Thomas William Bell v Gary Ian Griffths

[1981] FCA 114

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

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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.

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. ..

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

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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

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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

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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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