Bignell v Police No. Scgrg-97-1541 Judgment No. S6482

[1997] SASC 6482

BIGNELL V POLICE

Magistrates Appeal

Bleby J

This is an appeal against sentence imposed on the appellant by a magistrate. The appellant pleaded guilty to five counts of indecent assault, an offence contrary to s56 of the Criminal Law Consolidation Act.

As the victims were all under the age of twelve at the time of the offences the maximum penalty for each offence is a period of imprisonment not exceeding ten years.

The appellant was sentenced on 6 November 1997 to imprisonment for two years and three calendar months, with a non-parole period of 15 months. Exercising the powers available to him under s18A of the Criminal Law Sentencing Act, the magistrate imposed only the one penalty for all offences. He did not consider that there existed any good reason for suspending the sentence.

Offences comprising the five counts occurred over a five year period between November 1992 and January 1997.  Count 1 related to an incident that occurred at Pelican Point in November 1992.  The appellant had gone on a fishing trip with his wife’s cousin, D, and D’s two older brothers.  D was aged 11 at the time.  While at Pelican Point the four stayed in a holiday shack.  The sleeping arrangements were such that the appellant and D shared a single bed.

At a time during the second night that was spent at the shack the appellant put his hand inside D’s pyjamas and fondled his penis while the latter was asleep, but as a result of which he awoke.  He said he may have fallen asleep again, and awoke to find the appellant’s hand still on his penis.  At a police interview the appellant admitted the touching, and that he placed the victim’s hand on his own penis.

Count 2 relates to another incident involving D which was committed in April of 1993 at Mt Gambier. At the time D was staying at the appellant’s flat. At about 6am the appellant went into the victim’s bedroom while he was asleep, put his hand under the bed clothes and touched D’s penis, again waking the victim.

Count 3 related to an incident that occurred during the period between 1 January 1996 and 1 January 1997, and count 4 early in 1997.  On those occasions the victim was a boy named T who was aged 11 at the time, and who was the appellant’s wife’s brother.  On each occasion the victim was sleeping at the appellant’s house when the appellant touched his penis while he lay asleep in bed.  The victim had no recollection of these events, but the appellant admitted to five or six occasions over a period of approximately one year when he had touched T.

Count 5 involved an indecent assault committed on B who lived with and was the foster son of the appellant’s mother-in-law.  In early 1997 the appellant indecently assaulted B who was aged nine at the time, and staying overnight at the appellant’s house.  The circumstances briefly were that the defendant, whilst B was on the bed, placed his hand on the victim’s penis and began rubbing it.  The appellant then pulled the victim’s pyjama pants down and began to rub his penis more.  The appellant took hold of the victim’s hand and placed it on his own penis which was out of his boxer shorts, and the victim pulled his hand away from the appellant.  The appellant again took hold of the victim’s penis and pulled the foreskin back and stuck his fingernail on the end of his penis.

Both D and B were scared of the incidents and scared to report them.  On each occasion the appellant had an erection but did not proceed to masturbation or ejaculation.  Apart from the other occasions I mentioned in relation to T, which were somewhat vague, and one other occasion with D in Albury in New South Wales which can not be the subject of any charges in South Australia, there were no other offences, so these were not therefore charged as representative of a course of conduct.

The magistrate had before him victim impact statements from each of the boys.  D was moderately affected by the behaviour, and his prognosis is perhaps uncertain.  T seems not to have been affected.  B was quite badly affected initially, but both he and D seem to have had the benefit of early counselling and support from their church, of which all the victims and the appellant were members, and from their families. The magistrate also had a report from Dr White, a registered psychologist, which was of assistance to the magistrate in the assessment of the appellant’s antecedents and his prognosis.

The offences only came to light when the appellant disclosed them, first to the bishop of his church, which is the Church of Jesus Christ of Latter-day Saints, then to his own family, and through his solicitor to the police.  He claims that it was out of concern for the victims that he made the disclosure.  I have no reason to doubt that.  And I think the magistrate had none either, because without his confession the offences may well never have been reported.

On the other hand, the revelation, which is commendable, could have been made some years earlier, particularly as an opportunity seems to have arisen when the D incidents, which are the first ones, became a matter of discussion within the church some time in 1993, and were not fully resolved, at least to the satisfaction of D.

The appellant, at the time of sentencing, was a 28 year old married man with an apparent strong religious conviction to the principles of his church.  He remains apparently happily married, and has the on-going support of his wife. He has since been excommunicated by his church, but after a period of repentance and rehabilitation seems to have some prospect of readmission.  He still attends the church services as an observer.  He has no criminal record of any sort. He is currently training to become a commercial pilot, and is himself involved in provision of tuition to trainee pilots.

In the past he has also undertaken voluntary work for St John Ambulance.  The appellant is unable to offer any explanation as to why the offending occurred, other than possibly by reference to the trauma that he has experienced as a result of the death of his maternal grandfather in 1993, and the illness and eventual death of his paternal grandfather in February of 1997, and his work with St John Ambulance attending severely disfigured road accident victims. However there was no medical evidence to suggest that there was any connection, at least with the latter.

It appears that his family, and in particular his wife, are very supportive of him, and are ready to secure the implementation of positive measures that will assist in his rehabilitation. He still has healthy family contact with the victims.  T and B, and T’s mother, the appellant's mother-in-law, are supportive of him, whilst not condoning his conduct.  D, through the church, has made a point on several occasions of greeting him and enquiring as to his well-being.

The appellant himself has at some stage been the victim of sexual assaults earlier in his life.  As I said, the family and his wife are particularly supportive.  He himself has obtained psychological counselling, but was disappointed with the treatment that was administered at the time.  He has expressed willingness to undertake further treatment from the Sexual Offenders Treatment Programme, if that becomes available to him in the town where he lives.

The appellant appeals to this court on two grounds.  The first ground is the failure of the magistrate to order a suspension of the terms of imprisonment, and the second ground is that the penalty of the magistrate is manifestly excessive in the circumstances.  I deal with the first ground first.

It was accepted before the magistrate and before me that a term of imprisonment was the appropriate starting point. The appellant’s first complaint is that in all the circumstances it was one of those cases where, having particular regard to the circumstances of the offence, the ready confession and cooperation and the plea, coupled with his antecedents and all other circumstances, the sentence should have been suspended.

Mr McGee argued that the magistrate erred in principle by holding that the only sentencing option available was an unsuspended sentence, and he had not acted on or taken into account those aspects of the offending that made the case exceptional. It was put that by virtue of what the magistrate said in the closing two paragraphs of his sentencing remarks, he had applied what Mr McGee described as a rule of thumb, namely that because considerations of deterrence must predominate, an unsuspended sentence was the only option.

I can detect no error of principle in the magistrate’s approach to the question of suspension.  The magistrate gave, what I may say with respect, was a very careful and balanced summary of the nature of the offences, the antecedents of the appellant, and of all the relevant circumstances which had been put to him.  He carefully and accurately summarised the submissions that had been made to him by the appellant’s counsel, and by the prosecutor.  I should perhaps add in parentheses that the submissions on penalty had been made over a number of days, and the magistrate had adjourned them to enable the report of Dr White to be obtained.

His Honour had in effect heard two full sets of submissions on different occasions.  He then again adjourned the matter, inviting the parties to make further written submissions. The prosecutor evidently took advantage of that opportunity, but the submission was, for some reason, never seen by the magistrate before sentencing.  I think the appellant made no written submissions.  It seems that the written submissions were not, at the end of the day, of any relevance.

Having summarised all the submissions, the magistrate then identified the factors which in his mind made this a serious offence.  He referred to the number of offences, the age of the victims, the period of the offending and the fact that it was not consensual.  By reference to a passage from the judgment of Perry J in the Director of Public Prosecutions v O'Connor 1995, 65 SASR p250 at p253, he referred to other circumstances of aggravation, namely the age disparity, the breach of trust, the representative nature of the offences, and the period over which they were committed, all being factors which gave rise to the need to have regard to general deterrence as the dominant consideration. I do not take the reference to O'Connor's case as being reliance on the ratio of that case, but merely a convenient method of reference to a number of relevant factors which gave rise to deterrence being the dominant consideration.

Those factors were not outweighed by his psychological condition and previous good character.  The magistrate said he had carefully compared all the factors put by the prosecution and the defence counsel, and had considered all the sentencing options available to him.  In the end he considered that considerations of deterrence, both personal and general, tipped the scale in favour of a custodial sentence without suspension.

As I said, I can detect no error on the part of the magistrate in his approach.  The factors which he identified as aggravating factors were properly taken into account. For offences of this nature deterrence is perhaps one of the most significant factors.  In taking those factors into account he did not however overlook the submissions carefully put on the appellant’s behalf by his counsel.  I do not consider that the magistrate applied an unyielding rule of thumb, such as to lead him into error.

Of course much can be and was said in favour of the appellant.  A regrettable feature of so many sexual abuse cases of this nature that come before the courts is that defendants have impeccable records, are decent hardworking upright members of society, undertake substantial community service, and on the surface have a good healthy family and marital relationship.  Furthermore, they almost invariably show genuine and deep remorse.

It is because of all those common features that deterrence becomes such a significant element, and why custodial sentences, distasteful as they may be, are more often than not imposed.  The fact that the appellant has good support systems, and still enjoys cordial relationships with the victims, speaks volumes for those who support him and stand by him, and says much for the Christian and forgiving attitude of his victims.  He and they are extremely fortunate people, however that cannot detract from the seriousness of the offences, and the need to deter others of equal standing in the community who may be tempted to engage in similar conduct.

The second error said to have occurred in the decision not to suspend involved the linking of a submission of the prosecutor that in all but one of the cases the boys were asleep, which was said to be an aggravating factor, with the observations of the magistrate that not any of the misconduct involved consensual activity.  It was said that if by that the magistrate considered that an offence was less serious if a child consents, he fell into error.  I do not regard the magistrate as reasoning in that way.  The point he was making, and it was a relevant point, is that in every case the offence, whilst not involving violence in the sense that that is usually understood, was nevertheless imposing himself on unwilling victims. He was entitled to take that into account.

The question of consent by a child under 12 will seldom, if ever, be relevant and will seldom, if ever, be capable of being given.

In my opinion a custodial sentence was open to the magistrate in all the circumstances and was properly imposed. So the first ground of appeal, therefore, fails.

The second ground of appeal was that the penalty was manifestly excessive.  Here I think the appellant had a stronger argument.  The behaviour, although serious and not to be condoned, was at the lower end of the scale.  Whilst they were multiple offences they were not representative of a consistent course of conduct.  The more recent offences were widely separated in time from the earlier ones.

It is because of the importance of deterrence in the case, giving rise to the need for a custodial sentence, that the level of that sentence in particular needs to reflect the seriousness of the offence.

Whilst one can never be sure of the ultimate effect of such conduct on children of tender age, the appellant is fortunate that such harm as there has been has been minimised with the wise use of counselling and family support. That was assisted, in part, by the appellant’s frank confession and cooperation, but, as I said before, that could have been earlier, and might have, if it had occurred, avoided the later incidents.

The appellant’s antecedents also weigh in his favour, and whilst a custodial sentence is appropriate, it should not be such that those on whom he has relied, and will rely for support through his rehabilitation, do not desert him.

Bearing in mind that this is a first offence, and that given continued support and treatment the chances of reoffending may not be high, I think that compared with sentences often imposed for much more serious offences, this one may have been too high.  In that regard, I note particularly that the level of penalty imposed in O'Connor's case, to which the magistrate made reference, was not much more than the magistrate imposed here, and yet the offences there were representative offences, and included not only three counts of indecent assault, which were of a worse nature than these, but four counts of unlawful sexual intercourse involving fellatio.

So I think that in this case the sentence was excessive and such as to warrant interference by this court.  Views will differ, of course, as to the extent of any discounts for his plea and his cooperation.  He is to be commended for the fact that but for his confession the offences might never have been reported and that he confessed out of concern for his victims.

In all the circumstances I would fix a head sentence of 18 months.  I think that the appellant now realises the seriousness of his wrong doing and to a significant extent has learned his lesson.  I think his prospects of rehabilitation are good, and that should be reflected in the non-parole period.  I fix a non-parole period of nine months.

I note that at present the appellant is presently on bail and that condition eight of the bail agreement reads “The defendant is to appear before a magistrates court at Mount Gambier within 14 days of the date on which the Supreme Court of South Australia announces its decision on the appeal to abide the results of the decision unless sooner dealt with by the Supreme Court.”  It will be, of course, for the appellant, or his solicitor, to make appropriate arrangements pursuant to that condition with the Mount Gambier Magistrates Court to comply with that condition.

Mr McGee, I have noted that the 14 days referred to in that bail condition expires on Christmas day, and I also note that the bail agreement required that he present himself in this court on 12 January.  That may have been perhaps some of the source of confusion about sitting dates, I don't know.  I would entertain any application you might seek to make to vary that bail condition if you wish to have that time extended a little.

MR McGEE:              Perhaps if I just take instructions.  My client has asked me to ask your Honour to consider an extension of the surrender date till after the Christmas date. One of the potential difficulties may be - I haven't actually read the bail agreement that has been supplied to my by the solicitor - if it says “Surrender yourself to a magistrate” it might be when a magistrate would be next on circuit at Mount Gambier.

HIS HONOUR:  “To appear before a magistrates court.”

MR McGEE:  I suppose that has to be constituted by a magistrate.

HIS HONOUR:  I am told that the magistrates court is likely to be underway in the new year by about 5 January.  I would consider perhaps extending the time till 6 January.

MR McGEE:              If your Honour pleases.

HIS HONOUR:  Do you have anything to say, Mr White?

MR WHITE:  No opposition to that.

HIS HONOUR:  I indicate that in relation to condition No 8 of the bail agreement, subject, of course, to the appellant signing an appropriate variation to the bail agreement and his guarantors, who I think are both here, agreeing to that, I am prepared to extend the time by which he is to appear before a magistrates court at Mount Gambier until 6 January 1998.

In the actual form of variation, which I have just signed, condition eight of the bail agreement, is varied so that in lieu of 14 days of the appeal decision being made the appellant is to appear before the magistrates court at Mount Gambier on or before 6 January 1998.

BAIL VARIATION ACKNOWLEDGED

HIS HONOUR:  A copy of that will be made available.