E v State of Tasmania
[2008] TASSC 72
•20 November 2008
[2008] TASSC 72
CITATION: E v State of Tasmania [2008] TASSC 72
PARTIES: E
v
TASMANIA (STATE OF)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 540/2008
DELIVERED ON: 20 November 2008
DELIVERED AT: Hobart
HEARING DATE: 16 September 2008
JUDGMENT OF: Crawford CJ, Tennent and Porter JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Miscellaneous matters – Hardship – Advanced age of offender.
Aust Dig Criminal Law [847]
REPRESENTATION:
Counsel:
Appellant: G Stevens
Respondent: M A Stoddart
Solicitors:
Appellant: E R Henry Wherrett & Benjamin
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 72
Number of paragraphs: 27
Serial No 72/2008
File No 540/2008
E v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
TENNENT J
PORTER J
20 November 2008
Order of the Court
Appeal dismissed.
Serial No 72/2008
File No 540/2008
E v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
20 November 2008
A jury found the appellant guilty of three counts of indecent assault and six counts of maintaining a sexual relationship with a young person under the age of 17 years. He was sentenced to 5½ years' imprisonment and it was ordered that he not be eligible for parole until he had served four years of the imprisonment.
He appealed on the sole ground that the non-parole period was manifestly excessive. There is no contention about the factual circumstances of the offences or of the offender.
At the time of sentencing, he was 83 years old with no record. However, his crimes extended from 1957 until 2002, a span of 45 years. His victims were eight boys. I have drawn the details of the crimes from the sentencing comments of the learned judge.
The first crime was an indecent assault in 1957, when the appellant was 32 years old. He followed an 11 year old boy into change rooms at a swimming pool, approached him when he had taken his bathers off, and masturbated the boy's penis for about 10 seconds. It was the most minor of his crimes.
Two charges of indecent assault related to his second victim, a boy who lived in the same street in the early 1970s. When the boy was 9 years old, the appellant sat next to him, fondled his genitals through his trousers, pulled the boy's trousers and underpants down and played with his exposed genitals. There is no clear evidence as to when the second incident with that boy occurred, but he was certainly no more than 11 years old at the time. When the boy visited his home, the appellant stripped him of his clothes, laid him on a bed, and after lubricating his finger, he inserted it in the boy's anus. They were not the only indecent assaults committed by him on the boy. A victim impact statement revealed that as a result of the crimes, the boy ceased to be outgoing and became defensive, withdrawn, unmotivated and temperamental. He left school early. He does not have close friendships with males. He avoids the city where he lived as a child and activities associated with the appellant. He considers his relationship with his mother to have been damaged as a result of his parents not protecting him from the appellant. He regards himself as having paranoia about males associating with his sons. He is now in his mid-40s.
The six counts of maintaining a sexual relationship with a young person under the age of 17 years, related to six boys. The verdicts meant that the appellant committed unlawful sexual acts in respect of each victim on at least three particular occasions. The learned judge concluded that the jury must have been satisfied beyond reasonable doubt of the truth of the victims' evidence generally. Each of them gave evidence describing unlawful sexual acts on more than three identifiable occasions. His Honour made precise findings of particular occasions, but made the point that most of the victims gave evidence, not only of acts on identifiable occasions, but also of a course of sexual abuse.
In the early 1970s, when the third victim was 11 years old, the appellant took him sailing on his yacht. There were four identifiable occasions. The first occurred when the appellant indecently assaulted him by touching and fiddling with his genitals, with his hand outside the boy's trousers. A few weeks later, the appellant masturbated the boy for the first time, touching his exposed penis with his hand. The third occasion involved an act of anal intercourse, when the appellant inserted his penis into the boy's anus, using a lubricant. The fourth occasion occurred when there was sexual activity that included the appellant placing his penis between the boy's legs. The overall sexual relationship with the boy continued for one or two years. The four identifiable occasions were not the only ones. The victim is now in his mid-40s. In his victim impact statement he said that he attributes as resulting from the sexual abuse anal pain at the time, continuing neuralgic pain to the rectum, a lack of trust in authority figures, depression, anxiety, panic attacks, shame, guilt, problems with his family and parents, and distrust. He has had psychiatric treatment.
The fourth victim lived near the appellant and started going out on his boat in the mid-1970s. He described sexual acts on four identifiable occasions. The first was when the appellant touched his genitals outside his clothing. He described similar events taking place at the appellant's home. He gave evidence of activities on the boat, including the fondling of his exposed penis, masturbation of it, and the appellant rubbing Vaseline onto his penis. There was also one occasion on which the appellant attempted to have anal sex with him. His evidence was that he believed the appellant achieved penetration, that he complained that it was hurting and that the appellant stopped and ejaculated onto a cushion. However, the learned judge was not satisfied beyond reasonable doubt that there was penetration. The final identifiable occasion occurred when the appellant entered the boy's bedroom to say goodnight to him, placed one hand under the bedclothes and touched his genitals. The four identifiable occasions were not the only ones. The boy was aged about 9 years old when they finished. He is now in his late 30s. In his victim impact statement he revealed that the appellant's activities had continuing emotional consequences for him. In particular, he said that not a day passed without memories of the appellant's acts entering his thoughts at random, typically as a result of things stimulating memories of what he did.
The fifth victim was a boy who went out on the appellant's boat in the early 1980s. He was 9 years old when the appellant first sexually assaulted him. When he spent a night on the boat for the first time, the appellant fondled his penis and masturbated him for about an hour. When the boy was no more than 11 years old, he spent a week alone on the boat with the appellant, who had sexual intercourse with him once, proceeding to ejaculation. He also sucked and fondled the boy's penis every night of that week. The final sexual act involved the appellant inserting his finger into the boy's anus on the final morning. There was much other sexual activity with the boy during that week, but no other particular occasions were identified in the evidence. His victim impact statement revealed a range of continuing emotional problems, particularly involving the distrust of others. He had abused drugs and alcohol. He had professional counselling, without success.
The sixth victim was a boy who went out on the appellant's boat in the mid-1980s. He described unlawful sexual acts on four identifiable occasions. On each of them, the appellant inserted his hand into the boy's clothing and fondled his genitals. Those acts and other similar acts occurred over a period of about three years when the boy was attending high school. According to his victim impact statement, the sexual abuse interfered with his self-confidence and his relationships with his parents and with girls.
The seventh victim was the appellant's grandson. He gave evidence of unlawful sexual acts on five identifiable occasions during his high school years, 1988 – 1991. On the first occasion, when the boy was 13 or 14, the appellant masturbated him. There were two occasions when the appellant inserted wooden objects into his rectum, an occasion when the appellant undid his jeans and masturbated him, and an occasion when the appellant undressed him, masturbated him, and unsuccessfully attempted to insert his penis into the boy's anus. They were not the only occasions. The victim now suffers from a range of psychiatric problems, and is having continuing treatment from psychiatrists and psychologists.
The appellant's sexual abuse of the eighth victim began in the late 1990s. The victim gave evidence of unlawful sexual acts on seven identifiable occasions. When he was about 8 years old, the appellant groped his penis outside his clothing. When he was about 9 years old, the appellant stroked his penis for five or ten minutes after taking off his trousers. The appellant also sucked his penis on occasions. After one such act, they engaged in mutual masturbation. On another occasion, the appellant tied string around the boy's penis and then masturbated him. On another occasion, the appellant caused slight damage to the boy's penis by pulling the foreskin back too far. A doctor treated the boy for a mild rash after that incident. He was 9 years old at the time. On another occasion, when the boy was about 11 years old, the appellant attempted to have anal intercourse with him, but was unable to achieve penetration. However, the appellant then got onto his hands and knees and got the boy to have anal sex with him. That was the only occasion when penetration was attempted or achieved by any of his victims. The appellant partly undressed him and played with his penis on that occasion. The identifiable occasions were not the only ones. The sexual relationship with the boy extended over about four years. His victim impact statement revealed a number of serious psychological symptoms, including intrusive recollections, poor concentration, low academic performance, depression, lack of motivation, lack of self-confidence, distrust of others, difficulties with close relationships, and anger. He has attempted suicide once. His problems have had adverse impacts on members of his family.
The learned judge summarised the offending behaviour as follows. Apart from the minor indecent assault in 1957, the unlawful sexual acts were committed against seven victims, all boys with whom he had lengthy sexual relationships in their pre-pubescent years. His sexual exploitation of those seven victims extended over some thirty years of his life. He had anal sex with three of them, penetrating two of them and getting one of them to penetrate him. He attempted anal sex with two more of them. The parents of all seven boys trusted him to be alone with their sons. He presented as an avuncular gentleman, fostering the boys' interests in boating, and in some cases, woodwork. The crimes involved very serious breaches of trust. All of the victims suffered emotionally, some of them terribly, for many years.
The appellant served in the army during World War II, but did not see active service. He had a respectable career in the public service. He is in reasonable health for a man of his age, but a number of his past and present medical problems require continued monitoring. He has macular degeneration. The prognosis for his central vision remains guarded. He had surgery for bladder cancer, apparently successfully, and is not yet at the stage where cystoscopies should cease. He had surgery for prostate cancer, and needs yearly checks in relation to that. There is about a 30 per cent chance of a recurrence or progression of each of those cancers. He had surgical treatment following a heart attack, but has had no heart-related problems since. However, there is some risk of further heart trouble. There is no suggestion that his life expectancy is lower than the average for a man who is 83 years old. The average life expectancy for a man of that age is about six years.
The appellant has shown very little remorse in relation to any of the crimes. In May 2007, he made limited admissions to two detectives in relation to some of his conduct with three of the victims. He said he regretted what had happened. He seemed seriously concerned about the impact that the trial might have on the eighth victim. The learned judge was told that he had enrolled in the sex offender treatment program at Risdon Prison. Although he might be impotent, the evidence suggested that he might still be interested in sexual activities with boys.
The learned judge said that if it was not so near to the end of the appellant's life, he would sentence him to seven years' imprisonment, with a non-parole period of 4½ years. His Honour considered that the appellant should be supervised by a parole officer once released. Because the appellant was near the end of his life, the learned judge said he would reduce the head sentence significantly, but could see no reason to reduce the non-parole period proportionately. An order was made under the Community Protection (Offender Reporting) Act 2005, that the appellant's name be placed on the register under that Act and that he comply with the reporting obligations for life.
Much was made by the appellant's counsel of the decisions of the learned judge to reduce the sentence of imprisonment from seven years to 5½ years because of the appellant's advanced years, but only to reduce the period of parole ineligibility from 4½ years to four years. Counsel pointed out that as a consequence, the period of ineligibility increased from 64.3 per cent to 72.7 per cent of the sentence of imprisonment and that a parole ineligibility of 64.3 per cent of 5½ years would be just over 3½ years. It was submitted that by failing to reduce the period of parole ineligibility by the same proportion as the sentence of imprisonment was reduced on account of age, error occurred.
Those decisions are explainable upon the following basis. If all of a sentence of seven years' imprisonment was to be served by the appellant, it would be due to expire a year after the end of his life expectancy. By reducing the sentence to 5½ years, its expiration is due to take place within the life expectancy. Both of the two periods of parole ineligibility, the one first mooted and the other as ordered, will end well within the life expectancy.
It was submitted for the appellant that the shortest possible period of parole ineligibility should have been imposed, that is to say one of two years, nine months.
The parole provisions of the Sentencing Act 1997 give no prima facie right to parole eligibility. Under s17(2), a court may order that the offender is not eligible for parole in respect of the sentence, or that the offender is not eligible for parole in respect of it before the expiration of such period as is specified in the order. By s17(3), that period is not to be less than one-half of the period of the sentence.
By s17(4), in exercising its discretion under subs(2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of that, may have regard to all or any of the nature and circumstances of the offence, the offender's antecedents or character, and any other sentence to which the offender is subject.
Counsel accepted that the intention of the legislature with regard to the fixing of minimum terms is to provide for mitigation of the punishment of a prisoner in favour of his or her rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he or she must serve having regard to all the circumstances of the offence. Power v R (1974) 131 CLR 623 at 629; Deakin (1984) 11 A Crim R 88 at 89.
The only question raised by the ground of appeal is whether the non-parole period of four years was manifestly excessive. I am in no doubt that it was not and that it was justified by the circumstances of the crimes, after making due allowance for the appellant's age. Advanced age does not justify the imposition of an unacceptably inappropriate sentence. Bazley (1993) 65 A Crim R 154 at 158. It may be significant to, but is not determinative of, the length of a period of imprisonment. DPP v Che Kien (2000) 116 A Crim R 339 at par17; S v Tasmania (2007) 16 Tas R 292 at par15. The offending behaviour of the appellant was grave because of the period of time over which it extended, the number of victims, the nature of his offending conduct and the suffering and psychological harm he caused almost all of the boys. The crimes were abhorrent and disgusting and particularly having regard to the acts of penetration, demanded a heavy sentence. In addition, his serious breaches of the trust the parents of the boys had in him called for such a sentence. His duty was to protect those who were in his care and he breached that duty in appalling ways.
A sentence of seven years' imprisonment with a non-parole period of four years would not have been a manifestly excessive sentence in all the circumstances, including the appellant's age and expectation of life. The learned judge was justified in thinking that four years' imprisonment was the minimum time justice required that he must serve.
The appeal should be dismissed.
File No 540/2008
E v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
20 November 2008
I have had the benefit of reading the reasons of Crawford CJ. I agree with those reasons and would also dismiss the appeal.
File No 540/2008
E v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
20 November 2008
I agree with the reasons of Crawford CJ and would dismiss the appeal.
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