DPP v David
[2003] VSCA 202
•27 November 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 276 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| POUL DAVID |
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JUDGES: | CHARLES, BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 November 2003 | |
DATE OF JUDGMENT: | 27 November 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 202 | |
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Criminal law – Director’s appeal against sentence – indecent act with a child under 16 years of age – sentence four months' imprisonment wholly suspended – whether sentence manifestly inadequate – head sentence and suspension of sentence manifestly inadequate – defendant sentenced to twelve months' imprisonment suspended as to eight months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr A.D. Trood | Victoria Legal Aid |
CHARLES, J.A.:
I will ask Chernov, J.A. to give the first judgment.
CHERNOV, J.A.:
On 23 June 2003 the respondent, Poul David, who is now aged 42, pleaded guilty in the County Court of Victoria sitting at Melbourne to a presentment charging him with one count of committing an indecent act with a child under the age of 16 years. The respondent had no prior convictions. Following a plea in mitigation made on his behalf on 23 June and 1 August 2003, the respondent was sentenced, on 29 August 2003, to four months' imprisonment which was wholly suspended for a period of 12 months. The Director now appeals against the sentence pursuant to s.567A of the Crimes Act 1958 on the ground that the period of imprisonment fixed, and the order that such period be wholly suspended, produced a sentence that is manifestly inadequate.
The circumstances in which the offending occurred are as follows. On a day between January 2000 and 11 July 2001 the respondent went to the local primary school to collect his ten-year-old twin daughters as well as the complainant, his niece, who was seven years old. Not long after they arrived at his flat, the respondent ran a bath for his daughters to allow them to cool down. The complainant had asked to join her cousins, but the respondent did not permit her to do so, saying that her mother would disapprove. Instead, he told her that she could watch television. He then shut the bathroom door and went to the complainant, who was watching television, moved her so that she was standing in front of him, pulled down her pants and underwear and touched her on her vagina and anal region. Moments later, the complainant entered the bathroom in a distressed and tearful state and, although she did not tell her cousins what had occurred, she said that she wanted to go home.
The circumstances in which the complaint was made to the police are not clear, but the respondent was interviewed by the police in January 2002, during the course of which he denied any wrongdoing. He was not charged at the time and soon thereafter left for Turkey. It appears that it was not until July 2002 that a charge was laid in respect of the above incident which alleged the following offences: sexual penetration of a child under ten years, rape, and indecent act with a child under 16 years. Thus, when he returned from Turkey in September 2002, he was arrested at the airport and was remanded for 20 days before being released on bail on the condition, inter alia, that he have no contact with his daughters, who were then potential Crown witnesses. Moreover, not long after the respondent was charged, the children’s mother obtained (but apparently did not “take out”) an intervention order against him which effectively prohibited him from having access to them. In the circumstances, the respondent has not seen his daughters since early 2002 and, given that he has pleaded guilty to the offence in question, it can be assumed that he will encounter some difficulties in resuming access to them at least in the immediate future.
At the committal hearings, penetration was not established and, therefore, the respondent was presented on the sole count which is the subject of the proceeding to which, as I have said, he pleaded guilty.
The respondent’s background and the context in which he came to have charge of the children were as follows. The respondent was born in Turkey on 25 October 1961 and, at the time of the offending, was 38 or 39 years of age. He completed eleven years of school after which he went to work in a restaurant. Later, after he finished compulsory military training, he assisted his father in the various businesses he operated, including a café, bakery, milk bar and a wholesale business. In 1983 he married a woman who was born in Turkey but who had lived in Australia since 1974. Not long thereafter, the couple came to Australia where he worked hard to provide for his family, often 12 hours per day, first as a metal finisher and then as a private taxi driver. By 1994 he acquired his own vehicle and licence which cost $150,000 – a sum he borrowed and has since repaid. In 1990 the respondent and his wife had twin girls and it seems that he became quite involved in family life and the Turkish community in Melbourne, principally through his wife’s family which has been in Australia for a considerably longer period than the respondent. In 1996, however, the respondent separated from his wife. The separation was amicable – he gave her $20,000 in cash, transferred his right in the taxi licence to her and effectively gave her the house in which they had been living. Upon being charged the respondent had his taxi driver’s licence suspended. In 1998 the respondent and his wife were divorced. He moved interstate after the separation, but before long he returned to Melbourne and, while he did not cohabit with his wife, he resumed a relationship with her until he left for Turkey during 2001. Throughout the period of their relationship the respondent frequently looked after the children in order to assist their mother. Thus, it was not uncommon for him to collect his daughters from school (while she worked as an interpreter) and take them home to change for their karate classes or to take them out to a restaurant for an early meal before driving them to their home. Often the complainant would accompany them. It was in that context that the respondent had charge of the three young girls on the occasion in question.
At the request of the learned sentencing judge the victim was assessed by a psychiatrist at the Gatehouse Centre at the Royal Children’s Hospital and a report, dated 30 July 2003, was before her Honour during the hearing of the plea in mitigation. The report dealt with the psychological impact on the complainant of the respondent’s alleged conduct towards her. However, the conduct outlined in the report was not limited to the act charged; it included other, uncharged, acts during a period of 18 months immediately preceding the assault that is in question. Obviously, those acts could have no bearing on the sentence imposed on the respondent and it is clear that her Honour did not take them into account for that purpose. Apparently the victim received some counselling from a psychologist at the Centre, but such treatment was terminated, it seems, when her grandmother was no longer able to bring her to the sessions.
The learned sentencing judge also had before her a victim impact statement, completed by the victim’s mother, with an appended page obviously copied by the victim from a draft. Nearly all, or at least most, of the statement was inadmissible (and was, in any event, unhelpful), as was recognised by the prosecutor. In general terms, however, the statement seemed to indicate that the respondent’s offending conduct had a detrimental psychological impact on the complainant. According to her mother, the complainant had, as a result of the incident, suffered from a range of personal problems, including a fear of the dark and of sudden, loud noises at night as well as bed wetting and insomnia.
The respondent’s counsel tendered, at the hearing of the plea in mitigation, a report dated 12 June 2003 of Bernard Healey, a clinical psychologist, who interviewed and tested the respondent in respect of his intellectual and psychological attributes. He concluded that the respondent did not have a perverse interest in children. At the request of the learned sentencing judge the respondent was also examined by a forensic psychiatrist, Dr Mark Ryan, from the Victorian Institute of Forensic Mental Health, Forensicare. As was the case with Mr Healey, the report of Dr Ryan, dated 22 July 2003, noted that the respondent was adamant that he did not commit the offence and said that “the charges were manufactured in order to punish him for his marriage breakdown” and that his “ex-wife and sister-in-law were conspiring” against him. He said that his main reason for pleading guilty was to ensure that his daughters did not give evidence in court which he perceived would jeopardise his relationship with them. Dr Ryan’s report adds very little to what was said by Mr Healey, although in terms of the respondent’s prospects of re-offending, the psychiatrist said that he had difficulty in drawing any definite conclusion, given the discrepancy between the respondent’s plea of guilty and the denial of his offending conduct.
Her Honour said in her sentencing remarks that sexual offences involving a young child are always treated with utmost seriousness by the courts and that the offence here called for the imposition of a custodial sentence. After noting the applicable mitigating factors the learned judge imposed the sentence that is under challenge. Her Honour considered that, notwithstanding that the sentence was suspended, it was a “serious response” which involved a custodial disposition.
It was submitted on behalf of the Director that the sentence is manifestly inadequate in that:
(a) it fails adequately –
(i) to reflect the gravity of the offence and the offending;
(ii) to take into account specific and general deterrence;
(iii)to take into account the breach of trust constituted by the respondent’s offending;
(b) gives undue weight to –
(i) the respondent’s plea of guilty;
(ii) the victim impact statement;
(iii) factors going to mitigation.
The principles applicable to the determination of Director’s appeals are well known[1] and need not be re-stated here. The essential question before us is whether the sentence is plainly outside the range of sentences open to her Honour in the exercise of a sound discretionary judgment.
[1]See, for example, R. v. Clarke [1996] 2 V.R. 520 at 522-523 per Charles, J.A. They have since been confirmed by the High Court in Lowndes v. The Queen (1999) 195 C.L.R. 665 and Dinsdale v. The Queen (2000) 202 C.L.R. 321. See also Director of Public Prosecutions v. Whiteside and Dieber (2000) 1 V.R. 331 at 335-336 per Winneke, P.
Her Honour had the difficult task of fixing a sentence which properly reflected the gravity of the offence and of the offending, taking into account matters personal to the respondent as well as other mitigating factors and also having regard to the applicable sentencing principles. There is no doubt that the offence in question is a very serious one given that 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 the young victim. The community, through Parliament, has prescribed a maximum penalty of 10 years' imprisonment for this offence. Similarly, the respondent’s offending conduct was serious in this case – it exhibited a degree of premeditation on his part given that he effectively isolated the victim from her cousins, obviously for the purpose of engaging in the offending. It was deliberate conduct which necessarily involved a gross breach of trust by the respondent who had been charged with the care of the complainant. Instead, he used his position of moral superiority to satisfy his sensual wishes to her material and, possibly, ongoing detriment. As I have indicated, the evidence before her Honour makes it apparent that the offending had a detrimental impact on the complainant although the long-term effect of it apparently cannot be assessed at this stage. It is true that the respondent pleaded guilty and is entitled by reason of that to a sentencing discount, but that discount is to be limited primarily to the utilitarian benefit flowing from the plea - from his willingness to facilitate the course of justice – since it cannot be said that he has demonstrated any significant remorse in light of his denial that it took place. In the circumstances, specific and general deterrence and denunciation of such premeditated breach of trust and abuse of the child are important, applicable sentencing principles.
Notwithstanding that the report from the Gatehouse Centre indicates, as I have said, that the respondent engaged in uncharged acts in relation to the complainant, the respondent must be sentenced on the basis that he has committed only the one offence and that up to that point he has been a person of good character with a sound work record. Moreover, there is no suggestion that the respondent is suffering from a psychological illness or that he has subsequently engaged in like conduct. It is also relevant to bear in mind, as I have said, that he is entitled to a sentencing discount for having pleaded guilty to the offence and that he will suffer hardship from being deprived of contact with his daughters.
It is trite that the question whether the sentence imposed by her Honour is manifestly inadequate does not admit of much argument. I regard the sentence in this case as wholly inadequate; it is plainly disproportionate to the gravity of the offence, both as to the head sentence and the period of suspension. In my view, after making full allowance for the applicable mitigating factors, it is not possible to equate this sentence with the seriousness of the offence which the respondent has committed. In particular, I consider that it cannot be sensibly said that a head sentence of four months' imprisonment in this case reflects the gravity of the offence and of the offending conduct. Although, by itself, her Honour’s order suspending the whole of the sentence does not mean that she did not give due consideration to the seriousness of the offence and whilst a suspended sentence ordinarily cannot be treated as “no punishment at all” as was explained by Bray, C.J. in Elliott v. Harris (No.2)[2] and by Batt and Buchanan, JJ.A. in Director of Public Prosecutions v. Buhagiar and Heathcote[3], I am of the view that in this case such an order was wholly inappropriate – or was not “desirable” for the purposes of s.27(1) of the Sentencing Act 1991.
[2](1976) 13 S.A.S.R. 516 at 527.
[3][1998] 4 V.R. 540 at 547.
Consequently, I would uphold the Director’s appeal and set aside the sentence. This means that this Court will have to re-sentence the respondent. This task must be undertaken bearing in mind the general principle that when on a Crown appeal this Court decides to re-sentence the offender, it should ordinarily give recognition to the element of double jeopardy involved (in twice standing for sentence), and thus impose a sentence that is somewhat less than it considers should have been imposed in the first place. Bearing in mind the offence and the circumstances of the offending and the applicable personal and other mitigating circumstances, as well as the relevant sentencing principles, I would re-sentence the respondent to a term of imprisonment of 12 months and suspend eight months of that term for a period of 12 months.
CHARLES, J.A.
I agree.
BUCHANAN, J.A.:
I also agree.
CHARLES, J.A.:
The orders of the Court are –
The Director’s appeal is allowed.
The sentence imposed on 29 August 2003 is set aside. In lieu thereof the respondent is convicted and sentenced to 12 months' imprisonment, eight months of which are suspended for a term of 12 months from today.
The Court declares that the period of 20 days be reckoned as the period of imprisonment already served under this sentence and directs that this declaration be noted in the records of the Court.
Mr David, I am required under the Sentencing Act to give you this warning. This sentence orders that you serve a sentence of imprisonment of twelve months, eight months of which are to be suspended for twelve months from today’s date, and you must therefore serve immediately four months in prison, less 20 days previously served. If within twelve months you commit another offence punishable by imprisonment you will, in the absence of exceptional circumstances, be taken back into custody and required to serve the remaining eight months. Do you understand that?
RESPONDENT:
Yes, sir.
MR TROOD:
I would seek a certificate.
CHARLES, J.A.:
Yes, that will be granted.
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