R v Tarasiuk No. DCCRM-96-1122 Judgment No. D3563

[1997] SADC 3563

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Ruling of His Honour Judge Wilson

Hearing

03/02/97, 10/02/97.

Catchwords

Practice - plea of guilty - sentence - version of facts stated on behalf of accused differing from those in the depositions - witness statements if true might constitute an aggravating circumstance - accused's explanation if true might constitute mitigating circumstances - necessity for agreed basis of facts to be in writing and supplied to sentencing judge before sentencing submissions - in absence of agreement as to the basis of facts a dispute of facts hearing required - sentencing judge should hear evidence in dispute of facts hearing to establish the real facts - respective duties of sentencing judge and counsel.

Materials Considered

• Law v Deed (1970) SASR 374;
• R v Perre (1986) SASR 105;
• Zacher v R unreported CCA decision (S.A.) dated 24.12.91 in S3194;
• R v Gallagher (1991) 52 ACrimR 248;
• R v Maher unreported CCA decision (Vic.) dated 4.9.79;
• R v C (1983) 10 ACrimR 352, applied.

Representation

R:
Counsel: MS K JUTTNER and MS A K THOMAS - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (STATE)

Defendant MICHAEL RUEBEN TARASIUK:
Counsel: MR S C EY - Solicitors: MANGAN EY &; ASSOCIATES PTY LTD

DCCRM-96-1122

Judgment No. D3563

10 February 1997

(Criminal)

JUDGMENT NO. D3563

RvMICHAEL RUEBEN TARASIUK

FILE NO. DCCRM-96-1122

HIS HONOUR JUDGE WILSON

RULING (AN INTIMATION DURING A PRE-SENTENCE HEARING)

DELIVERED ON 10TH FEBRUARY 1997

Before I continue this pre-sentencing hearing, I wish to intimate a number of things.

Some preliminary observations on the law

A plea of guilty is no more than an admission of all the essential facts necessary to constitute the offence with which the offender is charged.It does not amount to an admission of any other matters alleged by the prosecution.Similarly, it does not indicate the intent where the offence may be committed with several forms of mens rea or the manner in which the offence was committed.As stated by Bray CJ in Law v Deed (1970) SASR 372 (at p. 377):

"The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution;nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the (offender) along."

I have borne that statement of legal principle in mind, as well as the principle that the sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements and, if an accused wishes to dispute any of the primary facts deposed to therein or implicit therein, he or she must do so by sworn evidence [R v Perre (1986) 41 SASR 105].

Circumstances of aggravation must be admitted or proved beyond reasonable doubt [Weaver v Samuels (1971) SASR 116 and Anderson v R (1993) 117 ALR 1]. Mitigating circumstances may be admitted or, unless they are common sense inferences from the evidence, they must be proved on the balance of probabilities [R v Stevenson (1984) 35 SASR 237 at p. 243, and see also the very recent and important but as yet unreported decision of the Court of Appeal in Victoria (in a court constituted of five judges) in R v Storey, decision dated 6 December 1996.

Unless the sentencing judge indicates that he or she will act otherwise, the accused must adduce evidence in contradiction of the declarations or statements and not merely say that they are denied (Vasquez v R, unreported decision of the Court of Criminal Appeal in South Australia dated 17 August 1993 in judgment No. S4126).Submissions of fact in mitigation may be acted upon without being the subject of a dispute of facts hearing (and, therefore, being the subject of sworn evidence) when they are not disputed by the Crown [R v Vecsey (1962) SASR 127 at p. 128].

The history of this matter

The accused pleaded guilty on 3 February 1997 to 7 counts of unlawful sexual intercourse.The basis of the pleas, as explained in oral submissions by the accused's counsel was significantly different from the only rational inferences to be drawn from the evidence before me in the form of the witness statements (or depositions) and, as it happens, in the form of a victim impact statement as well.

Following the making of submissions as to sentence by both defence counsel, Mr Ey and counsel for the Crown, Ms Juttner, I decided to remand the accused on bail until today for further submissions and sentence in order to give Ms Juttner an opportunity to take instructions as to what attitude the Crown might wish to take regarding a defence submission to the effect that the victim had been promiscuous and was sexually experienced.

The law regarding an agreed basis for sentencing and statements of agreed facts

The procedure to be followed when a judge is asked to sentence on an agreed set of facts which differs from the deposition was laid down in Zacher v R, unreported decision of the Court of Criminal Appeal in judgment No. S3194 dated 24 December 1991.The Court of Criminal Appeal, comprising Legoe and Millhouse JJ and Zelling AJ, stated (at p. 3):

"Considerable care should be taken when pleas of guilty are entered limited to an agreed set of facts which fall within the bounds of a lesser charge to that which, prima facie, appears in the depositions ...At the outset we should say that, if the facts on which a sentencing judge is invited to sentence differ from those in the depositions, and a fortiori if they differ as widely as these do, a transcript in writing of the agreed basis of facts should be supplied by counsel to the judge before the matter is called on in court, so that the judge can consider the implications of such a suggested change in the facts."

In the New South Wales case of R v Gallagher (1991) 52 ACrimR 248, Hunt J held that a sentencer should exercise special care before accepting joint submissions of the defence and the Crown.In that case the matter in issue was the discount to be given for co-operation with the authorities;in this case the context is a situation in which the facts on which the sentencer is invited by the defence to sentence differ markedly from the depositions.As Hunt J put it in Gallagher's case (at p. 262) the sentencer should be:

"...astute to ensure that the information being given is accurate,

reliable and complete."

The principle should not be overlooked that the sentencer must find the facts on the evidence [R v Altham (1992) 62 ACrimR 126;and R v Chow (1992) 63 ACrimR 316].However, if counsel for the prosecution and the accused have agreed that a particular allegation is not to be relied upon, the sentencer should be so informed and, in that event, should not take that allegation into account (R v Marotti, unreported decision of the Court of Criminal Appeal in Victoria dated 18 November 1993).

The sentencing judge is not bound by any statement of agreed facts and the judge may, in the public interest, seek more details about matters in issue [Chow v DPP (1992) 28 NSWLR 593;and R v Altham supra].

Procedure not followed

The procedure as laid down in Zacher's case was not followed in the present case.What happened was that Mr Ey, for the accused, intimated that "the Crown have (sic) communicated with my (Mr Ey's) office, and have (sic) indicated that they (sic) now accept the basis of the plea (sic)".It subsequently transpired that the defence had written to the Director of Public Prosecutions in the terms of Exhibits A and B dated respectively 4 November 1996 and 27 November 1996.The acceptance of the basis of the plea was manifested by the laying of a fresh information in the terms of the counts identified in Exhibit B.As I have previously indicated, on 3 February the accused pleaded guilty to 7 counts of unlawful sexual intercourse that are set out in the information dated December 1996, those 7 counts being in terms identical with the 7 counts set out in Exhibit B.

It is to be noted that in Exhibit A the accused's solicitors stated:

"Our client denies that he ever threatened Ms Fisher in any manner whatsoever, and denies each and every encounter of an unusual nature referred to in Ms Fisher's declarations."

This letter clearly constituted a denial of an aggravating circumstance suggested in the witness statement of the victim that she was threatened by the accused (with a knife or otherwise) and a denial of further aggravating circumstances suggested by the allegations to the effect that sex aids were used and to the effect that they participated in either anal or oral sex.I understand that all of these circumstances, which were expressly denied, are included in the wide phrase "encounters of an unusual nature".

After some dialogue had occurred during which reference was made, albeit in a non-specific fashion, to "fairly recent authority", Mr Ey attempted to explain the allegations being made by the Crown in support of the 7 counts and the accused's acknowledgment of the conduct there referred to.He purported to explain the background to the relationship between the accused and the victim, "which commenced in about December 1992 (when the victim was aged 14 and the accused was aged 20) and finished just before the last offence on 14 February 1995, but they had got back together again when the last act of intercourse occurred".Mr Ey further explained that the relationship extended over a period of a little over two years.Mr Ey submitted that the two young people concerned (the victim and the accused) became engaged, with the accused giving the victim a ring.

Although Mr Ey was quite specific in identifying where each of the acts of intercourse occurred, relatively little was put to me to explain which part or parts of the victim's statement related to each particular count and therefore to explain the extent to which either of the young persons was the initiator of the particular sexual encounter.It is important that I understand the respective roles played by the victim and the accused, because how these questions are answered may determine whether an aggravating or a mitigating circumstance should be taken into account to increase or reduce the sentence.

As Mr Ey's submissions continued it became more and more obvious that it was not going to be possible for me to identify, by reference to his submissions, which allegations in the victim's statements related to which count and which of those allegations was being clearly admitted by the plea.In other words, the "agreed basis of facts" was eluding me.

Ultimately, Mr Ey said:

"Well, it is very hard to particularise from her declarations the 7 instances that he has pleaded to.The statement is, to use a colloquial expression, all over the shop and it is very hard to pin down what she says.There (are) a couple of occasions (when) she talks of offences occurring that (are loosely related to) an incident.It can be no more particularised than that, in her statement.I am asking your Honour to disregard her statement, and the Crown have accepted that ...Apart from the 7 instances which he acknowledges (of straightforward vaginal intercourse), all the other matters have been denied."

I then intimated to counsel that it might be possible (I was, by no means, sure about the matter) for me to proceed to sentence upon the basis being urged upon me by the defence if I was given information as to how the accused and the victim became acquainted and the lead up to a development of a relationship between them.I was mindful of the need to know whether I should ultimately sentence upon the basis of the accused having seduced the victim (as the witness statements of the victim suggest) or upon the basis of the victim having been promiscuous and having thrown herself at the accused (as the defence submissions suggest) or upon some other basis [see, in this context, R v Simpson (1981) 3 CAR 345 and R v Kane (1987) 29 ACrimR 326].

I am also conscious, in this context, of the rule of law that, whilst consent is not a defence to a sexual offence against a child, it is relevant to sentence where the victim is a willing participant or initiated the sexual activity;the sentence will be towards the lower end of the scale (see R v Maher unreported decision of the Court of Criminal Appeal in Victoria dated 4 September 1979).An attitude of acceptance by the victim may indicate that the offence has been less psychologically traumatic and thus less heinous [see R v C (1983) 10 ACrimR 352].

Mr Ey then proceeded with his submissions in the course of which he stated:

"I am instructed that she was not naive sexually and, in fact, (she) asked him in late December 1992 (when they started going out together) if he would have sex with her.He said 'no'.The situation was that the church they were in (is) very strict about sex before marriage, and it was discussed between the two of them.He instructs me that she was promiscuous.She discussed with him her sexual experiences.She wasn't exactly sexually naive ...She was sexually advanced, not inexperienced ...(She) was, in a sense, throwing herself upon (the accused) ...She was a willing and active participant on all occasions ...It was not a situation that he has taken this girl and taken advantage (of her), except in a legal sense ...In fact, as I put it ... early in my submissions, it was she that raised the topic.She was not sexually naive and, yes, we would certainly take issue with the suggestion that he seduced her.(That) has always been our position."

Agreed basis of facts unclear

I formed the opinion that the question of what was "the agreed basis of facts" was becoming more elusive than ever when Ms Juttner commenced the Crown's submissions.First, she stated that, with respect to the defence submissions suggesting that the victim had manifested signs of "promiscuity" and had had "sexual experience",she had no instructions on these matters.I was, to say the least, surprised to learn that there "(had) been no discussions about the nature of the plea other than (Exhibits A and B)".Ms Juttner went on to state:

"I do not have instructions from the complainant about her sexual background other than what is contained in her statement which is very different from the accused's position."

When given an opportunity to indicate whether or not she raised this issue of the victim's alleged promiscuity and sexual experience as a matter of dispute, she emphasised her lack of instructions in the manner quoted above.

In making general submissions as to sentence, Ms Juttner referred to the serious nature of the offending and the aggravating features thereof, including the relative youthfulness of the victim, the relatively substantial age difference, the relatively long duration of the offending and the breach of trust involved in the offending.Ms Juttner referred to the purposes of the legislation and cited some recent authorities.Ms Juttner left me with the impression that the Crown was, in reality, opposing the suspension of a prison sentence imposed for this totality of offending.

The view which I held at that time (on 3 February 1997) and which I still hold is that, if there is no dispute about the defence submissions as to the victim's alleged promiscuity and her alleged sexual experience, then the case is significantly less serious in terms of the accused's culpability than the case of a man taking advantage of a teenage girl and seducing her, and may well warrant the exercise of the sentencing discretion to order that the prison sentence that is obviously called for here be suspended.I held (and still hold) the view that, if it is admitted (and it has clearly not been admitted in this case) or proven by the Crown, on whom the onus of proof lies to establish an otherwise disputed aggravating circumstance (the seduction of the girl), then this case calls for an immediate custodial sentence.

If the dispute is not resolved by agreement or by decision (after hearing and determining a dispute of facts), then I will need to give further consideration to the difficult matter of sentencing in this case.

As the transcript of the proceedings on 3 February reveals, I adjourned the sentencing hearing until today to give Ms Juttner an opportunity to get specific instructions.If agreement is reached as to the defence submissions, then I may be able to proceed soon to sentence the accused.If agreement is not reached, I presently see no alternative but for me to resolve a dispute of facts.

(Upon the prosecution indicating that the Crown disputes the basis put forward by the defence, the matter was set down for a dispute of facts hearing on Wednesday, 26 March at 10.00 a.m.)