Bell v The Queen
[2001] WASCA 40
•22 FEBRUARY 2001
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | COURT OF CRIMINAL APPEAL | |
| CITATION | : | BELL -v- THE QUEEN [2001] WASCA 40 |
| CORAM | : KENNEDY J |
ANDERSON J
STEIN AJ
| HEARD | : 6 FEBRUARY 2001 | ||
| DELIVERED | : 22 FEBRUARY 2001 | ||
| FILE NO/S |
| ||
| BETWEEN | : DAVID EDISON BELL |
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Five counts of unlawfully and indecently dealing by father with son, a child under 14 years - Lapse of 25 years between offences and sentencing - No further convictions during that period - Whether mitigatory - Sentence of 5 years' imprisonment not interfered with
Legislation:
Criminal Code (WA), s 183
[2001] WASCA 40
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
| Applicant | : | Mr M J Bowden |
| Respondent | : | Mr R E Cock QC & Ms J A Girdham |
Solicitors:
| Applicant | : | Cannon Bowden & Co |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Bell v The Queen (1981) 5 A Crim R 347
Dick v The Queen (1994) 75 A Crim R 303
Duncan v The Queen (1983) 47 ALR 746
Mill v The Queen (1988) 166 CLR 59
R v Bell [1981] 5 A Crim R 347
R v Law (1995) 84 A Crim R 142
R v Leggett [2000] WASCA 327
R v Miceli [1998] 4 VR 588
R v Mill (1988) 166 CLR 59 at 64
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
R v Tiso (1990) 12 Cr App Rep (S) 122
R v Todd [1982] 2 NSWLR 517
R v Ware, unreported; CCA SCt of NSW; 9 July 1997
R v Werner, unreported; CCA SCt of Qld; 9 October 1998
Re Todd [1982] 2 NSWLR 517
Sell v The Queen (1995) 15 WAR 240
Sheasby v The Queen [2000]WASCA 190
Wagenaar v The Queen [2000] WASCA 325
Woods v The Queen (1995) 14 WAR 341 at 354
[2001] WASCA 40
Case(s) also cited:
R v Ward (1999) 109 A Crim R 159
[2001] WASCA 40
KENNEDY J
ANDERSON J
KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Anderson J and Stein AJ. For the reasons which their Honours give, I would not interfere with the sentence of 5 years imposed by the learned sentencing Judge. I agree that leave to appeal should be granted, but that the appeal should be dismissed.
ANDERSON J: The question in this application is whether, and to what extent, there should be a reduction of sentence because the offences were committed some 26 or 27 years ago.
The offences of which the applicant was convicted were five counts of unlawfully and indecently dealing with his seven-year-old son in 1973 and 1974. The offences involve manipulating his son's penis, committing fellatio on him, causing his son to commit fellatio on the applicant, and inserting his tongue in his son's mouth. He was sentenced to two terms of 12 months and three terms of 2-1/2 years which were structured to produce an aggregate of five years.
On behalf of the applicant, it was submitted that because he had no other convictions and because the offences were so old the aggregate sentence of 5 years was manifestly excessive.
Generally speaking, an important objective in custodial sentences is personal deterrence and rehabilitation. Where many years have elapsed since the last offence, there is obviously no need to emphasise in the sentence the element of personal deterrence and, as well, the Court may be able to conclude that rehabilitation has already taken place. This may justify a lesser sentence than would otherwise be appropriate: Duncan v The Queen (1983) 47 ALR 746 at 749; Bell v The Queen (1981) 5 A Crim R 347; R v Law (1995) 84 A Crim R 142; R v Werner, unreported; CCA SCt of Qld; 9 October 1998; Wagenaar v The Queen [2000] WASCA 325 at [64] to [72].
Secondly, where the offences are "stale", considerations of simple fairness and mercy may require leniency to be extended to the offender: R v Todd [1982] 2 NSWLR 517 at 519 - 520 (cited with approval in Mill v The Queen (1988) 166 CLR 59 at 64); R v Miceli [1998] 4 VR 588.
There are, however, other cases in England and Australia which say that lapse of time between the commission of the offence and its detection and punishment in cases of offences involving sexual abuse within the family is not, of itself, a significant mitigating factor: R v Tiso (1990) 12 Cr App Rep (S) 122; R v Petchell, unreported; CCA SCt of WA;
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ANDERSON J
Library No 930346; 16 June 1993; Sell v The Queen (1995) 15 WAR
240.
It is not altogether easy to reconcile the cases. However, I think it reasonably clearly appears from the authorities referred to that in the general run of cases, delay will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence.
Where nothing more than mere lapse of time without any conviction is relied on for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself or herself up and accept his or her just deserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts.
The mere fact that an offender has led a blameless life between the time of the offences and the time of sentencing is not necessarily an indication of rehabilitation, especially in cases of intra-familial sexual abuse of young children. There may be explanations for the cessation of offending other than genuine rehabilitation, the most obvious of which might be that the child or children have left home or have matured to a stage at which the offender can no longer get away with his or her offending. In this respect, there is a distinction, and I think an important distinction, to be made between cases in which all that appears is that the offender has not been convicted of any offence between the time of the offences and the time of sentencing and cases in which there are genuine claims to rehabilitation and remorse. The distinction was pointed out by Malcolm CJ in Sell v The Queen (supra) at 261, where his Honour said:
"In the present case, a period of approximately 23 years elapsed between the time of the offences and the time of sentencing of the appellant. The explanation for this is that no complaint was made to the police until some 21 years after the offences had been committed. It was submitted that the appellant had the opportunity of rehabilitation during this lengthy period. I am unable to accept this submission. There was no question of rehabilitation as such, although it was accepted by the learned sentencing judge that the appellant had led a blameless life since the commission of these offences. It was also acknowledged that he was unlikely to reoffend and was of no danger to the community."
[2001] WASCA 40
ANDERSON J
In R v Tiso (supra) at 125, Taylor LJ drew a distinction also between cases of sexual abuse within the family and offences such as robbery, dishonesty and the like. He observed that where a person who had pursued a life of crime for a while is shown to have led a good and blameless life for some years before his trial on the last of the offences committed by him, he will be given credit for that in his sentencing. In that sort of case, the cessation of offending some years previously will be a good indication that he has positively reformed. As to the kind of case with which we are concerned, after first referring to a judgment of Dunn LJ in an unreported decision of 12 July 1982 in the case of Shingles where Dunn LJ had said " … where a man had changed his way of life from a criminal way of life to a law-abiding way of life, as this man had, it is right that he should be given credit for it when being sentenced for admittedly serious offences" Taylor LJ, speaking on behalf of the Court, said:
"We have borne that [the comments of Dunn LJ] in mind. We also, however, note that there is a distinction between the sort of case that this court has to deal with today and other offences such as offences of dishonesty, robbery and so on. Some people make burglary and robbery a way of life, and whether this offending comes to light or not is a matter of police detection. Offences involving sexual abuse within the family are by their very nature likely to remain undetected for substantial periods, partly because of fear, partly because of family solidarity and partly because of embarrassment. We consider that whilst any factors which have positively emerged in the time between the offences and the trial are open to the court to be taken into consideration, the mere passage of time cannot attract a great deal of discount by way of sentence in relation to offences of this kind."
The point is that in cases of intra-familial sexual abuse, the offending often goes undetected for a long time, the offender will often be a person who has led an otherwise blameless life, will often be of no danger to anyone except children in the family and will usually be most unlikely to reoffend once the offending in question is disclosed, or the opportunity to commit offences against the particular complainant has gone. Because these are common features in cases of this kind, they are not of much mitigatory weight. Other sentencing considerations overwhelm them. Sentencing objectives in this kind of case focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a
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ANDERSON J
position of trust and authority over them in the family setting and who are
in a position to conceal their offending.
In my opinion, this case is a case of mere lapse of time, as in Sell v The Queen, without any factors positively emerging in favour of leniency during the period between the cessation of the offending and the passing of sentence.
It is true that Deane DCJ twice stated that she accepted that rehabilitation had occurred. At AB 37 her Honour said, " … clearly a process of rehabilitation has occurred over the last 25 years in the sense that you have not offended further in this or any other way." At AB 38, she said, "I accept that given your behaviour over the past 25 years, you have exhibited a considerable degree of rehabilitation and I sentence you on the basis that you are not at a high risk of reoffending in this or indeed any other way in the future." However, in making these remarks, I do not consider that her Honour was saying any more than that the applicant was to be credited with having generally good antecedents after the offending in question and that this enabled the sentencing court to conclude that he probably would not offend again and was not a danger to the community. I cannot see that her Honour intended her remarks to be understood as a finding that the applicant had embarked upon a general process of self-correction or reformation, or that he had engaged in any other positive rehabilitative measure to overcome a propensity to offend in this way. There is not the slightest indication that he has done so. The offending in question, that is, the offending the subject of the counts on the indictment, occurred when the complainant was seven or eight years of age. In her Honour's sentencing remarks, there is a reference to evidence given by the complainant to the effect that inappropriate conduct continued after that. Indeed, the complainant did give evidence of uncharged sexual conduct occurring quite regularly until the complainant was aged 13, or thereabouts. This evidence is contained in the trial transcript at pages 84 and 88, and amounted to evidence of a regular pattern of behaviour whereby the applicant would require the complainant to take showers with him and would engage in washing the complainant's genitalia and requiring the complainant to wash his (the applicant's) genitalia. The complainant's evidence was to the effect that the applicant ceased offending only because he was finally rebuffed by the complainant during a holiday in America, when the complainant was of the age of about 13.
| 15 | That the applicant ceased offending under those circumstances is not necessarily indicative of rehabilitation. Anyway, the first step towards |
[2001] WASCA 40
ANDERSON J
STEIN AJ
genuine rehabilitation must surely be a willingness to acknowledge the offending behaviour itself and that it was wrong. There is nothing of that in this case. The applicant has never admitted the offences and has never shown any remorse. He pleaded not guilty. There was a two-day trial and it appears from the sentencing remarks that the line taken on behalf of the applicant at trial was that the complainant's accusations and evidence were maliciously false - motivated by a desire to get back at the applicant for the discipline that the applicant had meted out to the complainant as he was growing up and to punish the applicant for the break-up of the parents' marriage. In my opinion, this was a contraindication of any genuine process of rehabilitation.
In my respectful opinion, her Honour's sentencing remarks show that she took account of all relevant considerations, including the lapse of time between the commission of the offences and the prosecution of them. On the question of rehabilitation and remorse, and whether there were grounds to be merciful, she had the advantage of seeing and hearing the applicant during the course of the trial. The offences were serious in themselves and the circumstances were serious. There was a degree of depravity and cruelty involved in ejaculating into the complainant's mouth and requiring him to swallow the semen. The offences have had serious consequences in terms of the effect on the personality of the complainant. In my view, the aggregate sentence was within the exercise of a sound sentencing discretion and I am not persuaded that we should interfere with it.
I would grant leave to appeal, but dismiss the appeal.
STEIN AJ: The applicant, David Edison Bell, seeks leave to appeal against the sentence imposed on him on 11 September 2000 in the District Court. The applicant was convicted after being found guilty by a jury on five counts of unlawfully and indecently dealing with a child under the age of 14 years contrary to s 183 of the Criminal Code (WA). The applicant was sentenced to an aggregate term of 5 years' imprisonment with eligibility for parole.
The sentence of the learned District Court Judge was structured as
follows:
Count 1 - manipulation of the penis of the applicant's son, then aged 7 years, 12 months' imprisonment.
[2001] WASCA 40
STEIN AJ
Count 2 - on the same occasion as count 1, committing oral sex on his son, 2-1/2 years' imprisonment.
Count 3 - on the same occasion, inciting his son to suck his penis, 2-1/2 years' imprisonment.
The sentences on counts 1, 2 and 3 were ordered to be served concurrently with each other, making a total effective sentence of 2-1/2 years for those counts.
Count 4 - some months later than the above counts, inserting his tongue in his son's mouth, 12 months' imprisonment.
Count 5 - on the same occasion as count 4, placing his penis into his son's mouth, 2-1/2 years' imprisonment.
The sentences with respect to counts 4 and 5 were ordered to be served concurrently with each other but cumulative upon counts 1, 2 and 3, making a total of 5 years' imprisonment.
Grounds of appeal
There are four grounds of appeal as follows:
"1.
The sentences imposed upon me on each of the five counts were manifestly excessive in the circumstances of the case particularly in view of my age, my good work record, prior antecedents and length of time which elapsed since the commission of the offence and the date of my conviction.
2.
The learned Trial Judge gave insufficient weight in the exercise of the sentencing discretion to personal mitigating factors including the fact that the conduct, the subject of the five counts had ceased of my own volition, the lack of any co-ercion [sic], force or intimidation used in the commission of the offences, the long length of time between the commission of the offences and the date of my conviction.
3.
Further, the learned Trial Judge erred in exercising her sentencing discretion in treating as aggravating factors verbal instructions given that 'this is our little secret, don't
[2001] WASCA 40
STEIN AJ
tell Mum what happened, this is man to man stuff' and
that 'Greek soldiers do this, it is very manly, it is natural'.4. The learned Trial Judge erred in exercising her sentencing discretion in failing to order that all periods of imprisonment be served concurrently rather than ordering that counts 4 and 5 be served cumulatively on counts 1, 2 and 3 bearing in mind the personal antecedents and particularly the length of the delay that elapsed from the commission of the offence until the sentencing."
At the hearing, grounds 3 and 4 were not pressed by counsel appearing on behalf of the applicant and rightly so in my view. Her Honour was not in error in either respect.
Facts of offences
Her Honour related that count 1 occurred at home in 1973 or 1974 just after the applicant's son had turned seven years. Her Honour said:
"You instructed the child to come and have a shower with you, which he did. After showering together you dried off your son and took him to a bedroom which you shared with your wife. You were both naked at this time. Although the blinds in the bedroom were drawn, there was sufficient light for your son to be able to see what was occurring. You sat together on the bed and then you indicated to your son that you should play a special type of game.
You then proceeded to take hold of your son's penis and manipulate it using a number of your fingers. During the time that you did this you inquired of your son whether or not he liked the activity and finally he agreed that he did, as he was unsure what else to say. You also said words to the effect that, 'Never mind. Maybe in a few year's time you'll understand what it's all about.'"
She continued:
"Count 2 occurred immediately thereafter when you placed your son's penis in your mouth and began performing oral sex upon him. The child was not stimulated by this sexual activity. Very shortly thereafter count 3 occurred when you demonstrated to the child how he was to perform oral sex upon you and, having
[2001] WASCA 40
STEIN AJ
done that, you caused the child to place your penis in his mouth and, despite the child having some difficulty in performing the activity you had instructed him to carry out, nonetheless, pursuant to your continuing instructions he persisted in performing oral sex upon you. At the time you had an erection and you were speaking to the child in an encouraging tone.
Your son gave evidence that he felt uneasy but he did not believe he was doing anything wrong and so he continued. You eventually ejaculated into his mouth and told him that it was all right, he could swallow your semen as it was protein and therefore good for him. Following upon these events, you admonished your son not to tell anybody what had occurred, as it was your little secret. In particular you told him not to advise his mother of what had happened as she would not understand.
You stressed the activity that you had just engaged in was male activity which was not discussed and which was a secret. The child therefore did not tell anyone about what had happened."
This constituted the first incident. Her Honour said that counts 4 and 5 occurred a few months later. She recounted the facts of these counts as follows:
"You arrived home, apparently affected by alcohol, and there then followed a somewhat loud discussion bordering upon an argument between you and your wife. You were insisting, despite the hour of the evening and the fact that it was wintertime, that you were going to take your son camping. Despite your wife's attempts to resist the suggestion the complainant was aroused from his bed and dressed. He was then placed in the family car which you proceeded to drive off at speed and in a somewhat erratic manner.
Eventually you drove the vehicle to City Beach where you parked it. You and your son then got out of the vehicle and you proceeded to walk into a sand dune area carrying a green sleeping bag which you had previously used to go camping. You laid that sleeping bag on the ground and then removed your son's pants as well as your own jeans. At this point your son was sitting on the sleeping bag with you and count 4 on the indictment occurred when you kissed your son on his mouth, inserting your tongue into his mouth as you did so. This time
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you advised him that he was fortunate because you had never had a father to show you how to do this type of thing which one day your son would do to a female.
When your son advised you that he was cold you told him to come between your legs and that you would warm him up. When he did this you took his head, using your hand, and you placed his head over your penis. You then took your penis in his mouth and started performing - and he started performing oral sex upon you. Your penis was erect at this time and you proceeded to ejaculate into his mouth. That activity constitutes count 5 on the indictment. Once again you told him he could swallow your semen as it was protein. You further advised him that the activity he had performed upon you was very manly and natural and it was something that Greek soldiers did. You then proceeded to sleep for a short time before driving your son back to the family home and telling him not to advise his mother what had occurred as it was your little secret."
Grounds 1 and 2
I think that these should be dealt with together because they are aspects of the submission that the sentences imposed were manifestly excessive. Indeed, the written outline of submissions on behalf of the applicant deals with the grounds together, stressing the importance of the demonstrated rehabilitation of the applicant, claiming that her Honour gave no or inadequate consideration to this aspect.
The maximum penalty for the offences under s 183 was 7 years at the time of the offences. The victim, the applicant's son, was seven to eight years old at the time. In Woods v The Queen (1995) 14 WAR 341 at 354, Anderson J noted that cases of intra-familial sexual abuse should typically attract significant sentences of imprisonment. See also Sheasby v The Queen [2000]WASCA 190 per Wheeler J at [16].
Counts 2, 3 and 5 are serious offences as revealed by the present day maximum penalty of 20 years' imprisonment.
Her Honour took account of the age of the offender, 58 years at sentence, his minor criminal record and good work record. But these factors are of limited weight, given the seriousness of the offences. This has been observed by the Court on a number of occasions. In R v Leggett [2000] WASCA 327, Wheeler J, with whom Pidgeon and Ipp JJ agreed,
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noted that the circumstances of an offender's good character often enabled him to escape detection at the time that offences of this kind occurred at [29].
It is clear that the sentencing Judge took the applicant's personal factors into account, see AB 37 - 39, but observed that these factors needed to be balanced against the principles of general deterrence.
Reliance is placed on the applicant's conduct towards his son ceasing when his son was around 13 years of age and the absence of physical coercion. Her Honour dealt with these matters. As to the first, she observed that the applicant's conduct towards his son ceased when he was rebuffed by his son. As to the latter, her Honour noted that there was no physical intimidation or violence involved in the offending. She remarked that this was mitigatory to an extent, but bearing in mind the tender years of the child (seven to eight years) and the nature of the relationship between them, there was no need for the applicant to engage in violence to obtain his ends.
Central to the applicant's complaint is the delay between the offences and sentencing, around 25 years. Delay may mitigate an offence in two circumstances. The first is where there is a delay between apprehension and sentence, with the consequence that the offender may have had his liberty curtailed, reputation questioned or left in a state of uncertainty caused by the failure to prosecute the case more quickly. This is not here relevant.
The second circumstance is where the time between the offences and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or made good progress towards rehabilitation. See, for example, R v Law (1995) 84 A Crim R 142; Leggett at [34]; Re Todd [1982] 2 NSWLR 517 at 519 - 520; R v Mill (1988) 166 CLR 59 at 64; R v Bell [1981] 5 A Crim R 347 at 351 and Duncan v The Queen (1983) 47 ALR 746 at 749.
The trial Judge noted the process of rehabilitation of the applicant at several points in her sentencing remarks. Her Honour said:
"On the face of it, you have been a law-abiding citizen for many years in the sense that you have no criminal record of any moment and you certainly do not have convictions for this type of behaviour in the past. It is also the case that these offences occurred some 25 years ago and you have not offended in any way since that time, so in that sense your antecedents are
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positive and clearly a process of rehabilitation has occurred over the last 25 years in the sense that you have not offended further in this or any other way."
Her Honour further stated, when dealing with the question of personal deterrence, that the applicant had "exhibited a considerable degree of rehabilitation".
Later, at AB 39, she said:
"Notwithstanding that personal deterrence does not loom large in this particular sentencing process, I certainly consider that the matter of general deterrence needs to be emphasised.
It is the case that you have demonstrated rehabilitation but with this type of offending in my view, the passage of years cannot weaken the magnitude of the offending. Your behaviour involves a gross breach of trust."
While noting the passage of time and the applicant's "evident rehabilitation", her Honour considered a full-time custodial sentence the only sentence appropriate. Nevertheless, she said that the punitive and deterrent aspect of sentencing should not prevail so as to possibly destroy the "results of any rehabilitation that has occurred".
When these passages of her Honour's remarks on sentence are read, and in the context of the whole of the reasons for judgment on sentence, it is apparent that her Honour did give consideration to the lengthy passage of time between the offences and sentence and the applicant's degree of rehabilitation. However, it appears that she balanced this out because of the grave breach of trust, the seriousness of the offences and absence of contrition.
Besides the consideration given to the issue by Wheeler J in Leggett [31 - 37], the question was also considered in Wagenaar v The Queen [2000] WASCA 325, the judgment coincidentally published on the same day as Leggett. In Wagenaar Ipp J (with whom Kennedy and Pidgeon JJ agreed) dealt in some considerable and helpful detail with the issue and the authorities. Unlike Leggett, where Wheeler J found that the applicant had not been significantly rehabilitated during the delay, Ipp J recited evidence of "genuine rehabilitation" during the 27 years between the last offence and conviction and the "blameless and socially constructive life" led in that period. His Honour said that he did not agree that these matters should not be accorded significance in sentencing.
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Reference was made by his Honour to R v Tiso [1990] A Crim R 607 (approved in Dick v The Queen (1994) 75 A Crim R 303) that the mere passage of time does not attract "a great deal of discount of sentence" in relation to sexual offences. Ipp J referred to the decision of the court in R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 wherein Franklyn J indicated that the mere fact of delay in apprehension was not, as a general rule, a mitigatory factor. However, Ipp J noted that the court accepted as a mitigatory circumstance that the respondent had lived a completely blameless life since 1981.
Ipp J also referred to Law, Duncan and Bell as authorities that delay coupled with some other consequence, such as rehabilitation, is mitigatory. The instant case, of course, differs from Law because here there was no delay in the prosecution of the applicant once the matter came to notice.
In Sell v The Queen (1995) 15 WAR 240 at 261 Malcolm CJ said:
"It may be accepted that where there has been lengthy and unexplained delay in bringing a prosecution and, prior to sentence there has been a successful attempt over that period by the offender at rehabilitation, so that the protection of society need not be considered, deterrent and punitive aspects should not prevail over rehabilitative aspects of the sentencing process."
However, in Sell his Honour found that there was no question of rehabilitation during the period of 23 years which had elapsed between the offences and sentencing, although the applicant had led a blameless life since the offences. The lack of remorse substantially counterbalanced the applicant's otherwise good character and blameless record since the offences were committed.
In Wagenaar Ipp J also noted the remarks of Gleeson CJ in the NSW Court of Criminal Appeal in R v Ware, unreported; CCA SCt of NSW; 9 July 1997. The Chief Justice noted that delay of itself does not warrant leniency, particularly in the context of sexual abuse. However, Gleeson CJ indicated that the situation may be different where the delay has led to rehabilitation.
Acknowledging that where an abuse of trust occurs, less weight will be given to mitigatory factors, nonetheless Ipp J considered that significance should be accorded to the many years of blameless existence and the rehabilitation achieved (at least to a degree) by the applicant. This
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led his Honour to reduce the sentence of 8 years' imprisonment and
substitute one of 6 years with respect to two counts of rape.
The question to be answered in this case is: what did her Honour mean when she referred to "a process of rehabilitation has occurred over the last 25 years" and that the applicant has "exhibited a considerable degree of rehabilitation"?
There was no evidence of any positive steps taken by the applicant to rehabilitate himself. At one point in her reasons it is clear that her Honour is referring to the applicant not having offended for 25 years. As Anderson J has observed in his reasons for judgment, the applicant's contesting the trial, suggesting that the complainant's accusations were maliciously false, is the antithesis of a process of rehabilitation.
In the end I think that her Honour's references to the "rehabilitation" of the applicant were no more than a reference to there being no further offences committed by him in the elapsed period of time. No more and no less.
The case is more like Sell than Wagenaar. During the extensive delay it would have always been open to the applicant to make a clean breast of his offences. This would have indicated a positive approach to his rehabilitation. Mere ceasing to offend after being rebuffed by the complainant when he was 13 years old is not necessarily indicative of reformation.
While the case may be finely balanced, I have concluded that the aggregate sentence imposed was within the sentencing discretion of the Judge and ought not be disturbed.
Leave to appeal should be granted but the appeal dismissed.
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