R v Richardson
[2008] VSCA 7
•1 February 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 419 of 2007
THE QUEEN
v.
MARK RICHARDSON
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JUDGES:
VINCENT, NEAVE and REDLICH JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
31 January 2008
DATE OF JUDGMENT:
1 February 2008
MEDIUM NEUTRAL CITATION:
[2008] VSCA 7
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Criminal law – Sentencing – Appellant pleaded guilty to six counts of sexual penetration a child under 16 – Offences committed in one 24 hour period against two 14 year old school girls, who the appellant met at a railway station - Appellant was then aged 31 – Sentenced to six years six months imprisonment, with a non-parole period of five years – Crown conceded that the judge erred by misstating the maximum penalty and that the sentence was manifestly excessive – Appeal allowed – Appellant re-sentenced to three years six months’ imprisonment with a non-parole period of 27 months.
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APPEARANCES: Counsel Solicitors For the Crown Mr J D McArdle QC Ms A Cannon, Solicitor for Public Prosecutions For the Appellant Mr C B Boyce
Regan Richards VINCENT JA:
1 I will invite Neave JA to deliver the first judgment.
NEAVE JA:
2 The appellant, Mr Mark Richardson, pleaded guilty to six counts of sexual penetration of a child under the age of 16. The appellant was 31 years old at the time of the offending and is now 34. All the offences occurred over one evening and the next morning. The victims were two schoolgirls, whom I will refer to as GR and BC. They were aged 14 at that time.
3 Mr Richardson was sentenced by a County Court judge to four years’ imprisonment on each of the six counts. The learned sentencing judge ordered that six months of the sentences imposed on counts 2, 3, 4, 5 and 6 were to be served cumulatively on the sentence imposed on count 1. This resulted in a total effective sentence of six years and six months’ imprisonment. His Honour imposed a non-parole period of five years. This is an appeal, with leave,[1] against those sentences.
[1]Leave to appeal pursuant to s 582 of the Crimes Act 1958 was granted by Buchanan JA on 21 September 2007.
Background
4 The appellant first encountered the complainant GR in October 2004 at Altona railway station following a party. Both the appellant and GR were with groups of friends and there was an exchange between some of the appellant’s friends and the complainants’ group.
5 Later that night the appellant and GR met at Newport station, where the appellant approached her and apologised for the behaviour of his friends at Altona. He struck up a conversation with GR which resulted in the exchange of mobile telephone numbers.
6 Over the course of the next few weeks the appellant and GR spoke on the phone on a few occasions. Then, on 19 November 2004, the appellant received a call from GR who was at Highpoint Shopping Centre, with the other complainant BC. GR told the appellant that they had just tried to get some body piercing done, but that they had been unable to do so because they did not have parental consent.
7 The appellant told GR that he had a contact who might be able to perform the body piercing and arranged to meet the girls at Laverton railway station later that afternoon. He picked them up in a car and took them to a tattoo shop which he was familiar with, however it was closed. As a result, the appellant drove them to a number of other places before ending up at a tattooist in Williamstown, where BC had her navel pierced. After the piercing, the appellant drove the girls to the Altona Beach/Williamstown area where they ate pizzas.
8 During the course of the afternoon the appellant gave GR and BC some alcohol to drink. The appellant then drove the girls back to his home in Altona. The three of them went upstairs where they consumed more alcohol and listened to the radio. After a while, the three of them lay down on the bed. At this point in time, the complainants were affected by the alcohol they had consumed.
9 The appellant kissed both complainants before encouraging them to kiss each other. He kissed and sucked BC’s nipples before removing her tampon and performing cunnilingus on her (count 1). He then inserted his fingers into her vagina (count 3) and sucked her nipples again. The appellant then performed cunnilingus on GR (count 2) and inserted his fingers into her vagina (count 4). Counts 1, 2, 3 and 4 were representative counts. After that, the appellant had sexual intercourse with BC, partially inserting his penis into her vagina (count 5), before again performing cunnilingus (count 1) and digitally penetrating her (count 3). The appellant then once again performed cunnilingus on (count 2), and digitally penetrated (count 4), GR. The appellant and the girls then fell asleep.
10 In the morning BC got up and went to the toilet because she was feeling unwell. While she was in the toilet, the appellant pushed GR’s head towards his groin and she performed fellatio on him (count 6).
11 The appellant made breakfast for the complainants before driving them to the tattooist in Williamstown where GR had her tongue pierced. He then drove GR to the train station and BC to her home in Point Cook. BC’s father was outside his house and saw the appellant drive off after he had dropped her off.
12 There was some telephone contact between the appellant and the complainants in the days following the offences. A few months later when a counsellor at the complainants’ school became aware of the assaults, the police were informed.
Grounds of appeal
13 Ground 2 was that the learned sentencing judge erred by stating that the maximum penalty applicable to each count was 15 years’ imprisonment, whereas it was in fact 10 years’ imprisonment.
14 At the beginning of his reasons his Honour correctly referred to the maximum penalty for the offence of sexual penetration of a child under 16 years, but later in his reasons, and shortly before he set out the sentences which were to be imposed, he incorrectly referred to a maximum sentence of 15 years’ imprisonment.
15 It was submitted that it was necessary to re-sentence the appellant because of this error. The Crown has conceded that this ground of appeal is made out. Because I am not satisfied that the mistake as to penalty could not have materially affected his Honour’s decision,[2] in my opinion that was an appropriate concession.
[2]R v Orbach [2007] VSCA 166, [2], [32]; R v Beary (2004) 11 VR 151, [15]–[21] (Callaway JA).
16 Ground 1 was that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive. Counsel for the Crown also conceded this ground was made out.
17 The Crown concessions on grounds 1 and 2 require the appellant to be re-sentenced. It is therefore unnecessary to consider ground 3, which was that his Honour made factual errors in sentencing the appellant. Accordingly, I refer to the submissions on this matter only to the extent that they are relevant to re-sentencing.
Counsels’ submissions on re-sentencing
18 It is convenient to deal first with the circumstances in which the offences occurred. At the plea hearing, counsel for the Crown alleged that the victims had told the offender of their age some days before the offences occurred. The offender’s counsel said that the guilty plea was based on Mr Richardson’s recklessness as to the complainants’ age, but that Mr Richardson did not concede that the girls had told him that they were under 16, before the offence occurred. The learned sentencing judge then said that it did not really matter whether the conversations about age had occurred between the complainants and the appellant, because it was ‘good enough’ that the offender had been reckless.
19 As counsel for the Crown conceded on the hearing of the appeal, his Honour’s comment requires the offender to be re-sentenced on the basis that he was reckless as to the age of the complainants, but did not deliberately set out to penetrate two girls whom he knew to be under 16.
20 There was also discussion during the plea hearing about whether the appellant had planned to have sexual contact with them for some days before the offences occurred. On the appeal, counsel for the Crown agreed that the appellant should not be sentenced on the basis that the appellant had ‘groomed’ the girls to participate in sexual activity with him. Any premeditation was limited to the day when the appellant picked up the girls and later took them to his house; that is after he drove them to the tattooist and purchased alcohol for them.
21 Counsel for the appellant relied upon a number of matters in mitigation. First, the psychiatric report provided by Dr Lester Walton indicated that the appellant was not ‘an entrenched sexual offender, and he would not attract a diagnosis of paedophilia, but the background was one of more general irresponsibility rather than any perverse sexual interest as such.’
22 Secondly, the appellant’s lack of planning of the offences was confirmed by his reaction when he was charged with the offences. The appellant was not sexually interested in children and was so shocked by the charges that he had attempted suicide and spent a week in the John Cade Psychiatric Unit in the Royal Melbourne Hospital. Although the appellant had a lengthy criminal record he had no previous convictions for sexual offences.
23 Thirdly, the appellant’s parents had separated when he was five or six and his mother had then formed a relationship with a man who physically abused the appellant for a period of three years. The appellant’s physical disabilities had also made his childhood difficult. He was born with a club foot and a congenital hip problem which required him to wear a brace as a young child. He was poorly physically co-ordinated and overweight, which discouraged him from playing sport and led to him being harassed at school. He struggled academically and left school after year 9.
24 Fourthly, the appellant had a history of psychiatric problems, including depression. Counsel relied on the appellant’s placement in the St Paul’s Psycho-Social Unit at Port Phillip Prison, which deals with offenders who are intellectually disabled or have psycho-social difficulties. A letter dated 5 August 2007 from Dr Eugenie Tuck, Director of Medical Services at St Vincent’s Correctional Health Service said that the appellant was suffering from schizophrenia and had a history of such a condition dating back to 1995. Dr Tuck said that the appellant ‘continues to suffer from paranoia and anxiety at times.’ Counsel submitted that the appellant’s psychiatric condition would make imprisonment significantly more burdensome for him than for a person without those problems, though it did not reduce his moral culpability for the offences.
25 Fifthly, the appellant had pursued rehabilitation opportunities whilst in prison, by undertaking drug education, life skills, relationship and literacy courses. He had been offered a job by a previous employer when he left prison.
26 As I have said, counsel for the Crown conceded that the sentences imposed were manifestly excessive. However he submitted that in re-sentencing the appellant the Court should give considerable weight to the age difference between the girls and the appellant, who at 31 was much older than they were. The appellant had purchased alcohol for the girls on the day of the offences and given them more alcohol to drink when they were in his bedroom. The victim impact statements showed the girls had been seriously affected by the offences. Further, Dr Walton’s medical report indicated that the appellant’s psychiatric difficulties were attributable, at least in part, to drug abuse and that his prospects of rehabilitation were doubtful.
Conclusion
27 The appellant sexually penetrated two girls who were 17 years younger than him. Although he did not set out to ‘groom’ them to participate in sexual activity, he must have known that they were vulnerable to sexual exploitation, and that they were affected by the alcohol he gave them to drink during the course of the day and the evening.
28 The offence of sexual penetration of a child under 16 is intended to protect young people from sexual exploitation by their elders. Although the appellant was not in a relationship of care with the girls, they trusted him not to harm them. At the age of 14 the two girls were at an immature stage of their sexual development. The victim impact statements show that the offences have had serious consequences for their psychological well-being. BC’s victim impact statement says that she has difficulty in trusting older men and that seeing drunk men reminds her of what happened. She has slashed her wrists on more than one occasion, has had to move schools, and is still receiving counselling. BC’s father says that her marks at school ‘dropped dramatically and she lost all her friends.’
29 The victim impact statement provided by GR’s mother says that GR has suffered a great deal of emotional upheaval and has severed her old friendships. Although she was previously an excellent student she failed year 10 at school. GR’s brother has also been affected by her experience.
30 Although there is no doubt that these are serious offences, which have harmed GR and BC, all of them except count 6 occurred on a single occasion, and count 6 was closely connected to the events of the evening before. In re-sentencing the appellant I must take account of the fact that the offences did not involve prolonged abuse over many months or years, that the appellant did not threaten the victims and that he was not in a relationship of care or authority over them.
31 I must also give some weight to the mitigating factors relied upon by the appellant’s counsel, including the appellant’s remorse and guilty plea, his difficult childhood and the attempts he is making to rehabilitate himself.
32 The extent to which the appellant’s psychiatric condition must be taken into account raises more complex issues. Dr Walton’s report said that:
This man’s psychiatric history dates back to 1995 when he was prescribed the anti-psychotic medication Largactil for amphetamine-induced psychosis. He was afflicted by paranoid delusions and auditory hallucinations…
Three years later Mr Richardson seems to have suffered from a depressive episode and he was treated with the antidepressant medication, doxepin, and later Zoloft. Depression seems to have been a recurring phenomenon thereafter For the past three years Mr Richardson has been treated with alternative antidepressant medication Avanza, as well as the major tranquillizing medication Seroquel. Apparently these medications have been continued in prison, as has bunprenorphine.
33 Dr Walton’s report said that the appellant had a history of poly-drug abuse, with recurring episodes of drug-induced psychosis and also recurring bouts of depression of clinical significance. He did not consider that the appellant’s substance use preceding the offending, significantly compromised his mental functioning.
34 I have already referred to Dr Tuck’s opinion that the appellant has schizophrenia. Dr Tuck reported on the appellant as follows:
During February 2007 Mr Richardson was assessed by a Consultant Psychiatrist who noted Mr Richardson’s past history of having been diagnosed with schizophrenia. Mr Richardson was presenting with a depressed mood and paranoia.
It was the advice of the Psychiatrist that Mr Richardson be admitted to St. Paul’s, the psycho-social rehabilitation unit of the health service at Port Phillip Prison, in order that he may be further assessed and that he may learn to understand his illness and work in a programs based environment to assist him with his life skills.
Mr Richardson was admitted to St. Paul’s on the 2nd February 2007 and remains an inpatient of the unit.
Assessment during his early period in the unit revealed Mr Richardson to be suffering adjustment difficulties in the setting of a lowered mood, paranoia and anxiety.
Review of his medication together with his involvement in programs has been associated with a decrease in his symptomology.
Weight gain has been a noted problem for Mr Richardson and a change in anti-psychotic medication was undertaken to assist in the management of this symptom. He was also advised re an appropriate dietary regime.
At the present time, despite there having been an overall improvement in Mr Richardson’s symptomology, Mr Richardson continues to suffer from paranoia and anxiety at times.
He is considered to be suffer[ing] from schizophrenia.
…
It is important that Mr Richardson does not, in the future, self medicate with illicit drugs.
35 In my opinion Dr Tuck’s report, based on the appellant’s prison experience, provides a more comprehensive indication of his current mental health status than Dr Walton’s report, which was based on a single interview.
36 Dr Walton’s report does not suggest that the appellant’s offending on this occasion was causally related to his mental condition. He also says that although the appellant was using alcohol, cannabis and amphetamine immediately preceding the offending there was ‘no convincing evidence that this significantly compromised his mental functioning.’ Counsel did not submit that the appellant’s moral culpability was reduced by his psychiatric condition. In my view there is therefore no basis for treating this as a case in which the appellant’s psychiatric condition reduces the blameworthiness of his conduct.[3]
[3]See the first principle in R v Tsiaras [1996] VR 398, 400 & R v Verdins [2007] VSCA 102, [25]–[26]
37 Nor does the offender’s mental disorder require lesser emphasis to be given to general deterrence.[4] However the appellant’s depression, paranoia and anxiety, are likely to make the sentence weigh more heavily on the appellant than on a person in normal health. I would give this matter some weight in sentencing him.
[4]R v Tsiaras [1996] VR 398, 400; R v Verdins [2007] VSCA 102, [32].
38 The appellant has an extensive criminal history; namely 82 prior convictions from 15 previous appearances. The majority of these convictions were for drug related, driving or dishonesty offences, although he has also been convicted of armed robbery.
39 The appellant has also abused drugs for many years. Dr Walton’s report says that he began using cannabis when he was 15 and started to use amphetamines when he was 18, apparently to control his weight. He also used heroin from the time he was 21, but ceased that 3 years ago when he was prescribed buprenophine. Dr Tuck’s report suggests that his poly drug use was an attempt to self-medicate to deal with his other mental conditions.
40 Dr Walton’s report is cautious about the appellant’s prospects for rehabilitation, in light of his drug use and long history of offending, but indicates that the appellant is not a paedophile. Although specific deterrence must be taken into account in sentencing him, I would give it less weight than would be the case if he had previously been convicted of sexual offences.
41 According to the sentencing statistics compiled by the Sentencing Advisory Council the median length of imprisonment imposed for this offence, between 2001–2002 and 2005–2006, was two years.[5] As I have said, these events occurred on a single occasion.
[5]Sentencing Advisory Council Sentencing Snapshot No 31:Sentencing trends for sexual penetration of a child aged between 10 and16 in the higher courts of Victoria 2001-02 to 2005-06 (Oct 2007) 4.
42 Because the appellant has been convicted of two or more sexual offences for which he will be sentenced to a term of imprisonment,[6] the serious offender provisions in Part 2A of the Sentencing Act 1991 are applicable. I do not consider that it is necessary to impose a sentence longer than that proportionate to the gravity of the offences in order to protect the community.[7]
[6]See Sentencing Act 1991, s 6B, Schedule 1, clause 1. Note that s 6C requires the court to have regard to convictions for a relevant offence irrespective of whether they were recorded in the current trial or hearing.
[7]See s 6D.
43 I would sentence the appellant as follows:
·On count 1 (a representative count relating to BC) — 18 months’ imprisonment.
·On count 2 (a representative count relating to GR) — 18 months’ imprisonment.
·On count 3 (a representative count relating to BC) — 18 months’ imprisonment.
·On count 4 (a representative count relating to GR) — 18 months’ imprisonment.
·On count 5 — 2 years’ imprisonment.
·On count 6 — 15 months’ imprisonment.
44 Under s 6E of the Sentencing Act:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
This provision applies in relation to the sentences imposed for counts 3–6.
45 I would treat count 5 as the base sentence and order 3 months cumulation on the base sentence of the sentences imposed on each of the representative counts, namely counts 1–4. Although count 6 was not a representative count, the appellant had time to reflect on his previous conduct, because the act of fellatio occurred the morning after the previous offences. Accordingly I would order that the six months term of imprisonment for count 6 be cumulated on the base sentence. Otherwise, the sentences imposed on counts 1 to 4 and 6 are to be served concurrently with the base sentence and with each other. This results in a total effective sentence of three years six months’ imprisonment. I would direct that the appellant serve a minimum non-parole period of 27 months.
46 Because the appellant has been convicted of two or more class 1 offences[8] he is a registrable offender who must comply with the reporting obligations imposed by the Sex Offenders Registration Act 2004 for the remainder of his life.
[8]See Sex Offenders Registration Act 2004, s 34, Schedule 1, clause 1. Although offences arising from the same incident are to be treated as a single incident (see s 34 (c)), s 5(1) says that this provision only applies if the offences are committed within 24 hours against the same person.
VINCENT JA:
47 I agree.
REDLICH JA:
48 I agree.
VINCENT JA:
49 The orders of the Court are that the appeal is allowed. The sentences imposed in the court below are quashed and in lieu thereof the appellant is sentenced as follows:
·On count 1 - 18 months' imprisonment
·On count 2 - 18 months' imprisonment
·On count 3 - 18 months' imprisonment
·On count 4 - 18 months' imprisonment
·On count 5 - two years' imprisonment
·On count 6 - 15 months' imprisonment
50 The Court directs that three months of the sentences imposed on each of counts 1, 2, 3 and 4 and six months of the sentence imposed on count 6 be served cumulatively upon each other and upon the sentence imposed on count 5, but that otherwise all the sentences are to be served concurrently, thus making a total effective sentence of three years and six months' imprisonment.
51 A non-parole period of two years and three months is fixed.
52 The appellant is sentenced as a serious sexual offender on counts 3, 4, 5 and 6 and it is ordered that that fact be entered in the records of the Court.
53 It is declared that the period of 488 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration has been made and its details.
54 The appellant is a registrable offender under s 6 of the Sex Offenders Registration Act 2004. He will be required to comply with the reporting obligations of that Act for the rest of his life.
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