Holloway v Tasmania

[2013] TASCCA 1

[2013] TASCCA 1

COURT:      SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:            Holloway v Tasmania [2013] TASCCA 1

PARTIES:  HOLLOWAY, Jervis Mitchell
  v
  STATE OF TASMANIA

FILE NO:  CCA 730/2012
DELIVERED ON:  28 February 2013
DELIVERED AT:  Hobart
HEARING DATE:  28 February 2013
JUDGMENT OF:  Blow, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Maintaining sexual relationship with young person under the age of 17 years – Two counts – Whether sentence of 3½ years' imprisonment, with nine months suspended and parole eligibility after 16 months manifestly excessive.

Criminal Code (Tas), s402(4).
Sentencing Act 1997 (Tas), s17(3), (8).
Director of Public Prosecutions v STU [2012] TASCCA 7, distinguished.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  D J Gunson SC
           Respondent:  L A Mason
Solicitors:
           Appellant:  Blissenden Lawyers
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2013] TASCCA 1
Number of paragraphs:  13

Serial No 1/2013
File No CCA 730/2012

JERVIS MITCHELL HOLLOWAY v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
TENNENT J
WOOD J
28 February 2013

Orders of the Court

1. Appeal allowed.

1. Original sentencing orders set aside.

1. In lieu thereof, a sentence of 3½ years' imprisonment with effect from 24 July 2012 imposed.

1. Ten months of that sentence suspended on condition that the appellant commit no offence punishable by imprisonment for a period of two years after his release from prison.

1. Order that the appellant not be eligible for parole until he has served 16 months of that sentence.

Serial No 1/2013
File No CCA 730/2012

JERVIS MITCHELL HOLLOWAY v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

(DELIVERED ORALLY)  BLOW J

TENNENT J
WOOD J
28 February 2013

1. This is a sentencing appeal.  The appellant, Jervis Holloway, was charged with two counts of maintaining a sexual relationship with a young person under the age of 17 years. He pleaded guilty to both charges.  Porter J sentenced him to 3½ years' imprisonment, suspended nine months of that sentence, and ordered that he not be eligible for parole until he had served 16 months of the sentence.  The appellant contends that the sentence was manifestly excessive. 

1. One of his grounds of appeal asserts that the learned sentencing judge failed to give sufficient weight to various matters that were relied on as mitigating.  However there is nothing in the learned sentencing judge's sentencing comments to indicate that he gave insufficient weight to any particular mitigating factor.  The question that this Court has to decide is therefore whether the sentencing orders, or any of them, were "unreasonable or plainly unjust": House v R (1936) 55 CLR 499 at 505.

1. The two charges relate to two different teenage boys.  The learned sentencing judge referred to them as Nathan and Peter.  Those are not their real names.  Count 1 relates to a sexual relationship with Nathan which began in the late 1970s when Nathan was about 16 and the appellant was 26.  Nathan was brought up by strict parents who apparently had strong religious beliefs.  He had had no sex education.  There had been no discussion about sex in his parents' home.  One day he decided to move out.  On that very day, the appellant saw him hitchhiking, picked him up, took him to his home, promised to look after him, and initiated a sexual relationship by masturbating the boy until he ejaculated.  He did that twice that day.  Nathan lived with him until he was about 18 years old.  Sexual activity with him ceased to be unlawful once he turned 17.  However the appellant maintained an unlawful sexual relationship with him for about 11 months before his 17th birthday. 

1. When Nathan was about 16½ years old he introduced Peter to the appellant.  Count 2 relates to Peter.  Peter came from a similar background to Nathan.  He was 14 years old.  Peter rebuffed a sexual advance by the appellant at their first meeting, but a couple of weeks later, after the appellant and the two boys had consumed some alcohol together, the appellant masturbated Peter until he ejaculated.  Like Nathan, Peter had had no sex education or previous sexual experience.  Thereafter he became a regular visitor to the house, and a regular sexual partner of the appellant.  Initially their sexual activities consisted of mutual masturbation, sometimes involving the appellant and both boys.  The appellant subsequently initiated reciprocal oral intercourse with both boys.  Sexual activity between the appellant and Peter occurred approximately monthly until Peter moved interstate after turning 17.

1. In assessing the gravity of the appellant's conduct, the following matters are relevant:

·    There were two victims.

·    All sexual activity was consensual.

·    With each boy, the appellant's sexual activities consisted of mutual masturbation and oral intercourse, but there was no anal intercourse, actual or attempted, and he did not ever ejaculate into either boy's mouth.

·    The unlawful sexual relationship with Nathan continued for about 11 months.  The relationship continued after the boy's 17th birthday, when it became lawful.

·    The unlawful sexual relationship with Peter commenced when Peter was 14 and continued for over two years.  The relationship continued after Peter's 17th birthday, when it became lawful.

·    The total period of offending was a little over 3 years.

·    The appellant was about 10 years older than Nathan, and about 12 years older than Peter.

·    Both boys were vulnerable.  Neither of them had had any prior sexual experience or sex education, formal or informal.

·    The appellant took advantage of the fact that Nathan had left his parents' home, and had nowhere else to live.  He offered both boys alcohol and an exciting lifestyle.

·    Nathan provided a victim impact statement, but Peter did not.  In his statement, Nathan said that he found the sexual relationship "flattering, frightening, weird and exciting all at the same time".  He said that he developed a heavy dependence on alcohol; that he withdrew from his old friends and from his family; that he struggled with feelings of shame and guilt; that he has a deep feeling of guilt as the result of having introduced Peter to the appellant; that his adult life has been a constant struggle emotionally and physically; that he has had problems with severe drug and alcohol abuse for many years; and that he has had two failed marriages, high levels of anxiety, and feelings of depression and despair.  It would be inappropriate to assume that the sexual relationship with the appellant was the sole cause of Nathan's problems, but it is reasonable to regard it as a substantial contributing factor.

1. There were significant matters that the learned sentencing judge was required to take into account in mitigation, as follows:

·    The appellant was 60 years old when sentenced.

·    He committed these crimes when he was 26 to 29 years old.

·    He had no significant prior convictions.

·    He had led an exemplary life since committing these crimes.  Several good character references were tendered on his behalf.  There was no need for personal deterrence.

·    He pleaded guilty to both charges.  As a result it was not necessary for either of the complainants to give evidence.  However no indication that he would plead guilty was given until a late stage.

·    The appellant stood to lose his employment as a car salesman if sent to prison.  His financial circumstances were not particularly good.

·    There had been friendly contact between the appellant and each complainant after the sexual relationships ended.

1. Counsel for the appellant submitted that the provision of accommodation and food to Nathan was a mitigating factor.  We reject that submission.  The provision of accommodation and food was something that facilitated the unlawful sexual relationship.

1. The learned sentencing judge indicated that the appellant's "demonstrated relative good character" in the decades since his offending led him to suspend part of the appellant's prison sentence, and to provide for early parole eligibility.

1. In fact, his Honour fixed a non-parole period that is shorter than the law permits.  Under the Sentencing Act 1997, s17(3) and (8), the non-parole period of a partly suspended sentence must not be less than one half of the operative part of the sentence. His Honour imposed a sentence of 42 months' imprisonment, of which nine months was suspended, so that the operative part was 33 months. It was then not open to him to fix a non-parole period of less than 16½ months, but he fixed one of 16 months.

1. Counsel for the appellant relied heavily on the decision of this Court in Director of Public Prosecutions v STU [2012] TASCCA 7, arguing that the sentences in that case and this indicated an inconsistency. However there were strong mitigating factors in STU, particularly the offender's age and state of health, that were absent in this case.  We therefore reject the submission as to inconsistency.

1. There were sound reasons for the appellant to receive a substantial prison sentence, particularly having regard to the fact that both victims were vulnerable, impressionable and sexually inexperienced; the fact that Nathan had nowhere else to go; the fact that Peter was only 14 years old when the sexual relationship with him was initiated; the duration of the appellant's offending; and the matters revealed by Nathan's victim impact statement.  In our view the head sentence of 3½ years' imprisonment was not out of proportion to the seriousness of the appellant's crimes, and appropriate allowance was made for the mitigating factors by suspending part of the sentence and providing for parole eligibility after 16 months.  We are not persuaded that either the head sentence, the operative part of it, or the non-parole period was manifestly excessive.  The sentence was heavy, but not too heavy.

1. However there must be some adjustment to the sentencing orders because the non-parole period is shorter than the law permits.  Some other sentence "is warranted in law and should have been passed".  The Criminal Code, s402(4), therefore requires this Court to quash the sentence and substitute another one. There is no reason to change the head sentence or the non-parole period. In our view the appropriate course is to increase the suspended part of the sentence from nine months to ten months, so that a non-parole period of 16 months will be lawful.

1. We have therefore decided to allow the appeal, set aside the original sentencing orders, substitute a sentence of 3½ years' imprisonment with effect from 24 July 2012, order that ten months of that sentence be suspended on condition that the appellant commit no offence punishable by imprisonment for a period of two years after his release from prison, and order that he not be eligible for parole until he has served 16 months of that sentence.  The Court makes orders accordingly.