Director of Public Prosecutions v Carlisle (a pseudonym)
[2023] VCC 733
•9 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN CARLISLE (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2023 | |
DATE OF SENTENCE: | 9 May 2023 | |
CASE MAY BE CITED AS: | DPP v Carlisle (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 733 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law
Catchwords: Indecent act with a child under 16 years
Legislation Cited: Sentencing Act 1991; Crimes Act 1958; Sex Offenders Registration Act 2004
Cases Cited:R vVerdins & Ors [2007] 16 VR 269; Cole (a pseudonym) v The Queen [2015] VSCA 44; Boulton v The Queen [2014] VSCA 342; Henry v The King [2023] VSCA 100; Arthars v The Queen (2013) 39 VR 613
Sentence:31 months imprisonment wholly suspended for a operational period of 3 years; Placed on a SORA for 8 years
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr.P. Kounnas (plea) Ms M. Bossio (sentence) | Office of Public Prosecutions |
| For the Accused | Mr D. Cronin | Dribbin & Brown |
HER HONOUR:
1Ryan Carlisle[1], you were found guilty by a jury of your peers of four charges of indecent act with a child under 16 years. You were found not guilty of three charges of indecent act with a child under 16 years.
[1]A pseudonym.
2In sentencing you for those matters for which there was a finding of guilt, I am obliged to have regard to the maximum penalty which attaches to the offences you have committed. The maximum penalty for the charge of indecent act with a child under 16 years is 10 years imprisonment.
3This maximum penalty reflects the seriousness with which Parliament regards this offence.
The offending
4Your offending took place between 13 September 1997 and 20 August 2000 but all occurred on the one occasion.
5The victim of your offending is Sia Blythe[2] who was aged between seven and nine years at the relevant time.
[2]A pseudonym.
6By way of background, you and your family were neighbours of the Blythe family in Narre Warren South and a close friendship had developed between the families. The Blythes, Angela[3] and Gregory[4], had two children, Sia and Charlie[5] and you and your wife Lilly[6] had three children, James[7], Daisy[8], and William[9]. Apart from William, who was your youngest child, the children are of similar age.
[3]A pseudonym.
[4]A pseudonym.
[5]A pseudonym.
[6]A pseudonym.
[7]A pseudonym.
[8]A pseudonym.
[9]
7At some point in your friendship with the Blythes an arrangement was made between your families for Sia and Charlie Blythe to come to your household after school for minding until their parents came home from their respective employment.
The facts
8The first finding of guilt was to Charge 3. At trial Sia Blythe’s evidence was that on this particular day it was only you and her at your home. You were both in the middle lounge area of the house playing a familiar game where you would flip her over your arm. You said to Sia Blythe, 'I have an idea about how we play a different game, we'll play truth or dare'. She agreed.
9The game migrated to the room at the front of the house known as the sunken lounge. Sia Blythe started by daring you to flip her and then it was your turn to dare her. It started with what she described as 'silly little things' such as running around the house three times. It then turned to dares of a sexual nature.
10The first dare of this description was one in which you dared Sia Blythe to touch your penis. You asked her to touch your penis and took your penis from your pants. Sia Blythe touched your penis. This was an act which set the background to Charge 3 at your trial as it does for your plea.
11In terms of Charge 3 Sia Blythe gave evidence that you said to her, 'Look, I'll show you what to do', and took her hand from your penis and put your own hand on your penis and moved it up and down, masturbating your penis and showing her what to do. You grabbed her hand and put it on your penis, placing your hand over hers and showing her the motion with your hand over the top of her hand. You then took your own hand away and gestured for her to continue the movement but she said that she did not know what she was doing, so stopped once you had moved your hand away.
12You then put your penis away and you and Sia Blythe talked about the next dare.
13The next three charges then occurred in quick succession.
14In relation to Charge 5 Sia Blythe’s evidence was that you said, 'I've got an idea', and got up and left the room and came back with a can of whipped cream. You then grabbed a beanbag and moved it to the front window, sat down on the beanbag, pulled out your penis and said, 'I dare you to lick this whipped cream off'. You then put some whipped cream on the end of your penis and dared Sia Blythe to lick it off, which she then did. Her evidence was that the whipped cream was about the size of 20 cent piece.
15Sia Blythe was able to describe your penis as leaning off to one side when erect. There was evidence in your trial from your wife and in your record of interview with police that your penis does go to the right side when erect.
16Sia Blythe’s evidence was that she licked the cream from the end of your penis and that you then put your penis away and you each talked about what the next dare was going to be.
17Charge 6 then occurred.
18Sia Blythe’s evidence was after the first whipped cream incident the next dare was to again lick whipped cream from your penis. You removed your penis from your pants and put whipped cream on the underneath of the shaft of your erect penis and dared Sia Blythe to lick it off, which she then did.
19You then put your penis away again and you talked about what the next dare was going to be.
20Charge 7 then occurred. You took your penis out for a third time and put whipped cream on the side of the shaft and dared Sia Blythe to lick it off, which she then did.
21For the next dare Sia Blythe suggested that you put whipped cream on your testicles and she could lick it off but you told her, 'You know you don't put it there. You only put whipped cream on the penis'.
22The truth or dare game then finished as, according to Sia Blythe, it appeared that you were becoming increasingly anxious that your family would soon return home.
Offence gravity and victim impact
23The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
24Sia Blythe has provided a victim impact statement.
25In that statement she describes feeling different from her peers as she was growing up, feeling dirty and with intense feelings of isolation, guilt and shame. Of course, she had done nothing wrong.
26Her relationship with her parents was affected. She states that suffered anxiety, depression and resorted to self-harm. For years Ms Blythe has had problems with trusting others, particularly male authority figures, and constantly fears for the safety of her own children. Ms Blythe states and I quote;
'My sense of self has been the most affected by this abuse. I'll never be able to recover who I was and who I could've been if this sexual abuse had not happened. It happened at such a vulnerable age. I grieve my lost innocence every single day.'
27Ms Blythe’s victim impact statement serves as a stark reminder as to the ongoing impact of sexual offending on children into their adult lives and that the ramifications of such offending endures long past the time of the actual events. There is a harsh reality in the fact that offenders move on from their wrong doing, where victims of sexual offending simply do not.
28Having been read to the court - the profound impact of your offending on Sia Blythe cannot be lost upon you.
29It is axiomatic to say this is serious offending. Sexual offending against children is, by its very nature, abhorrent. It is well settled that the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of harm which such conduct entails cannot be overstated. Ms Blythe’s victim impact statement makes the effect of such offending palpably clear.
30There is a wide range of offending conduct which constitutes the offence with which have been found guilty and a myriad of personal circumstances pertaining to individual offenders.
31You were in a position of trust as an afterschool care giver of Sia Blythe and in terms of your friendship with her parents. You breached that trust and did so in an environment in which Sia Blythe and her parents thought she would be safe.
32There was clearly a significant disparity in age between you and Sia Blythe, a period of close to 30 years.
33There is no reason for me to form the view other than your moral culpability would appear high.
34The maximum penalty of 10 years reflects a starting point for an examination of an appropriate sentence. The legislation creating it seeks to protect children from being exposed to or, from being the subject of, sexual misconduct by an adult, particularly when the offender is in a position of trust in relation to a young victim.
35It is relevant to the sentencing exercise that the four charges were all part of the one event albeit you had the opportunity to desist between each ‘truth and dare’ game. Overall the offending would appear to be relatively short lived timewise in terms of each charge and overall. I do not have a basis on which to form the view that your offending was premediated or planned. There was no penetrative activity or any suggestion of threats or violence. In essence, apart from the breach of trust, the victim's young age and the disparity in your ages, there is an absence of what are described as aggravating features.
36Nevertheless, principles of general deterrence and denunciation loom large in order to discourage others from like behaviour.
37As is your right you ran a trial. You maintain your innocence. You cannot call into aid in amelioration of sentence any plea of guilty enabling a sentence to be reduced. Remorse is simply not a factor that I can take into account.
38There is no question that the overall gravity of your offending demands a term of imprisonment.
Personal circumstances
39I turn now to your personal circumstances. You are now aged 59 years and were approximately 36 years of age at the time of your offending.
40You were born in Richmond in 1963. You have an older brother, but your relationship is not close.
41You grew up in the Noble Park area.
42You left your secondary school education halfway through Year 9 to commence paid employment.
43You initially worked pushing trolleys at a local supermarket. You were later promoted to dairy manager and then night shift manager. You worked for 11 years with the supermarket.
44When 20 years of age your father died from bowel cancer and your mother became somewhat reliant upon you and you would assist her with jobs around the house, taking her shopping and driving her where she needed to go as she did not drive. You have always had a close relationship with your mother.
45You were in your early 20s when you met your wife, Lilly, then 17 years old. In 1987 you purchased your first home together in Cranbourne. You married in 1988.
46You and Lilly had three children together, James, Daisy, and William. It was apparent from your trial and subsequent plea hearings that you have a close and supportive set of family relationships with your wife and children and that these relationships remain.
47In 1989 you commenced a job as a picker and then a forklift driver at the Coles Distribution Centre in Hampton Park. You worked night shift initially and in 1994 changed to afternoon shift. You worked in landscaping with a friend on your days off in order to earn additional income.
48In 1994 you sold your house in Cranbourne and moved in with your mother, whilst your new home in Narre Warren South was being built. You moved into that house in 1995.
49The offending occurred between September 1997 and August 2000, as has already been outlined.
50In 1998 your mother moved in with your family whilst she also built a house in Narre Warren South. You maintained your close relationship with her and would have daily contact. You took on a lot of day to day responsibility for her care. Your mother died in 2020 after an extended period of illness.
51In 2001 you were diagnosed with a back and neck injury that has gradually degenerated and worsened over the years.
52The Coles Distribution Centre closed in 2006. At that time you and Lilly decided to start your own business as couriers. This business continued for three years but ultimately was not overly profitable and the business was sold.
53You then worked for a plumbing supplier for some five years but began to suffer dizzy spells. You then worked at a garage manufacturer for two years until you suffered further neck problems and began losing feeling in your shoulders and arms.
54In 2018 your neck, shoulder and back pain had worsened to the point where your hands and arms would go numb. You were advised to give up work or risk more severe injury. For someone who has worked since the age of 15 years and managed to provide for his family I accept that this was a significant blow to your self-esteem.
55
Tendered on your behalf is a letter authored by Dr Annette Barnett dated
17 April 2023. Dr Barnett has been your treating practitioner since 2017. In her letter she reports you suffering long-standing cervical radiculopathy due to cervical spine degeneration. She describes this as a narrowing in the spine bones of your neck, compressing on nerve roots coming out of the neck. This has led to neck pain and constant symptoms in your arms including shooting pain, burning and tingling to your hands and fingers. Your mobility and function is described as suffering from 'significant reduction'. You are unable to work, unable to do most activities with your hands which includes housework, cooking and typing on a computer. You also suffer from vertigo and headaches. This, Dr Barnett describes, as leading to significant impact on your quality of life.
56Dr Barnett's letter does not indicate risk of further degeneration, any treatment currently in place, any proposed treatment or the impact of your identified condition should you be placed into custody.
57I take her letter into account as part of your general personal circumstances.
58You currently derive income from income protection insurance and enjoy woodwork as a hobby donating the items you make, such as rocking horses, toy boxes and children's table and chair sets, to charities.
59Your wife, Lilly, works as an administration coordinator for a garage door company where you had previously worked.
60Your mother-in-law resides with you but suffers from dementia.
61Your daughter, Daisy, now aged 30, has started her own family and has two young children. Your son, James, now 32 years of age, is a logistics manager and is about to move out of the family home having bought his own. William, now 26 years old, works as a mechanic.
62You are currently planning to down size and move towards the Bairnsdale area.
Psychological assessment
63Tendered on your behalf is a report dated 21 April 2023 authored by Ms Pamela Matthews, forensic psychologist. Her report was not the subject of challenge.
64Ms Matthews details much of your personal history.
65She assesses your baseline cognitive function as likely to be in the borderline to low average range.
66You described to Ms Matthews depression since being charged. You reported intrusive suicidal ideation.
67According to Ms Matthews, you currently present with reactive depression and anxiety related to your legal proceedings. You meet the diagnostic criteria for adjustment disorder with depression and anxiety. She accepts that your condition is reactive to being charged. It has therefore been in place since December 2017 and has not, apparently, been ameliorated by anti-depressant medication.
68Ms Matthews remarks, 'He is exhibiting marked distress, particularly negative affective states, and suicidal ideation to a marked degree'. You have made one suicide attempt since being charged.
69Whilst I do not understand adjustment disorder to be in the same realm of mental illness as major depression, the import of Ms Matthews' report lies in her opinion should you be incarcerated. Ms Matthews expresses concern that your mental state will worsen should you be incarcerated. This is also linked to you being separated from your wife of 38 years and her emotional support.
70Ms Matthews states that this would add disconnectedness to your depression and debility, raising the risk of your depression deepening and the likelihood of you acting on an 'already concerning level of suicidal ideation'. Ms Matthews believes that you would experience any time in custody as quite onerous, despite access to mental health services.
71Your counsel submits that Ms Matthews' findings provide a basis for the application of limbs 5 and 6 of the decision of R vVerdins & Ors [2007] 16 VR 269.
72Those two limbs were expressed by the court in Verdins in the following terms:
(a) Limb 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(b) Limb 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment
73The Crown contend that there is no application of Verdins in your case.
74Ms Matthews was clear that your mental state 'will worsen' should you be incarcerated. As already noted, this finding includes the reality that you would be separated from your wife, Lilly. I observe that many offenders suffer separation from family when incarcerated.
75However, in your case Ms Matthews refers to the raised risk of your depression deepening and therefore the raised risk of you acting on your 'concerning level of suicidal ideation'. Ms Matthews described any incarceration as 'quite onerous' despite access to mental health services.
76I do accept that there is some application of certainly limb 5 and to a slight degree limb 6 of Verdins in your case. You are to be differentiated from a person in normal health. I am satisfied that Ms Matthews' finding does elevate the risk of imprisonment as having a significant adverse on your mental health and to a serious level.
77In general terms, I do accept that your complete lack of familiarity with the prison system, separation from family and the reported reduction to your mobility and function due to your back condition, in combination with your mental health, would cause you some difficulty in adjusting to the prison environment.
78Ms Matthews also conducted a risk assessment, noting ethical problems where an individual maintains their innocence. Some items were not scored. She finds your risk of repeating a child sex offence as 'miniscule' bearing in mind the one occasion and the 23 years since.
79I accept that you present with a low risk of reoffending.
Delay
80The issue of delay is raised on your behalf and the chronology of events is of assistance in determining its relevance.
81There was clearly a gap between the offences occurring and you being charged in December of 2017 after police interview in June of that year.
82This period is of less significance in terms of relevance as it is not an uncommon experience for there to be a delay before child victims come forward. In your particular case, whilst Sia Blythe made complaint to police in the year 2000, she was a child at the time and her parents determined not to proceed.
83She reported to police as an adult in July 2016.
84
The period of time between being charged in 2017 and jury verdict on
2 February 2023 does represent an unusually protracted period of time which is not of your making.
85Its relevance lies in the period of time you have had criminal proceedings hanging over your head and the assessment that period offers as to your prospects of rehabilitation.
86In brief compass the relevant chronology is as follows:
(a) Your first trial commenced on 30 September 2019 but the jury were discharged mid trial.
(b) On 14 September 2020 your trial commenced for a second time but was vacated due to the COVID-19 pandemic.
(c) The COVID-19 pandemic impacted the third trial listing of 20 October 2021 and your trial was again adjourned.
(d) The fourth trial listing was on 17 January 2022 at which time the trial was again unable to commence due the continuing impact of the COVID-19 pandemic. The evidence of the complainant or victim, each of her parents and her brother was pre-recorded.
(e) In May of 2022 the fifth trial listing did not come to conclusion as then counsel for the Crown became unwell on day four of the trial; and
(f) The jury was discharged on 23 November 2022 at your sixth trial listing due to an issue with the recording of your record of interview with police. The evidence of all witnesses had been recorded by that time.
87The seventh listing in January of 2023 did see your trial completed with jury verdicts returned.
88Your plea hearing in relation to those verdicts was listed on 21 March 2023 but could not proceed as prosecuting counsel had become unavailable the night prior.
89
Your sentence was listed today, 9 May 2023, at 9.30 am but there was no appearance by the Crown. I accept that counsel had been excused and that the instructing solicitor unexpectedly became unavailable but there was no notice to the court and as stated, no appearance from the Crown. Arrangements had to be made to relist your sentencing, which fortunately could still take place on
9 May 2023, but it adds to an additional stress in the overall process on both you, the victim and her family.
90Ms Matthews' report does not specifically comment on the impact of delay but it is perhaps inherent, given your depression since being charged until now, that constant listings of your trial are not without their impact.
91The efflux of time also represents a period in which to assess your prospects of rehabilitation which has continued from the time of your offending and through the period from which you were charged until now.
92Your counsel has referred me to a decision of Cole (a pseudonym) v The Queen [2015] VSCA 44 as to the relevance of delay in the context of sexual offences.
93Mr Cole had been found guilty by jury of three charges of indecent act with a child under 16 years. The circumstances involved the offender's 12 year old stepdaughter with the offending occurring on several occasions in 2009 when Mr Cole was aged 39 years. In short compass, he had touched her breasts underneath her top on one occasion, put his hand up her skirt towards inner mid‑thigh on another occasion and put his hand down the victim's top underneath her bra and touched her breast on a third occasion. Objectively, the offending was less serious than the offending for which you have been found guilty.
94A total effective sentence of 20 months' imprisonment with a minimum of 12 months' imprisonment before being eligible for parole was imposed by the trial judge. The Court of Appeal found this sentence manifestly excessive and imposed a community correction order of two years duration. In so doing the Court of Appeal took into account that the offending was not at the higher end of the spectrum, the delay of five years between the initial complaint to police and the resolution of the charges, the ongoing rehabilitation of the offender during those five years and other matters personal to Mr Cole including his partner's poor mental health. By the time the Court of Appeal reached its determination, the decision in Boulton v The Queen [2014] VSCA 342 had been handed down and Mr Cole had spent some 19 weeks in custody.
95At the conclusion of your plea hearing on 1 May 2023 I had forwarded to counsel a decision of Henry v The King [2023] VSCA 100 which had been handed down that day post your plea hearing.
96At trial Mr Henry had been found guilty of four course of conduct charges. He was sentenced to a total effective sentence of three years' imprisonment wholly suspended for two years. Mr Henry appealed his conviction and the Crown sought to appeal the sentence imposed. Both appeals were dismissed.
97Briefly, each charge had alleged a different type of indecent conduct. Charge 1 related to the appellant placing the victim's fingers into her vagina on multiple occasions. Charge 2 alleged that on the occasions Charge 1 was being committed, the appellant would simultaneously place his fingers into the victim's vagina. Charge 3 alleged that on multiple occasions, when the appellant tried to place the victim's hand or fingers into her vagina and she pulled her hand away, he then pulled down her tracksuit pants and rubbed her clitoris with his finger. Charge 4 alleged that on multiple occasions, Mr Henry knelt over the victim and placed her hand onto his erect penis over his underpants. The victim was 13 years of age at the relevant time and the offender was her brother-in-law. Objectively the offending would appear more serious than that for which you have been found guilty given it occurred on numerous occasions and involved penetration.
98Otherwise, in sentencing Mr Henry, factors that were taken into account included that the offender was in his late 20s at the time, was aged 63 at the time of sentencing, had undergone a craniotomy in 2021 and lost vision in one eye, was suffering major depressive disorder such that imprisonment would weigh more heavily upon him and the considerable delay between police interview in 2017, then investigation and finalisation some five and a half years later. During that period there had been no further offending.
99There were understandable factual differences between each of those decisions and yours in terms of the matters taken into account in the sentencing exercise but each was of some assistance in assessing the import of delay and the role delay plays in the sentencing exercise.
100I accept that the period of some five and a half years between charge and conclusion is lengthy indeed.
101In Arthurs v The Queen (2013) 39 VR 613 the Court of Appeal observed:
'Delay which is caused by prosecutorial process or the administration of the courts will carry more weight as a mitigating factor than any delay which is attributable to the offender.'
102The delay in this case, as I have said, is lengthy but in this case has been attenuated by multiple listings. The delay cannot be attributed to you in any way.
103I note that obviously the victim and her family have also been subject to the protracted events and anticipation associated with each hearing.
104In your particular case it has involved the stress of preparing for the proceedings on seven separate occasions, three of which were associated with the pandemic and the financial and emotional impact of each occasion. I consider the burden associated with delay in your case to be considerable, if not extraordinary and unprecedented, and one which must dictate a less severe sentence than would otherwise be the case. This finding attaches to the multiple listings.
105The balance lies, amongst other factors, in the significance in this delay against the sheer gravity of your offending.
106As already announced the relevance of delay also comes in your prospects for rehabilitation.
Prospects for rehabilitation
107You have no prior criminal history.
108Subsequently on 11 May 2006 you appeared at the Dandenong Magistrates' Court in relation to charges of cultivate a narcotic plant and use cannabis. Without a conviction being recorded you were placed on an adjourned undertaking for a period of 12 months and ordered to pay the amount of $500 into the court fund. This appearance has little, if any, relevance to the charges before me and would not appear, in all the circumstances, to undermine the assessment of your prospects of rehabilitation.
109There have been no further matters since 2006.
110As referred to earlier, you have a close family relationship with your wife and children all of whom continue to be supportive.
111In addition, two personal references have been tendered on your behalf and I have had recourse to the contents of those documents.
112Melissa Reardon[10] is a family friend of some 28 years. She has had no concerns about your behaviour in the context of close and regular contact between your family and hers, including your afterschool care of her children. She is aware of the jury's findings and describes you as the most honest and sincere person that she knows.
[10]A pseudonym.
113Catherine Pile[11] has been your friend for some 23 years. She describes you as a honest, loyal and hardworking family man who has supported friends, family and acquaintances to the best of your ability. She also describes you as a kind and sincere friend.
[11]A pseudonym.
114These offences occurred over 20 years ago. You come before the court without a criminal history and one unrelated matter since. You have led an otherwise unremarkable and law-abiding life.
115Given your level of support, your current health problems, lengthy work history and lack of criminal offending overall, your prospects of rehabilitation would appear excellent, if not achieved.
116There is less need to give weight to the principle of protection of the community in your particular case. Specific deterrence has application given the four events on the one occasion and your denials but the impact in your sentencing of this principle is somewhat ameliorated given your lack of relevant prior matters or matters since.
117The principles of general deterrence, denunciation and just punishment remain highly relevant.
Sentencing submissions
118In terms of sentencing submissions your counsel accepts the gravity of your offending but argues that the delay in your case, with seven trial listings, is such that any term of imprisonment imposed could and should be wholly suspended.
119I accept that a term of imprisonment imposed and then suspended, wholly or in part, does represent significant punishment capable of reflecting deterrence whilst, at the same time, promoting continued reformation.
120The Crown submits that a combination sentence is within range. That is, a term of imprisonment in combination with a community correction order.
121Section 44 of the Sentencing Act 1991 states that when sentencing an offender in respect of one or more than one offence, a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served, after deduction of any period of custody that under s18 is reckoned to be a period of imprisonment or detention already served, is one year or less.
122You have no pre-sentence detention.
123It is further submitted by the Crown that any term of imprisonment attached as part of a combination sentence be what was described as a ‘short, sharp, shock’.
124I do not see merit in a community correction order. Independent of any ability you may or may not have to do community work given your back and neck complaint, I am not of the view that you require therapeutic assistance which has any relationship to your offending. Ms Matthews does not recommend offence specific treatment.
125Subsequent to the provision to the parties of the decision in Henry, it was submitted via email by both parties that that decision is relevant to your sentencing particularly paragraphs 104 to 106.
126For the sake of completeness those paragraphs read as follows:
'104. In the present case, more than 36 years had elapsed between the offending and the trial. The respondent had not offended during those years. He had positive prospects of rehabilitation and presented a low risk of reoffending. Hence, protection of the community, given prominence by s6D of the Sentencing Act 1991, was of very limited practical relevance. Furthermore, the respondent was aged 63, with significant mental and physical health difficulties, which were also considerably mitigating.
105. A sentencing judge can only impose a suspended sentence if an unsuspended sentence of imprisonment would have been appropriate in the circumstances. When a judge is considering the imposition of a suspended sentence, various factors often will vie for paramountcy in the exercise of the sentencing discretion, and often factors will point in different directions. It has been recognised, however, that a suspended sentence can promote reformation, and may be imposed in the community's interest to prevent re‑offending. Despite the fact that the service of imprisonment is conditionally suspended, it may also be regarded as a significant punishment.[36] Moreover, even if a sentence was wholly suspended it still plays a role in general deterrence.[37] As Batt and Buchanan JJA observed in Buhagiar:[38]
Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society.
Referring to R v Davey. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re‑offending. In deciding whether to suspend in whole or in part a term of imprisonment a judge in deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in R v Osenkowski(1982) 30 SASR 212 at 212 to 213, or for some other sufficient reason should have this particular avenue open to him, provided the conditions of suspension are observed.
106. Finally, we would also reject any suggestion that manifest inadequacy might flow from the fact of suspension; since, as Nettle JA observed in Oversby:
It may be rare indeed that where a sentence of imprisonment is of a length that is not manifestly inadequate, but is such that it may be ordered to be suspended, an order that it be suspended operates to render it manifestly inadequate. Given the considerations to which the learned sentencing judge referred, including the respondent's plea of guilty and his prospects of rehabilitation, and bearing in mind, as Mr Priest submitted, that community protection is best advanced by rehabilitation, I am not persuaded that the order for suspension rendered this sentence manifestly inadequate.'
Other matters
127I turn now to other matters.
128As you are being convicted of two or more sexual offences, for each of which you will be sentenced to a term of imprisonment, you fall to be sentenced on Charges 6 and 7 as a serious sexual offender pursuant to Part 2A of the Sentencing Act 1991.
129Section 6D of the Sentencing Act provides that when sentencing you as a serious sexual offender I must have regard to the protection of the community as the principle purpose for which the sentence is imposed. However, for reasons already stated, I find that you do not pose a risk to the community.
130Section 6E provides that, unless otherwise directed by the court, every term of imprisonment imposed on a serious offender be served cumulatively. In all the circumstances I do not consider that a disproportionate sentence should be passed and the prosecution does not seek a disproportionate sentence.
131Further, as you are being convicted of three or more Schedule 2 offences, you will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for a period of eight years.
132You will be required within seven days to report your personal details and begin a regime of reporting required by that legislation and be otherwise subject to the Act for the next eight years.
133You will be given a document outlining your obligations under this legislation shortly and once you have signed an acknowledgement that you have received it, it will be returned and form part of the court file.
134I am about to turn to the sentencing exercise. I just want to check, Mr Cronin, if there is any matters that you wish to raise or any factual corrections?
135MR CRONIN: No, Your Honour.
136HER HONOUR: Ms Bossio, you are probably not in a position to respond but I will at least give you that opportunity?
137MS BOSSIO: No Your Honour, no matters to raise.
Sentencing
138The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
139I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society. I do express my denunciation of your behaviour.
140I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty and the principles of totality, proportionality and parsimony.
141I find this to be an extremely difficult sentencing exercise. In no way should the victim of your offending, Sia Blythe, see the outcome as devaluing what she experienced and continues to experience. The sentencing process can never give back to her what she has lost. Your offending, Ryan Carlisle, was serious indeed.
142On Charge 3 you are convicted and sentenced to 18 months imprisonment.
143On Charge 5 you are convicted and sentenced to 24 months imprisonment.
144On Charge 6 you are convicted and sentenced to 24 months imprisonment.
145On Charge 7 you are convicted and sentenced to 24 months imprisonment. Charge 7 forms the base sentence.
146I direct that three months of the sentence on Charge 3 and two months of the sentences imposed on Charge 5 and 6 be cumulative on each other and the sentence imposed on Charge 7.
147Your total effective sentence is therefore one of 31 months imprisonment.
148I do direct, on what was a very difficult balancing exercise, that this sentence be wholly suspended for an operational period of three years.
149Should you reoffend during the operational period of that suspended sentence by an offence punishable by imprisonment you are at risk of being required to serve the outstanding 31 months unless there are exceptional circumstances that have arisen since the imposition of the suspended sentence.
150Thank you. I will close the court now until 2.15.
151MR CRONIN: If Your Honour pleases.
- - -
5
0