R v Cass
[2005] VSCA 77
•13 April 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 114 of 2004
| THE QUEEN |
| v. |
| PETER EMMET CASS |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 March 2005 | |
DATE OF JUDGMENT: | 13 April 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 77 | |
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Criminal law – Sentence – Sexual offences – Sentencing judge mistook facts – Sentencing discretion reopened – Serious sexual offender – Disproportionate sentence not required in order to protect the community.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Mr S. Carisbrooke, |
| For the Appellant | Mr L.C. Carter | Victoria Legal Aid |
CALLAWAY, J.A.:
I agree with Buchanan, J.A.
BUCHANAN, J.A.:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing five counts of an indecent act with a child under the age of 16 years, three counts of an indecent act in the presence of a child under the age of 16 years, and one count of taking part in an act of sexual penetration with a child under the age of 16 years. The maximum penalty for each of the first eight offences was 10 years' imprisonment and for the last offence 15 years' imprisonment, because it took place at a time when the victim was under the care, supervision or authority of the appellant. After a plea the appellant was sentenced to be imprisoned for a term of four months on each count save that of sexual penetration, in respect of which the appellant was sentenced to be imprisoned for a term of four years. A measure of cumulation produced a total effective sentence of six years' imprisonment. The sentencing judge fixed a non-parole period of four years.
The appellant has been given leave by a single judge of this Court to appeal against his sentence.
The appellant was aged between 43 and 44 years when the offences were committed. The victim of each of the offences was between 12 and 13 years old. The appellant ingratiated himself with the victim’s family. The first of the offences occurred when the appellant drove his victim to a warehouse in Richmond, where he took him to a toilet and the appellant exposed his erect penis (count 1). The appellant forced his victim to masturbate him and then fondled his victim’s penis. On the same day the appellant drove his victim to a public toilet where he showed him pornographic magazines (count 2). On another occasion the appellant picked up his victim and took him to the appellant’s house to mow the lawn. After his victim had mown the lawn, the appellant took him inside the house, showed him pornographic videos, reclined on a couch and commenced to masturbate himself
(count 3). On the same day the appellant, his wife and the victim went to a swimming pool. In the water the appellant placed his hand on the victim’s penis over his swimming suit (count 4). On another occasion the appellant was a team leader at a church camp attended by his victim. The appellant gave his victim horse rides and took the opportunity to fondle his penis (count 5). At the camp at night the victim awoke to find that the appellant had pulled his pants down and was shining a torch on his penis (count 6). Again, at the camp the appellant fondled his victim’s penis when he, the appellant and another boy were wrestling (count 7). When the appellant and his wife were babysitting the victim and his sisters and the appellant was alone with his victim in the kitchen, the appellant pulled down his pants, bent over and bared his backside to his victim (count 8). The last offence occurred when the appellant’s victim was asleep. The appellant approached the bed, placed his hand over his victim’s mouth and, lying on top of him, penetrated his anus with his finger, pushing it in and out a number of times (count 9). The appellant subsequently told his victim that he would kill him if he told anyone about what had happened.
The offences were reported to the police some seven years after they occurred. The appellant made full admissions to the police.
The appellant is now 54 years old. According to the history which he recounted to a psychiatrist, the appellant’s father was in prison at the time of the appellant’s birth and the appellant’s mother abandoned him when he was six months old. He was brought up by his grandmother. At an early age he was regularly sexually abused by an older cousin and brother. He ran away from home on many occasions. He had his first homosexual relationship at the age of 12 years. In his teens he was placed in a boys’ home after repeatedly running away from home, heavy drinking, being involved in fights and stealing cars. The appellant has been unemployed since the age of 28 years. He lived for some years on unemployment benefits and subsequently on the disability support pension. The appellant has for some time suffered poor mental and physical health. He was treated by a psychiatrist for many years, and was on three occasions hospitalized as a consequence of mental illness.
The appellant had 36 prior convictions from nine court appearances. His convictions in the late 1960s and 1970 were for driving offences and larceny. In 1974 the appellant was convicted of two charges of indecent interference, in 1975 on three charges of indecent assault on a male and in 1983 on charges of indecent assault and obscene exposure in a public place. In 1984 the appellant was sentenced to be imprisoned for a term of eight years with a minimum term of five years upon being convicted on five charges of sexual penetration with a child under the age of 10 years, six charges of sexual penetration with a child above the age of 10 years but under the age of 16 years and 11 charges of indecent assault.
There is a large number of grounds of appeal. It is not necessary to canvass all of them, for in my view the first ground has been made good. It is:
“The learned sentencing judge fell into error by taking into account information to the effect that Mr Cass had ‘fallen in love’ with a 23 year-old male since the offences occurred, although there was no evidence of any sexual contact with or offending against this man.”
The sentencing judge’s error arose from a report by Dr Arumugan, a psychiatrist, who said that he regarded the fact that the appellant had fallen in love with a 23 year-old male as a positive sign that the appellant’s ”sexual drive became more socialized.” The sentencing judge misinterpreted the psychiatrist’s opinion, saying:
“The reference by him to your attachment to a 23 year-old male makes the submission that you no longer pose any threat to the community doubtful.”
The question whether the appellant was able to control his paedophilic tendencies was critical to the sentencing judge’s assessment of the danger the appellant posed to the community, which was a significant factor in determining the sentence which was appropriate. In my view his Honour’s error vitiated the exercise of his discretion, for he mistook the facts.[1]. Accordingly, in my opinion it is necessary to re-sentence the appellant.
[1]House v. R. (1936) 55 C.L.R. 499 at 505 per Dixon, Evatt and McTiernan, JJ.
When the appellant was sentenced the offences were some ten years in the past. Since the commission of the offence the appellant had taken significant steps to combat his paedophilia.
Three years after the commission of the offences the appellant submitted to chemical castration without the immediate threat of court proceedings, although, as his Honour observed, there was some doubt as to the effectiveness of the treatment. The appellant told his treating psychologist that he did so because he was frightened that he could not control his behaviour. The psychologist reported to the Court that the appellant was candid about his behaviour and described a “rare demonstration of remorse in a true and meaningful manner.”
In 1997 the appellant was referred to Dr Arumugan, who diagnosed an antisocial personality disorder, exclusive paedophilia confined to male children between the ages of 11 and 14 years and other disorders. His treatment included psychotherapy and cognitive behaviour therapy and reduction of sexual urges by the administration of drugs. The psychiatrist recorded that generally the appellant’s symptoms responded well to psychotropic drug therapy and that his libido and sexual activity were controlled by Androcur and cognitive behaviour therapy.
In the last few years the appellant’s physical health has dramatically declined. He has suffered a number of strokes and undergone several heart operations, including a triple bypass. Dr Arumugan concluded:
“Generally the recidivism rate of someone like Peter is extremely high and his history again proves it. However his failing physical health and the more healthy level of psychosocial and psychosexual maturity decreased the risk of offending. But there is no guarantee that he will not offend again.”
As a consequence of his prior convictions the appellant is to be sentenced on each count as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991. Consequently, if this Court considers that a sentence of imprisonment is justified, the Court must regard the protection of the community as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence which is disproportionate to the gravity of the offences (s.6D).
The sentencing judge considered whether the appellant was likely to offend again. He said:
“There can be no question, and it is not disputed, that you are a long-term recidivist paedophile and it would appear that you may represent a continuing although diminishing risk to the community, and no doubt your failing health will reduce your risk in the community.”
Later he said that “I am not satisfied that you no longer represent a risk to the community …”[2] His Honour referred to the serious offender provisions, but did not say that he considered a sentence longer than that which was proportionate to the gravity of the offences was required in order to protect the community. Having regard to the sentence which he did impose, I doubt that he considered it necessary to impose a disproportionate sentence.
[2]The sentencing judge appears to have imposed upon the appellant the onus of establishing that he did not pose a risk to the community. If he did so, that was an error. See R. v. Pickard [1998] VSCA 50.
Having regard to the lapse of time since the commission of the offences and the significant progress made by the appellant since then to suppress his paedophilic tendencies, I do not think it necessary to impose a sentence which is longer than that which is proportionate to the gravity of the offences in order to protect the community from the appellant. As Callaway, J.A. said in R. v. Barnes[3]:
“The discretion to impose a disproportionate sentence is rarely exercised, and rightly so because it is rarely necessary.”
In my view it is not necessary in this case.
[3][2003] VSCA 156 at 21.
The offences were serious in that the appellant betrayed the trust reposed in him by the victim and his family and the offences appeared to have affected the behaviour and personality of his vulnerable victim. On the other hand, the appellant is entitled to have weighed in his favour his pleas of guilty, the remorse found by the sentencing judge, his disturbed and deprived upbringing, the state of his health and the efforts he has made to rehabilitate himself.
I would re-sentence the appellant to a term of nine months' imprisonment on each of counts 1 to 8 and to a term of three-and-a-half years' imprisonment on count 9. I would order that six months of each of the sentences on counts 1 to 8 be served concurrently with the sentence on count 9, creating a total effective sentence of five-and-a-half years' imprisonment. I would fix a period of three years before the appellant is to be eligible for parole. The fact that the appellant has been sentenced as a serious sexual offender is to be entered in the records of the Court.
EAMES, J.A.:
I agree with the orders proposed by Buchanan, J.A., and with the reasons given by his Honour for allowing the appeal against sentence and for re-sentencing the appellant as he has proposed.
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