Andrews v The Queen
[2011] VSCA 191
•9 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0003
| STANLEY FRANCIS ANDREWS |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | MAXWELL ACJ and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 June 2011 |
| DATE OF JUDGMENT | 9 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 191 |
| JUDGMENT APPEALED FROM | R v Andrews (Unreported, County Court of Victoria, Judge Cohen, 22 December 2009) |
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CRIMINAL LAW – Appeal – Sentencing – Sexual offences committed against young boys – Rape, gross indecency, indecent assault – Three victims – Total effective sentence of 6 years and 6 months’ imprisonment – Non-parole period 3 years and 6 months –Very serious offending – Gross delay in prosecution – Unfairness – Rehabilitation – Sentencing reasons careful and conscientious – Exceptionally low cumulation – Low non-parole period – Sentences not manifestly excessive – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Ms H Spowart | Victoria Legal Aid |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL ACJ:
Notwithstanding the careful and measured submissions made by Ms Spowart, both in writing and orally, I am not persuaded that this sentence was manifestly excessive. Accordingly, I would dismiss the appeal. My reasons are as follows.
The appellant pleaded guilty to 12 counts of sexual offending committed between October 1979 and February 1987 against three different boys, each of whom was under the age of 16 at the time. He was sentenced as set out in the following table helpfully prepared by counsel for the appellant:
Ct
Victim
Age
Offence
Date
Max Pen
Sentence
Cumln
1
T
9–10
Gross indecency
1979–80
3y
6m
-
2
T
9–10
Indecent assault
1979–80
5y
8m
-
3
J
13–16
Indecent assault
1981
5y
3m
3m
4
J
13–16
Rape (oral)
1981
10y
4y
3m
5
J
13–16
Rape (anal)
1981
10y
5y
Base
6
J
13–16
Rape (oral)
1981
10y
4y
-
7
J
13–16
Gross indecency
1981–83
3y
2y
-
8
B
14–16
Indecent assault
1985
5y
3m
-
9
B
14–16
Gross indecency
1985
3y
18m
-
10
B
14–16
Rape (anal)
1986–87
10y
5y
12m
11
B
14–16
Indecent assault
1986–87
5y
2y
-
12
B
14–16
Gross indecency
1986–87
3y
22m
-
TES: 6y 6m
NPP: 3y 6m
He now appeals against the sentence on the sole ground that it is manifestly excessive. This is said to be so given the following matters listed in the full statement of grounds of appeal:
·the long delay in the prosecution of this matter;
·the appellant’s rehabilitation in the period of the delay
·the appellant’s age;
·the appellant’s ill health and limited life expectancy;
·the fact that the appellant had served a sentence of imprisonment of 3 years and 10 months for similar offences in the period of the delay;
·the appellant’s plea of guilty;
·the appellant’s admissions to police;
·the fact that imprisonment would be burdensome for the appellant due to his isolation from his social support network interstate; and
·the fact that the sentence imposed on count 5, the base sentence, was 50% of the maximum penalty applicable at the time of the offending.
Ms Spowart conceded, properly in my view, that the sentencing judge had addressed each of the matters referred to. Her submission, however, was that if proper weight had been given to the matters relied on, the judge was bound to arrive at a sentence lower than the sentence imposed.
The circumstances of the offending are clearly described by the sentencing judge in her reasons. The relevant extracts are set out in an annexure to these reasons.
The sentencing judge concluded that this was very serious offending. She described it in these terms:
I regard the nature and manner of your offending at the time it occurred in relation to all of these offences as despicable and crude, and at a very serious level of offending of this type. Each of the boys against whom you committed these offences was young and vulnerable, and your methods of obtaining their acquiescence and silence was to utilise your friendship or other relationship with their parents to manipulate them into feeling that they would be at fault if they were to disclose what you did to them.
Under the guise of paying them money to chop wood, with an indication that you also offered money for them or some of them to perform sexual acts with you at times, you used them and made them feel degraded and humiliated. Your behaviour was not only an ongoing exercise of self-indulgence for your own sexual gratification, but also a manipulative exercise of power over young and vulnerable people. As J said in his victim impact statement, you ingratiated yourself into his family's lives. With each of the others you had a particular relationship with their parents, making it impossible for these boys to avoid ongoing contact with you and constantly reminding them of their feelings of extreme discomfort.
At the time you were aged in your forties, another aspect of your power and control over the situation with each of them.
It was not suggested by counsel that there was any error in that characterisation and I respectfully agree with it.
The appellant had prior convictions and convictions for offences committed subsequent to this conduct. The judge dealt in detail with those matters, as follows:
I also take into account that you had prior convictions for similar offending. You were first convicted at the County Court at Ballarat in March 1955 for indecent assault on a male person resulting in a good behaviour bond for six months. The age of the victim is unknown. In November 1965 you were convicted of two counts of indecent assault on a male under the age of 16 and two counts of gross indecency, for all of which you were sentenced to a total of three years' imprisonment with a minimum non-parole period of 15 months. In February 1970 you were convicted at the County Court for three counts of sexual penetration with a male, although the age of the victims is not stated, and you were sentenced to a total term of five years' imprisonment with a non-parole period of three years. It is my understanding that both of those sentences of imprisonment would have been served at a time when remissions would have reduced the actual time spent in prison.
The relevance of these prior offences is, first, that you could not argue that the behaviour for which I sentence you was out of character for you. Secondly, the experience of being brought before courts and receiving sentences even of imprisonment clearly did not deter you from continuing with offending of the same or similar nature. This makes your offending more serious and calls for more condemnation of it.
Of particular relevance to your case is what occurred in the years after the period of the offences for which I sentence you. In 1987 you left Victoria at the commencement of a journey in a caravan which you had built. You made your way across Australia and by 1990 you were in Western Australia where you seem to have decided to stay. You had also begun offending of a similar nature against further boys.
In October 1992 you pleaded guilty in the District Court of Western Australia to seven counts of sexual offending against two boys there. One boy was aged 12 in 1990 at the time of the first two counts, and was 14 at the time of three counts of carnal knowledge committed against him during the first half of 1992. Another two counts were for offences more in the nature of indecent assaults or acts of gross indecency committed in June 1992 with a second boy then aged 11. With each of the victims in those offences you had become friendly with their parents or grandparent and the totality of the circumstances was very similar to those in the charges for which I sentence you.
This offending in Western Australia, while it does not count as prior offending for the purposes of my sentence, reflects that you were totally unreformed and your offending of this nature was entrenched, and in my view it also reflects that you have no remorse for the damage you were causing to your victims along the way.
The Western Australia District Court had before it a copy of your criminal history in Victoria which disclosed the matters to which I have referred as your prior offences, but not the age of the earlier victims, and it was noted in that court that all had occurred more than 22 years earlier with no known offending since 1970. It is now obvious from the offences for which I sentence you that there had been much more continuity of offending than was known to the Western Australia courts. Nevertheless, the total term of imprisonment imposed by the District Court in October 1992 was eight and a half years' imprisonment and no minimum non-parole period was set.
You appealed and the Court of Appeal of the Supreme Court of Western Australia did not regard the head sentence as excessive. However, it did address whether you should be eligible for parole and considered a pre-sentence report of the manager of the Sex Offender Treatment Branch which concluded that you would continue to be at high risk of re-offending due to the entrenched nature and offence characteristics of your sexual deviance, to which you had a commitment, but noting that you had never undertaken a treatment program for your sexual deviance and were then willing to do so. The Court of Appeal made an order that you be eligible for parole, and although it did not fix the minimum term it appears that you in fact served three years 10 months of the sentence, and were released on parole in August 1995 and unconditionally in 1998.
The victim, B, made a statement to police in January 1992 and the victim, T, in February 1992. The appellant participated in a record of interview in March 1993 and made substantial admissions. It appears, however, that charges were not laid until September 2008. On any view it is wholly unsatisfactory for a lapse of time of that magnitude to occur. This Court has often spoken of the unfairness associated with serious matters hanging over the head of a person who does not know — and in this case, does not know for 14 years — whether he is to be charged or not.[1]
[1]R v Schwabegger [1998] 4 VR 649, 659-60; R v Merrett (2007) 14 VR 392, 400 [35]-[36].
The judge was, however, clearly alive to the mitigating force of delay and dealt with the matter very carefully in her reasons, as follows:
Further, although you of course knew of your offences and could have admitted to them very much earlier, it is almost 17 years since you were first interviewed by police about the offences involving T and B. The delay in the Crown prosecuting these offences remains unexplained, and at best I am asked to infer from the fact that in February 1993 a recorded interview was conducted with you by Ballarat police who had travelled to Western Australia to interview you in prison when you were commencing a sentence which at that stage stood at eight and a half years, that it must have been thought by Victorian prosecutorial authorities that they should wait until you had completed that sentence. However, it is clear that the matter was never appropriately diarised or checked. You were released on parole in August 1995 and no action was taken to bring these matters to court until 2007 after J reported your offences against him, and that reopened the other complainants' cases as well.
The effect of the delay in the present case in my view is very significant for several reasons. First, so far as the charges relating to T and B are concerned, you have known that they were being investigated and had the prospect of being prosecuted for them hanging over you ever since February 1993. It is appropriate that that be taken into account .
Secondly, although you could have submitted to Victorian authorities to be prosecuted at any since the offending began, it was not your obligation to do so and after release on parole you were at first subject to an Outreach program and then probably to ongoing supervision until 1998. The failure to prosecute you at least by the mid-1990s in Victoria in respect of offences against T and B was the fault of Victorian prosecuting authorities and should not be blamed on you. Had it proceeded publicity may well have prompted J to report his matters at that time, especially as I read that he was aware of your offending against B, and if so all could have been dealt with more than 10 years ago.
An unfortunate consequence of delay is that your victims did not see you brought to justice much earlier. Had that occurred when they were in their early 20s when two of them reported the events to police, it might have brought them a sense of closure and an ability to move on in their lives without some of the consequences that have been described. I do not have statements to this effect specifically and all that the court can do at this stage is to re-emphasise to your victims and others that it was not the fault of these young men that they engaged in these acts with you, nor was it their fault that they did not immediately report these events. It can only be hoped that now that you are being sentenced for these offences they can at least put behind them any notion that they were at fault.
With respect, this was an exemplary analysis of what was, on any view, a gross delay.
As to personal factors, the judge took into account that the appellant was aged 71 at the time of sentence. She also took into account his ill health, concluding that it would make imprisonment a greater burden for him than someone in good health. She said he would be, as a result, less mobile and less able to be assigned certain activities, and would not be able to continue to obtain medical treatment from his regular doctor. Those were relevant matters and they were, it seems to me, properly taken into account.
Her Honour also dealt, as she was required to do, with the question of the risk which the appellant represented. She concluded that as a result of his having completed the sex offenders program in Western Australia, taken together with his medical condition, his age and his state of health, the risk of his re‑offending was ‘relatively low, and certainly very much lower than it was at the time the offending occurred’.
Her Honour also took into account that there had been no further offending by him since his release on parole in Western Australia. She noted that a period of more than 14 years had elapsed between that time and the date of sentence. Her Honour said, ‘That reflects that you have indeed committed to your rehabilitation and to a stable and law abiding lifestyle and I take it into account.’
Her Honour also regarded as a very important factor in mitigation of sentence that the appellant had pleaded guilty. She said that:
A very important factor in mitigation of your sentence is that you have pleaded guilty to these charges. By your pleas of guilty you have taken responsibility for your behaviour, acknowledged that it was illegal, and you have saved the community the time and cost of disputed hearings. Moreover, and importantly in a case of this nature, you have saved the need for the complainants to have to give evidence and relive these events, and be cross-examined about them. I regard that as carrying considerable weight in this case.
Her Honour was also very careful to ensure that she sentenced in accordance with the much lower maximum penalties which applied at the time of the offending. She pointed out that the maximum for rape at that time was 10 years' imprisonment, whereas at the date of sentence it was 25 years. Her Honour said:
I must and do take the then maximum penalties into account as reflecting the relative seriousness with which the offences were regarded by the community through parliament at the time.
She sentenced explicitly within the limits set by the then applicable maximum penalties.
Her Honour also took into account positive references which showed the appellant's commitment to rehabilitation and to a stable and more abiding lifestyle. She noted that he would have to serve his sentence in Victoria and that this would add to the burden because he would be isolated from his now established social network and support.
It is apparent from what I have set out that the sentencing judge carefully considered all of the matters relevant to sentence. In particular, her Honour analysed carefully all of the mitigating factors on which the appellant could rely. In R v Stuttard,[2] I commented on the difficulty of establishing the ground of manifest excess in a case like the present, where the sentencing judge has discharged the sentencing function thoroughly, carefully and conscientiously:
When the sentencing task has obviously been performed carefully and cogently by the sentencing judge, to whom our law confides that function, it will always be difficult, in my view, for a submission of manifest excess to succeed. The appellant must persuade the appeal court that, despite the sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong — in this case specifically in fixing the non-parole period — that this Court should be satisfied that the discretion was not properly exercised at law, such that it would fall to this Court to exercise the discretion afresh.
[2]R v Stuttard [2006] VSCA 112, [26].
The question to be addressed when the ground of manifest excess is advanced is, as Ms Spowart acknowledged, whether it was reasonably open to the sentencing judge to impose the sentence which she did, appropriate weight being given to all relevant factors and in particular to the mitigating factors upon which reliance is placed.
Ms Spowart draws particular attention in her submissions to the sentence of five years imposed on Count 5, a count of anal rape, which was the base sentence. As described in her Honour's reasons, set out earlier, this was a very serious offence against a young boy. The appellant well knew, as he acknowledged by his plea, that the victim was not consenting. The rape caused the victim pain, both then and subsequently. It is also significant that it followed on from an earlier rape— ‘forcible oral sex’ as it was described by her Honour—which had occurred over the boy's explicit protests. As this Court pointed out in DPP v D D J,[3] repetitive offending can be viewed as becoming more serious over time, because of the fear engendered in the victim that it will happen again and because of the awareness—in this case, explicit awareness—of the disinclination of the victim to engage in the conduct.
[3](2009) 22 VR 444, 452 [32].
Accordingly, in my view, the sentence on that count, while it may be regarded as stern, was not outside the range available to the judge.
Looking at the sentence overall, what is very striking is the exceptionally small amount of cumulation which her Honour ordered. As appears from the table set out earlier, there was no cumulation of the sentences imposed with respect to the first and youngest victim. There was a mere 12 months' cumulation with respect to the sentences imposed with respect to the third victim, there having been five separate counts against that victim, including one of anal rape.
Thus, although the sentence on Count 5 was five years, the total effective sentence, taking in all of the criminality involved in the conduct against that victim and the two others, still resulted in a total effective sentence of only six and a half years. It is also notable that the non‑parole period is only marginally above 50 per cent of the total effective sentence. That can be seen, in my opinion, as reflecting the judge's acceptance of the importance of enabling this appellant to continue, as early as the interests of justice would permit, the process of rehabilitation on which he has clearly been embarked.
This seems to me, with respect, to have been a peculiarly difficult sentencing exercise, precisely because of the matters on which counsel for the appellant properly relies. It was a matter of balancing the gravity of the offending and—I should add—the very grave long‑term consequences for the victims, which continue despite the fact that the offending occurred more than 20 years ago, on the one hand, and on the other, the significant mitigating factors on which the applicant could rely—in particular, delay.
It is said that because of these mitigating factors, a considerably lesser sentence should have been imposed. I am not persuaded, with respect, that that is so.
It seems to me that the end result was moderate in all the circumstances. The non‑parole period was at the bottom end of what is ordinarily regarded as the range for the proportion between non‑parole period and head sentence. Had it not been for these strong matters in mitigation, it seems to me there is every likelihood that a considerably higher sentence would have been imposed, even allowing for the lower maximums which were applicable. In other words, the appellant should be able to view this sentence as having been substantially reduced to take account of the matters relied on, but at the time same time as properly reflecting the minimum which the judge considered the interests of justice required, having regard to the seriousness of the offending.
I would therefore dismiss the appeal.
LASRY AJA:
I agree that, for the reasons given by the President, the appeal should be dismissed.
MAXWELL ACJ:
The order of the Court is: appeal dismissed.
APPENDIX A
[3]Counts 1 and 2 involved a boy to whom I shall refer as ‘T’. You had been friendly with his father for a number of years and when he was about nine years old you invited him to stay the night at your bush block… to which his parents agreed. On the first night there you wanted him to engage with you in touching each other's genitals, but he refused, and you then masturbated yourself in his presence. This is the act of gross indecency the subject of Count 1. You then took hold of his hand and placed it on your penis and he immediately pulled his hand away. This act constitutes the indecent assault charged in Count 2.
[4]Both of these acts are alleged to have occurred on the first night that T stayed with you between [1979–80], but T says that the same behaviour as in Count 2 happened many times on subsequent occasions and that the behaviour in Count 1 happened at least twice. Counts 1 and 2 are brought as representative of similar offending on subsequent occasions.
…
[8]I regard as an aggravating factor the age of T when you committed these offences. He was nine and you were about 40 at the time.
[9]Counts 3 to 7 concern a boy to whom I shall refer as ‘J’. He was aged between 13 and 16 at the time of these offences. In 1981… you were helping carry out work on an extension to their home. ... The first occasion he recalls meeting you was one evening after dinner when he was attracted by noise in the extension and he went to see what was happening. You and his stepfather were working there but he was left alone with you when his father left the room. At the time he had an erection which you noticed and commented on, putting your hand over his penis on the outside of his clothing. This act constitutes the offence of indecent assault, the subject of Count 3. He was embarrassed and left the room as soon as his father returned.
[10]At the time you lived in a bush block… and earned at least part of your living as a woodcutter supplying firewood to residents. ... J's parents were one of your customers. You suggested that J might like to work for you on weekends to earn pocket money and he was encouraged to do so by his mother. Initially he travelled to your property on Saturdays where he would work chopping wood and making deliveries before returning home, but eventually you suggested that he stay overnight and he commenced to do so and would then return home on the Sunday. In the early stages of this association you showed him pornography in the form of newspapers and novels which were something he had not previously encountered.
[11]On an occasion when he was staying overnight at your bush block you found him masturbating and told him you could help, and then asked him to do the same for you. You took hold of his head and inserted your penis into his mouth until eventually you ejaculated. This experience caused J to gag and he was made to swallow the ejaculate. This all occurred despite J protesting that he did not want to suck your penis, and constitutes the offence of rape as charged in Count 4.
[12]On a subsequent occasion you had induced J to sleep in your bed when he stayed overnight and you suggested anal intercourse saying it would not hurt him. He was not a willing party to this activity but nevertheless you lay behind him and using Brylcream as a lubricant inserted your penis into his anus. He experienced pain at the time and when he later defecated. This event constitutes the rape charged in Count 5.
[13]On another occasion you sexually penetrated J by having him suck your penis. This occurred while you were driving him from your property back to [his home] as you drove. This event constitutes the offence of rape charged in Count 6.
[14]The other charge involving J, Count 7, is a charge of gross indecency in the presence of J. This is based on J's description of activities between you and an adult male friend of yours called [A] and how you drew J into those activities. [A] was in fact T's father. The specific act charged is that you had intercourse with [A] in the presence of J constituting an act of gross indecency.
…
[20]Counts 8 to 12 involve another boy to whom I shall refer as ‘B’, who was aged between 14 and 16 at the time of these offences. He lived with his mother and stepfather who was your brother. He has an intellectual disability. You also lived in a caravan at his home for a period of time.
[21]At some time prior to B's fifteenth birthday in 1985, you took him camping and while at the camp site you touched his penis over his clothing. You ceased when he told you to go away. This event constitutes the indecent assault charged in Count 8.
[22]About a week after the camping trip you and he were in the bathroom at his home where some activity of a sexual nature occurred. The following day you returned to his home and were with him again in the bathroom when you persuaded him to lick your anus and suck your penis. These activities are alleged by the Crown to constitute the performance of a continuing act of gross indecency with B, and are the subject of Count 9.
[23]Count 10 is laid as a representative count. Between 1 January 1986 and 8 February 1987 B frequently went with you to your bush block… where on what he recalled as being up to 10 separate occasions you anally penetrated him with your penis. On one such occasion this caused his anus to bleed, although you did not see any blood. On some of these occasions you told him that he could not tell anyone because you could go to gaol. That is the basis of Count 10, a charge of rape.
[24]Over the same period of time on occasions when he would stay overnight with you at your bush block you would sometimes ask him to get into bed with you and activity of a sexual nature would take place. Count 11 is a representative count of occasions when you performed acts of licking his genitals and anal area, thereby committing acts of indecent assault against him. You also persuaded him to lick your genital and anal areas and this is the basis of Count 12 of gross indecency.
0
2
0