R v HORSTMANN

Case [2009] SASC 135

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 135

Court of Criminal Appeal:  Vanstone, Anderson and David JJ

  1. VANSTONE J.      In my opinion this appeal should be dismissed. I agree with the reasons of Anderson J.

    ANDERSON J.

    Introduction

  2. 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

  3. 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…

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AGLC
R v HORSTMANN [2009] SASC 135
Case
[2009] SASC 135
Decision Date

CaseChat Overview and Summary

The appellant, Horstmann, pleaded guilty to five counts of indecent assault against a 16-year-old boy and was sentenced to imprisonment for five years with a non-parole period of three years. The appeal was against the sentence, arguing that it was manifestly excessive, that insufficient credit had been given for time spent in custody and on home detention bail, and that the sentencing judge misapprehended the circumstances of previous offending. The court had to determine whether the sentence was manifestly excessive, whether the sentencing judge appropriately took into account the time spent in custody and on home detention bail, whether the misapprehension of facts affected the sentencing procedure, and whether the sentence should have been backdated.

The Court found that the sentence was not manifestly excessive and that the sentencing judge had appropriately taken into account the time spent in custody and on home detention bail. The misapprehension of facts did not affect the sentencing procedure. The sentence did not need to be backdated as the days between remand and sentence were adequately catered for within the sentencing judge’s overall consideration of the time spent in custody. The Court concluded that the sentence imposed by the sentencing judge was well within discretionary limits, both in relation to the head sentence and the non-parole period.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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 1In 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 2-5The 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 2The 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 3As 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 4In 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 5In 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J ANDERSON J DAVID J (dissent)
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. I agree that this appeal should be dismissed for the reasons given by Anderson J.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J, ANDERSON J,

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