R v Watson

[1999] NSWCCA 227

CITATION:

Regina v Ronald WATSON [1999] NSWCCA 227 revised - 23/08/99

FILE NUMBER(S):

CCA 60628 of 1998

HEARING DATE(S):

2 August 1999

JUDGMENT DATE:

12 August 1999

PARTIES :

REGINA

v

RONALD WATSON

JUDGMENT OF:

Levine J at 1; Smart AJ at 44

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0612
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ

COUNSEL:	C Maxwell Q.C. (Crown) C Heazlewood (Applicant)
SOLICITORS:	S E O'Connor (Crown)
CATCHWORDS:	Criminal Law - sentence - sexual assault - Crimes Act 1900 s 76 - cumulative sentences
CASES CITED:	Regina v Shore (1992) 66 A Crim R 37 Regina v Visconti (1982) 2 NSWLR 104 Regina v Bloomfield (1997-1998) 44 NSWLR 734 Pearce v The Queen (1998) 156 ALR 684 Regina v Simpson (1992) 61 A Crim R 58 Regina v Bo Too (CCA, unreported, 16 July 1992)
DECISION:	See paragraph 43

IN THE COURT
OF CRIMINAL APPEAL

60628/98

LEVINE J
SMART AJ

THURSDAY 12 AUGUST 1999

REGINA v RONALD WATSON

1    LEVINE J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the Sydney District Court by his Honour Judge Gibson Q.C. on 18 September 1998. 2    The applicant pleaded guilty to 11 counts of indecently assaulting a female under the age of 16 years pursuant to the then applicable section of the Crimes Act, namely s 76. The maximum sentence under that section was penal servitude for 5 years until the Crimes Act was amended (Act No. 50 of 1974) which thereafter provided a maximum penalty of 6 years in respect of offences after 2 August 1974. 3    There were 5 counts in the indictment relating to KP (the applicant’s step-daughter) and to events which occurred in 1976 and 1977 when she was aged approximately 13 years. In relation to the first count (involving the touching of the complainant’s breasts through her clothes), the applicant was sentenced to a fixed term of 2 years to commence on 8 September 1998. 4    In relation to count 2 (digital penetration), the applicant was sentenced to a fixed term of imprisonment of 12 months commencing 8 September 1998. 5    In relation to count 3 (the applicant rubbed himself against her and ejaculated), a concurrent 12 months fixed term was imposed. 6    In relation to count 4 (vaginal touching and placing her hand on an erect penis), the sentence was the same, namely a concurrent fixed term of 12 months. 7    In relation to count 6 (count 5 was abandoned), the conduct involved digital penetration and a concurrent 12 month fixed term sentence was imposed. 8    There were four counts in the indictment relating to SF (the applicant’s natural daughter) and conduct which occurred between May 1964 and July 1967 at which time the complainant was aged between 9 and 11 years. 9    Count 7 involved the applicant thrusting his penis against her buttocks whilst clothed, conduct said frequently to have occurred over the next twelve months. In respect of this count the applicant was sentenced to a fixed term of 2 years to commence on 8 September 2000, that is cumulative to the fixed term of 2 years imposed in respect of the first count relating to KP. 10    Count 8 involving SF involved the applicant touching the outside of the complainant’s vagina. In respect of this count the applicant was sentenced to a fixed term of 12 months to commence on 8 September 1998. 11    Count 9 involved digital penetration and the sentence imposed was a concurrent fixed term of 12 months. 12    The tenth count involved the applicant placing the complainant’s hand on his erect penis and masturbating him. For this offence a concurrent fixed term of 12 months was imposed. 13    There were two counts relating to SP (the applicant’s natural daughter) in relation to events occurring between December 1969 and January 1970. The complainant was aged 11. 14    The eleventh count involving SP was concerned with the applicant’s rubbing her right nipple. In relation to this eleventh count the applicant was sentenced to a minimum term of two years commencing on 8 September 2002 and expiring on 7 September 2004 and an additional term commencing on 8 September 2004. This, it will be seen, was further cumulative to the fixed terms of 2 years imposed in respect of count 1 (KP) and count 7, imposed in respect to SF. 15    Count 12 involving CP was concerned with the rubbing of her breast and in respect of this offence the sentence imposed was a concurrent fixed term of 12 months commencing on 8 September 1998. 16    It thus can be seen that in relation to the first count involving the first and second complainants (counts 1 and 7) his Honour imposed cumulative 2 year fixed terms and in relation to the first count involving the third complainant (count 11) a cumulative sentence of 4 years made up of a minimum term of 2 years and an additional term of 2 years. In relation to all other counts in respect to each complainant his Honour imposed a fixed term of 12 months to date from 8 September 1998. 17    The effective head sentence was 6 years with an additional term of 2 years. 18    The applicant, born on 16 August 1933, pleaded guilty on 8 September 1998. There was evidence before his Honour pointing to their having been some disclosure to the applicant’s then wife in 1972 in relation to the charges involving SF and SP and in about 1972 in relation to KP. The applicant at the time of his arrest was living as a single man on the Sunshine Coast in Queensland. He had retired in 1988 after lengthy employment with John Fairfax & Sons Pty Limited, had held a responsible position and was otherwise a man of good character, he having no prior convictions. Evidence was called from the applicant that the realisation of what he had done began in the early 1990s at the time of the breakdown of his second marriage. His Honour found that as a result of being charged the applicant had certainly attempted to rehabilitate himself, but accepted that the applicant still had a long way to go to understand the effect his conduct has had on his daughters and step-daughter. 19    In his Remarks on Sentence his Honour took into account that the applicant had admitted his guilt and had shown remorse for his conduct. His Honour also took into account the Pre-Sentence Report prepared by the Queensland Corrections in which at paragraph 2.06 the following appears:

“Mr Watson does acknowledge and accept the nature and extent of the offending behaviour. There appears to have been a planned and calculated pattern to the offending behaviour over many years. Mr Watson acknowledges the behaviour offered him convenient sexual gratification. The counsellor, Mr Brinnand and Mr Watson indicate that the offences were the result of a misguided sense of love, to show them that he “loved them”. In direct contrast the two victims spoken to view the offending behaviour as acts motivated by his desire for power, ownership and control of them. [SF] described his eyes and look prior to the commission of offences as an eerie, scary look not one of love. The actual feelings experienced by her were of hate and fear not love”.

20    And in paragraph 9.01 under the heading “Recommendation” there appears:

“While it appears Watson has made every effort following his arrest to address his offending behaviour there remains to the writer some areas of concern. The offending behaviour was of a calculated nature over a considerable time-frame affecting the lives of victims and immediate family. Watson is considered a risk offender and needs to be monitored to ensure he avoids “at risk” situations”.

21    Similarly his Honour had regard to the report of the psychiatrist, Dr Hutchinson of 11 June 1998 who described the applicant in terms of being a depressed and penitent, ashamed man and indeed, a very frightened man. Dr Hutchinson went on to say: “predicting the future is difficult. Pedophiliacs are well known for their re-offending but I felt he was suitably penitent and this Court case has given him stress which I think he is unlikely to risk again. I think his chances of re-offending are small”. 22    There was also before his Honour a report from John Brinnand, Social Worker who remarked that the “greatest risk of Mr Watson re-offending is the improper management of his shame and his need to offend, be punished and ultimately be forgiven. Through disclosures of his offending history to selected persons, Mr Watson has begun to forge positive self-image based on an open, self-directed confrontation of his shame and his secrets”. 23    As to the objective seriousness of the offences his Honour’s views were made quite clear. He regarded the conduct as most serious.

“If there is one male a young girl is entitled to trust in a sexual sense as she grows into maturity it is the man who is her father or stepfather. You, Mr Watson betrayed that trust and as each of these then young girls approached their teens and were at their most vulnerable you used and abused them in a shameful way. They will continue to bear the scars of your conduct over the years and I doubt, on the evidence, that you fully understand the burden you placed on them.
To those others in society who might think of behaving in the way that you did, let it be clearly understood that by doing so when caught they face, as you do, strong custodial sentences”.

24    His Honour made these remarks having dealt with submissions that there should be some degree of mitigation because of the delay in the matter coming to light and came to the view that the prisoner was not entitled to profit from that fact. The prisoner could not gain because he was prepared to pretend that nothing had happened to his children. His Honour then said “I can see no reason for finding special circumstances other than the way I propose to structure the sentence and I find them for that reason. I take into consideration the fact that he will be serving his sentence in segregation”. 25    Before he imposed the sentences as structured above, his Honour said: “I do not think that the maximum provided for the individual offences is sufficient to encompass the criminality of the totality of these offences and I propose to structure the sentence to encompass all complainants by way of accumulation”. 26 It is submitted for the applicant that the first basis that would enliven the discretion of this Court to interfere is that his Honour, whilst having regard to the maximum sentence available under s 76 as it then applied, did not have regard to the range of sentences imposed at the relevant time during the operation of that section. That it was appropriate and proper for him to have done so is clear: Regina v Shore (1992) 66 A Crim R 37 at 42 per Badgery-Parker J. It was submitted in writing and orally that the maximum penalties for offences with which his Honour was dealing have increased markedly and that moreover, judicial attitudes have strengthened in the sense that more severe sentences are being imposed than was the case in 1970 to 1977. By reference to recently generated statistics, counts 2, 6 and 9 after 1981 would have been charged as offences under s 61D (repealed in 1989) as sexual intercourse by a person in authority with a maximum penalty of 12 years. The applicable section after 1989 was s 66C(2) which fixed a maximum penalty of 10 years. 27 Specific cases are difficult to come by but Mr Heazlewood of Counsel for the applicant was good enough to provide the Court with an extract from “Sentencing Violent Offenders in New South Wales” by Ivan Potas (1980). This publication (clearly not available to the learned sentencing judge) does provide information that is indicative, subject to all the usual variables, of a lower range of sentence being imposed decades ago (as to use of statistical material see: Regina v Visconti (1982) 2 NSWLR 104 and R v Bloomfield (1997-1998) 44 NSWLR 734). 28 The second basis, it is contended, which warrants interference is the decision of the High Court in Pearce v The Queen (1998) 156 ALR 684 and the statement of approach, if I may put it that way, set out in the judgment of McHugh, Hayne and Callinan JJ at paragraph 45:

“To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality”.

29    What is here submitted is that in light of that statement by their Honours it can now be seen that the structuring by the sentencing judge of his sentence was flawed insofar as it is apparent that an “appropriate sentence for each offence” was not fixed but rather the first count relevant to each separate complainant was used as the vehicle for the imposition of the higher sentence (the 2 year fixed term) even if the facts founding each of those relevant counts was not as serious as the facts founding the counts in respect of which the fixed term of 12 months was imposed.

as the facts founding the counts in respect of which the fixed term of 12 months was imposed.

30    These two considerations plus what is contended to be the lack of weight attached to various subjective matters lead to an ultimate sentence by cumulation outside of any appropriate range applicable and, taking into account the sentencing regime that would have operated at the relevant time reflects an overall sentence of at least 10 to 11 years (that is, taking into account remissions and the like). 31    I am persuaded of the correctness of the submissions in relation to the two substantive matters referred to above. 32    The effect of his Honour’s approach exposed by his views as to the inadequacy of the then statutory maximum and accumulating the sentences was artificially to increase the maximum penalty. The sentences were intentionally high or more pertinently, the ultimate sentence was intentionally high. Whilst one might expect sentences of that order at the present time for offences involving penetration bearing in mind the increased statutory maxima and the hardening of judicial attitudes generally a total sentence of eight years was excessive by the relevant standards being those of 1966 - 1977 when the offences were committed. In imposing penalties a judge should not act on his personal view that the maximum penalty prescribed is inadequate. Where there are a number of, or multiple offences, a judge must consider the appropriate sentence for each offence and decide whether the sentences should be cumulative or concurrent or partly so. If there are a large number of offences spread over a period and different degrees of criminality he may decide that to meet the total criminality and punish it appropriately some sentences should be concurrent and some should be cumulative or partly so. 33    I do not accept that there was no justification for accumulating the sentences. There were several bases on which it was correct to do so. These included that some of the instances of indecent assault were more serious than others, for example, digital penetration of the vagina and having one daughter hold and masturbate his penis on the one hand and touching and sucking parts of the body on the other. The offences took place in different time periods and with different victims. The sentences had to be correct both as to the individual offences and as a whole reflecting the totality of the criminality. One difficulty in the present case is the judge’s choice of the first count in each group of charges in respect of each victim as the one on which to impose the major sentence of cumulative minimum terms of 2 years. Those counts (being counts 1, 7 and 11) were not the more serious charges and the sentences imposed on them were not justified by the standards prevailing at the time of the offences. This point applies with almost overwhelming force, to count 11. The offence involved the applicant sucking the right nipple and yet he received a minimum term of 2 years and an additional term of 2 years. Further, the ultimate effect of the course taken by the judge was to arrive at a total period which was excessive. 34    I turn to deal with the complaint that the judge did not adequately deal with the issue of special circumstances. The judge was correct in identifying as special circumstances that he was cumulating sentences (Regina v Simpson (1992) 61 A Crim R 58 and that the applicant would be serving his sentence in segregation. Hence, he imposed the sentence of 4 years on the eleventh count with a minimum term of 2 years. When an overall view of the sentences is taken the judge has allowed for the cumulation of the sentences by adjusting the sentence on the last count as he did. He seems to have allowed nothing for the period to be served in segregation. 35 Other special circumstances existed. These included the age of the applicant, that this was his first time in prison and the need for rehabilitation and supervision. The judge gave no reasons why he made no allowance for these and the sentence being served in segregation and protective custody. Reasons could reasonably have been expected: R. v Bo Too (CCA, unreported 16 July 1992). They were in combination, important special circumstances for which some allowance should have been made. 36    The question of delay is a difficult one. Normally where either the complainant or the authorities delay, that is a relevant matter. The complainants became 18 some years ago. The delays range from about 20 to 30 years. However, the applicant will receive the benefit of being sentenced in accordance with the less severe sentences imposed during the period from 1966 to 1977. As to delay the judge focussed on the wrong point. It is not a question of the applicant profiting because he was prepared to pretend that nothing happened to the children. The point is that there was extensive delay because the complainants refrained for so long from reporting the matter and they have been adults for many years. Nevertheless, this is not a case where there should be any substantial allowance for the delay. 37    The case for this Court to intervene and re-sentence has been established. Indeed, the Crown accepted that this Court was bound to re-sentence in view of the first and second challenges. However, the Crown contended that in re-sentencing this Court should reach much the same overall result as the judge. 38    There has been no Crown appeal against the inadequacy of any of the fixed term sentences of 12 months in relation to the counts involving more serious offences (digital penetration and being required to handle the applicant’s penis). Thus these sentences cannot be increased. 39    The fixed term sentences of 12 months on each of the three counts of digital penetration should stand. They are lenient sentences. As those serious offences took place in different periods, namely, count 9 between June 1966 and June 1967, count 6 between April 1975 and July 1976, and count 2 between August and December 1976 those sentences should be cumulative. The fixed term sentence of 12 months on count 10 (being required to handle the applicant’s penis) should be reduced to a fixed term of 6 months and be cumulative. 40    The principle of totality is relevant to all offences but its practical application is apparent in the sentences on the remaining counts. As to counts 1, 3, 4, 7, 8, 10 and 12 a sentence of a fixed term of 6 months should be imposed. These sentences should be concurrent with each other but cumulative upon the earlier sentences. 41    The sentence on count 11 cannot stand. Instead there should be a sentence of 2 years comprising a minimum term of 6 months and an additional term of 18 months to be served as to the minimum term concurrently with the sentences mentioned in the immediately preceding paragraph. 42    The reason for not fixing additional terms in relation to all but one sentence is the cumulation of the minimum terms. In relation to those counts where the length of the sentence remains unaltered it is necessary to adjust the dates. The additional term of 18 months is appropriate to cover the cumulation and all the other special circumstances, most of which are mentioned earlier. 43    I propose the following orders:

(a) Leave to appeal against sentence granted.
(b) Appeals against sentenced allowed.
(c) In lieu of the sentences imposed by Judge Gibson the following sentences are imposed:
(i) As to count 2 (digital penetration) a fixed term of 12 months starting on 8 September 1998 and ending on 7 September 1999.
(ii) As to count 6 (digital penetration) a fixed term of 12 months starting on 8 September 1999 and ending on 7 September 2000.
(iii) As to count 9 (digital penetration) a fixed term of 12 months starting on 8 September 2000 and ending on 7 September 2001.
(iv) As to count 10 (required to handle penis) a fixed term of 6 months starting on 8 September 2001 and ending on 7 March 2002.
(v) As to counts 1, 3, 4, 7, 8 and 12 a fixed term of 6 months on each count to be served concurrently starting on 8 March 2002 and ending on 7 September 2002.
(vi) As to count 11 a minimum term of 6 months starting on 8 March 2002 and ending on 7 September 2002 and an additional term of 18 months starting on 8 September 2002.
(vii) The applicant will be eligible for release to parole on 7 September 2002 subject to supervision and such other conditions the Parole Board may impose.

IN THE COURT
OF CRIMINAL APPEAL

60628/98

LEVINE J
SMART AJ

THURSDAY 12 AUGUST 1999

REGINA v RONALD WATSON

44    SMART AJ: I agree with Levine J.

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