Appeal of VPS

[2007] NSWDC 320

CITATION:	Appeal of VPS [2007] NSWDC 320
HEARING DATE(S):	1 August 2007
JUDGMENT DATE:	30 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Allow appeal. Vary sentences imposed in the Local Court on each offence to six months fixed term imprisonment. Direct concurrent sentences be deemed to commence on 3 May 2007 and expire on 2 November 2007. Confirm disqualification.
CATCHWORDS:	CRIMINAL LAW - Sentencing - conviction - sexual offences - carnal knowledge
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987 Child Welfare Act 1939 Crimes Act 1900 Criminal Records Act 1991
CASES CITED:	Ceissman v Donovan [1983] 2 NSWLR 491 Griffiths v The Queen (1977) 137 CLR 293
PARTIES:	VPS (Appellant) NSW DPP (Respondent)
FILE NUMBER(S):	07/12/0262
COUNSEL:	M Nicholson, solicitor (Appellant) G Steedman, solicitor (Respondent)
SOLICITORS:	Mark Nicholson NSW DPP

JUDGMENT

1 This matter came before me on appeal from the Local Court on 1 August 2007, which is nearly four months ago. It came before this Court for the first time in May this year, and the offender has been on conditional liberty at least since the date of his conviction in the Local Court, on 22 February this year.

2 Since the matter has been before me, it has been formally adjourned twice, and delayed on other occasions at the request of the Department of Corrective Services, who apparently have had difficulty in preparing reports.

3 The appellant appealed from sentences, which were substantial terms of full-time custody, imposed in the Local Court. He was convicted on what, at first glance, seems to be a relatively minor traffic charge. The offence was driving while disqualified.

4 This offender has a long record of offences of driving without a licence. In fact, at the time of the offence which led immediately to the lodgement of the appeals, he was under two s 12 bonds, having been sentenced to terms of imprisonment, which were suspended, for similar offences. Those bonds were revoked by the learned Magistrate, as the learned Magistrate was virtually bound to do.

5 I note from the appellant’s record that, before the sentences were imposed, he had been fined on a number of occasions for traffic offences, but he has never performed community service, or served any sentence by way of periodic detention for traffic offences.

6 There was before the Magistrate, according to the court papers, a pre-sentence report saying that he was ineligible to serve a sentence for periodic detention, because of s 65A of the Crimes (Sentencing Procedure) Act. If that statement is to be accepted, it is not based on anything of which there is evidence before me, and I am told by Mr Nicholson, who appears for VPS, that he has never served a full-time sentence of six months imprisonment or more.

7 I would expect a repeat traffic offender, such as the appellant, would not face even a suspended custodial sentence, until some other sentencing options had been tried. In this case, periodic detention was not tried because the Magistrate had before him material, which suggested that was not an option open.

8 After hearing submissions on the last occasion, and reading the material submitted by the prosecution, I determined that a sentence of full-time custody might not be appropriate in the circumstances of this case. The appellant is now employed, and has the responsibilities of caring for children. That appears not to have been the case at the time of his original conviction, as I understand it.

9 While employment and family responsibilities are not always sufficient reason why a person should not serve a sentence of full-time custody, in my view, such a sentence was not warranted in this case. Indeed, it is fair to say that legislation requires that full-time custody be the sentence of last resort. It should, therefore, be appropriate for a traffic offence only in the rarest of cases, such as repeated cases of either driving under the influence of liquor or drugs, or dangerous driving.

10 I can, however, understand why the learned Magistrate thought it necessary to impose a full-time custodial sentence, given the revocation of the bonds. The length of the original term, in my view, was manifestly excessive in the circumstances, despite the appellant’s record of similar offences, and I, therefore, reduced the length of the sentences to six months imprisonment.

11 Because of the circumstances of his offence, I directed that an assessment be made as to whether or not he was suitable to serve those sentences by way of home detention. Home detention is a highly appropriate sentencing option where an offender has committed an offence, which requires a custodial sentence, but where the offender does not pose any danger to himself or other members of the community.

12 The relevant legislation provides that a person, previously convicted of certain specified offences, is not eligible to serve a sentence by way of home detention. I was aware that, on the criminal record tendered before me, there was not recorded any offence for which a sentence of more than six months imprisonment had been imposed, but there was recorded an offence of carnal knowledge in 1970. The appellant was dealt with, in that matter, in the Children’s Court and released on twelve months probation. That was the most lenient sanction available to the Court. The appellant, at the time, was seventeen years old, and, in any event, an offence of thirty-seven years history is extremely ancient.

13 This criminal record has consequences, because of the provisions of the Crimes (Sentencing Procedure) Act 1995, s 77 which reads:

(1) A home detention may not be made for an offender:

(a) who has at any time been convicted of any of the following offences:

(ii) sexual assault of adults or children, or sexual offences involving children

14 While the appellant has other criminal offences on his record, this is the only one of a sexual nature.

15 It is not clear, to me, that the appellant was ever convicted of carnal knowledge. At the time of the offence, and when he was dealt with in the Children’s Court, he was a juvenile.

16 It is also not clear if the offence constituted a sexual assault, for reasons that I shall explain. At present, where a young person is dealt with under the Children (Criminal Proceedings) Act, as opposed to being dealt with under the general law, that person is not automatically convicted. Section 14 of that Act provides:

(1) Without limiting any other power of the court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court -

(a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years; and

(b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is or above the age of 16 years.

17 That paragraph would have applied to this offender, if it was the relevant legislation. Under the Children (Criminal Proceedings) Act, s 32, it is at least arguable that a young person, found guilty of an offence and subjected to a penalty under that section, is not automatically or necessarily convicted. The word ‘convicted’ does not appear in the section. The whole policy of the criminal law, in relation to young people, is to support and encourage the rehabilitation of young offenders.

18 Section 14, which I have just read, gives the Court a discretion. My understanding is that the discretion is rarely exercised. The general discussion in Ceissman v Donovan [1983] 2 NSWLR 491, though not directly in point, is still relevant.

19 In 1970, children and young persons were dealt with under the Child Welfare Act 1939. Section 128 of that Act prohibited the use of the word ‘conviction’ in relation to children and young persons, but, if necessary, required the use of the expression ‘a finding of guilt’. Even under that legislation, it was not necessary, or automatic, for a Children’s Court to record a conviction, even if there was a finding of guilt.

20 In Griffiths v Queen (1977) 137 CLR 293, three members of the High Court, Barwick CJ, Jacobs and Aickin JJ considered the meaning of the expression ‘conviction’. It is clear that, that expression has a number of different meanings. In the context of sentencing for criminal offences, where it is not contrary to the purpose of the Act in question, the meaning most favourable to the offender should be the meaning adopted by the Court. For some purposes, a finding of guilt of an offence, or more particularly, an admission of guilt of an offence, may amount to a conviction, but does not necessarily do so.

21 In the circumstances of this case, I do not know whether the appellant pleaded guilty, or not guilty, to the offence of carnal knowledge in 1970. This could be highly relevant. If he has not been formally convicted, he may have no conviction and if so, it would be wrong in law for the Department of Corrective Services to conclude that he had been convicted of an offence, and determine that he was, therefore, unsuitable for home detention which, in fact, it has done.

22 In this case, there is no evidence, before me, of the circumstances, sufficient to enable me to determine whether or not the 1970 order is, or ought to be, regarded as a conviction, for the purposes of the Crimes (Sentencing Procedure) Act s 77. I doubt very strongly whether the Department of Corrective Services is in any better position.

23 Under the Crimes Act 1900, ss 71 and 77, as in force in 1970, consent was a very relevant issue where the woman concerned was above the age of fourteen, because the consent of the woman may have afforded a defence, in certain cases. The offence created by s 71, which covered some consensual sexual relations between two young persons, gave rise to many prosecutions, where there had been sexual intercourse between two young people in what would now be regarded innocuous, if not normal, circumstances.

24 The fact that the appellant has been found unsuitable to serve his sentence by way of home detention raises a number of issues. The provisions of the law relating to home detention orders limit the discretion of the sentencing court in many important matters. Section 78 of the Crimes (Sentencing Procedure) Act reads:

(1) A home detention order may not be made with respect to an offender’s sentence of imprisonment unless the court is satisfied:

(a) that the offender is a suitable person to serve the sentence by way of home detention, and

(b) that it is appropriate in all the circumstances the sentence be served by way of home detention, and

(c) that the persons with whom it is likely that the offender would reside, or continue or resume a relationship, during the period of the offender’s home detention have consented in writing to the making of the order, and

(d) that the offender has signed an undertaking to comply with the offender’s obligations under the home detention order.

(2) In deciding whether or not to make a home detention order the court is to have regard to:

(a) the contents of an assessment report on the offender and;

(b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order.

(3) A court may, for any reason it considers sufficient, decline to make a home detention order despite the contents of the assessment report.

(4) The court may make a home detention order only if an assessment report states that in the opinion of the person making the assessment the offender is a suitable person to serve a term of imprisonment by way of home detention.

I omit subsection (5).

(6) A home detention order must not be made if the court considers it is likely that the offender will commit any sexual offence or any offence involving violence while the order is in force, even though the offender may have no history of committing offences of that nature.

25 Subsection (4) requires the Court to receive a satisfactory assessment, before making a home detention order. It cannot question the assessment even if, as a matter of law, it is wrong.

26 In my view, this matter requires careful attention of Parliament, as the provision requires that the determination, of whether or not a person is suitable for home detention, be made only by an officer of the Department of Corrective Services. Some parts of this determination are parts which, like other sentencing decisions, would, in my opinion, be better made by the sentencing court, in the light of all of the circumstances and, also, as required by subs (2), the contents of the report.

27 The determination, of whether or not a person is eligible to serve a sentence by way of home detention, under s 77(1), may be one which involves a question of law and, if so, should be subject to final decision by a court.

28 Putting aside the legislative requirements, it is highly desirable, and usually extremely helpful, to have a report from the probation service. However, I must state that judicial officers would be most unlikely to exercise their discretion to order home detention, in any case where there was a danger to the community, or the offender, especially in the light of the requirement of subsection (6).

29 The Criminal Records Act 1991 also has a policy of fostering rehabilitation of offenders, especially young offenders. I shall return to this Act.

30 Carnal knowledge was an offence which necessarily involved sexual intercourse. Although ‘sexual offence’ is not defined in the Crimes (Sentencing Procedure) Act, carnal knowledge was clearly an offence in which sexual activity is an essential element.

31 It is, however, different in character to sexual assaults of the type mentioned in the Criminal Records Act (1991) s 7(4)(a), all of which are assaults, in which the absence of consent must be proved beyond reasonable doubt, in the case of adults at least. It, therefore, may not necessarily be characterised, carnal knowledge that is, as an ‘assault’. Depending on the circumstances, it may be quite different in character from a sexual assault which is morally reprehensible.

32 Carnal knowledge, contrary to s 71 of the Crimes Act 1900, is not specifically referred to as a sexual offence within the meaning of the Criminal Records Act, s 7. If it were such an offence, a conviction for it would not be capable of being a spent conviction under that Act. Because the former Crimes Act 1900, s 71 is not mentioned in the Criminal Records Act, or the Regulations made under that Act, it may be that a conviction for an offence under s 71 is spent because of the repeal of s 71, as where conduct has ceased to be an offence because of the repeal of relevant legislation, the conviction becomes spent under s 8 of the Criminal Records Act. This is also a matter which, in my view, requires the attention of the legislature.

33 It goes without saying, that spent convictions should never appear on the offender’s criminal record and should not be taken into account for the purposes of, for example, an assessment of suitability for home detention.

34 In the context of assessment for suitability for home detention, in my view, if carnal knowledge appears on an offender’s record, each case requires individual attention, because, by today’s standards, at least, many such offences were committed in circumstances which certainly do not demonstrate a propensity to commit further sexual offences.

35 The circumstances giving rise to many cases of carnal knowledge, of which I know because of my early days in professional practice, would nowadays be regarded as relatively innocuous and probably, indeed almost certainly, in many cases, would not give rise to prosecution. An offence of carnal knowledge does not necessarily entail a propensity on the part of an offender, especially a young offender, to seek sexual intercourse with children when he is over fifty.

36 In view of the delay in the preparation of the report in this case, the repeated adjournments at the request of the Department of Corrective Services, during which time the appellant has been at conditional liberty, and all the other circumstances, it seems to me appropriate that VPS’ sentences should commence on a date well before the date of this order, to allow for the time elapsed, and those other circumstances.

37 It appears, to me, that the circumstances of this case are quite exceptional, and it would be singularly inappropriate now to require this offender to serve any period in full-time custody.

38 I have already allowed the appeal and varied the sentences imposed in the Local Court. I direct that the sentences that I have determined be deemed to commence on 3 May 2007 and expire on 2 November 2007. I confirm the disqualification.

**********