FEDERAL COURT OF AUSTRALIA

Kilpatrick v The Queen [2000] FCA 632

CRIMINAL LAW – sentence – where appellant convicted of two acts of indecency: one on a person under 10 years, pursuant to s 92K(1) of the Crimes Act 1900 (ACT); and another on a person under 16 years, pursuant to s 92K(2) of the Crimes Act 1900 (ACT) – whether sentence manifestly excessive.

Crimes Act 1900 (ACT) – ss 92K(1) and (2), s 429C

R v Tait & Bartley (1979) 24 ALR 472 approved

Reg. v Howells [1999] 1 WLR 307 approved

R v P (1992) 39 FCR 276 cited

R v Dent (unreported, NSW Court of Criminal Appeal, 14 March 1991) cited

Wilks v The Queen (unreported, Full Court of the Federal Court of Australia, 6 November 1992) cited

MARTIN JOSEPH KILPATRICK v THE QUEEN

A91 OF 1999

SPENDER, MILES & MATHEWS JJ

CANBERRA

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

THE COURT ORDERS THAT:

1.         The applicant have leave to appeal out of time.

2.         The appeals be allowed.

3.         The sentences imposed on 9 July 1999 be set aside.

4.         In lieu, the appellant on each count be sentenced to a term of imprisonment to expire on 11 February 2000.

5.         The appellant be released forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

REASONS FOR JUDGMENT

SPENDER AND MATHEWS JJ:

1                     On 11 February 2000 the Court ordered that: Martin Joseph Kilpatrick have leave to appeal out of time; the appeal by Kilpatrick against the severity of sentences imposed on him on 9 July 1999 in respect of each of the two counts of which he was convicted by a jury on 28 May 1999 be allowed; in lieu of the sentences imposed he be sentenced to a term of imprisonment to expire on 11 February 2000; and that he be released forthwith.

2                     The Court made those orders because we were of the view that they were appropriate.  Miles J indicated that, while he would allow the appeal against the sentence of two and a half years imprisonment on the first count and substitute a sentence of imprisonment for six months on that count, he would not interfere with the sentence imposed by the learned primary Judge in respect of the second count.

3                     These are our reasons for the orders which the Court made on 11 February 2000.

4                     On 28 May 1999 the appellant was convicted at trial by jury of one act of indecency on a person under ten years of age (the first offence), against s 92K(1) of the Crimes Act 1900 (ACT) (the Crimes Act), and one act of indecency on a person under sixteen years of age (the second offence), against s 92K(2) of the Crimes Act.  He was sentenced to two and a half years imprisonment on the first count, and two years imprisonment on the second.  Pursuant to s 443 of the Crimes Act, the sentences would be served concurrently.  A non-parole period of 10 months was set.

5                     Both offences of which the appellant was convicted were committed against his step-daughter (NH): the first in 1991 when NH was aged seven; and the second in 1997 when she  was thirteen.  The jury acquitted the appellant in respect of another count of indecency, which was said to have been committed upon NH in 1997 when she was aged thirteen (shortly before the commission of the second offence).

6                     The sentences were imposed on 9 July 1999.  On 3 November 1999, nearly 4 months later, the appellant filed an application for an extension of time within which to appeal, and a Notice of Appeal was filed on 23 November 1999.  The application to appeal out of time was neither consented to nor opposed by the Crown.  Having regard to the circumstances advanced by the appellant for the delay, the absence of any prejudice to the respondent and, in particular, the merits of the substantial application, we indicated that the Court should grant the application for leave to appeal out of time.

7                     The appellant had lived with the mother of NH for about ten years prior to 1997, having moved in with her when NH was three years old.  The learned sentencing Judge gave a brief recital of the facts in each of the two offences:

“…the first offence was committed when [NH], then…seven years of age, came into his bedroom to jump playfully on his bed and the accused took hold of her and rubbed her up and down against the genital region of his body, there being, however, a doona between the two bodies.

The second offence occurred again in the bedroom when, some six years later, [NH] came in with her then little brother, who had been born subsequent to the first offence, and again got onto the bed and on that occasion the prisoner touched her breasts and commented, ‘nice boobs’.  The touching on the second occasion occurred over her clothing.  At the time of these offences the prisoner had been living in a de facto relationship with [NH’s] mother, that having been a relationship which had been interrupted for some years and then resumed ….

Accordingly Mr Kilpatrick was in the position of, if not strictly speaking, stepfather, at least in a position of loco parentis in relation to the child.  And the offences involved in each case a significant betrayal of trust.”

8                     The learned sentencing Judge continued:

“After the first offence there was some confrontation between [NH’s] mother and the prisoner, as a result of which it was agreed that counselling would be arranged for the prisoner and he duly embarked upon some measure of counselling although during the course of his evidence at trial he purported to not really understand the purpose of that counselling since he denied that any offence had been committed.  Following the first offence and following the counselling there was a measure, obviously, of estrangement between [NH] and the prisoner but her evidence, and that of her mother, was that thereafter the relationship between her and the prisoner resumed and was substantially restored, although it may not have been restored to the point that it was before that.  Following the second offence … the relationship between the prisoner and [NH’s] mother was terminated…”.

9                     His Honour then said:

“A number of factors must be taken into account on the prisoner’s behalf…

The first is, that the prisoner has no previous convictions.  Indeed character evidence was called on his behalf at trial.  I accept that, save in relation to these two incidents, he has been a person of previously good character.

The second is that the offences for which he has been convicted, appear to have occurred spontaneously, rather than having been pre-meditated, and that on each occasion the offence was maintained for a comparatively short period. Furthermore, there was no skin to skin contact between them.  I think in all the circumstances it has to be conceded that the offences fall towards the lower end of the range of offences of this kind.  A further factor which it seems to me has to be taken into account, is that the consequences of having committed these offences have already been very serious as far as the prisoner’s own interests are concerned.

As a result of the commission of the second offence, as I have indicated, the victim’s mother terminated the relationship which she had previously had with the prisoner.  As a consequence of that termination, and the legal proceedings which followed, the prisoner has lost his house, as well as the relationship, he has lost custody of his son, and he is now facing a debt of some $10,000 for legal costs.  It is also true that having regard to the separation that has taken place, there has been virtually no contact between the prisoner and the victim, and that there is no reasonable likelihood of any further offences being committed on the victim, nor is there anything in the evidence before me to indicate the likelihood of any further offences on anyone else.

Although, as the learned Crown prosecutor points out, the fact that the prisoner continues to maintain his innocence and has not therefore confided in a counsellor, means that there is only limited range of material from which any prediction can be made as to the risk of offending in future.  Nonetheless, that risk has to be considered in light of the fact that the evidence suggests that the prisoner who is now 43 years of age, has otherwise led a blameless life.  Nonetheless, offences of this kind are very serious indeed.”

10                  The learned sentencing Judge later concluded that:

“…a sentence involving some measure of imprisonment is nonetheless mandatory.”

11                  This conclusion was in the context of the following remarks by his Honour:

“The community is entitled to expect that courts will take a firm line in relation to offences of the sexual character committed upon children.  Children, especially children as young as seven, are entitled to receive the protection which the law affords, and in order to maintain that protection, it seems to me that a custodial sentence will normally be imperative, save in the most exceptional circumstances.  The first offence was, as I say, committed on a child of seven, and committed in circumstances involving a breach of trust.

Following that offence, the prisoner had the opportunity of counselling, and the opportunity to maintain the family together as a family unit, and to make a fresh start, and to put that incident behind him.  He had a second chance not offered to everybody who commits an offence of this kind.  Nonetheless, he committed a further offence upon a child then 13, the same child, but then aged 13, which again involved a serious breach of trust.  In these circumstances, it is difficult to [accede] to Mr Pilkinton’s submission that a non-custodial sentence should be imposed.”

12                  We turn now to our reasons for our conclusion that the sentences of two and a half years and two years with a non-parole period of ten months were, in all the circumstances, manifestly excessive.

13                  The principles involved were discussed in R v Tait & Bartley (1979) 24 ALR 473, where the Court (Brennan, Deane & Gallop JJ) said at 476:

“An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive.  It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error…”

14                  Section 92K of the Crimes Act provides that the maximum penalty for a person who commits an act of indecency on a person under ten years is imprisonment for twelve years, and where the act is committed on a person under sixteen years, imprisonment for ten years.  Submissions by the Director of Public Prosecutions acknowledge:

“The offending behaviour covered by section 92K of the Crimes Act 1900 is very wide, and so sentences will range from those at or close to the maximum for the worst type of cases to non-custodial sentences.”

15                  The first matter to be appreciated is that each of the offences involved in this appeal is at the lower end of the scale as to the physical conduct that was involved.  The learned sentencing Judge found that the offences occurred “spontaneously, rather than having been pre-meditated” and, on each occasion, were “maintained for comparatively short periods” and that “there was no skin to skin contact between them.”  Nonetheless it has to be accepted that the first offence was committed when NH was aged seven.  Both the offences involved a breach of trust.  The second offence was committed some six years after the appellant had had the opportunity of counselling, keeping the first instance “in the family” and making a fresh start.  The fact that the appellant had pleaded not guilty and, despite his convictions, maintained his innocence simply meant that there was no possibility of the Court allowing leniency for remorse.

16                  As opposed to that, at the time of sentence: the appellant was 43 years old and had led a blameless life aside from these offences; he had no previous convictions; he had never been imprisoned; he had a solid employment history with the Public Service; his relationship with NH’s mother, which was of long-standing, had come to an end; he had lost custody of his natural son; he had lost his house; he was facing significant debt; and he had been dismissed from his employment.

17                  We do not accept the ground of appeal that the learned sentencing Judge did not consider available options other than imprisonment in imposing the sentences which he did.  In our opinion, his Honour considered that, notwithstanding that the offences were at the lower end of the scale, “some measure of imprisonment” was called for in the circumstances. It seems clear to us that his Honour was sensitive to the need to consider options other than imprisonment, but felt constrained to order imprisonment in all the circumstances.

18                  As to whether the sentences were manifestly excessive, it is not to the point that some Judges would, in the circumstances, have considered that non-custodial sentences were appropriate.  So much follows from the observations in R v Tait & Bartley, set out above.

19                  Accepting that the view of the learned sentencing Judge that “some measure of imprisonment is…mandatory” was a view well open to him, nonetheless, in our opinion, a sentence of two and a half years on the first count and two years on the second count, with a non-parole period of ten months, was manifestly excessive in the circumstances of this case.  Those sentences required that at least ten months actual imprisonment would be served in respect of the two offences.  Where the physical dimensions of each offence were as in the present case, and where the consequences to the appellant have been so serious, such a term of imprisonment, in our respectful opinion, cannot be maintained.

20                  As the judgments in this appeal show, in the emotionally charged area of sexual offences against children judicial minds can differ as to which sentences are appropriate and which are manifestly excessive.

21                  Some support for our view, and some guidance on relevant matters of principle, is to be found in the observations in the judgment of the Court of Appeal delivered by the Chief Justice, Lord Bingham of Cornhill in Reg. v. Howells [1999] 1 WLR 307 at 311:

“There is no bright line which separates offences which are so serious that only a custodial sentence can be justified from offences which are not so serious as to require the passing of a custodial sentence.  But it cannot be said that the ‘right-thinking members of the public’ test is very helpful, since the sentencing court has no means of ascertaining the views of right-thinking members of the public and inevitably attributes to such right-thinking members its own views.  So, when applying this test, the sentencing court is doing little more than reflect its own opinion whether justice would or would not be done and be seen to be done by the passing of a non-custodial sentence.  In the end, the sentencing court is bound to give effect to its own subjective judgment of what justice requires on the peculiar facts of the case before it.

It would be dangerous and wrong for this court to lay down prescriptive rules governing the exercise of that judgment, and any guidance we give, however general, will be subject to exceptions and qualifications in some cases.  We do however think that in approaching cases which are on or near the custody threshold courts will usually find it helpful to begin by considering the nature and extent of the defendant’s criminal intention and the nature and extent of any injury or damage caused to the victim.  Other things being equal, an offence which is deliberate and premeditated will usually be more serious than one which is spontaneous and unpremeditated or which involves an excessive response to provocation; an offence which inflicts personal injury or mental trauma, particularly if permanent, will usually be more serious than one which inflicts financial loss only.  In considering the seriousness of any offence the court may take into account any previous convictions of the offender or any failure to respond to previous sentences…and must treat it as an aggravating factor if the offence was committed while the offender was on bail…                                                                             

In deciding whether to impose a custodial sentence in borderline cases the sentencing court will ordinarily take account of matters relating to the offender.  (a)  The court will have regard to an offender’s admission of responsibility for the offence, particularly if reflected in a plea of guilty tendered at the earliest opportunity and accompanied by hard evidence of genuine remorse, as shown (for example) by an expression of regret to the victim and an offer of compensation.  …  (b)  Where offending has been fuelled by addiction to drink or drugs, the court will be inclined to look more favourably on an offender who has already demonstrated (by taking practical steps to that end) a genuine, self-motivated determination to address his addition.  (c)  Youth and immaturity, while affording no defence, will often justify a less rigorous penalty than would be appropriate for an adult.  (d)  Some measure of leniency will ordinarily be extended to offenders of previous good character, the more so if there is evidence of positive good character (such as a solid employment record or faithful discharge of family duties) as opposed to a mere absence of previous convictions.  It will sometimes be appropriate to take account of family responsibilities, or physical or mental disability.  (e)  While the court will never impose a custodial sentence unless satisfied that it is necessary to do so, there will be even greater reluctance to impose a custodial sentence on an offender who has never before served such a sentence.

Courts should always bear in mind that criminal sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these things.  Courts cannot and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system.

Where the court is of the opinion that an offence, or the combination of an offence and one or more offences associated with it, is so serious that only a custodial sentence can be justified and that such a sentence should be passed, the sentence imposed should be no longer than is necessary to meet the penal purpose which the court has in mind.”                         [emphasis added]

22                  We have had regard to the contents of the Victim Impact Statement which was before the learned sentencing Judge.  His Honour made no specific reference to this, and we have to say that there are features about it which require it to be treated with a degree of caution.  It contains allegations, for instance, that the appellant “would yell at me, say horrible things and hit me”, that “I started to worry about the way I dressed around him because he would make sexual comments”, and that “it makes me feel upset that his family thinks I’m a liar.”  It has to be borne in mind that the appellant was to be sentenced in respect of the two offences on which he had been convicted by a jury, and not in respect of any other gratuitous allegations.  It has to be recognised that the jury acquitted the appellant in respect of the count where NH claimed the appellant had put his hands down her shirt and rubbed her breasts.  The appellant had, in the course of the record of interview, said of this allegation:

“I just deny that I put my hands inside her shirt.  That’s bloody ridiculous.  I’d say it’s because she’s been coerced into that.”

23                  On 11 February 2000, the appellant had already served approximately seven months imprisonment.

24                  For the above reasons, and being of the view that there was no need in this case for probation or supervision, any further imprisonment would, in our respectful opinion, be an excessive punishment of the appellant. 

25                  We therefore ordered: that the appeals be allowed and the sentences imposed on 9 July 1999 be set aside; that, in lieu, the appellant be sentenced to a term of imprisonment to expire on 11 February 2000; and that he be released forthwith.

Associate:

Dated:  16 May 2000  

REASONS FOR JUDGMENT

MILES J:

26                  The background to this appeal is set out in the judgment of Spender and Mathews JJ, which I have had the advantage of reading in draft form.

27                  I agree that the sentence on the first count was manifestly excessive, notwithstanding that the child was at the time seven years of age and that the maximum sentence under s 92K(1) of the Crimes Act 1900 (ACT) (the Crimes Act) was therefore 12 years imprisonment.  The objective features of the commission of the offence certainly placed it at the lower end of the substantial range of conduct which is gathered together under the heading of “acts of indecency with young persons”.

28                  Indeed it could have been said that the 1991 offence was not such a serious case of child sexual abuse that, as an isolated act, it required an immediate custodial sentence.  Had the appellant been convicted of that offence soon after the event, and if he had shown that he was prepared to accept assistance in order to minimise the risk of further abuse to the child during his ongoing relationship with the child’s mother, a non-custodial sentence may well have resulted.  Such was not to be.  He was not prosecuted for several years.  As the sentencing judge observed, although he undertook the counselling that was offered to him in the meantime, he claimed at the trial not to understand the purpose of that counselling since he had committed no offence.  On the jury’s finding, that claim would have to be rejected.

29                  During the six years or so which followed the 1991 offence, the domestic relationship was restored, with the result that the appellant’s position of trust in relation to the child was re-established.  Thus the vulnerability of the child to further abuse was substantially increased.  In his state of denial, the appellant is unable to show any appreciation of those crucial matters.  Accordingly, when the later offence occurred, it was not simply a matter of the repetition of an earlier offence, but of an offence which occurred in substantially more serious circumstances.

30                  In my view, it is simplistic to say that the second offence was at the lower end of the scale of seriousness.  It was not pre-meditated in the sense that it was planned, but, on the other hand, it was not an accidental touching.  Furthermore, the appellant told his wife later that the thought went through his mind that he “hadn’t felt a firm breast for a long time” and he “wanted to feel a young breast”.  On the state of the evidence, it could not be concluded that he entertained these thoughts until after the act. The sentencing judge did not make any finding on that aspect.

31                  Furthermore, the effect on the child must be taken into account in order to evaluate the seriousness of the offence: R v P (1992) 39 FCR 276.

32                  A victim impact statement was in evidence and the sentencing judge was required to have regard to it pursuant to s 429AB of the Crimes Act.  Again his Honour made no findings in relation to the impact on the child.  Counsel for the appellant at the time expressly stated that he did not wish to cross-examine the child on the statement.  The statement was dated 6 June 1999 and signed by the child, then aged 15 years.  There was no suggestion that the statement did not represent how she felt or that it was the work of somebody preparing it on her behalf.  She stated that since the age of 8 she has been scared of the appellant and “uncomfortable around other people particularly older men”, that she felt “like it was my fault”, alone, and unable to talk to others about what happened, including her mother.  She regretted the breakdown of the relationship between her and the appellant’s family who treated her as a liar.  Experience suggests that these are not unexpected consequences of sexual abuse of a child and thus indicate that, whilst the offences do not appear to have had a drastic effect on the child, the effect is sufficiently serious to take the later offence out of the lower end of the scale.  Putting it at its highest in favour of the appellant, the child, as a cumulative result of these offences, is at “risk of psychological upset, confusion and difficulties in later life”: R v Dent (unreported, NSW Court of Criminal Appeal, 14 March 1991).

33                  On the questions whether his Honour was in error in imposing a custodial sentence and whether the sentences were excessive, a number of decisions, both at first instance and on appeal, were cited by counsel for the appellant and by the Director of Public Prosecutions.  The authorities do not need detailed discussion because the factual circumstances vary so greatly.  The cases do not establish that there is a general principle, either in this Court or in other courts of criminal appeal in Australia, that all offences of sexual abuse of a child will normally attract custodial sentences.  To the extent that there is a practice that cases of  recurrent abuse over a period of time or of sexual penetration will normally be met with a custodial sentence in the absence of exceptional circumstances, eg. R v Allpass (1973) 72 A  Crim R 561 at 563, R v Rapley [1999] NSWCCA 302, R v BJ (unreported, Supreme Court of the Australian Capital Territory, 24 April 1998), that practice has not been adopted in this Court and this is not the case to express an opinion on it.  As was said in Rapley, the practice simply reflects the objective seriousness of the offence according to the ordinary standards of human conduct which are reflected in the penalties provided for in the Crimes Act: see also The Queen  v Partridge (unreported, Full Court of the Federal Court of Australia, 29 May 1998).

34                  To the extent that this Court has previously passed judgment in a case in which the circumstances are substantially similar to the present and to the extent that the Court has thereby established a benchmark or standard, the only decision of which I am aware is Wilks v The Queen (unreported, Full Court of the Federal Court of Australia, 6 November 1992).  That was a case of a 20 year old man without prior convictions who pleaded guilty to one count of an act of indecency upon a four year old child and another of committing an act of indecency in the presence of the child.  The offences occurred on the same occasion when the offender was acting as a babysitter.  In allowing the appeal against severity, the Court emphasised the prospects of rehabilitation and confirmed sentences of two years upon each count, concurrent, but substituted for a non-parole period of one year a suspension of sentence, after serving six months.

35                  In the light of the above, neither the head sentence of two years on the second count nor the non-parole period of 10 months was outside the range of a sound discretionary judgment and, in my view, was not manifestly excessive.  As it is an important function of this Court, as the court of criminal appeal for the Territory, to give guidance to Territory courts for the purpose of attempting to achieve and maintain some consistency in sentencing, neither the head sentence nor the non-parole period should be overturned in the absence of real error.

36                  On two other criticisms of his Honour’s decision I would make brief comment.  The sentencing judge did not examine the various non-custodial options, one by one, in order to reject them before coming to a final decision that there was no alternative to an immediate custodial sentence.  Nor was he required to do so.  It is abundantly clear from the remarks on sentence that his Honour recognized that imprisonment is a sentence of last resort and that his Honour was satisfied, as s 429C(1) of the Crimes Act requires, that no other sentence was appropriate in all the circumstances of the case.  His Honour’s reasons as expressed were also, in my view, a sufficient compliance with s 429C(2)(a) of the Crimes Act which requires a court imposing a sentence of imprisonment to state the reasons for its decision that no other sentence is appropriate.  A transcript of those reasons was taken out and placed with the court papers, which is sufficient compliance with the further requirement of s 429C(2)(b) that the reasons be entered in the records of the court.

37                  To send a first offender to prison for any offence is a drastic step, more so when it is positively shown that the person is of previous good character.  However, it has been stated many times and, in my view, with abundant good sense, that some offences are committed in circumstances which owe their existence to the trust engendered by the previous good character of the perpetrator.  In those circumstances the leniency in sentence that might otherwise be attracted by previous good character is necessarily diminished.

38                  On the matter of the non-parole period, I see no error in imposing a term of ten months during which the appellant would have been ineligible for parole.  On the contrary, I think that the non-parole period effectively reflects both the minimum period which the appellant should have served in custody having regard to the seriousness of the offences, and the public interest in giving him the opportunity to respond to supervision under parole which, hopefully, might help him come to terms with the jury’s verdict and his own tendency to engage in conduct which the community will not tolerate. 

39                  I would have granted leave to appeal, set aside the sentence on the first count and substituted for it a sentence of six months imprisonment to date from 9 July 1999.  I recognize that that would have been a somewhat academic exercise as the substituted sentence would have expired by the time of the hearing.  The sentence on the second count, which would have been partly concurrent with that on the first count would have continued to run, as would the non-parole period.  I would have dismissed the appeal as it relates to the second count and the non-parole period.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.

Associate:

Dated:  16 May 2000