Director of Public Prosecutions v Church

[2006] TASSC 72

[2006] TASSC 72

CITATION:                 Director of Public Prosecutions v Church [2006] TASSC 72

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  CHURCH, Gareth Eric

TITLE OF COURT:  COURT OF CRIMINAL APPEAL
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 35/2006
DELIVERED ON:  10 October 2006
DELIVERED AT:  Hobart
HEARING DATE:  22 August 2006
JUDGMENT OF:  Slicer, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Judgment and punishment – Rehabilitation – Suspended sentence – First offence – Maintaining a sexual relationship.

Aust Dig Criminal Law [828]

Criminal Law – Judgment and punishment – Probation orders and suspension of sentence – Generally – Desirable to suspend – Proportionality and appropriateness – Sentence not manifestly inadequate.

Aust Dig Criminal Law [887]
Attorney-General v C [2001] TASSC 107; Lahey v Sanderson [1959] Tas SR 17, followed.
Lowndes v R (1999) 195 CLR 665, considered.

REPRESENTATION:

Counsel:
             Appellant:  T J Ellis SC
             Respondent:  A J Hall
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  C N Dockray

Judgment Number:  [2006] TASSC 72
Number of paragraphs:  29

Serial No 72/2006
File No CCA 35/2006

DIRECTOR OF PUBLIC PROSECUTIONS v GARETH ERIC CHURCH

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
BLOW J
TENNENT J
10 October 2006

Order of the Court

Appeal dismissed.

Serial No 72/2006

File No CCA 35/2006

DIRECTOR OF PUBLIC PROSECUTIONS v GARETH ERIC CHURCH

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
10 October 2006

1. The respondent was sentenced to 12 months' imprisonment, wholly suspended, following his plea to the crime of maintaining a sexual relationship with a young person, contrary to the Criminal Code, s125A.

1. The relationship had commenced through internet communications, the complainant and respondent using respective noms-de-plume.  Little turns on this except that internet communications were later used to arrange clandestine meetings and to suggest that the complainant, aged 13, was exploring her journey into change and adolescence.  This was not a case of internet predation.

1. In June 2005, they met in person through a mutual friend aged 16, each unaware that they had previously had a cyber-relationship.  The respondent, aged 23, contacted the complainant by internet the following evening and suggested a further meeting.  An arrangement, later repeated, was made whereby the respondent would ring briefly as a signal for the complainant to leave the home without alerting her parents and meet with the respondent.  A sexual relationship progressed to the first act of intercourse in August when the complainant surrendered her virginity.  All acts of completed intercourse were unprotected.

1. The indictment, as amended, to which the respondent pleaded, alleged sexual misconduct between 25 June and 15 October 2005.

1. In late November the respondent professed by "text message" to the complainant, his continuing "love" to the girl, still aged 13, but revealed that he had another "girlfriend".

1. Sexual intercourse had taken place on seven occasions between August and October, with other acts of sexual intimacy over a longer period.

1. The complainant heard nothing further from the respondent until she initiated contact just prior to Christmas when she was told that he would not see her again as he had another girl.  That response, consistent with his character and prior treatment of a young girl was followed by an interview with police.  In that interview, he admitted kissing the girl but denied any other sexual activity.  He was charged and indicated a plea of guilty, but only after DNA testing had indicated his presence on the back seat of his motor vehicle in which he had engaged in sexual intercourse with the girl.

1. The conduct was opportunistic, rather than predatory, selfish rather than abusive.  The girl was a consenting partner, albeit one who was vulnerable through inexperience and the process of change.  It is unlikely, as the learned sentencing judge observed, that the complainant's use of the internet was a display of interest in attracting a sexual partner, but rather a product of curiosity and role exploring.  That said, there was no error in the approach of the learned sentencing judge to the appropriate principle.

1. The critique by the learned Director is not that the sentence of 12 months itself is manifestly inadequate, but that its total suspension reflects error.  Whilst the principles stated in Dinsdale v R (2000) 202 CLR 321 govern a graduated response to criminal conduct, the distinction between immediate and actual imprisonment and one deferred dependent on future conduct meets one set of the aims of criminal sanction at the expense of another.

1. Here the age of the girl and the disparity between that of the offender is significant.  In simple terms he was almost twice her age.  While the respondent was accepted as sexually immature, he was an adult who engaged in planning and subterfuge to seduce a willing participant.  It is not necessary in this appeal to consider different eras of society's response to the protection of young persons from sexual exploitation by adults.  They vary according to eras, surrounding values or ethos and cultures.  In Tasmania, the age chosen for choice is 17 years, with a graduated exception determined by age parity.  The wide variation in the human variations and circumstances make it difficult to identify an appropriate or consistent response to criminal conduct.  But the aim of the legislation is protective and the age fixed by Parliament is 17 years.  Deterrence, both general and specific, condemnation and punishment are primary considerations (McDonald v R 47/1980).  In mitigation the main considerations are the age and record of the offender and the problems associated with the imprisonment of a person for the first time.  This is also an appeal by the State (Everett v R (1994) 181 CLR 295; Griffiths v R (1977) 137 CLR 293). However here there was a course of conduct, the opportunistic use of the youthfulness of another and ultimate disdain or betrayal. The sentence of 12 months' imprisonment was appropriate (Bowerman v R A6/1996).  Some term of actual imprisonment was required (Attorney-General v C [2001] TASSC 107; see Professor Warner Sentencing in Tasmania, 2nd ed, generally at 11.434 – 436).

1. I would uphold the appeal and quash the order.  I would re-impose the sentence imposed but, allowing for the fact that it is a State appeal, order that the respondent serve only three months of that sentence.  Making allowance for the nine days spent in custody, I would substitute a sentence of 12 months' imprisonment, 9½ months of which ought be suspended.

   File No CCA 35/2006

DIRECTOR OF PUBLIC PROSECUTIONS v GARETH ERIC CHURCH

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
10 October 2006

1. I have had the advantage of reading the reasons for judgment of Slicer J in draft form.  I regret that I am not able to agree with the conclusion that he has reached.

1. I think the learned sentencing judge took a lenient course when he imposed a wholly suspended sentence upon the respondent.  The victim was only 13 years old.  The complainant was 10 years older than her.  Their sexual relationship continued for a few months.  Amongst other things, the respondent had unprotected vaginal sexual intercourse with the girl on some seven occasions.  He took the risk of her becoming pregnant, and of her facing the choice of becoming a mother before her 14th birthday, or else having an abortion at the age of 13.  A wholly suspended sentence might deter the respondent from committing any similar crime, but there is also a strong need to deter others from committing this sort of crime.  Many people regard a wholly suspended sentence as not really being a punishment at all.  Having regard to the need for general deterrence, and to the seriousness of the respondent's conduct, I think it would have been preferable for a somewhat harsher sentence to have been imposed – either one requiring him to spend a short time in prison, or alternatively a combination of a community service order and a wholly suspended prison sentence.

1. However I think it was reasonably open to the learned sentencing judge not to send the respondent to prison, because of a number of factors.  The respondent was sexually inexperienced.  He pleaded guilty at an early stage.  He had no relevant prior convictions.  He had a good work record.  He produced good references.  He had had to resign from secure employment as a result of the charge.  He had spent nine days in custody after his arrest.  The case did not involve any breach of trust.  He had met the victim by chance, rather than for the purpose of seducing her.  He ended the relationship before any complaint had been made. 

1. In Lahey v Sanderson [1959] Tas SR 17 at 31, Burbury CJ said:

"… in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed.  It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility.  With that I respectfully agree."

1. In order for this appeal to succeed, the appellant would need to demonstrate not only that the sentence was manifestly inadequate, but also that this is a proper case for a Crown appeal to be allowed.  The principles that should be applied in dealing with Crown sentencing appeals were usefully summarised in R v Clarke [1996] 2 VR 520 at 522 and in R v Allpass (1993) 72 A Crim R 561 at 562 – 563. Both of those summaries were referred to with approval in a unanimous judgment of the High Court in Lowndes v R (1999) 195 CLR 665 at 671. I need not repeat what was said in those cases. I am not persuaded that the respondent's sentence was so manifestly inadequate as to shock the public conscience, nor that it displayed an idiosyncratic view that needs correction, nor that it reveals such inconsistency in sentencing standards as to constitute error in principle. If the appeal were to be allowed and the respondent re-sentenced, the "double jeopardy" principle would be very significant, as a result of him having stood for sentence once before and not having been sent to prison. I am not persuaded that the sentence was manifestly inadequate. Even if it were, I do not think this is an appropriate case for a Crown appeal to be allowed.

1. I would dismiss the appeal.

File No CCA 35/2006

DIRECTOR OF PUBLIC PROSECUTIONS v GARETH ERIC CHURCH

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
10 October 2006

1. The Crown has appealed a sentence imposed on the respondent upon his plea of guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years contrary to the Criminal Code Act 1924, s125A. The respondent was sentenced to a term of 12 months' imprisonment which was wholly suspended on condition he be of good behaviour for a period of two years. The sole ground of appeal is that the sentence is manifestly inadequate.

1. The respondent met the complainant on an internet chat room site where she had placed a photo of herself and used a pseudonym.  She was then 13 years old but did not disclose that.  The respondent was 23.  They began communicating with each other via the chat room.  Coincidentally, the respondent was taken to the complainant's home by a 16 year old mutual friend, at which time they realised the internet connection.  They talked, and the respondent became aware of the complainant's age.  They exchanged mobile numbers.

1. The next night they chatted on the internet and the respondent suggested a meeting.  The complainant agreed and left her home that night to meet the respondent at the bottom of her drive.  There were a number of subsequent meetings at night over the next three and a half months, arranged by the respondent ringing the complainant, but hanging up.  This was a signal for her to go to the end of the drive of her home where the respondent would pick her up.  They would drive to a secluded place nearby and sexual activity would occur.  That graduated to unprotected vaginal intercourse on seven occasions ending mid October 2005.

1. The relationship was not exclusively a sexual one.  Throughout, the parties also exchanged text messages and chatted on the internet.  This part of the relationship continued after the sexual relationship ended and until the respondent ended the relationship completely in late November.  The matter came to the notice of police by way of an anonymous report and the respondent was interviewed.  He admitted a relationship with the complainant and knowing her age, but denied it was a sexual relationship.  DNA evidence from his car linked him with the complainant and he then admitted the sexual activity.

1. In sentencing the respondent the learned sentencing judge said:

"Not infrequently conduct such as yours involves the exploitation of a position of trust or a family connection.  This is not such a case.  The criminality of your conduct is centred solely and significantly upon the complainant's immaturity.  Whilst I accept that you also were not very sexually experienced at the relevant time, nevertheless you opportunistically took advantage of the complainant's vulnerability to encourage her participation in a physical sexual relationship.  I conclude from her use of an internet chat room and subsequent conduct that she was inviting sexual interest and was a willing participant in that which occurred. 

The need to protect the young from sexual exploitation by their elders is the reason why conduct such as yours has been made criminal. 

You are 24 years of age, have no relevant prior convictions and have earned the respect of those by whom you have been employed and with whom you have worked as a volunteer sports coach. 

You have pleaded guilty at early stage and are entitled to the significant discount in penalty that is accorded to a sexual offender whose plea of guilty vindicates a complainant's allegations and saves the complainant from the trauma of giving evidence.  You must live with the stain of your acknowledged criminal conduct for the rest of your life. 

I consider that a wholly suspended sentence of imprisonment is an appropriate penalty.  As you have already spent nine days in prison in consequence of this offence, and you resigned your employment as a consequence of the disclosure of your conduct, I do not consider it necessary to couple that sentence with a fine.  You are sentenced to 12 months' imprisonment, the whole of which sentence is suspended on condition that you are of good behaviour for a period of two years."

1. Counsel for the Crown, while not asserting specific error, said that the learned sentencing judge's conclusion that by the complainant's use of the internet chat room and subsequent conduct, she was inviting sexual interest and was a willing participant in what occurred, was "unfair and unjustified".  The material before the learned sentencing judge was that the complainant was a willing and active participant in the sexual activity between the parties.  There was no suggestion at all of coercion of any description.  On those facts, coupled with the fact that the complainant posted her photograph on the internet and used the type of pseudonym she did, it was, in my view, open to the learned trial judge to draw the conclusion that he did.

1. In his submissions, counsel for the Crown was inclined to the use of emotive terms.  He asserted the respondent seduced the complainant.  That word implies a campaign of deliberate conduct by a person designed to achieve a result.  In this case, both parties were virgins, the respondent, while much older, was not experienced in relationships with females and the complainant at the first request met the respondent in his car late at night and agreed to sex, although that attempt appears to have been a very fumbled one.  The parties continued to meet voluntarily and graduated to intercourse.  These facts do not lend themselves to the category of seduction.

1. Counsel for the Crown also said the respondent "dumped" the complainant in a cowardly way.  I am unsure what relevance that categorisation of the respondent's behaviour could have, or should have, had to the sentencing process and counsel did not explain it.  It is accepted the meetings between the two were held secretly and were, it seems, initiated by the respondent.  That they were initiated by the respondent should not carry much weight simply because we do not know what might have transpired between the two at other times and there was evidence the complainant continued to contact the respondent and ask to see him.  It is accepted the respondent ended the relationship by text message and initially lied to the police.  He pleaded guilty, but not necessarily at an early opportunity, and he resigned from his employment when the matter became known.  Counsel for the Crown asserted there was no indication of remorse and the plea and resignation were a recognition of the inevitable.

1. Counsel for the Crown referred, in his submissions, to the sentences imposed in Bowerman A6/1996, C [2001] TASSC 107 and Crowley v R [2003] TASSC 147, arguing these were comparable matters to the present one. While there were indeed common elements, there is one significant distinguishing feature. In each of those cases, the offender was in a position of trust, which the learned sentencing judge correctly found in the present case was not the situation. Counsel also referred to the sentence imposed in R v H 11/4/2003 which involved a 15 year old girl.  He said in relation to that that there was a significant difference between a 13 year old and a 15 year old, implying that hence the matter was far more serious.  With respect, that statement is far too much of a generalisation unconnected to the present case to be of any use to the Court.  There was no evidence in the present case that, for example, the complainant was a particularly immature 13 year old. 

1. In any appeal where it is asserted that a sentence is manifestly inadequate and where no specific error is asserted, the appellant must show that the sentence was so far outside the parameters which would be appropriate, having regard to all relevant factors, that the level of the sentence in itself demonstrates error in the sentencing process.  It is not for this Court to interfere simply because it may take the view that the sentence imposed is not what this Court may have imposed.

1. In the present case the learned sentencing judge took into account relevant factors.  He recognised the need to protect young people from sexual exploitation and that the complainant had been saved by the plea the trauma of giving evidence.  There was no evidence of any impact on the complainant.  The respondent was still relatively young and had no prior history.  He was not what might be identified as a predator.  The sentence took into account the consequences of the offending for the respondent.

1. I am not satisfied in all the circumstances that the appellant has demonstrated error on the part of the learned sentencing judge and I would dismiss the appeal.