Scrutton v The Queen
[2000] WASCA 360
•24 NOVEMBER 2000
SCRUTTON -v- THE QUEEN [2000] WASCA 360
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 360 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:12/2000 | 8 MAY 2000 | |
| Coram: | KENNEDY J WALLWORK J WHEELER J | 24/11/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against sentence granted Appeal dismissed | ||
| PDF Version |
| Parties: | STANLEY FRASER SCRUTTON THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Applicant convicted on four counts of unlawfully and indecently dealing with a male child under the age of 14 Prior convictions for indecent dealing with children Sentence of 2 years' imprisonment on each count to be served concurrently but cumulatively upon other sentences then being served Previous sentences subject to order for parole Sentencing Judge's refusal to order eligibility for parole No basis for interference with discretion |
Legislation: | Sentencing Act 1995, s 89 |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 Thompson v The Queen (1992) 8 WAR 387 Armstrong v The Queen, unreported; CCA SCt of WA; Library No 980231; 21 April 1998 Cardillo v Taylor [1999] WASCA 166 Garlett v The Queen [2000] WASCA 72 Histon v The Queen, unreported; CCA SCt of WA; Library No 970197; 1 May 1997 Howell v The Queen (1989) 2 WAR 60 McLean v The Queen [1999] WASCA 209 R v Lowndes (1997) 95 A Crim R 516 R v Swain (1989) 41 A Crim R 214 Ward v The Queen, unreported; CCA SCt of WA; Library No 980098; 5 March 1998 Williams v The Queen, unreported; CCA SCt of WA; Library No 980146; 3 April 1998 Wongawol v The Queen, unreported; CCA SCt of WA; Library No 980233; 4 May 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SCRUTTON -v- THE QUEEN [2000] WASCA 360 CORAM : KENNEDY J
- WALLWORK J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Applicant convicted on four counts of unlawfully and indecently dealing with a male child under the age of 14 - Prior convictions for indecent dealing with children - Sentence of 2 years' imprisonment on each count to be served concurrently but cumulatively upon other sentences then being served - Previous sentences subject to order for parole - Sentencing Judge's refusal to order eligibility for parole - No basis for interference with discretion
Legislation:
Sentencing Act 1995, s 89
(Page 2)
Result:
Leave to appeal against sentence granted
Appeal dismissed
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr K P Bates
Solicitors:
Applicant : Taylor Smart
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
Thompson v The Queen (1992) 8 WAR 387
Case(s) also cited:
Armstrong v The Queen, unreported; CCA SCt of WA; Library No 980231; 21 April 1998
Cardillo v Taylor [1999] WASCA 166
Garlett v The Queen [2000] WASCA 72
Histon v The Queen, unreported; CCA SCt of WA; Library No 970197; 1 May 1997
Howell v The Queen (1989) 2 WAR 60
McLean v The Queen [1999] WASCA 209
R v Lowndes (1997) 95 A Crim R 516
R v Swain (1989) 41 A Crim R 214
Ward v The Queen, unreported; CCA SCt of WA; Library No 980098; 5 March 1998
Williams v The Queen, unreported; CCA SCt of WA; Library No 980146; 3 April 1998
Wongawol v The Queen, unreported; CCA SCt of WA; Library No 980233; 4 May 1998
(Page 3)
1 KENNEDY J: On 20 September 1999, the applicant was presented in the District Court on five counts of unlawfully and indecently dealing with a male child under the age of 14 years. The jury returned verdicts of guilty in respect of four of those counts which charged offences said to have been committed in the month of November 1982.
2 The material facts were that the complainant was aged eight years at the time of the offences. The applicant was a family friend of the complainant's parents. On the day in question, the applicant was looking after the complainant and, in the course of doing so, took him to a public swimming pool in Balga. The applicant and the complainant entered the pool. The applicant then took the complainant to a corner of the pool and held him there. He put his hand down the front of the complainant's bathers and fondled the child's penis. The applicant then forced the complainant's hand onto his own penis, which was erect. The complainant struggled throughout those incidents, but to no avail, as the applicant was much stronger then he was. The applicant forced the complainant's head under water. The complainant continued to try to get away from the applicant; but he was dragged back by him and again forced to touch the applicant's penis. The applicant then fondled the complainant's penis once again. The offences apparently did not come to the attention of the authorities until 1997.
3 The learned sentencing Judge rightly regarded the crimes as serious, having been committed by a friend of the complainant's family and in gross abuse of the trust which the family had placed in the applicant. He imposed sentences of 2 years' imprisonment on each of the offences of which the applicant was convicted and ordered that they be served concurrently, but cumulatively upon the sentences which he was then serving. His Honour declined to order eligibility for parole.
4 At the time of sentencing for these offences, the applicant was already serving sentences for other sexual offences against children. On 28 May 1998, the applicant had been sentenced after trial by jury to a term of 6 years' imprisonment, with eligibility for parole, for two offences committed on 31 December 1996. The offences were of indecent dealing with a six year old girl, a friend of the applicant's daughter, who had been staying overnight at his house. These offences involved digital penetration and cunnilingus.
5 On 22 September 1998, the applicant pleaded guilty to four counts of indecent dealing with his niece, who was aged between six and seven when the offences were committed in 1990. These offences were
(Page 4)
- constituted by his touching the child's vagina while giving her a piggy-back, exposing his penis to the child in a shed and making her touch his penis, touching her vagina when she was drying herself after having a shower and touching her between her thighs while she was on the applicant's bed. The applicant was sentenced to 18 months' imprisonment on each of these counts, to be served concurrently. The learned sentencing Judge, in fixing these terms, had regard to the earlier sentences upon which they were directed to be served cumulatively. The applicant was made eligible for parole in relation to these sentences.
6 The learned sentencing Judge noted that a specialist report from the Sex Offender Treatment Unit, prepared in September 1998, stated that, in respect of the four offences committed in 1990, the applicant accepted full responsibility, and he further acknowledged having sexually abused his niece over a three month period. He was said to have presented to the Sex Offender Treatment Unit as a co-operative and open person who was prepared to discuss his extensive history of sexual deviance. He also appeared genuinely committed to engaging in treatment to understand, and to change, his behaviour. However, his deviant behaviour in the past reflected a pattern of behaviour of increasing severity.
7 Although the report noted that the applicant had arrived at a position where he was able to speak openly about a range of deviant interests and activities which had spanned much of his adolescent and adult life, his insight regarding his behaviour and overt indications of empathy for his victims were said to be minimal, and it was made clear that these matters would be required to be addressed in the course of treatment. Without the benefit of his effective participation in a specialised treatment option, he was assessed as presenting a high risk of re-offending. Notwithstanding this, he was said to present the appearance of a person who had reached a stage where he was prepared to relinquish his former behaviour and to seek help to do so. His acceptance of responsibility and openness were claimed to auger well for an effective therapeutic outcome. This report, it should be emphasised, was prepared prior to the applicant's trial on the charges with which we are concerned. It followed the applicant's pleading guilty to the second group of charges after his trial on the first group.
8 The learned sentencing Judge was conscious of the fact that the crimes in respect of which the applicant was to be sentenced had been committed in 1982. So far as these offences were concerned, there appeared to be no remorse on his part, and the assessment of his co-operation and openness, which no doubt weighed heavily with the Sex Offender Treatment Unit in the preparation of the 1998 report, could not
(Page 5)
- be said to be relevant having regard to his defence of the charges dealt with by the sentencing Judge. His Honour made it quite clear in this context that he was not punishing the applicant for exercising his right as an ordinary citizen to defend the charges brought against him, but, it was indicated, his attitude did bear upon the question of whether he demonstrated any remorse at this time, which, in his Honour's opinion, he did not, and whether he had benefited, and would benefit, from further therapeutic treatment. His Honour concluded that it could not be said that he would benefit from further rehabilitation.
9 Although the offences had occurred many years before, the delay in bringing charges was not mitigatory in nature. That delay would have a bearing only if, in the meantime, the applicant had rehabilitated himself to such a degree that it would not be in the best interests of the community that he should serve a long term of imprisonment. He has not done so, and he has in fact committed further offences against young children.
10 The effect of the applicant's conduct with respect to the complainant, as described in the victim impact statement, has been quite devastating. The complainant has been left with a sense of guilt, albeit misplaced, not only for having been subjected to the experience which he endured, but also because he feels that, by not reporting the matter earlier, he has allowed the applicant to prey on two other victims.
11 The learned sentencing Judge made a most careful examination of the considerable material before him in relation to the applicant and noted that, if parole were to be refused for the present offences, the applicant was nevertheless eligible for the maximum period of 2 years' parole arising out of his prior sentences. He will accordingly have the benefit of supervision on his release into the general community. To order eligibility for parole in this case would have had the effect only of reducing the period he would be required to spend in custody without adding to the parole period and with no benefit to the community in terms of his rehabilitation, although at the same time his Honour recognised the fact that parole may serve to mitigate punishment as well as providing an opportunity for rehabilitation. He rejected the submission on behalf of the applicant that a refusal to make an order for eligibility for parole would be detrimental and counterproductive to him and would raise the risk of giving him an institutionalised mentality.
12 It has long been accepted in this State, and, indeed, it was accepted by counsel for the applicant, that the discretion to grant an order for eligibility for parole cannot be triggered unless there is something which
(Page 6)
- points positively towards the appropriateness of parole - see Thompson v The Queen (1992) 8 WAR 387, at 395 - 196. This conclusion derives from the history of parole legislation in this State. Although the High Court in Lowndes v The Queen (1999) 195 CLR 665, at 669, questioned the meaning of a passage in Thompson v The Queen at 395 in which, it was said, after recognising that the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something which points positively towards the appropriateness of parole, went on the say that, nonetheless, the philosophy of the Act suggested a bias towards eligibility, the need for a trigger for granting parole has not been doubted. Lowndes v The Queen was decided under s 37A of the Offenders Community Corrections Act 1963, whilst the applicant's eligibility for parole fell for determination under s 89 of the Sentencing Act 1995. There is, however, no material distinction between the two sections for the present purposes.
13 In the circumstances, I am unable to conclude that the learned sentencing Judge erred in taking the course of declining to grant parole, being unable, as he said, to find anything positive which pointed towards his eligibility for parole. This exercise of his Honour's discretion, at the conclusion of a trial at which he presided, should not, in my opinion, be interfered with - see Lowndes v The Queen at 671 - 672.
14 While I would grant the applicant leave to appeal against his sentences, I would dismiss his appeal.
15 WALLWORK J: I agree with the reasons for judgment and the orders proposed by Kennedy J.
16 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Kennedy J, with which I agree. I too would grant leave to appeal, but would dismiss the appeal.
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