R v Minney

[2003] TASSC 64

[2003] TASSC 64

CITATION:           R v Minney  [2003] TASSC 64

PARTIES:  R
  v
  MINNEY, Anthony John

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL
FILE NO/S:  311/2001, 173/2003
DELIVERED ON:  1 August 2003
DELIVERED AT:  Launceston
HEARING DATE/S:  2 July 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Habitual criminals - Discretion of judge to make declaration - Indecent assaults against child - Low level of seriousness - Whether jurisdiction - Charges heard summarily - Committal for sentence.

Sentencing Act 1997 (Tas), s19.

Justices Act 1959 (Tas), ss72(1), 72B(2).

Chester v R (1988) 165 CLR 611; Read v R (1994) 3 Tas R 387, referred to.

Aust Dig Criminal Law [861]

REPRESENTATION:

Counsel:
             Crown:  J P Ransom
             Accused:  S J N Brown
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Legal Aid Commission of Tasmania

Judgment ID Number:  [2003] TASSC 64
Number of paragraphs:  34

Serial No 64/2002
File No 311/2001

173/2003

THE QUEEN v ANTHONY JOHN MINNEY

REASONS FOR JUDGMENT  CRAWFORD J
  1 August 2003

1. Three matters are before me.  The prisoner is to be sentenced for two counts of indecent assault.  The Crown applied to review an order suspending part of a sentence.  The Crown also applied to have the prisoner declared a dangerous criminal.

1. He was charged before a magistrate on complaint 30005/03, with two counts of indecent assault, contrary to the Criminal Code, s127(1), committed respectively on 24 December 2002 and a few days thereafter. Under the Justices Act 1959, s72(1), he was asked if he was willing to be tried by the magistrate and did not object. As a result, s127 was deemed to have created a simple offence and the complaint was dealt with accordingly. He pleaded not guilty to both counts. After evidence, each count was found proved on 13 May 2003. On the following day, the learned magistrate decided that the charges should be dealt with in this Court, whereupon the prisoner was convicted and under the Justices Act, s72B(2), he was committed to this Court for sentence. A motion to review the committal order was dismissed by Evans J on 20 June.

1. The first offence occurred in the following circumstances.  The prisoner was in the back seat of a motor vehicle on the night of 24 December.  Next to him was a girl aged 9 years.  Also in the back seat was the girl's brother.  In the front were his father and the girl's mother.  The purpose of them being in the car was to look at Christmas lights in the town.  While the car was in motion, he put his hand down the front of the girl's track suit trousers and on her vagina.  That was the first offence.  A response of the girl was to ask her mother to swap seats with her.  That was done.

1. Within a few days, the second offence was committed.  A tent had been erected in the back yard of the same girl's mother.  He was at the house because his father was a friend of the mother and they were visiting.  In the mid afternoon, he was in the tent and the girl joined him.  He suggested they play hide and seek.  At his encouragement, she lay face down on the floor of the tent.  He got on top of her.  The learned magistrate was not satisfied that he had an erection, but found that he lowered and raised himself over her, in such a way as to bring his groin in contact with the child.

1. The girl's father and mother lived apart.  She subsequently told her father what had happened.  He contacted the police and commenced Family Court proceedings concerning the child.  I was informed by counsel for the Crown that the long term effects of the offences on the girl are difficult to determine.  She had some counselling, which has ceased.  Short term, her world was turned upside down by the Family Court proceedings and no doubt by her contact with the police and the proceedings before the magistrate.

1. Substantial concern arises from a consideration of the prisoner's antecedents.  He is 27 years old.  In a childrens court on 4 September 1992, he was dealt with for an indecent assault committed by him on 2 October 1991, when he was only 15 years of age.  A 12 month probation order was made without conviction.  An eight year old girl went to one of the cubicles in a toilet block in the grounds of a high school, outside school hours.  He entered the block.  She tried to pass him but he grabbed hold of her and using some force, held her to his body while he touched her on the vagina on the outside of her clothing and then lifted her jumper to try and get under her clothing.  She was extremely scared and started screaming, as did her seven year old friend who was hiding nearby.  Two boys, who had been waiting for the prisoner outside, heard the sound of the girl’s screaming and ran to the toilets where they found the door closed.  On opening it, the prisoner could be seen holding onto the victim with his knees in her back, attempting to pull her track suit pants down.  She was struggling and screaming.  He had to be physically pulled away from her.  When the police spoke to him 16 days later, he refused to admit what he had done, claiming a conspiracy between the boys, who had been his friends, and the two girls.  At the time he was a suspended student of the high school due to various factors relating to sexual matters.  He had refused to co‑operate with psychiatrists.

1. In a court of petty sessions on 28 November 1997, he was sentenced to three months wholly suspended imprisonment and placed on probation for one count of assault and one count of destruction of property committed on 20 October 1996, when he was 20 years of age.  At about 10.15 pm on a Sunday evening the female victim, aged 22 years, was making a telephone call from a public phone booth in a street, when she became aware of the prisoner, whom she recognised, acting suspiciously nearby.  Becoming concerned, she went to her car and got in, shutting the door.  He walked towards the driver's side, pulled out a small crowbar from inside his jacket and struck it against the weathershield and driver's window, smashing them.  He reached through the broken window trying to grab the woman, who leant over onto the passenger seat.  While trying to kick him, she grabbed his left arm and he swung the crowbar, hitting her across the top of the left forearm.  She called for help from a vehicle driving past and he ran off.  Police were quickly called.  He was interviewed and denied the allegations.  The victim suffered what was referred to as a possible fracture to the forearm as a result of his attack.

1. On 7 March 2002, I convicted and sentenced him on two counts of indecent assault, committed on 5 and 6 August 2001 respectively, when he was 25 years of age.  He was sentenced to two years imprisonment, backdated to commence on 7 August 2001, when he was taken into custody.  Eight months of the imprisonment were suspended on condition (inter alia) that for a period of two years following his release from prison, he be of good behaviour and in particular, commit no crime or offence involving violence or sexual elements.  On 5 August 2001, at George Town, he had persuaded a 10 year old girl, who was a stranger to him, to leave a group of people at a church and get into his father's car.  He touched her on the vagina through her track pants.  She ran away, thereby preventing the incident from proceeding further. Later that day he denied the assault to the police, maintaining a lie that he found her in the car and grabbed her on the shoulder to pull her out.  According to what he later told the police, after they had finished with him he walked all night from George Town to Launceston.  Next day, at about 8.40 am, he was in the vicinity of a Launceston primary school when a nine year old girl was dropped off near the school gate by her father.  He approached and told her that he was a student teacher and that her normal teacher was sick.  He said that he wanted to show her something and walked her for some 500 metres to the school oval and some cricket nets.  There he placed one hand up her dress and down her underpants, touching her on the outside of her vagina for about 30 seconds.  The school groundsman shouted at him and he ran away.

1. On the following day the police apprehended him.  He had shaved off his moustache, no doubt for the purpose of evading detection for what he knew he had done wrong.  Although he admitted walking with the girl to the cricket nets, he claimed not to remember the actual indecent assault, telling the police that he had blanked out.  When asked whether it was right to touch a young girl he said, "it's not all right", adding "but something takes over and you just do it".  He agreed that he could not help himself in that regard.  Later he added: "I couldn't stop meself.  I tried, I really did try to stop."  At the hearing his counsel claimed that he was remorseful.  However, his pleas of guilty to the two crimes came at a very late stage.

1. A psychiatrist, Dr M Pasha, reported at that time.  He said that the prisoner changed his story about what he had done or not done, to suit the occasion.  On one occasion he said one of the girls was wearing underpants when he touched.  On another occasion he said that he had not done it.  On other occasions he said that there was something in him that made him do it, and that he did it on "instructions" from the "split personality".  Medical opinion was that he had a mild developmental disability and an anti social personality with an admixture of border line personality traits.  There was some evidence that his IQ had twice been tested and recorded in the 65-80 range, but he functioned at a higher level than that.  He denied the ability to read and write, but that was not believed.  There was no evidence of a major mental illness and no organic or medical basis found for his behaviour.  Dr Pasha reported that the prisoner had given complex and varying stories about his behaviour, but conceded inadvertently that he would have to abstain from touching young girls because he did not want to go to gaol.  Hospital staff had reported that his behaviour and conversational content focused on intimacy seeking and sexual needs.  He often asked for someone to share his cell and would have liked to have a prostitute visit him, and he had been observed masturbating in the garden during group exercise time.  He often asked to be prescribed Viagra.  He became angry when sex drive lowering drugs were discussed with him.  Assessments of him revealed that there was a degree of planning and deliberation in his behaviour.  It was the opinion of Dr Pasha that the prisoner demonstrated that his judgmental faculties were weakened by lack of control when he came in contact with young girls.  That view, expressed in March 2002, appears to be just as appropriate in respect of the two most recent indecent assaults.

1. When sentencing the prisoner on 7 March 2002, I stated that it had been my real concern that he might well re-offend and for that reason I had obtained Dr Pasha's report, which supported my concern. Endeavouring to make the prisoner realise my concern and the possibility that if he offended similarly again, he might be locked up for a very long time for the protection of the public, I said to him that if he came back before the Court for a crime of violence or one involving a sexual element, a judge might be persuaded to exercise the power to declare him a dangerous criminal, the result being that he would be imprisoned indefinitely, perhaps even permanently, I added, his release only being possible if a court was to be persuaded at some later time that his imprisonment was no longer warranted for the protection of the public.  I continued: "It is your responsibility to make sure you do not re-offend and I have made those remarks because I want you to clearly understand that if you do so your time in prison may be extremely long and perhaps even permanent."

1. He was released from prison on 6 September 2002.  Despite my endeavours to impress upon him the seriousness of his offence and the substantial risk to him, if he re-offended, of incarceration for a long time, he committed the two crimes for which he is now to be sentenced, less than four months after his release.

1. For the purpose of sentencing him today, I called for another psychiatric report.  It was provided by Dr J Crawshaw, a consultant forensic psychiatrist and the Clinical Director of the Forensic Mental Health Service.  The prisoner had maintained his denial that he committed the two offences in December 2002.  When Dr Crawshaw spoke to him about his sexual behaviour, he maintained that there had not been anything abnormal about it.  Staff at the prison had observed him to behave in a somewhat overt sexual manner round other inmates and that had led to some difficulties for him within the prison.  He had also been noted to crave a degree of affection and personal contact.  Dr Crawshaw could find no major mood or psychiatric disorder.  There appeared to be some specific learning disabilities, but the extent of them was difficult to ascertain.  Dr Crawshaw thought that the prisoner's consistent denials of having done anything wrong raised a considerable concern.  It made formal assessment of the risk of re-offending difficult.  It also meant that there was some lack of ability on the prisoner's part to accept the reality of his circumstances and to work consistently and transparently with the staff who were attempting to assist him.  It also made very difficult the development of a safety management plan to reduce the risk of re-offending.  Dr Crawshaw considered that returning the prisoner to the community with his current denial will pose some risk to others.

1. He is a lonely person, without friends.  One or other of his parents has felt obliged to do what he or she can to care for him when he has not been in custody.  In prison he has been kept in the hospital, mainly because of concerns about his vulnerability within the prison yards.  A number of assaults have been committed against him while in prison.  He is unmarried and according to his counsel, has never had a relationship outside his family.  He has been in custody for the offences for which he is to be sentenced, since 3 January 2003.

Sentence for the offences of December 2002

1. The offences were not bad examples of indecent assault against children.  Because of the presence of others in the car, there was little chance of him doing more than he did there.  He took advantage of the opportunity presented to him by the dark and the presence of the girl next to him.  He did not penetrate her and the degree of force used was minimal.  She suffered no physical harm.  In the tent, he did not touch her skin, contact between them only being made by their respective trousers.  Once again, he took advantage of the opportunity that presented itself, when she came into the tent where he was.  The level of force was minimal and a relatively low level of indecency was involved.

1. Nevertheless, the commission of such offences against a young child had the potential to corrupt and disturb and they must be appropriately condemned by the Court's sentence.  There are no mitigating factors of significance.  Having regard to his record, psychological and other personal problems he has experienced in his life do not require leniency.

1. It was made clear by the majority judgment in Veen v R [No 2] (1988) 164 CLR 465 at 477, that while an offender's criminal record is a factor that may be taken into account in determining the sentence, it cannot be given such weight as to lead to a sentence which is disproportionate to the gravity of the offences for which the sentence is to be imposed. To do so would be to impose a fresh penalty for past offences. Director of Public Prosecution v Ottewell [1970] AC 642 at 650. The prisoner's prior criminal record is particularly relevant, however, for it shows that he has a propensity to commit offences of the same kind and that there is a need to impose condign punishment to deter him.

1. Upon a consideration of those principles, I have determined that the prisoner should be sentenced on the complaint to imprisonment for 2 years 6 months.  Because it may be in the public interest that he have a level of supervision upon his release, it is appropriate that he be eligible for parole.  Nevertheless, I have concluded that the minimum time he should serve in prison for the two offences is one year six months.

1. Therefore, the orders of the Court will be that the prisoner is sentenced for the two offences on complaint 30005/03 to imprisonment for two years six months from 3 January 2003 and that he will not be eligible for parole until he has served one year six months of that imprisonment.  The victims of crime compensation levies totalling $100 are directed to be paid within three months of his release from prison.

The application to review the suspended sentence

1. The Crown applied under the Sentencing Act 1997 s27, for an order that the suspended eight months part of the sentence of 2 years imprisonment imposed on 7 March 2002, take effect. There is no question and it was not challenged by the prisoner's counsel, that by committing the two offences in December 2002 he breached the condition of the suspended sentence that for a period of two years from his release from prison, which occurred on 6 September, 2002, he commit no crime or offence involving violence or sexual elements. The breaches, on two occasions, must be considered flagrant ones, having occurred within less than 4 months of his release from prison. I have no doubt that he should be ordered to serve the balance of the sentence and that it should be served cumulatively with the sentence just imposed.

1. Accordingly, it will be ordered that the part of the sentence imposed on 7 March, 2002 whereby eight months imprisonment was suspended, take effect cumulatively with the term of imprisonment of two years six months imposed today.

The dangerous criminal application

1. The Crown applied under the Sentencing Act, s19, for a declaration that the prisoner is a dangerous criminal. If such a declaration is made, he will not be eligible to be released from custody until the declaration is discharged by the Court. Under s20(3), the Court must make an order discharging such a declaration if it is satisfied that the declaration is no longer warranted for the protection of the public. A consideration of the question whether continued imprisonment is warranted for the protection of the public is the essential question to be addressed by the Court both at the time of hearing an application to make a dangerous criminal declaration and at the time of hearing an application to discharge such a declaration.

1. The major relevant provisions of the legislation are to be found in s19(1) and (2):

"19    (1) A judge before whom an offender is convicted or brought up for sentence after being convicted may declare the offender to be a dangerous criminal if —

(a)   the offender has been convicted for a crime involving violence or an element of violence; and

(b)   the offender has at least one previous conviction for a crime involving violence or an element of violence; and

(c)   the offender has apparently attained the age of 17 years; and

(d)   the judge is of the opinion that the declaration is warranted for the protection of the public.

(2) In determining whether to declare an offender a dangerous criminal a judge may have regard to all or any of the following:

(a)  the nature and circumstances of the crimes referred to in subsection (1);

(b)  the offender's antecedents or character;

(c)   any medical or other opinion;

(d)  any other matter that the judge considers relevant."

1. The prisoner's counsel raised a jurisdictional objection to the making of the declaration. He submitted that because of the procedural events in the magistrates court, neither of the two offences is a crime, as required by s19(1)(a). There is no doubt that indecent assault is a crime because it is created as such by the Criminal Code, s127(1). There is also no doubt that the complaint charged the prisoner with having committed two counts of that crime. However, counsel submitted that as a result of the application of the Justices Act, s72(1), the offences were converted from being crimes into summary offences.

1. By s72(1), it is provided that where a person is brought before justices upon a complaint for inter alia an offence under a section of the Criminal Code referred to in Sch 3 Pt I, and s127 is referred to therein, then instead of asking him to plead under the Justices Act, s56A, the justices may ask the defendant if he or she is willing to be tried by the justices instead of by a jury. The subsection provides that if the defendant does not object to that course, "the section creating the offence shall be deemed to have created a simple offence and the complaint shall be dealt with accordingly, subject to the provisions of this section". I note that the concluding seven words, whatever their meaning, can have no operation in this case.

1. Counsel for the prisoner submitted that because the prisoner was asked by the learned magistrate if he was willing to be tried by his Worship instead of by jury and the prisoner did not object, the offences under the Criminal Code, s127(1), with which the prisoner was charged, were no longer crimes but by virtue of s72(1), were deemed to have been created as simple offences. That being so, it was argued, this Court has no jurisdiction to declare the prisoner a dangerous criminal under the Sentencing Act, s19(1), because he has not been convicted for a crime. In this case it was the learned magistrate who convicted the prisoner, at a time when he was being dealt with for simple offences only, because of the deeming provision of s72(1). Therefore, the prisoner had not been convicted for a crime, as required by s19(1)(a), it was submitted.

1. The prisoner came before this Court for sentence by virtue of the Justices Act, s72B(2). It provides that if during the hearing of a charge to be determined under Pt VIII, which was the case here because of what occurred under s72(1), the justices consider for any reason that the charge should be dealt with in this Court, they shall do one of a number of things. By virtue of s72B(2)(a), in a case where the justices have not convicted the defendant, which was the case here before the learned magistrate decided to commit the prisoner to this Court for sentence, the justices shall "either abandon the hearing and begin again in accordance with Part VII" (that is, as for an indictable offence) "or complete it and convict or discharge the defendant and if they convict him commit him to the Supreme Court for sentence". Having decided that was the appropriate course to take, the learned magistrate convicted the prisoner of both offences and committed him to this Court for sentence.

1. I do not accept the prisoner's argument that this Court does not have jurisdiction in the circumstances.  The Justices Act, ss71 and 72, provide for situations where, notwithstanding that a crime has been charged, in certain circumstances the section creating the offence shall be deemed to have created a simple offence, and the complaint is to be dealt with accordingly. In that way, crimes are deemed to be simple offences. However the purpose of s72B(2) is to undo the effect of those provisions, so as to provide for the offender to be subsequently committed to this Court for sentence, if the justices consider for any reason that should occur. Although it is not stated, the effect of s72B(2) is to return the status of the prisoner's offences to that of crimes. Under the Criminal Code, s389(3), this Court will have jurisdiction to sentence him as for a crime, with imprisonment for up to 21 years. If however, the learned magistrate decided not to exercise the power given by s72(B)(2), but instead to impose sentence himself, he will be constrained by the provisions of the Sentencing Act, s13, that "the maximum term of imprisonment that a court of petty sessions may impose on an offender convicted of a crime that is triable summarily is - (a) 12 months for a first offence; or (b) 5 years for a second or subsequent offence".

1. Therefore, it seems to me that under the Justices Act, the prisoner's offences ceased to be summary offences and returned to the status of crimes, once the learned magistrate had divested himself of the power to sentence for them by committing the prisoner to this Court for sentence.  I hold that this Court does have jurisdiction to make a declaration that the prisoner is a dangerous criminal.

1. No argument was addressed concerning the meaning of the words "convicted" and "convict" in s72B(2).  In this case, the learned magistrate stated that he convicted the prisoner, as he was required to do by the subsection, before he committed the prisoner for sentence.  The words have many different meanings, a matter discussed in Attorney-General v Smith [2002] TASSC 10. It can in some circumstances mean a finding of guilt. It is likely that in this case it only means that. Section 72B(2) predated the enactment of the Sentencing Act and its provisions concerning a court's discretion whether or not to convict.  See the Sentencing Act, ss7, 8, 9 and 10. Once the prisoner was committed for sentence, this Court had to decide for itself whether or not to convict the prisoner for the purposes of that Act. Its exercise of the discretion whether or not to do so was governed by s9. I do not think that the fact that the learned magistrate stated that he convicted the prisoner pursuant to the Justices Act s72B(2), has any bearing on the matter.

1. The prisoner's offences were crimes involving violence or an element of violence.  In R v Evans (1999) 8 Tas R 325 at 333 Wright J held that any assault, indecent or not, has an element of violence. Cox CJ agreed. Slicer J at 335, categorised the crime of indecent assault as a crime of violence without identifying whether it was "a crime involving violence" or "a crime involving ... an element of violence" under s19(1), but clearly agreed with the other members of the Court of Criminal Appeal that whatever the nature of its commission, it is a crime that falls within the provisions of s19(1)(a) and (b). It follows that the prisoner's offences in December 2002 were crimes involving violence or an element of violence, under par (a), and his crimes committed in August 2001, for which I sentenced him on 7 March 2002, were crimes involving violence or an element of violence, under par(b). He therefore has at least one previous conviction for a crime involving violence or an element of violence, as required by par(b). He is over the age of 17 years, which is required by par(c). The remaining question is whether I am of the opinion that the declaration is warranted for the protection of the public, which is required by par(d).

1. Although dealing with markedly different legislative provisions, the High Court said in Chester v R (1988) 165 CLR 611 at 618 and 619, that the power to order an indeterminate sentence should be confined to very exceptional cases where the exercise of it is demonstrably necessary to protect society from physical harm and where the prisoner constitutes a constant danger to the community. Having regard to the particular provisions of s19, the reference to physical harm should be replaced for this jurisdiction, by reference to harm from crimes involving violence or an element of violence. The High Court referred to "the stark and extraordinary nature of punishment by way of indeterminate detention" and to the need for the sentencing judge to be "clearly satisfied by cogent evidence that the convicted person is a constant danger to the community". The Court of Criminal Appeal in Read v R (1994) 3 Tas R 387 at 395, accepted that insofar as the High Court's observations dealt with the general considerations which should inform the exercise of the discretion, they were applicable in this jurisdiction to applications under the Criminal Code, s392, which has since been repealed and in substance re-enacted in the Sentencing Act, s19.

1. The history of his offending and the psychiatric reports establish that the prisoner has a propensity to committing indecent assaults against female children.  That his misconduct has been directed at children may be explainable because he is less likely to be repelled by them than by an adult.  Notwithstanding that propensity, I am not persuaded that a declaration that he is a dangerous criminal should be made on the present application, for a combination of reasons.  As I have said, the two offences were not bad examples of indecent assault.  The level of force or violence was low.  In the case of the first offence, there was little chance of it going further, because of the presence of the other occupants of the car.  In the case of the second offence, the assault only involved him rubbing against the girl, clothing to clothing.  Further, he has only once before been required to serve a sentence of imprisonment and he clearly finds his prison experience a most unpleasant one.  It is reasonably possible that the further time he will serve in prison as a result of the orders made today will persuade him not to be similarly tempted to offend in the future.  He is still a relatively young man, with intellectual and psychological problems, and ought to be given a further opportunity of freedom once his sentences have been served.

1. I am not persuaded that the fundamental sentencing principle of proportionality, which does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender, should not operate in the present case.  I am not satisfied that this case is a sufficiently exceptional one so as to justify the exercise of the power to make the declaration.  Therefore, the application will be dismissed.