R v Spiller

[2000] NSWCCA 36

CITATION:	R v Spiller [2000] NSWCCA 36
FILE NUMBER(S):	CCA 60283/99
HEARING DATE(S):	Monday 21 February 2000
JUDGMENT DATE:	21 February 2000
PARTIES :	Daniel Patrick Spiller (applicant) Regina (respondent)
JUDGMENT OF:	Hidden J at 1; Carruthers AJ at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1156
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL :	D G Dalton (applicant) D M Woodburne (Crown)
SOLICITORS:	Nicola Velcic & Associates (applicant) Solicitor for Public Prosecutions (Crown)
CATCHWORDS:	CRIMINAL LAW - Sentence - indecent assaults on stepdaughter - not manifestly excessive
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Baxter (CCA unreported 26 May 1994) R v Turner (No2) (CCA unreported 28 July 1995) R v Barrett (CCA unreported 26 July 1995)
DECISION:	Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60283/99

HIDDEN J
CARRUTHERS AJ

Monday 21 February 2000

Regina v Daniel Patrick Spiller

Reasons for judgment

1 HIDDEN J: The applicant, Daniel Patrick Spiller, seeks leave to appeal against sentences imposed upon him by his Honour Judge Gibson in respect of three counts of aggravated indecent assault under s61M(2) of the Crimes Act, an offence carrying a maximum penalty of ten years imprisonment, and one count under subs 61M(1) of the Act, carrying a maximum of seven years imprisonment.

2     His Honour sentenced the applicant in respect of the second count, that is one of the counts under subs (2) to imprisonment of four years, comprising a minimum term of two years and an additional term of two years. On the other count under that section, his Honour imposed concurrent sentences of fixed terms of 18 months, and on the count under subs (1) his Honour imposed a fixed term of 12 months, also to be served concurrently. Effectively, the sentence to be served is a minimum term of two years with an additional term of two years.

3     The three more serious counts related to offences committed against a girl over a period when she was aged between about six and nine years. There was evidence that the three counts were not isolated incidents but were part of a pattern of indecent behaviour over roughly a three year period. The less serious count relates to indecent conduct with a girl aged twelve and relates to one incident only.

4     The applicant had been living in a defacto relationship with the mother of the two girls. He is now thirty years old. He does have a criminal record but not for offences of this kind. When the offences came to light, he himself went to the police and made a full confession of his behaviour.

5     He was involved in a motor vehicle accident in 1990, sustaining an injury which led to some brain damage. His Honour had regard to that matter, although there was a psychiatric report of Dr Bruce Westmore which did not see that brain damage as contributing in any significant way to his behaviour. On the other hand, Dr Westmore saw the offences as arising in the context of the relationship and concluded that the applicant did not meet the diagnostic criteria for paedophilia. He did not see him as a substantial risk to children in the community in that he was not to that extent a predator of children.

6     He had in the past been a heavy drinker and a user of heroin. It seems his drinking moderated after his accident and he gave up marijuana after his arrest for these offences. In the light of that background, his Honour found special circumstances.

7     Mr Dalton, who appeared for the applicant today, submitted that the effective sentence is manifestly excessive. He argued that the error may well have arisen from his Honour's assumption that a custodial sentence was necessarily called for for offences of this kind, leading his Honour to assess the appropriate sentence from a starting point that was too high. It certainly is the case that offences of indecency with children where no penetration is involved do not necessarily carry a full-time custodial sentence: see R v Baxter (CCA, unreported, 26 May 1994).

8     However, in my view a fair reading of his Honour's remarks does not disclose an assumption on his Honour's part that there had to be a sentence of full-time custody in matters of this kind, regardless of the facts and circumstances involved. What his Honour said was this:

His conduct in relation to these two young girls was appalling. They were his stepdaughters. They were entitled to look to him for love and protection against this very type of action from other men and the very person to whom they are entitled to look towards to protect them is the person that has taken advantage of them in their most vulnerable years. And in relation to the younger of the two girls, this extends over a considerable period in excess of two years and in my view there is only one thing that can be done in relation to a person that breaches his trust in that way and that is to put him in custody.

9     It appears to me that his Honour was doing no more than concluding that a custodial sentence was called for in the particular circumstances of this case, and that that conclusion was not affected by any misplaced assumption about how sentencing for matters of this kind should be approached.

10     Baxter itself was a Crown appeal in which the Court refused to interfere with recognizance for offences of committing acts of indecency upon a young child. The offences for which Baxter was sentenced were under a section of the Crimes Act, since repealed, which carried a maximum sentence of four years imprisonment.

11     We were also referred to R v Turner (No 2) (CCA, unreported, 28 July 1995) where, upon a Crown appeal, periodic detention was substituted for an order to perform community service. That was a case in which discretionary considerations loomed large but, again, the offences for which Mr Turner was dealt with were under another section of the Crimes Act for which the maximum sentence was five years imprisonment.

12     We were also referred to R v Barrett (CCA, unreported, 26 July 1995) where a sentence was reduced for offences of this kind. However, the influential factor in relation to the Court's intervention there was the state of health of the applicant, a matter as to which fresh evidence was led in the course of the appeal.

13     None of these cases, it seems to me, provides any useful guide to the appropriate sentence in the present case. As I have said, the legislature has recognised the seriousness with which the community views those offences by providing for significantly greater maximum sentences than used to be the case: in the case of the younger girl, as she was under ten, a maximum of ten years and in the case of the older girl, a maximum of seven years.

14     In all the circumstances, I am not persuaded that his Honour fell into error in his approach to his sentencing task or in the effective sentence at which he arrived. The matter was clearly worthy of argument and I would grant leave to appeal but dismiss the appeal.

15     CARRUTHERS: I agree.

16     HIDDEN: Leave to appeal is granted but the appeal is dismissed.

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