SA Police v Neol Keith Love No. 4171 Judgment No. SCGRG 93/1475 Number of Pages 6 Criminal Law Offences against Decency and Morality

[1993] SASC 4171

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - offences against decency and morality - Appeal by the informant against suspended sentence of eight months' imprisonment imposed in the Magistrates Court on a 50 year old man who pleaded guilty to gratifying prurient interest by causing a 7 year old girl to expose her private parts which he photographed - previous offences involving indecency and indecent assault but the most recent was 21 years ago - held that the appellant had not discharged the onus of demonstrating that either the length of the prison term or the suspension of it gave rise to a penalty which was manifestly inadequate. Criminal Law Consoliation Act 1935 s. 58a.
Criminal law - sentencing - where the maximum penalty for an offence is only two years' imprisonment and the circumstances in which it may be committed could vary enormously, the statutory penalty should be left to speak for itself, and any attempt to lay down some sort of 'standard' would only have a tendency to distort the sentencing process.

HRNG ADELAIDE, 8 September 1993 #DATE 8:9:1993
Counsel for appellant:     Ms J. Olsson
Solicitors for appellant:    Crown Solicitor (SA)
Counsel for respondent:     Mr J F Kelly
Solicitors for respondent: Legal Services Commission

ORDER
Appeal dismissed.

JUDGE1 PERRY J In this matter, the informant, that is the Police, appeal against the sentence imposed upon the respondent following his plea of guilty in the Adelaide Magistrates Court to a charge that, between 27 October 1992 and 29 October 1992, with a view to gratifying prurient interest, caused a person under the age of 16 years to expose part of her body, contrary to s.58(a) of the Criminal Law Consolidation Act 1935. 2. After hearing submissions from the informant and from counsel for the respondent, the learned Stipendiary Magistrate imposed a sentence that the respondent be imprisoned for eight months, but that the sentence of imprisonment be suspended upon the defendant entering into a bond for a term of three years to be of good behaviour and to be under the supervision of a probation officer and further to "undergo assessment and to submit to such counselling and/or treatment as may be recommended by a suitably qualified person and be available to him". 3. The learned Magistrate was informed on the hearing of the matter that the victim of the offence was a female of some seven years of age. He was told that the respondent had a relationship with the child's mother, but it appears that it was short-lived, occupying only a period of some 16 days. The child complained after the respondent's relationship with her mother had ceased, that during the time of that relationship, the respondent had taken photographs of her in the bedroom of his unit while she was sitting on the bed wearing her school uniform. She said that he made her remove her knickers and, with a Polaroid camera, took photographs of her private parts. 4. After she had complained about the matter, the police interviewed the respondent at his flat. They found 27 photographs of children aged between three and nine years. Twenty-three were found in a jacket and showed female genitals and the anal area. They had been taken in various poses. In another jacket police located four photographs which, it was agreed, were photographs of the victim of the offence now in question and constitute the photographs taken the subject of the offences in question. 5. The police found other materials in the flat which tended to confirm that the respondent had a tendency towards a prurient interest in females and other subjects. 6. After he was arrested he admitted taking all of the photographs that were found of the group of 23 but denied taking the four photographs presently in question. He did not, however, adhere to that denial and eventually conceded that they had been taken by him of the victim of the offence. 7. The point was taken before the learned sentencing Magistrate that the police evidence of the finding of the other 23 photographs, apart from the four presently in question, should not be taken into account. The learned Magistrate acceded to that submission and Ms Olsson, who argued the appeal in this Court, did not challenge that ruling. 8. It follows that the sentence now under review must be taken to have been imposed with respect only to the instance when the respondent took four photographs of the victim in the situation which I have described. 9. There is no doubt, on the evidence before the learned Magistrate, that the victim was upset at the time, indeed, that she was crying when the photographs were taken. It appears from the victim impact statement, which had been placed before the learned Magistrate, that the respondent had said to her, "If you tell, I'll get thrown out" and that he had told her, "Don't tell your mum" and that at another stage he had said to her that she should "shut up" when she asked him to stop photographing her. 10. The learned Magistrate was informed that the respondent had some previous convictions for sexually related offences. His antecedent report was tendered which indicated a conviction in New South Wales in 1960 for indecent exposure; in 1961, in the same state, for wilful and obscene exposure; and he had other convictions in that state for indecent language, obscene exposure, and in Victoria in 1968 and 1972 for indecent assault. The conviction in 1972 was for an indecent assault on a girl under 16 years. 11. The learned Magistrate delivered lengthy remarks on penalty which indicate that he had considered the case very carefully. It was at his request that the prosecutor obtained a victim impact statement from a clinical psychologist, one Karen Fitzgerald. On the basis of that statement he accepted that the child had suffered some psychological harm and adverse effects. 12. Indeed, the description given by the child's mother to Ms Fitzgerald was that the child had changed from being a "happy-go-lucky youngster" to "a sad little girl", and that she had exhibited some other changes such as sucking her thumb and saying that she did not believe that people liked her. Although Ms Fitzpatrick expressed some concern about longer term effects, at the time she gave her report she was not able to comment on just what long term effects, if any, there might be. 13. After dealing with the psychological report, which constituted the victim impact statement, the learned Stipendiary Magistrate referred to the respondent's contrition. He gave credit for the plea of guilty, although, apparently, that credit was discounted by reference to the fact that the plea of guilty came only after the fifth appearance in court, on the day that the matter was set down for trial. 14. The learned Magistrate quite correctly expressed the view that he was to bear in mind the need to protect the community, particularly children under the age of 16 years, and that he must take into account the deterrent effects the sentence would have on the defendant "and the need to ensure the defendant was adequately punished for what he did". 15. He then referred to the personal circumstances of the respondent, who is 49 years of age and married, but divorced, with four adult children. 16. His Honour was obviously impressed with the fact that the respondent had started a treatment program with the Sexual Offenders Treatment and Assessment Program on 19 May 1993. 17. He indicated that he had considered all of the sentencing options available to him and thought that he should impose a sentence of imprisonment. He then said that the principal sentencing issue was whether there was good reason to suspend the sentence. He said, as to that aspect of the matter: "Certainly there are reasons to suspend that sentence. It is necessary to bear in mind the circumstances of the offence as well as the circumstances of the offender." 18. He went on to refer to the provisions of the Sentencing Act which allow for suspension of a sentence where there is "good reason to suspend" (s.38(1)). He then observed:
    "The attribute 'good' is objective and must be related to
    actual facts, in the existence of which there are good grounds to
believe; (per Wells J in Bottomley v Symons (1982) 31 SASR 18 at
    23). The reports tend to indicate that the defendant is
    genuinely motivated to change his behaviour. He has demonstrated
    insight into his problems. It is too early to say whether the
    programme will be successful, but Mr Fugler suggests that, in the
    longer term, the protection of the community can best be achieved
by the successful treatment of the defendant." After recording a conviction he then imposed the sentence to which I have referred which he suspended upon the respondent entering into a bond. 19. The grounds of appeal are that the learned Stipendiary Magistrate erred in that the sentence of imprisonment was manifestly inadequate and further that he erred in suspending it. 20. Ms Olsson, for the appellant, has said everything possible in support of the appeal in the course of her very careful and thorough submissions. She referred to the fact that s.58(a) of the Criminal Law Consolidation Act is of relatively recent origin and was apparently enacted in order to overcome difficulties which had been encountered in the prosecution of charges in circumstances of this kind under s.58 or for indecent assault. She drew attention to the fact that under s.58(a)(1), the sentence for a first offence is imprisonment for two years and for a subsequent offence imprisonment for a term not exceeding three years. 21. Ms Olsson took the Court to the oft quoted remark of King CJ in Morse
(1979) 23 SASR 98 at 99 where His Honour said:
    "There is no suggestion that the learned sentencing Judge
    made any error of fact or law or that he failed in any way to
    take into account the relevant considerations. This Court can
    interfere only if it is convinced that the sentence was
    manifestly excessive. To determine whether a sentence is
    excessive, it is necessary to view it in the perspective of the
    maximum sentence prescribed by law for the crime, the standards
    of sentencing customarily observed with respect to the crime, the
    place which the criminal conduct occupies in the scale of
    seriousness of crimes of that type, and the personal
circumstances of the offender." 22. She then proceeded to develop her submissions under the headings which suggest themselves from that passage in the judgment of King CJ. 23. After referring to the maximum sentence prescribed by s.58(a)(1), she conceded that there were not enough cases which had yet been heard by the courts from which it was possible to draw any sentencing standard for this particular offence. I doubt that the setting of any such "standard" should even be attempted for this offence. The maximum penalty is a relatively short term of imprisonment, and given the widely different circumstances likely to accompany the commission of offences against the section, to suggest that a particular term of imprisonment within the maximum of two years (bearing in mind also that some cases may merit a fine only) should be regarded as some sort of norm is likely to have a distorting effect upon the sentencing process rather than assisting it. The statutory maximum should be left to speak for itself. For the same reason, I decline Ms Olsson's invitation to attempt to offer any general guidance as to sentencing for this offence. 24. With respect to the place which the criminal conduct occupies in the scale of seriousness of crimes of this type, Ms Olsson submitted that this was a serious case and was in the upper end of the scale of seriousness. In support of that submission she emphasised the age of the victim, the brevity of the respondent's relationship with the victim's mother, his position of trust and the nature of the offence, including the distress of the child while the photographs were taken and the degree of intimidation by the respondent, including the threats. 25. All of the points which she made in that respect were well founded in the circumstances. 26. But it does not follow that a sentence closer to the statutory maximum should have been imposed, as the seriousness of the offence must be taken into account in the context of all other relevant circumstances. Some credit was to be given, for example, for the plea of guilty, albeit belated. Apparently, the plea was given early enough to avoid the victim being summonsed to Court. 27. Ms Olsson referred to the personal circumstances of the respondent and his prior history of offending. It must be said, however, as the learned Magistrate pointed out, that the last prior offence was some 21 years ago. 28. Ms Olsson was unable to point to any error or misapprehension by the learned Magistrate in his sentencing remarks, except that she suggested that in the passage which I have quoted, in which His Honour deals with matters going to the question whether or not the sentence should be suspended, she contended that he had placed too much emphasis on rehabilitation. 29. After carefully considering her submissions, in my opinion, the appellant has not made out a case which would justify interfering with the sentence imposed or its suspension. While it must be admitted that the offence was, in many respects, serious, it does not appear from my perusal of the learned Magistrate's remarks on sentence that he failed to make allowance for any relevant matter, either in favour of the respondent, or which might have gone into the scales against him. He very carefully evaluated what seems to have been all of the relevant considerations. 30. It is true that others might have imposed a sentence of longer duration than eight months imprisonment, but, in my opinion, it cannot be said that eight months was a period which lay outside the ambit of a proper exercise of the sentencing discretion. 31. The question whether it would be right to interfere with his decision to suspend has caused me greater difficulty. The principles which should govern the approach by the Court to a plea to interfere with the exercise of a discretion in favour of suspending a sentence were the subject of comment by Walters J in Wood v Samuels (1965) SASR 465, in particular at 467-468. 32. On reflection, it seems to me that the learned sentencing Magistrate in this case cannot be said to have erred in making the decision which he did as to that aspect of the matter. He had the respondent before him and had carefully considered not only the victim impact statement but the report of Mr Fugler, a psychologist, who spoke in encouraging terms of the steps taken by the respondent to rehabilitate himself. 33. It is quite true, as Miss Olsson has suggested in her submissions, that his enrolment for the Sexual Offenders Treatment and Assessment Program occurred while he was on bail pending sentence, but against that, regard should be had to the fact that he previously, some years beforehand, had joined an organisation known as GROW, which he attended regularly, and at which he was attempting to deal with his problem. 34. In all the circumstances, I am not satisfied that it would be proper to interfere with the decision taken by the learned Stipendiary Magistrate to suspend the sentence. 35. It should be borne in mind it is a condition of the bond, upon which he suspended the sentence, that the respondent undergo such assessment, counselling and treatment as may be recommended by a suitably qualified person. It seems to me, that it was open to the learned Magistrate to come to the view, as he clearly did, that the best interests of the community would be served by allowing the respondent to continue the program of treatment which he has embarked upon. 36. For these reasons the appeal is dismissed.