TGW v Tasmania
[2017] TASCCA 10
•7 July 2017
[2017] TASCCA 10
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: TGW v Tasmania [2017] TASCCA 10
PARTIES: TGW
v
STATE of TASMANIA
FILE NO: 279/2017
DELIVERED ON: 7 July 2017
DELIVERED AT: Hobart
HEARING DATE: 6 June 2017
JUDGMENT OF: Tennent J, Marshall and Porter AJJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Grounds for interference – Other matters – Appellant acquitted by direction of rape but found guilty of indecent assault – Conduct involved the appellant placing complainant's penis in appellant's mouth – Crown appealed against acquittal – Appeal court ruled that conduct amounted to rape but no retrial ordered – Appellant sentenced for indecent assault – Relevance of the act of penetration to the sentence for indecent assault.
R v De Simoni (1981) 147 CLR 383; R v Causby [1984] Tas SR 54, considered.
Aust Dig Criminal Law [3525]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive – Sentence of 2½ years' imprisonment for indecent assault – Conduct involved the appellant placing complainant's penis in appellant's mouth – Appellant and complainant both aged in their 60s – Complainant with intellectual disability – Appellant also with intellectual deficits but with relevant offending history of some age – Sentence manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: K Baumeler
Respondent: L Brett
Solicitors:
Appellant: N/A
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 10
Number of paragraphs: 42
Serial No 10/2017
File No 279/2017
TGW v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
MARSHALL AJ
PORTER AJ
7 July 2017
Orders of the Court
Appeal allowed.
Sentence of imprisonment imposed on 31 January 2017 is set aside.
In lieu, the appellant is sentenced to 18 months' imprisonment to commence on 31 January 2017. The appellant is not eligible for parole until he has served 10 months of that sentence.
The order made on 31 January 2017 under the Community Protection (Offender Reporting) Act 2005 is confirmed.
Serial No 10/2017
File No 279/2017
TGW v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
7 July 2017
I have had the benefit of the detailed draft reasons of Porter AJ. I agree with those reasons and the outcome he proposes.
File No 279/2017
TGW v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
7 July 2017
I agree with the reasons of Porter AJ.
File No 279/2017
TGW v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
7 July 2017
Introduction
This is an appeal against sentence. The appellant was found guilty by a jury of one count of indecent assault. That count was count 5 on an indictment containing a total of five charges of sexual offending involving the one complainant, a male person. The jury was unable to agree on the remaining four counts. In January 2017, the trial judge, Estcourt J, sentenced the appellant to two years and six months' imprisonment, and ordered that the appellant's name be placed on the register under the Community Protection (Offender Reporting) Act 2005, with compliance with the reporting conditions to be for a period for five years from the date of release. The sole ground of appeal is that the sentence is manifestly excessive. Before addressing the ground of appeal, it is necessary to set out what happened during the trial, and subsequently, in relation to count 5.
Count 5 on the indictment
The count of which the appellant was found guilty was originally charged as one of rape under s 185 of the Criminal Code. The count alleged that the appellant had unlawful oral sexual intercourse with the complainant by placing the complainant's penis in the appellant's mouth and sucking it, without the complainant's consent.
The definition of sexual intercourse was amended in 1987, and is now defined in s 1 of the Code as follows:
"Sexual intercourse means the penetration to the least degree of the vagina, genitalia, anus or mouth by the penis and includes the continuation of sexual intercourse after such penetration."
In the appellant's trial, before the close of the Crown case, the trial judge ruled that the alleged conduct could not constitute the crime of rape. His Honour took the view that the crime did not encompass the notion of an accused introducing a man's penis into his or her own mouth. After some contortions relating to the amendment of count 5 which I need not explain, it was left to the jury as originally worded. The jury was directed that it must acquit the appellant of rape, and that it should consider the crime of indecent assault as an alternative. It was on that basis that the appellant was found guilty.
The elements of an "indecent and unlawful assault" under s 127 of the Code are:
· an assault within the meaning of s 181 – (mostly in this context, the allegation would be one of an intentional application of force);
· the assault was unlawful – (almost invariably the unlawful nature of assault is made out by proof of the absence of consent);
· the assault was indecent in the circumstances; indecency being judged by the jury.
In this case, as is ordinarily the situation, the "unlawful" element was made out upon the jury being satisfied that the complainant did not consent to the acts. Leaving aside the element of indecency, in this case, the only practical difference between the crime of rape as charged, and the indecent assault of which the appellant was found guilty, was the element of penetration of the mouth.
The Director of Public Prosecutions appealed against the directed acquittal. The Court of Criminal Appeal held that the trial judge's interpretation was wrong, and that the crime of rape includes the penetration of the mouth of an accused person by the penis of the complainant, without the complainant's consent: Director of Public Prosecutions v TGW [2017] TASCCA 1 (6 March 2017). In the end, the Crown did not pursue an order that the appellant be convicted on the count of rape as originally charged, and the Court made no order apart from granting leave to appeal and allowing the appeal,[1] noting that the appellant had elected not to give evidence after the trial judge announced the directions he would give to the jury about the count: see Director of Public Prosecutions v TGW at [1], [39], [79].
[1] Section 402(1) of the Code requires the Court to allow an appeal if it is of opinion that the judgment or order of the court of trial should be set aside on the ground of a wrong decision on any question of law. Section 402(5) sets out the orders that may be made if an appeal against acquittal is allowed, but quashing the verdict is not expressly provided for. It has not been authoritatively determined that s 402 permits an order of acquittal: Attorney-General v Arkinstall [2013] TASCCA 12 at [45] citing Director of Public Prosecutions v Cook [2006] TASSC 75. In the latter case, Blow J (as he then was) at [93] and Tennent J at [153] thought the power may be inferred from the terms of the section, but did not decide the point.
It follows of course, that the verdict of acquittal of the rape stands. (A nolle prosequi has since been filed in relation to the other four counts on the indictment.) The trial judge sentenced the appellant on the basis of factual findings, based on the verdict, that the appellant "introduced the complainant's penis into his own mouth", and that the complainant suffered "the unwanted sucking of his penis". The question that arises in this state of affairs is whether, in considering the weight of the sentence, this Court can have regard, as an aggravating factor, to the fact that there was penetration of the mouth. Ostensibly, to do so would be contrary to the principle articulated in R v De Simoni (1981) 147 CLR 383.
The general principle that the sentence imposed should take into account all of the circumstances of an offence is subject to the more fundamental principle that no one should be punished for an offence of which they have not been convicted. A judge is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: De Simoni per Gibbs CJ at 389; see also Lovegrove v The Queen [1961] Tas SR 106 per Burbury CJ at 107.
Neither counsel addressed the proper approach to this appeal in that context. But having regard to the state of affairs that exists, I think the proper approach should be made clear. I hasten to say that the respondent did not argue that this appeal should be considered on any basis other than that the sentence was for the crime of indecent assault. Counsel for the respondent did, however, submit that this was a serious instance of the type of crime, although the submissions in support of that proposition were directed to matters other than the essential facts of the crime. The facts to be considered were assumed to be those as charged, without discussion.
The Di Simoni principle has been the subject of much judicial discussion. Its application has proved to be difficult: see in this State for example, R v Causby [1984] Tas SR 54; Walsh v The Queen (1996) 6 Tas R 70; Wahl v Tasmania [2012] TASCCA 5. Its application can lead to an artificial view being taken of the facts: R v Doyle (1998) 105 A Crim R 199 per Wright J at 205.
The first thing that needs to be considered is whether rape is generally a more serious crime than indecent assault. The usual approach is to consider the legislative intention as expressed in the maximum penalties: SBF v The Queen [2009] NSWCCA 231 at [105]. Under the Tasmanian Code however, all crimes attract a maximum penalty of 21 years: s 389(3). In light of that, the Court has, for itself, placed the various crimes under the Code into different categories of gravity (a "hierarchy"), and has for itself set ranges of sentence appropriate to various crimes according to their gravity: Lovegrove (above) at 106, R v Allen [1999] TASSC 112 per Cox CJ at [3].
In Causby (above) at 66, Cox J (as he then was) said, "The fact is that cases of rape stand in a different category of gravity to offences against ss 123 [now repealed] and 127 [indecent assault]". His Honour continued:
"Individual circumstances may make one case of rape of less gravity than one particular case of indecent assault and to that extent there may be an overlap in the range of sentences appropriate to various crimes but the categories themselves are basically different."
Of course, sentencing patterns reflect that difference. His Honour's observation about overlap may now have much more weight, given the expansion of conduct that can amount to rape following the 1987 amendments to the definition of sexual intercourse and to the ingredients of the crime of rape. Be that as it may, I do not think that there is any doubt that generally, rape is regarded as a more serious crime than indecent assault.
In determining whether a sentence is manifestly excessive, a court must view it in the perspective of a number of things, one of which is "the standards of sentencing customarily observed with respect to the crime": Western Australia v Gibbs [2009] WASCA 7, 192 A Crim R 399 at [56]. In this case, the crime of which the appellant was convicted and sentenced was one of indecent assault. The Court of Criminal Appeal later held that the charged conduct amounted to the crime of rape. But it would be wrong to apply to this offence the standards of sentencing customarily observed with respect to the crime of rape. That is because, although it might appear a little artificial to some, rape is not the crime of which the appellant was found guilty. In this respect, it should be borne in mind that in order to find the appellant guilty, the jury was not required to be satisfied of an element of penetration.
What then of the weight to be given to the fact of penetration in this case? In R v Austin (1985) 121 LSJS 181 (quoted in R v Lane [2011] SAFC 101 at [35]), King CJ said:
"It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation. Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation."
In Causby, the accused pleaded guilty to one count of engaging in indecent practices between male persons by committing an indecent assault upon a youth. The youth did not consent, and the question was whether the absence of consent could be taken into account as an aggravating factor. The majority (Neasey and Cox JJ) held, for different reasons, that it was appropriate to consider the absence of consent as an aggravating circumstance. Green CJ dissented, holding that the Di Simoni principle prevented such a consideration because the accused could have been charged with assault contrary to the Code, s 184. Having so held and explained his reasons, his Honour continued:
"However, it is appropriate for a court which is imposing sentence upon a person to have regard to the surrounding circumstances of the offence notwithstanding that they might have been the subject of a distinct charge, provided that those circumstances form part of, or are directly related to one of the ingredients of the charge for which he is being sentenced. It follows that in this case it was proper for the court to have regard to the respondent's threats to the complainant insofar as they formed part of, or facilitated, the assaults which were ingredients of the crime with which he had been charged." [My emphasis.]
That passage was cited with approval by Crawford J (as he then was) in Walsh (above) at 94. In light of the circumstances of Causby, and of the reasons of the majority, I do not see any difficulty in applying Green CJ's views to the issue in this case. To apply those views to this case would accord with what King CJ said in Austin (above).
In this case, the physical conduct the subject of the charge as particularised, was that the appellant placed the complainant's penis in the appellant's mouth and sucked it. It is that which is the physical conduct involved in the indecent assault. It may well be correct to view the penetration of the appellant's mouth by the complainant's penis as an aggravating circumstance in relation to the indecent assault; a circumstance that would have warranted a conviction for a more serious crime. However, it seems to me that the fact the appellant was sucking the complainant's penis, having placed it there, is directly relevant to the nature of the force being applied. It is related to what constitutes an assault as an ingredient of the crime of indecent assault. It is also relevant to the issue of indecency.
The circumstances of the offending
At the time of the offence, the complainant was 63 years old. He suffers from an intellectual disability. The appellant at the time was about a year younger. He was an invalid pensioner who also suffered some intellectual deficits, although his functioning was better than that of the complainant. The two had known each other for some years. They had previously lived separately in the same accommodation where there was a communal dining room. Some time before the relevant events, the complainant had moved away, but at times went to the appellant's unit. It seems that the appellant was in the habit of playing pornographic videos with the complainant and other men present. The complainant agreed that the appellant would masturbate in his presence, but denied doing that himself.
As stated by the sentencing judge, the particular facts are that on 22 December 2013, the complainant visited the appellant in order to ask him to look at a problem with his motor vehicle. After doing so and returning to the appellant's unit, and having a soft drink, the appellant encouraged the complainant to go to the area of a bed in the unit with him, "whereupon he introduced the complainant's penis into his own mouth". The complainant's evidence was that he had been "conned" to go over to the area of the bed. He said the appellant took his own pants down, then undid his (the complainant's) pants and slid them down to a certain point. His evidence then dealt with events which were the subject of the charges upon which the jury could not agree. The complainant had stood up from the bed when the offence of which the appellant was convicted occurred. Of course, the sentencing judge's narrative omitted reference to the period of time between going to the area of the bed and the commission of this crime. The complainant said that the appellant had "his mouth around me [sic] penis" for 15 to 20 minutes, an aspect about which his Honour made no finding.
The sentencing judge's comments continued:
"I find that the complainant willingly, although reluctantly went over to the area of the bed, and that when he did so he must have anticipated some sexual contact and that he did so when he could simply have declined and walked out the door without impediment.
I find that no force was used by the defendant and he did not threaten the complainant who was perfectly capable of giving consent should he have wished to, despite his intellectual disability. Obviously the jury found that by reluctantly remaining, probably as a result of the defendant's coaxing, the complainant did not give free consent to what occurred."
The sentencing judge referred to the complainant's victim impact statement. His Honour said that it was clear that the complainant had trouble sleeping since the crime was committed, and feels dirty because he keeps thinking that he was to blame and that he should have walked away: "He feels bad that he did not stop. He sees a counsellor every fortnight which helps. He was very worried about going to court and wanted to run away." Obviously, that victim impact statement related to the whole of the charged conduct, and in terms of the consequences of this particular crime, it had to be read in that light. It should be noted that the counts on which the jury could not agree included one of rape in the form of anal sexual intercourse without consent. His Honour said he was satisfied that although no force was used, the complainant was considerably distressed by the unwanted sucking of his penis.
The circumstances of the appellant
The following is based on the sentencing judge's comments, about which there is no issue. At the time of sentencing, the appellant was almost 67 years old, an invalid pensioner who has suffered from bladder cancer since about 2003, and has numerous other medical conditions, including urinary incontinence, several phobias, balance problems, anxiety and consequent memory difficulties. The appellant is unable to read or write and has limited intellectual functioning. He was severely abused as a child, and, in prison, would be likely to suffer more than most given his medical issues.
The appellant has relevant prior convictions. In particular, on 17 August 1995 he was sentenced to nine years' imprisonment on charges of indecent practices between male persons, five counts of attempted rape, six counts of rape and two counts of indecent assault. On the same day, he was sentenced to five years' imprisonment with two years to be served concurrently with the nine-year term for three further charges of rape and two charges of indecent assault. The comments of the judge who sentenced the appellant in 1995 reveal the sexual offending extended from 1985 to 1993. The victims were three young males who were either related to the appellant or who he knew as a friend of the family. The offending commenced when one of the boys was four years old; the other two were six years old.
The sentencing judge's comments
His Honour referred to the brief facts of the matter and made the findings that I have set out above. After detailing the appellant's prior convictions, his Honour observed that the past crimes demonstrated "that the present offence was not isolated or out of character". His Honour noted the appellant's personal circumstances. He said he took into account as an aggravating circumstance that the complainant was a person with a disability. He said that the appellant's crime was opportunistic in the extreme. After referring to the victim impact statement, his Honour said he took into account that the appellant's lies to police and his denial of any sexual contact brought about the necessity for the complainant to give evidence, which was no doubt stressful for him. He also took into account that the appellant had displayed absolutely no remorse "as evidenced by perpetuation of his absolute denials in the face of damning forensic evidence".
I pause to note that it might be possible to construe his Honour's remarks as to what he "took into account", as meaning that he regarded them as aggravating factors. To have done so would be wrong: Neill-Fraser v Tasmania [2012] TASCCA 2 at [211]-[214]. However, the appellant did not make any specific complaint about these remarks, and they should be taken as saying no more than that the appellant was without the benefits flowing from a plea of guilty, and that it must have been stressful for the complainant to give evidence.
His Honour continued:
"I have a report from the defendant's doctor which as well as documenting his anxiety, his phobias and his incontinence, states that it is important to appreciate the defendant was the victim of cruel and constant physical and mental abuse from his father. He was in callipers as a small child. There were many incidents in the family home where he was severely abused. The doctor says that the defendant states that on one occasion, his father tied him up and dragged him along behind a tractor.
…
I observe that this was an unusual case with the complainant willingly agreeing go to where he stood whilst he was fellated by the defendant without moving away as he could have done. Yet he did not consent. These circumstances however, while unusual, provide limited parallels to the defendant's previous pederastic behaviour given the breach of confidence or abuse of friendship involved, and given the limited intellectual functioning of the victim in this case which, as I have said I must take into account as an aggravating circumstance.
On any view of it while the defendant was found guilty of indecent assault and not of the crime of rape, the indecent assault is far more serious than many examples of that crime.
The defendant is convicted and in all of the circumstances is sentenced to two years and six months' imprisonment.
I am mindful of the slightly unusual nature of this case and of the defendant's failing health, but the jury found that the complainant's reluctant participation, if I can call it that, was not a free consent and I cannot find a basis for suspending any part of the defendant's sentence because of the complainant's limited intellect which is a disability that by statute aggravates the defendant's crime.
As to ill health, it is rarely a basis for not imposing an actual prison sentence … I order that the defendant not be eligible for parole until he has served 20 months of his sentence." [My emphasis.]
Given the highlighted remarks, it is worth recording that Crown counsel gave to the sentencing judge comments on passing sentence in relation to four cases involving penetration of the mouth of an accused by a complainant's penis. Each case was a single count of rape. Details are as follows:
Sharma, Crawford J, 24 March 2003 – six months' imprisonment wholly suspended. The accused was 31; the complainant was about the same age. The accused placed his mouth over the penis of a sleeping complainant. The accused was highly intoxicated and "although the object of his desire was apparently the complainant's girlfriend, he commenced to make love to the complainant".
C, Slicer J, 17 December 2004 – eight months' imprisonment. The accused was 24. The 12 year old complainant was asleep on a couch and was woken by the accused sucking his penis. The crime was opportunistic and a breach of trust.
Dunn, Crawford CJ, 29 July 2009 – two years' imprisonment. The accused was 55; the complainant was 18. They were both heavily intoxicated. Having made it plain that he did not want physical contact, the complainant went to sleep on a bed in the accused's home. He woke to find the accused sucking his penis.
SGH, Wood J, 9 June 2016 – 2½ years' imprisonment with the execution of six months suspended. The accused was 53; the complainant in his 30s. Both were heavily intoxicated. The complainant was vulnerable to epilepsy and the accused was looking after him. Again a sleeping complainant awoke to find the accused trying to undo his jeans. He pushed him away, but woke a little later to discover the accused sucking his penis. The crime was described as "a breach of trust, occurring in the context of a friendship and when the complainant was showing care and kindness".
Each case involved a plea of guilty. In each case, the accused had no relevant prior convictions. In C, Slicer J rejected a submission that the sentence should be determined with reference to past sentences imposed following convictions for rape, as it had historically been defined. He said that research had not shown any comparable cases, and the expansion of the term by legislative enactment placed this form of rape in a different context. I would respectfully agree. In Dunn, Crawford CJ said that he regarded the particular kind of non-consensual sexual intercourse as less serious than the others; "Nevertheless, rape is a serious crime and in my view imprisonment is the only appropriate sentence". In SGH, Wood J observed that the crime of rape was always to be viewed seriously.
Is the sentence manifestly excessive?
On quite a few occasions, this Court has explained in detail its role and the proper approach to determining a ground of manifest excess; see more recently Director of Public Prosecutions v Pearce [2015] TASCCA 1 at [8]-[9]; Hall v Tasmania [2015] TASCCA 6 at [51]-[52] and Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34]. Whether a sentence is or is not manifestly excessive is a conclusion. All relevant sentencing factors and considerations need to be taken into account, and regard may be had to appropriate and meaningful statistical data. In the end, the real question is whether the sentence is outside the range of sentences available to the sentencing judge in the exercise of a sound discretionary judgment; once the relevant circumstances are ascertained, the sentence appears plainly excessive or it does not: R v Demaria [2008] VSCA 105 at [18]; Clarkson v The Queen [2014] VSCA 59 at [89] (a joint judgment of Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
There are features of this case that make it a serious case of indecent assault. I have already discussed the nature of the assault which no doubt, of itself, made it indecent in the eyes of the jury. The complainant suffered an intellectual disability and, as the sentencing judge found, the appellant's behaviour involved a "breach of confidence" and an abuse of a friendship. As a result of coaxing by the appellant, the complainant reluctantly went over to the bed. No force or threats were used, but the jury found that the complainant did not freely consent. Assuming all of the provisions of the Code, s 2A, were left to the jury, that may have been because the complainant did not "say or do anything to communicate consent": s 2A(2)(a). It is possible that the jury found an absence of free agreement because the complainant was overborne "by the nature or position" of the appellant: s 2A(2)(e).
As found by the sentencing judge, the complainant was considerably distressed by the appellant's actions. The appellant denied any wrongdoing, and so is not able to claim the benefit of remorse, or other mitigation that flows from a plea of guilty. However, the appellant's lies to police and his denials through his plea of not guilty are not aggravating factors. The respondent did not identify any other factors said to make this a serious case of indecent assault. Counsel for the respondent referred to the appellant's prior convictions, but conceded that there were "limited parallels" to this offending.
In K Warner, Sentencing in Tasmania, 2nd ed, the statistics for a single count of indecent assault for the years 1987-1989, and 1990-2000 are set out at p 320. There is a cautionary note that the two different periods are not directly comparable because of the changes in 1987. In relation to the second period, there were 41 cases, 87% of which involved a custodial penalty. The median custodial sentence was four months. The maximum was 12 months' imprisonment, of which there were two instances. Those cases both involved child victims under the age of 10. The statistics published by the Sentencing Advisory Council show 29 cases of single count counts of indecent assault in the period 2001-2014. The median custodial sentence was 4.3 months. The maximum was 15 months' imprisonment. It seems that there is only one such sentence: L, Wood J, 30 August 2011. The accused was 37 and indecently assaulted a 16-year old girl while she was asleep. She woke to find him licking her vagina.
Since 2014, there have only been two cases of a single count of indecent assault. One of those was a sentence of four months wholly suspended, with community service. The other is more relevant. It is Hobson, Estcourt J, 31 July 2015. The crime was committed in 1986 in circumstances, as his Honour noted, that would now constitute the crime of aggravated sexual assault. The accused was then 24 years old; the complainant was 10, and was accompanying the accused on a work trip during school holidays. In the room in which they were staying, the accused picked the complainant up, forcefully removed his jeans and underwear and inserted his finger into the complainant's anus for quite a time. The sentence was one of 18 months' imprisonment, the execution of the whole of which was suspended on conditions, and the accused was fined the sum of $5,000. The accused had prior convictions for sexual offences involving children; those offences predated the 1986 offending. No sentence of immediate imprisonment had been imposed.
The limitations on the value of sentencing statistics have often been noted. To be of any value, the number of cases must be such as to provide a discernible established range, and the sentences must be for comparable offending. Difficulties are created when the offence can be committed in various ways, and by the wide variation in circumstances from case to case. An established range does not mean that the range is correct, nor that its lower and upper limits are correct. Where a sentence is outside the range of comparable offending, it is not determinative of the issue; that merely serves to increase the level of scrutiny. An appeal court must make its own evaluation of the gravity of the offence in light of all the facts and circumstances. See Director of Public Prosecutions v Harris [2013] TASCCA 5 per Wood J at [15], Estcourt J at [51]-[52]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]; Connelly v Tasmania [2015] TASCCA 15 at [5]; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24], [26].
I adopt the approach to the crime and to the facts of the matter as I have explained. I derive some assistance from the statistical data and the cases I have mentioned, bearing in mind the limitations. Undoubtedly, this was a serious example of this type of crime. That is because of the nature of the assault itself which involved a high level of violation, and the (related) high level of indecency of that assault. There is also the issue of the complainant's disability. However, the issue of consent was a rather unusual one. No force or threats were used. The complainant's reluctance was of a sufficient level that free agreement was negated. The offence was opportunistic in the context of some previous sexualised meetings in the appellant's unit, albeit, on the complainant's evidence, it was the appellant who unilaterally engaged in the sexual activity.
Some regard had to be had to the appellant's prior offending, although that was really quite of a different nature in its specifics. To describe this offending as "not isolated" suggests that it was part of a course of conduct or an ongoing pattern of behaviour. Of course, the appellant spent some six years in gaol from 1995, but even so, it needs to be borne in mind that his earlier offending happened between 21 and 29 years before this offence, with no recorded history of any note since his release. Additionally, I think the appellant's own intellectual difficulties were relevant as background information. In my view, taking into account all matters, the sentence is manifestly excessive.
I would allow the appeal, and set aside the sentence, but leave the order under the Community Protection (Offender Reporting) Act undisturbed. Counsel for the appellant advised this Court that the appellant's health had further deteriorated since his imprisonment. He is now mostly wheelchair bound, but it was not suggested that imprisonment was a cause of that, nor that his present state creates a greater burden on him to the extent that it attracts leniency: R v Smith (1987) 44 SASR 587 at 589; R v Badanjak [2004] NSWCCA 395 at [9].
I would sentence the appellant to 18 months' imprisonment to commence on 31 January 2017. I would order that the appellant not be eligible for parole until he has served 10 months of that sentence.
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