Regina v Giddy

[2003] NSWCCA 46

CITATION:	Regina v Giddy [2003] NSWCCA 46
HEARING DATE(S):	26/02/03
JUDGMENT DATE:	28 February 2003
JUDGMENT OF:	O'Keefe J; Bell J
DECISION:	1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed below set aside. 4. In lieu, the Applicant is sentenced to 12 months imprisonment to date from 5/12/02 and to expire on 4/12/03; the operation of such sentence being suspended as from today (26/02/03) on the Applicant entering into a bond to be of good behaviour during a period from today to 4/12/03.
CATCHWORDS:	Criminal law - Appeal - Severity - Aggravated indecent assault - Early plea of guilty - Immediate admissions - Elderly offender - Adverse medical condition - Delay in proceeding to dispose of matter - No previous convictions - No violence involved - Breach of postion of trust - Matter essentially one suitable for Local Court - Maximum penalty in Local Court relevant
LEGISLATION CITED:	Crimes Act 1900; s 61M Crimes (Sentencing Procedure) Act 1999; s 21A Criminal Appeal Act 1912; s 6(3)
CASES CITED:	Dinsdale v The Queen (2000) 202 CLR 321
PARTIES :	Regina Keith Giddy
FILE NUMBER(S):	CCA 60028/03
COUNSEL:	Ms R Burgess - Applicant Dr P J P Power SC - Crown
SOLICITORS:	Mr D J Humphreys - Applicant Ms S E O'Connor - Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	97/31/0431
LOWER COURT JUDICIAL OFFICER :	Woods QC, DCJ

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60028/03

O’Keefe J
Bell J

28 February 2003

Regina v Keith Giddy

Judgment

THE COURT:

Introduction

1 This is an application for leave to appeal against the severity of a sentence imposed on Keith Giddy (the Applicant) in the District Court on 5 December 2002.

2 The Applicant pleaded guilty to an indictment containing one count of aggravated indecent assault contrary to s 61M of the Crimes Act 1900, and was sentenced to imprisonment for 18 months to commence on 5 December 2002 and expire on 4 June 2004. A non-parole period of 9 months was fixed to expire on 4 September 2003.

3 The Applicant was born on 26 August 1932, and was thus 70 years of age at the time of sentence. He is a retired man who had formerly been a schoolteacher. He had no previous convictions.

4 The offence to which he pleaded guilty had been committed in March or April 1992 at the Waratah Gymnasium, where the Applicant was a senior gymnastics coach. He was arrested in respect of the offence on 24 March 1997 and granted bail. He remained on bail until he was sentenced nearly six years after his arrest, and some ten years after the offence.

5 The circumstances of aggravation were that the indecent assault was committed on a girl of 13. The circumstances of the offence were that the Applicant asked the victim to go to his office. She was then wearing a one-piece swimsuit and bicycle shorts because she did not have a gymnastic leotard. The Applicant asked her to turn around, and he thereupon gave her “a hug from behind”, during the course of which he “put his hands inside (her) swimsuit and started touching (her) breasts”. These actions were accompanied by words which were not threatening and there was no violence offered to the victim. As she was leaving the office, the Applicant “patted (her) on the backside”. There were no further incidents involving the Applicant and the girl.

6 A case such as the present would usually be dealt with in the Local Court, where the maximum penalty for such an offence is imprisonment for two years. However because the Applicant was later charged with a number of other offences that were to be tried in the District Court, the present matter was the subject of an election by the prosecutor to have it dealt with in the District Court as well.

7 As it transpired, the Applicant was acquitted of all the other charges. However the present matter remained in the District Court, where the maximum penalty that could be imposed in respect of the offence was imprisonment for 7 years.

8 The Applicant sought leave to appeal on the grounds that the sentence imposed was manifestly excessive. When the matter was argued on 26 February 2003, the Court came to the conclusion that the sentence imposed was manifestly excessive in the circumstances and that in lieu of such sentence, the Applicant should be sentenced to imprisonment for 12 months to date from 5 December 2002, and expire on 4 December 2003, and that the operation of such sentence should be suspended as from 26 February 2003 on the Applicant entering into a bond to be of good behaviour during the period from 26 February 2003 to 4 December 2003. Because of the exigencies of the Court’s list, the parties were advised that Reasons for the decision would be given at a later date.

Arguments

9 Counsel for the Applicant submitted that the Judge had committed an appellable error in that he failed to consider, or consider properly, alternatives to full time imprisonment before imposing the sentence of imprisonment the subject of appeal. She pointed out that whilst the more serious sexual assaults are usually dealt with by full time custodial sentences, this is not invariably the case. That is correct.

10 Dinsdale v The Queen (2000) 202 CLR 321 was concerned with two sexual offences against a 9 year old girl: one involved sexual penetration; the other, indecently dealing with her. The accused was sentenced to concurrent terms of imprisonment for 18 months which were suspended. The Crown appealed to the Court of Criminal Appeal, which allowed the appeal and set aside the order for suspension of the terms of imprisonment. The accused appealed to the High Court, which allowed the appeal and restored the suspension of the sentences. Gleeson CJ and Hayne J said that:

“A sentencing Judge must determine whether imprisonment is warranted and … must fix the length of the term which would otherwise be appropriate. Neither step should be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a Court impose a term of immediate imprisonment.” (supra at )

11 An examination of the Remarks on Sentence in the present case reveals that the Judge approached the imposition of the sentence on the basis that he had the power to impose a full time custodial sentence on the Applicant, and that he should therefore do so. This, in my opinion, is highlighted by the passage in which his Honour says that:

“A sentence of full time custody can be imposed.”

12 Having so concluded, the Judge proceeded to deal with the factors of aggravation relevant to the imposition, and to consider the age, character, absence of antecedents, and medical condition of the Applicant. He expressly referred, but only in general terms, to the mitigating and aggravating factors enumerated in s 21A of the Crimes (Sentencing Procedure) Act 1999. At no stage in the course of his Remarks on Sentence does he consider alternatives to full time imprisonment. However, the law requires that he should do so, and in failing to do so there was, in my opinion, appellable error on the part of the Judge.

13 The conclusion referred to in paragraph 12 above empowers the Court to exercise the function of imposing such sentence as is warranted in law (Criminal Appeal Act 1912, s 6(3)). In determining the sentence that is warranted in the present case, the Court had regard to:

(i) the inherent objective seriousness of the offence charged;

(ii) the maximum penalty that may be imposed, especially that which may be imposed in the Local Court. This consideration arises because of the circumstances which led to the matter being dealt with in the District Court, although it was a case that was more suited to, and would normally have been dealt with in, the Local Court;

(iii) the fact that no violence was involved in the offence, and no physical harm was done to the victim;

(iv) the plea of guilty entered at an early stage;

(v) the immediate admissions made by the Applicant;

(vi) the age and medical condition of the Applicant;

(vii) his expression of remorse and contrition;

(viii) the length of time between the charging of the offence and the conviction and sentence, during which time the Applicant would undoubtedly have been subject to significant stress and worry;

(ix) the absence of any prior criminal record;

(x) the fact that the Applicant is unlikely to re-offend, and in this context it is material also to consider his rehabilitation.

14 It was having regard to these factors that the Court was of the view that the sentence imposed on the Applicant was manifestly excessive in the circumstances, and that in lieu thereof the sentence announced on 26 February 2003 should be imposed.

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Last Modified: 03/04/2003