PTR v Tasmania
[2012] TASCCA 8
•23 August 2012
[2012] TASCCA 8
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: PTR v Tasmania [2012] TASCCA 8
PARTIES: PTR
v
STATE OF TASMANIA
FILE NO/S: 948/2011
DELIVERED ON: 23 August 2012
DELIVERED AT: Hobart
HEARING DATE: 15 August 2012
JUDGMENT OF: Crawford CJ, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate.
Murphy v R [2000] TASSC 169, referred to.
Aust Dig Criminal Law [3521]
Criminal Law – Appeal and new trial – Procedure – Powers of court on appeal – To consider fresh evidence – Evidence available at time of sentence and unlikely to have had any impact on sentence.
Aust Dig Criminal Law [3542]
Criminal Law – Appeal and new trial – Procedure – Miscellaneous matters – Tasmania – Order under Community Protection (Offender Reporting) Act 2005 – Length of order – Whether term of order disproportionate to offending and assessment of risk of re-offending.
Community Protection (Offender Reporting) Act 2005 (Tas), ss6, 24.
Traynor v McCullough [2011] TASSC 41, referred to.
Aust Dig Criminal Law [3572]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: L A Mason
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASCCA 8
Number of paragraphs: 32
Serial No 8/2012
File No 948/2011
PTR v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
BLOW J
TENNENT J
23 August 2012
Order of the Court
Appeal dismissed.
Serial No 8/2012
File No 948/2011
PTR v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
23 August 2012
I agree, for the reasons given by Tennent J, that the appeal should be dismissed.
File No 948/2011
PTR v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
23 August 2012
I agree that this appeal should be dismissed, for the reasons stated by Tennent J. The order that the appellant comply with the reporting obligations under the Community Protection (Offender Reporting) Act 2005 for a period of 10 years from the date of sentencing was not unreasonable or plainly unjust: House v R (1936) 55 CLR 499 at 505. The Facebook material that the appellant sought to rely on was not sufficiently significant to warrant this Court receiving it as evidence. The global sentence of 5½ years' imprisonment and the non-parole period of three years were not manifestly excessive. A somewhat longer head sentence, and a somewhat longer non-parole period, would have been unimpeachable in my view.
File No 948/2011
PTR v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
23 August 2012
On 11 October 2011, the appellant, having been found guilty by a jury of one count of rape, five counts of aggravated sexual assault, one count of aggravated assault, one count of assault and one count of indecent assault, was sentenced to serve a term of five and a half years imprisonment with a non-parole period of three years. It was also ordered that, pursuant to the Community Protection (Offender Reporting) Act 2005, his name be placed on the register for a period of 10 years. The complainant in respect of all crimes was the appellant's estranged wife.
The appellant now appeals the sentence imposed on the sole basis that it was manifestly excessive in all the circumstances of the case. However, there would appear to be six issues which underpin the appellant's submissions. These are:
·an asserted failure by the learned sentencing judge to take into account or give sufficient weight to the appellant's emotional state at the time of the offending;
·an asserted failure by the learned sentencing judge to take into account or give sufficient weight to prior good character and work history;
·an assertion that the length of time for which the appellant's name has been placed on the register is in itself excessive;
·an assertion that the sentence of imprisonment imposed was simply too long;
·an assertion that what purports to be copies of Facebook entries showing activities of the complainant during the course of the trial are inconsistent with her victim impact statement, thus, I infer, suggesting that that statement was inaccurate and should not have been given any significant weight; and
·an assertion that photos of the home in which the events occurred which were tendered at the trial were somehow not consistent with events as the complainant described them.
Factual background
In her comments on passing sentence, Wood J set out the facts of this matter in some detail. I set out the substance of her comments generally because they, not only provide a useful summary of the facts but also, refer to matters which are the subject of argument on this appeal. The comments (edited to delete identifying material) are in the following terms:
"PTR has been found guilty of assault and aggravated assault, five counts of aggravated sexual assault, one count of indecent assault and one count of rape relating to a course of conduct on 17 November 2010. His wife is the victim of these crimes.
The defendant and his wife had separated. The separation had occurred approximately two months before the commission of the crimes, after a period of difficulties in the marriage. The defendant had moved out of the family home and his wife was living with their two young sons on her own. Mrs R had resolved that the marriage was at an end while the defendant could not accept that this was so. Mrs R was steadfast in her resolve and had made that clear to her husband.
The couple were endeavouring to maintain family routines and an appearance of normality for the sake of the children. There was an arrangement for the defendant to see his sons on a regular basis during some evenings, and some mornings he took them to school. On those mornings he helped with the morning routine: preparing breakfast and getting the boys ready for school.
On the morning of the 17 November 2010, the defendant went to the address where his wife was living and as arranged helped with the morning routine. The night beforehand he had written a suicide note. He wanted to read his wife the note and he held some hope that by doing so she may change her mind about their relationship. Otherwise he planned to take his life that day. His intentions were a culmination of distress about the end of the relationship and some unrelated problems. Before leaving the house that morning he asked his wife if he could speak with her after he had taken the boys to school and she declined as she was afraid of being alone with him. He told her that he wanted to talk about matters regarding their separation and necessary arrangements. That was not true. Reluctantly she agreed to speak with him on his return but only if he did not park behind her vehicle in the driveway and only if she could leave the house if she felt unsafe with him. He agreed.
On his return to the house the defendant had a shower and changed his clothes. He went into her bedroom which had been the bedroom the couple had shared before the separation and closed the blinds and put a blindfold on the bed, and placed a sex aid, a dildo, and handcuffs in an accessible position nearby. The complainant was unaware that he had been in her bedroom. In the lounge room the defendant read the complainant a lengthy suicide note. In that note he referred to the fact that she had killed him and made it clear that he could not accept that the relationship was over.
Afterwards, the complainant responded with a comment that it did not change the way she felt about the relationship. She told him that she had to leave and went to the front door. As she reached the door and tried to undo it he put his hand over the top of hers, held the door shut and told her she was 'not fucking going anywhere'. He told her he wanted to see her naked and make love to her again before he killed himself. The complainant told him she did not want it to happen and asked him to leave. She backed away from him. He then grabbed her by the sleeve of her jacket. The complainant screamed and yelled at him to let her go. The defendant told the complainant that it was going to happen whether she wanted it or not and that he had nothing to lose. The complainant tried to escape the house through the backdoor but the defendant blocked her exit. The complainant grabbed a knife from the kitchen bench and threatened him saying if he did not let her out of the house she would cut him. The defendant grabbed her wrist, twisted it and banged it forcefully onto the kitchen bench and the knife fell out of her hand.
The defendant then committed an assault, by twisting the complainant's arm up behind her back and pulling it up towards her shoulder blades. He pushed her forward into the hallway and held her against a wall. While he had her pinned against the wall he grabbed her mobile phone from her pocket and threw it some distance away. The complainant told him she would kick and punch and bite and do whatever she could to stop him from doing what he intended to do. He said it did not matter and he was going to do it anyway. He told her he had 'nothing to lose' as he had lost her and the kids and he did not care.
After the defendant loosened his grip the complainant went into her son's bedroom and sat on the bed hoping that those surroundings and the reminders of his son may deter the defendant. It did not, and the defendant forcefully moved her into her bedroom. At this stage he committed an aggravated assault with the intent to commit the crimes of indecent assault and/or aggravated sexual assault and/or rape. The complainant fought him by punching, scratching and kicking him as best she could. The defendant got her on the ground and dragged her backwards down the hallway by her hair and underneath her arm. The complainant was screaming and telling him to stop. He dragged her into the bedroom, pulled her upright and twisted her arm up around her back and pushed her face down onto the bed. The defendant pushed down on the back of her head as she was face down. The complainant was flailing her arms around and clawing at the sheets and screaming. The defendant said to her 'shut up you fucking bitch'. The defendant pulled both of her arms around to her back and placed a pair of handcuffs on her wrists. The complainant was struggling and she screamed and begged him to stop. The defendant obtained a pair of socks and tried to push them into her mouth. He managed to do so partially with the complainant resisting. The defendant told the complainant to shut-up and that if she did then he would not keep trying to put them in her mouth. The complainant saw a bandanna on the bed, and, worried that the defendant may use that to tie the socks into her mouth, she stopped screaming.
The defendant realised he could not undress the complainant while she had the handcuffs on and pulled the complainant into an upright position and told her he would take the handcuffs off if she did not try anything silly. She described the expression on his face as 'horrible' and his demeanour aggressive. She nodded. He removed the handcuffs and took off all her clothing and pushed her back down onto the bed face down. Once her clothing was removed the complainant curled up on her side and the defendant pinned her down with one of his arms and then committed four acts of aggravated sexual assault. He inserted his fingers into her vagina forcefully a number of times. He then put his fingers into her anus, forcefully a number of times.
The defendant ignored the complainant's pleas for him to stop and to leave her alone. He poured lubricant on her anus and vagina and again penetrated her vagina and anus with his fingers. The complainant was crying and saying, 'Please don't'. He forcefully spread her legs and then indecently assaulted her by putting his face up against her vagina, making contact for an extremely brief period. At that point, the complainant's hands were free and she started punching his head and screaming 'Just stop'. The defendant pinned her arms down and laid his body on top of her. He told the complainant to shut-up. He retrieved the dildo from the side of the bed and inserted it into her vagina. That act of aggravated sexual assault occurred for a short period. The complainant was crying. She told him to get it over and done with. He pulled her legs apart and penetrated her vagina with his penis. Whilst the defendant raped the complainant she had her arms over her face, her face turned away and was crying hysterically.
Items used in the sexual attack (hand-cuffs and the sex aid) had been used in consensual intercourse at the defendant's instigation in earlier times of the marriage, before the couple had separated. The defendant had placed the items on and near the bed in the hope that the complainant may agree to sexual intercourse because of his intention to take his life.
After the defendant raped the complainant he got dressed and found some rope and went outside to the shed and made a number of attempts to take his life. The complainant dressed and fled the house running to a friend who lived nearby, arriving in a highly distressed state. She also had some bruising and tenderness to parts of her body. The defendant's father … went to his son's aid. The defendant was taken to hospital by police before being interviewed by police. A psychiatrist examined him and found that he did not have a major depressive illness. Dr Evenhuis' report accepts that he had some ongoing symptoms of major depression which he notes responded well to antidepressant therapy. The defendant told police, and has maintained at his trial, that the sexual intercourse was consensual with the complainant initiating some of the sexual acts.
The complainant has been traumatised by what the defendant did to her. She suffers post-traumatic stress symptoms of a clinically significant nature including nightmares, flashbacks and panic attacks. The complainant has been unable to work. She has needed and will continue to need ongoing medical and psychological care and counselling.
The complainant has described the emotional and psychological harm she has suffered. It pervades many aspects of her life such as her relationships, loss of self-confidence and self-worth. Her sense of safety and security has been fundamentally undermined: she is anxious and hyper-vigilant. Particular damage and distress has resulted from the fact that the crimes were committed by her husband. She felt an overwhelmingly horror at facing her children after the attack and questions of how she could protect them from the knowledge of what her husband had done.
The defendant's sexual attack of his wife involved a betrayal of trust as her husband and the father of their children. He committed the crimes when he was embittered by his wife's reaction to his stated intention to take his life, and frustrated at his inability to control her and the course of their relationship. His attack was an assertion of control and dominance committed in a brutal fashion.
The defendant's emotional suffering at the time of the commission of the crimes is taken into account, but so too is the fact that his distress and self-pity led to a sense of entitlement and immunity from consequences.
It was suggested by counsel for the defendant that the conduct occurred after increasingly chaotic behaviour by the defendant. It was destructive but not chaotic. In fact, over some time he had demonstrated a rigid inability to accept the relationship was over and a troubling degree of persistence in the relationship in complete disregard of the complainant's wishes. His determination and inability, is revealed in letters, emails and other evidentiary material tendered on the trial. He had revealed an intense level of anger towards her the evening before. Over some time he had shown a tendency to blame and manipulate the complainant as well as significant jealousy.
I accept defence counsel's submission that the commission of these crimes has resulted in disastrous consequences for the defendant. He has lost a great deal. A most significant loss relates to his two young sons. He is a caring and attentive father who misses very much spending time with his sons. The defendant has not been able to see his children since the incident.
The defendant has no relevant prior convictions. He was 38 years of age at the time of the crimes. He has a good work record. (sentence removed) Although his commitment to that employment was questionable, it offered him a career path which is now closed to him. I expect that other employment opportunities will be very limited.
Dr Evenhuis considers that the defendant is in a category of offenders considered to be at low risk of future sexual offending. It is noted that if he is to engage in a sex offender treatment program then a focus on jealousy might be helpful.
Incarceration will have its difficulties for the defendant in light of (detail removed). He anticipates that if he serves the time at the Hobart Reception Prison he will not have access to the same programmes as other prisoners.
Finally, I note that in considering the appropriate length of the sentence to be imposed the mitigatory effect of a plea of guilty does not apply."
The appellant's mental state
I will deal firstly with the appellant's arguments in relation to this issue. The appellant argues that a number of factors indicate that he was not "of stable mind" at the time of the offending and that this factor was not given sufficient weight in determining an appropriate sentence. It was difficult to determine from the appellant's submissions whether his argument was that he was suffering from a mental illness at the time he committed these crimes, or simply that he was in a very emotional state which rendered him mentally unstable to a degree.
By the time police arrived at the home where the crimes had been committed, which was the last place the appellant's wife had seen him, the appellant had been taken by his father to the Royal Hobart Hospital. He was arrested and taken to the Hobart Reception Prison. He was placed in an observation cell. It is apparent from reports written in September and October 2011 by Dr Michael Evenhuis, a consultant psychiatrist with the Forensic Mental Health Service, that he spoke to the appellant on the day of the offending. Dr Evenhuis said in his reports of this meeting:
"Mr R was tearful at times during the interview but he was able to demonstrate a sense of humour and there were no objective signs of severe depression. The impression at the time was that he did not appear to be in the midst of a Major Depressive Episode but he described a history suggestive of Major Depression. It was opined that his circumstances could place him at high risk of suicide regardless of whether he suffered from depression and a period of observation in hospital was recommended if he was granted bail."
Some days later, the appellant was bailed on condition that he attend as a voluntary patient at the Royal Hobart Hospital for the purpose of his being psychiatrically evaluated. His bail conditions thereafter were strict. Dr Evenhuis noted in his reports that the appellant had been admitted to hospital for assessment of his mood on 27 November 2010, and that a consultant psychiatrist had reviewed him the next day and reported that there was no evidence of a major depressive disorder.
At the sentencing hearing in relation to the appellant, the only reports relating to his psychiatric situation were those which the Court had sought from Dr Evenhuis. No other reports were tendered on the appellant's behalf which in any way disputed Dr Evenhuis' conclusions. The plea in mitigation by the appellant's counsel on 4 August 2011 dealt with the appellant's mental/emotional state in the following terms:
"The other matter that I would ask your Honour to take into account is that, quite clearly, as the relationship continued to disintegrate so, too, did the accused's mental health. He – by the time that the 16th had occurred – I don't know whether unravelling is quite the right word – but certainly his life was becoming more and more chaotic and there'd been the earlier attempt on the 31st of October of him committing suicide or not going as far as but certainly he had the thoughts and ideations of someone who was contemplating suicide and had put some form of plan into effect and my instructions are that the weeks leading up to this, for at least three weeks, he also had had thoughts of suicide and that obviously came to a culmination on the 16th of July, sorry November, when he wrote the letter of resignation from his employment.
HER HONOUR: So do you say a three week period up until the 16th of November.
MS BAUMELER: Yeah. And that's also borne out by some of the other evidence that your Honour heard about the concern within the family, the sending of him to Queensland. There was significant concern within the family itself that he was not well and certainly not coping with the break up of the relationship.
Of relevance also, to some lesser extent, is the fact that he himself had been assaulted whilst working as a [occupation deleted] and had in the past been diagnosed with post traumatic stress disorder so he was someone where the family were aware that there were mental health issues that had occurred in the past and, as was evident from some of the evidence that your Honour heard, there were concerns leading up and the reason for sending him to Queensland was because there were concerns for his wellbeing and for the fact that he clearly wasn't coping with the breakdown of their relationship. Now that clearly culminated on the 16th of November when he wrote the letter of resignation and also wrote what can only be described as a very lengthy suicide note."
Counsel made reference in these remarks to evidence suggesting family members were concerned about the appellant's mental health. That evidence was not before this Court. However family views as to the existence or otherwise of a mental illness, as opposed to those of a professional, do not greatly assist the Court.
As to the two reports of Dr Evenhuis, the first was dated 2 September 2011 and the second was dated 5 October 2011. The first report indicated that Dr Evenhuis saw the appellant for the purpose of writing it on 25 August 2011, that is about nine months after the events the subject of this appeal. Under the heading "Opinion and recommendations", Dr Evenhuis set out a number of matters. The second report written by Dr Evenhuis was in the same terms as the first up to and including the material under the heading on page 4 "Referral letter to the Royal Hobart Hospital, by myself, dated 17/11/2010". It appears that Dr Evenhuis had, after writing his first report, been supplied with some of the documents tendered at trial and, I infer, a transcript of the complainant's evidence at trial. In the second report, he made reference to that material. He then moved to the same heading, "Opinion and Recommendations" as appeared in the first report. Under that heading, save for one paragraph, he repeated the same material which appeared under that heading in the first report and then added two paragraphs. Set out below is what appears in the second report, which includes the paragraph in the first report which was not repeated. I have underlined that material which appeared in the first report but not the second, and I have italicised that material which was added in the second report.
"From the information available, it does not appear that Mr R's offending behaviour can be explained in terms of psychiatric illness or a personality disorder. His developmental and employment history is not suggestive of antisocial personality disorder. His relationship history is not suggestive of negative attitudes towards women. There are some features in the history that might suggest the presence of narcissistic personality traits but insufficient evidence to make a diagnosis of a personality disorder. Mr R does not describe long term difficulties with impulsivity or emotional regulation. He did report some emotional difficulties relating to exposure to trauma in his adult life but he does not appear to meet the criteria for post traumatic stress disorder.
It is possible that Mr R became embittered by his belief that his wife was having an affair and the fact that he was overlooked for promotion at work. His need to move house due to financial constraints was a blow to his sense of identity and self esteem. A combination of these factors appears to have contributed to his depressed mood and his decision to commit suicide. His offending behaviour may have been motivated by anger and frustration related to his relationship difficulties. It is also possible that he did reflect upon the possible consequences of his actions towards his ex-wife because he had already decided to end his life.
The available evidence suggests that Mr R did experience significant problems with jealousy. He described long standing concerns that his (now ex) wife was having an affair. Ms R's account of his controlling behaving provides further confirmation of Mr R's problems with trust in interpersonal relationship. It appears that his behaviour led to a deterioration in the marital relationship and it is likely that Ms R's desire to cease the sexual side of their relationship may have exacerbated Mr R's jealousy. A combination of workplace difficulties and marital difficulties appear to have contributed to Mr R's difficulties with low mood. From the evidence available, it is possible that Mr R's suicidal ideation was driven by his realisation that reconciliation was not possible rather than the presence of mental illness. He may also have felt betrayed by the fact that Ms R was seeking separate accommodation (in contravention of their 'contract') and he may have been concerned that he would lose access to his children. He stated in correspondence that he was unable to live with the thought that Ms R might start a relationship with somebody else.
It is somewhat difficult to comprehend why a previously law abiding man would seriously sexually assault a woman he has been in a relationship with for fourteen years. It is possible that his actions were motivated by jealousy, his anger at being rejected and his realisation that reconciliation was not possible. His actions could have been a way of asserting his sexual ownership of his ex-wife whilst also expressing his frustration that the relationship had failed. He may not have given much weight to the consequences of his actions due to his state of emotional distress and the fact that he had decided to commit suicide if his ex-wife rejected him. It does not appear that deviant sexual desire or the acting out of sexual fantasises played much of a role in his behaviour. Mr R stated at interview that he believed that the sexual activity that occurred was consensual. It is possible that Mr R is employing denial as a psychological defence mechanism in order to avoid feeling overwhelmingly ashamed. It is also possible that his recall of the incident had been adversely affected by his emotional state and his subsequent hanging attempts.
Mr R has few recognised risk factors for future sexual offending. His age, relationship history, the lack of deviant sexual desire, his lack of prior charges and his choice of victim place him in a group of offenders who are considered to be at low risk of future sexual offending. There is little association recognised in the literature between Major Depressive Disorder and contact sexual offending. It should be noted that the circumstances of Mr R's offending are unusual and hence that risk factors drawn from the literature may not be relevant to his situation.
It is possible that Mr R's recall of his offence has been impaired by his emotional state at the time and the physiological consequences of his failed hanging attempt. A lack of recall could explain his denial of the offence. It may be instead that Mr R's denial of the offence is a psychological defence that allows him to maintain some optimism to avoid feeling ashamed.
In terms of his psychiatric needs, Mr R does not appear to be suffering from an episode of Major Depression at present. Given his recent difficulties it would be appropriate to continue his antidepressant medication for at least the next six months. Future difficulties with accessing his children may be associated with deterioration in his mood and increase in his risk of suicide. Psychiatric review in prison can be arranged via Forensic Mental Health Services."
The material before the learned sentencing judge clearly supported the position that the appellant was not suffering any significant mental illness which contributed to his offending. There is no question he was under significant emotional stress. However, as her Honour said, correctly in my view having regard to the facts of this case:
"The defendant's emotional suffering at the time of the commission of the crimes is taken into account, but so too is the fact that his distress and self-pity led to a sense of entitlement and immunity from consequences.
It was suggested by counsel for the defendant that the conduct occurred after increasingly chaotic behaviour by the defendant. It was destructive but not chaotic. In fact, over some time he had demonstrated a rigid inability to accept the relationship was over and a troubling degree of persistence in the relationship in complete disregard of the complainant's wishes. His determination and inability, is revealed in letters, emails and other evidentiary material tendered on the trial. He had revealed an intense level of anger towards her the evening before. Over some time he had shown a tendency to blame and manipulate the complainant as well as significant jealousy."
Counsel for the respondent referred to a decision of Murphy v R [2000] TASSC 169. In that case, the Court of Criminal Appeal dealt with an offender who had murdered his wife. He was sentenced, following a plea of guilty, to a lengthy term of imprisonment. He appealed the severity of the sentence. Cox CJ, after setting out the facts upon which sentence had been based, dealt with the issues raised by the appellant. One of those was that the sentencing judge had not taken into account the appellant's degree of emotional stress. At par[6], his Honour dealt with that issue in the following terms:
"Counsel for the appellant complains that his client's emotional stress was not taken into account in the sentencing process. He cites the dictum of Brennan J (as he then was) in Neal v R[1982] HCA 55; (1982) 42 ALR 609 at 624, where his Honour said:
'Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor (see D A Thomas Principles of Sentencing (2nd ed London, 1979) pp 194, 207). The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence (R v Bright[1916] 2 KB 441 at 444 per Darling J).'
Nevertheless, violent emotions cannot be allowed to excuse or significantly mitigate serious criminal conduct. I do not consider the appellant's emotional distress at his wife's determination to leave him and his children justified any significant reduction in the penalty for his deliberate execution of her."
Counsel for the respondent submitted that the present case was one within the same category as that in Murphy's case. She submitted that these were not crimes of passion in the sense of crimes committed in the heat of the moment without any prior thought. The appellant quite deliberately misled his wife as to the nature of the discussions he sought to have with her to get her to agree to meet with him without a third party being present. He knew that she was unwilling to be alone with him and that she held some fear of him. He planned the encounter with her by writing a suicide note the night before with the intention of reading it to her. He certainly hoped for a sexual connection with his wife that day and may not have planned the actual crimes he committed. However, quite clearly, once his wife indicated his letter had not changed her mind, his attitude towards her changed dramatically.
The appellant submitted in general terms that Wood J, while saying that she had taken certain matters into account, was really just adhering to a formula, and that she did not really take things into account despite saying that she did so. There was nothing put to the Court to support this general assertion, and it is not accepted.
Her Honour not only did take into account the appellant's emotional state, but also categorized it. There was no mere applying of a formula. In my view, her Honour correctly considered the material before her in relation to this issue and there is nothing to indicate that she did not give it appropriate weight.
Failure to take into account the appellant's prior good character and work history
The same assertion about stating things but not really taking them into account was made in relation to this issue. Her Honour stated she had regard to a number of aspects of the appellant's prior good record, personal and work circumstances and history. There was nothing to suggest she did not give these factors due weight, save the appellant's perception that she did not do so because the sentence in his view was too long.
The Facebook issue
The appellant included in the material he asked the Court to consider a number of pages which purported to be copies of Facebook entries referrable to the complainant from and including 20 July 2011 to 16 August 2011. There was no evidence as to the source of the material or its reliability or even the year to which the entries related. The Court was asked to infer it related to 2011 and a range of dates which covered the period during which the appellant's trial was conducted. That inference, having regard to some comments, is, if it is necessary, easily drawn. The appellant sought to introduce this evidence on the hearing of the appeal. The reason why he did so is that he asserted that some entries were inconsistent with statements made by the complainant in her victim impact statement. The material he particularly referred to was an entry on 30 July which suggested the complainant went out with girlfriends that night, and an entry a few days later which had a photograph of a group of females which the appellant said included the complainant.
The appellant needs the leave of the Court to introduce this evidence. In deciding whether to allow such further evidence to be introduced on the hearing of an appeal, one factor the Court needs to consider, in simple terms, is the impact the material might have on the appeal. In this case, even if the material were allowed to be introduced, it does nothing more than show that perhaps on one night, during a particularly stressful period of her life, the complainant went out with some girlfriends. That does not, with respect, detract in any way from the material in the complainant's victim impact statement which is supported by the report of Dr Georgina O'Donnell as to the psychological impact of the appellant's crimes on the complainant. Leave should not be given to the appellant to tender this material on the appeal.
The photographs of the scene of the crimes
The appellant initially filed a notice of appeal against both conviction and sentence. He subsequently withdrew the appeal against conviction. His submissions in relation to the photographs and what they do not appear to show have no bearing on the question of whether his sentence is manifestly excessive or not. They might have had some bearing upon an appeal against conviction but there is none.
The order under the Community Protection (Offender Reporting) Act 2005 ("the Act")
In his written submissions, the appellant appeared to suggest that there should have been no order at all. However, he did not pursue this at the hearing of the appeal. He submitted that the order made for a period of 10 years was too long, and not justified by the view expressed by Dr Evenhuis that he was at low risk of re-offending.
The Act, s6, provides that where an offender has committed a reportable offence, the court which sentences him or her must place that offender on the register and order them to report for a period "unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future". That test generally presents an offender with a very high hurdle to get over. Section 6(3) also provides that it is not necessary for a court to be able to identify a risk of re-offending against a particular person or persons, or a particular class of persons. Dr Evenhuis said in his reports about the risk of re-offending:
"Mr R has few recognised risk factors for future sexual offending. His age, relationship history, the lack of deviant sexual desire, his lack of prior charges and his choice of victim place him in a group of offenders who are considered to be at low risk of future sexual offending. There is little association recognised in the literature between Major Depressive Disorder and contact sexual offending. It should be noted that the circumstances of Mr R's offending are unusual and hence that risk factors drawn from the literature may not be relevant to his situation."
What is important about those comments is that, while Dr Evenhuis says offenders in the same general group as the appellant would be considered at low risk of re-offending, the appellant's circumstances are unusual and the risk factors drawn from literature may not be relevant. The only interpretation which can be drawn from those remarks is that the starting point is that, at the very least, the appellant is a low re-offending risk but that, because of the unusual circumstances in which the offending occurred, he might be a higher risk. Even if it were accepted that the interpretation should simply be that he is a low risk, that in my view would be sufficient to satisfy any court that he has not been able to meet the test in s6. The risk identified by Dr Evenhuis was not a far-fetched or fanciful one (see Traynor v McCullough [2011] TASSC 41 at [53]) where it was suggested such a far-fetched or fanciful risk might result in a court determining the offender posed no risk.
The only issue therefore was for how long the appellant's name would be placed on the register. The object of the Act is to reduce the likelihood an offender will re-offend, and to facilitate the investigation of any future offences. It is not to provide a form of extra punishment for an offender. In the submissions made to the learned sentencing judge about whether an order should be made, it was recognized that the nature of the appellant's offending was that it occurred within the context of a relationship. As a consequence, placing the appellant's name on the register was unlikely to act to reduce the likelihood of the appellant committing the same sort of crimes in the course of another relationship, simply because any other female who entered a relationship with the appellant would not necessarily know his name was on the register. Clearly the legislation was more focussed on preventing a sexual predator, for example in relation to children, being able to obtain work with children or live in close proximity to them, thus possibly presenting him or her with possible victims.
Nevertheless, the legislation defines the sexual crimes committed by the appellant as reportable offences and thus requires the making of an order.
In this case, the relevant order was for 10 years from the date it was made. Given that the appellant would not be eligible for parole until he had served three years imprisonment, the practical effect of the order was that the appellant would be subject to it for, at most, seven years from release. The Act, s24, provides for the length of reporting periods. Section 24(3) provides that, in the case of an offender convicted of the crimes the appellant has been convicted of, he or she must comply with reporting obligations for the remainder of his or her life or such lesser period as the Court may determine. The learned sentencing judge clearly determined that, having regard to the factors in this case, a lesser period than life was appropriate The period of 10 years was significantly less than what might be expected to be the life expectancy of the appellant, given he was aged 38 at the time the crimes were committed.
It is apparent from a reading of the provisions in the Act which relate to the length of reporting periods that parliament has determined that the more serious the crime committed and the greater the number of crimes committed, the longer the reporting period can potentially be. In the present case, the appellant committed one Class 3 offence and six Class 2 offences. The seriousness and number of offences committed justified a relatively long period of reporting. I cannot in the circumstances see that her Honour has made any error in the way in which she dealt with the order she made under the Act.
The sentence was just too long
Her Honour imposed a global sentence. She gave no indication in doing so what sentence she might have considered appropriate had she sentenced the appellant in respect of his individual crimes. A global sentence was appropriate having regard to the fact that all the crimes arose out of a sequence of events which occurred close in time and at the same place. The appellant, in his submissions, seemed to have the view that police had dealt with him unfairly in some way by charging him with the number of offences they did even though "technically", given the facts accepted, all the crimes could have been committed. That perception of his has no bearing on whether the sentence imposed could be said to be manifestly excessive.
The appellant submitted that what her Honour had done was impose a sentence of five years for the crime of rape and added another six months for the other crimes. He went further to suggest that, even had her Honour imposed a term of four years for rape and 18 months for the balance of the crimes, that would have been too high. One of the reasons for that appeared to be that if those charges had been dealt with without the rape charge "they would have in all likelihood been resolved in the Magistrates Court". The appellant has failed with this submission to appreciate that a number of the charges he faced, and not just the rape, were indictable matters which could not have been dealt with in the Magistrates Court.
Counsel for the respondent referred in her submissions to a number of sentences imposed by the Court and to a number of sentences considered by the Court of Criminal Appeal. While, in doing so, she accepted that this Court was not confined by any "tariff" for a count of rape, she submitted that the Court should consider the seriousness with which courts generally have treated serious crimes which have occurred in the domestic context.
While I do not pause to refer to each of the authorities and sentences to which counsel referred, I have had regard to them. Counsel also referred to the table of sentences which appeared in Professor Warner's text, Sentencing in Tasmania, 2nd ed, Federation Press, 2002. Her submission ultimately was that, having regard to the factors relevant to this case, the sentence imposed was not manifestly excessive.
The appellant was unrepresented on this appeal. He had been supplied with details of the authorities and sentences to which counsel for the respondent referred. It was clear he had considered them because he made reference to a number. It is apparent from the material referred to that the global sentence imposed on the appellant, if one were to try to make a comparison with other sentences, was certainly within range. However the appellant's case needs to be looked at individually with regard to the factors relevant to it. Those were in summary:
·The appellant was sentenced in respect of nine crimes.
·All the crimes were serious, one, that of rape, being one of the more serious crimes dealt with in this jurisdiction.
·The crimes were committed against the appellant's wife in what had recently been the parties' family home. The commission of the crimes constituted a gross breach of trust.
·The crimes were committed in circumstances where the appellant effectively tricked his wife into agreeing to being alone with him, and where he planned to read her a suicide note and if possible have sexual contact with her (no finding was made he planned to commit the sexual crimes he did).
·The crimes were not crimes of passion, in the sense of crimes committed in immediate response to some significant stressor. There was an element of planning.
·Even apart from the sexual violence, the crimes involved actual physical violence and threats of violence.
·The crimes involved domination, physical degradation and humiliation of the complainant.
·The crimes were committed in circumstances where it had been made clear, prior to the day, that the complainant did not wish to continue with the parties' marriage, a position which the appellant would not accept. As a consequence he was in a highly emotional state. It was accepted that during the reading of the suicide note he was crying.
·Prior to these crimes, the appellant was a good and loving father to his children, had consistently worked and provided for his family and was well thought of in his workplace. He had no prior convictions.
·The appellant had lost a great deal as a consequence of these crimes. He had lost contact with his children and faced an uncertain future as far as that was concerned. While he had resigned from his employment the day before the crimes were committed in anticipation of taking his own life, he will have considerable difficulty obtaining employment upon release.
·Incarceration will be difficult for the appellant.
·The appellant was not entitled to any discount on sentence for a plea of guilty.
·The appellant had shown no remorse. The appellant gave evidence at trial during which he maintained the position that no assaults occurred and any sexual acts had been consensual. The appellant's written and oral submissions on the hearing of the appeal were to the effect he had not committed any of these crimes.
·The impact on the complainant has been significant and will require that she have ongoing psychological treatment.
All of these factors lead to a conclusion that a significant sentence of imprisonment was required. I am not satisfied that the sentence imposed by the learned sentencing judge was in any way inappropriate having regard to those factors.
I would dismiss the appeal.
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