R v Osborne

[2000] VSCA 156

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 88  of 2000

THE QUEEN

v.

STEPHEN JOHN OSBORNE

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JUDGES:	PHILLIPS, C.J., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 August 2000
DATE OF JUDGMENT:	17 August 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 156

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Criminal Law – Appeal against sentence l- Sexual offences committed by a then youthful offender in 1979-1981 – Allegation of manifestly excessive sentence – At time of committing offences on persons much younger than he the applicant was in receipt of similar conduct from a person much older than he – Expert evidence linked the two pieces of conduct – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P. Morrissey	Victoria Legal Aid

PHILLIPS, C.J.: 

1  The applicant, who is aged 38, pleaded guilty in the County Court at Melbourne on 19 April last to a presentment containing two counts of the commission of an act of gross indecency (counts 1 and 5) and seven counts of indecent assault on a male person under the age of 16 years (counts 2 to 4 and counts 6 to 9).

2  These offences, which carried maximum penalties of three and five years' imprisonment respectively, were committed in Melbourne and various suburbs between January 1979 and March 1981.  The applicant had no prior convictions, and after hearing a plea for leniency the learned judge, on 19 April last, sentenced the applicant as follows:  Counts 1 and 5, six months' imprisonment;  counts 2, 3, 4, 6, 7 and 8, 12 months' imprisonment;  and count 9, 18 months' imprisonment.  His Honour directed that four months of the sentence imposed on count 2, four months of the sentence imposed on count 4 and four months of the sentence imposed on count 6 be served cumulatively with the term of imprisonment imposed upon count 9, making for a total effective sentence of two years and six months.  A non-parole period of one year and three months was fixed and a declaration was made as to pre-sentence detention.  The cumulation directions reflected different victims being involved in the relevant counts.

3  Counts 1, 2, 7, 8 and 9 were treated as representative counts and the applicant was treated as a serious sexual offender for counts 4, 6, 7, 8 and 9.

4  The applicant subsequently lodged notice of application for leave to appeal against sentence pleading the following grounds: 

"1.That the sentence is manifestly excessive in all the circumstances. 

2.That the learned sentencing judge gave insufficient weight to the applicant's youth at the time of the offences. 

3.That the learned sentencing judge erred in not taking into account as an exceptional circumstance the fact that the applicant was supporting a handicapped child at the time of the plea. 

4.That the learned sentencing judge gave insufficient weight to the fact that the applicant had been the victim of serious sexual abuse prior to and at the time of his offending, and the nexus between this fact and the present offences. 

5.That the learned sentencing judge gave excessive weight to the issue of breach of trust, given

(a)the applicant's age at the time of offending; and

(b)the fact that he had been and was being sexually abused in similar circumstances to the present offences at the time of these offences." 

5  It is now necessary to set out in summary form the facts of these matters, and it is convenient to take the description of them by the learned judge in his reasons for sentence, such description being unchallenged in this application.

6  The offences took place at Melbourne on various dates, as I have said, between January 1979 and March 1981.  The applicant was then aged between 17 and 19; the four male victims then being in the age grouping of 9 to 12 or 13 years of age.  The applicant became acquainted with his victims by reason of his involvement with a suburban young cricketers club, where he was the coach of a junior cricket team of which the victims were members.  By reason of his position as a cricket coach, he was able to ingratiate himself with some of the parents of his young charges.  On occasions, he was engaged by parents as a baby-sitter, thereby providing him with further opportunity to sexually abuse their children.

7  Counts 1 and 2 relate to the same victim.  Count 1 relates to the commission of an act of gross indecency in the presence of a person under the age of 16 years.  It involved the applicant masturbating himself in the presence of his victim, then aged 9 to 10 years.  This behaviour occurred at various locations, but principally at the applicant's parents' home.

8  Count 2 is a count of indecent assault against a male person under the age of 16.  It relates to the applicant making his young victim, then in the 9 to 10 year old grouping, masturbate him.  This behaviour again occurred at various locations, but principally at the applicant's parents' home.

9  Counts 3, 4 and 5 relate to another victim, namely, the brother of the first-named victim referred to on the presentment.  Count 3, indecent assault on a male person under the age of 16, relates to a specific incident where the applicant repeatedly grabbed at his young victim's testicles when he and the applicant were in a motor vehicle.  The victim was then in the 11 to 12 age group.

10  Count 4, indecent assault on a male person under the age of 16, again relates to a specific incident which occurred at the applicant's home.  He awakened the sleeping victim, then aged in the 11 to 12 age grouping, kissed him passionately on his face, picked him up, carried him to a double bed, where he grabbed at the young man's testicles and penis and masturbated him.

11  Count 5, the commission of an act of gross indecency in the presence of a male person under the age of 16, occurred on the same day as the previous offence, and it involved the applicant masturbating himself.

12  Count 6 involved another brother of the applicant's two previous victims.  This is a count of indecent assault on a male person under 16 years of age.  This victim was then aged about 11, and whilst he was lying upon a bed the applicant lay on the top of him and thrust his pelvic area in an up and down motion against his victim's genital area.

13  Counts 7, 8 and 9 relate to another young victim in no way related to the previous victims.  Count 7 is a count of indecent assault on a male person under the age of 16 years.  It relates to the applicant fondling his victim's penis, at various locations, during the period when he was aged between 10 and 13.

14  Count 8 is a count of indecent assault on a male person under the age of 16 years.  This count relates to the applicant masturbating his victim's penis.  The victim was then in the age grouping of 10 to 13.

15  Count 9 is a count of indecent assault on a male person under the age of 16.  It relates to the applicant sucking his victim's penis.  The victim was then aged in the 10 to 13 year age grouping.

16  I now turn to the arguments of counsel in this matter.

17  The central submission of Mr  Morrissey for the applicant was that while he allowed that the offences (considered without the attendant mitigating circumstances) could be termed "mid range" in terms of seriousness, the particular circumstances of the applicant were such that a sentence involving a custodial element was outside the range of those properly available to the learned judge.  Counsel listed these particular circumstances:

-At the time of offending the applicant was in his late teens.

-He himself had been a youthful victim of sexual abuse by a Minister of religion and had been unable to divulge this conduct.

-At the time of his offending he himself was the victim of continuing sexual exploitation by an older man.

-At the time of his offending he was rather immature.

-He had ceased the offending represented by the presentment not long after the last counts pleaded thereon and had done so of his own volition and without therapy.

-At the time of sentence, which was for crimes committed nearly 20 years earlier, he was a person of maturity and responsibility who has undertaken counselling.

-He is genuinely contrite of his offending.

18  In support of some of these matters counsel laid store on a report dated 9 April this year, and described by the learned judge as being "extremely comprehensive ... and of great assistance", and the sworn evidence on the plea of Ms Pamela Matthews, a forensic psychologist, who had seen and spoken with the applicant in the earlier part of this year.

19  My assessment of the plea proceedings is that Ms Matthews' evidence was not disputed by the Crown, and it appears to have been accepted by the learned judge.  Indeed, His Honour recited some of the more significant aspects of her evidence in his reasons for sentence; that she considered the applicant to be an emotionally damaged person who was very remorseful for his past behaviour and who acknowledged the continuing harm he had caused to his victims.  She was of the opinion that the applicant required specific offence therapy and described him as being "in remission" from paedophile behaviour.  In addition, I note that she said the applicant was committed to undergoing such therapy and that, at the time of his offending, the applicant was "not only emotionally damaged, but fairly immature".

20  In relation to the applicant's own sexual conduct with the older man at the time of his offending, it was Ms Matthews' opinion that "his offences had the characteristics of acting out his own abuse history on the victim".  She added, "The victims were merely objects to act the abuse scenarios out on and he now understands and is very remorseful for his behaviour."  She also offered the opinion, which the judge accepted, that he was at times quite callous in his offences.

21  In terms of ground 1, which alleged manifestly excessive sentence, and to which the foregoing was addressed, it amounted to contentions that the total effective sentence, the sentence on count 9 and the extent of the cumulation directions were manifestly excessive.  Counsel allowed, however, that some cumulation was proper.

22  As I have said, it was also submitted that a sentence with an actual custodial component was unwarranted.  In assessing this contention, it is necessary that regard be had to the following circumstances:

-The maximum penalties prescribed by Parliament for the applicant's offences.

-The circumstances that his victims were four in number and relatively young.

-The applicant's offending, which involved a number of representative counts, took place over a significant timeframe.

-The applicant had breached a position of trust.

-The victim impact statements which disclosed, as might be expected, continuing and grave damage to the victims.

23  It is now necessary to refer to counsel's submission that at the time of his offending the applicant was the subject of sexual abuse by a man some 15 years older than he.  Mr Morrissey sought to point to evidence he described as corroborative of this claim by the applicant.  Such effort was, in my opinion, unnecessary, for the sentencing judge found as a fact that the applicant was not only the subject of sexual abuse in his formative years but also that "at the time of the offending that we are here concerned with you, (that is the applicant) were further the subject of sexual abuse by a man a number of years older than you".  His Honour added, "Such behaviour between you and he involved a wide range of deviant sexual activity."

24  I am unable to accept the submission that a sentence with an actual custodial component for the applicant involved a miscarriage of the judicial discretion.  After giving full weight to matters personal to the applicant, the aggravating circumstances I have earlier set out make, in my opinion, a sentence with an actual custodial component both warranted and necessary, and the learned sentencing judge was correct in so concluding.  I shall leave aside for the moment the matter of the extent of that component.

25  There are other matters which should be mentioned.  They are the applicant's plea of guilty, made at the committal proceeding, which, according to the judge, spared his victims from having to give evidence; his remorse, found by his Honour to be "genuine"; and his family circumstances.  His wife, who gave evidence on the plea, and who was accepted by the judge as an honest and reliable witness, impressed his Honour as a "most responsible person" and "sensible".  She has stood by the applicant and continues to support him.  They have a young child who is seriously affected by illness and for whom, as the judge again found, the applicant provides a high level of assistance to his wife.

26  Also to be mentioned is the matter of a sentence of three months' imprisonment which the applicant incurred in 1999 for theft from his then employer.  This matter, which of course is not a prior conviction, was very properly disclosed by counsel for the applicant on the plea through the tender of a report of Ms Matthews and by some of her viva voce evidence.  Its relevance, of course, is that it stands in the way of counsel being able to put it that the applicant had entirely refrained from any criminal conduct in the years since 1981.  As might be expected, he has had difficulty in obtaining constant employment since his imprisonment.

27  I now turn to my conclusions.  Having regard to the view I have formed as to ground 1, it is unnecessary that I refer to the submissions canvassed on the other grounds.  I should record, however, that as to ground 1 Mr Elston submitted that the sentence was within range and he gave his reason therefor. 

28  Having considered these opposing submissions I am unpersuaded that the individual sentences, the cumulation directions and the total effective sentence were outside the range properly available to the learned judge, and I would propose that they be confirmed.  But, in my view, circumstances personal to the applicant make this a most unusual case.  In this connection, and without giving it undue importance, I do not recall another case where the sentencing judge has found that, at the time he was committing sexual abuse on others much younger than he, the offender was in receipt of the same by an offender much older than he and where there was expert evidence, apparently accepted by the judge, that there was a causal connection between the two sets of abuse.  The other unusual features are, I trust, sufficiently set out in what I have already said.

29  Although the learned judge composed a sentence in which the relationship between the head sentence and the non-parole period was somewhat wider than is usual, I am satisfied that the unusual circumstances to which I have made reference require the conclusion that the actual custodial component of the sentence fixed by his Honour was manifestly excessive.

30  Accordingly, I would propose a different disposition, namely, that the individual sentences, the cumulation directions and the total effective sentence be confirmed, but that 21 months of that sentence be suspended for three years from 19 April last and that an appropriate pre-sentence detention declaration be made.  Such a disposition, in my opinion, would give appropriate weight to the considerations of general and specific deterrence.

CALLAWAY, J.A.: 

31  I have the misfortune to differ from the learned Chief Justice.

32  The sentence was severe for offences committed by a teenager 20 years ago, but I do not think it warrants appellate intervention.  All the mitigating factors were taken into account by the learned sentencing judge, including the molestation of the applicant when he himself was a child and his unequal and perhaps not wholly voluntary relationship at the time of the offences with a man said on the plea to be 15 years his senior.

33  The offences, or some of them, were callous.  One child was locked in the applicant's bedroom or bungalow, and at other times he continued to assault the complainants although they were crying and distressed.  The offences were not mere adolescent experimentation or isolated incidents, and there were four separate victims.

34  I would myself have given more weight to rehabilitation achieved and in prospect, but not to an extent that would permit me to say that the head sentence imposed below, or the non-parole period, was outside the range.

35  The only ground of appeal that might amount to an allegation of specific error is ground 3; but, in my opinion, his Honour was correct when he said that the applicant's young daughter's needs were not so exceptional as to warrant a disposition other than an immediate custodial sentence.

36  I would dismiss the application.

BUCHANAN, J.A.: 

37  In my opinion, the personal circumstances of the applicant do render the period of incarceration imposed upon him manifestly excessive.  The mere passage of time is of little relevance when offences involve sexual assaults upon children or young persons, for in many cases they are not promptly discovered.

38  In the present case, the applicant has effected his own reformation, he was himself young at the time of the commission of the offences, and he was the victim of abuse when younger and was sexually exploited by an older man at the time he committed the offences.

39  In my view, these circumstances, which, in aggregate, are very unusual, warrant a reduction of the  period the applicant must spend in custody.

40  I agree that the appeal should be allowed and the applicant resentenced as the Chief Justice proposes.

PHILLIPS, C.J.: 

41  Will the applicant stand.

42  Stephen John Osborne, the court proposes to make an order suspending, in part, the sentence of imprisonment to be imposed upon you.  The law requires that I explain to you the purpose and effect of the proposed order and the consequences which may follow if you commit, whether in or outside Victoria, another offence punishable by imprisonment during the operational period of the sentence.  The operational period of the sentence is three years from 19 April last.  The purpose of the suspension order is to give you, after you have served the custodial element of the sentence, conditional freedom; conditional in this sense, that if during the operational period you commit an offence punishable by imprisonment in or outside Victoria, you will be liable to be brought back to court, under arrest if need be, and you may almost certainly be required to serve the whole of the balance of the sentence.  For your information, the offence of common assault is an offence punishable by imprisonment.

43  Do you understand what I have said to you?

PRISONER: 

44  Yes, Your Honour.

PHILLIPS, C.J.: 

45  Thank you.  Take a seat.

46  The orders of the Court are the application for leave to appeal against sentence is granted, the appeal is treated as instituted, heard instanter and allowed.

47  The sentence imposed on the applicant in the lower court is confirmed as to the sentences imposed on the individual counts, the serious sexual offender declaration, the cumulation directions made and the total effective sentence.  The non-parole period fixed is set aside, and in lieu thereof the Court suspends 21 months of the said sentence for three years from 19 April 2000.

48  The Court declares that the period of 126 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.