Millwood v Police No. Scciv-03-814

MILLWOOD v POLICE
[2003] SASC 259
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Adelaide following his plea of guilty to 13 counts of indecent assault.
The sentencing magistrate imposed a head sentence of three years imprisonment with a non-parole period of 18 months.
The appellant is aged 47 years and has had a long association with the scouting movement, having joined the scouts at the age of 8 years. At the time of the offences he occupied the position of Cub Leader.
The indecent assaults all occurred in the context of the appellant being involved in the washing of the genitals of boys in his care. There were seven young boys aged between 13 and 16 who were assaulted by the appellant on 13 occasions over a period of three years and four and a half months.
On each occasion the victim was having a shower, either of his own initiative or at the suggestion of the appellant. While they were in the shower, the appellant washed the victim’s genitals, either remaining dressed or on some occasions while naked and after he had got into the shower with the victim.
While he did not physically harm the victims, the victim impact statements from a number of them testify to the fact that they suffered from depression or anxiety and other symptoms, in one case resulting in an 11 day admission to a private psychiatric hospital.
When the assaults came to light, the appellant was suspended from the scouting movement.
The sentencing magistrate had the benefit of a report furnished by Dr Balfour, a psychologist. Dr Balfour noted that the appellant has no significant developmental history and has no history of drug or alcohol abuse, nor has he any history of mental health problems and had no prior contact with Mental Health Services.
To quote from his report, in Dr Balfour’s opinion:
“There is no clinical evidence to suggest that Mr Millwood suffers from a psychotic illness (break with reality), intellectual disability, drug or alcohol abuse problems, or a serious personality disorder.”
However, he went on to express the view that:
“The appellant is presently suffering from an adjustment disorder characterised by depressive and anxious features in response to the seriousness of his legal circumstances.”
He further suggested that the appellant had used his social relationships with boys to fulfil his own adult needs for recognition, status and socialisation:
“He appears to have projected his unfulfilled adult sexual needs onto the boys he has befriended and has come to view them as consenting equals.”
Dr Balfour expressed the conclusion:
“I believe that Mr Millwood is showing evidence of the early stages of paedophilic behaviour towards adolescent boys and is in need of professional assistance.”
He was of the view that the appellant’s condition is amenable to what he described as “therapeutic intervention”. He recommended that the appellant be referred to the Sexual Offenders Treatment and Assessment Program (SOTAP) for treatment of his paedophilic tendencies.
In fact, the appellant did contact SOTAP after seeing Dr Balfour and is apparently willing to take part in or continue with a treatment program. It should be noted, however, that Dr Balfour expressed the view that the prognosis to cease offending, even allowing for treatment, was “fair”.
The appellant has a good work history until ten years ago when he fell out of employment. Since then he has spent his time looking after his elderly parents and engaging in voluntary activities, mainly with the scouting movement. He has no history of prior offences other than some minor matters which can be disregarded.
The sentencing magistrate was given a number of references from people who spoke highly of the appellant’s dedication to the scouting movement and the impressive contribution which he had made to it over many years.
The magistrate identified what he described as strong mitigating features in the case. They included the plea of guilty and the appellant’s motivation in contacting Dr Balfour and his subsequent contact with SOTAP.
The sentencing magistrate then had regard to the case of Rogers[1] which he regarded as enunciating principles to be applied in cases of this type. I will come back to Rogers a little later in these reasons.
[1] (2002) 81 SASR 386.
I have had the benefit of an affidavit sworn by Mr Michael Dadds who appeared as counsel for the appellant in the court below and on the hearing of the appeal. In the affidavit he summarises the various submissions which he advanced on the appellant’s behalf. He advanced similar submissions in the course of his address in furtherance of the appeal.
In contending that the penalty was manifestly excessive, he submitted that the magistrate’s starting point of four years was too high. In that respect the magistrate observed:
“In my opinion an appropriate sentence and I say immediately that there should be one penalty fixed in connection with these 13 counts, in my opinion the appropriate sentence is a head sentence of four years. Your plea of guilty and the matters mentioned expressly by Mr Dadds should bring about a significant reduction in that head sentence. In the matter of Rogers a reduction of 25 per cent was recorded as appropriate by the Full Court. In my opinion the same should apply in your case.
I therefore fix a head sentence of three years.”
It is convenient at this stage to have regard to the decision of the Court of Criminal Appeal in Rogers (supra), particularly in view of the magistrate’s apparent reliance on it and the submissions made to me by Mr Dadds in which he sought on the one hand to draw parallels between that case and the case at bar, and in other respects to distinguish it.
In Rogers, the appellant pleaded guilty to two counts of indecent assault committed on a young girl who was his wife’s sister. The first offence occurred when the complainant was 11 or 12 years old, and it was alleged that the last offence occurred some few years later. It was not entirely clear how many years later, although the second count alleged that the child was about 15 years old at that time. The indecent assaults in that case involved touching of the vagina and the breasts of the complainant.
The sentencing judge imposed an immediate custodial sentence of 3 years and 3 months with a non-parole period of 16 months.
On appeal, that was reduced to a head sentence of 18 months with a non-parole period of nine months. The starting point for the fixation of the head sentence was 2 years, against which a 25 per cent reduction was allowed by reference to the appellant’s plea of guilty and cooperation with the police.
At first sight, there certainly appears to be some disparity between the sentence imposed upon the appellant in the case of Rogers, as opposed to that which was imposed in the case at bar. As in this case, in Rogers’ case the appellant was of previous good character and had no record of prior convictions. The charges in that case were the first time upon which he was brought into court.
However, I think that Mr Muscat who appeared for the respondent on the hearing of the appeal is right when he made the point that a comparison between the two cases breaks down when one has regard to the fact that in this case there were not only 13 counts but they involved seven victims assaulted over a period in excess of three years.
In the case of Rogers, although the two counts upon which he was sentenced were described as representative counts, there was no material before the court upon which the court was able to discern the frequency of assaults, other than that they had occurred in the period intervening between the two counts alleged in the information, and more than once.
Certainly the fact that there were a number of victims involved has been held by the Court of Criminal Appeal to be a significant factor in the sentencing process for offences of this kind. So much appears from the judgment of the Doyle CJ with whom Prior and Nyland JJ agreed in the case of R v AJW.[2]
[2] (2001) 80 SASR 246 at 250, par 30.
Doyle CJ there observed:
“I consider that the sentence imposed by the judge is manifestly inadequate and that it reflects error. It fails to recognise adequately the number of children involved in the offending as a separate aspect of the seriousness of the offending. It fails to adhere to an appropriate standard of punishment for such a substantial group of serious offences over a period of time and involving a number of children.”
In that case the Director of Public Prosecutions was given leave to appeal against the sentence. The victims in that case were young boys, except for two counts of indecent assault involving a young girl, the children being aged between 6 years and 12 or 13 years. The offending was much more serious in that case, but in my view the remarks of the Doyle CJ as to the significance of the number of children involved is apposite.
I have carefully considered the submissions made by Mr Dadds with respect to this aspect of the matter, but in my view it cannot be said that the sentence imposed in this case was manifestly excessive. Too nice a comparison should not be made with other cases, and I do not pause to refer to one or two other authorities to which reference was made. It seems to me that in this case the sentence imposed was within the proper exercise of the sentencing magistrate’s discretion and it has not been demonstrated that it is manifestly excessive.
I come now to the question of suspension of the sentence.
As to that aspect of the matter, Mr Dadds sought to distinguish the case of Rogers. In Rogers, the court refused to accede to a submission that the sentence should be suspended, particularly in view of the good character of the appellant.
Amongst Mr Dadds’ submissions on this aspect of the matter, and as he put it in distinction with the situation in Rogers, in the case at bar the police prosecutor indicated that he did not oppose the suspension of any sentence of imprisonment which the court might see fit and proper to impose.
When that submission was put by Mr Dadds, I drew his attention to the decision of the Court of Criminal Appeal in R v A.[3] In the course of my judgment in that case, with which Nyland and Bleby JJ concurred, I drew attention to the observations made by King CJ, as he then was, in R v Malvaso and Ors,[4] where he said:
“The decision as to what sentence is to be imposed is, however, entirely a matter for the Court which may, of course, be influenced by the arguments that are placed before it by the prosecution as well as by defence, but must never be influenced by the attitudes or opinions as distinct from the arguments of either. In particular, it must be stressed that the attitude of the prosecution towards a particular proposed course of action in relation to sentence is, as such, irrelevant; the view of the prosecution has no greater weight than the arguments advanced in support of that view. These propositions are elementary and fundamental propositions relating to the administration of criminal justice by independent courts, but the express elaboration may assist in clarifying the confusion of thought which lay at the base of some of the arguments addressed on the present appeals.”
[3] (unreported) Court of Criminal Appeal judgment No [2003] SASC 121.
[4] (1989) 50 SASR 503 at 509-510.
In R v A, after referring to that passage in the judgment of King CJ in Malvaso, I referred to the judgment of Olsson J in Ienco v Kraft and Anor,[5] in which Olsson J might be thought to have suggested that the mere expression of attitude by the prosecution might, in appropriate cases, be something which could be taken into account. I expressed the view that if there was any tension between the observations of Olsson J in Ienco v Kraft and Anor and the dictum of King CJ in Malvaso, Malvaso should prevail.
[5] (1990) 53 SASR 40.
So that in this case the mere expression of attitude by the prosecutor must be regarded as an irrelevant consideration.
The courts have traditionally regarded it as appropriate in these cases to lay stress upon the need to protect young children and to emphasise the need for deterrence when they are abused.
I have carefully considered Mr Dadds’ arguments in this matter. He has put everything that could be said in favour of suspension, but I am not persuaded that it is a case in which the magistrate erred in failing to suspend sentence.
I reach that view with some regret as the appellant has, to his credit, a long period of voluntary work in the community and has no significant record of prior offending. One must, however, have regard to the objective seriousness of the offending, and the fact that sentencing for this class of offending must recognise the need for general deterrence.
It seems to me that, consistently with principle, it has not been demonstrated that in all the circumstances it would have been appropriate to suspend the sentence.
The appeal must be dismissed. I so order.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (2002) 81 SASR 386.
2. (2001) 80 SASR 246 at 250, par 30.
3. (unreported) Court of Criminal Appeal judgment No [2003] SASC 121.
4. (1989) 50 SASR 503 at 509-510.
5. (1990) 53 SASR 40.

[2003] SASC 259

7 August 2003