Attorney-General v B

[2002] TASSC 63

[2002] TASSC 63

CITATION:              Attorney-General v B [2002] TASSC 63

PARTIES:  HER MAJESTY'S ATTORNEY-GENERAL
  v
  B

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 32/2002
DELIVERED ON:  11 September 2002
DELIVERED AT:  Hobart
HEARING DATES:  27 August 2002
JUDGMENT OF:  Underwood, Slicer and Blow JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Miscellaneous matters - Other sex offenders - Maintaining sexual relationships with children - Rapes of young children - Psychological impact - Whether three years' imprisonment manifestly inadequate.

Aust Dig Criminal Law [901]

REPRESENTATION:

Counsel:
           Appellant:  D G Coates
           Respondent:  In Person
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  In Person

Judgment Number:  [2002] TASSC 63
Number of Paragraphs:  25

Serial No 63/2002
File No CCA 32/2002

HER MAJESTY'S ATTORNEY-GENERAL v B

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
BLOW J
11 September 2002

Orders of the Court

1. Appeal allowed.

2. Sentence quashed.

3. Sentenced to imprisonment for 5 years and six months with effect from 7 January 2002.

Serial No 63/2002
File No CCA 32/2002

HER MAJESTY'S ATTORNEY-GENERAL v B

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD J
11 September 2002

1. I have read the reasons for judgment of Blow J.  I agree with them.

   File No CCA 32/2002

HER MAJESTY'S ATTORNEY-GENERAL v B

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
11 September 2002

1. The Attorney seeks review of a sentence of three years' imprisonment imposed on a 64 year old man convicted of two counts of maintaining a sexual relationship with his granddaughters aged 4 and 6 respectively over a period of 18 months.

1. The sole ground of appeal is that:

"The sentence was manifestly inadequate having regard to all the circumstances of the case."

1. The sexual predation on K commenced when she was five years old and continued for an eighteen month period.  The misconduct alleged comprised numerous acts of rubbing, kissing and licking of the vagina and three acts of rape which occurred in the home, outdoors, and in a vehicle driven by the offender.  The acts were opportunistic, but regular.  On at least three occasions the penis was placed inside the vaginal lips, giving rise to the commission of rape.  On other occasions, sexual contact resulted in the commission of the crimes of aggravated sexual assault.

1. Misconduct involving the second granddaughter commenced when she was 4 and continued over an eight month period on regular occasions.  All of those events occurred within the family home.  On one of the occasions, an act of rape was committed involving the placing of the penis between the vaginal lips.

1. Additional to the usual matters of aggravation, age, position of trust, events occurring within the home and the like, was the fact that despite discovery of the conduct and the offender's promise to cease, further sexual assaults occurred on at least two subsequent occasions.

1. There were cogent mitigating matters, including the character of the offender, his ready acknowledgement of responsibility and early plea.  Without his frank admissions, prosecution might have been difficult, if not impossible.  A psychiatric assessment indicated that the psychological make-up of the offender was not that of a paedophile in the proper sense of that word.  In the opinion of the examining psychiatrist, the conduct was opportunistic in nature and future risk could be obviated by awareness and supervision.

1. The learned sentencing judge properly took the relevant matters into account and, in my opinion, the sentence imposed was, but for the combination of two factors, an accurate assessment of the appropriate sanction.

1. The two factors were those of rape and the impact on the two children.  Four acts of rape, in terms defined by Parliament, were committed on two children.  In many cases, sexual penetration on one so young might have little long term effect on the victim.  The protection afforded by extreme youthfulness and the loss of memory can prevent medium and long term trauma.  In this case, both children have begun to experience traumatic consequences of the sexual misconduct.  The impact statement revealed that both children have sleep disturbance and strong emotional responses involving both anger and sadness.  They respond, with memory, to visual and environmental triggers which:

"… may be displayed through temper outbursts and fits of crying or whinging which may cause problems for the girls in various social settings."

That emotional turmoil impacts in school, friendships, and family relationships.  Their parents have changed the girls' schooling to avoid some of the problems.  Of long term concern is the report that:

"At home they sometimes exhibit sexualised behaviour.  Soon after [the complainant] had disclosed to her mother she had the need to tell everyone at school.  Her drawings were sexually explicit and her compulsive need to talk about her experiences was both confronting for the teachers and her friends and put her at risk of further social isolation.  It is difficult for a 5 or 6 year old to be affirmed for her courage in telling the secret but to then also be encouraged not to talk about her experiences during 'show and tell' at school because it may have negative social implications."

1. Decisions of the Court of Criminal Appeal in cases such as R v England 42/1989; George v R [1986] Tas R 49; Emery v R (1999) 9 Tas R 120, are statements of the special significance of the crime of rape, especially of young people, in the sentencing process. The effect of the misconduct here, specific to these two children, must be added to the significance of the acts of sexual penetration. The combination removes this case from those which might, quite properly, attract the type of sentence imposed by the learned sentencing judge.

1. The combination, added to the other matters considered in the original sentencing process, permit the conclusion that the sentence of imprisonment was "manifestly inadequate".

1. In my opinion, the appropriate penalty, given the four acts of rape, would have been one of five years' imprisonment.

1. This is a Crown appeal and, as counsel for the appellant quite properly conceded, it is appropriate to take into account principles akin to double jeopardy or perceived unfairness associated with a Crown appeal based on principle (R v Tait and Bartley (1979) 24 ALR 473; R v J (1982) 45 ALR 331). Giving effect to those principles, I would allow the appeal and substitute a sentence of four years' imprisonment.

1. I am conscious that I am in minority in the assessment of re-sentence, and it is appropriate that I state the basis on which I differ from the majority conclusion.

1. This is a Crown appeal which requires some amelioration in the event of success.  Assuming an appropriate allowance in a case such as this to be between six and twelve months, the substituted sentence of five years and six months would, but for the successful Crown appeal, be in the vicinity of six to 6½ years.  In this case, there were significant mitigating matters which were far from ordinary.  The offender is aged 64 with an unblemished record.  The period involved a time span of some 18 months.  The acts of predation were criminal but, by comparison with others, not at the highest degree of culpability.  The age of the children and the effects on them is not that of a person irremediably fractured or traumatised.  No physical coercion was employed.  The offender has shown genuine remorse evidenced by the setting up of a trust fund for the benefit of the children harmed.  He readily admitted responsibility and entered a plea of guilty at the earliest possibility.  It is likely that but for his admission, coupled with the plea, the prosecution might not have been commenced or been successful (Pavlic v R (1995) 5 Tas R 186).

1. In cases involving lengthy or serial predation (R v Randell 78/1999) and few mitigating features, a far greater penalty would be warranted.  By logical extension that penalty would far exceed the range already provided.

1. Either cogent mitigating circumstances are taken into account and reflected in the penalty or they become but formalistic statements.  I gave them weight and paid regard to the need to reserve the upper range of sentences for the worst of cases.  It is for these reasons that I did not join the other members of this Court in imposing, on re-sentence, a penalty of five years and six months.

1. I would allow the appeal by the Attorney-General and substitute a sentence of four years' imprisonment.

   File No CCA 32/2002

HER MAJESTY'S ATTORNEY-GENERAL v B

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
11 September 2002

1. The respondent was sentenced to three years' imprisonment after pleading guilty to two counts of maintaining a sexual relationship with a young person.  The appellant has appealed against that sentence on the ground that it was manifestly inadequate having regard to all the circumstances of the case. 

1. The complainants are both step-granddaughters of the respondent.  He is married to their maternal grandmother.  They are both very young children.

1. The charge concerning the older of the two girls relates to a period of some 18 months, ending soon after her sixth birthday.  The respondent is in his mid-60s.  The start of the 18-month period referred to in the complaint does not represent the start of their sexual relationship, but the date when they arrived in Tasmania.  He commenced sexually assaulting her on the mainland.  In the proceedings before the learned sentencing judge, there was no dispute as to the nature of the respondent's physical acts.  He raped the older girl on three occasions in the open air at a place near a river.  On each of those occasions, he first rubbed her vagina with his finger, then kissed her on the vagina and clitoral area, and then placed his penis between her vaginal lips, proceeding to ejaculation, but removing his penis from her genital area before ejaculating.  Earlier, when the children first moved to Tasmania, there were a number of occasions when he put his hand down into the older girl's pants and rubbed her vagina while she was sitting on his lap.  On another occasion, when the girl needed him to take her to a public toilet, he sexually assaulted her after she had used the toilet, placing his finger on her clitoral area and rubbing it.  On another occasion when he had assisted this girl with toileting, he lay her on the ground, and kissed, licked and rubbed her vaginal/clitoral area.  After the three rapes, there were at least four incidents at the respondent's home when he placed his hand inside her clothing and rubbed her vaginal/clitoral area with his finger.  His wife caught him with his hand in the girl's pants on one such occasion, but he promised to stop, and persuaded her not to say anything.  He did not stop.  There was a subsequent incident when he rubbed her vagina, and yet another incident when he went to touch her vagina, but she told him not to, and he did not.  That was the last incident involving the older girl.  She told her mother what had been happening shortly afterwards, and the matter was reported to the authorities.

1. The respondent maintained a sexual relationship with the younger girl over a period of about nine months, when the girl was four years old.  The first indecent assault on her occurred when she was staying at the respondent's home and he was bathing her.  He rubbed his finger on her vagina and clitoris.  He did this again while bathing her on a second occasion.  On a third occasion, after bathing her and drying her, he attempted to kiss her on the vagina, but she rolled away from him.  During one of the bath incidents he raped this girl by placing her on his lap and rubbing his penis between her vaginal lips, and moving her body up and down on his penis, until he ejaculated.  On a later occasion, he attempted to kiss her on the vagina.  On approximately 10 other occasions he placed his hand inside her clothing and rubbed her vaginal/clitoral area.

1. There are a number of factors that make these charges very serious.  They involve four rapes.  The victims were very young.  The respondent abused the trust placed in him by the children and their parents.  The criminal conduct for which he was sentenced continued over some 18 months in the case of the older girl and some nine months in the case of her sister.  He did not cease his sexual abuse of the children when he was first caught.  His crimes have had very grave psychological effects on the children, and have created terrible difficulties for their family.  Their psychological difficulties are likely to endure for years, perhaps for the rest of their lives.  The respondent's earlier sexual abuse of the older girl outside Tasmania is not relied on by the Crown as an aggravating factor, but the respondent was not in a position to say he had lived a faultless life prior to the period to which the charges relate. 

1. There were a number of significant mitigating factors that the learned sentencing judge took into account in favour of the respondent.  He had no prior convictions.  He confessed to the police ¾initially he understated what he had done, but he soon made full and thorough admissions.  He has been remorseful ever since his conduct came to the attention of the authorities.  He pleaded guilty at an early stage.  He arranged for his bail to be revoked, and to go to prison, some months before being sentenced.  The Crown concedes that, because of the ages of the complainants, it is unlikely that there would have been a trial without his admissions to the police.  He and his wife have placed $5,000 in a trust fund for the girls, and are selling a property so that more can be added to that fund.  Because his crimes were opportunistic rather than compulsive, there is little chance of him re-offending.

1. Despite these mitigating factors, I think the sentence of three years' imprisonment does not adequately reflect the gravity of these crimes, particularly since they involved very young children and four acts of rape.  The need for caution in Crown appeals has been accepted in cases such as Everett v R (1994) 181 CLR 295, Malvaso v R (1989) 168 CLR 227, and Attorney-General v Blackler [2001] TASSC 27. However it is the duty of the Court of Criminal Appeal to interfere to avoid a manifest inadequacy in sentence, or inconsistency in sentencing standards, when the error of a sentencing judge is of such gravity that it is essential to the administration of justice that it be corrected: R v Harland-White (unreported, Court of Criminal appeal, 23/1997).  In my view, this is such a case. When a Crown appeal is allowed and an offender is re-sentenced, it is usual to give recognition to the element of double jeopardy involved in being sentenced on two occasions by imposing a sentence that is somewhat less than the appeal court considers should have been imposed at first instance: R v Clarke [1996] 2 VR 520 at 522. I would allow the appeal, quash the sentence imposed by the learned sentencing judge, and sentence the respondent to imprisonment for 5½ years with effect from 7 January 2002.