Regina v Peckover

[2002] NSWCCA 468

Reported Decision: (2002) 135 A Crim R 401

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v PECKOVER [2002] NSWCCA 468
FILE NUMBER(S):	CCA 60220/02
HEARING DATE(S):	15/11/2002
JUDGMENT DATE:	15 November 2002
PARTIES :	Regina Brien William Peckover
JUDGMENT OF:	Wood CJ at CL at 1; Dowd J at 9

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/51/0155
LOWER COURT JUDICIAL OFFICER :	Ducker DCJ

COUNSEL :	P Boulten (Applicant) GIO Rowling (Crown)
SOLICITORS:	Peter Bouzanis & Associates (Applicant) SE O'Connor (Crown)
CATCHWORDS:	Sentence appeal application - attempt cause child under 14 to participate in prostitution - serious efforts to carry through attempt - impossibility of success in attempt - no lesser sentence possible.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedures) Act 1999
CASES CITED:	Regina v Taouk (1992) 65 A Crim R 307
DECISION:	Leave to appeal granted; appeal dismissed.

60220/02

WOOD CJ at CL
DOWD J

Friday 15 November 2002

REGINA v Brien William PECKOVER

Judgment

1 WOOD CJ at CL: I agree. I would accept that where an accused stands charged with an attempt to commit a substantive offence, which was always pre-destined to fail or which is even unlikely to succeed, then such circumstances may be taken into account as a matter reducing the objective seriousness of the offence.

2 The decision in Regina v Taouk (1992) 65 A Crim R 307 stands as authority for that proposition, and there are cases involving persons charged with a deemed supply of drugs where they never had any intention of completing the transaction, that is where their purpose was to work a fraud, or in the vernacular of the drug trade a "rip-off", where a similar approach has been taken.

3 In Taouk Badgery-Parker J observed in the passage upon which reliance is placed:

"If on the facts it appears that the attempt was unlikely to succeed or indeed that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime."

4 His Honour went on to say:

"However it must always be necessary for the sentencing Judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration."

5 Depending upon the seriousness of the substantive offence and of the seriousness, deliberateness, or sophistication of the offender in attempting to carry his enterprise into fruition, it might be appropriate to make some allowance in the objective seriousness of the offence for the fact that the attempt was bound inevitably to fail. Each case must be considered on its own circumstances.

6 In this case I am satisfied, for the reasons identified by his Honour, and also by Dowd J in his reasons for judgment, that this was a serious attempt which was carried almost to fruition, being one in which the applicant proposed a serious sexual assault of the child for which he was prepared to pay a substantial sum of money.

7 In my view, if this court were to intervene to reduce the sentence, for the reason advanced, it would result in a sentence that was inappropriate for the objective seriousness of the criminality involved. In other words, this is a case where no other sentence other than that imposed was warranted, or should have been imposed by his Honour.

8 For those reasons I similarly agree that, while leave to appeal should be granted the appeal should be dismissed.

9 DOWD J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant in the Lismore District Court on 9 April 2002. On that date the applicant was convicted of an offence of attempting to cause a child under the age of fourteen years to participate in child prostitution. This offence is provided by s 91D(1)(a) of the Crimes Act 1900. The maximum penalty for such an offence is one of fourteen years imprisonment. That maximum penalty was available to the learned sentencing judge in respect of a conviction for attempting to commit the offence pursuant to the provisions of s 344A of the Crimes Act.

10 The applicant was sentenced to a term of four years imprisonment to date from 9 April 2002 with a non-parole period of two years, the non-parole period to expire on 8 April 2004, as a result of his Honour finding special circumstances as provided by s44 of the Crimes (Sentencing Procedures) Act 1999 to do so.

11 The charge originally brought against the applicant alleged that he had attempted to induce a child to participate in an act of child prostitution. This offence is also provided by s 91D(1) of the Act. The applicant pleaded guilty to this charge in the Local Court and was committed to the District Court for sentence.

12 When he appeared for sentence on 13 December 2001 the presiding judge was unwilling to accept a plea of guilty upon the view that the evidence was not capable of supporting it. Thereafter the Director of Public Prosecutions found a bill charging the applicant with the offence of attempting to cause a child to participate in an act of child prostitution.

13 On 8 April 2002 the applicant was arraigned before the District Court at Lismore. He entered a plea of not guilty to the indictment as amended. At the conclusion of the Crown Prosecutor’s opening counsel then appearing for the applicant sought a directed verdict of acquittal on the basis that it was impossible for the offence to be carried out. His Honour made a number of rulings adverse to the applicant. Thereafter the applicant sought to be re-arraigned and entered a plea of guilty to the charge.

14 The sentencing judge, in the light of the history of the matter, considered it appropriate to treat the applicant as having pleaded guilty at an early stage in the proceedings. He discounted the sentence that he would otherwise have imposed in order to reflect the utilitarian value of that plea by twenty percent.

15 In pp 3-7 of the remarks on sentence, the sentencing judge extensively set out the facts upon which he proceeded to sentence the applicant as follows:

“The facts are somewhat unusual. On 17 June 2001 a woman involved in prostitution, whose habit it was to advertise in a local newspaper, received a telephone call from the offender. An appointment was made for him to visit her at 2pm that day at an address in Banora Point. A consideration of $180 for an hour was agreed upon prior to his attending those premises.

Once there, he introduced himself by his Christian name and paid the woman $180. Further conversation then took place in the course of which the offender, having obtained some personal details from the woman, became interested in the fact that she had young daughters.
The offender expressed particular interest in relation to a daughter who, he was told, was eight years of age but who was, in fact, ten yeas of age. The offender asked questions which included:
“Do you massage your eight year old daughter? Do you play with her genitals? Do the children sleep with you and are you naked?”
The offender then expressed a wish to meet the woman’s daughter, assuring her at the time that he would be gentle with her, that is the daughter, and would not hurt her. He also suggested that he would do nothing without the woman being there until the child got to know him and then he would have her on his own.
The woman continued the conversation with the offender in order to obtain more information to hand on to the Police. Apparently the idea of sexual molestation of a young child was as repugnant to a woman given to prostitution as to the rest of the community.
It seems that despite the $180 spent by the offender on the occasion of this visit it did not conclude in sexual intercourse. He apparently had some erectile difficulty, or perhaps I should say ‘non-erectile difficulty’. However, according to the woman, when he began to discuss what he would do to her daughter his penis became erect, indicating that he had found the discussion sexually arousing.
The woman continued to go along with the offender, and went so far as to agree to provide her daughter for the purposes suggested by the offender for which he was to pay $600, she said for half an hour with the child; the offender, in evidence here today, has said it was to be for an hour. This is a matter of no consequence, or very little consequence.
The $180 was spent by the offender on a body massage which, as earlier stated, had not caused him to become aroused, and in having his genital area shaved. After that somewhat unusual service was rendered, it appears that he left the premises.
There followed some contact between the woman and the offender about nine days later, on 26 June. She received a telephone all from the offender wanting to see her daughter, that day if possible. He was put off with the suggestion that that was not possible but perhaps the Wednesday or Thursday of that week might be suitable. An arrangement was made. He stating that he wanted this meeting to take place before 29 June 2001 because his mother was coming to visit him during that weekend.
The child’s mother then, very greatly to her credit, notified the Police as to what had taken place between herself and the offender. She made a statement to the Police concerning the offender.
About 4.30pm that same day, 26 June, the woman received another telephone call from the offender. An arrangement was made for him to meet with her child at 4pm on 27 June, or Thursday the 28th. The offender again called the woman on the 27th and an arrangement was apparently made for the 28th at 4pm. The woman agreed that such a meeting should take place between the offender and her daughter.
Police Officers were alerted and stationed themselves in and around the premises concerned. They hid a listening device on the woman.
The offender telephoned the woman at about 7.15 on the Wednesday, 27 June 2001, and, during that conversation, the offender, it is accepted, said ‘yes, we’ll massage her, that will relax her even more and I will have a little play around her vagina. We might even get her to touch Mummy’s G-spot.’ That, of course, took place the day before the offender was arrested.
He kept the appointment on 28 June. The woman was, on this occasion, again fitted with a body-wire listening device. After entering the premises and being greeted by the woman the offender, together with her, went to the main bedroom of the premises where he paid over to her some $600 in cash. They then discussed exactly what would be done to the daughter. That conversation was recorded by the listening device which revealed the offender as having said that the daughter would be naked, face up at first; that the woman was to massage the child’s upper body and he would massage the lower body; that they would roll her over and he would massage her face while she looked at a Karma Sutra book which he had brought with him to the premises. He also said that he would kiss the girl and that he would only insert his fingers into her vagina as far as she felt comfortable with and that he would perform oral sex on her.
…
Still acting out the scene the woman advised the offender that the child was at premises close by and she suggested that he take a shower whilst she fetched her. This he did. He commenced to take a shower and then the woman left the premises ostensibly to get her daughter. He was thereafter arrested in the bathroom of the premises and was later interviewed electronically at the premises by Police Officers.”

16 Mr Boulten, who appears on the applicant’s behalf, challenges the sentence on the grounds that the sentencing judge erred in failing to mitigate the sentence because of the impossibility of the applicant participating in an act of child prostitution. It is contended by Mr Boulten that this was an example of an attempt to commit a crime that was predestined to fail and, in Mr Boulten’s submission, the inevitability of failure should have operated in mitigation of penalty.

17 Reliance was placed on the observations of Badgery-Parker J (in a judgment with which Clarke AJ and Abadee J agreed) in Regina v Taouk (1992) 65 A Crim R 307 at 390. In Taouk the applicant was convicted of an attempt to bribe a District Court judge in order that he would impose a sentence of periodic detention instead of one of full-time custody on a relative of the applicant.

18 The appeal was argued upon the basis that it was common knowledge that the judge in question was incorruptible and that the police officers to whom the applicant had passed the intended bribe money had no intention of approaching him in any event. The whole scheme was doomed to failure and, accordingly, it was contended on the hearing of the appeal that the sentencing judge had erred in regarding the offence as a very serious one. Badgery-Parker J after referring to the discussion in Gillies, Criminal Law (1985), pp 524-528, where the cases on attempts to do that which is physically impossible are discussed, went on to say:

“There is, however, no doubt that an attempt to commit a substantive offence which although not physically impossible was always doomed to failure because of the incompetence of the perpetrator or the inadequacy of his preparation is nevertheless still itself a crime: Haughton v Smith [1975] AC 476 at 494; (1973) 58 Cr App R 198 at 210-211. It would seem to be correct, however, as counsel for the appellant submitted, that where a person comes to be sentenced for an attempt which was predestined to fail, that is a circumstance which may go in mitigation of penalty. It does not necessarily, however, as counsel further contended, compel a conclusion that the offence should not be viewed seriously. After a sentencing judge has established the facts of the offence, his prime task is to evaluate the objective seriousness of the offence. In making such an evaluation, where the charge is of an attempt to commit a substantive offence, it will be relevant for the judge to consider, first, that the charge is of attempt only and, by hypothesis, the substantive offence was not completed; and it will be relevant to consider the chances that the attempt, if not interrupted, would have succeeded. If on the facts it appears that the attempt was unlikely to succeed or indeed, that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime. However it must always be necessary for the sentencing judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration. It may be postulated that where the offence attempted is grave, a sophisticated attempt which came close to success is likely to attract a heavier sentence than a naïve and ill prepared attempt predestined to fail. On the other hand, a determined and all but effective attempt to commit a minor crime would attract perhaps a more severe sentence than a naïve and inefficient attempt to do the same thing, although the relative triviality of the offence would tend to narrow the margin between the two outcomes. It cannot necessarily be postulated, however, that a naïve and ill-prepared, even incompetent, attempt to commit a serious offence must necessarily attract a lesser sentence than would be incurred by a serious and all but effective attempt to commit an offence of less gravity. There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all the circumstances.”

19 Taouk has of course been relied on in this Court consistently since that time, but it has however created some difficulty of understanding in the very words that his Honour Badgery-Parker J used, in that particular passage of which Mr Boulten has reminded the court :

"If on the facts it appears that the attempt was unlikely to succeed or indeed that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce (my emphasis) the objective seriousness of the crime."

20 There is no doubt that the fact referred to by Badgery-Parker J is a factor which might be seen to reduce the objective seriousness of a crime. However, it is rarely put, where controlled circumstances arise, as in a police follow up of an attempt at drugs, for instance, that the police themselves go into a controlled supply operation which had no prospect of succeeding. It is, as I said, not put to this Court that that is a similar circumstance, that there is no difference in principle to a circumstance such as in Taouk as here, where no such child as represented existed and the mother was never going to do it.

21 It is difficult to conceive that an experienced judge such as Ducker J would not have been conscious of the principle enunciated in Taouk, and although his Honour does not refer to it as such, some reference to it would have expressed his Honour's reasons more clearly. However, it is never a matter which might reduce the objective seriousness of the crime.

22 It is, in fact, necessary in these proceedings to look at the objective seriousness. It would be hard to conceive an attempt that went further in its execution than in this case. The applicant made all the necessary preparation for the contemplated offence before in fact he was prevented from, in his terms, carrying out the offence.

23 The offence was completed and it is an offence of the greatest seriousness, as his Honour the learned sentencing judge made abundantly clear in his remarks on sentence:

"However, the bottom line has to be that although there are strong subjective features the ultimate purpose of passing sentence for serious criminal offences of this kind is the protection of the public, and no member of the public is more needful or worthy of protection than children."

24 It is clear that his Honour in a very careful judgment, looking very closely at the medical evidence put before the court and at the subjective circumstances, looked at the whole issue of the appropriate severity. Indeed the special circumstances that his Honour found in reducing the non-parole period to fifty per cent of the total head sentence show a greater deal of sympathy for the problems of the applicant than, at first, the circumstances warrant. Any suggestion that anything less than four years custody as being an appropriate sentence for this particular offence would be quite without warrant.

25 In my view his Honour the learned sentencing judge looked at this as a very serious offence. As the facts demonstrated, the mother of the child showed considerable courage in ensuring that evidence was obtained to prevent this sort of offence.

26 There is, in this case, as much a need for individual deterrence as general deterrence. This was a most serious offence, and as I have indicated, in my view, his Honour would have taken into account, although not specifically referring to it, the decision in Taouk and all the other circumstances in establishing, after a deduction of twenty per cent for the conceded early plea, that this was an appropriate sentence for the offence.

27 I therefore would in the circumstances grant leave, but would dismiss the appeal.

28 WOOD CJ at CL: The order of the court will be as Justice Dowd and I both propose.

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