R v Tate

[2001] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 294 of 2000

THE QUEEN

v.

JASON EDWARD TATE

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JUDGES:	BROOKING, ORMISTON and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2001
DATE OF JUDGMENT:	26 July 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 127

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CRIMINAL LAW - Sentence - Indecent act with 12 year-old girl (kissing) - By 23 year-old in position of trust - Whether open to record conviction - Not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss G. Cannon	Solicitor for Public Prosecutions
For the Appellant	Mr R. Backwell

BROOKING, J.A.:

1. In 1997, Jason Edward Tate, then aged 23, carried on business in a country area as a taekwondo instructor, holding classes in a church hall and a primary school hall.  A young girl - she was only 12 - who had been going to his classes for about three months, went to a weekend taekwondo camp organised by Tate and attended by about fifteen students and six adults.  They slept in tents.  While at the camp the girl decided to go to a waterfall and do some sketching.  The woman with whom Tate was then living - the mother of his three-year-old son - was with him at the camp.  The girl asked her to take her to the waterfall so she could sketch, but Tate intervened and offered to take the girl himself, and did so.  He drove her to the vicinity of the falls and they walked the rest of the way.  She sat down and began sketching.  He came and sat next to her and started cuddling her.  She moved away.  He approached her again, grabbed her and kissed her on the lips.  After this she told him she wanted to go back, and he drove her back to the camp.  She took part in the activities of the camp for the rest of the weekend and continued to go to the taekwondo classes for some months afterwards. 

1. Early in the year 2000, Tate was charged with six indictable offences against the girl, and on 15 September his trial began on a five-count presentment alleging offences against her on a number of occasions covering a period of about 17 months. That trial was aborted after running for some time. A re-trial began and shortly afterwards the accused changed his plea to guilty in respect of count 3, the count relating to the incident at the falls, charged as an indecent act with a child under the age of 16. The girl, as I have said, was 12 at the time of the incident. The Crown having announced that it would not, in view of the plea to count 3, lead further evidence or seek convictions on the remaining counts, the accused was acquitted by direction on them. The offence to which he pleaded guilty carries a maximum penalty of 10 years' imprisonment. After hearing a plea and taking time for consideration, the judge, on 22 September, convicted him and fined him $750. He now appeals pursuant to leave granted under s.582 of the Crimes Act 1958.

1. The burden of the plea made to the judge was that there should be no conviction recorded. Although two grounds are contained in the notice of application, the appellant's contention is that the sentence was manifestly excessive and his concern is with the conviction, not with the fine. He says that the recording of the conviction makes the sentence manifestly excessive. His counsel, Mr Backwell, in his short but effective submission, accepted that there was nothing in the judge's reasons to suggest that he did not direct himself in accordance with s.8 of the Sentencing Act 1991 in deciding whether to record a conviction. The suggestion is, then, that it is the recording of the conviction that makes the sentence manifestly excessive.

1. Speaking in entirely general terms, one can perhaps say that a contention of this kind would not ordinarily be easy to make good, but of course it can, in an appropriate case, be made good, and it is said by Mr Backwell that the present is such a case.  The appellant relies on a number of matters, including his age, his family situation - he having married and there being a child of that marriage - and his other personal circumstances as described to the judge.  He relies very heavily on the absence of any previous conviction and on the nature of the conduct constituting the offence, and he also relies on the position taken up by the Crown on the plea.  It was put by counsel for the appellant on the plea, and is put again now, that a conviction might well affect the appellant's employment prospects.  By the time of the plea he was employed as a security guard.  We are told that he has now changed that occupation.

1. All the matters relied on were considered by the judge.  As his Honour's careful reasons for sentence show, his Honour took time to reflect on the question whether a conviction should be recorded.  In addition to the matters relied on by the appellant there were countervailing considerations.  He had asserted to the police that the complainant had, for the first couple of months, seemed to have a crush on him and that he had therefore made a special effort not to go near her.  He was her instructor and he was in charge of the camp.  Her parents were not at the camp.  She

was only 12 and he was 23.  When she asked the appellant's partner to take her to the waterfall, he intervened and took her there himself, alone.  He made the advances, not she.  She tried to repulse him;  he persisted.  In view of his age and hers and the position of responsibility in which he stood, it was well open to the judge to conclude that the offending had to be marked by a conviction.  Indeed, I would have been surprised if he had not done so.

1. We should dismiss this appeal.

ORMISTON, J.A.: 

1. I agree.

PHILLIPS, J.A.: 

1. I agree.

BROOKING, J.A.: 

1. The appeal is dismissed.

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