TAP v Tasmania
[2014] TASCCA 5
•14 November 2014
[2014] TASCCA 5
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: TAP v Tasmania [2014] TASCCA 5
PARTIES: P, T A
v
STATE OF TASMANIA
FILE NO: 758/2013
DELIVERED ON: 14 November 2014
DELIVERED AT: Hobart
HEARING DATE: 2 June 2014
JUDGMENT OF: Blow CJ, Porter and Wood JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Generally – Alleged insufficiency of weight given to a sentencing consideration is not of itself a ground of appeal.
Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457; Gorladenchearau v The Queen [2011] VSCA 432, followed.
Aust Dig Criminal Law [3519]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive – Maintaining sexual relationship with young person – Forty unlawful sexual acts over 12 months including 2 anal rapes and 14 oral rapes – Complainant nearly 10 years old and appellant 17½ years old at the start of the period – Appellant 24 years old at time of sentence – Mitigating factors of youthfulness and remorse – Sentence of 6½ years' imprisonment with non-parole period of one-half not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: E Hughes
Respondent: J P Ransom
Solicitors:
Appellant: Rae & Partners
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2014] TASCCA 5
Number of paragraphs: 56
Serial No 5/2014
File No 758/2013
TAP v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
PORTER J
WOOD J
14 November 2014
Order of the Court
Appeal dismissed.
Serial No 5/2014
File No 758/2013
TAP v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
14 November 2014
I have had the advantage of reading the reasons for judgment of Porter J in draft form. I agree that, for the reasons stated by him, this appeal should be dismissed.
File No 758/2013
TAP v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
14 November 2014
Introduction
This is an appeal against sentence. The appellant pleaded guilty before Tennent J to one count of maintaining a sexual relationship with a young person. The appellant was sentenced to 6½ years' imprisonment to take effect from 24 June 2013, and was made ineligible for parole until he had served one-half of that term. In addition, under the Community Protection (Offender Reporting) Act 2005, an order was made that his name be placed on the register, and he is required to comply with the obligations under that Act for a period of six years after his release.
The offence was committed between 15 April 2006 and 30 April 2007; a period of just over a year. Sexual offences were committed on nine separate occasions in that period. The complainant was a girl just over 9 years and 8 months old at the start of the period. The appellant was just over 17 years and 6 months old at that time. To the extent that it might be relevant given the complainant's age, the age difference is 7 years and 10 months. The appellant was 24 years and 9 months old at the time of the sentence. He was not interviewed by police about the matter until 21 May 2012, it apparently not having been reported until shortly before then.
There are two grounds of appeal. The first is that the sentence is manifestly excessive. The second, added at the hearing of the appeal, is that the sentencing judge failed to give sufficient weight to the age of the appellant at the time of the commission of the offences. The appellant does not challenge the order under the Community Protection (Offender Reporting) Act. For reasons which I will explain, I would dismiss the appeal.
The facts
The appellant and the complainant were part of a large family group which included the appellant's parents, his father's brother, and in turn, the brother's wife and family. Of relevance is that the appellant and the complainant were related in the sense that she was part of his paternal uncle's family in law; the complainant was the niece, by marriage, of the appellant's uncle. The extended family group often met for birthday celebrations. They also went to church together. On eight of the occasions the sexual offences were committed in a bedroom at the home of the appellant's paternal uncle. The other incident happened in a small room in the church building.
The sentencing judge was given a document entitled "Particulars of unlawful sexual acts (amended)". A total of 41 sexual crimes was specified for the nine separate occasions. However, the Crown statement of facts, both written and oral, only asserted the commission of 40 crimes. (An indecent assault by licking the complainant's vagina was omitted from the facts asserted in relation to the third occasion.)
The facts were stated by reference to "episodes". In relation to each of the first, second, fourth, fifth and sixth episodes, it was asserted that the appellant had committed five unlawful sexual acts. They were:
· Indecent assault (or indecent act with a young person) by the appellant grabbing the hand of the complainant and placing it on his penis.
· Rape by the appellant inserting his penis into the complainant's mouth.
· Indecent assault by touching the complainant's vagina.
· Indecent assault by licking the complainant's vagina.
· A further rape by the appellant inserting his penis into the complainant's mouth.
The Crown asserted five unlawful sexual acts in relation to the third episode. The essential pattern was the same except that there was no indecent assault by licking the complainant's vagina, but two indecent assaults by touching the complainant's vagina, and, significantly, an anal rape. Episode seven involved the same unlawful sexual acts as episode three, but with the addition of a further indecent assault by licking the complainant's vagina. Episode eight involved an indecent assault (or indecent act) by the appellant placing the complainant's hand on his penis and a rape by inserting his penis into her mouth. That episode was put as the last episode in the period. Episode nine is said to have happened at the church. It involved an indecent assault by touching the vagina, and an oral rape.
As to the age of the appellant at relevant times, I have already noted that the first episode was on 15 April 2006. The fourth episode was on 25 July 2006. The fifth episode was on 21 January 2007, the appellant having turned 18 by then. The remaining four episodes occurred between 15 April 2007 and 30 April 2007.
In relation to the oral rapes, Crown counsel asserted that on each occasion the appellant forced his penis into the complainant's mouth. The sentencing judge was told that as to the first occasion, the complainant said that she wanted it to stop, it was making her sick and that she did not know what was happening. She tried to turn her head away but the appellant grabbed her head harder and pushed his penis into her mouth saying, "harder, harder". As to the oral rape which happened during episode eight, the appellant ejaculated in the complainant's mouth. The anal rapes which happened during the third and eighth episodes resulted in the complainant suffering a lot of pain and anal bleeding.
When summarising the facts and making submissions as to penalty, Crown counsel asserted that the criminal conduct was made up of 25 indecent assaults and 16 rapes, 14 of which were oral and two of which were anal. As I have noted, the total of indecent assaults actually asserted in the facts was 24. As will be seen, the sentencing judge adopted the figure of 25, but I do not see that anything turns on the error.
The sentencing judge was told that in the interview with police, the appellant said the following things.
· He had known the complainant since she was a baby.
· The crimes were committed in a bedroom at his uncle's home and that there were two to three incidents.
· He thought it was likely he was under the influence of alcohol or cannabis at those times.
· He could not remember performing oral sex on the complainant but thought it was possible.
· Although initially denying any anal intercourse, he said that he tried to insert his penis into the complainant's anus at one time but was unable to penetrate.
· He did not do any of the acts when he was 18 or older, as he knew he would go to gaol.
· The complainant performed oral sex on him at the church.
· He thought that the acts occurred on five or six separate occasions and he was 16 or 17 at the time.
Her Honour was also told that initially the appellant was charged on two complaints. One was a complaint filed in the Youth Justice Court, with the other having been filed against the appellant as an adult. Crown counsel made it clear that the charges did not then include one of maintaining a sexual relationship. The transcript of proceedings shows that her Honour was not told the details of the charges in the complaints, and was not referred to the documents themselves. Copies of the complaints were, however, on the court file[1]. Counsel pointed out that aggravated sexual assault and rape were prescribed offences for the purposes of s 161(2) of the Youth Justice Act 1997[2], but inferred that at least some of the charges in the youth justice complaint were not prescribed offences.
[1] The appellant's record of offending was included in the Crown papers. That record wrongly showed that the appellant had been committed to the Supreme Court on 10 counts of indecent assault contained in a youth justice complaint, and 11 counts of the same crime contained in an 'adult' complaint.
[2] Section 161(2) of the Youth Justice Act provides that if a youth who is 15 years old or more is charged before the Youth Justice Court with an indictable offence that is not a prescribed offence, the Court must ask the youth if he or she is willing to be tried by the Court instead of by a jury.
The sentencing judge was told that the appellant had "elected" to have the offences which were not prescribed offences "dealt with in this Court along with those that were covered by the adult complaint". In apparent acknowledgment of a factor favouring the appellant, Crown counsel suggested that this was significant because it became a matter for one sentencing tribunal. It was put that it would have have presented some difficulties were the appellant to have been before the Supreme Court for some charges whilst being dealt with in the Youth Justice Court for similar related charges.
As the issue of what happened with the youth justice complaint was raised by the appellant in argument, I will detail the charges initially laid. The youth justice complaint charged the appellant with 10 counts of indecent assault, eight of rape and four of aggravated sexual assault. The "adult" complaint involved 11 counts of indecent assault, eight of rape and three of aggravated sexual assault.
A victim impact statement was tendered. It is undated but I infer that it was prepared shortly before the appellant pleaded guilty. (The indication of a guilty plea came after 17 June 2013 when the appellant was remanded to 24 June 2013 for trial.) The complainant says that her life has been terribly affected. She says she kept the secret for far too long and it has been a frightening experience coming to terms with disclosing it. She feels very ashamed and helpless. Those feelings led to two episodes of suicide contemplation.
The complainant says she suffers stress related headaches and difficulty in sleeping. She has undergone 12 counselling sessions but found that it did not help her much. She says, "This stuff never really goes away you just learn different ways to try and block it out of your mind for short periods of time".
The complainant feels that her self-confidence has been affected. She feels worthless and finds it difficult to maintain relationships with people. She has difficulties in reposing trust in males in particular, and feels an outcast in her group of female friends when they talk of new sexual experiences, because she feels she has experienced much of it, if not more. The feelings of shame and embarrassment are on-going.
As to the appellant's history, the sentencing judge was told that there were no prior convictions. It was later drawn to her Honour's attention that the appellant had five convictions by way of traffic infringement notices but all of those post-dated the relevant conduct.
Matters put in mitigation
The facts asserted and points made in counsel's plea in mitigation can be summarised as follows.
· The appellant was then in a de facto relationship of some 15 months' standing and the couple were expecting their first child very shortly; the appellant would "most certainly" miss out on important stages of his child's life, and he fully felt that loss.
· The appellant was employed as a glazier; he was a qualified tradesman and had undertaken his apprenticeship with his current employer.
· The appellant was a contributing member of society and a family man with a solid industrial record.
· The appellant's family was supportive of him.
· The appellant accepted that there was little that could be said by way of explanation; he was sexually inexperienced at the time of the offending, and he had not had any previous sexual experience.
· It was accepted that this did not excuse his behaviour but that there was some element of experimentation given that the appellant was 17 years old.
· The appellant "very keenly" felt his offending behaviour.
· The appellant's behaviour, the admissions made and the plea of guilty had combined to detrimentally affect his relationships with some family and friends, and although difficult for him, he had told people about the matter.
· Although the plea of guilty was not made at the earliest opportunity, there was a potential for a dispute as to the facts but that, in accepting the Crown case, the appellant avoided the need for the complainant to give evidence at all.
· The plea of guilty showed an element of remorse.
· The sentencing judge could find that as a 17-year old with no sexual experience coming to grips with his own sexuality, there was an element of experimentation and immaturity in his acts and behaviour.
· The conduct appears to have stopped of the appellant's own volition.
· Although it is to be accepted that a breach of trust was involved, that was not as significant as many other cases which come before the Court.
The comments on passing sentence
After noting the plea of guilty and briefly mentioning the family environment in which the offending took place, her Honour continued:
"Between April 2006 and April 2007 you sexually assaulted A on nine separate occasions. Eight of the incidents occurred in the bedroom of the home of one of the family members where a celebratory event was occurring and the ninth occurred at a church, again where the family had gathered. Your contact with A was able to occur because of the family connection. Clearly no family member considered that A was at risk from you. It was not necessary for you to seek out a victim because she was effectively available to you on a regular basis.
Your conduct included 25 [sic] indecent assaults and 16 rapes. Of the rapes, 14 were oral and 2 were anal. On one occasions of oral rape, you ejaculated into A's mouth. The acts included your touching and licking A's vagina and your forcing her to masturbate you. She was not a willing participant to the acts. You used force against her to achieve what you wanted. The acts ceased when you were 18½ years old. A was then 10.
You were interviewed by police in May 2012. You made admissions to some of your behaviour. You told police you thought it was likely you were under the influence of alcohol or drugs at the time of your actions. You initially denied anal intercourse but later admitted you had tried it. You claimed you did not commit any acts after you turned 18 because you knew you would probably go to jail.
Of the 41 unlawful sexual acts you committed, 21 were committed while you were still 17 with the remainder occurring after you turned 18. The Court must determine whether you should be sentenced as an adult or a child in respect of that offending before you turned 18. In my view there is no question that the nature of your behaviour, the circumstances in which it occurred and the time over which it occurred must lead to the conclusion that you should be treated as an adult.
You are now 24 years old. You live in a de-facto relationship and you and your partner are expecting a child in about a month's time. You completed school to year 10 and then obtained work. You then completed an apprenticeship with your current employer and remained there. You have full time employment. Your parents and partner remain supportive of you although there has been an adverse impact on your relationship with other family members and friends because of what you have done.
Notwithstanding that, I have been provided with a number of references from family friends. All speak very positively of you and some speak of your Christian upbringing and the values instilled in you. Of the four references provided, only one makes clear the writer's knowledge of the charge you are facing. In relation to all, it is difficult to understand how it could be said you live your life with strong values instilled by a Christian family when you sexually interfered with a child for over 12 months within that family context.
Your counsel acknowledged that there was not a great deal which he could say on your behalf. He did not pursue any suggestion that you were so affected by alcohol or drugs on each and every occasion an unlawful sexual act occurred as to somehow diminish your responsibility for what you did. He suggested that you were sexually inexperienced at the time and may have been experimenting. With respect, that submission may have carried some weight if acts had occurred on one occasion only. The fact that they occurred on nine separate occasions over 12 months and involved force does not support such a suggestion.
Your counsel submitted that there was no element of breach of trust here. Again with respect, I do not accept that. You were related to this child by marriage, your contact with her arose only because of that relationship and you used her availability in that context to your own ends. There was an element of trust in the relationship and you breached it in the worst possible way."
Her Honour set out features of the victim impact statement and continued:
"I accept this offending occurred when you were still relatively young and that you have now pleaded guilty. You are to be given credit for both those factors. However your comments to police about not offending after you turned 18 because you knew you might go to jail suggest you clearly understood from day one how wrong your behaviour was and yet you persisted with it. While you have much to look forward to in your life you have wreaked havoc on A's life. The Court cannot appear to condone your behaviour in any way despite your young age and lack of relevant prior offending history. …
Determining an appropriate sentence for you has proved difficult. There is always a need to balance factors such as a plea of guilty, young age at time of offending and lack of relevant prior matters against the nature, duration and impact of the offending. There is always a need to consider personal and general deterrence. Both personal and general deterrence are in my view important factors in your sentence, the latter probably being more important than the former.
…
The features of this case which suggest a significant custodial sentence is the only response are that A was only 9 years old when the offending began, your access to her was gained through a family relationship which you abused and you committed 41 unlawful sexual acts over the space of about a year, of which 16 were rapes with two of those being anal rapes. You also used force against A. Needless to say the impact on her of your offending is also a significant factor. These factors need to be considered against a background of little real explanation for your behaviour.
…"
The appellant's age at the time of the offences
It is convenient to deal with this ground first. Counsel for the appellant in this Court submits that when determining penalty, the sentencing judge ought to have been guided by the principles which are apparent in the Youth Justice Act. Counsel referred to the objectives of the Act stated in s 4, and to the general principles of youth justice set out in s 5.
There is no need to set out those provisions. Those relevant to sentencing restate the relevant principles concerning the sentencing of juvenile offenders which have long been established by the courts. The principles are that the rehabilitation of the offender is always an important, if not the dominant, consideration, and that any sentence should be tailored with greater emphasis on the welfare of the youth; the emphasis on rehabilitation is consistent with the broader sentencing goal of community protection: LWR v Lusted (2009) 19 Tas R 233 at [26] citing JA (A child) v State of Western Australia [2008] WASCA 70 at [29]-[30].
Counsel for the appellant made the point that had the appellant sought to be dealt with by the Youth Justice Court for the 10 non-prescribed offences of indecent assault charged in the youth justice complaint, the principles and objectives of the Youth Justice Act would have applied to him by virtue of s 29(2) of that Act. That provision requires the Court to take into account the objectives and principles respectively specified in ss 4 and 5.
It is true that the justification for the principles governing the sentencing of youthful offenders is that such offenders are not able to appreciate the nature and extent of their criminality. They are more likely to make ill-considered and immature decisions. At the same time, counsel for the appellant accepts, by reference to R v Tran (2002) 4 VR 457 at [14], that the importance of rehabilitation of a youthful offender is usually far more important than general deterrence, but that there are cases in which just punishment and general deterrence become at least equally important.
As to the moderation of the emphasis given to rehabilitation, and the corresponding increase in the prominence given to general deterrence and retribution in cases of serious crime, I refer also to the detailed discussions by McLellan CJ at CL in R v Carroll [2008] NSWCCA 218 at [8], and by Redlich JA in Azzopardi v The Queen (2011) 35 VR 43 at 53–57 [30]-[44]. There is no doubt at all that, in short, where the level of seriousness in the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth.
In this case, the appellant was sentenced about six years after the last of his offending conduct. The correct approach to sentencing an adult for offences committed as a juvenile was discussed in R v Boland (2007) 17 VR 300. At 304 [16], Nettle JA with whom Ashley and Dodds-Streeton JJA agreed, said:
"[Previous decisions] recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity."
That returns the focus to the level of seriousness of the crime, and the importance or otherwise of objectives of sentencing other than rehabilitation.
Of course the appellant cannot, and does not, assert that the sentencing judge expressly refused to take into account youthfulness as a mitigating factor. The Victorian Court of Appeal has pointed out on a number of occasions that a complaint about the weight given to a particular sentencing consideration is not a ground of appeal. The only way in which a court can evaluate a complaint about the sufficiency of weight given to a particular consideration is as a particular of the manifest excess ground. "Under that ground, the court will examine the sentence actually imposed, and ask whether it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors": Gorladenchearau v The Queen [2011] VSCA 432 per Maxwell P (Ashley JA and Ross AJA agreeing) at [34], citing Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457 at 459-460 [5] and Scerri v The Queen [2010] VSCA 287 at [22]-[24]. See also Neubecker v The Queen (2012) 34 VR 369 at 385 [71].
I would respectfully agree. In this case, the sentencing judge said that she accepted that the offending occurred when the appellant was still relatively young, and that he was "to be given credit" for that factor. That must indicate that the sentencing judge gave some weight to the appellant's age for much of the offending conduct. The appellant's conduct was particularly grave. That is all that needs to be separately said about the particular point. Otherwise, the issue falls generally for consideration under the manifest excess ground.
The ground of manifest excessiveness
Remorse
In addition to the appellant's youthfulness at the time of offending, his counsel highlighted what was said to be evidence of remorse. The appellant's remorse is said to be demonstrated by the plea of guilty thereby saving the need for the complainant to give evidence, and by admissions made in the police interview which were characterised by the Crown as "substantive although perhaps not full admissions". That the appellant voluntarily desisted from offending is also put as a demonstration of remorse.
The appellant argues that the fact that he desisted after turning 18, and the fact of "his acknowledgement of the wrongfulness of his conduct appear to have been treated as aggravating factors". This submission refers to the following observation made by the sentencing judge:
"… your comments to police about not offending after you turned 18 because you knew you might go to jail suggest you clearly understood from day one how wrong your behaviour was and yet you persisted with it."
The facts of the offending are that there were four episodes in 2006 after the appellant turned 18. The last three of those episodes happened within a short period of time in April 2007. The particular point made by the appellant in the appeal relates to the treatment of what the appellant had told police about why he stopped. It will be recalled that in the statement of facts, Crown counsel told the sentencing judge that in the police interview the appellant said "that he did not do any of the acts when he was 18 years of age or older, as he knew he would go to gaol". The sentencing judge was not referred to the record of interview and has proceeded, quite properly and not surprisingly, on the basis of what she was told.
The appellant says that there are a number of passages in the interview which are relevant to the issue, that the issue needs to be looked at in the context of the whole interview, and that Crown counsel's summary did not convey the entire thrust of what was said. This Court was provided with a transcript of the interview, and counsel for the appellant identified the relevant passages. The first is as follows:
"QOkay and why did they stop happening, why did these things stop happening?
AUm because I sort of realised that it was absolutely stupid and wrong and it should never of happened in the first place.
QOkay and what do you think made you think that, made you realise that?
AI don't know um I think I saw something on TV about a sexual um like assault … something with a older man and young girl … like I said, I think I was only 15, 16 but he was like 50 and she was like 15 so … there was a bit of difference in it but … it's still wrong."
Immediately after that, the appellant was asked the rather odd question of whether he now thought that it was still the wrong thing to do. He agreed that it was, and went on to say, "Oh absolutely like I wish I could go back in time and change it … I wish I'd never of [sic] done it." Much later in the interview, the appellant was asked as to whether generally he recalled performing oral sex on the complainant. He said that he was not sure, that he might have done. The following exchange occurred:
"A… it's possible, it's that long ago that I really don't remember and I try not to think about it 'cause I hate myself for doing it.
QOkay.
ALike I've said before if I could go back in time and take it all back … I would … this is the most ridiculous think I think I've ever done.
QOkay do you remember why on this occasion or what, what's stopped you from continuing doing what you were doing?
ALike I said I saw that thing on TV.
QYeah I know but on this particular occasion – so the first time that these things were happening – so these sexual things are happening in the room is there a reason why you stopped? [sic]
AI just had a massive guilt feeling and …
QSo you started to feel bad.
AYeah I felt terrible … and ah I wanted to say something to someone but I didn't know what to say and I didn't know how to say it and I think I was scared of what people would say or think about me … so I never said anything and I sort of had a feeling that this would happen one day."
The issue of why the appellant had desisted was later revisited. It needs to be borne in mind that up to this later point in the interview, the appellant had said a number of times that he did not think he was as old as 17 when the conduct started; he thought he was 15 or 16, although it was possible he was older, and that he had stopped going to family functions when he was 16 or 17. The part of the interview which seems to the one alluded to by Crown counsel is contained in the following exchange. This took place when he was being asked about what was particularised by the Crown as the sixth episode. The appellant agreed that he would have been 18 at that time. As to the incident, he said that he did not remember it happening.
The interview proceeds:
"QYou don't remember?
ANo now [sic] way not being 18 'cause that's when stuff I can get like jail time and all that sort of stuff. [sic]
QLike so you what you stopped doing these things because you thought now I might get in a bit more trouble.
ANo well it's not so much that I get into more trouble, like I said before it was wrong and I should never of done it the [sic] first place and there was more consequences of when I became an adult.
QBut did you think about that though back then?
AWhat do you mean do …
QWell I'd suggest that you didn't actually think about the consequences while you were doing it.
AI, I did um I did think of the consequences.
QBut to do something over and over and over again.
AYeah I just, I don't know why it continuously happened I, I don't know I just yeah went through a massive rebellious stage and thought I was untouchable …". [My emphasis.]
Later still, it was put to the the appellant that he wanted to do things which were wrong "up to a point where you believe you turned a certain age then things get a bit untidy for you. He replied, "Not so much that things would get untidy for me; I think I sort of grew up a bit and realised that you have consequences for your actions um – doesn't matter how old you are there's always a consequence for your action …".
In my view, this analysis of the interview shows that the Crown's statement that the appellant said that he did not do any of the acts when he was 18 or older as he knew he would go to gaol, is not, with respect to Crown counsel, a completely accurate representation of what the appellant actually said. Although the appellant did mention the greater prospects of going to gaol when an adult, his comments are more complex than the statement would suggest. I accept that there is some uncertainty about what the appellant was trying to convey, and I am in no doubt that Crown counsel did not intentionally overstate the position but was simply attempting a short summary of what was said on the point.
It seems to me that what the appellant effectively said was not so much that he thought that when he turned 18 the consequences for him might be greater were he then to continue, but that during the period he matured and came to realise that he had to accept responsibility for his actions, and would be accountable for them. Arguably, given his expressions of regret for the complainant's situation, his references to consequences included the consequences for her.
Voluntary cessation of offending can be a strong mitigating factor, having relevance of its own as being indicative of remorse and rehabilitation: R v Burns [2007] NSWCCA 228 at [27], [29], R v Pickett [2010] NSWCCA 273 at [71]-[72]. The appellant says that voluntary cessation is a mitigating factor in this case, and that the issue needs to be judged in its proper light. The Crown now seems to accept that some credit should be given for voluntary cessation, but submits that what the appellant did say shows that he knew at all times that what he was doing was wrong.
There are two aspects of this voluntary cessation issue. The first is the significance which the sentencing judge gave to the Crown's statement. The second is whether voluntary cessation is a factor, and what weight should be given to it. As to the first aspect, the sentencing judge relied on the statement for the suggestion that the appellant clearly understood from the outset "how wrong" his behaviour was, but persisted with it. That proposition is plainly correct, and the appellant did not argue otherwise. It is clear from reading the whole of the interview that the appellant was not saying that he did not at any stage appreciate the extent of his wrongdoing. In my view it follows that the representation of what was said in the interview has no consequences for this appeal.
As to the second aspect, in strict terms there was a voluntary cessation of offending which gives rise to some credit. However, I do not think there is any great weight to be attributed to that factor of itself. It can be inferred that, in part, the cessation was influenced by the appellant's greater insight upon maturing. At the same time, the appellant says in the interview that he started to spend more time with his friends and less with his family. He drifted away from the church and stopped going to family functions which were the things which put him with the complainant. This seems to have been independent of a desire to stop what he was doing. What can be said is that after he stopped going to family and church gatherings, he did not actively seek out the complainant in order to continue the sexual activity.
To return to the broader issue of remorse, as can be seen, the appellant made a number of comments in the interview which clearly suggest genuine remorse as distinct from self-pity or anguish at his plight. Three times he said words to the effect that he wished he could go back in time and change things. Late in the interview he added that if that could happen the complainant would not "have to deal with everything that's happened". He added that he felt "absolutely terrible" for what he had put the complainant and her family through.
I would add that the plea of guilty itself is of significance, irrespective of whether it is indicative of remorse. In Director of Public Prosecutions v STU (2012) 21 Tas R 322, a plea of guilty in a case of maintaining a sexual relationship with a young person was said to have warranted "a significantly discounted sentence" (per Evans J at 333 [54], Tennent J agreeing), or "a substantial discount" (per Wood J at 336 [69]).
Other mitigatory factors
Counsel sought to highlight a number of matters. They were that at the time of sentencing the appellant had been in a relationship of approximately 15 months' duration and the couple were expecting their first child. Counsel submits that this impacts on the question of the length of imprisonment as the appellant would feel that much more keenly. Counsel highlighted the appellant's qualifications and good industrial record, and noted four references which had been tendered to the trial judge supporting the fact of the appellant's good character. (As the sentencing judge pointed out however, only one reference contained an acknowledgement of the appellant's wrongdoing.)
Additionally, counsel noted that the appellant had no previous sexual experience at the time and was obviously a troubled young man suffering difficulties with his parents and, as revealed in the police interview, had become "mixed up with some pretty bad people", and was drinking excessively and using cannabis. Counsel also noted that the appellant had told family and friends "of his offending", although from the plea put to the sentencing judge it seems that this, as one would expect, was done after he had been charged. In any event, the point is that his relationships with some family members and friends had been "detrimentally affected".
The sentencing range
Because the circumstances of the commission of the crime of maintaining a sexual relationship with a person under the age of 17 years can vary markedly, it is difficult to assess a permissible sentencing range: Director of Public Prosecutions (Tas) v M (2005) 154 A Crim R 475 per Slicer J at 480 [9], Evans J at 489 [33]; Director of Public Prosecutions v STU (above), per Evans J at 332 [47] (Tennent J agreeing), Wood J at 334 [62]. The circumstances include the nature of the unlawful sexual acts involved, the number of those acts, the length of the period involved, the presence of a trust relationship, the use of force, the ages of the offender and the victim, the plea and the offender's prior convictions. As Wood J said at [62] of her dissenting judgment in STU: "… statistics drawn from the full range of cases without discriminating between categories of conduct are not helpful in the sentencing process".
Counsel for the appellant, whilst acknowledging those statements, submitted that this Court should assess the permissible range by reference to the median sentence of two years and four months which was identified by Evans J in STU at 332 [47]. His Honour drew this from the 95 sentences imposed between 2001 and April 2011. Merely stating counsel's proposition reveals its flaws. A median figure is not the average, but more importantly, the proposition ignores the consequences of what this Court has said about attempting to establish the permissible range for this particular crime.
Conclusion
I have carefully considered the appellant's arguments. There is no doubt that there are some mitigatory factors which are to be given substantial weight; in particular, the plea of guilty and demonstrated remorse. To a lesser extent perhaps, there is the appellant's good character and work record since the offending, and his personal circumstances at the time of sentencing. There is no doubt that in that context the sentence imposed was a heavy penalty, but the mitigating factors and the appellant's personal circumstances were reflected in the non-parole period of one half of the head sentence.
The crime called for a sentence which reflected a high level of denunciation and retribution, and one which properly reflected the importance of general deterrence. The appellant's level of culpability is very high. The age of the complainant and the family relationship are aggravating factors of considerable significance. The rest of the complainant's childhood was taken from her. She continues to suffer significant consequences and is likely to do so indefinitely. The nature and extent of the unlawful sexual acts need to be borne in mind. The conduct included two anal rapes and 14 oral rapes, in one instance leading to ejaculation.
Ordinarily, when an offender is sentenced for the crime of maintaining a sexual relationship with a young person under the age of 17 years, the offender should suffer the same penalty as would have been imposed if individual sexual acts constituting the crime had been charged as separate crimes: Director of Public Prosecutions v T [2012] TASCCA 15 per Crawford CJ at [19] (with whom Evans and Tennent JJ agreed) citing Director of Public Prosecutions v M (above) and Director of Public Prosecutions v B (2009) 19 Tas R 14.
That approach is obviously subject to the moderating influences of the proportionality and totality principles, and as Evans J warned in Director of Public Prosecutions v M at [38], there are desirable outcomes achieved by the enactment of this crime which would be put in jeopardy if the court was to adopt an approach to sentencing for it which unduly focussed on the precise number of the offender's unlawful sexual acts.
It remains the case that the appellant was to be sentenced upon the basis that he committed 40 unlawful sexual acts, included in which were serious sexual crimes. This was a regular, non-consensual course of sexual offending for a period in excess of one year. I am not persuaded that the sentence imposed was wholly outside the range available to her Honour, that being the range marked by reasonable discretionary judgment. The sentence is not plainly unreasonable or unjust. The appeal should be dismissed.
File No 758/2013
TAP v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
14 November 2014
I agree with the reasons for judgment of Porter J. The appeal should be dismissed.
41
11
0