Bosanquet v The Queen
[2012] VSCA 1
•16 January 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0228 | |
| DAVID BOSANQUET | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN JA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 16 January 2012 | |
DATE OF JUDGMENT: | 16 January 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 1 | |
JUDGMENT APPEALED FROM: | R v Bosanquet (Unreported, County Court of Victoria, Judge Hogan, 16 September 2009) | |
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CRIMINAL LAW – Sentence – Committing an indecent act with a child under the age of 16 – Sentencing judge did not rely upon circumstances of aggravation that were not established by the plea and did not take into account the commission of uncharged offences as constituting circumstances of aggravation – Non-parole period 75% of the head sentence not manifestly excessive – Sentencing judge did not err in stating that the offending occurred over a period of 2 years – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms Mia Stylianou | Doogue & O’Brien |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing five counts of committing an indecent act with a child under the age of 16.
After a plea, the appellant was sentenced to be imprisoned for a term of 2 years on count 1, for a term of 6 months on each of counts 2, 3 and 5 and for a term of 16 months on count 4. With a measure of cumulation, a total effective sentence of 4 years’ imprisonment was produced. A minimum term of 3 years’ imprisonment was fixed.
The appellant was sentenced as a serious sexual offender in respect of three counts.
The offending was alleged to have taken place between April 2004 and December 2006 when the appellant was aged between 53 and 56 years. The three victims of the offences were children of persons who were friends of the appellant.
Count 1, a rolled up count, concerned a 15‑year‑old girl who was the daughter of a friend of the appellant. The appellant boarded with the family for some months. When the appellant and the complainant were together in the dining room, the appellant placed his hand on the inside of the complainant’s thigh and rubbed it upwards towards the outside of the complainant’s vaginal area over the top of her clothing. A short time later, on the same day, the appellant placed his hand inside the complainant’s bra and squeezed her left breast. The complainant pushed his hand away and ran off.
The complainant the subject matter of counts 2‑4 was aged between six and nine years when the offences were committed. The appellant was a friend of the complainant’s mother and visited the family regularly, bringing books for the complainant from time to time.
The offences occurred during Christmas and Easter visits by the appellant between April 2004 and December 2006.
The appellant touched the complainant’s vaginal area over the top of her clothing (count 2), touched her breasts over the top of her clothing (count 3), and touched her around the anus under her clothing (count 4).
On 3 December 2006, the appellant went to the assistance of a family whose car had broken down at the service station. The complaint, a girl aged five years, was a member of the family. The appellant touched the complainant on the outside of her vagina over the top of her clothing (count 5).
The first ground of appeal is that the sentencing judge erred in sentencing on counts 2, 3 and 4 as if they were representative counts.
In the course of her sentencing remarks, the sentencing judge said of counts 2, 3 and 4:
Although none of these counts are representative counts, your victim says that inappropriate touching by you, which made her feel uncomfortable, occurred between ten and 20 times. Obviously you are not to be sentenced for conduct other than that to which you have pleaded guilty. However, it cannot be said on your behalf that each of these three counts were one‑off occasions of offending.
Counsel for the appellant submitted that her Honour erred in sentencing the appellant on the basis that the charged conduct occurred in the context of other uncharged offending. She contended that as counts 2‑4 were not representative counts, the sentencing judge was not entitled to take into account matters of which the appellant had not been found guilty and which were not admitted. Counsel for the appellant relied upon the decisions in R v De Simone[1] and R v SBL.[2]
[1](1981) 147 CLR 383.
[2][1999] 1 VR 706.
In my opinion, the sentencing judge is to be taken to have meant what she said: that counts 2‑4 were not representative counts and that the appellant was not to be sentenced for conduct other than that to which he had pleaded guilty. The reference to the fact that the offences were not one‑off occasions of offending was accurate in that the appellant had offended on three occasions against the same complainant and had offended in a similar fashion against two other complainants.
In my view, the reference to inappropriate touching, which made the complainant uncomfortable on ten to 20 occasions, was no more than a reference to the context in which the offending occurred. Her Honour does not appear to have relied upon circumstances of aggravation that were not established by the plea or to have taken into account the commission of uncharged offences as constituting circumstances of aggravation.
It is, I think, significant that her Honour imposed the same sentence of six months’ imprisonment on counts 2 and 3 as she imposed on count 5 and directed the same amount of cumulation in respect of those counts. Count 5 involved one discrete act similar in nature to the offending that formed the basis of count 2.
It was also submitted that the sentencing judge erred in taking into account that the appellant had inappropriately touched the complainant. A statement that inappropriate touching that made the complainant uncomfortable occurred between ten and 20 times appeared in a typed prosecution plea summary but was not mentioned by the prosecutor when he addressed the judge. The summary was handed to his Honour by the prosecutor without demur from counsel for the appellant. In answer to a question from the judge, counsel for the appellant said that he had seen the summary.
In my opinion the sentencing judge did not err in reciting a statement contained in the summary. It was, to the knowledge of counsel, part of the material before the Court.
The second ground of appeal is that the non‑parole period is manifestly excessive. The non‑parole period is 75 per cent of the head sentence. A head term of four years’ imprisonment with a minimum term of three years’ imprisonment is a conventional sentence.
At the plea, counsel for the appellant sought a ‘longer than usual’ parole period. Although the sentencing judge did not say that she rejected the submission, it may well be that she fixed the parole period as a consequence of forming the view that the appellant had limited prospects of rehabilitation in the light of his continued denial that he had offended.
Counsel for the appellant submitted that the appellant’s denial of offending was an insufficient basis for concluding that he had limited prospects of rehabilitation in the light of the fact that there was psychological evidence, which was apparently accepted by the sentencing judge, that there was a low risk of the appellant re‑offending despite his ongoing denials, that the appellant was aged 59 years when he was sentenced and had no prior convictions.
In my opinion the sentencing judge was entitled to find that the appellant’s prospects of rehabilitation were affected by his continued denial of any offending and by his ‘lonely lifestyle and lack of social supports’.
Although I may not have imposed the same non‑parole period, I do not consider that the period fixed by the sentencing judge was outside the range available to a reasonable sentencing judge.
The third ground of appeal is that her Honour erred in sentencing on the basis that the offending occurred over a two‑year period. The sentencing judge said:
Your offending is of a serious nature because it has occurred on a number of occasions with three different victims and occurred over a two‑year period.
In the presentment it was alleged that count 5 occurred on or about 3 December 2006. The remaining counts were between dates counts. Count 1 was alleged to span a period of 12 months from 20 October 2004 to 20 October 2005. The dates in respect of counts 2‑4, for each count, spanned a 20‑month period from 15 April 2004 to 28 December 2006. Counsel for the appellant submitted that as offending over a longer period of time is to be regarded as an aggravating circumstance of offending, it is to be proved beyond reasonable doubt. Accordingly, so it was said, the span of dates must be taken as the shortest possible according to the allegations in the presentment, that is from 20 October 2005, the last possible date of count 1, to 3 December 2006, the date of count 5. The period is 14 months rather than two years.
It would appear that her Honour took the period of offending from the prosecutor’s statement that:
This offending took place between, if we look at the presentment, April 2004 to the last date, which is 2006. The period covered by the presentment was in fact 32 months and 14 days. Counsel for the appellant at the plea did not take exception to the prosecutor’s statement.
I do not agree with the assumption, which appears to underlie the submission of counsel for the appellant, namely, that the sentencing judge was referring to a period of offending that could be strictly proved. Rather, I think that her Honour was referring to a period covered by the presentment, that is the period elapsing between the first and last dates of the presentment. In doing so, her Honour made a mistake which favoured the appellant.
In any event, I do not regard the difference between 14 months and two years as significant in the context of a number of discrete offences.
Counsel for the appellant also relied upon the fact that the sentencing judge said that she troubled by a psychological report which stated the period of offending was one of three years. It is apparent from her Honour’s sentencing remarks that she was troubled not by the period of three years referred to in the psychologist’s report, but by the fact that the appellant continued to deny that he had committed any offences, saying that anything that might have occurred was accidental or misconstrued.
She also appears to have been concerned that the appellant told the psychologist that he pleaded guilty because he had, in effect, given up when things got too hard.
The last ground of appeal is that the sentence was manifestly excessive.
Counsel for the appellant relied upon earlier grounds of appeal in order to establish this ground. For the reasons which I have set out, I am of the opinion that it has not been demonstrated that the sentencing judge erred.
In general terms I consider that the sentence was not manifestly excessive. The victims were young, vulnerable children. The effect of the sentence upon them was significant. The appellant made no admissions to the police and did not demonstrate any significant remorse.
The appellant’s case was advanced skilfully and attractively. Nevertheless, at the end of the day, I do not think that the sentencing judge erred.
Accordingly, I would dismiss the appeal.
WILLIAMS AJA:
I agree that the appeal should be dismissed for the reasons given.
BUCHANAN JA:
The order of the Court is that the appeal is dismissed.
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