McManus v Police - [2019] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCMANUS v POLICE
[2019] SASC 206
Judgment of The Honourable Justice Bampton
5 December 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Appeal against sentence imposed by Magistrate – where appellant pleaded guilty to indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) – whether the Magistrate sentenced on a mistaken view of the facts.
Held: Appeal allowed – Magistrate sentenced on a mistaken view of the facts – sentence is set aside and appellant resentenced.
Sentencing Act 2017 (SA) s 96, s 25, s 97, s 10, s 11; Criminal Law Consolidation Act 1935 (SA) s 56, referred to.

MCMANUS v POLICE
[2019] SASC 206
Magistrates Appeal: Criminal

BAMPTON J: Terence Matthew McManus appeals a sentence imposed in the Magistrates Court following his plea to one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The Magistrate sentenced Mr McManus to an immediate custodial sentence of seven months and one week.
Grounds of appeal
Mr McManus complains that he was not afforded procedural fairness, that the Magistrate sentenced him on an incorrect factual basis, that the Magistrate erred in finding that s 96 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) precluded the imposition of a suspended sentence, that the Magistrate erred in finding that he was unable to utilise s 25 of the Sentencing Act, and that the sentence was manifestly excessive.
The circumstances of the offending
The prosecutor informed the Magistrate during sentencing submissions that the offending occurred in the following circumstances. At around 2.45 pm on 5 April 2018, Mr McManus entered a spa pool at the Adelaide Aquatic Centre that was occupied by the victim, a 16-year-old boy. Mr McManus initially sat about a metre away from the victim and after about five minutes he began to move closer to the victim. The victim said that he felt the pressure of the spa jets change on his stomach. He put his hand down over the jet to feel the water flow. At this point, he felt the top of Mr McManus’ hand, which was tucked over his testicles, on the outside of his board shorts, massaging them. The victim said he froze in fear. After about 20 to 30 seconds, Mr McManus moved his hands to the inside of the victim’s board shorts, and began masturbating his penis. This continued for about 30 seconds, starting off gently and becoming quite firm. The victim said that he was frozen in fear and did not say or do anything. Eventually, the victim took hold of Mr McManus’ wrist and moved his hand away. He then stood up and exited the spa, and Mr McManus remained in the spa. The victim left the Aquatic Centre hiding as he went, to avoid seeing Mr McManus.
The victim stated in his victim impact statement that he used to go with his family to the Aquatic Centre and that it was a safe place to go. Since the incident, he fears for his safety in public places.
The submissions to the Magistrate
Police enquiries revealed CCTV footage of the incident which led to the identification and arrest of Mr McManus. The prosecutor said to the Magistrate during sentencing submissions “It is the prosecution’s position that the incident can be seen on that footage but we won’t play that today”.
It was submitted by Mr McManus’ counsel on appeal that, prior to the entry of the guilty plea, Mr McManus’ solicitor and the prosecutor agreed that the prosecutor would remain silent on the issue of consent.
Counsel for Mr McManus invited the Magistrate to sentence on the basis that Mr McManus mistakenly thought it was a consensual encounter. It was submitted that there is a depiction on the CCTV of the victim moving closer to Mr McManus. It was submitted that the Magistrate could sentence on the basis of spur of the moment offending, brought by a period of personal upheaval and stress which adversely affected Mr McManus’ decision-making.
The Magistrate then asked the prosecutor what she said about penalty. The prosecutor said that she rejected the submission that the defence had made to the effect that the interaction was in any way consensual, pointing out that the complainant was under the age of legal consent and that it was clear, on the facts that were read out to the Court and by reference to the account given by Mr McManus to the psychologist Mr Fugler, that there was no question of consent.
Counsel for Mr McManus informed the Magistrate that the submission made by the prosecutor was contrary to his understanding of what the prosecution was going to put to the Court. The Magistrate suggested a way to resolve the issue was that he would sentence on the basis that Mr McManus thought it was a consensual encounter and the victim said it was not. The Magistrate said that he did not have to, “distil every minutia of detail in sentencing”, and he asked Mr McManus’ counsel what he said about him proceeding in that way. Counsel said that, given what the Magistrate had intimated, it may not be a difficulty. The Magistrate left the bench for a short period in order that counsel could obtain Mr McManus’ instructions saying, “I see no reason why the matter can’t be finalised on a factual basis based on what I’ve said”.
The matter resumed and counsel for Mr McManus said that Mr McManus was “content to proceed as previously advised on the intimation”. The matter was adjourned for sentence.
The affidavit prepared by the prosecutor for the purposes of this appeal does not make any reference to the issue of the agreement which counsel for Mr McManus contended his instructor had reached with her.
The remarks on penalty
The Magistrate said in his remarks on penalty that:
Counsel said that you believed the interaction between yourself and this young man who was aged 16 years at the time was consensual. That may have been your belief but it is one which is completely unfounded, inappropriate and has no real basis apart from your subjective belief at the time. The victim clearly did not consent to this grossly improper behaviour.
It was submitted that, despite the Magistrate intimating that he would sentence on the basis that Mr McManus thought it was a consensual encounter, the Magistrate sentenced on the basis that Mr McManus’ belief was “completely unfounded” and “has no real basis”, which had the effect of colouring the Magistrate’s approach to sentencing. It was submitted that Mr McManus was not given notice of this change in approach and was denied the opportunity to make further submissions and invite the Magistrate to view the CCTV footage, to demonstrate that Mr McManus’ belief was not “totally unfounded”.
Further evidence was received following the appeal hearing to the effect that the Aquatic Centre has clear signage around the spa restricting the use of the spa to persons of the age of 16 and over. The victim was aged 16 years and five months at the time of the offending.
The CCTV footage
As the Magistrate did not view the CCTV footage (“the footage”), counsel agreed that I could view it. The footage shows Mr McManus and the victim in the northern spa at 2.46 pm. No one else is in the northern spa at this time, although there are four people in the nearby southern spa. When the footage commences, the victim is approximately four coping joints from the mitred corner of the spa. There are approximately three coping joints (approximately one metre) between the victim and Mr McManus. The victim appears to be sitting on the submerged ledge of the spa.
Further on in the footage, the victim and Mr McManus turn a couple of times to face the window and put their arms up on the coping and then turn back, looking out over the spa again.
Another man gets into the spa at approximately 2.52.46 pm and sits opposite the victim and Mr McManus. The man leaves the spa at 2.57.15 pm.
At 2.58.05 pm for approximately 15 seconds, the victim moves closer to Mr McManus, decreasing the distance between them to a single coping tile or less.
At 2.59.17 pm, the victim turns to his right to face the window. The distance between the victim and Mr McManus is less than a single coping tile. At 2.59.59 pm, the victim puts his left arm into the water and appears to shift his weight onto his right arm, the arm closest to Mr McManus. Immediately following this, at 3.00.02 pm, Mr McManus appears to move his right arm down towards and in front of the victim. The spa jets are active throughout the footage concealing movement below the water surface until the jets stop at 3.00.40 pm. Once the spa jets stop, the victim and Mr McManus look at each other, the water activity no longer conceals movement below the water’s surface and Mr McManus’ arm appears to be in front of the victim, and the victim’s board shorts appear to be pulled out to the victim’s right by Mr McManus’ arm. The victim, at this point, is facing the window and Mr McManus has his back to the window, facing across the spa. At 3.00.54 pm, the victim moves away from Mr McManus and leaves the spa at 3.01.26 pm.
The Magistrate arrived at a concluded view regarding the gravity of the offending, contrary to his intimation to the parties, without viewing the CCTV footage.
The misreading of Mr Fugler’s report
Mr Fugler assessed Mr McManus on 4 June 2019 and prepared a report dated 24 June 2019. In his remarks on penalty the Magistrate said:
To then suggest to Mr Fugler, however, that you did not understand why the victim did not remove your hand once the sexual activity started, is entirely improper and is essentially blaming the victim. That comment shows no insight into victim awareness and the effect this offending may have on this young man both at the time and since. Your offending is extremely serious and concerning.
This is a misreading of Mr Fugler’s report. Mr Fugler recorded that Mr McManus told him that:
… he had been in the spa that was also occupied by the victim and that he ended up sitting in a position close to [him] and offended against him. He stated he did not understand why he allowed that to happen, why he did not move his arm, or why he moved to a position beside the complainant, his insisting that he is not “gay or bi-sexual” but that he “obviously must have been curious”.
On my reading, all references to “he” in this paragraph of the report are a reference to Mr McManus. Mr Fugler is clearly recounting that Mr McManus told him he did not understand why he, Mr McManus, allowed it to happen, why he, Mr McManus, did not move his arm and why he, Mr McManus, moved to a position beside the complainant.
My reading is supported by the concluding remarks in the report where Mr Fugler says:
While Mr McManus has entered a guilty plea to the matter before the court. He was unable to offer an explanation as to why he moved to a position … alongside the complainant, or by his account, why he did not remove his arm once sexual activity began.
The Magistrate was in error to read Mr Fugler’s record of Mr McManus’ account as victim blaming, showing no insight, and to conclude the remarks dealing with this topic by saying that the offending was extremely serious and concerning.
When Mr Fugler’s remarks are read correctly, Mr McManus is questioning his own conduct. Contrary to the Magistrate’s criticism, a correct reading of the report, together with Mr McManus’ written apology provided to the Magistrate, evidences Mr McManus’ acknowledgement of the wrongfulness of his conduct and the harm he has done to the victim.
Mr McManus committed a serious offence against a 16-year-old victim. On my review of the CCTV footage and Mr Fugler’s report taken together, I am satisfied that the Magistrate sentenced on a more serious factual basis than the evidence would permit. I therefore allow the appeal and set aside the sentence imposed on 11 September 2019. As such, it is not necessary to consider the other grounds of appeal.
Resentencing
Mr McManus’ personal circumstances
Mr McManus is now 58 years old. He is married with two grown children.
At time of the offending Mr McManus was attending the Aquatic Centre spa to help relieve his shoulder pain caused by a frozen shoulder. He underwent a triple bypass in February 2019.
Mr McManus is a chartered accountant with a continuous work history. He was the business reporting system analyst for a large company, but suffered extensive bullying and isolation under a new manager for 12 months prior to March 2018. In March 2018, he submitted a verbal complaint against his manager and on 3 April 2018 was granted four weeks’ stress leave. Mr McManus now has new employment.
Mr McManus was caring for his father and son during this period of personal upheaval. His father who suffered progressive dementia was diagnosed with terminal cancer. Mr McManus found his father’s resistance to moving to nursing care from his father’s home highly traumatic. Mr McManus’ son was also unwell during this period and has now been diagnosed with Bipolar Type 2 Disorder and ADHD.
The offending occurred on 5 April 2018 at a time, it was submitted, when there were many stressful events occurring in Mr McManus’ life which culminated in him taking time off work, commencing two days before this offending occurred.
Mr McManus has no history of criminal offending. It was submitted that he is very unlikely to reoffend. It was also submitted that he is contrite as demonstrated by his pleas and letter of apology. In his letter of apology, Mr McManus acknowledges that his actions were irresponsible and totally inappropriate and as a 58-year-old he should have known better. He expresses that he is sincerely sorry for the unbelievable heartache and stress he has caused the victim. He speaks about the distress he has caused his wife of many years and how he has let his two children down. He speaks of how his offending has caused the exacerbation of his son’s, now diagnosed, bipolar condition. The Magistrate was also provided with letters of support written by Mr McManus’ wife, daughter, and daughter’s fiancé.
Mr McManus does not class himself as homosexual or bisexual, but admits that he had been curious about what it would be like to have a sexual interaction with a male.
Mr Fugler in his report considers several factors which were operating that affected Mr McManus’ decision-making and inappropriate sexual behaviour at the time of the offence; his curiosity about sexual interaction with a male had been repressed and stronger than he was able or willing to admit, and that a combination of ongoing distress and feelings of inadequacy negatively impacted upon his ability to inhibit his sexual behaviour.
Mr Fugler considers that, should Mr McManus respond positively to specialist assistance, he would fall within the low risk range with respect to reoffending. Mr Fugler recommends a period of psychological treatment with a psychologist experienced in sex therapy and the teaching of appropriate stress management skills.
The respondent submitted that the offending admitted by Mr McManus, is a serious sexual assault committed against a 16-year-old victim who was frozen with fear. Despite Mr McManus’ attenuating personal circumstances, his offending it was submitted is not offending that the Court can regard as appropriate for disposition under s 97 of the Sentencing Act.
Consideration
The stressors that plagued Mr McManus at the time of his offending have, in the main, resolved. He is prepared to undergo the psychological treatment recommended by Mr Fugler and has arranged to consult the psychologist Madeleine Barklay. As the Magistrate noted, it is of significance that Mr McManus is willing to attend ongoing counselling and his willingness is critical to his rehabilitation. The Magistrate also accepted that Mr McManus was unlikely to offend again and recognised that he has very good prospects of rehabilitation that should be encouraged and promoted.
The Sentencing Act prescribes that the primary purpose for sentencing a defendant for an offence is to protect the safety of the community. Protection of vulnerable young persons is a paramount consideration. The secondary purposes are to ensure Mr McManus is punished and held accountable, to publicly denounce his conduct, to publicly recognise the harm done to the victim, to provide personal and general deterrence, and to promote his rehabilitation.
Section 10 of the Sentencing Act provides that, subject to the Act, I must not impose a sentence of imprisonment on Mr McManus unless I am satisfied that the seriousness of the offence is such that the only penalty that can be justified is imprisonment or is required for the protection of the safety of the community. I have also borne in mind the individual sentencing factors prescribed in s 11 of the Sentencing Act.
Mr McManus comes to the Court with no criminal record whatsoever and is to be sentenced for one count of indecent assault committed against a young vulnerable victim. He has pleaded guilty and has demonstrated his remorse by accepting responsibility for his conduct and in recognising the harm he has caused the victim. I accept, as did the Magistrate, that he is unlikely to re-offend and he has very good prospects of rehabilitation. He also had the added protective factor of the love and support of his wife and family, who are aware of his offending.
The primary purpose for sentencing Mr McManus, which must be the paramount consideration in determining and imposing the sentence, is to protect the safety of the community. The seriousness of the offending and the punitive and protective purposes of punishment in the circumstances of this matter are, in my view, adequately reflected by the making of an order under s 97 of the Sentencing Act. Most importantly, such an order will allow Mr McManus to immediately undertake the intervention measures recommended by Mr Fugler, giving him the best chance of rehabilitation and thereby ensuring the protection of the safety of the community.
Conclusion
The orders I make, without disturbing the conviction recorded on 11 September 2019, are:
1.The appeal is allowed.
2.The sentence imposed by the Magistrate is set aside.
3Mr McManus will be discharged upon entering a two-year bond in the amount of $2,000. Conditions of the bond are that Mr McManus is to be under the supervision of a community corrections officer for one year, he is to be of good behaviour, he is to undergo the treatment recommended by Mr Fugler and if, during the term of the bond, he fails to comply with a condition of the bond he is to appear before the Court for sentence.