The Director of Public Prosecutions(Appellant) v Charlie Dalgliesh (A Pseudonym)

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Bell,Keane JJ.,Gageler,Gordon JJ.
• Judgment Date: 11 October 2017
• Neutral Citation: [2017] HCA 41
• Docket Number: M1/2017
• Date: 11 October 2017

[2017] HCA 41

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane AND Gordon JJ

M1/2017

The Director of Public Prosecutions

Appellant

and

Charlie Dalgliesh (A Pseudonym)

Respondent

Representation

G J C Silbert QC with B L Sonnet for the appellant (instructed by Solicitor for Public Prosecutions (Vic))

O P Holdenson QC with P S Tiwana for the respondent (instructed by Joseph Burke Law)

Sentencing Act 1991 (Vic), s 5(2).

Criminal law — Sentencing — Current sentencing practices — Incest — Crown appeal on ground of manifest inadequacy — Where s 5(2) of Sentencing Act 1991 (Vic) provided that in sentencing an offender a court must have regard to current sentencing practices — Where Court of Appeal held that sentence not wholly outside permissible range reflected in current sentencing practices — Where Court of Appeal held that current sentencing so low as to reveal error in principle — Whether latter conclusion required appellate intervention to correct error reflected in sentence the subject of appeal.

Words and phrases — “comparable cases”, “current sentencing practices”, “manifest inadequacy”, “maximum penalty”, “reasonable consistency”.

ORDER

• 1. Appeal allowed.

• 2. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 18 March 2016.

• 3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for determination of the appeal against sentence.

1 Kiefel CJ, Bell AND Keane JJ. Section 5(2)(b) of the Sentencing Act 1991 (Vic) (“the Sentencing Act”) provides that in sentencing an offender a court must have regard to current sentencing practices.

2 In the present case, the Court of Appeal of the Supreme Court of Victoria dismissed an appeal by the Director of Public Prosecutions (“the Director”) against a sentence for the offence of incest. The relevant ground of appeal was that the sentence was manifestly inadequate 1. The Court of Appeal held that the sentence was within the range indicated by current sentencing practices and, on that basis, dismissed the Director's appeal, even though the Court also concluded that this range is so low that it “reveals error in principle” in that it is not proportionate to the objective gravity of the offending or the moral culpability of the offender 2. Given that conclusion, the Court of Appeal erred by treating the range established by current sentencing practices as decisive of the appeal before it. Accordingly, the appeal to this Court must be allowed.

The Sentencing Act

3 Section 5(2) of the Sentencing Act relevantly provides:

“In sentencing an offender a court must have regard to –

(a) the maximum penalty prescribed for the offence; and

…

(b) current sentencing practices; and

(c) the nature and gravity of the offence; and

(d) the offender's culpability and degree of responsibility for the offence; and

…

(daa) the impact of the offence on any victim of the offence; and

(da) the personal circumstances of any victim of the offence; and

(db) any injury, loss or damage resulting directly from the offence; and

(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and

(f) the offender's previous character; and

(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.”

Instinctive synthesis

4 The considerations to which a sentencing judge is obliged by s 5(2) to have regard cannot be applied mechanically. Such an application is not possible given that the factors that must be taken into account are incommensurable, and indeed, in many respects, inconsistent. In Elias v The Queen3, French CJ, Hayne, Kiefel, Bell and Keane JJ said:

“As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions 4. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances.”

5 The balancing of the factors listed in s 5(2) of the Sentencing Act in order to arrive at a sentence that is just in all the circumstances is a matter of instinctive synthesis, as explained in Wong v The Queen5 by Gaudron, Gummow and Hayne JJ:

“[T]he task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.”

6 This statement was referred to, with evident approval, by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen6.

7 While the instinctive synthesis must be informed by each of the factors listed in s 5(2), the extent to which each factor bears upon the case is inevitably a matter for judgment. The process of instinctive synthesis thus allows a measure of discretion to the sentencing judge. The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances. Nevertheless, it is well understood that a sentence may be so clearly unjust, because it is either manifestly inadequate or manifestly excessive, that it may be inferred that the sentencing discretion has miscarried. The question raised for determination by the Court of Appeal in the present case was whether the sentence imposed on the respondent was manifestly inadequate.

8 The appeal to this Court is concerned with the significance accorded by the Court of Appeal to the consideration referred to in s 5(2)(b) of the Sentencing Act in determining the question before it.

9 In this regard, it may be said at the outset that the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor.

10 It is also important to note the consideration referred to in s 5(2)(a) – the “maximum penalty prescribed for the offence”. In this regard, in Markarian7, the plurality said:

“[C]areful 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.”

11 As will be seen, the range of sentences applied by the sentencing judge in the present case pays scant, if any, regard to the maximum penalty prescribed for the offence of incest. In particular, it is to be noted that the maximum penalty for incest from 1949 until 1997 was 20 years' imprisonment. From 1 September 1997, the maximum sentence for incest was increased to 25 years' imprisonment 8. In the second reading speech for the Bill which implemented the increase, the then Attorney-General said 9:

“The government believes that sexual crimes against children are extremely serious and when they occur have the potential to ruin young lives. This view has been repeatedly expressed by members of the public, victims' groups and other specialist bodies, and is now being acted upon.”

The proceedings

12 The respondent was convicted on his plea of guilty of one act of incest (“charge 1”) and one act of sexual penetration of a child under 16 (“charge 4”) upon complainant A. He also pleaded guilty to, and was convicted of, one act of incest (“charge 2”) and one act of indecent assault (“charge 3”) upon complainant B. A and B are sisters. At the time of the offending, A was aged between nine and 13 years and B was aged between 15 and 16 years. B has been diagnosed with a mild intellectual disability and attention deficit hyperactivity disorder.

13 This appeal is concerned with the sentence imposed in respect of charge 1, which alleged that the respondent, contrary to s 44(2) of the Crimes Act 1958 (Vic), between 16 January 2013 and 13 March 2013, took part in an act of sexual penetration with A – whom he knew to be under the age of 18 years and whom he knew to be the child of his then de facto spouse.

14 The respondent had commenced a relationship with A's mother in 2009. After some time, he moved in with the mother and the complainants, and their younger brother.

15 Prior to the offence the subject of charge 1, and while not yet in a de facto relationship with A's mother, the respondent committed the offence of sexual penetration of a child under 16 on A (charge 4). The circumstances of that offence were that, when A was between the ages of nine and 13, she entered the bedroom that the respondent shared with her mother. The respondent was in the bedroom having recently had a shower. A climbed into the bed. The respondent approached her, took his towel off, inserted his penis into her mouth, grabbed her head, and moved it back and forth 10.

16 Subsequently, in early 2013, the offence the subject of charge 1 was committed. By this time, the respondent was in a de facto relationship with A's mother. The circumstances of this offence were that A got into the bed that the respondent shared with her mother, while the mother was in the shower. The respondent moved himself towards A and inserted his penis into her vagina. A was aged 13 at the time. The respondent ejaculated inside her. As a result, A fell pregnant.

17 A later told her mother that the pregnancy was due to the fact that she had had sex with a male friend from...