TAB v Moore

[2017] TASSC 65

[2017] TASSC 65

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 TAB v Moore [2017] TASSC 65

PARTIES:  TAB
  v
  MOORE, Luke

FILE NO:  2638/2017
DELIVERED ON:  10 November 2017
DELIVERED AT:  Launceston
HEARING DATE:  8 November 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentence – Indecent assault of six year old female by adult male with moderate intellectual disability – Sentence of three months' imprisonment with six weeks suspended not manifestly excessive.

Criminal Code (Tas), s 127(1).
Aust Dig Magistrates [1349]

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Intellectually handicapped offender.

Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1, applied.
Aust Dig Criminal Law [3265]

REPRESENTATION:

Counsel:
             Applicant:  J Ker
             Respondent:  S Thompson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2017] TASSC 65
Number of paragraphs:  23

Serial No 65/2017

File No 2638/2017

TAB v LUKE MOORE

REASONS FOR JUDGMENT  PEARCE J

10 November 2017

1. The applicant moves to review a sentence imposed by a magistrate, Mr S Brown. The applicant was charged on complaint with two counts of indecent assault. Each count concerned a different complainant. The applicant elected to be tried summarily. The complaint was heard by the magistrate who, for reasons given on 20 July 2017, found one count proved. The other count was dismissed. On 24 August 2017 the applicant was sentenced to imprisonment for three months, six weeks of which were suspended for 18 months, subject to the condition imposed by the Sentencing Act 1997, s 24(1), that the applicant does not commit another offence punishable by imprisonment during the period the order is in force. An order was made under the Community Protection (Offender Reporting) Act 2005 that the applicant's name be placed on the register and that he comply with the reporting obligations under that Act for five years from his release.

2. The sole ground of the motion is that the sentence is manifestly excessive. The applicant does not contend that a sentence of imprisonment of the term imposed was, of itself, manifestly excessive. The issue central to the outcome of the motion is whether the learned sentencing magistrate erred by requiring the applicant to immediately serve some of the sentence, rather than wholly suspending it. For the reasons which follow, I am not satisfied that the failure to suspend all of the term made the sentence manifestly excessive. The motion must therefore be dismissed.

3. The facts on which sentence was imposed emerge from the magistrate's sentencing remarks. They are to be read with his Honour's findings after the hearing. At the time of the offence the applicant was aged 26. For a period of about four to six months leading up to about 13 December 2014 he lived with his cousin, who I will call S, her two children and her partner at their house in George Town in northern Tasmania. The victim of the indecent assault is S's daughter, who was then aged six. The applicant came to be living in the house at S's invitation after he agreed to give up his own nearby residence so it could be used by S's friend, who needed accommodation for herself and her young children.

4. The offence was committed during the period leading up to 13 December 2014. At that time it was S's custom to attend a game of bingo each Wednesday night. While she was out she left the children at home with her partner and the applicant. On one such occasion, while the complainant was sitting on the couch in the lounge room of the home with the applicant, he put his hand inside her underpants and unlawfully and indecently touched her vagina. Although S's partner was also present, likely in the same room, he did not notice what had happened, partly because he was facing away with his attention completely devoted to an electronic game. The offending was discovered when S's friend, the same friend the applicant had allowed to live in his house, heard her daughter and the complainant talking about what the applicant had done. She told S. The police were notified and the complainant was interviewed.

5. Indecent assault is a crime: the Criminal Code, s 127(1). The maximum sentence provided for by the Code, s 389(3), imprisonment for 21 years, gives little guidance to a sentencing court for a crime of this nature. The crime is triable summarily at the election of an accused: Justices Act 1959, s 72(1)(a) and Pt I of Sch 3. The Sentencing Act, s 13, provides that the maximum term of imprisonment that a court of petty sessions may impose on an offender convicted of a crime that is triable summarily is 12 months for a first offence, or five years for a second or subsequent offence. Because the applicant had elected summary trial, and it was his first offence, the maximum term of imprisonment for 12 months applied to him.

6. There were a number of aspects of the applicant's offence which made it serious. The gravity of child sex offending is repeatedly emphasised by the courts and the community. Factors which weigh in favour of a strong sentence include general deterrence, denunciation, vindication of the victim and protection of the public. In this case the assault was committed by an adult male against a very young child. It occurred in what should have been the safety and security of the complainant's own home. The applicant breached the trust placed in him by the child and the child's mother and family. By virtue of the complainant's age, and the relationship between them, the applicant was in a position of physical and emotional control over her. Sexual abuse of a child by a person permitted to live in the family home, albeit by invitation, involves a high degree of moral culpability. A factor impacting on the gravity of sexual offences against children is the potential for harm the offending may cause. The prohibition on sexual acts with children is founded on the presumption of harm, with long term profound and deleterious physical and psychological effects upon victims. There was little material before the sentencing magistrate about the impact of this offence on the complainant. No victim impact statement was provided. It is, however, commonly the case that the effects of such crimes emerge over time. The applicant was not entitled to the mitigation a plea of guilty would have attracted, especially in cases such as this. The complainant was required to prepare for a hearing and publicly recount what had happened to her. There was no evidence of remorse.

7. The evidence before the magistrate suggested that the offence of which the applicant was found guilty was not the only occasion on which such conduct had occurred. The applicant was also charged with indecently assaulting the daughter of S's friend, a girl of similar age. He was acquitted of that charge. The occasions which are the subject of the charges which were not proved should be ignored. However, the account given by the complainant and the other girl tended to show that similar conduct had taken place on other occasions which they were, because of their ages, unable to describe with sufficient particularity as to justify criminal charges. A background of uncharged similar offending is not an aggravating factor. The applicant was not to be sentenced for other uncharged criminal conduct. The magistrate did not do so. However, in his sentencing comments, the magistrate said he could not find that the proved offence was "an entirely isolated one". In light of the findings his Honour made for finding the charge proved, counsel for the applicant did not argue otherwise. The result was that applicant was not entitled to the mitigation which would have arisen had it been agreed or established that this was an isolated occurrence: JCS v Tasmania [2014] TASCCA 6 at [38] and following.

8. There were some factors in the applicant's favour. The assault was not a prolonged one. It was not accompanied by overt physical violence. The applicant had no prior convictions and had not re-offended. Subject to the qualification that the magistrate was not satisfied that this was an isolated incident, the applicant was otherwise of good character. There was some level of co-operation with the police. The applicant claimed some mitigation from delay. The issue of delay was considered by the Court of Criminal Appeal in Williams v Tasmania [2014] TASCCA 2. The court applied the law as stated in Prehn v The Queen [2003] TASSC 55. Delay between commission of an offence and final disposition of a case is not per se mitigating. However if a prosecution is too slow it can be unfair on the accused, particularly if there is evidence of rehabilitation demonstrated in the meantime. Delay before the bringing of charges is generally of greater weight. In this case the applicant was spoken to by the police on two occasions in 2015. For a reason not explained, he was not charged until April 2016. The delay before and after he was charged is not attributable to him. However the length of the delay is not such as to make it a significant sentencing factor. To the extent it is material, the delay between the offending conduct and disposition of the charges demonstrated that he had not re-offended, thereby indicating less need for specific deterrence and protection of the public.

9. It was also submitted on the applicant's behalf that the order made under the Community Protection (Offender Reporting) Act 2005 had some punitive effect, although the primary purpose of the legislation is protective. Reference was made to the comment of Porter J in Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [45]. The relevance of such an order to sentence as a form of extra curial punishment was fully considered by the Court of Criminal Appeal in Mulholland v Tasmania [2017] TASCCA 2 at [24]-[32]. The applicant also submitted that the order went some way to satisfying the sentencing objectives of personal deterrence and protection of the public, thereby reducing the need for actual imprisonment. In my assessment, it is not a factor of particular weight in the circumstances of this case.

10. The applicant's principal contention is that factors personal to him indicate that the magistrate erred by imposing a sentence which required the applicant to immediately serve some of it. The factor of primary importance is the applicant's reduced intellectual capacity.

11. Before proceeding to sentence, the magistrate heard submissions from the applicant's counsel and was given two reports. The first report was a pre-sentence report prepared by an officer of Community Corrections. The second report was prepared by a Community Forensic Mental Health Services court liaison officer. It was not suggested that the applicant suffered from mental illness. He did not abuse alcohol or drugs. However, his counsel, and both reports, described the applicant as being of low intellect. He struggled at school. Although he completed school to year 10 he did so "outside mainstream classes". He had no formal qualifications and had never held paid employment. He obtained support from his family and in the community, including from an advocacy service. At the time of sentence he was living with his mother and sister in north-west Tasmania. From 2005 he received a disability benefit. More recently he had been allocated a support worker through the National Disability Insurance Scheme to assist with his "independent living skills" and "integration into the community". He engaged in social and community activities. 

12. The pre-sentence report recited that the applicant presented as a person with "low intellect". The author of the report interviewed the applicant's aunt who described the applicant as having "a very low level of literacy, poor memory and … the comprehension of a 13 year old". The risk of sexual recidivism posed by the applicant was assessed by reference to a formal assessment guide and identified as being in the "low range".  The applicant's "risk/needs" were assessed using a different assessment method, and identified the applicant as "having a low level of risk/needs". A period of supervision was considered unnecessary.

13. The Community Forensic Mental Health Services court liaison officer inspected documents submitted to Centrelink by the applicant in 2005 in support of his application for a disability support pension. He reported the material as describing a diagnosis of "hyperactivity disorder and intellectual disability". One medical report recited that at age 16 the applicant's "full scale IQ" was assessed as between 50 and 69, placing him in the "moderate/mild range of intellectual disability". The court liaison officer, in his report given to the magistrate, made observations about the applicant's presentation during the interview he conducted on 11 August 2017. He reported that the applicant "does not display any signs or symptoms of perceptual irregularities, thought process or thought content", but did "display signs and symptoms associated with intellectual disability". No other formal tests of cognition were undertaken. The court liaison officer suggested a full psychiatric report but no such report was prepared for, or at the request of, the magistrate.

14. The relevance of impaired mental functioning to the sentencing process is authoritatively established by the Court of Criminal Appeal in Director of Public Prosecutions (Acting) v CBF (above). The principles are stated by Porter J at [36]-[39]. There is no need to repeat them. In this case, the question distills to whether result of the material before the magistrate about the applicant's intellectual disability, considered with all factors relevant to sentence, mandated a sentence falling short of actual imprisonment.

15. Counsel for the applicant submitted that the applicant's intellectual disability moderated the need for general and specific deterrence, and that he was a person on whom a sentence of imprisonment will weigh more heavily. As to that latter factor, there was no material before the magistrate which directly supported the contention. It may be that, in light of the nature of the applicant's intellectual disability, it can be inferred that prison will be more difficult for him, but I do not think it is a factor of much weight. It could not be contended that imprisonment will adversely affect a lifelong intellectual disability.

16. It was conceded by the applicant that the magistrate correctly imposed sentence on the basis that the applicant appreciated that his conduct was wrong. There was material which indicated that he had little insight into the possible consequences of his conduct. However, it was not contended that his low intellect reduced his moral culpability, as opposed to his legal responsibility, to any substantial effect. Before this Court, submissions were made about whether the applicant was sentenced on the factual basis that he had attempted to avoid discovery and disclosure by telling the complainant to keep secret what he had done. The complainant gave evidence at the hearing. By then she was nine years old. She was asked whether the applicant said anything to her when he touched her on the "rude part". She answered that he said, "Don't tell anyone." She was then asked "… can you just explain to us why you didn't tell [S's partner]." She answered, "Because [the applicant] was covering my mouth with his hand and I couldn't talk." When finding the complaint proved the magistrate found that, although the complainant's evidence was not sworn, she was an honest and reliable witness. His Honour found that her evidence about the charged conduct was supported by her complaint and her evidence about incidental facts was corroborated by other evidence.

17. At the hearing before the magistrate the applicant did not give or adduce evidence. However the magistrate was entitled to take into account his observations and impressions of the applicant from evidence of the audio visual recordings of interviews conducted by the police with the applicant on 7 January 2015 and 2 September 2015. In his sentencing remarks the magistrate said this about the applicant:

    "He is obviously significantly impaired in terms of his social and intellectual functioning and probably operating at a level far less mature than one would expect of a 26 year old adult male. Nevertheless, it is also plain to me from the interviews which the defendant did that, whilst he is clearly an unsophisticated individual, that he is also one who very plainly understood that the things that were said to him that he had done, the allegations put to him, he knew well that they were things that he should not have done and I am satisfied that that was clearly his state of mind when they were committed."

18. Later in his remarks the magistrate continued:

    "It is put to me that the defendant's moral culpability in relation to these matters needs to be judged in accordance with the nature of him individually and that as I have indicated he cannot be viewed – I suppose should not be viewed – as … an ordinary 26 year old [of] ordinary maturity and ability. I accept that's the case but I repeat what I said earlier, that he was nevertheless an adult and plainly knew that he should not do what he did and of course the furtive nature of the incident in question shows that it was opportunistic and therefore one which he plainly tried to hide, as it were, which bespeaks knowledge that what he was doing was wrong and that he should not have done the thing he did."

19. In my assessment, the magistrate's reference to the "furtive nature" of the incident, and that the incident was one the applicant "tried to hide", were references to the complainant's evidence that the applicant had covered her mouth and then told her, "Don't tell anyone." Those were findings which increased the level of the applicant's criminal culpability. Even if that conclusion is wrong, it would not affect the outcome of the motion. Absent those facts, the offence remains a very serious one.

20. The magistrate's sentencing remarks reveal that his Honour was well aware of the difficult balancing exercise involved in sentencing. He was faced with fashioning a sentence which reflected the various sentencing objectives, some of which pulled in conflicting directions. On one hand, the sentence was to have regard to the applicant's intellectual disability, the assessment of low of risk re-offending, the punitive effect of the reporting order and the absence of prior convictions. Conversely, the objective seriousness of this offence required emphasis on protection of young and vulnerable victims, general deterrence, denunciation and condemnation. The magistrate accepted the submission that "to a degree" the applicant is "not a good vehicle for general deterrence", and that general deterrence should play "a less prominent role". Nevertheless, his Honour found that general deterrence still had "some role". In my view, specific deterrence was plainly still a relevant factor. The applicant's understanding of the wrongfulness of conduct of this nature meant that there remained a need for punishment and denunciation.

21. Although no complaint was made about the length of the sentence, it is not manifestly excessive. The seriousness of the offence demanded a sentence of imprisonment and the length of the term is within the range of sentences open to the magistrate. The submission that there were other sentencing options open to the magistrate, short of actual imprisonment, may be accepted. The sentence could have been wholly suspended. Suspension of the sentence may have been coupled with a condition requiring performance of community service. However, to succeed in this motion, the applicant must demonstrate that the sentence is manifestly excessive. The question is not whether this Court would have imposed a different sentence: Tanner v Brown [2011] TASSC 59 at [49]. This Court may not substitute its own opinion for that of the sentencing magistrate: M v Hibble [2003] TASSC 13 at [14]; Whittle v McIntyre [1967] Tas SR (NC 6) 263; Lowndes v The Queen (1999) 195 CLR 665 at [15]. It is not to the point that it was open to the magistrate to sentence the applicant in a different way, or that this Court may have imposed a different sentence. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55, 1 Tas R 234 at [13]; Visser v Smart [1998] TASSC 151.

1. To me, manifest excess is not clearly apparent. Magistrates have a wide sentencing discretion: Allen v Kerr (2009) 19 Tas R 132, (2009) 193 A Crim R 262. Intervention is justified only if it is established that the sentence imposed on the applicant was unreasonable and plainly unjust: House v The King: (1936) 55 CLR 499 at 505. I am not so satisfied.

2. The motion to review is dismissed. The applicant was granted bail while awaiting the outcome of this motion. I will hear counsel as to any consequential orders.