The Queen v Alfred Chatfield [ACTCA]

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Higgins CJ,Refshauge,Lander JJ
• Judgment Date: 29 June 2012
• Date: 29 June 2012
• Docket Number: No. ACTCA 34-2011

[2012] ACTCA 32

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judges:

Higgins CJ, Refshauge and Lander JJ

No. ACTCA 34-2011

No. SCC 25 of 2010

Between:

The Queen

Appellant

and

Alfred Chatfield

Respondent

Counsel for the Appellant: Mr J White

Counsel for the Respondent: Mr J Sabharwal

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

Peel v The Queen (1971) 125 CLR 447

Griffiths v The Queen (1977) 137 CLR 293

Dinsdale v The Queen (2000) 202 CLR 321

The Queen v Osenkowski (1982) 30 SASR 212

Bui v Director of Public Prosecutions (Cth) (2012) 284 ALR 445

Crimes Act 1900 (ACT), ss 53, 60

Criminal Code Act 2002 (ACT), s 310

Criminal Code Act 1995 (Cth), s 307

Crimes Act 1914 (Cth), s 16A

Criminal Procedure Act 2009 (Vic), ss 289, 290

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33

CRIMINAL LAW — sentencing — Crown appeal against sentence — principles of Crown appeal — whether the sentence imposed by the sentencing judge was manifestly inadequate — whether the sentencing judge failed to properly accumulate sentences — whether the Court should have regard to the ‘principle’ of double jeopardy in re-sentencing — ‘principle’ of double jeopardy inconsistent with statutory purpose of sentencing — primacy of general deterrence — appeal allowed

ORDER

THE COURT ORDERS THAT:

• 1. The appeal be allowed.

• 2. The sentences imposed in respect of counts 1 and 4 on the indictment be set aside.

• 3. In respect of count 1 on the indictment, the period of imprisonment be increased from four years and six months to six years and three months.

• 4. In respect of count 4 on the indictment, the period of imprisonment be increased from two years to two years and eight months and the period of accumulation be increased from six months to one year.

• 5. The sentences imposed in respect of count 2 and 3 on the indictment be confirmed.

• 6. The respondent be sentenced to a total of seven years and nine months' imprisonment.

• 7. A non-parole period of six years be imposed.

REASONS FOR JUDGMENT

THE COURT:

1 This is a Crown appeal against sentence.

2 The respondent pleaded guilty to the following four counts on the one indictment:

• (a) one count of sexual assault in the third degree contrary to s 53(1) of the Crimes Act 1900 (ACT); and

• (b) two counts of acts of indecency without consent contrary to s 60(1) of the Crimes Act; and

• (c) one count of aggravated robbery contrary to s 310(b) of the Criminal Code Act 2002 (ACT).

Facts

3 At about 4.00am on 20 September 2009, the female complainant was walking north along Northbourne Avenue from the direction of Civic while she was speaking to her male friend on her mobile phone.

4 At or about 4.40 am, while she was still on her phone, the complainant walked past the ABC Radio Station building on the corner of Northbourne Avenue and Wakefield Avenue in Dickson, when she turned around and saw the respondent walking about 100 metres behind her. A few moments later she noticed the respondent was only about 10 metres behind her, and that he was running towards her. She stepped aside hoping that the respondent would run past her. However, the respondent grabbed hold of her from behind and grabbed her hair. The complainant screamed into the phone for help. The respondent told the complainant that he had a knife and he placed the knife against her neck. He told her to ‘shut the fuck up, relax, calm down’ or he would stab her. The respondent dragged her 10 to 15 metres into a darkened grass area. While this occurred, her phone rang and she answered it, screaming for help from her male friend. She lost hold of the telephone.

5 The complainant tried to grab the knife and in doing so she received a small cut to the webbing between her thumb and pointer finger on her left hand. The complainant believed that the respondent, who was describing what he intended to do, intended to rape her. The complainant felt the knife point in her back.

6 She was dragged to the ground and was on her knees being held by the hair. She offered the respondent money from her wallet if he would agree to let her go and she gave him $70, being all of the cash she had on her. The respondent took the money but did not let her go. The taking of the money comprised count 4, aggravated robbery, the maximum penalty for which is 25 years' imprisonment.

7 The respondent touched the complainant's breast by putting his hand down her shirt and her bra. He tried to take the complainant's pants off and turn the complainant over. He then put his hand down the back of her jeans and felt her lower back and buttocks.

8 The touching of the left breast and the lower back and buttocks comprised the two acts of indecency, the maximum penalty for each offence being, at the relevant time, five years' imprisonment.

9 The complainant continued to struggle and bit the respondent on the hand. During that struggle, the respondent hit the complainant on the right side of her head, on her ear. Eventually the complainant broke free of the respondent and ran to Northbourne Avenue. She ran in front of a taxi. While the taxi did not stop, the police arrived shortly after.

10 Count 1 comprised the assault with the knife, being a sexual assault in the third degree: s 53(1) of the Crimes Act. Section 53(1) provides for the offence of sexual assault in the third degree, which is punishable on conviction by imprisonment for 12 years where a person unlawfully assaults or threatens to inflict grievous or actual bodily harm on another person with intent to engage in sexual intercourse with that other person.

11 On 24 September 2009, the respondent was arrested at his home and was taken into custody where he remained until he was sentenced.

12 On 21 January 2010, the respondent was committed for trial. On 8 February 2011, the respondent's trial was listed to start on 30 May 2011.

13 On 29 March 2011, a new indictment was filed which was in the same terms as the previous indictment, except that the second charge of an act of indecency was added.

14 On 12 April 2011, the respondent pleaded guilty to all four counts on the indictment.

The Sentence Imposed

15 On 22 June 2011, a judge of this Court imposed the following sentence:

• (a) on count 1: four years and six months' imprisonment;

• (b) on count 2: 18 months' imprisonment;

• (c) on count 3: 18 months' imprisonment; and

• (d) on count 4: two years' imprisonment.

16 On account of the respondent's plea of guilty, the sentence on count 1 was reduced by six months; on count 2 by six months; on count 3 by six months; and on count 4 by six months.

17 There is a disparity in the reduction of the sentences on the four separate counts. In respect of count 1 the reduction is 10%; in respect of counts 2 and 3 the reduction is 25%; and in respect of count 4 the reduction is 20%. The sentencing judge did not explain why the discount rate varied for the three separate offences and the four counts.

18 The sentences on counts 2 and 3 were ordered to be served concurrently but were accumulated on count 1 by six months. The sentence on count 4 was accumulated on counts 1, 2 and 3 by a further six months.

19 The head sentence totalled five years and six months. The sentencing judge set a non-parole period of four years.

20 The sentence was backdated to 24 September 2009 when the respondent was taken into custody.

21 The sentencing judge said:

But for your pleas of guilty, I would have accumulated the sentences by nine months instead of six months, giving a total sentence of six and a half years and a non-parole period of four and a half years.

22 There is an error in that statement because if she had done what she said, the head sentence would have been six years and the non-parole period four years and six months.

23 On 2 July 2012, the Crown appealed against the sentence on the ground that the sentence was manifestly inadequate. The appeal was heard on 2 May 2012.

24 For the reasons that follow, we agree with the Crown's principal contention that the sentences imposed were manifestly inadequate.

Consideration of Appeal

25 The respondent is an Aboriginal person who was born in Shepparton in Victoria on 22 June 1968. He has five siblings: four brothers and one sister. Prior to leaving home at the age of 12 his family life was violent and he suffered abuse. At the age of 12 years he was detained in a juvenile detention centre.

26 He occasionally visits his brothers and mother. He has been estranged from his sister for some months, but would like to see her again.

27 He has a partner who lives in Coffs Harbour, New South Wales, and they have three children from their relationship. His partner has two children from a previous relationship.

28 The respondent was educated to the equivalent of Year 7, but his schooling was interrupted by either being expelled or banned because of anger management issues. He said that he hated school and learned very little from the experience. His schooling ended when he was detained in the juvenile centre at the age of 12.

29 He has had very little employment.

30 He has a problem with marijuana and alcohol, and says that he has previously attended rehabilitation programmes.

31 The psychological assessment indicates a diagnosis of both post-traumatic stress disorder and a major depressive disorder. The respondent has used alcohol in an attempt to remediate his post-traumatic and depressive symptoms and he has become psychologically and physiologically dependent on alcohol.

32 The psychological assessment states:

The severity of Mr Chatfield's psychological disturbance indicates that he requires intensive treatment. Such treatment must address not only his chronic substance abuse, but also the...