Bowden v The Queen
[2013] VSCA 382
•18 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0003 | |
| BRADLEY BOWDEN | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | REDLICH, COGHLAN JJA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 August 2013 |
| DATE OF JUDGMENT | 18 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 382 |
| JUDGMENT APPEALED FROM | DPP v Bowden (Unreported, County Court of Victoria, Judge Tinney, 29 November 2012) |
---
CRIMINAL LAW – Sentence – Indecent assault – Rape – Appellant committed offences whilst operating as a professional masseur – Reporting obligation under the Sex Offenders Registration Act 2004 s 11 – Appellant ordered to report for life – Meaning of ‘risk’ – Expert opinion not always essential to finding of risk – Risk must be found to exist at time of prisoner’s release – Section 11(3) confers a discretion as to whether to impose a registration order – Chan v The Queen [2006] VSCA 125 followed – Nature of risk and degree of likelihood of its eventuating to be balanced against onerous reporting obligations – Nigro v Secretary to the Department of Justice [2013] VSCA 213 considered – Expert opinion not always essential to finding of risk – Judge sentenced based on inference that appellant would continue to work as a masseur after release – Unsound basis – Appeal allowed – Life reporting obligation removed.
CRIMINAL LAW – Sentence – Manifest excess – Excessive sentence on indecent assault charge and high sentence on rape charge produced a total effective sentence which infringed the principle of totality – Appeal allowed – Appellant re-sentenced.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
COGHLAN JA
DIXON AJA:
The appellant appeals against the sentences set out in the table below.
Charge on Indictment C10260486.1 Offence Maximum Sentence Cumulation 1 Indecent Assault [s 39(1) Crimes Act 1958] 10 years 12 months 2 months 2 Rape [s 38(1) Crimes Act 1958] 25 years 66 months Base Charge on Indictment C10260486.3 1 Indecent Assault [s 39(1) Crimes Act 1958] 10 years 2 years 12 months Total Effective Sentence: 6 years 8 months Non-parole Period: 5 years 6AAA Statement But for the plea of guilty to Indictment C10260486.3, a sentence of 3 years’ imprisonment would have been imposed. Other relevant orders Appellant sentenced as a serious sexual offender in respect of Indictment C10260486.3 pursuant to s 6F of the Sentencing Act 1991 along with a life reporting obligation under the Sex Offenders Registration Act 2004.
After a successful application for severance, the appellant stood his trial in respect of the charges on the first indictment relating to the victim DW. After being found guilty by a jury of those two charges on 16 October 2012, the appellant offered to plead to the remaining offending and did so to one charge of indecent assault on the second indictment on 17 October 2012. That latter offending related to the victim JM.
The appellant operated a mobile masseur business. On 18 January 2012, the appellant was massaging one of DW’s neighbours at the neighbour’s apartment. DW arranged for the appellant to give her a massage once he had finished with the neighbour as she was suffering from back pain. The massage commenced and at some point the appellant asked DW to turn onto her back so that he could massage her front. At this stage, DW was only wearing her underwear. The appellant massaged DW’s neck, stomach and breasts which included her nipples (charge 1 — indecent assault).
As the appellant began to massage DW’s groin he commented that she had knots there. He asked DW to stand up, and then commenced to massage her inner groin and thigh region and probed his fingers into DW’s underwear and vagina, commenting that she was wet. The massage of DW’s inner groin area lasted for approximately one minute before the appellant asked DW if she wanted to stop (charge 2 — rape). The massage concluded.
In relation to JM, the offending took place at her home on 4 March 2011 following both JM and the appellant having volunteered at the Salvation Army food van at Werribee Railway Station. On that night, the appellant offered JM a lift home. After having invited himself inside for a coffee the appellant told JM that her spine was crooked. The appellant said that he could fix her spine and proceeded to do so. He then said that her shoulders were out of alignment and asked if she would like him to fix them as well. JM agreed and took her jumper off after having been asked to do so. The appellant sat in front of JM, put his hands up her skivvy and fondled JM’s breasts, then put his hands under her bra commenting that she had nice breasts and lovely nipples (charge 1 — indecent assault). JM pushed him in the face and told him to leave.
Leave was granted by Coghlan JA on 23 May 2013 for the appellant to appeal against his sentence on the following grounds:
1.The head sentence and the non-parole period are manifestly excessive.
2. The sentencing judge placed inordinate weight on protection of the community as reflected in the ratio between the head sentence and non-parole period.
3. The sentencing judge erred in finding that the appellant should be registered under s 11 of the Sex Offender Registration Act 2004.
Ground 1 — Manifest excess
There were four matters emphasised in the sentencing remarks. They were the seriousness of the offending, including the effect of the offending on the victims; the appellant’s lack of remorse; the appellant’s prospects of rehabilitation; and the appellant’s danger to the community.
One matter which is clear in this case is that the sentence imposed was significantly higher than suggested by the prosecutor on the hearing of the plea. The prosecutor had put forward a range of three and a half years to four and a half years, with a non-parole period of two to three years. When counsel was called upon to justify the range she attempted to do so by reference to a number of decided cases. It can be seen that the learned sentencing judge rejected that range, as he was entitled to do. He did, however, impose a head sentence which was almost 50 per cent higher than the top of the range put forward by the prosecutor and a non-parole period which was more than 60 per cent higher than the top of the range submitted.
On the hearing of the appeal the Court took up with counsel for the respondent the question of the appropriateness of the range put below. Counsel submitted that the appropriate range had been advanced below, but she foreshadowed a submission that despite the large disparity between the sentence imposed and the range advanced by the Crown on the plea, the sentence imposed by the learned sentencing judge was within the range.
It appeared to the Court that the position adopted by the Crown on appeal was irreconcilable with the Crown’s submission as to the appropriate range on the plea. Logic dictates that they could not both be maintained. Yet it seemed that counsel could not, without specific instructions, either concede that the range advanced below was wrong or that the sentence imposed was outside the range. Ordinarily, one would expect that counsel who is briefed to appear for the Crown, whether a permanent prosecutor or other counsel, would have authority to make such concessions as he or she consider proper during the course of the hearing of the appeal. We accept that there may be circumstances where counsel may need to obtain further instructions on an issue but, unless prohibited from doing so by an explicit instruction, counsel for the Crown should be in a position to make such concessions as counsel regards as appropriate. If counsel does think that there is a matter which requires specific instructions then counsel should ensure that those instructions having been obtained before coming to court.
Turning to the appellant’s offending conduct, there is no doubt that it was of a serious order. It involved a breach of trust. The complainants were both vulnerable and were seriously affected by the offending.
Although the offending was serious it was not prolonged and, in each case when the appellant was asked to desist, he did so. The appellant submitted that the learned sentencing judge gave insufficient weight to the following features:
(a)Lack of prior convictions.
(b)The appellant’s previous good character.
(c)The appellant’s plea of guilty to the second indictment.
(d)The appellant’s borderline intellectual functioning.
(e)The appellant’s good prospects for rehabilitation.
As to charge 1 on the second indictment, the learned sentencing judge stated that he gave the appellant a reduction in that sentence because of his plea of guilty. Making proper allowance for the effect upon the victim who had an intellectual disability, we regard the sentence of charge 1 on the second indictment of two years for the indecent assault as being outside the range of sentences available, having regard to the objective seriousness of the offending.
As to the charges on the first indictment, the appellant was working as a professional masseur in relation to the offending. He used his training to inveigle himself into the victim’s house.
His Honour placed significant weight upon the fact that the appellant had been interviewed about the indecent assault the subject of the second indictment before he committed the offences the subject of the first indictment. Those combined facts led the judge to conclude that the appellant’s prospects of rehabilitation were average and that he would continue to be a danger to the community. As will be discussed further in relation to ground 3, we believe that the appellant’s prospects of rehabilitation are better than average.
The base sentence of five years and six months for a rape of this kind, in the circumstances, may be viewed as towards the top of the range.[1] The sentence on the first charge for the indecent assault is also quite high given the nature of the offending.
[1]See Brennan v The Queen [2012] VSCA 151 and Wilson v The Queen (2011) 33 VR 340.
In the final analysis we are satisfied that the combination of the excessive sentence on the second indictment together with the high sentences on the first indictment has produced a total effective sentence which infringes the principle of totality and is thus manifestly excessive. Whether that is a result of undue emphasis on the matters of aggravation or too little emphasis on the matters in mitigation we do not stay to consider.
Since we would allow the appeal on this ground, it is not necessary to deal with ground 2.
Ground 3 — The requirements of s 11 of the Sex Offenders Registration Act 2004
The third ground of appeal is that the sentencing judge erred in ordering life reporting obligations for the appellant under s 11 of the Sex Offenders Registration Act2004 (‘the Act’).
The statutory regime
The Act provides for the establishment of a Register of Sex Offenders.[2] Relevantly, it requires certain offenders who are sentenced for registrable offences:
(a)to report specified personal details for inclusion in the Register,[3] and
(b)to keep those details up to date, to report those details annually and to also report certain of their travel plans;[4]
and it imposes those reporting obligations for a period of between four years and life,[5] depending on the number, severity and timing of the offences committed, and the age of the offender at the time the offences were committed.
[2]Sex Offenders Registration Act 2004, Part 4, ss 62– 66D.
[3]Section 14.
[4]Part 3 Division 2 ss 16–21.
[5]Part 3 Division 5 ss 33–38.
The purpose of the Act[6] is to require certain offenders (registrable offenders) who commit sexual offences to keep police informed for a specified period of time as to their whereabouts and to provide other personal details principally to further three objectives:
(a)to reduce the likelihood of the person re-offending;
(b)to facilitate the investigation and prosecution of any future offences that the person may commit; and
(c)to prevent registered sex offenders from working in child-related employment.
[6]Section 1(1).
There is an emphasis in the Act on the protection of children from such offenders.
A registrable offender is a person who has been sentenced for a registrable offence.[7] There are two categories of registrable offence:
1.A Class 1 or Class 2 offence for which a court has sentenced a person at any time (whether before, on or after 1 October 2004); or
2. One that results in the making of a sex offender registration order.[8]
[7]Section 6.
[8]Section 7(1).
Schedules 1 and 2 respectively list the offences under the first category that are Class 1 and Class 2 offences for the purposes of this Act. The common feature of both classes of offence is that the victim is a child or the offence is designed to protect children.
The second category of registrable offence is one where a court finds a person guilty of an offence that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence).[9] Offences committed against a person other than a child may be Class 3 or Class 4 offences. The relevant offences are listed in schedules 3 and 4 to the Act and are Class 3 or Class 4 offences if committed by a person who is (whether because of, or apart from, that offence) a serious sexual offender for the purposes of section 8. This section defines a ‘serious sexual offender’ as a person who has committed two or more offences listed in a schedule to the Act. The person will become a serious sexual offender if at any time they have been sentenced by a court for two or more offences listed in a schedule to the Act in the one trial or hearing; in different trials or hearings held at different times; or in separate trials of different charges in the one indictment.
For second category of registrable offence making of order is discretionary
[9]Section 11.
Where a person falls within the second category of registrable offence the court may order juvenile offenders and offenders who commit certain sexual offences against adult victims to comply with the reporting obligations of the Act.[10] Under this second category of registrable offence, the making of a registration order is discretionary.[11] Section 11(3) provides the gateway to the making of such an order:
The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
[10]Part 3, ss 12–61.
[11]Section 11(1).
In Chan v The Queen,[12] Nettle JA and Buchanan JA were inclined to the view that s 11(1) confers a discretion on the court.[13] We agree. By the use of the word ‘may’ the legislature gives a strong indication that the court should exercise a judicial discretion in making a registration order. The court must consider whether the person poses a risk to the sexual safety of ‘one or more persons or of the community’ and it may take into account any matter that it considers appropriate but must be satisfied beyond reasonable doubt that the person poses the relevant risk.
[12][2006] VSCA 125 (‘Chan’).
[13]Ibid [15] (Nettle JA), [23] (Buchanan JA).
A person who is a ‘registrable offender’ must comply with the various reporting obligations specified in the Act. The conditions are onerous.[14] There are powers in this court to exempt certain registrable offenders.[15] Failing to comply with reporting obligations without a reasonable excuse is an offence carrying a penalty of level 6 imprisonment (five years maximum).[16] Knowingly furnishing false or misleading information is an offence carrying a penalty of 240 penalty units or imprisonment for two years.[17]
[14]Sex Offenders Registration Act, Part 3 Division 3, ss 22–31.
[15]Section 39.
[16]Section 46.
[17]Section 47.
The appellant fell within the second category of registrable offence as he was sentenced as a serious sexual offender under the Act,[18] having committed both Class 3 and Class 4 offences. The appellant became a registrable offender when the court, having found the appellant guilty of offences that fell within the schedules to the Act, ordered that the appellant comply with the Act’s reporting obligations. He contends that the sentencing judge fell into error in making such an order.
Pre-conditions to making order
[18]This is not to be confused with the fact that the appellant was sentenced as a serious sexual offender on the count of indecent assault of the victim JM pursuant to s 6F of the Sentencing Act 1991.
The inquiry into whether to make a registration order is a two-stage process. Because s 11(3) operates to confine the circumstances in which the power to make a registration order may be made, its requirements must first be satisfied. The sentencing court must be satisfied that the conditions for making such an order are present — namely that the person has pleaded guilty to qualifying offences and that the judge is satisfied to the criminal standard that they pose the relevant risk. Second, exercising judicially the discretion reposed in it by s 11(1), the court must determine whether, in all of the relevant circumstances, to make a registration order.
The court must be satisfied that the person poses the requisite risk. Risk refers to the exposure to a chance of the harm in question occurring. The type of risk is described as a risk to the sexual safety of one or more persons or of the community. It is not necessary that the court is able to identify a risk to particular people, or a particular class of people. No issue is raised on this appeal that requires consideration of the term ‘sexual safety.’ For present purposes it suffices to say that a risk that a person may reoffend by committing an offence of a type described in a schedule to the Act would be a risk to the sexual safety of one or more persons or of the community.
Proof of risk beyond reasonable doubt
The test in s 11(3) involves the distinct elements of the standard of proof and the matter which must be established. The factum probandum is that the person poses a risk to the sexual safety of one or more persons or of the community. The standard of proof — beyond reasonable doubt — governs the factum probandum. The court must be satisfied beyond reasonable doubt as to the existence of a risk .
A real risk
The degree of likelihood of the risk posed is unspecified. What is the magnitude of the risk that is contemplated by sub-s (3)? It was not suggested on appeal that any qualification of the risk could be read into the sub-section. The legislature has said nothing as to the quality or degree of likelihood of the risk. In other statutory settings the risk is sometimes described as ‘probable’, ‘unacceptable’ or ‘substantial.’ Although no characteristic has been added to the risk, a fanciful risk would fall outside its compass. That must be so because ipso facto, a fanciful or imagined risk would not be sufficient to satisfy the criminal standard. To enliven the discretion to make a registration order under s 11(1), the risk must be assessed to be real. The court must be satisfied beyond reasonable doubt that the risk that the offender poses is a real risk. If the risk posed by the offender is unreal, or fanciful, the court must not make a registration order.
Present assessment as to future risk upon release into community
Section 11(3), read literally, requires that the court be satisfied that at the time the order is applied for, the person poses such a risk. We do not think that it was intended that the relevant inquiry be whether the person during his incarceration poses a risk to the sexual safety of one or more persons incarcerated in Victorian prisons, or to persons in the community. The inquiry is not directed to the present risk of harm to the sexual safety of persons because the offender in most cases is about to be deprived of his liberty and will presently pose no risk. If that were the intent of the provision, satisfaction to the criminal standard would not be possible.
The sentencing judge read the phrase ‘person poses a risk’ as being used in the sense ‘person will pose a risk’, for he said to the appellant:
Ultimately, I am satisfied beyond reasonable doubt that you do pose a risk, or will upon your ultimate release, such as to warrant the making of such an order.
I am satisfied of the matters contained in s 11 beyond reasonable doubt.[19]
[19] DPP v Bowden (Unreported, County Court of Victoria, Judge Tinney, 29 November 2012) (‘Reasons for Sentence’), [77]–[78].
The sentencing judge was correct to approach the question of risk in that way. The mischief at which the Act is aimed is evident from its purposes, stated above. The primary purpose of the Act is to enhance community protection by reducing the likelihood of the person re-offending, to facilitate the investigation and prosecution of any future offences that the person may commit, and protecting potential victims, particularly children. This purpose is achieved through registration and reporting obligations, and ancillary matters, that are imposed on persons who are ‘registrable offenders’. These being the primary purposes of the Act the evaluation of risk is plainly directed to the risk upon the offender’s release into the community. As this court recently observed in DPP v Leys & Leys:
The common law has long sought to avoid interpreting legislation in a manner that leads to a result that is manifestly absurd, unreasonable, creates an anomaly or otherwise produces an irrational or illogical result. In certain circumstances, departure from the literal meaning is justified and ‘the court is entitled to attribute to the provision the meaning which it was obviously intended to have’… That a court may sometimes be justified in abandoning the literal meaning and adding or implying words to avoid an unintended result can no longer be doubted.[20] [Citations omitted]
[20](2012) 296 ALR 96, 109–10 [48]–[49].
The inquiry under s 11(3) is directed to the future risk on release assessed by reference to what is presently known. Although the draftsperson employed the present tense — ‘poses‘— so requiring a present day evaluation of the existence of the risk based upon known facts and circumstances, the judge must ultimately be satisfied that such risk as is found to exist or some lesser but sufficient risk will remain at the time of the prisoner’s release.
We consider that to be the clear legislative intent. The court should not make a registration order in respect of an offender who has committed a Class 3 or Class 4 offence unless there is no reasonable doubt that the offender poses (where the disposition is non-custodial) or will pose on release (where the offender is sentenced to imprisonment) a real risk to the sexual safety of one or more persons or of the community. Reading the subsection in this way does not give it an unnatural, incongruous, or unreasonable construction and produces a construction that is in conformity with the statutory scheme.
That the section should be so interpreted is implicit in the decision of Chan.[21] There the appellant was sentenced to a total effective sentence of two years and nine months with a non-parole period of 12 months on one count of rape and one count of indecent assault. A registration order was made pursuant to s 11 of the Act. The registration order was resisted, based on evidence from a psychiatrist that the chances of the appellant re-offending were negligible. Error was found in that the sentencing judge was not alerted to the amendment of s 11(3) that introduced a standard of proof. The court was not satisfied beyond reasonable doubt that the appellant was such a risk as to warrant the making of a registration order referring, in particular, to the psychiatrist’s evidence. The risk that was being assessed was the risk of re-offending after release. It was unnecessary for the court in Chan to rule on the prosecution submission that once satisfied beyond reasonable doubt in terms of sub-s (3), the court was bound to make a registration order. The court was not satisfied beyond reasonable doubt that the appellant posed the relevant risk.
Balancing the nature of risk and the degree of likelihood of it eventuating against onerous reporting obligations
[21][2006] VSCA 125.
At the second stage of the process, the sentencing judge’s task is to balance the risk posed by the offender which enlivened the discretion, having regard to the purpose of the statutory scheme with the obligations imposed on registrable offenders which place restrictions on the offender’s right to enjoy freedom and autonomy of actions. It will not always be the case that the relevant risk, though sufficient to pass the threshold of s 11(3), will warrant such restrictions by a registration order.
When determining whether to make a registration order, it is proper to give consideration to the magnitude and the nature of the risk (reoffending by commission of sexual offences with serious consequences for the victim). Both the gravity of the harm and the degree of likelihood of the risk eventuating will be components of the assessment, although the primary question will be the degree to which the risk may materialise.
These considerations are to be balanced against the serious consequences for the offender of being required to submit to an onerous registration and reporting regime. The obligation on the sentencing judge, when exercising this discretion, is to impose the registration obligations under the Act when and to the extent that is reasonably necessary to give effect to the statutory purpose.
In Nigro v Secretary to the Department of Justice,[22] this court considered the provisions of s 9 of the Serious Sex Offenders (Detention and Supervision) Act2009, which permit supervision orders requiring eligible offenders who present an unacceptable risk of harm to the community to be subject to ongoing supervision. The court explained that:
The right to liberty and autonomy explains why the concept of ‘unacceptable risk’ should be interpreted so as to limit the enjoyment of that right only to the extent that is reasonably necessary to give effect to its legislative purpose. Such an approach accords with the canon of construction that a statute which purports to impair a right to personal liberty is to be interpreted, if possible, so as to respect that right.[23]
[22][2013] VSCA 213 (‘Nigro’).
[23]Ibid [68].
There are significant differences between supervision orders and registration orders that must be borne in mind. One matter is that s 9 requires that the court be satisfied that the offender poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community. Discussing the degree of likelihood of risk, the court in Nigro said:
To prescribe what degrees of risk may or may not be unacceptable would remove the test of its necessary flexibility. The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable.[24]
[24]Ibid [117].
Although the principle of legality, and its particularly strong application in the context of a subject’s liberty has been displaced to the extent that such an order is necessary for the safety of the community or a person within it, the logical structure of the principle of parsimony has some resonance in this setting. The discretion, though unfettered, must be exercised judicially. Such an order requires a weighing up of the extent to which the safety of the community or a person may be in jeopardy against the offender’s freedom and autonomy. Thus, the judge should consider whether there is a sufficient likelihood, though not necessarily whether it is more likely than not, that the offender may reoffend by committing any of the offences listed in the schedules to the Act. The sentencing judge should consider whether the circumstances of the identified risk justify imposing on the offender the consequences of a registration order to achieve the purposes of the Act.
That assessment depends upon the evidentiary material before the sentencing court, matters about which the court would need to be satisfied by the party bearing the onus of proof. The onus of proof rests on the prosecution throughout. The Act is silent as to the nature of the proceedings[25] and the question of the standard of proof of the matters that influence the court’s discretion was not debated before us. As the criminal standard applies to the finding of the existence of the risk,[26] such facts as may be indispensable to that state of satisfaction would also need to be proved to the criminal standard.
[25]Cf s 79 of the Serious Sex Offenders (Detention and Supervision) Act2009.
[26]The discussion in Nigro of proof ‘to a high degree of probability’ at [2013] VSCA 213, [132]–[163] may be noted.
In this case, there was no professional report expressing an opinion about the likelihood that the appellant would reoffend. The appellant submitted, both on the plea and on the appeal, that the absence of such expert opinion was fatal to the application. We disagree. There will be cases in which expert opinion will be essential to a finding of risk. In many cases, like the present, while an opinion will greatly assist a sentencing court, the circumstances of the offences, the offender’s prior history, the offender’s conduct since offending, and the offender’s prospects of rehabilitation will be sufficient without such an opinion to allow a conclusion to the requisite standard as to the existence of risk.
Counsel had submitted on the plea that without evidence that the factors that led to the offending remained operative and that the appellant would not submit to treatment or other measures to reduce the risks from such factors, an inference of significant risk should not be drawn. His Honour did not accept this submission. The sentencing judge said:
This application is brought by the prosecution and opposed by your counsel, who argued that there really is no basis on the materials to make that finding as to your level of risk and that the order ought not be made. I have reviewed authorities in this area, including the case of R v Chan. I have considered the extent of any risk posed by you. To make such an order, the risk must surely be greater than some theoretical or remote risk. Here, though not necessary to so find, I have no doubt at all that you pose a very significant risk to a given class, namely, females whom you may come into contact with as a masseur.[27]
[27]Reasons for Sentence, [76]–[77].
He identified the following matters as bearing upon the existence of risk.
(a)The chronology of offending with the commission of the rape following being investigated as to the earlier event (the indecent assault on JM) and being told that he may receive a summons for that crime.
(b)The appellant’s preparedness to commit the rape despite the presence in an adjacent room of the friend of the victim.
(c)It was clear from the record of interview that the appellant understood the proper limits of intimate contact in massage.
(d)The appellant’s engagement over the preceding 28 years as a masseur, with no suggestion of any alteration to that status, was likely to place women in the appellant’s care in the years to come. Massage was the setting for the DW offences and claimed expertise as a masseur led to the offending against JM.
The sentencing judge had earlier in his sentencing remarks identified the appellant’s lack of remorse and the exploitation of his position of trust,[28] and was unimpressed with the appellant’s prospects for rehabilitation,[29] rating them as average, at best.
[28]Ibid [28], [43].
[29]Ibid [44].
The sentencing judge was alive to the two-stage inquiry dictated by the section. His Honour stated that he was ‘satisfied of the matters contained in s 11 beyond reasonable doubt’,[30] although it is unclear precisely what matters his Honour had in mind. We respectfully consider that he fell into error when determining the facts that bore upon the exercise of the discretion by drawing an inference that was not reasonably open to him. A critical step in his reasoning was the fact which he inferred that the appellant would continue to work as a masseur on his release from jail. He found that the risk posed by the appellant, who had no prior convictions, arose from his future contact with females in the context of his work or status as a masseur. It had not been suggested on the plea that the appellant would continue to work as a masseur upon his release from jail. The course of the exchange between counsel and judge on the plea makes clear that this step in his reasoning was based on the judge’s assumption or expectation. Absent some indication by the appellant that he intended to resume such work, it was a matter for the prosecution to establish by evidence. In our view, it was not reasonably open to the sentencing judge to infer that the appellant would return to working as a masseur, following his release from custody, with the same attitude to engaging in offending conduct that he had previously demonstrated.
[30]Ibid [78].
It follows that the finding of risk posed by the appellant rested upon an unsound basis. In this respect, the sentencing judge fell into error and we would allow ground 3. We must therefore consider whether, on the facts which were established, a registration order should be made. It is unnecessary to rehearse all of the submissions advanced on the plea in mitigation but the following matters are of particular significance:
(a)The circumstances of the appellant’s offending, as discussed above, and in particular the fact that the DW charges were committed in the context of a professional massage.
(b)The appellant contested the DW charges and on his conviction by the jury, the JM charge resolved to a plea of guilty.
(c)The appellant’s record of interview revealed that he understood the proper boundaries of intimate contact in massage.
(d)The appellant had worked as a masseur for 28 years, although there was no detail of the precise nature of how the appellant gained and carried out that work.
(e)The appellant had no prior convictions.
(f)Neuropsychologist Jane Lofthouse reported that the appellant functions in a low to average range of intellectual capacity, due to a combination of psychiatric issues and impairment from a childhood mild brain injury.
(g)Neuropsychologist Chris O’Halloran diagnosed the appellant as suffering from representative psychiatric factors, including attention deficit disorder, rather than the effect of an acquired brain injury.
(h)The appellant’s capacity for reasoned and informed decisions was restricted. He suffers a mild to moderate level of executive dysfunction and his problem solving relied on rigid and concrete thinking. His learning will be slow with attention deficits but he showed some capacity to learn.
(i)The appellant’s intellectual deficits impinge on his understanding of the more complex aspects of life such as conversations, interpreting nonverbal cues and understanding social interactions.
(j)The appellant is to now serve a total effective sentence of five years and one month with a non-parole period of three years and six months.
(k)The appellant will benefit from comprehensive psychiatric assessment in jail and will likely respond to cognitive and behavioural interventions.
(l)The specific deterrent effect of the sentence imposed on the appellant will likely be of some influence on the appellant’s future behaviour. There was no evidence that the appellant would pose a risk to the sexual safety of persons or of the community on release from jail other than if he recommenced to work as a masseur.
In the absence of evidence that the appellant will return to work as a masseur we do not consider the likelihood of his reoffending to be sufficient to warrant imposing on him for life the obligations of a registrable offender as detailed in the Act.
On ground 3, we would allow the appeal and set aside the registration order imposed under s 11 of the Act.
Conclusion
The range put by the prosecutor below was relatively low and we would re-sentence the appellant as follows:
Charge on Indictment C10260486.1 Offence Maximum Sentence Cumulation 1 Indecent Assault [s 39(1) Crimes Act 1958] 10 years 6 months 1 month 2 Rape [s 38(1) Crimes Act 1958] 25 years 4 years 6 months Base Charge on Indictment C10260486.3 1 Indecent Assault [s 39(1) Crimes Act 1958] 10 years 1 year 6 months Total Effective Sentence: 5 years 1 month Non-Parole Period: 3 years 6 months 6AAA Statement But for the plea of guilty to Indictment C10260486.3, a sentencing of 2 years imprisonment would have been imposed. Other relevant orders Appellant sentenced as a serious sexual offender in respect of Indictment C10260486.3 pursuant to s 6F of the Sentencing Act 1991.
- - -
37
5
0