Fairwell v Moore
[2019] TASSC 44
•4 November 2019
COURT: SUPREME COURT OF TASMANIA
CITATION: Fairwell v Moore [2019] TASSC 44
PARTIES: FAIRWELL, Arthur
v
MOORE, Luke
FILE NO: LCA 2442/2019
DELIVERED ON: 4 November 2019
DELIVERED AT: Hobart
HEARING DATE: 22 and 29 October 2019
JUDGMENT OF: Wood J
CATCHWORDS:
Criminal Law – Sentence – Sentencing procedure – Material relevant for determining appropriate sentence – Pre-sentence reports – Contents disputed by applicant – Information adverse to applicant - No inquiry by magistrate and applicant not given opportunity to challenge – Miscarriage of sentencing discretion.
Sentencing Act 1997 (Tas), ss 81, 88.
Parker v Tasmania [2019] TASCCA 16; Kentwell v The Queen [2014] HCA 37, 252 CLR 601; R v Olbrich [1999] HCA 54, 199 CLR 270; House v The King (1936) 55 CLR 499, referred to.
Aust Dig Criminal Law [3313]
REPRESENTATION:
Counsel:
Applicant: K Baumeler
Respondent: J Hartnett
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASSC 44
Number of paragraphs: 29
Serial No 44/2019
File No LCA 2442/2019
ARTHUR FAIRWELL v SENIOR SERGEANT LUKE MOORE
REASONS FOR JUDGMENT WOOD J
4 November 2019
This is a motion to review a sentence imposed by Magistrate S Cure on 12 September 2019. The applicant, Arthur Fairwell was sentenced to 12 months' imprisonment, with an order that he was not to be eligible for parole until he had served six months of that term. The sentence was imposed in relation to three offences of Fail to comply with reporting obligations contrary to s 33 of the Community Protection (Offender Reporting) Act 2005. In essence, his conduct involved using two internet dating sites under a name other than his own name, "Ash" and "Ashley Kenmore", and utilising a particular email address when he had not reported the use of that address as required under the Act.
In August 2006, the applicant under the alias, Arash Fasad, was convicted of a number of serious sexual crimes committed in 2004, in the District Court of New South Wales and sentenced to concurrent terms of imprisonment amounting to eight years and ten months, with a non-parole period of four years and ten months. Later in 2009, he was found guilty of sexual crimes, evidently involving the same complainants for earlier offending in 2002-2003, and he received a further cumulative term. He has convictions for the commission of other sexual crimes.
For the 2006 convictions, an order was made that he be placed on the New South Wales, Sex Offenders Register for a period of 15 years until 29 August 2030. In 2017, following his move to Tasmania, he was placed on the Tasmanian Community Offender Protection Register. Under s 16(f) of the Act, as a reportable offender, he was required to report to the Registrar any changes to his personal details within 7 days of the change of those details, and under s 17(ic) of the Act, he was required to report his details including the details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used or intended to be used through the internet or other electronic communication service.
On 3 August 2018, he signed a notification of reporting obligations in which he provided his mobile phone number and reported that his only email address was one in his name.
On 12 October, the applicant was on an internet dating site, "Plenty of Fish", communicating with a woman using the profile name "Ashley Kenmore". He provided two user names "Endless Hope 40" and "Tassie Rules 51". He provided the person with an email address, other than one provided to the Registrar, and his own personal mobile phone number. There were further communications with the applicant continuing to pose as "Kenmore" and he visited her in late October 2018 and they spent the day together.
On 6 February 2019, the applicant was spoken to by police and signed an updated checklist, in which he reported that his only email address was one in his name.
Around the beginning of March 2019, another woman made contact with the applicant who was again using the name "Ashley". Communications continued and they arranged to meet on 9 March 2019. However, the meeting did not eventuate.
A police investigation revealed that the applicant had opened an account with another dating site, "Tinder", using details identical to those used with the other site. That account had been banned on 15 April 2019.
On 24 April 2019, the applicant was again spoken to by police and signed another updated checklist reporting his only email address was the same account as earlier reported, in his name.
Police attended his address on 3 July 2019 and seized his computer and mobile phone. He declined an interview.
The applicant was represented by counsel at the first sentencing hearing. There were two reports provided at the request of the court from Tasmania Health Service, Court Liaison Officer Andrew Mallett. They did not formulate a diagnosis and are best described as screening reports, identifying a history of mental health treatment, some details regarding that treatment and some of his current symptoms. The reports referred to information that the applicant had a number of mental health conditions including schizophrenia and depression. It was noted that the applicant was prescribed an antipsychotic and an antidepressant, and that he had been and was presently consulting a psychiatrist.
The plea in mitigation noted that the applicant had had been living in Burnie for approximately two years. He has no friends and is living a quiet life "with the intention of searching for a full-time partner". His intention of going onto the dating sites was to try and find a life-long partner. He was 52 years of age.
The learned magistrate adjourned the proceedings to obtain a pre-sentence report by Community Corrections and to have him assessed for supervision under a corrections order.
When the sentencing hearing resumed, the applicant was unrepresented. The report had been prepared and included the following information:
· "Mr Fairwell denied any wrong doing and described the offences as 'complaints of flatulence'. He justified his behaviour by stating:
'I want the last say; women on these dating sites are dysfunctional rejects of society, pathetic and retarded. They lie, swear and are abusive, and all I do is tell them how wrong they are by making a new email account, sending them an email and telling them "you piece of bleeping bleep" and then I delete that email account'."
· "Mr Fairwell's attitude was consistent with the notion of, 'women on dating sites deserve it, because they are dysfunctional' and he maintained he is only the victim, stating the police 'target' him. He minimised his intentions of sexually abusing those that he was communicating with by stating:
"I'm only looking for a wife ... I've been on dating sites 24/7 every day for the last 2 ½ years ... I haven't had sex since 2004 and I won't engage in brothels because Asians, Indians and Africans don't do it for me ... Sex without being married is just treating the person as a sexual object ...'."
· "It is of concern Mr Fairwell has limited insight into the nature of his historical abuse towards women and children. He is socially isolated, stating he has no friends or family in Tasmania. Furthermore, he advised he has not spoken to his brother, who lives interstate, for at least 2 months as he asked his brother to send pictures of his young nieces, to which his brother declined. Mr Fairwell failed to show any insight as to why his brother would deny such a request, stating, 'it upsets me that my brother and his wife will not send me pictures of my nieces'."
· "When exploring his interstate prior convictions, he denied any of his offences being of a violent nature. Mr Fairwell justified his historical pattern of sexual abuse towards women, who he located through telephone dating, as his right to gain sexual gratification and minimised each charge as 'not really a thing' or advising the complainant's [sic] did not turn up as witnesses 'so it doesn't count'."
· "Since being charged with these current offences, Mr Fairwell has engaged in counselling sessions with Mr Peter Ross of Catholic Care on the 5th and 21st of August 2019. He has also engaged with Psychologist Ruth Paul on three occasions, namely the 8th and 16th July and 16th August 2019. However, Mr Fairwell advised he has sought such support in efforts to manage the police 'targeting' him and feelings of anxiety that arise as a result of this, not for his behaviour or attitude towards his current or historical offending pattern."
It can be seen that the pre-sentence report contained facts which aggravated the seriousness of his offending, including matters such as that he intended to sexually abuse those with whom he had been communicating, as well as raising matters of concern such as a lack of insight regarding his wrongdoing. The applicant indicated that he wished to speak and the magistrate gave him that opportunity. He stated:
"DEFENDANT ... also Kaye Harrison of Probation and Parole mentioned that the report she gave to you, there was a lot misinterpretations [sic] and I was extremely upset and I said, 'That's not right. That's wrong,' and so, what she's written is not right. Whatever things she's written is not right …".
The author of the pre-sentence report was Kayla Kerrison and is evidently the person referred to by the applicant as "Kaye Harrison of Probation and Parole". After the applicant mentioned some other matters, the learned magistrate proceeded to impose sentence as set out below. During her Honour's sentencing comments she made reference to the contents of the pre-sentence report as highlighted:
"Arthur Fairwell is before me on three charges of breaching s33 of the Community Protection (Offender Reporting) Act 2005. The details of those breaches are that he failed to report an email address, an on-line account name used to access on-line dating sites, Plenty of Fish in the Sea and Tinder. He used the alias Ashley Kenmore on both those sites on two occasions, 12th of August and 7th of April. The third charge is that he failed to disclose the email address between those dates. The offending relates to failing to provide that information and was discovered through the police receiving reports in relation to that identity and that email address.
He was convicted of serious sex offences in 2006 in New South Wales and I'm told he spent eleven and a half years in gaol. The Judge who sentenced him New South Wales placed him on the sex offender register for a period of fifteen years after his release. That means he's obliged to comply with those obligations until 2030, I understand. He's required to keep the appointed registrar informed of his details, including any email or on-line accounts. He's failed to do that and that's why he is charged. The broader context is relevant in that a use of those profile on-line and made contact with women on two occasions, he was communicating with them under an alias.
The Community Protection Offender Reporting Act was enacted in our State to bring it in to line with the National Child Offender register which is a National approach to registration of sex offenders to overcome movement between jurisdictions to avoid compliance. The maximum penalty is two years imprisonment or a hundred penalty units or both for each charge. I note that the Community Protection Offender Reporting Amendment Bill in 2011 increased the penalty in s33 from six months to two years to bring it in to line with other jurisdictions. That represents the position that it ought be regarded as a serious matter in some cases.
The Community Protection Offender Reporting Act is legislation intended to manage serious offenders post-release in to the community. It supports rigorous monitoring of offenders who pose a risk to vulnerable people in the community. Failure to comply can, in many cases, be met with serious and can (indistinct word) punishment.
I have regard to Mr Fairwell's serious history in New South Wales. A witness reported to police that she met with the defendant who posed as Ashley Kenmore and she engaged with him socially. A second woman had contact with him although she did not meet him. As I understand it the meeting was called off.
Police executed a warrant on a company, as I understand it, in the US, known as Match.com, which controls a number of dating sites including the ones that he was using. I'm led to understand that they were not entirely helpful but seizing the defendant's devices and obtaining witness statements, as I understand it, led to these charges.
The gravamen of this offending is failing to tell the registrar controlling the sex offender's register, of the on-line activity in this area. The use meant to be onerous, it's meant to subjugate the rights of the individual to protect the community and to quote the reading of speech in parliament in 2005:
'It may be argued that civil liberties may be infringed. It is submitted that the protection of the vulnerable in our society outweighs the needs and rights of the individual sex offender.'
This offending might at first flush seem like just a failure to give information. It was argued, by Mr Tucker, who represented the defendant that it was not of the highest end of the spectrum of seriousness. He had not, it was argued, gone off the grid. I don't agree with that. He was conducting himself in a deceitful way, using and alias and false information. He's failed to acknowledge that. It's very serious, in my view, and he poses a risk, in my view.
His failure to disclose the information is at the serious end of offending. It's not a mere oversight; it is course of conduct and it's clearly aimed at providing him with access to on-line dating sites without his true identity being known. I sought a pre-sentence report from the office of corrections. I was considering supervision in the community. The defendant reported to the author of that report that his behaviour was justified and that he's been on dating sites around the clock for two and a half years looking for a wife.
He also recorded information in a letter annexed to the author of the pre-sentence report which is concerning, given the level of inappropriateness and disinhibition, talking about his sexual needs. I'm not going to have regard to that inflammatory material; it's not relevant to this sentencing exercise. But what that report tells me is he has absolutely no insight. He demonstrates no remorse although I acknowledge that his pleas and guilt do have some utilitarian benefit that warrant some mitigatory effect. He seeks to justify his conduct as being entitled to seek out someone to be his wife. He describes that as his need for sexual contact within marriage. He is a person who has some serious mental health problems. They are relevant and I'm of the view that, if I were to impose a term of imprisonment, having regard to the principles incurred, it will weigh heavily upon him. Mr Mallett has provided me with two reports as the defendant Court Liaison officer.
Initially, he reported that the defendant minimised his behaviour and thought the sentence he received back in New South Wales was too severe. At present he feels unfairly targeted by police and has been submitting complaints against various police officers, which is a matter I have no regard to. He was prescribed anti-psychotic and anti-depressant medication and he sees a psychiatrist, Dr Kirkman, by teleconference, I understand. It is not clear, however, whether he has complied with his medication at all times.
DEFENDANT: And two counsellors, your Honour.
HER HONOUR: Yes, here in the reports, Ms Paul and Mr Ross. Mr Mallett concludes, after examining the relevant material and interviewing the defendant that he's not driven by major mental illness but more likely a product of his personality and he thinks that a recent lapse into paranoia maybe attributable to lack of compliance with his medication but it may also be part of the situation he now finds himself in.
The second report, Mr Mallett refers to the defendant providing him with a bundle of documents detailing his perceived persecutions. I'm most concerned about the defendant's lack of insight in to the requirements of the register and his ongoing justification of his conduct. It makes his offending a serious example of the failure and represents a course of conduct over three offences. General deterrents must be a significant consideration in sentencing. In this case I'm also moved to place greater emphasis on specific deterrents.
The maximum penalty for each offence is two years and I do not agree that it's at the lower end of the spectrum. He failed to report the information required and he did so, in my view, deliberately. Had I been provided with a pre-sentence report that detailed remorse and insight, I may have been moved to suspend a gaol term and require the defendant to complete some supervision. The report is inflammatory but I do not allow that to do anymore than inform me that he has no insight and no remorse. It is, therefore, my view, Mr Fairwell, that the only sentence available to me is one of imprisonment.
There are three offences of failing to report and they mask, of course, the conduct on-line that, in my view, has demonstrated that the defendant may be at risk. I don't sentence him on that basis. I sentence him on the basis that the penalty attaches to the specific conduct and all the circumstances. Now, I want you to listen. I'm sentencing you to a term of imprisonment, Mr Fairwell. I'm going to sentence you to global term of 12 months. It commences three days ago, which will be the 9th of September, taking in to account time in custody, and I order that you be eligible for parole after serving half of that sentence. Do you understand that?"
The applicant appeals the sentence on two grounds:
1The sentence imposed was manifestly excessive in all the circumstances, including the applicant's plea of guilty.
2The learned magistrate erred in law by failing to make an enquiry as to which aspects of the pre-sentence report were in error, resulting in specific error by the learned magistrate.
The ground of appeal regarding lack of enquiry about the matters disputed in the pre-sentence report must be considered first as the information in the pre-sentence report is relevant in a determination of the appropriate sentence. Section 81 of the Sentencing Act 1997 has general application to sentencing hearings, stipulating that the courts have an obligation to ensure that defendants have knowledge of the information to be taken into account by the court and the opportunity to challenge that information:
"81 Court may receive information before sentencing
(1)Before a court passes sentence on an offender found guilty of an offence, it may receive such information, in oral or documentary form, as it thinks fit and in so doing it is not bound by the rules of evidence.
(2)The court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court under subsection (1).
(3)Subsection (2) does not apply to information furnished by a medical practitioner that the court considers should not, in the interests of the offender, be disclosed to the offender.
(4)If the offender challenges the truth of any information received by the court under subsection (1), the court may require that information to be proved in like manner as if it were to be received at a trial."
Section 88 of the Sentencing Act explicitly provides for situations where the whole or any part of a pre-sentence report is disputed:
"88 Disputed pre-sentence and mediation reports
(1)The prosecution or the defence may dispute the whole or any part of a pre-sentence report or mediation report.
(2)If the whole or any part of a pre-sentence report or mediation report is disputed, the court must not take the report or the part in dispute into consideration in determining sentence unless the party disputing the report or the part has had the opportunity to lead evidence on the disputed matters and to cross-examine the author of the report on the disputed matters."
It can be seen that the courts are precluded from taking into account the report or part of the report that is disputed, unless the party disputing the report has had the opportunity to lead evidence on the disputed matters and to cross-examine the author of the report on those matters.
It is clear that during the sentencing hearing the applicant challenged in broad terms the truth of information contained in the pre-sentence report. The dispute was not resolved as required by s 88(2) of the Act and therefore the report should not have been taken into account in determining sentence. The applicant did not have the opportunity to identify those specific parts of the report that were disputed. Further, absent agreement from the prosecution about the dispute, the applicant had to be given the opportunity to lead evidence on those disputed matters and cross-examine the author of the report.
Recently, the Court of Criminal Appeal in Parker v Tasmania [2019] TASCCA 16 has given careful consideration to the Court's obligation to resolve issues of dispute in sentencing hearings, having regard to s 81 of the Sentencing Act, and similar statutory provisions. The law is clear and conveniently set out in that case. The law regarding the onus and standard of proof with regard to disputed facts and sentencing hearings is well established and worth mentioning. If the prosecution seeks to have the applicant sentenced upon a more serious basis of matters, and the applicant did not accept that version of the events, the prosecution would have had to support its version of the facts with evidence and prove that version beyond reasonable doubt in accordance with R v Olbrich (1999) 199 CLR 270. In relation to facts amounting to mitigating circumstances favourable to the applicant, if contested by the prosecution there should be an opportunity for the applicant to establish those facts, in which case the standard of proof is on the balance of probabilities: Parker at [21].
The learned magistrate had a clear duty to identify the dispute and make enquiries about resolving it: Parker at [21].
If the factual dispute related to matters that were unimportant or not capable of affecting the penalty, then the dispute need not be resolved: Parker at [21].
Here, it is apparent that the factual dispute adverted to by the applicant related to substantive matters that would have a bearing on the penalty. At the hearing of the review, I was provided with an affidavit by the applicant which identifies the aspects of the report that are disputed:
·The applicant disputed that he denied any wrongdoing and that he sought to justify his conduct. The report failed to disclose that the applicant had indicated to Ms Kerrison that he had made a mistake in not disclosing his profile names. He also had indicated that he was fearful of repeating the error and wanted to ensure that he did not offend in this way again.
·While he did not dispute the first quote attributed to him set out at [14], he denied it was said in justification of his conduct.
·He disputed the inference drawn by the author that his attitude was consistent with the notion of "women on dating sites deserve it, because they are dysfunctional".
·He does not accept that "he minimised his intentions of sexually abusing those that he was communicating with".
·He denies any intention of sexual abuse in accessing the sites mentioned in the facts.
·His historical abuse was not towards "women and children" but a woman and child.
·The counselling he had engaged in was not for the purpose attributed to him as efforts to manage the police "targeting" him and feelings of anxiety that arise as a result of this. He has found the counselling assisted him regarding the offences committed and this was not reflected in the pre-sentence report.
The affidavit also revealed that the applicant had misunderstood the purpose of the report and thought it was for treatment. He had written a four page letter to the officer after his appointment, but only one page had been attached to the pre-sentence report which gave a skewed impression. It was argued that if any portion of the letter was to be attached, it should have been the letter in its entirety. Additionally, it was submitted that the report was incorrect in stating that there was a lack of insight into the offending.
Obviously, the extent of the dispute was not known by the learned magistrate. The point of exploring the areas of dispute on review was to see whether if inquiry had been made by the learned sentencing magistrate, it would have revealed a trivial dispute of no consequence. On review, the Court has a discretion to dismiss the motion if it appears to the Court that "no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant": s 110(ab) of the Justices Act 1959. Having regard to the nature of the dispute, this is not a case where that section should be invoked. If an inquiry had been made, and the dispute resolved, a lesser sentence may have been imposed.
To proceed without inquiry was unfair to the applicant. Her Honour imposed sentence on the basis of a pre-sentence report which was disputed, and thus sentence was imposed on the basis of disputed facts. The sentencing of the applicant was the result of a "legally flawed determination" amounting to specific error of the kind described in House v The King (1936) 55 CLR 499 such that the sentencing discretion has miscarried: Parker at [22]; Kentwell at [43]. The review must succeed. The first ground of review as to whether the sentence is excessive is not reached as the factual basis for the sentence must be settled before a sentence can be imposed and before the sentence can be scrutinised. It is noted that after the hearing of the motion to review was heard, and pending this decision, Crown counsel wrote to the Court conceding specific error as asserted in this ground of review. It can be seen from these reasons that that concession was properly made.
The applicant should now be sentenced according to law. The question is whether the sentencing hearing should be remitted to a magistrate or should be dealt with by me. If a sentencing hearing is to involve the calling of evidence and the factual disputes have not resolved by agreement, it should be heard in the Magistrates Court. If the factual disputes have resolved and there is an agreed position, it would be expeditious for me to resentence the applicant. I shall hear from the parties before proceeding further.
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