Groenewegen v Police No. Scgrg-99-417 Judgment No. S216

GROENEWEGEN v POLICE
[1999] SASC 216

Magistrates Appeal: Criminal

PERRY J. This is an appeal against sentence on an admitted charge of indecent assault.
The prosecution proceeded by way of an information in the Magistrates Court sitting at Elizabeth. Particulars of the charge are that on 11 July 1998 the appellant indecently assaulted a young woman of the age of 16 years, whom I will call “J”, contrary to s56 of the Criminal Law Consolidation Act 1935.
The learned sentencing magistrate took a serious view of the offence. He indicated in his ex tempore sentencing remarks that he would have thought a period of imprisonment of the order of nine to twelve months to be appropriate had it not been for the appellant’s plea of guilty.
After giving credit for that plea, he imposed a term of six months imprisonment.
The appellant advances one ground of appeal only, namely, that the learned sentencing magistrate erred in failing to suspend the sentence of imprisonment.
The appellant is 42 years of age. He was born and brought up in New Zealand. He migrated to Australia after some unfortunate childhood experiences which included the death of his fiancee and their child in a car accident. He has an adult child by a second marriage, which was dissolved in 1978 or early in 1979.
He married his present wife, the complainant’s mother, in 1991. They have a five year old son and a three year old daughter. The complainant is a step-daughter, being his wife’s child by an earlier relationship.
The appellant has a stable employment history, having worked for Bridgestone’s for the last 19 years where he is employed as a senior leading hand.
The appellant is the sole breadwinner in the family. He pays off a mortgage on the matrimonial home and a car loan. As well, he meets school fees for the children of the marriage and the complainant, who all attend Tyndall Christian College. Before the incident in question, while there had been some problems in the relationship between him and his step-daughter, largely related to some reluctance on her part to accept him as a father-figure, those difficulties had been resolving.
On the day in question, the appellant, who is a keen amateur footballer, played football for his club. During the course of the game he received a knock on the head which gave him some blurring of vision, but no loss of consciousness. He completed the game.
After the match, he drank three or four beers, and a further seven to eight cans of beer after he got home.
The incident occurred at about 10.00 pm when he entered the complainant’s bedroom outside the rear of the house. Initially there was what he described as some “mucking around”, which took the form of pulling her hair over her face. He claims to have no recollection of further events until he heard J yelling for him to get out.
J’s account of the matter as put to the court by the police prosecutor may be summarised as follows.
J is physically disabled but has a 50% degree of mobility and no intellectual impairment. She believes that she had a good relationship with the appellant before the incident in question, and he had never touched her in a sexual way.
She asserts that the appellant in fact entered her room on two occasions on the evening in question. On the first occasion, the appellant pushed her back on the bed, which caused her some pain, as she had recently had an operation on her back. When she cried out in pain, he apologised and left.
When he returned about half an hour later, he again pushed her back on the bed and put his left hand under her top and under the back strap of her bra. When she told him to, “Get lost”, he then fondled her right breast with his left hand, following which he took his right hand and clamped it over her mouth to stop her screaming while he moved the fingers of his left hand around her nipple. He placed it near her genital area, where he touched her on the lip of her vagina. She did not think there had been any penetration. He tried to kiss her on her lips. When she tried to scream, he kept placing his hand on her mouth.
She said that the assault lasted about five minutes, whereupon the appellant got up to leave, again saying that he was sorry.
Not surprisingly, J was upset to the point of crying hysterically. The appellant returned and again apologised, saying, “Please forgive me”.
J did not enter the house again until the appellant had left for work the following morning, when she told her mother. The matter was reported to the police, and the appellant was interviewed on the following day. He denied the allegations and said that J was lying, although he admitted going into the room and pushing her over on the bed.
The appellant was charged and released on bail, a condition of which was that he leave home. He shifted out and lived in the caravan park. He took access to his children at various locations outside of the family home.
Eventually J made a decision to leave home and live elsewhere, following which the appellant returned home.
At first he entered a plea of not guilty to the charge. His solicitors obtained psychiatric and psychological reports to see whether there might be a defence of automatism or other defence based on a dissociated state, given that the appellant claimed to have no recollection of the immediate circumstances of the assault.
Eventually, the appellant decided to plead guilty. He says this was to spare his wife and step-daughter the stress of giving evidence.
Discussions with the prosecution indicated that they would not oppose a suspended sentence. When the matter was called on for submissions on sentence, the learned sentencing magistrate was informed of the prosecution attitude. As well, he was given a copy of the psychiatric and psychological reports, together with a letter written to the appellant by J.
In the letter she says, in part:
”Although I am probably the last person you expect to hear from, I just wanted to say I forgive you for what you did. It’s in my beliefs as a Christian that in order to expect God to forgive me of my sins, I must first forgive others for theirs. But I’m not just forgiving you because I feel I have to. I am just forgiving you because I want to. How else can we live as a family?”
She went on to say that forgiving the appellant did not mean that she trusted him. She thought that that would “take a while”. She ended the letter by saying, “I do forgive you and do believe you are sorry and won’t do it again”.
In his report, the psychiatrist, Dr Branson, thought that the combined effect of alcohol consumption, together with the minor blow to the head, might explain a period of disorientation or dissociation, but he was unable to give a definitive diagnosis. He accepted that the appellant was genuinely confused and distressed about the allegations. He suggested that an opinion be obtained from a neuro-psychologist if the matter was to be pursued.
The psychologist, Dr Mark Reid, then gave a report in which he states that it was “quite possible” that the appellant “... could have had an altered state of consciousness related to transient temporal lobe dysfunction as a consequence of either the probable concussive head injury he received at football and possibly the extra influence of the alcohol he consumed at the time”.
In an affidavit put before me on the hearing of the appeal, Mr Tothill, who appeared for the appellant before the learned sentencing magistrate, deposed to the nature of the submissions advanced by him in the court below. In the course of those submissions, he canvassed the matters of background and the immediate circumstances of the offending, as I have narrated them. He emphasised the effect of a prison term on the family unit, and urged the learned sentencing magistrate to suspend the term of imprisonment.
Annexed to Mr Tothill’s affidavit is a further report of Dr Branson, psychiatrist, which refers to matters arising as a result of consultations with the appellant on several occasions after he had been sentenced. Counsel for the respondent objected to Dr Branson’s further report being accepted in evidence, although he did not object to Mr Tothill’s affidavit.
I reserved my ruling on the matter.
I am now of the view that I should accept Dr Branson’s report as evidence of his willingness to continue treating the appellant, and as evidence of the effect upon the appellant of two days which he spent imprisoned before being released on bail pending the hearing of the appeal. I do not accept the affidavit insofar as it offers a further expression of opinion as to the likely mental state of the appellant at the time he committed the offence.
As to the effect upon the appellant of his incarceration in prison for two days, Dr Branson’s report does not tell me much more than I would have been prepared to infer, given the traumatic nature of the disruption to the appellant’s family situation, his obvious inability to come to terms with his conduct, the fact that he has not been in gaol before, and the apparent genuineness of his remorse. It is easy to underestimate the effect of the sudden deprivation of liberty in the case of someone who is sentenced to imprisonment for the first time.
Be that as it may, the question for me is to determine whether or not the appellant has satisfied the onus upon him of persuading this Court that the sentence was manifestly excessive, more particularly having regard to the magistrate’s refusal to suspend the sentence.
I must say that I have found this a finely balanced case, to which I have given the most anxious consideration.
The immediate circumstances of the assault were serious. Furthermore, the appellant’s plea of guilty means that he must be regarded as having been possessed of the requisite mental element at the time, although it seems likely that he was substantially affected by alcohol. The outcome of the appeal must not be regarded as any indication that this Court views an assault of this kind as other than an offence which may well warrant an unsuspended term of imprisonment, even for a first offender.
The short question is whether, notwithstanding the seriousness of the assault, there is “good reason” to suspend the sentence within the meaning of s38(1) of the Criminal Law (Sentencing) Act 1988. Furthermore, even if I thought that there was “good reason” to suspend the sentence, I would have to be satisfied that the learned sentencing magistrate’s failure to do so amounted to a failure properly to exercise the sentencing discretion, as opposed to a decision open to the magistrate within the proper exercise of that discretion.
The case illustrates the tragic effect upon the well-being of a family unit of the commission of a sexual assault of this kind. How best to deal with cases of this kind is a question which has occasioned much agitation and discussion within the community. Quite properly, questions are raised as to the utility of custodial terms of imprisonment which have the effect of fracturing domestic relations, against alternative courses of action which might be thought to offer some hope of salvaging or repairing the relationships between the defendant and the victim, and the other members of the family.
While some have questioned the utility of dealing with such cases within the criminal justice system, the sentencing of the appellant and consideration of the arguments put on the hearing of the appeal must proceed by reference to legal principle, any other course of action being a matter for the legislature.
Long-established sentencing principles which currently find expression in s11 of the Criminal Law (Sentencing) Act 1988 oblige the court to have recourse to a custodial term of imprisonment only as a last resort, after other options have been considered and rejected.
Section 11 specifically provides, inter alia:
“(1).. A sentence of imprisonment must not be imposed for an offence unless, in the opinion of the court-
(a).... ........
(d) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.” (emphasis added)
The learned sentencing magistrate did not identify in his sentencing remarks any particular reason why he thought that options short of a custodial term of imprisonment were not appropriate except to emphasise the seriousness of the offence. I do not criticise him for that. Given the nature of the submissions which had been put to him, he cannot fail to have considered the possibility of suspension of the sentence. In rejecting that possibility, he observed:
“The community would regard it as intolerable if a child would not be safe in her own bedroom from a member of her own family and punishment and specific deterrence and general deterrence must always receive priority in sentencing.”
I would not have thought that in this case the question of specific deterrence looms large. However the matter is approached, I think it unlikely that the appellant will offend again, given, amongst other considerations, the fact that he lived in the household in which J was living for eight years with no other such incident occurring; and given the obviously traumatic effect of his arrest, release on bail, leaving the house for a time to live elsewhere and the two days spent in gaol. General deterrence must, of course, always play its part. But there will be cases where the question of general deterrence will yield to personal factors or other matters which might amount to a good reason to suspend.
In this case, I have finally reached the view that the learned sentencing magistrate erred in failing to give appropriate weight to the devastating effects upon the maintenance of the family unit of the incarceration of the appellant and the loss of his employment which this would entail. It should not be overlooked that the loss of the appellant as the sole support of the family would have potentially serious adverse effects upon the well-being of the children, including J, whose school fees are paid by the appellant, who also intends otherwise to contribute to J’s maintenance apart from the family.
When the appellant’s previous good character and the likelihood that on the day in question he was suffering from over-consumption of alcohol and possibly from some form of dissociated state are taken into account, the case for suspending the sentence becomes stronger. As well, appropriate weight should be given to J’s forgiveness of the appellant as expressed in her letter.
The appellant’s incarceration for two days has clearly had a traumatic effect upon him.
In all the circumstances, I have reached the view that the learned sentencing magistrate erred in failing to suspend the sentence of imprisonment.
I would allow the appeal for the purpose of affirming the sentence of imprisonment, but substituting an order that it be suspended upon the entry by the appellant into a bond in his own recognisance in the sum of $2,000 to be of good behaviour for two years. There is to be a condition that the appellant be under the supervision of a probation officer, and that he undergo such psychiatric or psychological counselling or treatment as the probation officer may from time to time direct.
I will hear the parties as to costs.

[1999] SASC 216

26 May 1999