Humphreys v Police No. Scgrg-00-18

[2000] SASC 131

HUMPHREYS  v  POLICE
[2000] SASC 131

Magistrates Appeal

1. DUGGAN J.               The appellant has appealed against the sentence imposed on him in the Elizabeth Magistrates Court for an offence of indecent assault.  He pleaded guilty to the offence which was committed on 21 June 1999.  The complainant is a boy who was aged three years at the time of the offence.

2. The appellant was charged originally on an information which alleged three sexual offences against the child.  In the course of the committal hearing  it was decided that the prosecution would abandon two of the charges and the appellant thereupon pleaded guilty to the remaining charge which was dealt with in the Magistrates Court.  It was agreed between counsel for the appellant and counsel for the Director of Public Prosecutions that sentencing should be on the basis of a statement of agreed facts.  Those facts were as follows:

   “1..... At the time of offending the accused was aged 20 years and [the complainant] was aged three years.  The accused was a family friend of [the complainant’s] family.

   2On 21 June 1999 the accused was at [the complainant’s] house and was playing with [the complainant] when he committed the offence of indecent assault.

   3...... The indecent assault consisted of the accused placing his fingers inside [the complainant’s] underpants and touching him.  Refer to statement of [complainant’s sister] dated 23.6.99 at p 3.8 who observed his behaviour.”

3. The learned magistrate stated in his remarks on sentencing that he gave credit for the appellant’s plea of guilty.  He did not indicate the extent of that credit.  He sentenced the appellant to imprisonment for 15 months and set a non-parole period of five months.  He directed that the head sentence and the non-parole period be served forthwith.  The notice of appeal complains that the sentence was manifestly excessive and that, in any event, the period of imprisonment should have been suspended.

4. It is convenient to deal with two aspects of the appellant’s background before considering the argument presented at the hearing of the appeal.  The appellant was convicted in the Adelaide Youth Court on 24 January 1997 of the offence of rape which was committed against a child.  He was sentenced to detention for two years which was suspended after the court imposed an obligation on him to be of good behaviour for a period of 18 months.

5. The learned magistrate in the present matter was provided with a psychological report which stated that the appellant presented as an immature personality but that there were no signs of a psychotic process.  However the tests suggested serious psychological disturbance.  The psychologist summarised his assessment by expressing the view that the appellant was “a very disturbed young man who has a number of dysfunctional aspects to his personality and behaviour”.  He said that the appellant requires psychiatric treatment and that he “requires an approach that will address all the areas of his deviant sexual arousal pattern and associated pathology if the likelihood of further offending behaviour is to be reduced”.

6. The appellant had to be sentenced on the agreed basis which involved an isolated  incident going no further than the placing of the appellant’s fingers inside the child’s underpants and touching him.  The age of the child was an aggravating feature of the appellant’s conduct and the previous conviction highlights the need for deterrence.

7. I ordered a report on the appellant from the Sexual Offenders Treatment and Assessment Programme.  The report was ordered with the concurrence of both counsel.  The author of the report, Mr Proeve, a psychologist, expresses the following views in his summary:

   “Mr Humphreys presents a significant risk of offending in future.  Following extensive counselling after his first very serious sexual offence, he committed a second serious offence three years after the first.  Of concern is the apparently short period between experiencing a ‘voice’ supportive of offending and committing the offences.  Although the phenomenology and aetiology of the ‘voice’ is unclear, its effect seems to be a decrease in his ability to avoid re-offending.

   The three characteristics of child sex offending described above are given focus in the treatment offered at SOTAP.  Therefore, the SOTAP programme would be suitable for some of Mr Humphreys’ needs.  In addition, psychiatric consultation is necessary to investigate his unusual perceptual experiences further.

   Should Mr Humphreys’ appeal against his sentence be upheld, he would be able to continue the contact he has begun at SOTAP, and attend for group treatment and individual interventions as appropriate.”

8. In my view the head sentence of 15 months was too high bearing in mind the plea of guilty. It will be reduced to 11 months. I take into account the time spent in custody in reducing the sentence. I am also of the view that it would be inappropriate to suspend the entire sentence. However I think it is essential that the appellant undergo some form of psychiatric treatment and, for this purpose, I propose to direct that pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 the appellant serve two months imprisonment and that he then be released upon entering into a recognisance to be of good behaviour for the remainder of the term of 9 months and that during that time he undergo such psychiatric or other treatment recommended by the Sexual Offenders Treatment and Assistance Programme. The period of imprisonment already served has been taken into account in determining the period to be spent in custody.