R v Perry

[1999] NSWCCA 315

CITATION:	R v Perry [1999] NSWCCA 315
FILE NUMBER(S):	CCA 60132/99; 60134/99
HEARING DATE(S):	12/10/99
JUDGMENT DATE:	12 October 1999
PARTIES :	Regina Brian Terrence Perry
JUDGMENT OF:	Newman J at 48; Studdert J at 1; Hulme J at 49

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1176
LOWER COURT JUDICIAL OFFICER:	Tupman DCJ

COUNSEL:	R. Hulme (Appellant) A.J. Bellanto QC/P. Lowe (Respondent)
SOLICITORS:	S.E. O'Connor (Appellant) Bell & Partners (Respondent)
CATCHWORDS:	Sentencing; offences against four young boys; nine offences on indictment and eight scheduled offences; concurrent sentences resulted in periodic detention for eighteen months manifestly inadequate.
ACTS CITED:	Crimes Act Criminal Procedure Act Sentencing Act
CASES CITED:	R v Johnson (unreported, NSWCCA, 16 May 1997) R v Barbara (unreported, NSWCCA, 24 February 1997)
DECISION:	See para 47

IN THE COURT OF
CRIMINAL APPEAL

60132/99
60134/99

NEWMAN J
STUDDERT J
HULME J

Tuesday 12 October 1999

REGINA v BRIAN TERRENCE PERRY

JUDGMENT

1   STUDDERT J: On 18 September 1998 the respondent, Brian Terrence Perry, pleaded guilty to eight counts in an indictment, each charging the commission of sexual offences on a young boy. When he came before her Honour, Judge Tupman, the respondent also asked that the judge take into account eight additional matters, each of which was also in the nature of a sexual offence on a young boy.

2   On 19 February 1999 her Honour sentenced the respondent in respect of the various offences charged in the indictment to concurrent sentences of eighteen months penal servitude to be served by way of periodic detention, with such sentences to commence on 3 March 1999.

3   Then on 23 February 1999 the respondent pleaded guilty to attempting to commit the abominable crime of buggery and her Honour again imposed a sentence of penal servitude for eighteen months to be served by way of periodic detention and again to be served concurrently with the sentences passed four days previously.

4   The Crown appealed to this Court on the ground that the sentences imposed were inadequate. It is to be observed that the Notice of Appeal was filed on 26 March 1999. This Court has been informed that the respondent was advised earlier, by a letter dated 3 March 1999, that the Crown was considering an appeal and no point was taken that there was undue delay in the giving of the notice itself.

5 Each of the first six counts in the indictment considered on 19 February 1999 charged the respondent with indecently assaulting a male in contravention of s 81 of the Crimes Act which was in force at the relevant time. For that category of events the statute provided for a maximum penalty of five years penal servitude.

6   Count 7 charged the respondent with assault with act of indecency in breach of s 61E(1) of the statute as it stood at the relevant time. For that category of offence the legislature provided for a maximum penalty of four years penal servitude. The Crown has submitted that six years was the maximum provided for, but the child's age was not pleaded so as to enliven the operation of s 61E(1A) which provided for that higher penalty.

7   Count 8 charged the respondent with inciting a person under the age of sixteen years to an act of indecency in contravention of s 61(2) as it stood for relevant purposes. That sub-section provided for a maximum penalty of two years penal servitude.

8 The offences taken into account on the schedule pursuant to s 21 of the Criminal Procedure Act were eight further offences of indecent assault in contravention of s 81 of the Crimes Act.

9 For the crime of attempted buggery considered on 23 February 1999, s 80 of the Crimes Act used to provide for a maximum penalty of penal servitude for five years.

10   The victims of the various offences were each young boys. The victim of the offences charged in counts 1 and 2 was born on 1 November 1968. The victim of the offences charged in counts 3 and 4 was born on 2 November 1970. The victim of the offences charged in counts 5 and 6 was born on 6 April 1968 and the victim of the offences charged in counts 7 and 8 was born on 4 October 1972. It was the victim of the offences charged in counts 1 and 2 who was the subject of four of the eight scheduled offences. Three of the scheduled offences were committed on the victim named in counts 3 and 4 of the indictment and the remaining scheduled offence was committed on the victim in counts 5 and 6.

11   All of the offences were committed in the six year period between the beginning of 1979 and the end of 1985. So too were seven of the scheduled offences, the eighth of those offences having been committed between October 1986 and October 1987. The crime of attempted buggery was committed between 1981 and 1983 and the victim of that crime was the same victim as was the subject of the offences charged in counts 1 and 2 of the earlier indictment.

12   The offences were clearly committed pursuant to a consistent pattern and they were well and carefully planned. The respondent set out to befriend the various victims and sought the confidence of their parent figures. He proceeded to invite the various children out on group outings, taking them to events such as speedway races, fireworks nights and barbeques. Eventually each victim was unfortunate to find himself alone with the respondent in circumstances in which the various crimes were committed.

13   Whilst the evidence placed before the sentencing judge makes sordid and most unpleasant reading, some recital of the facts concerning each offence is necessary to illustrate the objective gravity of the crimes for which the respondent was to be punished.

14   I consider firstly the indictment containing the eight counts:

Count 1:

15   This offence was committed when the victim was eleven years of age. He was unlucky enough to meet the respondent in the winter of 1979 and shortly after that began to go to the speedway races with him in company with other children. It was on an occasion towards the end of the speedway season that this complainant found himself to be the last of the children to be driven home in the respondent's vehicle, which was a panel van with a foam mattress in the back. The complainant was driven along a railway track and then under a viaduct. There the respondent questioned the complainant about his sexual development and produced some pornographic literature. The respondent unzipped the complainant's jeans and then removed them and the complainant's underwear on the mattress in the back of the vehicle. The respondent then committed an act of fellatio on the victim.

Count 2:

16   When the complainant was thirteen the respondent took him to Sydney to attend some car auctions. The complainant stayed with the respondent in a house where mattresses were placed on the flour of the lounge/dining room. Once again the respondent produced pornographic literature for the complainant and again committed an act of fellatio.

Count 3:

17   The respondent met this complainant through the complainant's father and when the boy was ten years of age the respondent took him to a property to at Yarramundi where, in an unoccupied house, he showed the complainant pornographic literature and a vibrator. He opened the complainant's jeans and once again committed an act of fellatio.

Count 4:

18   Approximately two years later he took that child into the bush at Yarramundi where they lay on the grass. The respondent undid the child's jeans, committed fellatio upon the child, continuing until the child ejaculated.

Count 5:

19   The victim of this offence was born in April 1968 and on a night when the child was approximately 11 or 12 years of age he found himself to be the last child in the respondent's vehicle after other children who had been on an outing to the speedway had been dropped home. The respondent drove the complainant into bush in the Glenbrook area, showed him pornographic literature, took a vibrator from the back of the van and rubbed it under the child's penis.

Count 6:

20   On the same night following the use of the vibrator, the respondent committed an act of fellatio upon the child.

Count 7:

21   When this child was ten or eleven years of age he went with respondent to break up firewood at Yarramundi. Inside the same unoccupied house in which the offence charged in count 3 had been committed, the respondent produced a vibrator, took the complainant's penis out of his pants and rubbed the vibrator on it.

Count 8:

22   When that same child was twelve or thirteen he went to the same house at Yarramundi with the respondent after dark. The respondent produced a torch to walk through the house and shone it at the complainant's crutch asking the complainant to shown him that he had reached puberty. The complainant refused to cooperate on that occasion and the respondent took no further action.

23   Shortly, the scheduled offences were as follows:

(1): The first offence was committed when the respondent showed his victim, then ten or eleven years of age, how to masturbate, having unzipped the child's jeans and taken hold of his penis.

(2), (3) and (4): The next three scheduled offences occurred when the respondent fondled the victim's penis, used a vibrator in his anus, and then inserted his finger into the child's anus.

(5): When the victim of this offence was thirteen or fourteen years of age the respondent took him to bush area in his four-wheel drive, undid his jeans and performed fellatio on him until he ejaculated.

(6): When the child concerned was fourteen years of age, the respondent told him to lie back on a bed, undid the child's jeans and performed fellatio upon him.

(7): This offence occurred when the respondent offered the complainant a lift and placed his hand on the child's penis.

(8): This offence occurred when the child concerned was between eleven and thirteen years of age. In the respondent's bedroom, the respondent put on a pornographic video and then used rope to tie the child to the corners of the bed. He then began to undo the fly of the child's jeans. The child screamed and the respondent desisted, having first covered the child’s mouth to stifle his scream.

24   Finally there was the offence of attempted buggery. The respondent had the child lying on a mattress in a house in the Summer Hill and endeavoured to force his penis into the child's anus.

25   The statement of the complainant to whom the first and seconds counts and four of the scheduled offences related, as well as the attempted buggery, discloses that the offences charged and scheduled were merely examples of over one hundred sexual encounters in a four year period that commenced in 1979. The complainant, who was the victim of counts 3 and 4, likewise said there were over a hundred episodes of sexual impropriety involving the respondent.

26   The above sordid recitation compels this Court to take a very serious view of the objective gravity of the relevant offences. The respondent preyed on these young children and while the sentencing judge had no evidence to this effect, it is inevitable that these victims would have been scarred in consequence of his predatory behaviour.

27   I turn to the subjective features of the case.

28   The respondent was forty-eight years of age when he came before the judge to be sentenced. He was an electrical fitter by trade but had abandoned that trade after some seven years and became a photocopier manufacturer and did work in that field for some nineteen years. He sustained a back injury in 1992, which necessitated surgery, and the judge had before her a report from Dr Dorsch commenting on the development of arthritic changes in the back which were demonstrated radiologically and which the doctor considered to be attributable to the earlier back surgery.

29   The respondent, who never married, lived with his mother in the Blue Mountains until her death. Since that time he has lived with his sister with whom he conducted a business until 1997. The judge was informed, and obviously accepted, that the respondent is supported by his sister and it is their joint plan to go interstate to live in a fairly isolated community once these matters are finally behind the respondent.

30   The respondent had, when he came before Judge Tupman, an extensive record for offences of a sexual nature involving paedophilic behaviour. The earlier sentencing particulars are as follows:

1. In November 1986 the respondent was dealt with in the District Court in Queensland in relation to two offences that involved seventeen year old children and was sentenced to imprisonment for six months and one day. Although it was directed that he be released on parole after one month, it seems that the respondent served the full six months. The offences to which these convictions related were apparently committed in March 1986.

2. On 31 March 1989, in the District Court at Penrith, the respondent was sentenced to eighteen months periodic detention for two offences, that of assault with act of indecency involving a ten year old boy, and at the same time he was given a recognizance to be of good behaviour for five years for assault with act of indecency committed on a fourteen year old boy. Those convictions related to offences committed in June 1988.

3. In November 1994, again in the District Court at Penrith, the respondent was convicted for five acts of indecency and two indecent assaults. For one of the indecent assaults he was given three years periodic detention and for the other indecent assault he was sentenced to 300 hours community service. For the four remaining charges he was placed on a recognizance to be of good behaviour for four years. The offences punished at this time were committed between 1973 and 1977.

31   The sentencing judge had before her reports of two psychiatrists. Dr Collins first assessed the respondent in March 1989 and thereafter saw him for eleven sessions of psychotherapy up until March 1990. The doctor reported in 1994, following an assessment in 1990, that he had noted changes over the twelve months before that date and that the respondent seemed more self confident. Dr Collins concluded his assessment by stating that he saw no evidence of the respondent still being a menace to male adolescents.

32   Dr Robertson assessed the respondent for medico-legal purposes in November 1998. Dr Robertson considered Dr Collins' report and after assessment said he agreed with Dr Collins' conclusion expressed above. There was no evidence of paedophilic behaviour beyond 1988 and the sentencing judge accepted that there had been no reoffending beyond 1988.

33   The judge further accepted that the respondent was genuinely remorseful for his crimes. Her Honour correctly observed that the respondent was to have taken into account in his favour his pleas of guilty, which not only avoided considerable time and costs but the need for his victims to undergo the distress of having to give evidence. The judge accepted that the pleas in respect of the various subject offences were put forward at the first available opportunity and this included the plea in respect of the second indictment for attempted buggery. Her Honour considered that the respondent had rehabilitated himself and that his prospects for continuing rehabilitation were excellent.

34   Plainly, the respondent was entitled to have considered in his favour all those favourable subjective features which her Honour identified in her comprehensive remarks on sentence.

35   It was also a relevant consideration that in committing the offences in respect of which the judge was required to impose sentence, there was no suggestion on the evidence that the respondent had used violence towards his victims, save perhaps for the eighth of the scheduled offences. Hence it is to be observed there is absent in this case what would otherwise be an aggravating feature of the respondent's behaviour.

36   It was appropriate for the judge to be mindful that the respondent's experience in performing periodic detention was that he had been subjected to threats because of the nature of the offences. It was further a relevant consideration that the respondent had been the victim of a blackmail attempt by one of the complainants.

37   The task that the sentencing judge had was a very difficult one. The difficulty of that task was contributed to by reason of the various other sentences which had been imposed for other offences of a paedophilic nature. The period of criminality, of which her Honour was made aware, extended over some fifteen years up to 1988.

38   Her Honour remarked, when called upon to impose the later sentence for attempted buggery, that that offence ought properly to be seen as part of the overall set of facts for which sentence had been passed some days earlier. This approach was correct. Indeed, it was proper for her Honour to heed the principle of totality in considering this case and clearly the judge did so.

39   As to the lapse of time between the commission of the offences and their punishment, her Honour properly recognised that delay was not normally a circumstance to be taken into account in determining the appropriate penalty and that it was very often a factor in cases involving the sexual assault of children: see Johnson (unreported, NSWCCA, 16 May 1997). However, her Honour did consider it appropriate to heed, as a consequence of the delay, that there had been rehabilitation during that period. This, in my opinion, was indicative of no error: see again Johnson.

40   This Court has had the benefit of very thorough submissions, both for the Crown and for the respondent, which have merited the closest consideration. Mr Bellanto submitted that this appeal should not be employed as a vehicle to review the sentences imposed for the offences earlier punished. Plainly this is correct. The task of this Court is to consider the sentences passed by her Honour, Judge Tupman, and to determine whether they should be disturbed, having regard to those offences for which they were imposed and heeding the well settled principles as to totality as they apply to this case.

41   In her carefully expressed sentencing remarks I detect no error of expression by the learned judge. Indeed, the Crown has not submitted that there is error in expression of principle in the sentencing remarks. However, the question ultimately to be addressed is whether or not error is manifest by reason of the sentences imposed. I have concluded that it is. It seems to me that the objective gravity of the criminal behaviour of the respondent has been given insufficient weight and that the outcome of the sentencing exercise reflects that too much weight has been given to the subjective features advanced on the respondent's behalf. Notwithstanding her Honour's findings as to rehabilitation, there remained a need for due weight to be given to the considerations of deterrence and denunciation of the respondent's crimes. These sentences, in my opinion, were deficient in this regard.

42   Periodic detention is indicative of leniency. As the former Chief Judge in Common Law remarked in R v Barbara (unreported, NSWCCA, 24 February 1997):

"This Court has in many cases recognised that periodic detention has a strong degree of leniency built into it and that it is outwardly less severe in the denunciation of the offence committed."

43   In my opinion the periodic detention imposed was a manifestly inadequate form of punishment for these offences.

44   The question remains as to whether this Court should, in the exercise of its discretion, decline to disturb the sentences passed. I am acutely conscious of those submissions that have been advanced by Mr Bellanto as to the manner in which the respondent has set about his rehabilitation when I consider the question of discretion. However, my conclusion is that the Court should intervene and re-sentence.

45   In re-sentencing this Court must heed the element of double jeopardy associated with the Crown appeal and therefore it is appropriate to impose a lesser sentence than that which the Court considers ought to have been imposed at first instance. Regard must be had here to the fact that the respondent has served some part of the sentences of periodic detention. Those sentences now have been in effect for some seven months and the Court has been informed that the respondent has been attending regularly to comply with the sentence of periodic detention.

46   In all the circumstances, and heeding totality, I consider that the respondent should be sentenced altogether to three years penal servitude. It is appropriate to achieve this result by fixing sentences to be served concurrently. Since the respondent's only previous prison experience was over six months during 1986 and 1987 and also having regard to his age, he will require an extended period of supervision when he is released from custody and, in my opinion, there are special circumstances for the purposes of s 5(2) of the Sentencing Act.

47   The orders I propose are the following:

1. That the appeal in each case should be allowed.

2. All the sentences earlier imposed should be quashed.

3. That in lieu thereof, in relation to the earlier of the indictments, that is the indictment considered on 19 February 1999, the respondent be sentenced on each of the first, second, third fourth, fifth, sixth and seventh counts to concurrent sentences of penal servitude for three years with a minimum term of one year and six months to commence on 12 October 1999 and to expire on 11 April 2001 and an additional term of one year and six months to commence on 12 April 2001. I would specify 12 April 2001 as to the date upon which he is to be released on parole.

4. In relation to the eighth count, that the respondent be sentenced to a fixed term of three months penal servitude to begin on 12 October 1999.

5. In respect of the second indictment and the offence of attempted buggery, I propose that the respondent be sentenced to a fixed term of penal servitude for one year and six months commencing on 12 October 1999.

In respect of the two fixed term sentences, I propose that those sentences be for a fixed term having regard to the sentences I propose be imposed on the other counts.

48   NEWMAN J: I agree.

49   HULME J: I also agree.

50   NEWMAN J: The orders of the Court will be as proposed by Mr Justice Studdert.

**********