R v Watts
[2001] VSCA 76
•8 May 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 222 of 2000
| THE QUEEN |
| v. |
| DEAN ASHLEY WATTS |
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JUDGES: | PHILLIPS, BATT and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 May 2001 | |
DATE OF JUDGMENT: | 8 May 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 76 | |
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CRIMINAL LAW – Sentencing – Manifest excess – Sexual penetration of child aged between 10 and 16 resulting in birth of a child – Applicant in position of confidence at complainant’s home – Serious consequences for victim – General and specific deterrence – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms S.E. Pullen | Solicitor for Public Prosecutions |
| For the Applicant | Mr. S. Gillespie-Jones | Morrissey & Deane |
PHILLIPS, J.A.:
I will ask Chernov, J.A. to deliver the first judgment.
CHERNOV, J.A.:
The applicant, who is now aged 25, pleaded guilty on 22 August 2000 to one count of taking part in an act of sexual penetration with a child aged between 10 and 16, contrary to s.46(1) of the Crimes Act 1958. The offence carries a maximum penalty of 10 years' imprisonment. It occurred between 1 July 1997 and 31 August 1997 when the applicant was aged almost 22 years and the complainant was almost 15 years of age. As a result of the offending conduct the complainant became pregnant and gave birth to a son. After hearing a plea in mitigation made on his behalf, the sentencing judge sentenced the applicant on 23 August 2000 to a term of imprisonment of one year and three months of which eight months were suspended for a period of two years. Two days were reckoned as already served as part of the sentence. By notice dated 24 August 2000 the applicant seeks leave to appeal against the sentence on the following grounds:
(1) His Honour failed to give any or any sufficient weight to -
(a)the applicant's plea of guilty;
(b)the applicant's good character;
(c)factors personal to the applicant and in particular -
(i)the effect of imprisonment upon the applicant's employment prospects; and
(ii)the effect of imprisonment upon the applicant's rehabilitation.
(2) His Honour gave too much weight to the principle of general deterrence.
(3) The sentence was manifestly excessive.
On 1 September 2000, the applicant was granted bail pending the hearing of his appeal.
The circumstances relevant to the offending were these. The applicant was a
long-time friend of the complainant's family. Their respective fathers were close friends and the applicant had visited the complainant's family with his father a few times a week since he was about 12 years of age. At some stage the complainant's parents separated and her father ceased to live with his family. The applicant, however, continued to see the complainant and her family on the basis that he was a family friend. He attended the complainant's birthday parties and on occasions helped her with her homework, but, as his Honour found, there was no romantic relationship between them. At some stage in July or August 1997, however, an act of sexual intercourse of a short duration took place between the applicant and the complainant in her bedroom when they were alone in the complainant's house. His Honour found that at the time of the offending the applicant knew the complainant's age. It was not until 2 February 1998, however, by which time the applicant had stopped visiting the complainant's home, that the complainant discovered that she was pregnant. This discovery was made in the course of a medical examination of the complainant. As part of that examination and notwithstanding that she had denied having had any sexual intercourse at all, an ultrasound test was conducted which disclosed that she was 26 weeks pregnant.
On 23 April 1998 the complainant gave birth to a baby boy. The birth was difficult, particularly in the psychological sense, and the complainant has set out in her victim impact statement the hardship and concern that she has suffered. She had undergone many hours of counselling to help her with the difficult issues of the possibility of adoption and the realities of being a very young single mother. The complainant is now caring for her son with the assistance of her mother and family and the applicant provides financial support for the child.
Since the complainant still did not recall having had sexual intercourse with the applicant or anyone else, the identity of the father of the child remained unknown for some time. It was then proposed to have paternity tests carried out in relation to three young men, including the applicant, who had attended the complainant's house at the relevant time. After speaking to the complainant's mother, however, the applicant volunteered to be the first to subject himself to a DNA test. The test results indicated that it was 99.9% certain that the applicant was the boy's father. The applicant, when apprised of this result, accepted his paternity and signed a statutory declaration to that effect and commenced to provide financial assistance by way of child support payments.
I now turn to consider the grounds of the application. Mr Gillespie-Jones, who appeared before us for the applicant, agreed that the grounds in paragraphs (1) and (2) to which I have referred are subsumed in the manifest excess ground. Mr Gillespie-Jones argued, with some force, that the imposition of an immediate custodial sentence was outside the range of sentences properly available to his Honour.
In support of his case that the sentence is manifestly excessive, Mr Gillespie-Jones pointed to the many mitigating factors which applied to the applicant, particularly his voluntary acceptance of his paternity and his undertaking to provide financial assistance to the child into the future. But he also stressed a number of other matters. First he submitted that, unlike the circumstances of most other offences where ordinarily the offender is effectively freed from the consequences of the offending after serving a sentence, the applicant here will continue to have an ongoing responsibility, including a financial responsibility, for his child. Counsel highlighted that those ramifications will flow to the applicant from a mere fleeting consensual sexual relationship. Counsel referred us to R. v. Slater & Martin[1]. That case involved two offenders each of whom pleaded to an offence to which the applicant had pleaded guilty. On appeal the Court of Criminal Appeal quashed the sentence below and imposed a $100 bond on each offender. Mr Gillespie-Jones relied on that case in support of his allegation that the sentence here was outside the relevant range. But, the factual situation in that case was materially different from that which prevailed here so that it is distinguishable from the present case for that reason alone. Furthermore, it is plain from the judgment of the Full Court that their Honours did not intend that case to be a precedent for sentencing purposes for like offences.
[1]Unreported, 28 February 1991, CCA, comprising Crockett, Murphy and Smith, JJ.
The applicant's counsel further argued that imprisoning the applicant for seven months would be counter-productive. The applicant may, after the term of imprisonment is served, so it was said, be bitter and resentful and may not support the child which he has volunteered to help to maintain. In connection with his submission counsel referred to Kirby, J.'s quotation in Donnelly v. Victims' Compensation Fund Corporation[2] of the well known passage from Oscar Wilde's "Ballad of Reading Gaol". The point sought to be made in that passage was that gaol often does more harm than good to an offender with an otherwise good character and is capable of sapping the goodness out of such a person. I should say at this point, in case there is any doubt about it, that I do not consider that a seven-months term of imprisonment for this particular applicant could be properly said to be a short period of imprisonment, as was hinted at by the Crown. In support of his contention that the imposition of an immediate custodial sentence on the applicant would be counter-productive, the applicant's counsel also pointed to the possibility that imprisonment might jeopardise the future relationship between the applicant and his son. The experience in prison, so it was said, may cause the applicant to turn his back on his hitherto responsible attitude. Mr Gillespie-Jones also contended that during the delay between the date of offending and the date of sentence the applicant has demonstrated rehabilitation and in light of that the sentencing disposition should not impede it. It was effectively said for the applicant that imprisonment would hinder, or there was a significant risk that it would hinder, the applicant's rehabilitation, and that was a further reason why imprisonment was not a proper disposition.
[2](1995) 85 a.Crim.R.55 at 556-56.
Although these submissions at times sounded as though they were being made in terrorem, in my view there was a good deal of force in them. Nevertheless, these matters are only one aspect of the total picture that should be taken into consideration in the sentencing process and in determining whether the sentence is outside the relevant range. In the context of the grounds relied on by the applicant, this Court cannot interfere with the sentence unless it is shown that the sentence is manifestly or obviously excessive or to put it another way, is outside the range of sentences properly available to the sentencing judge. In determining this question, it is necessary to have regard, in addition to the mitigating factors, to the seriousness of the offence and the circumstances and consequences of the offending. The offence is a serious one. The statute is aimed at protecting vulnerable children. The recognition of its seriousness is reflected in the maximum penalty of ten years' imprisonment that is prescribed by Parliament and the limited range of defences that are available to an offender who breaches that legislation. In offending as he did the applicant abused his position of confidence which he had acquired as a visitor to the complainant's home over many years: he was obviously regarded as a family friend. Further, at the time of the offence he was considerably older than the complainant and was aware of her age, and no doubt he must have been aware of her vulnerability. Moreover, it is obvious that the consequences of the offending have had a devastating effect on the complainant. Given these circumstances, and taking into account the mitigating factors, I am not persuaded that the sentence is outside the range of sentences that was properly available to his Honour.
For completeness I refer to counsel's contention that his Honour made a specific error in relation to the relevance and operation of the principle of specific deterrence in this case. The applicant sought to argue that his Honour's reference to specific deterrence as a relevant sentencing consideration was illogical given that he had found that the applicant was unlikely to re-offend. But this contention does not fall within any of the grounds in the notice and it is trite that leave would be required for the applicant to amend the grounds in order to press it. There is, however, nothing in the point now raised so that leave to amend would be futile. In my view, it is clear from the sentencing remarks that the judge considered that that specific deterrence was of less relevance than general deterrence. What his Honour said was:
"In sentencing you I must be mindful of the fact that any sentence should reflect a strong deterrent element, both specific and, perhaps more importantly, general."
In my opinion, the judge's view as to the relevance of specific deterrence in his sentencing considerations was not inconsistent with his finding that the applicant is unlikely to re-offend.
For these reasons, it is my view that all the grounds must fail and the application should be dismissed.
PHILLIPS, J.A.:
I agree.
BATT, J.A.:
I also agree.
PHILLIPS, J.A.:
The order of the Court is:
Application dismissed.
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