R v Deboo
[2019] SASCFC 74
•1 July 2019
Supreme Court of South Australia
(Court of Criminal Appeal)
R v DEBOO
[2019] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Auxiliary Justice David)
1 July 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Appeal against sentence.
The applicant pleaded guilty to six counts of sexual nature committed against two young boys who were aged 13 and 11 years respectively at the time of the offending. The applicant was sentenced pursuant to s 26 of the Sentencing Act 2017 (SA) to a term of three years' imprisonment with respect to the offences committed against the first victim and a term of three years, seven months and six days' imprisonment with respect to the offences committed against the second victim. The two sentences were ordered to be served cumulatively. The trial Judge declined to suspend the total head sentence of six years, seven months and six days, and found that there were no special reasons to justify a home detention order.
In seeking permission to appeal his sentence, the applicant complains that both the sentence and the non-parole period are manifestly excessive, and that the trial Judge erred in finding that special reasons did not exist to justify a home detention order pursuant to s 71(4) of the Sentencing Act 2017 (SA).
Held, per Kelly J (Stanley J and David AJ agreeing), refusing permission and dismissing the appeal:
1. There was no error in the Judge's approach to sentencing and the sentence imposed was within the range available to the sentencing Judge (at [82]). The sentence appropriately reflects the overall criminality of the applicant's offending in the context in which it occurred (at [47]).
2. The applicant did not satisfy the criteria in s 71(4) so as to justify a home detention order (at [83]).
Sentencing Act 2017 (SA) ss 26, 53, 54, 71(2)(b)(ii), 71(4), referred to.
R v E, AD (2005) 93 SASR 20; Attorney-General v Grosser [2016] SASC 49, applied.
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, distinguished.
Thomas v Attorney-General (SA) [2019] SASCFC 21, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"appreciable risk"
R v DEBOO
[2019] SASCFC 74Court of Criminal Appeal: Kelly and Stanley JJ, David AJ
KELLY J.
Introduction
The applicant, Vivian Frederick Deboo, appeals a sentence imposed in the District Court on 4 December 2018 for six counts of a sexual nature committed against two young boys who were then aged 13 and 11 years respectively.
The District Court Judge imposed sentences pursuant to s 26 of the Sentencing Act 2017 (SA) (“the Act”). As to the first three counts (two counts of indecent assault and one count of performing an act of gross indecency on the first victim), the Judge imposed one penalty of three years imprisonment, reduced from three years four months for pleas of guilty. As to the remaining three counts (two counts of indecent assault and one count of performing an act of gross indecency in respect of the second victim), the Judge imposed one penalty of three years, seven months and six days imprisonment, reduced from four years for pleas of guilty. The Judge ordered that the two terms of imprisonment be served cumulatively.
The overall head sentence was therefore six years, seven months and six days. The sentencing Judge imposed a non‑parole period of five years, three months and 11 days. He declined to suspend the term of imprisonment and found that there were no special reasons pursuant to subsections 71(2)(b)(ii) and 71(4) of the Act to justify an order that the sentence be served on home detention.
There are three grounds of appeal advanced by the applicant which have been referred to this Court for permission.
The first is a complaint that both the sentence and non‑parole period imposed are manifestly excessive. The second complaint alleges an error by the sentencing Judge in declining to suspend the term of imprisonment and by incorrectly stating that no submissions had been made that the sentence be wholly suspended. The third complaint is that the Judge erred in finding that no special reasons existed to justify an order that the sentence be served on home detention pursuant to s 71 of the Act.
At the outset of the proceedings before this Court, the applicant’s counsel emphasised that the applicant does not resile from the positive submissions for a suspended sentence that were put before the learned sentencing Judge. The applicant maintains on the appeal that the learned sentencing Judge fell into error by erroneously saying that the issue of suspension was, in effect, conceded by the applicant. However, the applicant nevertheless concedes that, given the gravity of the offending, it would be difficult to find good reason to suspend. The applicant therefore confined his argument to the complaints about the overall sentence imposed and the failure to order home detention, which the applicant contended was available and should have been granted.
In light of the concession made by counsel for the applicant in this Court, I do not find it necessary to consider ground 2 any further.
Factual background
Before turning to discuss the grounds of the appeal, it is necessary to summarise the factual basis for the sentence imposed.
The two victims of the applicant’s sexual offending are brothers. A, the elder boy, grew up in Victor Harbor, where his family were closely involved in the local church community. The applicant was also a member of that church community and ran a café in the main street of Victor Harbor. Around the time of A’s thirteenth birthday, the applicant offered A a job as a kitchen hand working for one night a week from 5 pm until 8 or 9 o’clock at night.
Approximately six months later the applicant asked A to assist him with a week-long catering job at a nuns’ retreat in Aldgate. The applicant told A he would pay him $200 for the week and that it was necessary for them both to stay at the convent for the duration of the week. A’s parents let him accompany the applicant as he was a very respected member of the church community in which they lived.
The applicant and A stayed together in a caravan on the property at Aldgate. After dinner, the applicant told A that it was time for a shower and stripped naked in front of A. While he showered, the applicant commented on A’s physique. There was only one bed in the caravan and the applicant told A they would have to “bunk together”. After they went to bed, the applicant spoke to A about masturbation. He took hold of A’s genitals, initially on the outside of his underwear, and then placed his hands inside and started to masturbate A. A was paralysed with fear and could not speak or move. The applicant masturbated himself and A for about five to 10 minutes. When A tried to get out of the bed and leave, the applicant tried to prevent him from doing so. A felt a great deal of pain in his anal rectal area, somehow caused by the applicant. Eventually he escaped from the bed and curled up under the dining table with his arms up to protect himself. He spent most of the nights that week under the table. Eventually the applicant’s wife picked A up and took him home. The anal pain continued for about a week.
That is the conduct which gave rise to the two counts of indecent assault and the commission of the act of gross indecency in A’s presence. That conduct occurred between September and October 1991.
The three counts in relation to A’s younger brother, B, occurred about a year later in 1992. When A finished working at the applicant’s café, the applicant arranged through the victims’ parents for B to work there. At that time, B was 11 or 12 years old. On the first day of work the applicant gave B dinner and dessert, and he encouraged the boy to drink as much soft drink as he liked. At the end of the evening, on the pretext of drying B’s shirt, he approached B, unbuttoned his shirt and took it off. The applicant then sat with B while the shirt dried, exposed his penis and began to talk to B about masturbation, interspersed with religious preaching. He then masturbated himself and fondled B’s penis. At that time, the applicant was holding B and had positioned him standing on a crate, with his hands under B’s armpits. B felt trapped and terrified. The applicant then ran his hands over B’s torso, legs, bottom and genitals and rubbed himself against B. B also experienced pain in his anus, which he believed was digitally caused by the applicant. He tried to move the applicant’s hands away from him. He eventually did knock his hand away, shouted ‘no’ and went home. Before he did so, the applicant told him that it was all right, that he would call his parents and that, although B had been naughty, the applicant would look after B.
Neither A nor B was able to speak about what had occurred for many years.
The applicant eventually pleaded guilty to each of the six counts of offending outlined above on the morning of his trial.
The applicant did not come before the Court as a first offender. In April 1996, the applicant was convicted of nine counts of indecent assault and one count of unlawful sexual intercourse committed against three different young men between August 1990 and March 1991.
Apart from the one count of unlawful sexual intercourse, which consisted of an act of fellatio in relation to one of the young men, the remaining nine counts all involved mutual masturbation between the applicant and the respective victims.
The sentencing Judge on that occasion found that there were positive features which augured well for rehabilitation and imposed a head sentence of six years for all nine counts. She imposed a non‑parole period of two years and declined to suspend the sentence.
I turn now to the first ground of appeal.
Ground 1 – was the sentence manifestly excessive?
In support of the submission that the overall sentence imposed is manifestly excessive, the applicant complained that the sentencing Judge wrongly characterised the offending against each victim as “a course of conduct” and failed to apply the principle of totality. The applicant submits that these were both fundamental errors which led the Judge to impose a sentence which was manifestly excessive.
The applicant argued that as the three offences in relation to each of the victims were not separate incursions into offending, it was therefore inappropriate for the judge to have accumulated the sentences in the way he did without at least taking into account the principle of totality.
The Judge’s observation that he could not reach any conclusion as to the genuineness of the applicant’s remorse was also criticised. The applicant contends that there was no evidentiary basis for a conclusion that the applicant was not genuinely contrite. The applicant pointed to the pleas of guilty, the fact that there is no evidence that the applicant has offended since the 1990s, and that he has taken positive steps to rehabilitate in the meantime.
The applicant sought support in the submission that the sentence imposed by the Judge was manifestly excessive by pointing to the fact that a lesser sentence had been imposed by Nyland J in 1996 for more serious offending in relation to three victims. He also invoked observations made by Kourakis CJ in Thomas v Attorney-General (SA)[1] in support of the submission that home detention with electronic monitoring should have been ordered by the Judge.
[1] [2019] SASCFC 21.
In my view, each of the applicant’s arguments in support of this ground of appeal are misconceived.
At the outset, I note that the applicant, by the commission of these offences, became a serious repeat offender as defined in s 53(1)(c) of the Act. That in turn led to a requirement, by virtue of s 54 of the Act, that whatever head sentence the Judge imposed he was required to impose a non‑parole period of 80 per cent.
The applicant’s offending was very serious. It was premeditated and involved calculated grooming of both A and B which in turn involved a gross breach of trust engendered by the fact that A and B and their family were members of the same church community as the applicant.
The grooming of A took place for a period of six months during A’s employment at the applicant’s café. Later, when encouraging him to attend the retreat at the Aldgate property, he offered A $200 for his attendance. In relation to B, he offered him employment at the same café and offered him treats that he would not get at home.
The offending against the two boys involved fondling of their genitals inside their underwear and masturbation in front of both of them. The indecent assaults which involved the touching of both boys in the anus area were particularly serious and caused both A and B considerable pain for an extended period of time.
The applicant relied on his physical size to overbear A when he tried to leave the caravan. As a consequence, A spent most nights in the caravan cowering under a table. When A did try to call his parents later, he was overborne by the applicant standing over him.
In relation to B, the applicant forced himself onto B and continued to indecently assault him even when B tried to slap him away. He then stated he would call B’s parents, proselytised religious teachings, and told B he was naughty in order to avoid his offending being detected.
The psychological report of Mr Broomhall, tendered during the sentencing proceedings, did not identify any psychological or psychiatric condition or any other identifiable personality disorder relevant to the applicant.
It is not insignificant that the applicant was to be sentenced against the background of the previous sentence imposed for similar, but more extensive, offending which had occurred only months prior to the subject offending in 1990 to 1991. It is somewhat ironic, notwithstanding the sentencing Judge’s optimism in 1996 concerning the applicant’s prospects of rehabilitation, that, unbeknown to the sentencing Judge in 1996, the applicant had already offended again within months.
In a home detention suitability report provided to the Court during the sentencing proceedings, the author noted that, although the applicant admitted that what he had done was wrong and acknowledged the hurt he had caused, he demonstrated a lack of awareness and insight into the possible reasons why A and B may not have been willing to come forward shortly after the offending had occurred.
Mr Broomhall assessed the applicant’s risk of re-offending as in the low risk range. Nevertheless, some of Mr Broomhall’s observations regarding the applicant’s post-offence conduct and treatment are of some concern. He said:
In my opinion, the combination of underlying stable same-sex attraction, re-igniting same-sex attraction and behaviours in a covert manner as opportunities presented whilst travelling, with cognitive distortions around the acceptability of engaging teenagers in sexual acts and the opportunity presented in the form of employing young boys in his café provided the background for understanding Mr De Boo’s [sic] offending behaviour at the time. Given that Mr De Boo [sic] had for the majority of his life repressed his same sex attraction and had engaged in same sex experimentation in a very covert way, most likely, in my view, meant that he had quite practiced cognitive skills in being able to compartmentalise the wrongfulness of his behaviour and the guilt associated from his desire to achieve sexual fulfilment when it was presented in an opportunistic form in the context of the behaviours reported related to the current charges.
Later, Mr Broomhall commented on the applicant’s self-help strategies to diminish the risk of sexual re-offending when he said:
Whilst certainly Mr De Boo [sic] reported that these strategies were useful for him, there is no evidence‑based frame of reference from which to determine that such means of moderating sexual attraction and behaviours is effective. In my view it would be optimal and most likely more effective if Mr De Boo [sic] were to engage in a course of therapy and strategies endorsed in evidence‑based best practice in forensic psychology as impacting in a meaningful way the control of inappropriate sexual fantasies, urges and behaviours. I was aware that Mr De Boo [sic] reported that he had previously been involved in a group program though SOTAP upon his release from incarceration and found that this was not particularly useful. As such, it may not be worthwhile to recommend that Mr De Boo [sic] engage in such a group‑based program at the current time.
However, in order to reduce future risk, Mr Broomhall opined in conclusion that the applicant would benefit from a tailored one‑to‑one therapeutic program over at least 10 sessions with a forensic psychologist in possession of background and experience in providing treatment and strategies in this area.
It is no doubt against that background that the sentencing Judge made the following comments:
Further, to your credit you have ultimately pled guilty and that has involved both the formal acknowledgement of your guilt and obviated the need for victims to give evidence.
I have regard to the further expressions of remorse reported by Mr Madden and others in their letters, and whilst the court accepts you have expressed that remorse to these people, and it is good that you have done so, it is not possible on the relatively limited information to reach any conclusion as to its level of genuineness.
The applicant made the submission that, because the sentence imposed for the offending against A and B represents about half the maximum penalty for the offence of indecent assault and close to the maximum for an offence of gross indecency, the sentence ultimately imposed is therefore crushing.
In my view, there was no error in the Judge’s approach to sentencing.
The Judge did not mischaracterise the offending as a course of conduct. It is obvious that the impugned remarks were made in the context of explaining why the sentencing Judge intended to sentence according to s 26 of the Act.
That section relevantly states:
26—Sentencing for multiple offences
(1)If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
…
The Judge referred to this section when he said:
Your offending against each victim in effect comprised a course of conduct on each separate occasion.
Accordingly, pursuant to s.26 of the Sentencing Act, for the offences of two counts of indecent assault and one count of gross indecency concerning A, whereby you masturbated his penis and yours at the same time and made contact with his anus, there will be, from a starting point of a single sentence of three years and four months imprisonment, reduced by the 10% statutory discount for your plea of guilty, a term of three years imprisonment.
For your offending against A’s younger brother B approximately a year later, which involved you masturbating yourself and B, then making contact with B’s anus in forceful terms such as to cause him pain for a week, that offending involved a slightly younger child and a higher degree of force and trauma.
So from a starting point of a single sentence of four years imprisonment, after the 10% statutory discount for your plea of guilty, there will be a term of three years, seven months and six days.
As these were wholly separate and consecutive offences against different complainants, in the court’s view they should be wholly cumulative, giving an overall term of six years, seven months and six days imprisonment.
The maximum penalty for one count of indecent assault is eight years’ imprisonment. For one count of gross indecency, the maximum penalty is three years’ imprisonment for a first offence and five years for a subsequent offence.
The applicant was to be sentenced for six offences which in essence involved two episodes of offending against two different boys, separated by months if not a year. There were only two penalties to be accumulated, each penalty reflected the overall criminality of that particular set of offending. While it is true that the Judge did not refer to the principle of totality when combining the sentences for the two sets of offending, it is obvious that he had modified downwards (to a degree) the sentences for each episode of offending by employment of s 26 of the Act.
In R v E, AD,[2] Doyle CJ made the following comments in relation to the principle of totality.
[36] The concept of totality will usually have little part to play when a sentence is imposed in exercise of the powers conferred by s 18A of the Sentencing Act. If the sentencing judge arrives at a sentence, without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate: see R v Major (1998) 70 SASR 488. No further reduction under the totality principle would usually be called for: see R v Bennett [2005] SASC 55 at [15]-[16] (Doyle CJ); R v BRWK (2005) 91 SASR 200 at [16]-[17] (Doyle CJ), at [24]-[25] (Vanstone J). That is not to say that the principle of totality never requires consideration in such a case. Ordinarily one would not expect it to require separate consideration.
[37] The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that “the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J). The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so “crushing” as to call for some reduction in the aggregate: see King CJ in R v Rossi (1988) 142 LSJS 451, cited by McHugh J in Postiglione (at 308). I refer also to the remarks of Kirby J on this point in Postiglione (at 340-341). As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
[38] In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
[2] (2005) 93 SASR 20.
In my view, those remarks are apposite to the complaint which has been made here.
A total head sentence of six years, seven months and six days was well within the range available to the sentencing Judge. It appropriately reflects the overall criminality of the applicant’s offending in the context in which it occurred, that is, separated by a year in time and against the background of the earlier prior offending. That being so it is not necessary to consider any further the principle of totality.
I would refuse permission on this ground of appeal.
Ground 3 – did the Judge err in failing to find that special reasons existed to justify home detention?
I turn now to the only other ground of appeal argued which was that the Judge erred in finding that special reasons did not exist for the making of an order that the sentence of imprisonment be served on home detention.
The applicant contends that, while the terms of s 71(4) of the Act require the Judge to have regard to the matters raised in both subparagraph (a) and subparagraph (b), the Judge did not have to be satisfied of both matters before finding that special reasons exist.
The applicant’s alternative argument was that even if that construction was not preferred, the applicant nevertheless met the criteria for special reasons due to the matters contained in Mr Broomhall’s psychological report.
The applicant’s submission in a nutshell is that, irrespective of the resolution of the question of the proper construction of s 71(4), special reasons existed to justify home detention imprisonment, and his Honour erred in not so ordering.
The proper construction of s 71(4)
As at the time of sentencing, the terms of the relevant sections of the Act were as follows:
71—Home detention orders
…
(2)The following provisions apply to a home detention order:
…
(b) a home detention order must not be made if the defendant is being sentenced—
(ii) as an adult for a serious sexual offence unless the court is satisfied that special reasons exist for the making of a home detention order;
…
(4) In deciding whether special reasons exist for the purposes of subsection (2)(b)(ii), the court must have regard to both of the following matters and only those matters:
(a) whether the defendant’s advanced age or infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general);
(b) whether the interests of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody.
In my view, the applicant’s suggested construction is not supported by the text of s 71(4), nor the context in which it appears and the evident purpose of that section.
Section 71(2)(b) imposes an absolute prohibition on a home detention order being made in certain circumstances including (relevantly for present purposes) an offender being sentenced for serious sexual offences. The purpose of s 71(4) is to provide a limited exception to the s 71(2)(b)(ii) prohibition on making a home detention order in respect of terms of imprisonment imposed for serious sexual offending.
Section 71(4) makes is plain that the intent of the section as a whole is to allow an offender, by reason of advanced age or infirmity, to serve a term of imprisonment on a home detention order, providing that there is no appreciable risk to the community and that the interests of the community would be better served by the offender serving the sentence on a home detention order rather than in custody.
In this regard, paragraph (a) of s 71(4) deals primarily with the safety and protection of the community and the fact that there is a substantially diminished need to deter an offender personally where he no longer poses an appreciable risk.
Paragraph (b) of s 71(4) deals primarily with the remaining sentencing considerations such as general deterrence, retribution, the need to punish, the impact imprisonment may have on the offender, the ability of the department to deal with the age or infirmity of the offender and, finally, rehabilitation requirements.
It is evident that whilst there are some overlapping aspects, each paragraph focuses on different facets of the sentencing process. That, in my view, is only consistent with Parliament intending that the Court be satisfied of both matters before finding that special reasons exist.
In any event, the chapeau of s 71(4) makes it clear that a sentencing Court must have regard to both the matters set out in (a) and (b) and only those matters before finding that special reasons exist. To suggest that the Court could be satisfied that special reasons exist without necessarily being satisfied of both the matters set out in (a) and (b) flies in the face of the text of s 71 as a whole.
In support of the applicant’s contention, the applicant relied on R v Hunt; Ex parte Sean Investments Pty Ltd.[3]
[3] (1979) 180 CLR 322.
In Hunt, the High Court held that ss 40AA(7) of the National Health Act 1953 (Cth) directed the relevant decision‑maker to have regard to only one explicitly mentioned matter, therefore that matter was a fundamental element in making the determination. The Court also concluded that, because the provision in question was so generally expressed, it was not possible to say that the decision‑maker was confined to that consideration and that consideration only, even though the consideration remained a fundamental element of the decision.
Section 71(4) by contrast confines the decision‑maker to considering two matters and “only those matters”, as enunciated in the chapeau.
For these reasons, I would uphold the submissions of the Solicitor-General on behalf of the respondent as to the proper construction of subsections 71(4)(a) and (b).
I observe that the Act has been amended since the date of the hearing of this appeal. The amendments to s 71(4) make it explicit that both matters (a) and (b) must be satisfied before any finding of special reasons could be made.[4]
[4] The amended s 71(4) reads:
Did the applicant satisfy the requirements of s 71(4) in any event?
I deal next with the applicant’s contention that, irrespective of the outcome of the argument concerning the proper construction of s 71(4) (as it stood at the time), the applicant did satisfy the requirements of s 71(4).
The applicant submitted that the report of Mr Broomhall, which was not challenged by the prosecution, provides a proper basis for the conclusion that, by reason of advanced age and self-reports of diminished libido and sexual interest, the applicant no longer presented an appreciable risk to the community. Accordingly, the Judge should have considered whether the interests of the community as a whole would be better served by the applicant serving the sentence on home detention instead of in custody.
In my view, the focus during submissions in the Court below, and to some extent in argument before this Court, on the proper construction of s 71(4) has deflected attention away from what I consider to be the main issue which arises, namely, whether home detention was ever an appropriate option in the applicant’s circumstances. The applicant, by virtue of the commission of these offences, became a serious repeat offender. The offending was very serious and involved sexual offending against two young boys.
A suspended sentence was inappropriate in the circumstances. In my view, for very similar reasons, so too would be an order that the sentence be served on home detention. To do so would, in my view, undermine public confidence in the administration of justice.
It is plain from the Judge’s reasons that he too came to the same conclusion when he said the following:
In any event, at the end of the day, having regard to the statutory framework and the applicable authorities, and all submissions and matters put, the court is of the view that in light of the seriousness of your offending, it not being isolated offending, and the need in particular for adequate punishment and adequate general deterrence, home detention is not appropriate.
It needs to be borne in mind, as this Court has observed before, that home detention is a significantly less onerous form of punishment than an immediate custodial sentence.
Nevertheless, out of deference to the arguments of the applicant, I will deal with the applicant’s contention that the applicant did satisfy the conditions in s 71(4) of the Act.
In my view, the material before the Judge did not establish that the applicant is of such advanced age or infirmity that he no longer poses an appreciable risk to the safety of the community.
In the initial home detention suitability report provided to the Court, the applicant was considered to be not suitable for a home detention order due to the serious nature of the offending, the location of the nominated residence, and the fact that no specialist assessment of the applicant’s risk of sexual re-offending had been conducted. Following the receipt of Mr Broomhall’s report, an addendum home detention suitability report was obtained and provided to the Court. The author of the addendum report maintained the opinion that, having regard to the statutory framework as set out in s 71(2)(b)(ii) of the Act and departmental protocols, the applicant was not a suitable candidate to serve a sentence on home detention conditions.
While Mr Broomhall placed the applicant in the low risk range, it is apparent from the recommendations which he made that he considered it would be optimal, and most likely more effective, if the applicant were to engage in a course of therapy and strategies endorsed in evidence-based practice, as opposed to continuing with his own form of self-help therapy. Furthermore, I note that in placing the applicant in the low risk range, one of the considerations taken into account by Mr Broomhall was the self-report of the applicant of diminishing libido and sexual interest.
The fact is that the applicant is still a relatively healthy, active and sexually capable individual.
The fact that the author of the home detention suitability report and Mr Broomhall both expressed opinions as to appropriate therapies and courses which might assist the applicant to reduce the risk of re-offending, is indication enough that the applicant still does present some risk to the safety of the community.
An “appreciable risk”, as Stanley J observed in Attorney-General v Grosser,[5] means:
…one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree.
[5] [2016] SASC 49.
The criteria set out in s 71(4)(a) (as it then stood) are clear. It means that, by reason of a person’s advanced age or infirmity, it can be inferred that he no longer presents an appreciable risk to the safety of the community.
It is evident from the material presented to the sentencing Court that the criteria in s 71(4)(a) were not met. For these reasons, the applicant did not satisfy the criteria in s 71(4)(a) and (b). I would refuse permission on this ground of appeal.
On the hearing of the appeal, a question arose, and submission were made, as to which version of the Act would apply in the event that this Court were to resentence. In light of the conclusion I have reached, I do not find it necessary to consider this issue any further. The point is now academic.
Conclusion
In my view, there was no error in the Judge’s approach to sentencing and the sentence imposed was within the range available to the sentencing Judge.
The applicant did not satisfy the criteria in s 71(4) so as to justify a home detention order.
For these reasons, I would refuse permission and I would dismiss the appeal.
STANLEY J: For the reasons given by Kelly J I would refuse permission to appeal.
DAVID AJ: I would refuse permission to appeal on all grounds and dismiss the appeal. I agree with the reasons of Kelly J.
“The following provisions apply for the purposes of subsection (2)(b)(ii)(B):
(a) the court cannot be satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B) unless the court is satisfied that—
(i) the defendant's advanced age or permanent infirmity means that the defendant no longer resents an appreciable risk to the safety of the community (whether as individuals or in general); and
(ii) the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody;
(b) the court must not have regard to any other matter in determining whether it is satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B).”
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