Director of Public Prosecutions v Gumbleton

[2009] NSWLC 8

Local Court of New South Wales

CITATION:	DPP v Gumbleton [2009] NSWLC 8
JURISDICTION:	Criminal
PARTIES:	Director of Public Prosecutions James ALfred GUMBLETON
FILE NUMBER:	H36534882
PLACE OF HEARING:	Wagga Wagga Local Court
DATE OF DECISION:	04/23/2009
MAGISTRATE:	Magistrate Dare
CATCHWORDS:	Aggravated Indecent Assault – sports coach - breach of trust – objective seriousness – elderly offender – whether sentence of imprisonment warranted – whether sentence full-time or suspended – hardship to third party – whether good character “of assistance” in commission of offence – APVO – only prohibitions and restrictions necessary to protect PINOP
LEGISLATION CITED:	Crimes Act, 1900.S. 61M (1) and (2)Crimes (Sentencing Procedure) Act, 1999.S. 21A (2); S. 21A (5A), (5B), (6).Crimes (Domestic & Personal Violence) Act, 2007.S. 4; S. 10; S. 20 (3)
CASES CITED:	Regina v AEL (2005) NSWCCA 148 Regina v Byrne (1998) 104 A Crim R 456 Regina v Edwards (1996) 90 A Crim 510 Regina v Hopley [2008] NSWCCA 105 Regina v King (2004) 150 A Crim R 409 Regina v King (Unrep) NSWCCA 20/8/1991 Regina v Lumsden (Unrep) NSWCCA 31/7/1996 Regina v MA (2004) 145 A Crim R 434 Regina v Muldoon (Unrep) NSWCCA 13/12/1990 Regina v Wirth (1976) 145 SASR 219 Ryan v The Queen (2001) 206 CLR 267
TEXTS CITED:
REPRESENTATION:	Mr J. Hall, Solicitor for the DPP (NSW) Mr C. Haezlewood of Counsel i/b Walsh & Blair, Solicitors.
ORDERS:

REMARKS ON SENTENCE

The Offender, James Alfred Gumbleton, (born 4th May, 1934) stands for sentence having been found guilty of 2 counts contrary to Section 61M (1) and (2) of the Crimes Act, 1900. The evidence in the case concluded on 22nd January, 2009, and the matters adjourned part-heard to 3rd April, 2009, for final submissions, summing-up and verdicts. I earlier recorded my thanks to the parties for their helpful submissions and, in particular, to Mr Haezlewood of Counsel, for his additional written material. I returned verdicts of guilty in respect of each of the two charges.

I have already made a non-publication order as to any material that may serve to identify the Complainant. Further, I shall refer to her in these Remarks as AR.

The Charges

Section 61M of the Crimes Act, 1900, provides, relevantly, as follows –

(1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (my emphasis)

(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. (my emphasis)

(3) In this section, “ circumstances of aggravation ” means circumstances in which:
(a) -
(b) -
(c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(d) -
(e) -

Under Section 61M(2) the fact that the child is under the authority of a person who indecently assaults her is not an element of the offence. It is, however, a matter to be taken into account under Section 21A(2) of the Crimes (Sentencing Procedure) Act which includes the following:

S. 21A Aggravating, mitigating and other factors in sentencing

(2) Aggravating factors

(k) the offender abused a position of trust or authority in relation to the victim."

This brings into operation the provisions of Section 21A (5) -

(5A) Special rules for child sexual offences .

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.

(6) In this section:
“ child sexual offence ” means:

(a) an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years,

Salient Facts

The first charge in time, between 1st January, 2007 and 18th May, 2007, is contrary to sub-section (2) with the complainant, AR, being under the age of 16 years, namely, 15 years. The second charge in time, between 1st January, 2008 and 1st June, 2008 is contrary to sub-section (1) and (3) (c), namely, that AR was under the authority of the Offender.

I do not propose to rehearse in detail the full evidence in the hearing. What follows is a sufficient summary for sentencing purposes. The Complainant, AR, was a representative hockey player who went to the Offender for athletics training to enhance her hockey performance. The Offender, a runner of some prominence in his younger days, had established a reputation as an athletic coach over many years. The Complainant developed what is known as shin splints – a painful inflammation at the front of the lower leg. It has a number of causes and the Complainant thought it might be due to her wearing running spikes. One method of treatment is that of massage. The Offender had no formal qualification to treat shin splints but had acquired, it seems, a rudimentary skill over many years to massage shin splints to alleviate pain and symptoms.

The Complainant told the Offender she was suffering from shin splints. He advised massage. Arrangements were made for AR’s parents to attend and see what it was the Offender proposed to do. He demonstrated for their benefit a massaging technique below the knee area. Thereafter, the Offender regularly massaged the Complainant’s shin area. On each of the occasions outlined in the charges, however, the Offender commenced to massage above the knee, onto the thigh and then inner thigh area. On each occasion one or more of his fingers went under the Complainant’s running shorts and underwear and rubbed the lips of her vagina in a circular motion.

He asked her if he was going a bit high. On the first occasion she said that at first she felt awkward and said it was O.K. Then, she said, he asked her again and she told him it was a bit high. He moved his hand back and said he wouldn’t do it again. She said she felt shy and uncomfortable and thought he was doing it to help with her shin splints.

On the second occasion the Offender did much the same thing – he had his fingers underneath her shorts and asked once again if he was going too high. She told him that he was and he moved his hand. She said she believed he was massaging her in this upper area for treatment purposes and he said it would loosen the muscles.

I accept that AR both believed and trusted the Offender.

Matters of General Principle

Breach of Trust

It is an obvious aggravating feature if the Offender was in a position of trust and violated that trust by sexually assaulting the young person: see Regina v Muldoon (Unrep) NSWCCA 13/12/1990. This extends to those in the position of coaches. Relevantly, for present purposes, in Regina v King (Unrep) NSWCCA 20/8/1991, the respondent to the appeal was a leader in a Little Athletics organisation. In Regina v Lumsden (Unrep) NSWCCA 31/7/1996, the applicant was the victim’s swimming coach. The Court found that the sentencing judge was not in error in finding that the breach of trust arising from a coach and pupil relationship aggravated the circumstances of the child sexual assault offences.

Assessment of Criminality

There were two incidents. The objective seriousness of the offences cannot be doubted. The conduct complained of consisted of placing his finger or fingers underneath the Complainant’s running shorts and underwear and rubbing the lips of her vaginal area in a circular motion. Clearly, there was no penetration. The Offender desisted when told he was going too high. Accepting, as I did, the evidence of the Complainant, I had no hesitation in finding the conduct to be deliberate on the part of the Offender and indecent and contrary to the standards of respectable people in the community.

In Regina v AEL (2005) NSWCCA 148 (Barr J., Grove and Latham JJ in agreement) the attention of the Court was referred to a number of cases demonstrating that the offence of indecent assault generally or in its aggravated form did not necessarily require the imposition of a custodial sentence. However, his Honour found (at [14]) each case had to be assessed upon its own facts and in the case then under appeal the primary judge, having done so, correctly concluded that a custodial penalty was appropriate.

I assess the criminality at the middle-to-lower end of the scale of offending for offences of this type. Even so, a custodial penalty cannot be ruled out and I will return to that later in these Remarks. And this is so even though the Offender is aged 74 years.

Pre-Sentence Report

As at 3rd April, 2009, I was unaware (and correctly so) that the Offender had been found guilty by visiting Magistrate Lyon on 6th March, 2009, of similar offences concerning another young person. Indeed, I was at Albury Local Court during that particular week. The Offender has yet to be sentenced for those matters for which a Pre-Sentence Report was ordered by his Honour. It was agreed by Mr Reynolds that it was not necessary for me to order yet another Report. To that end I have read the Pre-Sentence of Mr Michael McGowan of the Wagga Wagga District Office dated 8th April, 2009, relating to offences concerning a quite different and un-connected complainant. I think it fair to accept that the Offender’s attitudes and opinions as expressed to Mr McGowan would be similar if not identical to the complainant, AR.

The Offender denies at any time massaging the complainant above the knees. He was adamant that he only performed the massage with the parent’s permission to alleviate shin splint pain. The Offender went on to claim he thought that the allegations were motivated by an attempt to gain money. He refuted any suggestion that he exercised any authority over the complainant as her coach. He argued that because he did not charge for his services, meant he did not have authority or power over the victim. (I interpolate here that I have already dismissed any such assertion in my Judgment on 3rd April, 2004, and I do not propose to rehearse those reasons – save to say that I regard that assertion as disingenuous.) The author of the Report further said it appeared the Offender saw himself as the victim in this matter. He appeared to treat the complainant’s allegations of sexual assault as mischievous and far from the truth.

The Offender has been assessed as unsuitable for Community Service due to the nature of the offences and an inability to travel to Sydney due to caring for his wife. He is ineligible for Periodic Detention.

The Offender always had the right to plead not guilty to the charges and require the prosecution to prove his guilt beyond reasonable doubt. He maintains his stance that he is not guilty. He cannot be criticised for that and I do not do so. All this means is that I cannot consider remorse or contrition as factors in the sentencing exercise.

Criminal History and Good Character of the Offender

The Offender has no criminal history. I have carefully read the many testimonials tendered on behalf of the Offender written by people who have known him well and favourably over many years. I note the utter disbelief of some of the authors that a person so well known to them could have been found guilty of such allegations. Included are references to his loyalty and unswerving enthusiasm to those he coached. He has earned both accolades and appreciation from the community.

The common law as to prior good character is clear. It is of less significance in cases involving sexual misconduct towards the young than otherwise would be the case: see Regina v AEL (2005) NSWCCA 148.

Ryan v The Queen (2001) 206 CLR 267 is authority for the proposition that an offender’s otherwise unblemished past is still deserving of some measure of leniency. It can be readily accepted the Offender devoted much time and effort to the cause of junior and senior athletics over many years and without financial charge.

However, since the decision in Ryan, the New South Wales Legislature enacted Section 21A (5A) and (5B) which specifically provides that in child sexual offences, a Court is not to take good character or lack of previous convictions into account as a mitigating factor if the Court is satisfied that the factor concerned was of assistance to the Offender in the commission of the offence.

The evidence of AR’s father (whom I found to be a thoughtful and responsible parent) was that the Complainant played hockey and started sprint training. He thought an athletics coach would improve her other sporting endeavours. He was aware of Little Athletics and upon hearing of the Offender’s reputation, she was put into his squad. He permitted the Offender to massage his daughter’s legs.

There is no doubting the Offender’s good reputation preceded him. He was well and respectably known and regarded and the Offender was entitled to rely upon this. So were others in seeking his services. It is difficult not to be satisfied that good character was “of assistance” to the Offender in that, without his character and reputation, it is unlikely AR would have been put in his charge.

This is not to suggest for one moment that he used his reputation and character to lure or inveigle people to his squad so as to prey upon one or other for his own purposes. The Section simply requires the Court to be satisfied that good character was of assistance in the commission of the offence.

This was not, for example, a chance or casual encounter between strangers where the Offender, coincidentally, just happened to be of prior good character and that, perhaps, is where a distinction can be drawn. It may seem harsh, but the Parliament’s intention is crystal clear. If character and repute was “of assistance” in the commission of the offence – that character cannot be relied upon. I am satisfied that good character was of assistance to the Offender in the commission of the offence and, as a consequence, I must not take that character into account as a mitigating feature.

Hardship to Family.

It has been submitted that any sentence involving full-time custody would cause undue hardship to the Offender’s wife. There is no doubt she is in a parlous state of health and relies upon the Offender for most of her daily needs. Indeed, it has been submitted that without his full-time care, the wife would need to be placed in a nursing home or similar residence. Often, a sentencing Court will hear about the hardships that will be visited upon the Offender’s family, particularly in respect of a possible sentence of imprisonment. This is a mitigating feature that is generally of very little significance. Dunford J., reviewed the principles and authorities in his judgment in Regina v Byrne (1998) 104 A Crim R 456 @ 463 –

“The general rule is that hardship to members of an offender’s family is generally irrelevant and can only be taken into account in mitigation of sentence in highly exceptional circumstances. The care of young children is not normally an exceptional circumstance.

In Regina v Edwards (1996) 90 A Crim 510 @ 516 Gleeson CJ., said:


“The real difficulty about a case such as the present and many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional; regrettably, causing hardship to third parties by the imprisonment of the offender is only too common. …

Justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional. See the remarks of Wells J., in Regina v Wirth (1976) 145 SASR 219 @ 295-6. ”

More recently, the authorities relating to hardship to an Offender’s family were reviewed by the Court of Criminal Appeal in Regina v Hopley [2008] NSWCCA 105 @ [39]-[41]. At [39] Johnson J., (Beazley JA and McCallum agreeing) said:

“The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards @ 516; R v Day @ 277; R v Gip; R v Ly @ 179. ”

In support of the submission is a detailed letter dated 22nd March, 2009, from her treating doctor, Doctor Richard Baguley. Doctor Baguley says, inter alia, that Mrs Gumbleton has had multiple illnesses in her life, including a partial thyroidectomy, sinus surgery, a left lower lobe of her lung removed, bladder surgery and innumerable procedures for her lungs. She suffers from chronic airways disease arising out of bronchiectasis. Further, she has osteoporosis, hypertension and high cholesterol.

Doctor Baguley says the Offender has given his wife daily assistance for over 53 years and it is due to his devotion and to his credit she is still alive. Her condition will never stabilise. Chronic airways disease is inexorably progressive and each bout of infection causes more damage, and predisposes to more damage.

Of particular relevance is the opinion of Doctor Baguley that if the Offender is incarcerated, her condition will deteriorate rapidly. He says it is not possible for her to afford the costs of daily or twice daily physiotherapy in the community let alone the effort required of her to get to such treatment. He says it would likely end their marriage due to her early decease. He says she would not currently be eligible for hostel or nursing home care, and even there it is very unlikely she would obtain the high level of care her husband has provided to date. It is more likely, he says, that she would suffer one or more infective exacerbations of her illness and death is by far the more likely outcome.

I have also read the poignant letter from the Offender’s wife, but with particular reference to the daily care he provides to her in all aspects of her life.

In the result, I have come to the view that this is one of those, “ …truly, wholly or highly exceptional,” cases as referred to in the judgment of Johnson J., in Regina v Hopley [2008] NSWCCA 105 @ [39]-[41]. I am going to impose custodial sentences because I believe nothing less is called for. I will, however, suspend the sentences pursuant to Section 12 of the Crimes (Sentencing Procedure) Act, 1999. I record, however, that the objective seriousness of these matters is such that I would have imposed full-time custodial sentences were it not for the extreme hardship such sentences would have visited upon the Offender’s wife of 53 years.

Apprehended Violence Complaint.

I turn now to the question of an Apprehended Violence Order. A conviction for an offence contrary to Section 61M of the Crimes Act, 1900, is a “personal violence offence” as defined in Section 4 of the Crimes (Domestic & Personal Violence) Act, 2007 the object of which Act is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship: Section 10.

Interim Orders are currently in place in terms of the Standard Orders plus Additional Orders 4 and 7. Order 4 provides that the Defendant must not go within 50 metres of the premises at which the protected person may from time to time reside or work, or “Jubilee Park”, Wagga Wagga. Jubilee Park is a large sporting complex catering for a variety of sporting codes including athletics.

It was the locus for the offences involving AR. It was also the place where the Offender conducted his coaching groups and had done so for many years. Section 20 (3) of the Crimes (D & PV) Act 2007 says that when making an apprehended personal violence order, the Court is to ensure that the order only imposes prohibitions and restrictions on the Defendant that, in the opinion of the Court, are necessary for the safety and protection of the protected person. I am of the opinion that it is necessary to continue Order 4.

I make Final Orders in terms of Mandatory Order 1, and Additional Orders 4 and 7 for a period of 12 months from to-day.

Sentence.

I have considered Section 3A of the Crimes (Sentencing Procedure) Act, 1999 – See Regina v MA (2004) 145 A Crim R 434; Regina v King (2004) 150 A Crim R 409 per McColl JA at [130]. I have also considered Section 5 of the Act and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I am, however, of the view that the sentences can be suspended: R –v- Zamagias [2002] NSWCCA 17 at [25]-26] per Howie J. affirmed in Regina v Barlow [2008] NSWCCA 96.

The Offender is convicted. On each Sequence, in accordance with Section 44, the Offender is sentenced to a term of imprisonment consisting of 12 months. Those sentences are wholly suspended and the Offender is to be released from custody on condition that he enters into bonds to be of good behaviour under Section 12 of the Crimes (Sentencing Procedure) Act, 1999, for a period of 12 months, being the total term.

The conditions are that the Offender is to (1) be of good behaviour and appear before the Court if called upon to do so at any time during the currency of the bond; (2) inform the Registrar of this Court of any change of residential address during the currency of the Bond.

Mr Gumbleton, there are some things I am required by law to say to you: If you fail to comply with any of the conditions of these Bonds or commit any offence during the period of the Bonds, particularly an offence/s of a similar nature, you will be brought back before the Court which, depending upon circumstances, has the power to revoke the Bonds and commit you to prison on a full-time basis or by way of Periodic Detention for a period which the Court will then specify.

You will now go to the Court Registry Office where the obligations under the Bond will be further explained to you so that you are left in no doubt. You will sign and be given a copy of the Bonds you have entered before me.

I request that a copy of my Remarks on Sentence be forwarded to Magistrate Lyon.

Peter S. Dare SC

Magistrate.