Godfrey v Bannon
[2025] TASSC 39
•3 July 2025
[2025] TASSC 39
COURT: SUPREME COURT OF TASMANIA
CITATION: Godfrey v Bannon [2025] TASSC 39
PARTIES: GODFREY, Jessica (Sergeant)
v
BANNON, Jamie Leigh
FILE NO: 2311/2024
DELIVERED ON: 3 July 2025
DELIVERED AT: Hobart
HEARING DATE: 3 February 2025
JUDGMENT OF: JAGO J
CATCHWORDS:
Magistrates – Appeal and Review – Appeal against sentence – grounds for interference – whether sentence manifestly inadequate – appeals by Crown – principles applied by appellate court to Crown appeals – indecent assault – sentence not manifestly inadequate.
Aust Dig Criminal Law [3521]
Magistrates – Appeal and Review - Failure to make order pursuant to Community Protection (offender Reporting) Act 2005 – error or mistake on the part of justice – no magistrate acting reasonably could have failed to find risk of future offending.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: L Ogden
Respondent: L Edwards
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Friend & Edward Lawyers
Judgment Number: [2025] TASSC 39
Number of paragraphs: 42
Serial No 39/2025
File No 2311/2024
SERGEANT JESSICA GODFREY v JAMIE LEIGH BANNON
REASONS FOR JUDGMENT JAGO J
3 July 2025
This is an appeal against a sentence imposed by a magistrate, Mr E Hughes. The respondent was, following a hearing, found guilty of one count of indecent assault contrary to s 127(1) of the Criminal Code. The respondent elected to be tried summarily pursuant to s 72(1) Justices Act 1959. The applicant is a police officer who made the complaint against the respondent. The particulars that the magistrate found proved were that on 19 March 2022, the respondent unlawfully and indecently assaulted a female, whom I shall refer to as the complainant, by placing his right hand down her underwear and sliding his finger down the crease of her buttocks. The respondent was sentenced on 5 June 2024. The magistrate convicted the respondent and made a Community Corrections order for 12 months, with a special condition that the respondent perform 77 hours of community service. The magistrate declined to make an order in respect to s 6 of the Community Protection (Offender Reporting) Act 2005.
There are two grounds to the motion to review: firstly, that the sentence was manifestly inadequate and secondly, that the magistrate erred in fact and/or in law in failing to make an order under s 6 of the Community Protection (Offender Reporting) Act.
The principles
Principles relevant to an appeal of this nature are frequently referred to by appellate courts and are well understood. To succeed on a ground that a sentence is manifestly inadequate, it is not enough to establish that the sentence may be regarded by some as too lenient. An appeal court may not substitute its own opinion for that of the magistrate merely because it may have exercised the sentencing discretion differently and imposed a more severe penalty: Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]. This Court must be persuaded of error of the second type referred to in House v The King [1936] 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing court is, on the facts, unreasonable such that the appellant court may infer that in some way there has been a failure to properly exercise the sentencing discretion. A magistrate is vested with a very wide discretion. The application ought only to succeed if the prosecution has demonstrated clear error, that is imposed a sentence that is obviously outside the proper limits of the broad sentencing discretion of a magistrate: Whittle v McIntyre [1967] TASSR 263, Visser vSmart [1998] TASSC 151 at 5, TGW v Tasmania [2017] TASCCA 10 at [33]. There is no charter for an appellate Court to “tinker with sentences”.
It is to be noted that as a Crown appeal, special considerations apply. Generally, if a Crown appeal is to succeed, the Crown must satisfy two aspects. The first is to demonstrate an appealable error in the sentencing magistrate's discretionary decision. The second is to negate any reason why the residual discretion of the appellate court not to interfere, should be exercised.
The authorities establish that the Crown must negate any reason why the appeal should be dismissed in exercise of the residual discretion, notwithstanding any manifest inadequacy in the initial sentence. The exercise of the residual discretion is informed by the purpose of Crown appeals, which distinguishes such appeals from appeals against a severity of sentence by a convicted person. As the High Court made clear in Green v The Queen ,Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 the primary purpose of an appeal by the Crown is to identify principles for the governance and guidance of sentencing courts. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence.
In Everett v The Queen [1994] HCA 49, 181 CLR 295 at 306, McHugh J said:
"Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But in adequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice."
As will be seen, I do not consider it necessary to consider the operation of the residual discretion, as I am not satisfied the sentence is manifestly inadequate. It is undoubtedly a lenient sentence, but I cannot say it is inadequate to the point of error when one is minded to the proper application of the principles.
The facts
The complainant was 47 years of age at the time of the crime. She and the respondent were members of the East Devonport Bowls Club. They knew each other through their membership at the bowls club, but otherwise did not socialise together. In evidence, the complainant described her relationship with the respondent as “acquaintances” and estimated she had known the respondent for only about 5 months before the assault occurred. On 19 March 2022, they were both present at an end of season event at the club. At one point during the evening, the complainant went outside the club building to the smoking area. She was accompanied by her friend, JS. The complainant and JS sat on a bench seat. The respondent came outside. He was intoxicated. He was stumbling and slurring his words. He approached the bench seat, and stood in front of where the complainant and JS were seated. The complainant gave evidence that the respondent asked JS whether she wanted to come back to his place for sex. JS declined and left the area. JS did not give any evidence of the respondent propositioning her but agreed that she had been present at the bench seat with the complainant, that the respondent had approached them and was “slurring his words”, there was some discussion including the respondent saying to her “Don’t ignore me” and then she left the area.
Following the departure of JS, the complainant, gave evidence of the respondent saying to her "you owe me". It was a reference to a sum of money that the respondent had lent the complainant some three weeks earlier.
The complainant replied that she would pay the respondent back the following week. There was further discussion between the complainant and respondent, during which the respondent asked the complainant for a hug. She agreed. The respondent put his arms around the complainant for a hug, but then put his hand down the back of her shorts and underneath her underpants and slid his finger between the complainant's buttocks. The complainant said the respondent’s finger “went down my buttocks, the crack…just went down, it slid up and down, down and then back up”. Obviously, given the nature of the charge, it was not asserted that there was penetration of the anus. The complainant was shocked and left the area.
Some days later, the complainant spoke to the bowls club bar manager and advised her that "something inappropriate" had occurred with the respondent. In August 2022, the complainant reported the matter to police. The respondent was interviewed on 11 August 2022. During that interview, he admitted that he was at the bowls club on the night of the incident, but said he had no clear memory of events because he was intoxicated. Of relevance, during the interview the respondent said:
"I might incriminate myself here, she said it does, I can't deny it because I just can't remember and so I honest, I can't say it didn't because I can't remember. That's just a bad way to be but and its embarrassing. If I could apologise and it would all go away, I would do because I just… that's not… I know that's not me, that's not me, I don't go to the bowls club to molest women.
I'm not that sort of person because that's just not me and I can't say that I wouldn't do it because I just didn't do that… and it doesn't… I don't care how drunk I get. I've been drunk a million times I don't go around feeling up women because I get drunk. But that's just my way of trying to explain it that I don't do that sort of thing."
The respondent reiterated similar comments throughout the course of his record of interview. In essence, the respondent said that whilst he could not remember the specific incident and described himself as being a nine out of ten of a scale of drunkenness, when ten was as drunk as he has ever been, he maintained that he was "not the sort of person" to do something of the nature alleged.
Evidence of character
At the hearing there was evidence admitted, purportedly pursuant to s 110 Evidence Act, to rebut an assertion of good character that was said to have arisen in cross-examination. The evidence was led from a witness Ms Svoboda and was to the effect that on several occasions between October 2021 and August 2022, Ms Svoboda had been at the Bowls club with the respondent, and he would approach her and tell her he was getting an erection, and then pull her hand towards his groin area. Her evidence was that these incidents would generally occur when the respondent was consuming alcohol.
It is unnecessary given the grounds of the Notice of Review to consider further the admissibility of this evidence. The Magistrate accepted this evidence and concluded “it has not been established that the defendant is of good character”. He appropriately cautioned himself that he could not use his finding that the defendant was not of good character to strengthen the prosecution case and could not use it as any form of tendency evidence.
Magistrate's findings
The magistrate accepted beyond reasonable doubt, the following account given by the complainant:
"… whilst seated next to each other, but facing, the defendant asked her for a hug. She agreed, and whilst hugging her, she said the defendant put his hand down her bowl shorts which had an elastic waist. She said his finger then went down her buttocks, under her underpants, down the, as she described it, crack of her bottom…. she said his finger went halfway down her bottom and back up again in a sliding motion. Her evidence was detailed and clear on this point."
Further, in his reasons for decision, delivered orally, the magistrate said as follows:
"I find that [the complainant] was not only honest but I also find that she was reliable on the material facts that are required to be established beyond reasonable doubt and the facts that lay the foundation for those findings beyond reasonable doubt. Her account of what occurred immediately before, during and after the act of touching remains clear and unshaken. The inconsistencies I have identified are not such that I am left with a doubt as to her reliability or indeed her honesty as to those facts that I am to be satisfied of, in order for the complaint to be proved.
I accept her evidence, and in accepting it, I accept in the context of the other evidence but also in her demeanour and the way that she presented that evidence in the witness box. …I therefore find the complaint proved."
No challenge is made as to the findings of fact of the magistrate.
Matters in mitigation
The following factors were raised in mitigation on behalf of the respondent:
· He was 64 years of age, in a stable and supportive relationship and had good family support.
· He was the operator of a commercial cleaning business with a number of employees. Some of his work required him to hold registration to work with vulnerable people. There was a risk that the respondent would lose that registration as a consequence of the finding of guilt, and if that was to eventuate the respondent may lose earnings from the business.
· His plea of not guilty was not based upon a denial of the conduct, but rather an absence of a positive recollection about it and was entered following legal advice.
· There was no relevant criminal history for matters of a sexual nature.
· The indecent assault was brief.
A screening assessment was sought to determine the respondent's suitability for a Community Corrections order. The report determined that the respondent had been assessed as having medium risk/needs, was suitable for a community service order but was deemed not suitable for community-based supervision on the basis that the respondent had several protective factors in place, being employment, family support and stable housing, and therefore limited risks were identified which required intervention from Community Corrections.
Aggravating factors
The appellant asserts a number of aggravating features of the offending, namely:
· It involved skin on skin contact of an intrusive nature, involving the placement of the respondent's finger between the complainant's buttocks.
· The offending was committed in a public place in the presence of others, thereby increasing the level of humiliation caused to the complainant.
· The offending was committed in breach of trust in that the complainant and respondent were known to each other, and the complainant had allowed him to sit next to her and hug her because she knew and trusted him.
· The offending was also a breach of trust placed in the respondent by the club. There was an expectation that the respondent would conduct himself in an appropriate manner whilst he was present at the club.
· The offending had a serious impact upon the complainant, as described by her in her victim impact statement.
· The respondent only desisted because of the complainant's reaction to the assault.
There are some points to be made about the asserted aggravating circumstances. Firstly, the sentencing magistrate did not find that the assault was committed in the presence of others. Whilst his Honour found it was committed in the smoking area, as described by the complainant, no specific finding was made that it occurred in the presence of others. And it was not open to the magistrate to make such a finding. The complainant was asked whether at the point the respondent was sitting next to her on the bench seat there were other people in the smoking area. Her answer was: “No, they were all toddling off inside and going to the toilet, or just going in to talk to other people”. There was no evidence from which the Magistrate might properly conclude the crime was committed in the presence of others, and he did not come to that conclusion. There is no ground of appeal challenging the Magistrate’s conclusions as to the factual basis for sentencing.
Secondly, as to the asserted breach of trust, the sentencing magistrate, in his comments, said:
"Whilst not a breach of trust in relation to the matter that comes before me in its strictest sense, in my view, it was an environment of trust where the complainant felt that she could be at ease, and somewhere where she was perhaps less vigilant given those around her and the circumstances of the function that she was attending. Your actions in that regard took advantage of that trust in that sense."
In my view, the magistrate was correct not to elevate the nature of the relationship shared between the complainant and respondent beyond that. The two were acquaintances who had known each other for a relatively short period, albeit the nature of the association was such that the respondent lent the complainant some money. Nevertheless, the respondent did not owe the complainant any particular trust, above and beyond what any member of the club would owe to another to act appropriately, respectfully and lawfully. This was not the type of relationship in which the respondent had been entrusted to behave in a particular manner towards the complainant. There was no special relationship between the parties such that the violation of the trust relationship called for a harsher penalty to reflect the exploitation of the victim's vulnerability because of the existence of the relationship.
Thirdly, in my view, the asserted breach of trust the respondent owed to the Bowls club was of minimal, if any, weight in the sentencing exercise. Beyond it providing general context, the fact it occurred during a social gathering at the bowls club, was not an aggravating circumstance, in itself.
The Sentence – manifestly inadequate?
The applicants, in their written submission, contends that:
"Generally, the crime of indecent assault attracts a sentence of imprisonment. It is conceded that such a sentence will often be wholly suspended when the accused person has no prior record for like offending. Circumstances where sentences of imprisonment were not imposed, are low in number and have involved “isolated and brief acts – where the offender was intellectually disabled, or responsibility was otherwise diminished… cases where the offender was relatively young and the victim a willing participant were also typical of non-custodial outcomes.'”
The applicant referred the Court to data obtained from the website of the Tasmania Sentencing Advisory Council in respect to sentences imposed in the Supreme Court, between 2001 and 2014 for single counts of indecent assault to support the proposition advanced, and submitted the sentence imposed by the magistrate was, when viewed against the range of sentences imposed for similar offending, unjustifiably lenient.
Of course, whilst a sentencing court, and by extrapolation an appellate court, should have regard to what has been done in other cases, it is appropriate to bear in mind what Simpson J said in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[305]. There, her Honour pointed out:
"Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts."
…
But the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, to sentence. Past sentences are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence."
The gravamen of these observations is that whilst comparative sentencing data is instructive, comparative sentences do not dictate the outcome in a particular sentencing matter by requiring that a given set of circumstances be fitted into a range of similar past sentences. Rather, the sentencing judge uses the information as to past sentences as a yardstick against which to consider an appropriate sentence.
In any event, a review of sentences imposed for the crime of indecent assault reveals it is far from inevitable that a period of imprisonment, suspended or otherwise, must be imposed. Not infrequently, for a single count of indecent assault, where the offending falls towards the lower end of the scale of seriousness, a sentence other than imprisonment is imposed. The range of behaviours associated with indecent assault charges is vast, and by necessity, the sentencing discretion vested in the magistrate is very wide.
Here, the indecent assault whilst of course, serious, was opportunistic, brief in nature and isolated. The respondent had no relevant criminal history, was a mature 64-year-old man with good employment and good supports. The magistrate determined personal deterrence was not a weighty sentencing consideration but acknowledged the need for the sentence to reflect general deterrence, vindication of the victim and denunciation. The sentence imposed was sufficient to meet such aims. Whilst, I am of the view, the respondent benefited from a lenient sentence, the sentence imposed was sufficient to meet the relevant sentencing aims and could not be said to be plainly unjust or unreasonable.
Ground 1 of the Notice to review is dismissed.
Ground 2
The magistrate declined to make an order making the respondent subject to the requirements of the Community Protection (Offender Reporting) Act. He said as follows:
"As to the Community Protection (Offender Reporting) Act, it is the state of the law that I must place your name on the register of reporting offenders unless satisfied that you do not pose a risk of committing a reportable offence in the future….that test is whether that risk is a more than fanciful risk with respect to that likelihood of committing a reportable offence into the future. There are a number of factors that I have regard to as set out within s 10 – without pausing to reflect on all of them, but they include the evidence that was adduced at the hearing, the victim impact statement of the complainant that has been provided, the submissions that were made by the State and your counsel with respect to the operation of the Act and the need to – or the likelihood as I should say, of you committing a reportable offence into the future, and whether that risk is fanciful.
I also have regard to the pre-sentence report that has been prepared in relation to you which finds – that report being the 11th June 2024, which finds that there is a lack of criminogenic needs or identified issues that give rise to a need for supervision. That is also a factor that I take into account. I take into account your age. At the age of 64 this is the first occasion where you have been dealt with for an offence of this nature, engaging in conduct of this sort in terms of your record. I have taken into account that age and the record as outlined and the role that alcohol played, in my view, in the commission of this offence.
If there had been a need for a further degree of supervision, in my view, it might change the overall risk factors attaching to you, but it is the view of the author of the report that there is not a need with respect to you to provide further supervision, management and control in relation to you, and in particular in this regard, with respect to the use of alcohol and the risks that arise from the use.
In relation to the report it is a different test that is applied of course when they are considering risk, and the risk I consider is whether that risk is fanciful which is a far lower threshold, but I take into account all of the factors that have been raised on the hearing, in the submissions, and in the materials that are before me.
In weighing up those factors, as I do and must, I therefore with respect to the matter decline to place your name on the reportable offenders register."
The issue raised by ground 2 of the notice to review is whether the magistrate erred by concluding that the respondent did not pose a risk of committing a reportable offence in the future. If a risk existed, in the sense of a real risk and not one that is far-fetched or fanciful (Traynor v McCulloch 2011 TASSC 41 at [53]) then the magistrate was obliged to make an order as s 6 (1) of the Act is directory and no discretion exists within the section. To uphold this aspect of the motion, I must be positively satisfied that no magistrate acting reasonably could have reached the conclusion that no risk existed. It is not enough that I would have found alternatively.
I am positively satisfied that no magistrate acting reasonably could have found, on the material before the magistrate in this case, that the respondent did not pose a risk of committing a reportable offence in the future.
The magistrate appropriately took into account the personal circumstances of the respondent, together with the evidence that was adduced at the hearing. He also appeared to place significant weight on the pre-sentence report that he had obtained and the conclusion therein that there was no need for further supervision of the respondent. That report contained, inter alia the following information:
"Sources of information
Interviews with Jamie Bannon, 11 June 2024
Court documentation – Tasmanian prior conviction
Risks/Needs
The defendant has been assessed utilising the LSI-R:SV assessment screening tool endorsed by Community Corrections as having medium risks/needs. (my emphasis)
Suitability for a community based order
The defendant is deemed suitable to participate in court ordered community service.
During interview the defendant advised he has full time employment with the local council as a contract cleaner and works on an on-call basis. He reported he would be able to attend community service obligations if he was advised in advance of details for him to cover requirements ….
Community based supervision
The defendant is deemed not suitable for an order with a community-based supervision condition. The defendant has several protective factors in place including employment, family support, stable housing. There are limited risks identified through assessment which require intervention provided by this service." (my emphasis)
As can be seen, the report identifies the respondent has medium risks/needs, and at another point refers to there being limited risks which require intervention. The report does not conclude that the respondent has no identifiable risks. Pertinently, in my view, the report is silent as to the respondent's alcohol consumption. It is simply unclear from the report as to whether there was any discussion or consideration of the respondent's alcohol consumption during the assessment process. Yet, it seems the magistrate has inferred that risk arising from the use of alcohol did form part of the assessment process when he concluded "there is not a need with respect to you to provide further supervision, management and control in relation to you, and in particular in this regard, with respect to the use of alcohol and the risks that arise from the use."
In my view, given the report was silent as to whether his use of alcohol had even been discussed, and given the evidence the magistrate had heard on the hearing, it was an unjustifiable approach to conclude from the report that the respondent’s use of alcohol did not present as a risk factor to the respondent committing a further reportable offence. It is the drawing of this conclusion which appears to have played a significant part in the magistrate concluding that the respondent did not pose a risk of committing a reportable offence in the future.
The evidence on the hearing was that the indecent assault occurred in circumstances where the respondent was so intoxicated that he could not recall the incident. Additionally, the magistrate had evidence, that he accepted, that on other occasions when the respondent had been consuming alcohol, he had behaved in a sexualised manner, such that the magistrate concluded the respondent was not of good character.
Such evidence very clearly established that there was a real risk that if the respondent became intoxicated, he may commit a reportable offence into the future.
There was nothing at all before the magistrate to suggest the respondent had abstained from the consumption of alcohol or limited his alcohol consumption. Nothing was said during the plea in mitigation about his alcohol habits or consumption. There was nothing in the pre-sentence report that could properly satisfy the magistrate that alcohol consumption would not be an ongoing difficulty.
Very clearly, the indecent assault had occurred in circumstances where the respondent had consumed alcohol to excess. Absent material that eliminated that as a risk factor, no magistrate acting reasonably could have concluded that the respondent did not pose a risk of committing a reportable offence into the future. Moreover, the so-called protective factors identified in the pre-sentence report - employment, family support and stable housing – were all operative at the time the offending occurred. The existence of those factors did not operate to eliminate risk when the indecent assault occurred, and without something more, did not provide a basis from which it could reasonably be concluded that the respondent presented with no risk of future offending. Therefore, the magistrate was required to make an order pursuant to the provisions of the Community Protection (Offender Reporting) Act.
Ground 2 of the Notice to Review is upheld. I will hear Counsel as to whether I should proceed to make the consequential order or whether the matter should be remitted to the magistrate.
Addendum
Having heard Counsel, and it being agreed that I should proceed to make the order, I make the following order:
Mr Bannon, pursuant to s6(1) Community Protection (Offender Reporting) Act, I direct that the Registrar cause your name to be placed on the register and that you comply with the reporting obligations under that Act for a period of two years from today, being 3 July 2025.
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