Britten v The Queen
[2001] TASSC 28
•15 March 2001
[2001] TASSC 28
CITATION: Britten v R [2001] TASSC 28
PARTIES: BRITTEN, Ronald John
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: Appellate
FILE NO/S: CCA 57/2000
DELIVERED ON: 15 March 2001
DELIVERED AT: Hobart
HEARING DATES: 7 March 2001
JUDGMENT OF: Crawford, Slicer and Blow JJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Circumstances of offender - Health of offender - Medical condition - Reduced life expectancy.
R v Yeats [1985] VR 41; Crowley & Garner v R (1991) 55 A Crim R 201; Barling v R (1995) 79 A Crim R 131, referred to.
Aust Dig Criminal Law [831]
REPRESENTATION:
Counsel:
Appellant: J W Avery
Respondent: M A Stoddart
Solicitors:
Appellant: Avery Keal
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 28
Number of Paragraphs: 10
Serial No 28/2001
File No CCA 57/2000
RONALD JOHN BRITTEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
BLOW J
15 March 2001
Order of the Court
Appeal dismissed
Serial No 28/2001
File No CCA 57/2000
RONALD JOHN BRITTEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
BLOW J
15 March 2001
The appellant has appealed against a sentence of 18 months' imprisonment imposed after he had been found guilty of five counts of indecent assault, contrary to the Criminal Code, s127. All counts involved the same victim. The victim's mother is the appellant's cousin. The first count related to an indecent assault in 1975 when the appellant was 40 or 41 years old, and his victim was 9 years old. He fondled the boy and rubbed his testicles. The other counts all related to incidents in 1979 or 1980, when the appellant was around 45 years old and his victim about 13 or 14 years old. One of those counts related to the appellant fondling the boy's testicles and rubbing his penis. Two related to the appellant masturbating the boy's penis, with ejaculation occurring on the second of those occasions. The final count related to the appellant rubbing his penis between the boy's buttocks for the purpose of anal intercourse. On this occasion the complainant cried, and the appellant desisted. The complainant was still a schoolboy. All but the last of the sexual assaults were carried out in a gentle manner. All involved the appellant handling the genitals of the complainant, and not vice versa. The appellant's crimes involve a very serious breach of the trust placed in him by his cousin, the victim's mother.
The complainant was seriously affected by the sexual abuse perpetrated by the appellant. He doubted his sexuality, took to alcohol while still at school, and became totally drug dependent and prone to violence and self-abuse. He revealed what the appellant had done as the result of meeting him again at a family reunion. As the prosecution evolved, he stopped his alcohol and drug abuse.
A number of common mitigating factors were absent in this case. The appellant committed other similar assaults on the complainant, with which he has not been charged, and thus the appellant was not entitled to any sentencing discount on the basis of the crimes of which he was convicted being his only crimes of indecent assault on the complainant. He was convicted only after pleading not guilty and being tried before a jury. There was nothing to be taken into account in his favour in respect of remorse, confessions, co-operation with authorities, or the choice and timing of his pleas.
The appellant has no convictions for any prior or subsequent offences. This is not a case where there has been a lengthy process of rehabilitation prior to sentence (cf Bell v R [1982] Qd R 216; Duncan v R (1983) 47 ALR 746 at 749; R v F (1998) 8 Tas R 88 at 96). It seems the appellant's crimes went unreported as a result of him going to live in Queensland from 1980 until 1995, and remaining out of the complainant's life until the family reunion that triggered the reporting of his crimes. There is no suggestion of any significant delay on the part of the prosecution authorities.
When sentenced, the appellant was aged 65 years, 11 months, and had been suffering from very serious heart problems for some two years, as well as suffering from anxiety and depression. The learned sentencing judge was provided with a report by the appellant's general practitioner, the final paragraph of which read as follows:
"In regard to his cardiac failure, this man's prognosis is grim and his survival should be measured in months not years, as is evidenced by his systolic ejection fraction of 15%."
It was submitted on behalf of the appellant that his sentence of 18 months' imprisonment was manifestly excessive, and that the learned sentencing judge failed to give adequate weight to the appellant's state of health and the delay between his crimes and the imposition of his sentence. The learned sentencing judge mentioned, when passing sentence, that the offences occurred over 20 years ago, but said nothing as to what significance that fact had for him. His Honour referred specifically to the appellant's age, ill health, and short life expectancy in the following comments:
"You are nearing 66 years of age and have no prior convictions. You have been industrious throughout your working life. Your health has deteriorated markedly, and your prognosis in terms of life expectancy is very poor.
Giving due weight to the matters urged upon me by your counsel, and recognising the risk that you may die during the period of your incarceration, I consider that an appropriate penalty for your crimes is a sentence of 18 months' imprisonment."
The sentence of 18 months' imprisonment is well within the range of sentences that could appropriately be imposed upon an ordinary offender for crimes of this nature. The delay between the commission of the crimes and the imposition of the sentence is not a substantial mitigating factor, given that it was not accompanied by a process of reform or rehabilitation, and was not the result of delay on the part of the prosecuting authorities. The more difficult question is whether, by reason of the appellant's ill health and poor life expectancy, in combination with such other mitigating factors as were present, the sentence of 18 months' imprisonment was manifestly excessive.
It was not asserted in the medical report or in defence counsel's plea in mitigation that imprisonment was likely to shorten the appellant's life expectancy or exacerbate his heart condition. The comment that the appellant's life expectancy "should be measured in months not years" was somewhat vague. In making that comment, the doctor might well have meant, for example, that the appellant probably had less than two years to live. Whilst that comment was unchallenged and uncontradicted, it was no more than a prediction, and a somewhat vague one at that. There is no shortage of examples of accused persons living much longer than predicted by doctors, even eminent ones. If the appellant had been in good health, a substantially longer sentence would have been unexceptionable. The comments of the learned sentencing judge suggest that the appellant's ill health and poor life expectancy made a substantial difference to his sentence.
A sentencing judge should always be reluctant to impose a "crushing" sentence, ie, one involving the destruction of any reasonable expectation of useful life after release from prison: R v Yates [1985] VR 41. However it does not follow that every sentence which can justifiably be described as crushing must on that account alone be held to be manifestly excessive: Crowley & Garner v R (1991) 55 A Crim R 201 at 206. Whilst ill health is always a relevant mitigating factor, it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence: Barling v R (1995) 79 A Crim R 131 at 134 - 135. Having regard to the seriousness of the appellant's crimes, to the fact that the learned sentencing judge obviously gave significant weight to the appellant's ill health, and to the uncertainty as to the appellant's life expectancy, we are not persuaded that the sentence was manifestly excessive in all the circumstances, or that the learned sentencing judge erred in giving insufficient weight to the appellant's ill health.
For these reasons, the appeal is dismissed.
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