Sullivan v Tasmania
[2017] TASCCA 5
•27 March 2017
[2017] TASCCA 5
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Sullivan v Tasmania [2017] TASCCA 5
PARTIES: SULLIVAN, Lawrence Bernard
v
STATE OF TASMANIA
FILE NO: 1330/2016
DELIVERED ON: 27 March 2017
DELIVERED AT: Hobart
HEARING DATE: 28 February 2017
JUDGMENT OF: Estcourt J, Slicer and Porter AJJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate in all circumstances – Maintaining a sexual relationship – Abduction – Exposing a young person to indecent material – Sentence not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: K Baumeler
Respondent: M Wilson
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 5
Number of paragraphs: 38
Serial No 5/2017
File No 1330/2016
LAWRENCE BERNARD SULLIVAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
SLICER AJ
PORTER AJ
27 March 2017
Order of the Court
Appeal dismissed.
Serial No 5/2017
File No 1330/2016
LAWRENCE BERNARD SULLIVAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
27 March 2017
I have had the advantage of reading the reasons for judgment of both Slicer and Porter AJJ. I generally agree with those reasons and I would also dismiss the appeal.
File No 1330/2016
LAWRENCE BERNARD SULLIVAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER AJ
27 March 2017
The appellant seeks review of a sentence of six years and six months' imprisonment following his conviction for:
•two counts of maintaining a sexual relationship with a young person contrary to s 125A of the Criminal Code (the Code), those counts related to two complainants, W and B;
•one count of abduction of a young person under the age of 17 years contrary to s 189 of the Code;
• one count of exposing a young person to indecent material contrary to the Code, s 125D(3);
•one charge of possession of a controlled plant contrary to s 25 of the Misuse of Drugs Act 2001;
• one charge of possession of a controlled drug contrary to s 23 of the Misuse of Drugs Act.
Following a plea and trial a single sentence was imposed on 3 May 2016 with respect to the above crimes and offences.
The sole ground of the appeal is that the sentence was manifestly excessive in all the circumstances.
The appellant had previous convictions for miscellaneous traffic offences but of some significance are two acts of antisocial conduct for reckless throwing of a missile and destruction of property. A third crime of arson was referred to by the learned sentencing judge as part of her general summation of the appellant's history, but since it had been committed some time after the events it played no part in her determination.
The most serious crimes involved W, a young male who was born in 1988, and the sexual misconduct occurred between 1 December 2003 and 30 June 2005. The victim was aged 15 when the sexual relationship with the appellant commenced. That conduct continued until the complainant W reached the age of 17 years, at which time the conduct became lawful. The act of abduction occurred on 15 May 2004 when the complainant W was aged 15 years. The appellant was some 20 years older than W.
Same-sex misconduct ought be treated in the same manner as heterosexual misconduct. Consent by a person under age does not ameliorate that misconduct. The law provides for the protection of young persons at a time when they are vulnerable and seeking their own identity. In the case of W, as the learned judge observed, he had rebelled at school and had made parental control extremely difficult. Whilst no threats or physical force were involved, the appellant had provided W with items of clothing, cigarettes, marijuana and the like. The appellant also paid for the two to travel interstate on various occasions.
The sexual misconduct involved oral and anal acts, and mutual masturbation. There can be no doubt but that the psychological state of the complainant W was one of confusion and turmoil. An occasion was identified when the W left a suicide note which eventually led to police involvement and admission to the psychiatric ward of the Royal Hobart Hospital. One of the occasions of misconduct involved an act of mutual masturbation between the appellant and W during a visit to the ward.
The learned sentencing judge found that the sexual misconduct continued during the course of the relationship, such finding being consistent with the evidence given at a preliminary hearing and at trial as accepted by the jury. The relationship had been nurtured by the appellant, and although there had been no force or threats, the misconduct could be characterised as one of seduction or, at least, initiation of the relationship.
An important factor in the determination of sentence was that the appellant continued with the relationship with W against the wishes of W's parents. In his victim impact statement W states:
"Lawrence encouraged me to go against my parent's wishes when it came to seeing him. I would often leave home and my parents would have no idea where I was. This hurt my parents a lot, the stress and worry that I put them through was unfair on them. I made bad decisions, but I was also influenced by Lawrence … .
I essentially missed out on an education from year 9 and 10 I was constantly skipping school. Lawrence would sometimes encourage me to skip school and spend the day with him when he wasn't working".
His summation is apposite, namely that a 15 year old is simply not capable of always making informed decisions. Whilst he had begun to define his sexuality from the age of 12, W was still exploited by an adult at a time when he was at a maturation stage requiring engagement with his peers rather than the complexity and impressionability caused by an adult many years his senior.
The relationship with B was of a different nature. The two had communicated through Facebook when he was aged 14 and the appellant 44. The first sexual contact had occurred in mid-January 2012 when the appellant offered to assist B with a debt in return for sexual contact. The evidence suggests that B had told the appellant that he had bisexual inclinations. The relationship continued for about 11 months. The usual course was that the complainant B would contact the appellant when he needed items or money, and would perform sexual acts in return. While those acts were confined to ones of hugging and kissing whilst naked, three acts of misconduct were identified and a further four were asserted, but not specified. The count involving indecent material was the sending of a photo of an erect penis to B on 16 August 2012.
B did not provide a victim impact statement.
The remaining charges related to drug offences and did not impact on the overall sentence imposed.
The appropriate penalty in cases such as this is difficult, but regard should be had to future deterrence and the general interests of the community. In her publication, Sentencing in Tasmania, 2nd ed, The Federation Press 2002, Professor Warner, at 11.436, shows a range of sentences between three months and eight years' imprisonment
Composite sentence
The history of these proceedings is complex. The original indictment was filed on 20 December 2013 comprising nine counts alleging sexual misconduct involving four complainants W, B and two other persons. On 17 February 2016 a further indictment was laid providing two counts, but effectively repeating the original allegation involving W. Two complaints alleging the drug-related offences said to have occurred on 15 February 2013 were referred to the Criminal Court for sentence. There had obviously been discussions between the prosecution and defence, resulting in an agreed course of action. An application for severance was withdrawn on 16 February 2016. Pleas of guilty to counts 7 and 8 were entered on the same day, and a trial of the remaining counts commenced on the same day. W was a witness at trial and cross-examined on the basis that the impropriety had not occurred. Before or following the verdict the defence did not seek to have B called as a witness, and the appellant either changed or indicated that he would plead guilty in relation to the allegation involving B.
The sentencing hearing was conducted on 23 March and continued on 18 April 2016.
The learned sentencing judge received and considered various reports setting out the medical condition and rehabilitation of the offender, and a victim impact statement from W. No such statement was provided by B.
Her Honour was faced with a difficult task. The appellant could not contend that he had entered an early plea, or that he had spared the complainant W the ordeal of trial. In relation to B, he could rely on the benefit of a late plea. One of the complainants had provided an adverse victim impact statement whilst the other had failed to do so.
The misconduct with W was more serious and prolonged than that with B. In turn, the misconduct with B, although different, was, in effect, an exchange of sexual favours for pecuniary gain. Both cases involved sexual impropriety with boys aged 14 to 15 years. The parents of W had requested the appellant to cease his relationship with their son, to no avail. They had not given permission to the appellant to take their son on interstate journeys. Initial contact with B had been made through the internet and was relevant to the sentencing process. W was a troubled youth and more vulnerable to manipulation. B appeared to be more "street wise".
The drug-related cases were of little import except that they supported the conclusion that marijuana had played a role of inducement and enhancement of sexual gratification.
Within that melange it was appropriate for the learned sentencing judge to impose a composite sentence.
Appellate review
Counsel for the appellant, understandably, raised the difficulty in assailing the sentence as a whole. It is appropriate for this Court to consider the components in order to assess the totality of the composite sentence in relation to the claim that it was manifestly excessive.
Had the appellant been sentenced in relation to B alone, his misconduct would have warranted a term of imprisonment. The appellant had made contact on the internet. The appellant had initiated low-level sexual contact soon after their meeting. The appellant initiated a conversation about B's sexuality. The relationship continued for a period of 11 months and involved three identified occasions of misconduct and another four asserted but not specified. Lack of specific undated occasions is quite often found in cases of this nature. The sexual contact was initiated after the appellant had learnt that B had accumulated debts. On each occasion the appellant provided the B with money and cigarettes. The relationship was more one of financial gain for sexual contact than mature casual sex episodes. Age disparity and financial gain themselves warranted a sentence of imprisonment. The appellant was only entitled to a very late plea and that factor could be seen as acceptance of the inevitable (Director of Public Prosecutions v STU [2012] TASCCA 721, Tas R 322). There was little, if any, expression of remorse. The conduct involving B was not isolated to one person, and the learned sentencing judge was entitled to have regard to the fact that this was not an isolated act of misconduct. Consistent with the observations stated in Director of Public Prosecutions v CBF [2016] TASCCA 1, any identified range or "tariff" is but one relevant factor. The misconduct, especially with its financial connection, would warrant a term of imprisonment of two to three years.
The case involving W, given the circumstances already stated, would warrant a higher penalty, especially given that W was subject to cross-examination, and result in a longer term of imprisonment of between three to four years.
The composite sentence reflected both of those potential sentences.
There is a further basis for assessing whether the sentence was manifestly excessive. The sentencing process involves an estimate of judgment and evaluation, and if properly imposed ought not be disturbed on appeal merely because an appellate court might have reached a different result (Dinsdale v The Queen [2000] HCA 54, 202 CLR 321; Hili v The Queen [2010] HCA 45, 242 CLR 520). The principles can be examined in a different manner. Had the appellant been sentenced to a five-year term of imprisonment, a prosecution appeal might well have failed because of different principles and regard for the discretionary exercise of judicial power.
During the course of submissions during the appeal, counsel for the respondent suggested that this Court might consider the development of appropriate sentences for sexual crimes against children, and raised the question of how judicial officers should react to public interest or expectations, and in what manner they should inform themselves of those expectations. In doing so, she referred to the statements and conclusions provided by the Sentencing Tribunal in its report, Sex Offence Final Report, Sentencing Advisory Council (Tas), August 2015. The Court recognises the results of the Warner study which might attract further consideration, but this case is not an appropriate vehicle for any such consideration.
I would dismiss the appeal.
File No 1330/2016
LAWRENCE BERNARD SULLIVAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
27 March 2017
I generally agree with the reasons for judgment of Slicer AJ and I would also dismiss the appeal. I want to make some further remarks about the nature of the appellant's offending, and about the consequences in terms of the approach to sentence.
The appellant met W through a mutual friend; a youth the same age as W. The first sexual activity took place in the following circumstances. The appellant was to obtain concert tickets for W and his friend. The appellant drove a considerable distance from his home to near to where W lived in order to give the tickets to him. When he arrived at the meeting place, the appellant said that he had forgotten the tickets, and that they would have to go back to his home to get them. Just after going inside, the appellant started kissing W. There was hugging and mutual masturbation, and things progressed from there to anal intercourse. The crime of maintaining a sexual relationship with W was made out on the basis of him committing acts of sexual intercourse with a young person in the form of anal intercourse on two specified occasions, with the appellant penetrating the complainant, and one specified act of mutual masturbation on a separate occasion.
In addition, W's evidence was that he stayed at the appellant's home about once a week from the start of the relationship, with that frequency increasing to three to four times a week in 2005. He slept in the appellant's bed. He said that anal intercourse had happened on five or six further occasions that were not specified, and that the majority of the sexual activity during the course of the relationship was mutual masturbation and oral sex performed by each on the other.
The appellant met B in person after communicating with him through Facebook. After two conversations, the appellant asked him about his sexuality. After B said that he was bisexual, the appellant expressed interest in meeting B, and offered to buy him flowers and "to shower him with gifts". After some meetings, the appellant invited B to his home. The crime of maintaining a sexual relationship with B was made out on the basis of three specified acts of hugging and kissing while naked. In addition, the sentencing judge was told that there were four further such incidents, but they were not specified.
In passing sentence, after dealing with the steps taken by the appellant towards his rehabilitation after his release from prison, and the effects of further imprisonment on him, the sentencing judge said:
"Within the context of the crimes of maintaining a sexual relationship with a young person you committed a number of individual offences including two counts of sexual assault with a young person and seven counts of indecent assault. These are serious crimes in themselves. You knew both the boys you dealt with were underage and apparently gave little thought to the impact your involvement with them might have. The crimes you are to be sentenced for were created to protect young people from sexual advances by adults in circumstances where those young people did not have the maturity to make sensible decisions."
Section 125A of the Criminal Code makes an accused person guilty of the offence of maintaining a sexual relationship with a young person if the accused committed an unlawful sexual act in relation to the young person on at least three occasions. In Director of Public Prosecutions v M [2005] TASSC 14 at [38], Evans J, with whom Blow J (as he then was) agreed, said:
"… A person convicted of three unlawful sexual acts should ordinarily suffer the same penalty whether they are the basis of a charge of maintaining a sexual relationship or are charged separately. However, whilst it is possible to identify every unlawful sexual act that is the subject of a person's conviction for maintaining a sexual relationship where particulars of the same have been provided, in most cases this is not so. Particulars of this nature are rarely provided before a plea of guilty is taken. In result, it is often not possible for the sentencing judge to do more than sentence on the basis of a very general estimate of the number of sexual acts involved in excess of the requisite three. In these circumstances, it is unreal to endeavour to compare the sentence imposed on a charge of maintaining a sexual relationship with the sentence that would have been imposed had the prosecution been able to identify every one of the offender's unlawful sexual acts and obtain separate convictions for the same. Where the number of sexual acts in excess of three is vague, the sentencing exercise is much the same as that which is undertaken where an offender is convicted of a number of crimes involving specific unlawful sexual acts and the evidence warrants the sentencing judge in taking into account, as a surrounding circumstance, the fact that the crimes were committed as part of a sustained course of sexual abuse. …".
In this case, in relation to W, the number of unlawful sexual acts in the form of sexual intercourse with a young person, other than those specified, was not vague although the number was imprecise; five or six. The number of unlawful sexual acts in the form of other unlawful acts was vague, but the evidence established a regular ongoing sexual relationship involving the offences of sexual intercourse with a young person in the form of oral sex (see Director of Public Prosecutions v TGW [2017] TASCCA 1), and indecent assault. In relation to B, the number of unlawful sexual acts in excess of three was not vague, nor imprecise.
The composite sentence imposed on the appellant has to be looked at in that light, bearing in mind that it also encompassed the separate counts of abduction in relation to W, and exposing a young person to indecent material, in the case of B. At the same time however, it must be acknowledged that those counts were, in reality, aspects of the sexual relationships. The sentence imposed also has to be looked at in the light of several significant aggravating features. They include:
· The age disparity – 20 years in W's case; 30 years in B's case.
· In W's case, the intensity and length of the relationship.
· All of the acts of sexual intercourse with W were unprotected, and the appellant tested positive for chlamydia during the course of the relationship, although W did not.
· In W's case, the appellant's undermining of parental authority by going against the express requests of W's parents for the appellant to keep away from their son.
· In W's case, the specified act of mutual masturbation that took place in the shower bay of the psychiatric unit room to which W had been taken by police after being removed from the Tasman Bridge in the course of an apparent suicide attempt, immediately before which W had given the appellant a suicide note.
· In B's case, the way in which the sexual relationship developed had a predatory aspect to it. In W's case, there was evidence upon which a tribunal of fact could be satisfied that W had been lured to the appellant's home by a ruse.
· In B's case, the fact that the appellant offered, and B negotiated for, money or goods in return for the incidents of intimate contact.
It is extremely difficult to establish a sentencing range for the crime of maintaining a sexual relationship with a person under 17 years of age, and it is accordingly difficult to sustain a ground of appeal which contends that a sentence is manifestly excessive: Director of Public Prosecutions v STU [2012] TASCCA 7, 21 Tas R 322. Even if this sentence were to be outside any established range for comparable offending, that fact is not determinative, as a sentence outside that range simply serves to increase the level of scrutiny, in order to determine whether it is a disproportionate and unreasonable response to the circumstances of the case: Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1. In any event, I have given this matter close consideration. Taking into account the little that can be said in the appellant's favour, I am not persuaded that the sentence is such that it demonstrates an error in the sentencing process. I am not satisfied that it is manifestly excessive.
0
6
0