R v Siborowski

[1998] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 147 of 1998

THE QUEEN

v

HENRY STANLEY SIBOROWSKI

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JUDGES:	TADGELL, ORMISTON and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 1998
DATE OF JUDGMENT:	19 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 88

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CRIMINAL LAW - Sentence - Serious sexual offences committed during a period 13-28 years before sentence - Substantial mitigating factors - Sentence of 16 years with 12-year minimum reduced to 12 years with 10-year minimum.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr D.G. Wraith	Victoria Legal Aid

TADGELL, J.A.:

1. This is an application for leave to appeal against sentence. The applicant, Henry Stanley Siborowski, pleaded guilty in the County Court to 11 counts. There were two counts of carnal knowledge of a girl under the age of 10 years (counts 1 and 2) contrary to s.46 of the Crimes Act 1958, the maximum penalty for which was imprisonment for 20 years; five counts of gross indecency (counts 3, 5, 8, 10 and 11) contrary to s.50 of the Crimes Act, the maximum penalty for which was imprisonment for 10 years; three counts of rape (counts 4, 6 and 7) contrary to s.45, the maximum penalty for which was imprisonment for 10 years; and one count of indecent assault (count 9) contrary to s.44 of the Act, the maximum penalty for which was imprisonment for five years. Each of the crimes charged by counts 5, 8, 10 and 11 was alleged to have been committed when the victim, a minor, was generally at the time under the care, supervision or authority of the applicant.

2. Following a plea in mitigation the applicant was sentenced on 10 June last to be imprisoned as follows: on count 1 - for seven years; on count 2 - for seven years; on count 3 - for 12 months; on count 4 - for six years; on count 5 - for 18 months; on counts 6 and 7 - for six years; on count 8 - for 18 months; on count 9 - for three years; on count 10 - for 18 months; on count 11 - for two years. The judge ordered that there be total cumulation of the sentences on count 7 and on count 9 together and with the sentence on count 1, producing a total effective sentence of 16 years' imprisonment. His Honour ordered that the applicant serve a minimum term of 12 years before becoming eligible for release on parole and pre-sentence detention of 50 days was noted.

3. The applicant's notice of application for leave to appeal contained three

   grounds:

   1.          That the sentence imposed was manifestly excessive in all the circumstances.

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2.          That the learned sentencing judge erred in that he gave too little weight to (a) the plea of guilty; (b) the age of the applicant; and (c) the various matters put on behalf of the applicant in mitigation.

3.          That the learned sentencing judge erred in that hegave too much weight to the principles of individual and general deterrence.

1. The applicant was born on 2 November 1946 in Germany and came to this country at about the age of five years. The offences to which he pleaded guilty were committed from November 1974 to March 1985, when he was aged from about 28 years to about 37 years. His childhood had been disturbed. His father, a Pole, was violent and alcoholic and the applicant had no contact with him since aged about 12. The applicant had, it seems, a relatively minimal education. A relative sexually abused him as a child and raped his mother in his presence. The result of this upbringing is said to have been that as a boy the applicant lost any motivation he might have had to remain at home and to lead a socially useful life. He was drawn at an early age to anti-social behaviour, including serious abuse of alcohol and crimes of dishonesty and the like, and so spent some of his formative years at Turana Youth Training Centre, from which on a number of occasions he escaped. While thus at large he committed a number of crimes including a firearms offence against a police officer and received a solid prison sentence. He admitted on his plea a number of prior convictions for crimes of dishonesty in 1963 and 1964 when he was aged about 17 and 18 years, but apparently declined to admit others, which in the event were not proved. He had, before the offences at present under consideration, no record of conviction for any sexual offence. He seems to have spent the bulk of his late teenage years and his early twenties in custody.

2. When in prison at Bendigo he met a married man, whom I shall call "A.C." The applicant, after his release from the Bendigo Gaol in 1972, while A.C. was still in custody, began a relationship with A.C.'s wife. He lived with her and her children for about ten years, and even unofficially changed his surname to hers. She had five children by A.C. (four girls and a boy) and she had another by him (a boy). The

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subject offences were committed against three of Mrs C.'s daughters and her son
during the period for which he lived in the household as her common law husband.

1. The counts alleged are representative of ongoing behaviour of the applicant over that period. This began when the eldest daughter was about nine years of age, an offence of carnal knowledge being committed. He committed the same offence against the second daughter when she was aged from about 11 to 13 years, a series of offences of gross indecency and rape against the third daughter when she was aged from about 12 to about 15 years, and a further offence of indecent assault against the second daughter when she was aged 17 years. There was an offence of gross indecency against Mrs C.'s elder son when he was aged 13.

2. I find it unnecessary to describe in much detail the circumstances of the offences. They were, in varying degrees, disgusting, and all were very serious offences of their kind. When the girls were very young their forced submission to the applicant's cruel invasion of their bodies was, of course, painful and degrading. The conduct towards them and to the boy after their attainment of puberty may well have been even more humiliating, and it was undoubtedly cowardly and often violent. Perhaps I might refer in particular to count 9, which was a count of indecent assault of about as repulsive a nature as it is possible to conceive. This took place between January 1985 and December 1985, when Mrs C.'s second daughter was aged 17 years. The applicant entered the complainant's bedroom and told her that he wanted to check whether she was pregnant or not. With this he made her remove her underpants and spread her legs apart in a standing position. The applicant then knelt down in front of her and placed his fingers, all his fingers, of one hand inside her vagina, and followed by forcing his clenched fist inside her. When he removed his hand the complainant, not surprisingly, was bleeding from this area.

3. The learned judge, quite rightly, regarded these offences as serious offences for which condign punishment was deserved. During the course of his sentencing remarks he said:

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"These children were pawns to be used by you to satisfy your own sexual gratification. Sexual offences against children of this type, the type committed here, are only too prevalent in the community. Your offending, I find, has the added ingredient of extreme cruelty and violence which puts your offending into an even higher heinous level. Your conduct cannot be tolerated. It is difficult to paint a word picture of the pain, misery and indignity which you brought down upon these children."

Of course, to be added to that is the ingredient that the applicant was, in the case of several of the offences, in loco parentis: the children used to call him "father". Unquestionably the punishment must be condign.

1. The applicant was, in respect of the third and following counts, to be sentenced as a serious sexual offender. The judge took note of that but expressed himself not to be satisfied that this was a case where a penalty should be imposed which was longer than that proportionate to the gravity of the offences considered in the light of their objective circumstances.

2. No criticism was made this morning on behalf of the applicant of any of the individual sentences passed below. It was said, however, that, having regard to the number of significant mitigating circumstances, the penalty of 16 years' imprisonment was manifestly excessive. It was said that, although the learned judge made appropriate findings of fact having regard to the circumstances personal to the applicant, he could not have applied them properly when fashioning the sentence.

3. First chronologically among the mitigating circumstances was the difficult childhood, to which I have referred, that the applicant unfortunately had. I shall not repeat the circumstances of that. Then there was, after he was called in for interview, considerable co-operation by the applicant with the police. During the course of a searching interview he made confessions of a kind which were sufficient to enable him to be charged with the offences to which he later pleaded guilty. His plea was made at the earliest opportunity. That was no doubt a blessing for the victims of his offences. It is, of course, entirely desirable in cases of this kind in particular that the victims be saved the trauma of reliving the criminal conduct which was perpetrated against them, particularly when it occurred so many years ago. Then,

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unquestionably, during the course of the interview by the police and subsequently, the applicant showed genuine remorse for the behaviour which brought him before the court. This was emphasised by the very long period during which he did not offend following the last of the offences in 1985 against Mrs C.'s children. During that period, until he fell to be sentenced, the applicant had, it seems, done a good deal to rehabilitate his life which had begun so unfortunately. He built up his own business by dint of hard work, a laundromat business which, it seems, is successful. He had entered into a new relationship with another woman which subsists. He had reformed his drinking habits and, so far as appears, was leading a life in accordance with the law.

1. Another factor which might be mentioned to be taken into account in sentence is the very considerable delay between the time of the commission of the offences and the sentencing for them, but in particular a delay since 1992, when complaints were apparently first made by the victims of these offences, until 1997, in August, when the applicant was interviewed for the first time by the police about them. There are various explanations given for the delay between 1992 and 1997. It does seem that the applicant was not informed that he was under suspicion before 1997, and that during the period 1992 to 1997 he was, of course, by way of building up his business and reshaping his life.

2. Extremely serious though these offences are, it seems to me that, taking into account all the matters of mitigation which might be marshalled on his behalf, the applicant was dealt with by the learned judge in a fashion which was to impose a manifestly excessive sentence of 16 years.

3. In the circumstances the application should, in my opinion, be allowed. I would set aside the sentences which were imposed and re-sentence the applicant not differently in respect of the sentence for each offence but by way of making different cumulative orders from those made by the judge. Thus I would make one year of the sentence on count 4, one year of the sentence on count 6, one year of the sentence on count 7 and two years of the sentence on count 9 cumulative with each other and

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with the sentence on count 1. All other sentences should be served concurrently. That produces a total head sentence of 12 years and I would propose that the applicant serve a period of 10 years before becoming eligible for release on parole.

ORMISTON, J.A.:

1. I agree. I have had the gravest of concerns in considering this application. If it were not for the factors referred to by the presiding judge - the applicant's remorse, his co-operation with the police, his early plea of guilty, his good conduct since 1985 and the likelihood of continued rehabilitation by him - I would have considered the sentences, and in particular the total effective sentence, to have been entirely appropriate. Those factors, however, reluctantly persuade me that the principle of totality has not been properly applied, so that the sentences must be set aside and the proposed orders made.

CHARLES, J.A.:

1. I agree that this application should be granted and the applicant re-sentenced as proposed by the learned presiding judge, and for the reasons given by his Honour.

TADGELL, J.A.:

1. The judgment of the Court is that the application for leave to appeal against sentence is granted, that it be directed that the appeal be treated as instituted and heard instanter and allowed, that the sentence be set aside and that the applicant be re-sentenced in accordance with my earlier indication.

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1. The Court declares that the period of 181 days be reckoned as already served under the sentence and orders that there be noted in the records of the Court the fact that such declaration was made and its details.

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