 304, CA No 22 of 2002; 16 August 2002, W was sentenced to six months imprisonment followed by two years probation for less serious instances of touching, again with no resistance and in one case at the request of the victim. A-G (Qld) v T [2001] QCA 398, Appeal No 118 of 2001; 24 September 2001, was an Attorney’s appeal, in respect of sentences imposed following a trial, the appeal resulting in an 18 month term suspended after six months for much more serious offending, although the court referred to “numerous mitigating circumstances favouring the respondent”.
[14] In disposing of this Attorney-General’s appeal, the court is not straight-jacketed by a well-defined range, but should determine a penalty informed by, among other things, reasonable community expectations of appropriately deterrent responses to this sort of predatory crime against vulnerable child victims.
[15] My view is that the serious features of this offending, notwithstanding those warranting moderation, justified a head sentence of up to two years, suspended after six months.
[16] The focus in this appeal has dwelt on the course taken by the Judge in selecting a head sentence just short of 12 months. The Judge was informed that because of the operation of the Migration Act 1958 (Cth), the Minister may order the deportation of a non-citizen who has been in Australia as a permanent resident for a period of less than 10 years and is convicted in Australia of an offence for which he is sentenced to imprisonment for a period of not less than one year. Defence Counsel acknowledged that that consideration was not one which the Judge could “strictly take into account”. But the Judge plainly did, in selecting 11 months three weeks as the head term. He said, by way of explanation: “With regard to your status, I will not consciously endanger it, and I impose a sentence of 11 months three weeks imprisonment”. A few moments earlier, at the conclusion of the submissions, the Judge said: “…if I sentence him to 11 months three weeks, so, very close to the 12 months…no-one can say I have endangered his status in Australia, at least as a visitor”. Unfortunately the Prosecutor acquiesced in that course, saying it was “probably an acceptable approach”.
[17] Section 501 of the Migration Act provides, in sub-s (2), that “the Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test…”. Sub-section (6) provides that “a person does not pass the character test if: (a) that the person has a substantial criminal record (as defined by sub-s (7))…”. Sub-section (7) provides that “for the purposes of the character test, a person has a substantial criminal record if:…(c) the person has been sentenced to a term of imprisonment of 12 months or more…”.
[18] It is impermissible for a Judge to reduce an otherwise appropriate sentence to avoid a risk of deportation. That is well-established by comparatively recent authority. See R v S [2001] QCA 531, CA No 209 of 2001; 26 and 30 November 2001, where McPherson JA said:
“…I consider that the process of sentencing should not seek to anticipate the action that some other authority or tribunal, lawfully acting within the limits of a proper discretion, may take in future, by so adjusting the sentence as to defeat, avoid or circumvent that result.
…
More specifically, in R v Chi Sun Tsui (1985) 1 NSWLR 308, 311 Street CJ said that ‘the prospect of deportation is not a relevant matter for 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 of the learned Chief Justice were cited without apparent disapproval in R v Shrestha (1991) 173 CLR 48, 58.
…
It would in my opinion be quite wrong for the sentencing Judge to deliberately impose a lesser sentence in order to avoid the possibility of deportation, only to find that the Minister in fact later exercised his discretion to allow the offender to remain in Australia. That would have the consequence of imposing a sentence that was less severe than that visited upon an Australian citizen who was at no risk of deportation. It would produce a regime under which visitors or non-permanent residents were sentenced more leniently than Australians who had committed the same kind of offence. That cannot be a proper result in the administration of justice.”
See also R v Bob ex parte Attorney-General [2003] QCA 129, CA No 377 of 2002; 21 March 2003, pp 5-7; and the decision of the New South Wales Court of Criminal Appeal in R v Thi Bach Tuyet Do [2005] NSWCCA 258, para 24.
[19] In the last mentioned case, the Court of Criminal Appeal followed the approach set out in R v Pham [2005] NSWCCA 94, paras 13-14:
“It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumeten and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: R v Shrestha (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ.
The fact that the respondent would be or might be deported to Vietnam, was accordingly an immaterial factor in structuring a sentence in this case and error would be demonstrated if it could be established that it became a factor in determining any aspect of the sentence including the selection of an appropriate commencement date.”
[20] That error on the part of this Judge invalidated the sentencing process.
[21] Mr Moynihan, who appeared for the respondent submitted the Judge legitimately reduced the one year head sentence, by a week, to reflect the two days’ pre-sentence custody. If that was his intent – and it was not expressed, then it was not because he considered the two days’ custody warranted that reduction, but to create artificially an apparent justification for avoiding the risk of deportation which a 12 month sentence would entail, and that cannot be countenanced. Why I doubt that was the Judge’s intent is his strong observation as to the leniency or generosity of a 12month term, by which he meant, one reasonably infers, after taking account of all relevant matters (including the two days custody which would ordinarily feature minimally in this context), but before turning to the question of deportation.
[22] The sentences imposed must therefore be set aside, and an appropriate sentence now imposed.
[23] It is not now a matter of tinkering with or adjusting the sentence imposed, as submitted by Mr Moynihan. It was imposed here as the result of a significantly wrong process. This Court must therefore itself go through the correct process now, and impose an appropriate sentence.
[24] I consider the appropriate sentence allowing for the moderation which attends the disposition of an Attorney-General’s appeal, to be 12 months imprisonment suspended after six months for an operational period of two years. A sentence of that order is necessary to reflect the circumstances of gravity to which I earlier referred, while appropriately accommodating other aspects in mitigation. There should also be a declaration as to time already served, covering the two days to which the Judge referred, but which he failed to make the subject of a declaration, and the period 19 January 2006 to date.
[25] Because the Judge erred in principle by reducing the sentence he otherwise considered appropriate by one week to avoid a risk of the deportation of the respondent, the sentences he imposed cannot stand, and the respondent must be re-sentenced by this Court. That is sufficient to dispose of this appeal.
[26] I wish however, in addition, to address Mr Moynihan’s submission that the possibility of deportation was a potentially relevant consideration. He referred to s 9(2) of the Penalties and Sentences Act 1992 (Qld) which, after listing considerations to which a sentencing court must have regard, mentions, in para (q), “any other relevant circumstance”. The possibility that after the completion of the term of the imprisonment, a person in the position of this respondent may be deported is not relevant to the sentencing process.
[27] Whether or not deportation occurred, in that situation, would depend on an exercise of discretion by the Minister under the Commonwealth legislation, through the discharge of an executive function of course carried out completely independently of the courts of law.
[28] Mr Moynihan submitted that the effect of any deportation upon this respondent’s children would of itself be relevant to the sentencing process. I do not accept that, and point out that would presumably be a matter which could be considered by the Minister exercising his or her statutory discretion.
[29] It falls to the sentencing court to determine sentence by reference strictly to those matters which are relevant, and any prospect of deportation consequent upon the imposition of an otherwise appropriate penalty is simply irrelevant to that process. That is a matter of concern only to the Executive.
[30] In Bob, I said, with respect to the prospect of deportation:
“Her Honour was apparently not influenced by the issue of deportation in the context of the Migration Act in determining upon the sentence imposed, and she was not obliged to take that significantly into account. Indeed, as the Judge rightly pointed during the reopening proceedings, what was proposed then, and what is renewed here now, that is ‘to fashion a sentence which would not otherwise be considered appropriate solely to circumvent the Migration Act’, would not be a correct approach to the matter. Her Honour described that as ‘the very thing that ought not to occur, that is fashioning a sentence solely to defeat the exercise of discretion under s 501 of the Migration Act’. I respectfully agree.”