Baldwin v Ridge

[2003] TASSC 67

[2003] TASSC 67 

CITATION:           Baldwin v Ridge  [2003] TASSC 67    

PARTIES:  BALDWIN, Gavin Richard 
  v 
  RIDGE, Leonie Grace 

TITLE OF COURT:  SUPREME COURT OF TASMANIA 
JURISDICTION:  APPELLATE 
FILE NO/S:  LCA 9/2003 
DELIVERED ON:  25 July 2003 
DELIVERED AT:  Burnie 
HEARING DATE/S:  25 July 2003 
JUDGMENT OF:  Crawford J 

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Sentencing - Imprisonment - General matters - Sentence of three months' imprisonment - Whether manifestly excessive - Indecent assault by masseur on patient.

Aust Dig Magistrates [150] 

REPRESENTATION:

Counsel:
             Applicant:  B Nibbs  
             Respondent:  P Jones 
Solicitors:
             Applicant:  G A Richardson 
             Respondent:  Director of Public Prosecutions 

Judgment ID Number:  [2003] TASSC 67 
Number of paragraphs:  19 

Serial No 67/2003 

File No LCA 9/2003 

GAVIN RICHARD BALDWIN v LEONIE GRACE RIDGE 

REASONS FOR JUDGMENT  CRAWFORD J 
(DELIVERED ORALLY)  25 July 2003

1. The applicant applied for a review of the sentence of three months' imprisonment imposed in a court of petty sessions on one charge of indecent assault contrary to the Criminal Code, s127(1). The complaint charged that on 2 March 2002, at Cradle Mountain, he indecently assaulted the complainant by kissing and/or sucking her breast. The only ground of review is that the sentence was manifestly excessive.

1. He pleaded not guilty.  A defended hearing was conducted on 3 March 2003.  At its conclusion the learned magistrate found the complaint proved.  Subsequently on 12 May 2003, a hearing was conducted with regard to sentence and the sentencing order was made on 29 May 2003. 

1. I have supplemented the facts as found by the learned magistrate from my perusal of the transcript of evidence.  At the time of the offence the complainant was aged about 27 years.  She had been employed at Cradle Mountain Lodge for about two years.  The applicant had worked at the Lodge throughout that period as a contract massage therapist.  She had been massaged by him on a number of occasions before, she thought on average of about once every two months, possibly more often.  In the course of her employment she made bookings for guests to be massaged by him and it was an incentive to her to encourage guests to use his services, because if she did so she was entitled to a free massage every so often, depending on the number of bookings she had made. 

1. She made an appointment to be massaged by him on the evening of 2 March 2002.  She went to the massage room, and undressed to her tracksuit trousers, removing all of her upper garments.  She was therefore topless and she lay on her front on the bench.  The applicant commenced the massage.  Her evidence was that she recalled her back, shoulders, neck and head being massaged and fell asleep.  She was woken by him and he asked whether she was ready to turn over.  She turned over onto her back.  She recalled him massaging her shoulders and stomach.  During the further course of the massage she once again fell asleep. 

1. I come to the circumstances of the actual commission of the offence.  The next thing the complainant knew was that she awoke to find him very close to her body, with his mouth on her left breast either kissing or sucking it.  She was immediately angry and jumped up.  She saw that he was naked and that his penis was erect.  When she had fallen asleep he was wearing a uniform.  She yelled at him to "fuck off".  He tried to placate or calm her by saying "it's okay, it's fine", or words to that effect.  He added words that expressed or implied "think of it as a birthday present" or "I wanted to give you a birthday present", although it was not in fact her birthday for another three months.  She put her top on and left the room in an upset state, hiding herself in a room behind reception, the door to which she locked.

1. There was evidence from a number of members of staff.  The assistant manager heard her crying and screaming loudly.  He asked the applicant what was going on and he replied, "I think I did something wrong, I need to speak to you".  On being pressed he added, "I think I did something wrong while I was massaging" the complainant, who he named.  He said that he had removed his clothes while doing so.  On being asked why, he said that he and the complainant had a long-standing joke between them that if it was somebody's birthday they could massage in their birthday suit.  On being asked to repeat what he said, he responded, "I think I've stuffed up".  He added that he had also kissed the complainant. 

1. As a result of what happened, the general manager terminated his position as masseur at the lodge.  I think that was about two days later and according to the general manager, the applicant appeared apologetic at the time, claiming that he had not done anything like it before and that he would seek medical help, because he thought he had a problem. 

1. Over the previous three months, the complainant had formed a relationship with another employee at the lodge who was working there at the time of the incident.  He gave evidence of finding her in a locked office, screaming and yelling.  She would not unlock the door until she knew who it was.  When she let him in he found her to be hysterical.  He described her this way:  "She then cowered back into the corner sort of covering her body and sort of clenching her body down covering her face and hitting herself in a complete hysterical panic ... screaming".  He said that he tried to calm her down, in the course of which she told him that she had fallen asleep while having a massage and woke to find the naked applicant sucking her nipple. 

1. The applicant gave evidence denying that he had touched the complainant's nipple or breast.  As the learned magistrate found that he was not a truthful witness, no point would be served by relating his evidence, except to say that he admitted taking his clothes off. 

1. Prosecuting counsel submitted to the learned magistrate that the offence amounted to a significant breach of trust and that has been accepted by the applicant's counsel today.  Prosecuting counsel also submitted that it amounted to a frightening experience for the complainant.  In that regard a victim impact statement signed by the complainant was tendered, together with a psychiatric report.  Their contents were not challenged at the hearing before the learned magistrate and they reveal that as a consequence of the offence she was suffering from a severe post-traumatic stress disorder.  She had constant intrusive recollections of the event, through her waking hours, and nightmares of it frequently.  She avoided talking about it and tried not to be reminded of it in any way.  She felt unsafe, especially at home, but also in public areas which had not been the case before.  She complained that she felt intense fear.  She tendered to be teary, hyper-vigilant and irritable, and to have variable concentration, to be startled easily, to cry a great deal and to want to avoid socialising.  Prescribed medication, at the time of the psychiatrist's report, had been of little benefit because the medication had side effects, and so only a low dose could be taken by her.  Information before the learned magistrate included that the effects of the offence had greatly impacted upon her relationship with her male partner, emotionally and physically.  She said that she had moved to South Australia to live and had accepted a lower level of employment, in an attempt to put behind her what had happened.  In her victim impact statement she concluded with the following:

"I feel that I have put my life on hold.  The incident has changed my outlook on life.  He has chopped a part of me away, stopped me from 'living'.  I now worry about stupid stuff, am angry all the time, not happy go lucky!  I feel I have retreated from life, normality, friends, family, career."

It is therefore plain that the offence had very bad consequences for her. 

1. The applicant was 36 years old and had lived in a de facto relationship for 12 years without children.  He had no prior convictions.  His occupation for eight years had been as a qualified remedial massage therapist.  His counsel tendered a psychologist's report concerning him.  He had admitted to the psychologist only that he had exposed himself.  He suffered from no mental illness or sexuality disorder.  The psychologist did not believe that the behaviour would be repeated and considered that the applicant was deeply remorseful.  However, I agree with what was submitted to me by Ms Jones, that the remorse seems to have been more an expression of concern about the predicament that the applicant was in and was not expressed as remorse having regard to the interests of the complainant and what he had done to her. 

1. The applicant's counsel explained to the learned magistrate that because of his sense of guilt, he attended a general practitioner and on eight occasions a psychologist.  It was submitted that the offence was out of character.  That appears to be correct, because this was the only relevant offence in his record.  A sentencing officer could be reasonably confident that he will not reoffend, having regard to his record and his age. 

1. He, of course, lost his employment.  At the time of sentencing he was self-employed as a masseur, but had a very low income. 

1. In his comments on passing sentence the learned magistrate concluded with remarks which were justified.  They were:

"She has been significantly traumatised by these events which have impacted upon her relationship.  She feels fear.  Her health and temperament have been adversely affected and she feels isolated and insecure.  You put her through the added strain of giving evidence and reliving the events and have shown no remorse maintaining your lie that she should have anticipated that at some time she could expect a naked massage.  You view it as a prank.  I take into account what has been said of your antecedents and the sentencing material before the court.  This was a serious offence.  The complainant had every reason to feel very, very scared as she said once it had occurred.  You and she were alone together in a closed room away from others.  She was naked apart from her tracksuit pants and you were totally naked with an erect penis and you were either sucking or kissing her breast thereby demonstrating your lust and arousal.  Her sense of vulnerability was completely justified.  This was a serious breach of trust on your part, not only professionally, but by a friend whom she had every reason to trust.  I am satisfied that you acted selfishly and solely out of a desire to fulfil your own sexual gratification without regard to her.  Anything other than an actual gaol term would be unresponsive to the seriousness of this crime."

1. The applicant cannot succeed unless I am persuaded that the sentence was manifestly excessive to the extent that it demonstrated patent error.  A judicial officer has a very wide discretion to exercise when sentencing and I must not set aside the sentence unless satisfied that it was unreasonable or plainly unjust.  There are many authorities, of course, for that including House v The King (1936) 55 CLR 499 at 450. I refer also to the off-quoted dicta of the then Chief Justice in Whittle v McIntyre [1967] Tas SR (NC 6) where his Honour said:

"It is necessary to state emphatically that a police magistrate in deciding what the appropriate penalty is for an offence, is entrusted by the law with a very wide discretion.  An applicant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate.  The appeal against sentence is a limited appeal.  The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way."

To that I would add the dicta of the present Chief Justice, although he was not Chief Justice at the time, in Miller v Visser unreported 32/1998, at 11:

"An appeal court may not intervene merely because it considers a non-custodial sentence would not have been manifestly inadequate and might have been a reasonable alternative."

1. What was done by the applicant was not simply the making of an unwanted sexual advance.  If the complainant had been awake and he had, without her consent, improperly touched her on the breast or had gone to kiss her on the breast, and she had objected, it would have had an entirely different character.  It went far beyond that.  He was trusted by her to act properly towards her when he performed his occupation.  In that state of trust she fell asleep and he took advantage of her state of unconsciousness, by taking his clothes off and then kissing her on the breast.  Such was her shock on waking that his actions have caused her severe psychological harm.  The sentence must reflect that. 

1. Although he had no prior convictions, and he was entitled to have that taken into account in mitigation, he was not entitled to the benefit that would have flowed if he had fully admitted his guilt and pleaded guilty and saved her the need to give evidence.  Although there is no doubt that he has been distressed by the position he has put himself in, his failure to admit the offence means that the sentence cannot be compared with sentences imposed in other cases where the offender pleaded guilty, or where the offender demonstrated real remorse and owned up.

1. It is my opinion that the only sentence appropriate in this case was one of imprisonment.  A fine or community service order would have been inadequate having particular regard to the impact on the victim.  It may be that if the sentence had been wholly suspended it could not have been made the subject of a successful challenge by the prosecution.  But the sentence that was imposed, three months' imprisonment, all of which was to be served, was one falling within the proper exercise of the sentencing discretion that was entrusted to the learned magistrate.  If the applicant had pleaded guilty he would have had a much better chance of avoiding incarceration, but by not taking that course and gaining its mitigating benefits, he lost, in my view, the only chance he may have had of avoiding actual imprisonment.  It may well have been a borderline case in that regard.

1. In all the circumstances of the case the sentence was not manifestly excessive, notwithstanding all the points that were made on the applicant's behalf by his counsel.  Accordingly, the order of the Court will be that the motion to review is dismissed.