| HIS HONOUR: | I ~ 1 1 1 | not say any more about that. | Sometimes |
| they can be | brought on at short notice by |
agreement or somethlng.
AT 3.52 PM THE MATTER WAS ADJOURNED
INDEFINITELY
| tllf 2 J1 |
| bopet 2.7.81 | 1 4 3 |
| MR NORRIS: Were | it not for factors of that kind | we might be |
suggesting that the sentence was too severe, but we are not suggesting that and for those very
| reasons, your Honour. What we are saying | or |
| seeking to say or to submit | is that the sentence |
in many respects if not in all respects was a proper
| one having regard | to the conduct of the men on that |
particular day. But having regard to the other
| factors superimposed upon that outside | t, that it |
was one which justice would not necessarily require
| should be served. May | it please your Honours. |
| FOX J: | Thank you, l& | Norris. | Do you wish to say anything, |
M r Hempenstall?
MR HEMPENSTALL: No, your Honour.
| FOX J: | The court will adjourn for a short while and |
| consider what course | it should take. |
l
| FOX J: | The court will deliver judgment | In thls matter |
| at 4 o'clock this afternoon. The appellant may | ! |
| t7f | go at | large on hls | present | bail | until | that | ime. |
| FOX J: The judgment | I am about to deliver is that of the |
court.
| This is | an appeal against the de&sion | of |
the Supreme Court of the Australian Capital
Territory confirmlng sentences imposed by the
Court of Petty Sesslons of the Australian
| Capital Territory | on 13 November 1980. |
The appellant pleaded gullty to two charges
| before the Court | of Petty Sessions. One was |
| under s .72 of the Crimes Act | 1900 of New South |
Wales, as amended, in its applicatlon to the
Australian Capital Territory. It was in
| i | substance that on 5 November 1980 he had |
| attempted to have carnal knowledge | of one | |
| Tanya Maree Robson, a glrl then aged just under |
| i | | 15 years. On thls charge | he was sentenced by | |
| the learned magistrate to nine months imprisonment and ordered to be released after he had served three |
| months upon givlng his | ~ w n | security in the sum of | |
$200 that he would be of good behaviour for a period
of two years. |
| grlffell | 14 .4 .81 | 23 |
| t8f 1 cr |
| The second charge | was under s.76 of the |
| Crimes Act 1900 of New South | Iialcs, as amended, |
| l | in its application to the Australlan Capltal |
| Territory and It was that on the same | day, | |
| namely 5 November 1980, he indecently assaulted the same glrl. On that charge he was sentenced to three months imprisonment. |
| The appellant was at the time | 4 4 y ars of age, |
unmarried, and a partner in a steel fabrlcation firm
| known as G . & D. | Steel Works at Fyshwick. | Hls |
| partner was a | Mr Pasquerrello and the latter was |
| sentenced on the same occasion | for two offences, |
| one of carnal | knowledge of the | same girl, |
Tanya Maree Robson, and the other for indecent assault on her younger sister, Kim Katrina Robson,
| who was then | 13 years old. |
| Mr Pasquerrello was sentenced | on the first |
charge mentioned to 15 months imprlsonment and
| he was | ordered to | be released after he had | served |
| SIX months upon glving security in the | sum of |
| $200 that he vould be | of good behavlour for a |
perlod of two years. On the second charge he
was sentenced to six months Imprisonment.
Both appealed to the Supreme Court against
| sentence but their appeals were dismlssed | on |
i
4 March .this year.
| On the hearing | of Mr Bell's appeal to thls |
court leave was sought to admit fresh evldence
I
| in the form | of an affldavit | of the appellant. |
The respondent not obJectlng, we gave leave. The
| affidavlt was concerned with the nature | of the |
steel fabrication business already referred to
| and the consequences | for that busmess If the |
appellant were required to serve a gaol sentence.
Presumably Mr Pasquerrello's sentence still
| some | months | has | run. | to | - |
| The relevant facts are more fully set out |
| , | in the judgment of the learned judge from whom |
| this appeal comes and we shall not try | o | |
| recapitulate them. The two men took the two |
| 9x1s by car on a weekday | to a picnic spot | |
| known as Pine Island on the Murrumbldgee River. |
| The glrls should on the occaslon have been at | I | |
| school but | it appears that they had often played | |
truant. Thelr parents both went to work durlng
the day. |
| l | Mr Pasquerrello, who was known | to the parents |
| of the two glrls, agreed | to them coming around to |
| the firm's workshop on the mornlng of the day | on |
| whlch the offences were committed and | It was from |
there that some time later they all set out. They
| stopped on the way | to acqulre some refreshments |
| grlffell | 1 4 . 4 . 8 1 | 2 4 |
| t8€ 2 cr |
including intoxicating liquor. The appellant did
not plan the day's actlvity from the beginnlng
although he certainly went along wlth the suggestion
| that all four | go to P m e Island. | He had not |
previously known the glrls.
At Plne Island they had lunch and consumed
llquor and after that various sexual activities
| occurred. | There is a dispute in the materials |
| before us as | to just what happened but | to the |
| extent that they were not admltted | or resolved below |
we have to accept the version most favourable to
the appellant. On the evldence the girls were
sexually precocious and the elder at least was
| in thls regard quite provocative. | She orlglnally |
notified the appellant that she would not have
| sexual intercourse with him | or suck his penis | but- |
her later actions, which were perhaps affected by
alcohol, seem to show at least a partial change
in her attltude.
One of the earllest sexual activities was
when the appellant produced his penis and invited
| the elder girl | to masturbate him which she did |
to the point of ejaculation. They all subsequently
| undressed. Other activitles | occurred in | whlch |
| Mr Pasquerrello | was involved and he had | intercourse |
with the same glrl. At a later stage Mr Pasquerrello
also engaged in sexual activity, short of intercourse,
with the younger girl.
| A time was reached when Tanya lay on top appellant and moved up and | f the |
down on him. He at about,
| that time handled her breasts but he was | not ble |
to effect genetration although as he admits, he
| would have wished | to do so.. This was presumably |
| due to hls recent ejaculation. | He lay on her |
| for a time. Although the appellant | rras there and |
was totally undressed, as were the girls, what has already been mentioned amounts in substance to the totality of the speclfic conduct alleged agalnst him.
| The girl Tanya was apparently quite inebriated |
when she returned home and was interrogated about
| this matter by her mother. | The day's | actlvities |
were then revealea. resultlng in pollce actlon. Evidence glven on behalf of the prosecution was to
| the effect that the appellant | was "very, very honest" |
| and "co-operative in relation | to the inquiries" |
| and that "he appeared | to be very remorseful". |
There is other evldence indlcatlng that the
| occasion was a completely lsolated one | s far P S |
| the appellant | was concerned. | He has one prior |
| conviction in July 1968 for falling | to qult |
| licensed premlses for whlch he was flned | $6. |
It 1s apparent that both the maglstrate and the
| learned Judge before whom the matter came | on appeal |
| grlffell 14.4.81 | 25 |
| t8f 3 cr |
were of the view that Mr Pasquerrello was more
| responsible for the occurrence of the events | on |
| the day in question and had been guilty | oE more |
serious activity than had the appellant.
The learned judge delivered one judgment in both
| appeals. Although we make no criticlsm | of-thls- |
course it does make it difficult at times to
| know which appellant he is referring | to. He |
expressed the view that if anything the magistrate
was lenient In his approach and he may have meant
this to apply to both cases.
The principles upon which we should proceed
when dealing with an appeal of this nature are
| well established and need no repetition. | It is |
| important that this court | not simply substitute |
| Its own view for that of the magistrate | or the |
| judge. | In strictness the question in this case |
| is whether the judge erred in some manner | In ot |
| allowing the appeal | to hlm by | Mr Bell, but | we |
| must go | to the sentences and apply ordinary |
principles.
The Judge says that, "The circumstances
indicate that at the relevant time the appellants
engaged in acts which could only be described as
| acts of depravity". | We flnd It hard to accept | I |
that the present appellant was guilty of depraved
| acts. If his | conduct had | been with a | young |
| woman a year | or two older | it certainly would |
| not have been | so described although many would |
| doubtless disapprove of it. | The reference we |
believe is rather to the conduct of Mr Pasquerrello
| with the younger girl. Later | in his judgment his |
| Honour does deal specifically with | Mr Bell but |
says that he was satisfied that Mr Bell took part
in the "whole sordld affalr" wlllingly. This
| is certainly true | for the greater part but, as already |
mentioned, there is no evidence that Mr Bell had
| any hand in brlnging the girls | to the iiorkshop | on |
| the morning In questlon | or indeed that he had any |
| prlor knowledge | of what the learned judge has |
| called their "singular | precocity".. |
In relation to the more serlous of the charges
| against the appellant, namely that | of attempted |
carnal knowledge, the evidence does seem to have
| been very slim indeed. The version | of the facts |
| that has | to be accepted | 1 s that the elder girl |
made the advances to hlm and that while he would
| have liked | to have Intercourse he just could not |
| do so. | There was no precise evidence of any acts |
| on his part by way | of attempt. Certainly he was |
| not at this stage encouraging | or inviting intercourse. |
Counsel for the appellant does not seek to have
the head sentence in relatlon to the more serlous
| griffe11 14.4.81 | 26 |
| t8f 4 cr |
| charge altered but asks that the whole | be suspended. |
Similarly, in relation to the Indecent assault
| he asks that there be substituted | an order which |
| enables immediate release in lieu | of the three |
| months gaol sentence. | \ |
| Ne believe that the sentence | of &ne months |
| lrnprisonment should remain, and we are | of the | n e w |
| that the appellant should | go to gaol for a period. |
| On the whole and taking into account | the fresh |
evidence produced before us we are of the opinion
that the public interest will be sufficiently
| served by the appellant serving | a term of one |
| months imprisonment. |
In relatlon to the second charge the sentence
| of three months imprisonment will stand but | we are of |
the view that the appellant should be released after serving one months lmprisonment. The sentences are to be served concurrently.
The order of the court is therefore that the
appeal be allowed and the sentences below set
| aslde. | In relation to the first-mentioned charge |
| the appellant | is sentenced to nine months |
imprisonment and ordered to be released after one
| month upon entering into his | own recognlzance in |
| the sum of $200 to be of good behaviour for | two |
| years. |
| In relation to the second charge the appellant | ! |
| is sentenced to a term | of three months lmprlsonrnent |
and ordered to be released after one month upon
entering into the aforementioned recdgnizance.
The sentences are to be served concurrently and
are to date from today. We remit the matter to
the Supreme Court of the Australian Capital Territory
for execution in accordance with this judgment.
AT 4 . 3 4 PM THE MATTER WAS ADJOURNED
INDEFINITELY |
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| t8f 5 cr |