R v HORSTMANN
[2009] SASC 135
•21 May 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HORSTMANN
[2009] SASC 135
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice David)
21 May 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appellant pleaded guilty to five counts of indecent assault - sentenced to imprisonment for 5 years with non-parole period of 3 years - appeal against sentence - whether sentence manifestly excessive - whether appropriate credit given for time spent in custody and on home detention bail both in terms of head sentence and non-parole period - whether sentencing judge misapprehended the circumstances of previous offending - whether sentence should have been backdated.
Held: Head sentence and non-parole period not manifestly excessive - sentencing judge appropriately took into account the time spent in custody and on home detention bail - misapprehension of facts did not affect the sentencing procedure - sentence does not need to be backdated - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Bryden [2006] SASC 203; R v Malesevic (1999) 204 LSJS 32, discussed.
R v Carr (2008) 101 SASR 13, considered.
R v HORSTMANN
[2009] SASC 135Court of Criminal Appeal: Vanstone, Anderson and David JJ
VANSTONE J. In my opinion this appeal should be dismissed. I agree with the reasons of Anderson J.
ANDERSON J.
Introduction
The appellant pleaded guilty in the District Court to five counts of indecent assault. The victim was a 16 year old boy. There were two separate occasions on which the offences were committed. The offences took place between 1 May 2004 and 25 December 2004. The sentencing judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. The learned judge imposed a head sentence of 5 years imprisonment with a non-parole period of 3 years. The maximum penalty for these offences was imprisonment for 8 years.
Background
The agreed facts upon which the judge proceeded to sentence the appellant were recorded in a document which conveniently sets out the relevant background. I set out the Agreed Facts hereunder.
The complainant [J] was born on the 1st of May 1988.
The Complainant first met the Accused when he was about 12 or 13 years old, in 2001 or 2002.
The Complainant’s grandparents, [names omitted] have lived at [address omitted] since 1974. The Accused lived 2 doors down from his grandparents at [address omitted]. The Complainant would visit his grandparents regularly. The Complainant first met the Accused when he was playing at his grandparents place and the Accused was there visiting his grandparents. The Accused spoke to the Complainant about the possibility of going out with him and playing squash.
After that meeting, the Complainant and the Accused caught up weekly to play squash first at the Body Workshop on North East Road, Klemzig and then at Turramurra Recreation Centre, Lower North East Road, Highbury.
The Complainant was about 14 years old when they played squash at Turramurra and was in year 8 at school. The Complainant remembers around bout this time, when they were playing squash at Turramurra the Accused took photos of the Complainant as he was hitting a squash ball with his shirt off. The Accused said he was taking it to show the before and after effects of his muscle tone. He used an old camera and gave the Complainant photos.
The Complainant began to see more of the Accused.
On an occasion when the Accused and the Complainant went to Turramurra Squash courts all the courts were booked so the Accused and the Complainant went to Karalinga to play squash and soon after they decided to keep playing squash there (instead). The Accused asked the Complainant whether he wanted to take coaching lessons but to be able to take those lessons, you had to be a member of the club. The Accused bought the Complainant a membership to the club as a present. The membership was for 1 year. The Complainant continued to play at those courts after the membership had expired.
After playing squash the Complainant and the Accused would return to the Accused’s house and the Accused would often offer to give the Complainant back rubs. The Complainant would sometimes accept and receive a backrub in his bedroom. The Accused would give or offer massages to the Complainant after squash on a weekly basis.
The Accused’s relationship developed with the Complainant and they began to see more of each other and the Accused began to teach the Complainant to shoot. The Accused taught the Complainant to shoot an air rifle that he owned and they would shoot it at his house. The Accused also took the Complainant camping on various occasions over weekends to various sites including Allawoona which is near Loxton and various surrounding areas. From 2002 onwards the Accused went camping with the Complainant about 7 or 8 times.
When the Accused took the Complainant camping he showed the Complainant how to shoot his long barrel shotgun and his air rifle. On at least two occasions, the Complainant took a friend [P] with him and on another occasion his girlfriend [K] came with them also. When camping, the Accused and the Complainant slept in separate swags outside in the bush.
During this period, the Complainant would also help the Accused in his job cleaning bus shelters or on occasions, putting up posters and afterwards or prior to helping, he would stay at the Accused’s house, sleeping in the same bed.
During the Complainant’s first few years of high school he saw the Accused frequently and would inform him of his day to day activities. The Complainant recalls that the Accused helped him out with his year 9 maths homework and speaking to him about his selection in an under 15s State touch football team.
In late 2004 prior to Christmas the Accused helped the Complainant refurbish an old telephone for his mother’s birthday present.
During 2004 the Accused also taught the Complainant how to weld.
Count 1
In 2004 when the Complainant was 16 years old the Complainant and the Accused returned to the Accused’s house after a squash game. The Complainant told the Accused he was feeling sore. The Accused told the Complainant to go into his bedroom and that he would give the Complainant a massage. He told the Complainant to sit on the bed and take his top off.
The massage commenced in the Accused’s bedroom with Vitamin E cream being applied to the Complainant’s back.
The Complainant told the Accused that his legs were also sore. The Accused suggested the Complainant remove his pants and the Accused massaged the Complainant’s legs and buttocks. The Accused suggested that the Complainant’s underpants were getting in the way and he removed the Complainant’s underpants and the massage continued.
The Accused told the Complainant to turn over onto his back. The massage continued. The Accused then began to fondle the Complainant’s penis while talking to the Complainant asking him how it felt and “being really nice about it”.
The Complainant was feeling anxious and unsure but did not tell the Accused to stop. The Accused continued to fondle his penis desisting a while later saying something like “That’s enough. That will do”. The Complainant did not ejaculate. The Accused said something like “You lasted well for your first time. You will make a good lover”. The Complainant got dressed and they talked until the Complainant went home.
In late 2004 prior to Christmas, and whilst the Complainant was still attending school in year 10, on a weekend at about 6.30-7 pm the Accused and the Complainant went out to get dinner from a Chicken Shop before returning to the Accused’s place to eat.
Counts 2-5
The Accused and the Complainant ate together before going to lay down in the Accused’s bed. The Complainant was going to help the Accused change posters on bus shelters the next morning. The Accused and the Complainant spoke about what time they would get up the next morning.
The Accused began to run his fingers over the Complainant’s shoulders and back.
Count 2
The Accused put the Complainant’s right hand on his penis. The Accused moved the Complainant’s hand up and down over his penis a few times and then let his hand go. The Complainant removed his hand. The accused took his hand again and placed it on his own penis again. The Accused said “Sometimes when you are in a relationship with a girl she may not want to do this and she may need a gentle nudge”. The Accused directed the Complainant’s hand back onto his penis and the Complainant started to masturbate him by rubbing it up and down. The Complainant continued to do this and the Accused became erect. The Accused ultimately ejaculated onto the Complainant’s stomach and chest.
Count 3
As the Complainant was masturbating the Accused he was asking the Complainant how he would get himself off and how he would do it. The Accused began masturbating the Complainant’s penis with his hand.
Count 4
In the course of masturbating the Complainant, the Accused’s mouth made contact with the Complainant’s penis, not amounting to penetration, to put saliva on his penis.
Count 5
In the course of the Accused masturbating the Complainant, the Accused pressed his thumb against the peri-anal area of the Complainant while describing the position of a sensual please centre known as the “g spot” not amounting to penetration of the anus.
After this offending, the Accused told the Complainant that this did not make the Complainant “… gay because of this”. The Accused gave the Complainant a hug and a kiss on the back of his head. The Complainant then went to sleep.
On 28 March 2007, the Complainant provided a photo album containing photographs to Senior Constable Baird. The photographs were given to the Complainant throughout the years by the Accused as they were prints of those ones the Accused had taken of the Complainant on camping trips.
On 8 January 2008, the Complainant attended at the Holden Hill police station and Senior Constable Baird handed the Complainant a photo booklet marked DNH02. The Complainant recognised those photographs as being some taken by the Accused that he had seen at his house and some that he had provided copies of to the Complainant. The Complainant was not able to see any notes made on the photographs as they had been covered by pieces of paper. The Complainant viewed the photographs and Senior Constable Baird recorded what the Complainant told her about them on a table marked DNH02-1.
At all materials time (sic) the Accused knew that the Complainant was 16 years old.
In April 2007 police were informed of allegations of sexual contact between the Complainant and the Accused. The Accused was arrested on 8 April 2007.
Previous criminal history
The appellant had previously pleaded guilty to four counts of indecent assault and five counts of unlawful sexual intercourse. These offences were committed against the appellant’s nephews who, at the time of the offending, were respectively aged 10 and 12 years. These offences took place between March 1990 and January 1994.
For these crimes the appellant was sentenced, in November 1994, to imprisonment for 7 years with a non-parole period of 4 years 6 months. He was released on parole on 30 April 1999.
In June 1999, the appellant was sentenced for three counts of indecent assault over a period of four years on a boy aged between 12 and 16 years. These offences occurred between late 1986 and May 1990, prior to the offences for which he was imprisoned for 7 years. The magistrate, when dealing with the appellant on that occasion, sentenced him to 3 years imprisonment with a non-parole period of 18 months, which sentence was suspended.
The sentence imposed
The learned sentencing judge in his sentencing remarks indicated that in reaching his sentence he began with a nominal starting position of 7 years imprisonment which he then reduced to 5 years and 3 months on account of the appellant’s guilty plea. There was no complaint relating to this discount. His Honour then further reduced the nominal head sentence by 3 months to account for both the time the appellant spent in custody and also to include some allowance for time spent on home detention. As a result the head sentence was reduced to 5 years imprisonment.
Notice of Appeal
There are three broad heads of appeal. The first is that the head sentence is manifestly excessive. It was submitted that the reduction of 3 months on account of the time spent in custody, which amounted to 38 days, and in respect of home detention bail, a period of 21 months, was too little in the circumstances.
The second ground of appeal is that the non-parole period is manifestly excessive. In particular, complaint is made that the non-parole period imposed did not take sufficient account of the time spent in custody and on home detention, and in addition, that it failed to adequately reflect the appellant’s prospects of rehabilitation.
The third ground of appeal is that the sentencing judge made a mistake in his misapprehension of the circumstances of the earlier offending for which he had been imprisoned. The misapprehension relates to the age of one of the victims.
Ground 1: Is the head sentence manifestly excessive?
It was submitted by Mr Crocker for the appellant, that the approach by the sentencing judge was wrong in that he did not follow a suggested approach discussed in R v Bryden [2006] SASC 203. In that case, Vanstone J (at [58]), suggested an approach that could be taken by judges when sentencing a prisoner to a term of imprisonment. Her Honour made the following comments:
I respectfully suggest that in those circumstances an approach which would more likely guard against error and, additionally, better demonstrate that appropriate deductions are made is to first nominate a starting point and stipulate the credit to be given for pleas of guilty, thereby arriving at a notional head sentence; next fix the non-parole period, and finally make twin deductions for time in custody and (if appropriate) time on home detention bail.
The complaint made in this matter is that the sentencing judge did not make twin deductions. It is apparent that his Honour only made a deduction from the head sentence.
Reference was also made to the decision of the Full Court in R v Malesevic (1999) 204 LSJS 32. In that matter Doyle CJ said, at page 37:
It is permissible, and usually simpler and more convenient, to fix the non-parole period in relation to the final head sentence arrived at, rather than to fix a notional non-parole period in relation to the notional head sentence, and then to make deductions from each of them.
Both of the decisions referred to indicate views as to how a sentencing judge may approach the task of making these deductions. I note that in Bryden the allowance to be made for time in custody and on home detention bail, namely 14 months, was significantly longer than in the current case.
It is my view that the sentencing judge was not bound by either approach and that what he did was well within his overall sentencing discretion.
It was submitted that the home detention conditions in this matter were strict, and that those strict conditions were imposed at a time when the appellant faced more serious charges. It is correct that the appellant initially faced charges of three counts of indecent assault and four counts of unlawful sexual intercourse. These charges related to the same incidents to which he eventually pleaded guilty. The charges to which he pleaded guilty are, nevertheless, serious charges. It is not clear what conditions would have been imposed if the charges pleaded to had been the initial charges. They may have been the same.
It was submitted that the credit given for the time spent in custody and on home detention, namely approximately seven and a half weeks, was insufficient for the 21 months spent on home detention.
It is within the discretion of the sentencing judge as to whether any credit is given for time spent on home detention bail. The terms of that bail are a relevant matter in exercise of that discretion. The sentencing judge could not be said to be in error if he gave no credit. In this matter he did give credit, and as in the decisions in R v Malesevic and R v Carr (2008) 101 SASR 13, it is not possible to say that the judge has erred in any way at all in relation to the deduction which he made for both time in custody, and for time spent on home detention. I would reject this ground of appeal.
Ground 2: Is the non-parole period manifestly excessive?
It was next argued that the non-parole period is excessive. The sentencing judge had heard submissions relating to a report from a psychiatrist, Dr O’Brien, and from Mr Toman, a senior clinician at the Sexual Offenders Treatment Assessment Program, SOTAP (now termed Owenia House).
The sentencing judge took into account the previous offending by the appellant. He also considered the appellant’s prospects of rehabilitation. His Honour said at page 4 of his remarks:
Dr O’Brien is of the opinion that you qualify for the diagnostic term “homosexual paedophilia”, though this may not be entirely accurate because you have expressed some interest in the opposite sex. He is of the view that without ongoing treatment you remain at risk of reoffending. Dr O’Brien states that you would not readily access prison-based sexual treatment offender programs in the short/medium-term. Apparently, this is due to the prison waiting list. However, SOTAP has indicated a willingness to reaccept you into their program when you are at liberty to do so.
In addition, I have received character references from a former neighbour, Mr David Sobey, and from Mr and Mrs Baker and their son Craig with whom you have lived whilst on home detention bail. They speak of you as a kind, caring and considerate man. Of course, it must be remembered that this is the very persona by which you have masked your sexual offending.
The judge then said at pages 4-5:
You deserve credit for your guilty plea. I accept that you regret your behaviour. However, it is evidence from your past record and the expert material before me that you need ongoing treatment for your sexual deviancy. As Mr Crocker stressed, one encouraging aspect is that you voluntarily ceased offending against JR. This suggests that with appropriate treatment your prospects for rehabilitation might be better than your record otherwise indicates.
I consider that the judge has appropriately dealt with all the relevant considerations in fixing the non-parole period. In my view he properly takes into account the appellant’s rehabilitation prospects.
I would reject this ground of appeal.
Ground 3: Did the sentencing judge misapprehend the circumstances of the earlier offending?
Finally, the appellant complained that the sentencing judge had erred when he considered the age of the two boys who were the victims in the matter for which he was previously sentenced in 1994. As part of the narrative of that offending, His Honour said (at page 3 of the sentencing remarks):
Those offences were committed on two boys who were under the age of 12 years when the offending commenced.
That is incorrect. One of the boys was 10 years old and the other boy was 12 years old. However, despite this, it is my view that this makes little, if any, difference to the considerations of the sentencing judge and I would reject this ground of appeal.
Should the sentence have been backdated?
The appellant suggested that in any event, a failure to backdate the sentence was an error which should be corrected. The appellant spent 25 days in custody after arrest. Then, after submissions on penalty, on 29 January 2009, the judge remanded him in custody. He was sentenced on 9 February 2009. In my view the days between remand and sentence are adequately catered for within the sentencing judge’s overall consideration of the time spent in custody. It is not as if the sentencing judge had omitted consideration of the topic. He specifically mentioned both periods of time spent in custody in his sentencing remarks. Whether the latest period was to be reflected by taking it into account in the sentence, or backdating the commencement date, was for the judge to determine.
Conclusion
It is my view that, looked at overall, the sentence imposed by the sentencing judge was well within discretionary limits, both in relation to the head sentence and the non-parole period. It is my view that neither the head sentence nor the non-parole period is manifestly excessive.
I would dismiss the appeal.
DAVID J. I agree that this appeal should be dismissed for the reasons given by Anderson J.
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