R v Gysberts
[1998] VSCA 7
•23 July 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 55 of 1998
THE QUEEN
v
LAMMERT JAN GYSBERTS
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| JUDGES: | TADGELL, CHARLES and BUCHANAN, JJ.A. |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 July 1998 |
| DATE OF JUDGMENT: | 23 July 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 7 |
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Criminal law - Sentence - Crown appeal - Manifest undervaluation of criminality of multiple offences of indecent acts with and sexual penetration of female child under 10 - Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P.A. Coghlan, Q.C. and | P.C. Wood, Solicitor for |
| Mr. C.J. Ryan | Public Prosecutions | |
| For Applicant | Mr. O.P. Holdenson |
TADGELL, J.A.:
This is an appeal by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act 1958. The respondent, Lammert Jan Gysberts, was arraigned in the County Court on 16 February last upon nine counts of committing an indecent act with a female child under the age of 16 to whom he was not married, contrary to s.47(1) of the Crimes Act, the maximum penalty for which offence is 10 years' imprisonment; and upon four counts of taking part in an act of sexual penetration with a female child under the age of 10, contrary to sub-s.(1) of s.45 of that Act, the maximum penalty for which is 20 years' imprisonment; and upon three counts of taking part in an act of sexual penetration with a female child between the ages of 10 and 16 years, contrary to sub-s.(1) of s.46 of that Act, the maximum penalty for which is 20 years' imprisonment. The respondent pleaded guilty to each of the counts of committing an indecent act and not guilty to each of the counts of sexual penetration. After a trial upon the seven counts to which he had pleaded not guilty he was convicted on four and found not guilty on three, two by direction of the trial judge.
The complainant in respect of each count was one or other of two girls, both being daughters of a woman with whom the respondent was living, although apparently not at the relevant time in a provable de facto relationship.
Of the 13 offences of which the respondent was convicted following either a plea of guilty or a verdict of guilty, there were five against a girl, C, in 1991 when she was aged about nine years and some eight or nine months. These consisted of three counts of committing an indecent act and two counts of sexual penetration. There were four offences against C's sister, D, in 1991 when D was aged about eight years and four or five months. These consisted of two counts of committing an indecent act and two counts of sexual penetration. There were a further four counts of an indecent act with the same girl, D, late in 1995 or early in 1996, charged as having been committed over about a three-week period when the girl was aged about twelve years and five or six months. All of the indecent acts charged consisted of the respondent's touching the victim manually on or about her vagina, and all of the acts of sexual penetration consisted of his inserting a finger of his in the victim's vagina. There were in the case of each of the complainants two instances of an indecent act closely followed in time, or accompanied, by an act of sexual penetration, amounting, that is to say, to eight offences in all - counts 2 and 3 and 4 and 5 against the girl C and counts 6 and 7 and 8 and 9 against the girl D.
After hearing a plea in mitigation the learned sentencing judge sentenced the respondent to three months' imprisonment for each of the five offences of committing an indecent act that occurred in 1991 and to four months' imprisonment for each of the four offences of sexual penetration that occurred in 1991, and to two months' imprisonment for each of the four offences of committing an indecent act against the girl D that occurred during the three-week period in 1995-1996. His Honour ordered that where each count of an indecent act with a child under 16 years and each count of sexual penetration of a child under the age of 10 years encompassed a single sexual event, the sentences were to be served concurrently. Otherwise the sentences were to be served cumulatively. In the result the respondent received a total effective sentence of imprisonment of 27 months. His Honour fixed a period of 19 months to be served before which the respondent should not become eligible for release on parole.
The appeal is brought on the following grounds:
1. The sentence imposed in respect of each count was manifestly inadequate.
2. In fixing the sentence imposed in respect of each count the sentencing judge
- (a) failed to adequately reflect the gravity of the offences generally
and in this case in particular; (b) failed to take into account the re-offending in 1995-96;
(c) failed to have any or any proper regard to the serious sexual
offender legislation applicable at the time of sentence.
A third ground, which I need not read, was abandoned this morning.
I need refer but briefly to the circumstances in which the offences were committed. The victims were children of the marriage of their mother and father, who were divorced in 1989. The girl C was born in 1982 and the girl D in 1983. These two children and another daughter of the marriage went to live with their father and his mother after the divorce. There were, however, access arrangements as a result of which the girls used to go every other weekend to see their mother and stay overnight with her and, unfortunately, with the respondent. Their mother was in 1991 living with the respondent at Seaford. On the occasion of each of the 1991 offences the respondent went into the bedroom in which the victim was sleeping and sexually interfered with her, as I have generally described. The elder girl C gave evidence to the effect that she told her grandmother about the respondent's conduct after the third incident of molestation of her in December 1991. She also made a statement to the police about it but evidently, although the respondent received a warning from police, no other action was taken.
By December 1995 the girls' mother and the respondent had moved to a house at Karingal, and the girl D, the younger girl, had by then gone to live in Queensland. The girls went to stay with their mother for about three weeks at the end of 1995 and early in 1996, from just before Christmas until about 12 January 1996. During that period the respondent touched D on the vagina when he was giving her piggyback rides and on one occasion, as she swore, when she was in her mother's bed.
The fundamental submission made on behalf of the appellant this morning was that each of the sentences was manifestly inadequate. It was submitted that a sentence of three months for an indecent act committed on an eight- or nine-year-old girl is patently inadequate. It was submitted that a fortiori a sentence of two months' imprisonment for the commission of an indecent act on a twelve-year-old girl, which D was in 1995-96, is equally inadequate. It was submitted, further, that the 1995-96 offences might be regarded as even more serious than the 1991 offences because, a complaint having been made about the 1991 offences, nothing was done by anyone in authority to prevent the later offences, in respect of which the victim D might well have been thought to regard herself as more vulnerable than she had been in 1991. Again, it was submitted that the sentence of four months for sexual penetration was inadequate in the circumstances of this case. That was particularly so, it was submitted, in the case of counts 3, 5, 7 and 9, where the related counts 2, 4, 6 and 8 attracted sentences which were to be served concurrently with the four sentences for the sexual penetration counts and thus, looking at it from one point of view, reducing the effective sentence for the sexual penetration offences to a mere one month's imprisonment. It was submitted that his Honour must be regarded as having had too little concern - indeed much too little concern - for the offences of sexual penetration.
We were referred to the case of Lomax [1998] 1 V.R. 551, in which this Court characterised acts of digital penetration of a sexual nature as serious, notwithstanding that they were obviously different in character and in some respects carried less risk of physical injury and infection, than other means of sexual penetration.
On behalf of the respondent, Mr Holdenson sought to encourage the Court to regard the overall sentence of 27 months' imprisonment with a minimum of 19 as not manifestly inadequate. Mr Holdenson did not seek to encourage us to regard the individual sentences, either three months or four months or two months, as demonstrably adequate. We were encouraged, on the other hand, to look at the picture overall, particularly having regard to the matters of mitigation which were placed before the judge and to which he said that he had paid regard. These matters included a plea of guilty in respect of nine of the 13 counts of which the respondent had been found guilty and for which he stood for sentence, considerable remorse on his part being demonstrated by the pleas of guilty and by the course of conduct in which he had voluntarily sought to engage himself after having been charged. Then again, there was his age - 37 at the time of the first offence and, I think, some 43 years at the time of the last. He had previously been of good character and there was evidence that what he had done to the two girls had been markedly out of character for him. There was also some evidence that he had conferred some benefit on his community. Most particularly, however, reliance was placed before the judge, and I think before us, upon the treatment which the respondent had voluntarily sought by way of engaging in programmes designed to assist his aberrance of a sexual nature, and his diligent participation in them.
It was submitted, having regard to all these matters, that the case was not one, so Mr Holdenson contended, where this Court ought to entertain favourably a Crown appeal: there was no overall leniency in the sentence having regard to all the circumstances, and unless this Court could conclude that the overall sentence was manifestly inadequate, there ought to be no interference with it.
Speaking for myself, I think this is a clear case where the sentence was manifestly inadequate. Just as it is often observed in the case of an application by a sentenced person for leave to appeal that such a conclusion does not admit of much elaboration, so here. I would accept the submissions Mr Coghlan made to us this morning that the sentences of two, three and four months' imprisonment markedly and manifestly undervalue the criminality of the respondent's conduct. This kind of behaviour calls, in my opinion, for the imposition of a sentence in respect of any one of these offences of a substantial nature. I cannot characterise any of the sentences which the learned judge imposed as of that nature.
The judge made no reference to the serious sexual offender provisions of the Crimes Act. It is not possible to discern, from what his Honour said, whether his Honour had those provisions in mind or not, although they were drawn to his attention by the prosecutor upon the plea. There is a question whether, in re- sentencing the respondent, as in my opinion this Court is bound to do, we should take into account those serious sexual offender provisions. It is clear and it is conceded, as I understand, on behalf of the respondent, that after his conviction following his plea of guilty on the first and second counts of committing an indecent act he was, for sentencing purposes, a serious sexual offender. Although with some hesitation, I would conclude that in the circumstances of this case the Court ought not to pay regard to and reflect in its sentence the serious sexual offender provisions, and that for two reasons. First, this is a Crown appeal. The guidelines which are set out, for example, in R. v. Clarke [1996] 2 V.R. 520 are well known. Secondly, the respondent has shown an evident willingness to reform himself and the Court ought to do what it reasonably can to facilitate a reformation.
We ought to have regard - indeed we are obliged to have regard - to the principle that this is the second occasion on which the respondent has stood for sentence in respect of the offences for which he has been convicted. But for that, and the other reasons I have indicated for not applying the serious sexual offender provisions, the sentences which I would propose would be higher than those which I do propose.
In my opinion the respondent ought to be re-sentenced in respect of each of the nine counts of committing an indecent act, that is to say counts 1, 2, 4, 6, 8, 11, 12, 13 and 15, to a period of 18 months' imprisonment. Upon each of the four counts of sexual penetration of a girl under 10, namely counts 3, 5, 7 and 9, he should be sentenced to imprisonment for three-and-a-half years. I would propose that each of those sentences be served concurrently with the others, producing a total head sentence of three-and-a-half years' imprisonment. I propose a minimum term of two-and-a-half years before which the respondent should not be eligible for release on parole.
CHARLES, J.A.:
I agree.
| BUCHANAN, J.A.: | |
| 17 | I also agree. |
| TADGELL, J.A.: | |
| 18 | The judgment of the Court will be in accordance with these minutes: |
1. Appeal allowed.
2. Sentences set aside.
3. In lieu order that on counts 1, 2, 4, 6, 8, 11, 12, 13 and 15 the respondent be sentenced to imprisonment for 18 months; and that on counts 3, 5, 7 and 9 the respondent be sentenced to imprisonment for three-and-a-half years. For the purposes of s.16(3A) of the Sentencing Act 1991 it is directed that the sentences be served concurrently. The total effective sentence is one of three- and-a-half years.
4. The Court directs that the respondent serve two-and-a-half years before
becoming eligible for release on parole.
5. The Court declares that 152 days of the sentence have been served and that
the declaration be noted in the records of the Court.
The Court will direct that the respondent should have a certificate
pursuant to sub-s.(3A) of s.13 of the Appeal Costs Act.
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