Taylor v Police - [2004] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAYLOR v POLICE
Judgment of The Honourable Justice White (ex tempore)
6 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - BUGGERY AND INDECENT ASSAULT OR DEALING
APPEAL AGAINST SENTENCE
Appeal against sentence - Appellant pleaded guilty to indecent assault of 14 year old boy - Magistrate sentenced appellant to three months imprisonment - Failure to suspend sentence - Effect of delay between offence and sentencing where delay due to victim's failure to report offence - Effect of prior conviction for offence since repealed - Magistrate failed to refer to rehabilitation between commission of offence and sentencing - Appeal allowed - Suspended sentence imposed.
Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 56, s 69 (now repealed); Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v Liddy (No 2) (2002) 84 SASR 231, distinguished.
Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; R v Todd [1982] 2 NSWLR 517, considered.

TAYLOR v POLICE
[2004] SASC 198
Magistrates Appeal (ex tempore)

WHITE J: This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991.
The appellant pleaded guilty to an offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935. The offence occurred on 1 December 1982. The maximum penalty for a first offence at that time was eight years imprisonment. The prosecution was instituted on 13 January 2004 and first came on for hearing on 10 March 2004. More than 21 years therefore had elapsed since the commission of the offence. The explanation for that long period is, apparently, that the offence was not reported to the police until about the middle of 2003.
The Magistrate entered a conviction and sentenced the appellant to imprisonment for a period of three months. The Magistrate declined to suspend that sentence. On appeal, the appellant does not complain of the sentence of imprisonment. He complains only that the sentence was not suspended.
The appellant was born on 6 October 1940. He is now aged 63. He was 42 at the time of the offending.
The circumstances of the offence and of the apprehension of the appellant are conveniently set out in the affidavit of the police prosecutor sworn 28 June 2004:
“After Christmas 1982, he, [the victim], was at a neighbour's place. At this time the victim was 14 years of age. The neighbour, Roy Taylor, played a pornographic video and then asked the victim if he could perform oral sex on the victim. The victim agreed, and the accused then placed his mouth over the victim's penis performing fellatio until the victim ejaculated. The victim was then asked to perform a similar act upon the defendant, which he did for a short time, afterwards running out of the defendant's home. On 30 August 2003, the police attended the home of the defendant where an interview was conducted. In this interview the defendant stated that in 1982 he resided at Salisbury East and that at this time he knew the victim as the son of a neighbour. The defendant recalled the incident alleged by the victim and admitted to having performed the act of oral sex upon the victim. The defendant stated in the record of interview that he felt bad after this incident.”
In his remarks on sentencing, the Magistrate referred first to a prior conviction of the appellant. On 5 November 1973, the appellant pleaded guilty to an offence of buggery contrary to the then provisions of s 69(1)(a) of the Criminal Law Consolidation Act. The appellant was sentenced to imprisonment for 12 months for that offence, but that sentence was suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of two years. I will say more about that shortly.
Next, the Magistrate referred to the serious nature of offences of this kind, the difficulty in their detection, their impact on the victims, the repugnance with which society generally regards the conduct comprising the offence, and the importance of the concepts of personal and general deterrence in determining sentence. He expressed the view that considerations of general deterrence should predominate.
The Magistrate then made the following remarks, which would seem particularly pertinent to his decision not to suspend the sentence of imprisonment which he had imposed:
“The defendant has had a previous warning by the courts. Notwithstanding that, he has re-offended. I give him credit for his guilty plea. I have regard to his age and personal circumstances and have given careful consideration to suspending the term of imprisonment which, in my view, must be imposed. I am of the view that the issue of general deterrence overrides personal deterrence in these circumstances and that there are no proper grounds of sufficient weight to suspend imprisonment.”
There are three aspects to that passage which I mention. The first is the use made by the Magistrate of the previous conviction and sentence for the offence of buggery.
Buggery ceased to be an offence in South Australia in 1975 by reason of an amendment to the Criminal Law Consolidation Act. That amendment reflected a change in attitude in society to the conduct comprising buggery. That consideration diminishes, to some extent, the significance of the applicant’s prior conviction. However, that does not mean that the prior conviction and sentence is without relevance in the present context. In my opinion, it is relevant in at least two ways.
First, it means that the court has before it a person who has previously broken a law of this State with respect to sexual offences. The appellant did not come to court with a clean record.
Secondly, the appellant has previously been a beneficiary of a suspended sentence. Notwithstanding the leniency extended to him previously, he has, about nine years after that first court appearance, committed a further offence of a very serious kind.
The second aspect of the passage from the Magistrate’s reasons which I mention is this: not only did the appellant plead guilty at the first opportunity, as the Magistrate acknowledged, he admitted his conduct when first interviewed by the police on 30 August 2003. The appellant thereby spared his victim the additional trauma which is commonly caused in cases of this kind. In many cases, the refusal of offenders to acknowledge their conduct aggravates the damage caused to the victim by that conduct. In addition, that ready acknowledgment by the appellant, no doubt, saved the police time and resources in the further investigation of the offence. It seems to me that the Magistrate may not have given the appellant credit for this additional mitigating factor.
Thirdly, although the Magistrate did not refer expressly to the long period which has lapsed between the offending, on the one hand, and the court appearance on the other, it is clear that he did not overlook it altogether. Earlier, in the sentencing remarks, the Magistrate said: “The fact that the offence occurred 19 and a half years ago does not make it any less serious”.
The Magistrate was mistaken about it being 19 and a half years. It was in fact over 21 years, but nothing turns on that mistake.
The Magistrate was correct in holding that the lengthy lapse of time since the commission of the offence does not make it any less serious. But a lapse of time can be relevant in other ways. It can be relevant to the question of rehabilitation of the offender since the commission of the offence. It may mean that notions of fairness to the offender may have a greater weight than would otherwise be the case.
The relevant principle is stated in R v Todd [1982] 2 NSWLR 517. The sentence, in that case, had been substantially delayed whilst the defendant served a sentence interstate.
Street CJ, with whom Moffitt P and Nader CJ at CL agreed, said at 519 and 520:
“Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence to the circumstances that he has left in a state of uncertain suspense as to what will happen when, in due course, he comes up for sentence on the subsequent occasion and to the fact that the sentence for a stale crime, long after the committing of the offence, calls for a considerable measure of understanding and flexibility of approach. Passage of time between offence and sentence, when lengthy, often leads to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. At times, this can require what might otherwise be quite an undue leniency extended to the prisoner”.
That passage was referred to with approval by Debelle J in Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454 at 459, a case in which his Honour found that there had been gross delay by the prosecuting department. I note of course that that circumstance does not apply in the present case. Debelle J attached significance to the “substantial and successful steps towards his own rehabilitation” taken by the appellant in that case in the long intervening period.
Ms Abbey, who appeared for the respondent in this appeal, has drawn my attention to the decision of the Full Court in R v Liddy (No.2) (2002) 84 SASR 231 and, in particular, to the statement of Mullighan J, at 245, to the effect that a lesser sentence is justified if there has been delay between the offending and the sentencing and the offender is rehabilitated.
However, in my view, in cases of the present kind, the significance of the delay should not be overstated. Some delay between the commission of the offence and its detection is common in cases of this kind. Sometimes the victim does not report the offence because of fear of, or intimidation by, the offender. In other cases, it results from persuasion by the offender. In other cases, it is shame or a sense of guilt or embarrassment or an absence in the victim of a clear understanding of the wrongfulness of the offender’s conduct which results in the lack of the report. There are, no doubt, other reasons explaining why, in many cases, years elapse before the victim reports the matter. In circumstances where the delay results from the accused’s own conduct, it seems to me that less weight may be given to notions of unfairness arising from that delay.
Further, the rehabilitation, which the offender may achieve during a period of the delay, has to be balanced against the fact that it is often his own conduct which is responsible for the delay and, furthermore, his conduct which is responsible for the anguish and turmoil experienced by the victim during that period.
In the present case, although the Magistrate adverted to the long delay, he did not refer in his sentencing remarks to the issues of the appellant’s rehabilitation at all.
On the basis of the authorities to which I have referred, and having regard to s 10(1)(m) of the Criminal Law (Sentencing) Act 1988, the rehabilitation of the appellant in the years since 1982 should have been considered. That was a factor relevant to the question of whether the sentence of imprisonment which the Magistrate imposed should have been suspended. In my view, therefore, the Magistrate has erred in a way which warrants this Court’s reconsideration of the issue of suspension of the sentence imposed by the Magistrate.
It appears that, in this case, there was no victim impact statement tendered. The particular impact on the victim of this offence is therefore not known. Nevertheless, the fact that the victim was moved to report the matter more than 20 years after the commission of the offence does say something about the impact of the offence on him.
With respect to the appellant’s rehabilitation since 1982, Mr McShane emphasised the remorse and shame experienced by the appellant, his ready acknowledgment of guilt, his cooperation with the police and his early plea of guilty, together with his acceptance of the family responsibility of bringing up his daughter.
To some extent, the appellant’s rehabilitation is borne out by his acts of cooperation with the police and his early plea of guilty.
Mr McShane has repeated before me the submission which he made to the sentencing Magistrate, namely, that this offence was a single isolated incident. I note that submission was made in this Court, as in the Magistrates Court, in the presence of the appellant. Implicit in Mr McShane’s submission is the submission that there has been no offending of a similar kind between 1982 and 2004.
Neither the Magistrate nor I have been told very much about the appellant’s employment history since1982.
The appellant’s wife of 22 years died as a result of suicide on 12 July 1995. At that time, their daughter was aged 9. The appellant has undertaken the upbringing of his daughter since then. The daughter is now aged 18 and is commencing in the workforce.
In many respects, I regard this as a borderline case. The Magistrate was correct in regarding the offence as serious and in regarding the elements of personal and general deterrence as being important. The appellant has previously benefited from the suspension of a sentence, but I keep in mind that that was over 30 years ago.
In the end, I am satisfied that there is good reason for suspension of the sentence. I am so satisfied having regard to the appellant’s age, the fact that this was a single offence, the fact that some 21 years have lapsed since it was committed, and that in that time the appellant has rehabilitated himself by living a law-abiding life. The appellant’s remorse, his ready acknowledgment of the offence, his cooperation with the police and his early plea of guilt also help establish good reason for suspension.
I do not consider the circumstances of the appellant’s domestic life pressed by Mr McShane to be particularly persuasive in this regard. It is obvious that if the appellant did serve the term of imprisonment there would be impacts not only on him, but on his daughter. However, the daughter is now aged 18. She would, if imprisonment was served, have to make her own work travel arrangements and would be deprived of the benefit of her father’s companionship and financial support, but detriments of that kind are not uncommon when a sentence of imprisonment is to be served. However, I am, for the reasons previously stated, satisfied that good reason does exist for the suspension of the sentence. The order of the court therefore is:
1. That the appeal against sentence be allowed.
2. That the sentence of the Magistrate be set aside.
3. That the appellant be sentenced to a period of imprisonment of three months.
4. That the sentence be suspended upon the appellant entering into a bond in the sum of $500 in the following terms:
(a) that the appellant be of good behaviour for a period of 12 months and comply with all the conditions of the bond.
(b) that the appellant be under the supervision of a Community Corrections officer for a period of 12 months and obey the lawful directions given by the Community Corrections officer to whom the appellant is assigned for the purposes of supervision.
5. That the appellant report within four working days of having signed the bond at the appropriate office of the Department for Correctional Services.
The appellant need not so report if within that four day period he receives notice from the department that it is not necessary to do so.