RV Schlenert
[2001] NSWCCA 481
•21 November 2001
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R.V. SCHLENERT [2001] NSWCCA 481
FILE NUMBER(S):
60455/01
HEARING DATE(S): 21 November 2001
JUDGMENT DATE: 21/11/2001
PARTIES:
Darren John SCHLENERT - Appellant
Regina - Respondent
JUDGMENT OF: Barr J Adams J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 00/31/0463
LOWER COURT JUDICIAL OFFICER: Coleman DCJ
COUNSEL:
Ms G. Bashir for the appellant
Mr G.E.Smith for the Crown
SOLICITORS:
Mr S. Naris for the appellant
Mr S.E. O'Connor for the Crown
CATCHWORDS:
Criminal Law - sentencing - stale offence
Criminal Law - sentencing - adult sentenced many years after committing offence as a child - whether conviction warranted
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 ss 9 & 10
DECISION:
See Judgment at Paragraph 14
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
60455/01
Barr J
Adams J
21 November 2001
Regina v Darren John Schlenert
Judgment
Barr J: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant pleaded guilty in the Local Court to a charge that in 1980 he had carnal knowledge of a girl between the ages of 10 and 16 years, namely of 12 or 13 years. He was committed to the District Court for sentence and there adhered to his plea. Coleman DCJ QC convicted the applicant and ordered him to enter into a bond pursuant to s 9 Crimes (Sentencing Procedure) Act to be of good behaviour for 12 months.
The circumstances are unusual. During 1980 the applicant was 14 or 15 years old. One day he and a boy about one year senior to him were in the country town where they lived. They had a car. With them were the complainant, who was then 12 or 13 years old, and another girl. The car stopped in a quiet place. The elder boy and the other girl got out of the car, leaving the applicant and the complainant alone. The applicant locked the doors. The complainant lay on the back seat. The applicant removed her lower garments and had penile-vaginal sexual intercourse with her. Then the elder boy returned to the car, got into the back seat and had intercourse with the complainant. The complainant told her mother soon afterwards but her mother decided not to report the matter to the police. A few days later the applicant went to the complainant's house and said that he was sorry for what he had done. There the matter was left.
On 22 October 1998, 18 years later, the complainant's husband found out what had happened. The other offender was still living in the same town and the complainant's husband arrested him and took him to the police station. On 29 September 1999, almost another year later, police interviewed that man.
More than a further year later, on 10 October 2000, police interviewed the applicant. He made full admissions of everything he was able to remember about the incident. Only then was he charged.
All the evidence before his Honour established that the applicant was, apart from the blemish that took place when he was 14 or 15 years old, a person of excellent character. He was in regular employment and a valuable man to his employer. He was married and had two growing children. He had strong family support. A pre-sentence report contained the following passage: -
"Discussion with Senior Psychologist: After a discussion with the Senior Psychologist, Regional Supervisor (Sex Offenders' Programmes) from the Department of Correct Services, a risk assessment was conducted using a STATIC-99 as the actuarial risk assessment instrument. On the basis of this instrument Mr Schlenert's risk of sexually reoffending falls in the low risk category."
The meaning of that paragraph is unclear. The nature of the instrument called the STATIC-99 is obscure. What actuarial risk assessment has to do with the chances that a person might commit a sexual offence I do not understand. I would have thought that the paragraph would have to be taken as meaning that there was no risk that the applicant would commit a sexual offence and I think that his Honour must have so understood it.
In deciding to record a conviction and require the applicant to enter into the bond his Honour rejected the option under s 10 Crimes (Sentencing Procedure) Act not to convict him but to dismiss the charge or discharge the applicant on condition that he enter a good behaviour bond. A number of attacks were made upon his Honour's reasoning in coming to that decision. The first submission was that his Honour erred in finding that the delay in complaining to the authorities was not a factor to be taken into account in favour of the applicant. His Honour said this: -
"The fact that (the offences) occurred so long ago does not minimise the seriousness of the offences, nor does the fact that it took so long for the complainant to bring the matter to the attention of the police, benefit either of the offenders."
There will be many cases where delay in complaint cannot assist an offender. For example, a complainant put in fear by the activities of an offender, especially as a child, may be rendered incapable of reporting an offence for many years. Offenders cannot take advantage on sentence of delays of that kind but there is no universal rule that delay may not work to the benefit of an offender on sentence. Each case has to be considered according to its own facts and circumstances: R v Moon [2000] NSWCCA 534.
The gross delay in bringing this matter to the notice of the authorities was in no way attributable to anything about the relationship between the applicant and the complainant or to anything done by the applicant. In my opinion his Honour erred in allowing the applicant no benefit on account of that delay. I think that the applicant was entitled because of it to be treated more leniently.
The delay made it particularly important for the authorities to deal with the matter without further delay, yet it was two more years before the applicant was charged. It seems to me that that was a further factor that his Honour ought to have taken into account in favour of the applicant: R v Aliperti [2000] NSWCCA 315.
The offence was strikingly stale. That was a matter that his Honour was obliged to take into account: R v DJS [2001] NSWCCA 189.
It is not necessary to deal with the remaining grounds of appeal. I think that this Court should intervene.
The applicant is not a risk to the community. Over many years he has worked to establish a responsible position in his family, work and social life. He is well regarded. He ought not now to lose the regard of his family, friends and peers because of the resurrection of a boyhood offence. In my opinion the community has no interest in seeing the applicant further stigmatised: R v DJS.
I propose the following orders:
(1)Grant leave to appeal.
(2)Allow the appeal and quash the orders made by his Honour.
(3)Without proceeding to conviction, order pursuant to s 10 Crimes (Sentencing Procedure) Act that the charge be dismissed.
ADAMS J: I agree.
BARR J: The orders of the Court therefore are as I have proposed.
LAST UPDATED: 13/02/2002
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