Di Monda v Howlett
[1990] TASSC 54
•2 October 1990
Serial No 52/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Di Monda v Howlett [1990] TASSC 54; A52/1990
PARTIES: DI MONDA
v
HOWLETT
FILE NO/S: LCA 66/1990
DELIVERED ON: 2 October 1990
JUDGMENT OF: Cox J
Judgment Number: A52/1990
Number of paragraphs: 10
Serial No 52/1990
List "A"
File No LCA 66/1990
DI MONDA v HOWLETT
REASONS FOR JUDGMENT COX J
2 October 1990
This is an appeal by the prosecutor against the alleged manifest inadequacy of sentences imposed by the learned magistrate on the respondent in respect of two charges of wilful and obscene exposure contrary to s8(1A)(a) of the Police Offences Act 1935. In respect of each charge, to which the respondent pleaded guilty, the learned magistrate imposed a probation order for two years, a condition of which was that the respondent "accept treatment as Dr McCafferty recommends" to him.
The first offence occurred at the sand dunes behind Seven Mile Beach on 1 January 1990 at about 5.30pm. The complainant was sun baking in the secluded area of the sand dunes with a male friend. She was clad only in the lower half of her bikini swim suit and this was pulled down far enough to expose some pubic hair. She observed the respondent about 15 feet away "through the trees". He was naked and was touching his erect penis. From time to time, he motioned towards her in a gesture inviting her to join him. After about 5 – 8 minutes he left. Throughout the incident, the complainant neither called out or otherwise signified any protest, nor drew her companion's attention to the respondent's behaviour. At times, other members of the public had passed by, but when they did so, the respondent had disappeared from view. When the complainant left the beach, it appears that the respondent followed her in his car to her home in Hobart, and some days later entered her garden uninvited. She was again sun baking topless and he introduced himself as the man at Seven Mile Beach. She covered herself with a newspaper she had been reading, told him she was not interested in him, and asked him to leave, which he immediately did.
On Tuesday 14 February 1990 the complainant was again at Seven Mile Beach with her male companion at about 5.00pm. Once again she was sun baking topless in the secluded area of the dunes and the respondent appeared naked about 5 metres away from her. On this occasion, his penis was not erect and when she covered herself with a towel, he stood there for "a few moments" and left. Once again she made no protest nor attracted her companion's attention to the respondent. A few weeks later, she saw him at the same beach again (although there was no further incident) and took the number of his car, as a result of which the police were able to identify and locate him. He made a series of frank admissions about the conduct I have detailed when interviewed by the police. He denied having ejaculated on either occasion and there was no evidence that he had done so.
The respondent is aged 45 years. He is in stable employment as a storeman/driver, has a teenage son by his marriage which ended in divorce some five years ago, and he now lives in a de facto relationship with another woman. These offences are not isolated, but are manifestations of a recurring aberration. The respondent was first convicted of a sexual offence in 1972 at the age of 27 years, the offence being one of peeping or peering into a dwelling house. In 1977 he was convicted in Victoria of offensive behaviour and in Tasmania of wilful and obscene exposure when he was given a three year bond. In 1982 he was again convicted of indecent exposure, fined and given a three year bond requiring him to seek psychiatric treatment. In 1986 he offended again, was fined and given a bond for twelve months. Six months later, two further like counts came before the court and he was again fined, placed on a supervised probation order for eighteen months and required to obey all reasonable directions of his probation officer as to counselling and/or treatment at the John Edis Hospital. After twelve months he was convicted of offensive behaviour and given a sentence of six weeks' imprisonment suspended on condition that he be of good behaviour for three years. About twelve months later he committed two further offences of indecent exposure and for these he was, in February 1989, sentenced to seven days' imprisonment, wholly suspended on condition he be of good behaviour for eighteen months and accept the supervision of a probation officer and such treatment as should be recommended by Dr McCafferty.
The learned magistrate had the benefit of a report from Dr McCafferty prepared in January 1989. He found it difficult to explain the respondent's sexual deviance on childhood experience and said that from a treatment point of view it seemed best to regard this behaviour as a recurring pattern that he showed especially during times of stress. Dr McCafferty, in January 1989, intended to initiate a program of behavioural modification as an out–patient, but noted that the respondent's motivation to pursue such a program had been variable in the past. In the later report of 7 May 1990, Dr McCafferty said, inter alia:
"3In my opinion, the treatment he received from me in 1989 was of assistance to him in reducing the frequency of this conduct. According to him he did not re–offend between October 1988 and January 1990. A problem in his management has been that his motivation tends to fall once a court case is behind him.
4I believe further behaviour therapy, continued over a longer period of time would likely further diminish the frequency of the exhibitionistic behaviour. The court may see fit to make such treatment a condition of a non–custodial sentence and I would see such a condition as therapeutically useful in maintaining his compliance with treatment over a longer period of time. The only other treatment option that would be likely to offer any benefit would be the use of medication to chemically reduce his male sex drive. However such medication would also reduce his normal sexual behaviour and, I believe, would be unacceptable to Mr Howlett. Any such drug treatment would only be given on a fully voluntary basis."
I think two things must be borne steadily in mind in the determination of this Notice to Review. The first is that the proper punishment for any offence must be related to the gravity of the conduct in question; and the second is that a wide discretion reposes in the tribunal of first instance whose task it is to impose sentence.
As to the first proposition, I adopt with respect what Neasey J said in Cook v Dillon [1985] Tas R. 174 (NC 3):
"The relevant principle of sentencing law is that 'a long record of previous convictions will not justify the imposition of a term of imprisonment in excess of the permissible ceiling for facts of the immediate offence' – Thomas – Principles of Sentencing, 2nd Edition, at p41; and also at p197. As the Court of Criminal Appeal said in Betteridge (1942) 28 Crim App R 171 at 172, 'if a man who has been convicted shows himself unresponsive to leniency and persists in a life of crime, that is a reason for giving him the proper and deserved sentence in the particular case.' But the penalty may not in any case be more than that 'proper and deserved sentence' for the offence, whatever be the previous record of the offender."
While I am not suggesting that a custodial sentence should never be imposed in such circumstances as the present, it is significant to note that the complainant exhibited no signs of outrage at the respondent's conduct on either occasion. No doubt it was a matter of mild annoyance to her but she thought so little of it that she did not draw her male companion's attention to it at all. For the offence to be committed, it must have been perpetrated in a public place, but the prohibition still operates in secluded areas to which the public has access. While those who choose to sun bake nude or near nude at beaches to which the public does have access are entitled to be protected from wilful and obscene exposure by a passer–by likely to be aroused by such a display, the social harm of the latter's offence seems to me to be far less than that of similar behaviour in the view of others of more conventional persuasion or in front of children.
The second proposition is trite law. The learned magistrate was concerned with the rehabilitation of the respondent. In all the circumstances of the offences, which were not of aggressive character nor inflicted upon a person particularly offended by them, I think he was entitled to give that aspect of punishment greater emphasis. Offences of sexual deviance are notoriously difficult from a sentencing point of view. It is often impossible to predict, with any degree of confidence, that repetition would be deterred by harsh punishment and it is, in my view, wrong to advance as a legal principle the proposition that where a sexual offender shows a pattern of repetition, the court must impose harsher punishment. The possibility of rehabilitation advanced by Dr McCafferty was a matter to which the learned magistrate was entitled to have regard and to treat as the dominant consideration in the imposition of sentence. The respondent should be under no illusion that if he repeats such offences, he can expect any further such clemency, but I am unable to conclude that the learned magistrate was in error in the sentence he imposed.
The appeal is dismissed.
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