Higgins v Police No. Scgrg-00-1090

HIGGINS v POLICE
[2000] SASC 404

Magistrates Appeal

1................ DUGGAN J....... The appellant pleaded not guilty to a charge of indecently assaulting N, a girl of the age of 13 years. It was alleged that the offence took place at the appellant’s house on 3 September 1999. The appellant was convicted after a trial in the Elizabeth Magistrates Court. He was sentenced to imprisonment for 18 months with a non-parole period of eight months.

The appellant abandoned an appeal against conviction, but there remains an appeal against sentence. It is claimed that the sentence is manifestly excessive and that the learned magistrate should have suspended any sentence of imprisonment which was imposed.
The complainant was friendly with the appellant’s daughter. She knew the appellant and visited his house from time to time. On the occasion of the offence she was staying overnight at the appellant’s house. The appellant’s wife left the house during the evening leaving the appellant, the appellant’s daughter and the complainant in the house.
According to the complainant, the appellant gave her and the appellant’s daughter some vodka to drink after the departure of the appellant’s wife. The complainant and the appellant’s daughter also smoked some marijuana which belonged to the appellant. The complainant said she had only five “puffs” of marijuana and she consumed three-quarters of a can of vodka mixed with a soft drink.
After playing for a time on a computer, the complainant went to sleep on a lounge in the lounge room. The appellant was sitting next to her at the time. The next thing the complainant was aware of was waking up and noticing that the zipper on her trousers had been unfastened. The appellant had placed his hand through the opening in the trousers and onto the outside of the complainant’s nickers. His hand was in the vicinity of the lower part of her vagina and he was rubbing her with his hand.
The complainant said she pulled the appellant’s hand out from her trousers. She became frightened and started crying. She went to the kitchen and the appellant followed her. She told him that what he had done was wrong and he told her to think of his daughter and how the incident would affect his life. The complainant attempted to make a telephone call on the appellant’s mobile telephone but he took it from her. She then ran from the house. The appellant followed her and eventually drove her to her home. He did not go into the house. The complainant’s distress was evident to her parents and others who were at the house. When questioned by the police the appellant suggested that he may have gone to sleep on the lounge and that his arm might have fallen onto the complainant.
The appellant has no previous convictions. He was 41 years of age at the time of the offence. He is married to his second wife. They care for two children from his wife’s previous relationship and their own daughter. The appellant has been employed throughout most of his adult life. He is a boilermaker by trade.
Mr Vadasz, for the appellant, criticised the learned magistrate for describing the circumstances of the offence in her sentencing remarks as “highly aggravated”. He submitted that she began her assessment of the matter from this starting point which, he said, was an over-statement of the matter.
It cannot be denied that indecent assault is, of its nature, a serious offence and Parliament so regards it. The physical conduct involved in this case was not as aggravated as the conduct in many cases of indecent assault. The appellant’s hand was positioned on the outside of the complainant’s knickers. However, I think the learned magistrate also took into account the surrounding circumstances when she commented on the aggravated nature of the offence. The appellant was not in an ongoing position of trust in relation to the complainant, but he was the adult host of the complainant on this evening. The complainant had been a friend of his daughter and, as she was staying at the appellant’s house for the evening, it was to be expected that he would provide adult guidance appropriate to that situation. Instead, he abused his position by subjecting her to a sexual assault.
Against the background of providing alcohol and marijuana for the complainant and his daughter and then taking advantage of the complainant when she was asleep, the aggravated nature of this offence becomes apparent. In addition, it is obvious that the offence had a traumatic effect on the complainant who became most upset and yet was importuned by the appellant about his predicament when he realised that she might report the matter. Furthermore, there is no suggestion of remorse or a public acknowledgment on the appellant’s part of the incident which obviously took place.
The learned magistrate dealt with these important aspects of the matter in her reasons. On the other hand it is a matter of concern that certain personal circumstances of the appellant which the court was also required to take into account were not mentioned in the sentencing remarks. Her Honour referred in general terms to the relevance of the circumstances of the offender in the sentencing process. She also referred to this as being a case of “weakness on behalf of a defendant who is essentially a normal person” and that he was not in the category of an habitual child molester. However, it was a most relevant consideration in this case that the appellant was a 41 year old man who had no previous convictions, who had contributed in a positive way to the community in various respects and who had a good work record. There was no reference to these considerations in her Honour’s remarks which dealt principally with issues of retribution and deterrence.
When regard is had to the level of this sentence and the fact that important aspects relating to the appellant’s personal history were not referred to in the sentencing remarks, there arises a real concern that insufficient weight was given to these considerations. I think that there has been an error in the application of the sentencing principles and that it is necessary for this court to exercise the sentencing discretion afresh.
After taking into account the circumstances of the offence and the offender as well as having regard to the effects of the offence on the victim, I have reached the conclusion that a sentence of imprisonment for 12 months with a non-parole period of four months is appropriate. I have taken into account the time spent in custody since the sentence was passed in fixing the non-parole period at four months.
There remains the question as to whether the sentence should be suspended. An application was made to the learned magistrate for the suspension of the sentence. It is regrettable that no reference was made to the submission in the sentencing remarks.
Despite this consideration, however, it is my view that this offence called for a term of immediate imprisonment. The personal circumstances of the appellant are an important consideration in this respect also and I have not lost sight of those matters which I have set out above. I have also taken into account the contents of the appellant’s affidavit which I received at the hearing. However, the circumstances in which this offence was committed and the effect on the victim render this an inappropriate case in which to suspend the term of imprisonment.
The appeal will be allowed, the sentence set aside and in lieu thereof the appellant will be sentence to imprisonment for 12 months with a non-parole period of four months. The sentence will commence on the date on which the appellant is taken into custody.

[2000] SASC 404

20 December 2000