Regina v Cottrell

[2002] NSWCCA 213

CITATION:	REGINA v. COTTRELL [2002] NSWCCA 213
FILE NUMBER(S):	CCA No. 60127 of 2002
HEARING DATE(S):	Monday 3 June 2002
JUDGMENT DATE:	3 June 2002
PARTIES :	REGINA v. COTTRELL, Norman John
JUDGMENT OF:	Greg James J at 1; Carruthers AJ at 38

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/1175
LOWER COURT JUDICIAL OFFICER :	Woods, DCJ.

COUNSEL :	Crown: P.E. Barrett App: T.C. Wattes
SOLICITORS:	Crown: S.E. O'Connor App: Gary Cleary & Associates
CATCHWORDS:	Criminal law - sentence - appeal - aged offence - indecent assault on male - offender a life long homosexual pedophile - gaoled for other offences - instant offence disclosed afterwards so not dealt with at the same time as other offences - offender now aged 74 - subject to medication regime - suspended sentence for two years appropriate on recognisance requiring medication, supervision and treatment.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Dinsdale (2000) 175 ALR 315
DECISION:	The application for leave to appeal is granted; the appeal is uhpeld. The sentence imposed below is quashed; in lieu the applicant is sentenced to imprisonment for two years to be suspended on his entering into a recognisance, under s.12 of the Crimes (Sentencing Procedure) Act 1999, conditioned that he accept the supervision of the Probation & Parole Service and psychiatric treatment and prescribed drug regime. The suspended sentence will date from today.

No. 60127 of 2002

GREG JAMES, J.
CARRUTHERS, AJ.

MONDAY 3 JUNE 2002

REGINA v. NORMAN JOHN COTTRELL

Judgment

1 GREG JAMES, J: This is an application for leave to appeal against sentences imposed on the applicant in the District Court of New South Wales at Sydney for the crime of indecent assault on a male. That crime was said to have been committed between 1 January 1980 and 31 October 1980, some 21 or more years ago.

2 The maximum penalty then existing for that offence was five years penal servitude. The section providing for that offence has now been repealed.

3 On 25 February 2002, the learned trial judge sentenced the applicant to imprisonment for three years and six months, commencing on 25 February 2002 (the day on which the offender first went into custody for this offence) and expiring on 24 August 2005. He imposed a non-parole period in respect of that sentence of two years six months, expiring on 24 August 2004.

4 The applicant had been charged by information and summons and served on 24 February 2001. He was committed for trial and granted unconditional bail thereafter.

5 He is a man of considerable prior record. In 1956 he had been convicted of offences of indecent assault and buggery and that resulted in a sentence totalling five years penal servitude. In 1988 he was convicted in the Local Court of assault a person under sixteen with an act of indecency and received the benefit of a s.558 recognisance for three years.

6 In 1995 he was convicted of various acts of gross indecency with a male person and breach of that recognisance and received various fixed term sentences, together with a sentence of some 21 months imprisonment. His sentences in total were to expire in the year 2000, although a minimum term, concurrent with the fixed terms, was provided. Later, there was a variation of the commencement date of those sentences in the CCA.

7 In 1999 he received a community service order without conditions for 150 hours for the offence of assault with an act of indecency.

8 This matter went forward before the trial judge on the basis that, as was submitted in the short submissions filed on his behalf, he is a person who has been a homosexual paedophile throughout his adult life. He was aged, however, 73 years at the date at which he came forward for sentence.

9 The offences for which he came forward for sentence were committed by him on a foster son, and had not come to light until well after the applicant commenced serving the prison sentences that had given rise to the application for leave to appeal to the Court of Criminal Appeal to which I have referred. Those charges did not relate to this complainant.

10 The short facts appear to have been, that the applicant fondled the genitals of his then 12 year old foster son whilst the boy was in the bath. It was only after the complainant, who had moved interstate, informed the police of those events that action was taken in respect of them, and the applicant was first spoken to by police in relation to these matters after his release from gaol after serving the sentences in respect of which he had appealed to the Court of Criminal Appeal.

11 Had the matters come to light any earlier, it may well have been that they could have been dealt with at the same time as the earlier matters.

12 Whilst in prison serving the sentences for those matters, the applicant has involved himself in counselling and psychosexual education courses. Upon his release, he has attended a further group course for sex offenders, run by the Child Abuse Protection Service. He has also seen Professor McConaghy, psychiatrist, at the Australian Centre for Sexual Health at Potts Point, for ongoing psychiatric treatment.

13 He has been referred by Professor McConaghy to Dr. O’Dea, a forensic psychiatrist, for further psychiatric treatment. He informed the psychiatrists that he had been desperately trying to seek help for his homosexual paedophilia for many years, and it was not until he was in custody that he first received counselling assistance.

14 Dr. O’Dea, having seen the applicant on a regular basis, commenced the applicant on a regime of Androcur in January 1999, and the effect of that medication was to lower his testosterone level to reduce his sexual drive. The consequence is that the applicant, at age 74, apparently is no longer troubled by intrusive or persistent sexual thoughts about young boys.

15 The applicant had continued to see Dr. O’Dea up until the time of his sentencing, and has continued to take the medication. The applicant, in addition, had, prior to his sentences for this offence, involved himself in church activities and was receiving regular counselling from the senior pastor at his church, spending considerable time involved in that counselling and church attendance, at either a North Coast church or at Inverell or Moree.

16 When the learned trial judge came to sentence, he recorded that the applicant had been accorded the full benefit of an early plea, accompanied by a finding in the applicant's favour of contrition.

17 His Honour, however, noted the evidence before him that it was undisputed that the type of incident for which the applicant came forward for sentence on this charge occurred on a regular basis, probably 15 times, and always while the child was in the bath.

18 His Honour relied on that matter to eliminate suggestions which he said, had "not been put forward” that this was an isolated event. His Honour had regard to the Victim Impact Statement, as available to him, to recognise the effect the offence had on the victim. His Honour found that this misconduct would be likely to have an adverse psychological effect on the victim and that it had that effect in this case.

19 His Honour referred to the applicant’s time in prison for the offences to which I have referred. He refers to the circumstances which enabled this matter to be raised. He accepted that a matter in mitigation arose from the offender admitting so early after the mater had come to light his involvement in the offence, when first charged with it by Margaret, his wife, and concluded that there was some degree of contrition meriting consideration, but referred to a circumstance causing him some difficulty with those matters.

20 His Honour said, there were, “In cases such as this, components of manipulation which make one hesitant to accept contrition”. Those remarks appear to be general in nature rather than as referring to any particular matter in evidence in this case. His Honour appears to have been concerned with the genuineness of contrition as evidenced at a time when re-offending might have been in contemplation rather than to contrition at the time of a plea of guilty or sentencing over 20 years later. Thus, his Honour refers to that manipulation as relating to an offender placing himself in circumstances whereby they would have contact with young boys with whom they could interfere.

21 His Honour accepts there is here some measure of contrition and relates that the making of the plea of guilty. However, I find his Honour’s reasoning in this regard and, particularly concerning the reference to manipulation, as somehow relating to a discounting of contrition, somewhat difficult to follow. That said, however, it is apparent that his Honour did give some benefit to the applicant on account of his contrition.

22 Again, when considering possible leniency, his Honour appears not to have had regard to the efforts that the applicant has made to achieve rehabilitation and the efforts he has made to undergo the medication regime as matters relating to the offender's state of mind. But his Honour turned to those matters, following the reference to contrition, in the context of dealing with the balancing of the various purposes of punishment, ie., as relating to protection of the community.

23 His Honour characterised the offence as being a grave one, lying towards the higher end of the range for this kind of misconduct. He referred to the breach of trust and the vulnerability of the victim.

24 His Honour sentenced having regard to the maximum as provided by the law as it operated at the time of the existence of the relevant crime and concluded that a sentence should be imposed towards the top of the range for this kind of abuse. In that regard it must be mentioned that his Honour did not otherwise than as I have described detail any facts which might tend to place the matter within a higher range or lower range of offence.

25 He noted that there was no rigid guidance as to the kind of penalty to be imposed, but referred to the necessity for it to reflect deterrence, rehabilitation and retribution. He concluded that although retribution, in some circumstances, might be inappropriate, pointless, or just cruel, the fact that the applicant was in his seventies, alone, should not cause a sentencing judge to desist from imposing an appropriate sentence. His Honour regarded it as relevant that in his view the victim had "not simply slept on his rights".

26 This, however, is not a matter involving victim’s rights, nor a matter in which the delay in the matter coming forward should be treated as somehow reflecting adversely on the victim. It is a matter, however, in which there have been many years since the offence, and that lapse of time and what has occurred in it does have to be taken into account when considering what is the appropriate course to take. His Honour said:-

“This is not a case of someone wilfully or wantonly walking out of ancient history in order to punish somebody”.

27 I do not find for myself, that observation helpful, since it could not in any way be suggested that that observation might apply to the victim in this matter. His Honour did advert to the applicant having not himself volunteered a clean breast of his misbehaviour at an earlier point of time, indeed, in the early 1980s, and he does appear to have placed some significance on the applicant having not come forward with it in 1980.

28 Consequently, his Honour concluded that he did not see anything in the circumstances of the long lapse of time which would diminish the appropriateness of punishing this man. His Honour concludes that there is necessity for personal deterrence and general deterrence. He adverts to rehabilitation, but seems to have regard to that in the context of the problem of the compulsive effect of the applicant’s feelings. In particular, he relates the matter of rehabilitation to the drug regime and without having reference to matters adverted to in the decision of the High Court in Dinsdale v. The Queen (2000) 175 ALR 315 concerning suspending a sentence looked to what was said in that decision dealing with protection of the community. Thus, his Honour came to determine the length of the head sentence to be passed.

29 His Honour then considered whether he should decline to state a non-parole period. He dealt with the repetitive nature of the applicant's misconduct over the years and the prior matters to which I have referred, he had regard to them as tending to incline him not to give the applicant the benefit of a parole period but in the upshot concluded that he should impose a non-parole period.

30 His Honour then concluded that there were special circumstances in the need for the regime of drug treatment to be continued and monitored, so that the length of that period need not reflect the statutory proportion but recommended that there be no release to parole unless Androcur or some other treatment regime continued in place.

31 He further recommended that the applicant be placed in strict protection and that steps be taken to protect him against self-harm. At no point did his Honour have regard to those matters as providing for a sentence shorter than it might otherwise be notwithstanding that the sentencing regime for the applicant would be far more onerous than other prisoners would have to undergo. Nor did his Honour have regard to the age of the prisoner in that respect.

32 The submission that is made in respect of the sentences imposed by his Honour, although it refers to his Honour allegedly falling into error in failing to have proper regard to matters of rehabilitation and contrition, to my mind, achieves much more significance when one turns to consider whether the sentence is manifestly excessive.

33 It is apparent from what I have said, when reviewing the sentences imposed by his Honour, that his Honour to a great extent disregarded the delay in the matter coming forward to be dealt with, and that the prior criminality and sentences of the accused seem to have been regarded in a manner which seems to suggest that his Honour valued them as somehow requiring a longer sentence than might otherwise have been imposed notwithstanding they were imposed long after this crime and they were the occasion for the rehabilitative efforts of the offender to which I have referred.

34 When I review the whole of the circumstances here, notwithstanding the capable submissions of the Crown, that this is a matter which should attract a deterrent and retributive sentence and the sentences should be upheld, so that it is submitted the offences will remain adequately denounced to the community, I do not conclude that in all the circumstances of this case a sentence of two years imprisonment would fail to achieve those objectives.

35 Nor do I conclude that it would have been inappropriate, or that it is inappropriate for that sentence to be suspended upon condition that the offender enter into a recognisance conditioned upon him accepting the supervision of the Probation and Parole Service and such psychiatric supervision and assistance as that Service might direct, including maintaining or embarking on a regime of prescribed medication.

36 The applicant has presently been in custody since February this year, and has served a custodial portion of any such sentence.

37 I would propose that the sentences that have been passed upon the applicant below be quashed, and in lieu, the applicant be sentenced to imprisonment for two years and that sentence to be wholly suspended upon the applicant entering into a recognisance, pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999, self in the sum of $500 to be of good behaviour and containing a specific term that the applicant accept the supervision of the Probation and Parole Service and obey all reasonable directions of that Service, including submitting himself to psychiatric treatment and to maintain or embark on such prescribed drug regime as his psychiatrist may deem appropriate.

38 CARRUTHERS, AJ: I agree.

39 GREG JAMES, J: The orders will therefore be that the application for leave is granted, the appeal is upheld, the sentence imposed below is quashed and in lieu the applicant be sentenced to imprisonment for two years to be suspended on his entering into a recognisance conditioned as I have proposed. The suspended sentence will date from today. The recognisance may be entered into before any magistrate.

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