R v Sumner
[2016] SASCFC 59
•18 May 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SUMNER
[2016] SASCFC 59
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Blue)
18 May 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE
Appeal against sentence. The respondent was convicted after a trial by Judge alone in the District Court of South Australia of one count of attempted kidnapping, contrary to s 29(1) and s 270A of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of causing harm with intent to cause harm, contrary to s 24(1) of the CLCA. The circumstances of that offending were that the appellant grabbed a 70 year old woman from behind on the street, dragged her backwards and attempted to force her into a car boot. The complainant resisted and the respondent threw her to the ground, hit her head repeatedly against the concrete and stood on her head before fleeing.
The respondent has an extensive history of offending, including of a sexual nature. The applicant applied, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) for an order that the defendant be detained in custody until further order. A Justice of this Court dismissed that application and sentenced the respondent pursuant to s 18A of the Act to one sentence of six years and six months imprisonment for both offences, with a non-parole period of five years and six months.
The applicant appeals on four grounds: first, that the head sentence and non-parole period imposed are manifestly inadequate; second, that the Judge erred in not finding proven that the offences were committed with the intention of committing a sexual offence against the victim; third, that the Judge’s reasons for failing to find the sexual intention proved are inadequate; and fourth, that the Judge erred in the proper exercise of the power under s 23 of the Act.
Whether the head sentence and non-parole period are manifestly inadequate. Whether the Judge erred in not finding proved that the offences were committed with the intention of committing a sexual offence. Whether the Judge’s reasons for failing to find the sexual intention proved are inadequate. Whether the Judge erred in the proper exercise of the power under s 23 of the Act.
Held per Kelly J (Vanstone and Blue JJ agreeing):
1. The whole of the material before the Judge pointed irresistibly to the conclusion that the offending against the complainant was sexually motivated. The Judge was in error in failing to find beyond reasonable doubt that the offending was sexually motivated.
2. The outcome of the application under s 23 of the Act would have been different if the Judge had concluded that the respondent’s offending was sexually motivated. The Judge erred in the approach to the exercise of s 23 of the Act.
3. In the circumstances a sentence of six years and six months imprisonment is manifestly inadequate.
4. The order in respect of the application made by the Judge is set aside.
5. An order is made that the respondent be detained in custody until further order, pursuant to s 23(4) of the Act.
6. The sentence imposed by the Judge is set aside.
Per Kelly J (Vanstone J agreeing):
7. The respondent is sentenced to one sentence of 10 years’ imprisonment with a non-parole period of eight years, deemed to have commenced on 20 August 2012.
Per Blue J:
8. The respondent should be sentenced to one sentence of nine years’ imprisonment with a non-parole period of six years six months, deemed to have commenced on 20 August 2012.
Criminal Law (Sentencing) Act 1988 (SA) s 23; Criminal Law Consolidation Act 1935 (SA) s 24(1), s 39(1), s 270A, referred to.
R v Kennedy [2012] SASCFC 13, applied.
R v Sumner [2015] SASC 177, discussed.
R v Jackson [2007] SASC 332; Saenz v The Queen [2011] VSCA 154, considered.
R v SUMNER
[2016] SASCFC 59Court of Criminal Appeal: Vanstone, Kelly and Blue JJ
VANSTONE J: I agree that the Director’s appeal should be allowed, and I agree with the reasons written by Kelly J. I would make the following orders:
1.Set aside the order made in respect of the application under s 23 of the Criminal Law (Sentencing) Act 1988 (SA).
2.In its place, order that the respondent be detained in custody until further order, pursuant to s 23(4) of that Act.
3. Set aside the sentence under appeal.
4.In its place impose one sentence of 10 years’ imprisonment with a non-parole period of eight years, to be deemed to have commenced on 20 August 2012.
KELLY J:
Introduction
This is a Crown appeal against a sentence imposed by a single Judge of this Court for two offences, namely attempted kidnapping[1] and causing harm with intent to cause harm.[2] The Judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) of six years and six months imprisonment. He set a non-parole period of five years and six months, backdated to commence on 20 August 2012.
[1] Contrary to s 39(1) and s 270A of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).
The respondent was convicted after a trial by Judge alone in the District Court. The matter was referred to the Supreme Court to be dealt with in accordance with the procedures in s 23 of the Act after the prosecution applied under s 23(2)(b) for a declaration that the respondent was incapable or unwilling to control his sexual instincts and an order that he be detained until further order. The respondent was sentenced in this Court immediately upon the dismissal of that application.
The appellant now appeals on three grounds; first, that the head sentence and non-parole period imposed are manifestly inadequate; second, that the Judge erred in not finding proven that the offences were committed with the intention of committing a sexual offence against the victim; and third, that the Judge’s reasons for failing to find the sexual intention proved are inadequate. During the argument on appeal the appellant sought and was granted permission to add a fourth ground, namely that the Judge erred in the proper exercise of the power under s 23 of the Act.
Before I turn to discuss the grounds it is convenient to set out some of the history.
Background
The events which gave rise to the offences of attempted kidnapping and causing harm with intent to cause harm occurred on 19 August 2012. A 70 year old woman, BM, was walking with her dog in a northern suburb of Adelaide. The respondent was standing at the rear of a white parked car with one hand touching the open boot lid as BM walked past. The respondent grabbed BM from behind with one of his arms around her chest and the other across her mouth. The respondent then dragged her backwards to the rear of the car and attempted to force her into the open boot. The respondent succeeded in forcing the top half of BM’s body into the open boot but her feet remained on the ground. When BM resisted, the respondent threw her to the ground, which caused her to hit her head on the concrete. He then grabbed her by the hair and hit her head against the concrete more than once. He stood on her head. He then desisted and went back to the white car. He said something which BM could not hear, started the vehicle and drove off very quickly.
After BM cried for help a number of other people came out of their houses and assisted. Police and ambulance were called. BM suffered a number of injuries including a cut to the head which required five staples, bruising to her face, abrasions to her back, leg, elbow and face, and a dislocated finger.
The respondent’s criminal history
The respondent has an extensive history of offending. In 2004, at the age of only 19, he was sentenced after guilty pleas to nine offences of a sexual nature and one related offence committed against nine females, all of whom were strangers to him. In each case the victims were significantly older than the respondent and some were elderly. In three of the instances, the respondent forced the victim onto her back, straddled her and engaged in conduct with the apparent intention of ejaculating upon her. In two out of three of those instances, the respondent touched the victims’ breasts. In one of those instances, he also touched the victim near her crotch on the outside of her clothing and ejaculated over her breasts. In another two instances, the respondent masturbated in the presence of the victims and ejaculated onto their clothing. In two other instances, the respondent masturbated in the presence of each of the victims and in the remaining two instances, the respondent exposed himself in the presence of each victim. In one instance, the indecent behaviour occurred in the victim’s own home which the respondent had entered.
For the group of 10 offences committed in 2002/2003, the respondent was sentenced as an adult to imprisonment for five years with a non-parole period of three years. He was released on parole on 14 September 2006. However after seven months on parole, the respondent was remanded in custody following a breach of his parole conditions.
On 15 July 2007, less than one month after being discharged from custody, the respondent again offended by committing aggravated serious criminal trespass in a place of residence, assault, and indecent assault. In that case, the respondent did not know the victim but managed to inveigle himself into her home. When the victim asked him to leave the respondent refused, removed his clothing and followed her into the bedroom. He threatened to kill her and leaned over her while naked. She managed to phone the police; however the respondent escaped before the police arrived.
For the offences committed on 15 July 2007, the respondent was sentenced to a term of imprisonment of three years and six months with a non-parole period of two years and two months. He was also required to serve an additional three months of unexpired parole.
The respondent was again released from custody on 24 May 2012. Less than three months later, on 19 August 2012, he committed the offences of attempted kidnapping and causing harm with intent to cause harm against BM.
There have been two prior applications for declarations pursuant to s 23 of the Act. The first was made in 2004 prior to the legislation being amended to expand the application of s 23 to persons who are unwilling to control sexual instincts in addition to persons incapable of controlling sexual instincts. The application was dismissed on the basis that it had not been established that the respondent was incapable of controlling his sexual instincts.
After the offending in 2007, a second application was made but ultimately withdrawn by the prosecution.
The Judge’s approach on the application pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA)
Immediately prior to sentencing the respondent for the offences of attempted kidnapping and causing harm with intent, the Judge published separate reasons for refusing the prosecution’s application under s 23 of the Act for an order that the respondent be indefinitely detained on the ground that he is unwilling to control his sexual instincts.[3]
[3] R v Sumner [2015] SASC 177.
The Judge first identified the potential difficulty arising out of the fact that the offence of attempted kidnapping does not necessarily have a sexual connotation or proceed from a sexual motivation. He then reviewed the material before him. The material before the Judge included expert reports and evidence from Ms Emma Warne, a registered psychologist, and two psychiatrists, Dr Jules Begg and Dr Paul Furst. The three experts considered that the respondent was in a high risk category for future violent offending of both a sexual and a non‑sexual nature. In particular Drs Begg and Furst each expressed a concern that, irrespective of whether the respondent did have a sexual motive for offending against BM, he was at high risk of reoffending again whether sexually or not. Nevertheless, both psychiatrists’ opinions that the respondent is unwilling to control his sexual instincts were substantially predicated on the assumption that the offence against BM was sexually motivated.
After reviewing the psychiatric evidence, the Judge stated that before relying on those opinions he would, to the extent that each of the psychiatrists’ opinions were dependent on a finding of fact that the offending against BM was sexually motivated, need to be satisfied of that fact beyond reasonable doubt.[4] The Judge then expressed the following conclusion:[5]
On my review of all of the available materials, I cannot be satisfied beyond reasonable doubt that the defendant intended to sexually assault BM or commit some other sexual offence at the time of the attempted kidnapping. However, I am of the view that it was highly probable that this was his intention or motivation.
[4] R v Sumner [2015] SASC 177 at [75].
[5] R v Sumner [2015] SASC 177 at [77].
Notwithstanding the failure to find that the offending was sexually motivated, the Judge then stated that he was satisfied that there is a significant risk that, given an opportunity to commit a relevant offence, the respondent would fail to exercise appropriate control of his sexual instincts. He found that risk to be a substantial one.
The Judge referred to a number of considerations which he took into account in reaching the conclusion that there is a good chance that the respondent would reoffend in the same way, given the opportunity. The considerations referred to by the Judge were that: [6]
·the respondent has an extensive history of sexual offending;
·the historical offending by the respondent exhibits a pattern indicating a strong motivation to offend in a particular way against a particular type of victim;
·on each occasion after the respondent was released after having served a lengthy period of imprisonment, he offended again (on at least one such occasion, in a similar manner) within a matter of months;
·the respondent had participated three times in a sexual offender rehabilitation program and his level of response on each occasion had been limited and disappointing;
·much of the respondent’s prior offending had the hallmarks of being planned and organised in a way that would permit a ready escape with reasonable prospects of avoiding detection;
·the expert evidence strongly favours a finding that the respondent is unwilling to control his sexual instincts; and
·the respondent presents with a substantial risk of sexual reoffending.
[6] R v Sumner [2015] SASC 177 at [78].
The Judge then stated:[7]
In my view, the safety of the community is a very real concern in this case. The defendant’s criminal history demonstrates offending that is of a repetitive nature, that is significant both in the number of offences and their seriousness and which discloses, in my view, a potentially escalating pattern of seriousness. In this case, serious weight must be given to the paramount consideration required by section 23(5) of the safety of the community.
[7] R v Sumner [2015] SASC 177 at [81].
Ultimately however the Judge declined to make the order under s 23, referring to considerations which included the respondent’s age, the fact that he had not offended for a good number of years, would remain in custody for at least another two years, and that the Attorney-General would be in a position to bring another application under s 23 of the Act upon the respondent’s release from custody, whether on parole or at the expiration of his sentence.
The Judge’s approach on sentencing for the 2012 offences
In imposing sentence for the offences of attempted kidnapping and causing harm with intent to cause harm, the Judge noted the respondent’s criminal record which he characterised as “appalling” and the fact that he has features of a psychopathic personality disorder placing him, according to the experts, in the high risk category for future violent offending of both a sexual and non-sexual nature. The Judge found that the respondent’s prospects of rehabilitation could only be considered as guarded and concluded that the two offences were very serious, particularly when viewed in the context of the respondent’s overall criminal history and his limited responsiveness to lengthy prison terms already served. He then said:
The repeated and serious nature of your criminal offending over time requires that any sentence for the 2012 offences must place (sic) significant regard to the need for the protection of the community and for deterrence, particularly personal deterrence. A severe but still proportionate sentence is justified.
He sentenced the respondent to a term of imprisonment of six years and six months with a non-parole period of five years and six months.
Prosecution appeals against sentence
The principles relating to granting a prosecution appeal against sentence are well established. The most recent restatement of the principle is to be found in R v Kennedy:[8]
The Director will be granted permission to appeal against sentence if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or, if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. An error in the sentencing process may be inferred from a result that is manifestly unreasonable or plainly wrong, or by identifying the adoption by a sentencing Judge of an incorrect principle, the giving of weight to some extraneous or irrelevant matter, the failure to give weight to some material considerations, or, the making of a mistake as to the facts.
[footnotes omitted]
[8] [2012] SASCFC 13 at [29].
It remains the case that a prosecution appeal against sentence will only be granted in rare and exceptional cases.
Analysis
Ground 2: The Judge erred in finding that the offences were not committed with the intention of committing a sexual offence
As the complaint concerning the failure of the Judge to find a sexual intention associated with the respondent’s offending underpins the complaints made in the other three grounds of appeal, I discuss this ground of appeal first.
The finding as to a sexual motive for the offending against BM was important in determining the application made under s 23 of the Act as well as the appropriate term of imprisonment to be imposed.
The material available to the Judge included the extensive reports and oral evidence of the two psychiatrists and Ms Warne. Although the respondent gave evidence at his trial, it is noteworthy that the first time the respondent claimed that the offending against BM was not sexually motivated was during his interviews with Drs Begg and Furst for the purpose of the s 23 application. His account was that the offending was, in effect, an attempted robbery of BM’s keys so he could get into her home and steal drugs which he said he believed BM’s son kept there. The respondent had gone to stake out BM’s home and by chance she walked by so he took the opportunity to try to take her keys.
A significant aspect of the evidence of BM at trial is that at no stage did BM say that the assailant ever demanded any keys or tried to grab her bag. The attempt by the respondent to put BM into the boot of the vehicle is inconsistent with a robbery of her keys. The verdict by the trial Judge of guilty of attempted kidnapping is also inconsistent with robbery of BM’s keys. The respondent’s actions as described by BM were not challenged in cross-examination and were inconsistent with any ex post facto claim by the respondent that he simply wanted to get BM’s keys. That aspect of the evidence was an important factor in evaluating whether what the respondent told the psychiatrists after the trial about his motive for attacking BM was reasonably possible.
The Judge referred in passing to the respondent’s claim to Dr Begg; however there is no further mention about that conversation in the Judge’s reasons before he concluded that he was unable to find beyond reasonable doubt that the offending was sexually motivated.
The respondent’s claim of an intention to rob BM needed to be evaluated in the context of the whole of the evidence in the District Court, the reasons for the verdict of the Judge in the Court below, and the extensive psychiatric and psychological reports from the three experts in this Court. At no stage when giving evidence at the trial did the respondent ever claim that it was his intention to rob BM. To the contrary, he denied that he was BM’s assailant, and denied that he was anywhere in the vicinity at the time of the offences.
The respondent’s claim also needed to be evaluated in the context of his prior criminal history. A summary of the relevant features of the respondent’s offending is set out in Appendix A to these reasons.
That summary reveals a history of offending by the respondent of a strikingly similar nature to the offending against BM in 2012. All of the offences committed by the respondent were committed shortly after he had been released from custody. The offending in 2002/2003 and 2007 was plainly sexually motivated. The respondent’s offending on each occasion demonstrates a pattern of opportunistic offending in which women, often elderly and vulnerable, were targeted in a public place and during which the respondent made no attempt to hide or disguise his appearance.
It is noteworthy that the reasons of the District Court Judge for the verdicts of guilty on the two offences refer to the respondent’s demonstrated, repeated and pronounced propensity to lie as and when he perceived it was in his interests to do so, even during the course of the trial. The District Court Judge’s observations and conclusions about the respondent are important in evaluating whether there was a reasonable possibility that the respondent’s later claim to the psychiatrists of an intention to rob BM was true. Apart from that explanation proffered, there was no other explanation for the respondent’s offending which arose on the evidence other than sexual motivation.
The uncontested evidence pointed strongly to the respondent again targeting an elderly victim who was grabbed forcefully from behind. The offences were committed in a public place and in a very brazen manner. The respondent only desisted after the victim put up a fight and started attracting attention by yelling. In contrast to the context in which the respondent gave evidence at trial, the respondent’s claims to Drs Begg and Furst well after the trial that the offending was an attempted robbery were made in the context of an interview the purpose of which the respondent knew was to determine whether he was unwilling or unable to control his sexual instincts. The respondent did not give any sworn evidence in support of his suggestions to Drs Begg and Furst. Given the other evidence before the Judge, there was no reason not to conclude that the respondent’s ex post facto claim was yet another lie which he perceived was in his best interests in the context of the interview to determine the issues under s 23 of the Act.
It is difficult to know why the Judge did not find beyond reasonable doubt that the offending against BM was sexually motivated as he did not outline his reasoning on this point. However, I do not think it makes any difference as the whole of the material before him pointed irresistibly to the conclusion that the offending against BM was sexually motivated. Given that the Judge did not hear evidence from the respondent, this Court is in as good a position as the Judge to review the whole of the evidence to determine whether it was established beyond reasonable doubt that the respondent acted with a sexual motive.
For these reasons I consider that the Judge was in error in failing to find beyond reasonable doubt that the offending was sexually motivated.
Ground 4: The Judge erred in his approach to the exercise of the powers under s 23 of the Act
For the reasons I have just expressed, the outcome of the application under s 23 of the Act would have been different if the Judge had concluded that the offending against BM was sexually motivated.
Given the respondent’s appalling criminal history, and his poor response to efforts to rehabilitate him over the past 10 years, I consider that the evidence before the Judge also compelled the making of a declaration under s 23 of the Act.
For these reasons I consider that the Judge erred in the approach to the exercise of the discretion under s 23 of the Act.
In light of the state of the material before the Judge, I consider that the only way effectively to give paramount consideration to the safety of the community is to make a declaration. Accordingly I would make a declaration under s 23 of the Act that the respondent is unwilling to control his sexual instincts.
Ground 1: Manifest inadequacy
Even without the finding beyond reasonable doubt that the offending was sexually motivated the offending was, as the Judge said, deserving of a severe sentence.
The Judge correctly characterised the offending as extremely serious. His observations about the respondent’s appalling criminal history and features of a psychopathic personality disorder rendering him a risk for future offending of both a sexual and non-sexual but violent nature, together with his conclusion about the respondent’s prospects of rehabilitation, called for a much higher starting point than six years and six months. On this appeal the Court was referred to two authorities dealing with the offence of kidnapping.
In R v Jackson[9] Sulan J (with whom White and David JJ agreed) stated with regard to sentencing for kidnapping offences:[10]
The offence of kidnapping is a serious offence. Those who commit the offence will usually face lengthy periods of imprisonment. Nevertheless, the offence can be committed in many and varied circumstances. On the one hand, a person can be kidnapped, held for ransom, subjected to violence and traumatised. A victim can be held for long periods away from their home, deprived of food and water and in fear of their life. In those circumstances, penalties for the offence will be severe. It is not an offence where it is possible or appropriate to lay down principles for the guidance of courts having the duty of sentencing convicted persons.
[footnote omitted]
[9] [2007] SASC 332.
[10] R v Jackson [2007] SASC 332 at [25].
The second was Saenz v The Queen.[11] In that case a 49 year old man without any prior convictions, who had been sentenced to a term of imprisonment of six years with a non-parole period of three years and nine months for the attempted abduction of a 14 year old girl, appealed against his sentence. The Victorian Court of Appeal dismissed that appeal.
[11] [2011] VSCA 154.
There can be no doubt that offences of attempted kidnapping, even when the offender has no prior record, are to be treated as grave crimes.
The respondent committed the two offences against an elderly and vulnerable woman very shortly after being released from custody for the third time. It was fortuitous that BM had the capacity to resist as forcefully as she did, and that the presence of persons nearby apparently caused the respondent to desist before he was able to force her into the boot.
The respondent has demonstrated little insight and no remorse. Indeed, his assertions to the psychiatrists during the procedures under s 23 of the Act reveal a continued preparedness to lie that is inconsistent with any acceptance of responsibility for the true nature of his offending. Of particular concern is the fact that the respondent has already participated in three programs aimed at rehabilitating sexual offenders and his level of response has been limited and disappointing. All of the experts consider that the respondent is at a substantial risk of violent reoffending in either a sexual or non-sexual manner. Two of the three groups of offences for which he has been sentenced in the past 12 years have been committed very shortly after being released from custody.
Even though the Judge properly characterised the offending as extremely serious and appreciated that “a severe but still proportionate sentence” was called for, the actual sentence he imposed does not reflect the gravity of the offending.
As the respondent’s conduct, now on three occasions, renders him very dangerous to the community when he is at large, there was a particular need to impose a sentence which would act both as a general as well as an effective personal deterrent to the respondent.
To my mind, a sentence of six years and six months in the circumstances of this respondent is manifestly inadequate.
Conclusion
For these reasons, I would grant permission to appeal. I consider it is necessary to allow the Director’s appeal to maintain an adequate standard of punishment for the crimes committed by the respondent.
For both offences of attempted kidnapping and of causing harm with intent which involved gratuitous additional violence upon BM as she lay on the ground, in the exercise of the discretion under s 18A of the Act, I would impose one sentence of 10 years imprisonment. I would set a non-parole period of eight years. I would backdate both the head sentence and the non-parole period to commence on 20 August 2012.
BLUE J:
Subject to one qualification, I agree with Kelly J. In particular, I agree that permission to appeal should be granted, the appeal allowed, the orders of the Judge set aside, a s 23 declaration and order made and the respondent resentenced.
On resentencing, I would have imposed one sentence of imprisonment for nine years, with a non-parole period of six years six months, both backdated to commence on 20 August 2012.
Appendix A
| Date of Offence | Age of Victim | Offence | Description of Complainant in Location | Method of Approach | Features of Sexual Assault / Violence Involved | How Assault Came to End | |
| 1 | 16.02.02 | 49 | Indecent assault | - complainant walking adjacent to school grounds - pushed or thrown over fence into school grounds | - rode up behind complainant on bicycle - grabbed hold of complainant from behind | - penis erect whilst straddling at waist level - bra undone - complainant grabbed from behind - pushed or thrown over fence - arms pinned above head - covered mouth with hand when complainant yelled out | - male intervenes and pulled accused off complainant |
| 2 | 20.01.03 | 55 | Gross indecency | - complainant walking dog along track leading towards The Olive Grove | - walking about 5 metres behind complainant - keeps pace with complainant and moves closer | - initially had his hand down his shorts - no violence | - complainant walked away - accused ran off into some trees |
| 3 | 31.01.03 | 68 | Indecent assault | - complainant reading book in room at public library | - behind complainant whilst she is sitting in a chair | - ejaculates on complainant’s back and the chair she was sitting on - no violence | - accused walked out of room into main library |
| 4 | 07.02.03 | 39 | Indecent assault | - complainant walking dogs in Fremont Park and The Olive Grove | - walking behind complainant for a period of time before moving closer to her | - masturbating whilst following complainant - complainant ends up on ground after trying to hit or kick accused | - accused got off complainant but remained within a few metres - complainant walked away quickly |
| 5 | 21.02.03 | 32 | Indecent assault | - complainant walking dog through Craigmore Park | - walking about 20 feet behind complainant - keeps pace with her then moves closer - eventually grabbed hold of complainant’s arm | - masturbating whilst following complainant - grabs hold of complainant’s arm and pulls her underneath trees | - accused uses his t-shirt to wipe ejaculate from complainant’s chest - pulls complainant’s bra and top down before getting up and walking off |
| 6 | 05.03.03 | 60 | Criminal trespass in a place of residence Indecent behaviour | - complainant inside residential unit alone | - accused standing at front door - complainant goes to front door - accused said he had lost a dog and asks for a drink - enters house when complainant goes to get drink | - stands close to complainant in kitchen with penis exposed and holds penis in his hand - no violence | - complainant ignores fact accused is holding his penis and has conversation with him - complainant then tells accused to leave |
| 7 | 11.03.03 | 66 | Indecent assault | - complainant on her gopher using lift at doctor’s surgery | - follows complainant into lift after waiting for her to attend doctor | - exposes penis whilst in lift with complainant - no violence | - when lift arrives at ground floor, complainant drives out of the lift and accused runs off |
| 8 | 19.04.03 | 59 | Indecent assault | - complainant waking dog at Fremont Park | - complainant initially sees accused sitting by ponds - later he rides up behind her on a bike and starts following her | - holds penis and tells complainant to look at him and he is “wanking” her -grabs complainant’s hand when she tries to walk around him | - rides off after complainant pushes him away |
| 9 | 25.04.03 | 53 | Gross indecency | - complainant walking through Carisbrooke Reserve | - complainant walks past accused then he begins moving after her - walks very closely behind for period of time | - accused pants pulled down and holds semi-erect penis in hand - no violence | - complainant runs away - initially accused runs after her, but eventually stops following her |
| 25.8.03 – 13.9.06 | Respondent in custody | ||||||
| 3.4.07 – 27.6.07 | Respondent in custody | ||||||
| 10 | 15.07.07 | 27 | Aggravated serious criminal trespass in a place of residence Assault Indecent Assault | - complainant inside residential until alone | - accused initially knocks on door of unit a few hours prior to assault and asks to borrow Panadol - enters unit uninvited and asks for some water, but eventually leaves when requested - subsequently knocks on door of unit on further occasions and complainant allows him to use toilet - accused refuses to leave | - accused removes his clothing and hold complainant down on bed - restrains complainant when she reaches for phone | - accused suddenly stops holding complainant down on bed and paces before leaving bedroom and putting his clothes on - returns to bedroom and starts apologising, but leaves before police arrive |
| 17.10.07 – 23.5.12 | Respondent in custody | ||||||
| 11 | 19.8.12 | Offences of attempted kidnapping and causing harm with intent to cause harm | |||||
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