V v Tasmania
[2006] TASSC 96
•15 November 2006
[2006] TASSC 96
CITATION: V v Tasmania [2006] TASSC 96
PARTIES: V
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 74/2005
DELIVERED ON: 15 November 2006
DELIVERED AT: Hobart
HEARING DATE: 1 November 2006
JUDGMENT OF: Crawford, Slicer and Tennent JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Other matters – Maintaining a sexual relationship with a young person under the age of 17 years – Crime committed against step-daughter over six year period – Whether six years imprisonment manifestly excessive.
Aust Dig Criminal Law [851]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: K Brown
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 96
Number of paragraphs: 20
Serial No 96/2006
File No CCA 74/2005
V v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
TENNENT J
15 November 2006
Orders of the Court
Appeal dismissed.
Serial No 96/2006
File No CCA 74/2005
V v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
15 November 2006
I agree with the reasons for judgment of Tennent J and her conclusion that the appeal must be dismissed.
File No CCA 74/2005
V v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
15 November 2006
I have read in draft form the reasons for judgment of Tennent J and agree with her conclusion. Even if, as asserted by the appellant on the hearing of the appeal, there was no sexual misconduct during the time the family lived at Gagebrook, the course of conduct as found by the learned sentencing judge was "habitual" and commenced when the complainant was in Grade 2 at school and did not end until she was 14. Further, the complainant had described the form of sexual activity which commenced when she was in Grade 2 as continuing until its escalation when she was in "Grade seven or eight".
The appellant has shown no remorse for his conduct and is not entitled to the benefit of a plea of guilty.
The sentence itself does not show error. I would dismiss the appeal.
File No CCA 74/2005
V v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
15 November 2006
On 21 September 2005 the appellant was found guilty by a jury of maintaining a sexual relationship with a young person under the age of 17 years contrary to the Criminal Code Act 1924 ("the Code"), s125A. The complainant, ("J"), was his step-daughter and the offending was said to have occurred between 1983 and 1989. J was born on 15 May 1975 and was therefore between the ages of about 8 and 14.
The Code, s125A, requires the jury to be satisfied that at least three sexual acts occurred before it may convict. In this case there was evidence from J that the appellant's behaviour towards her began with his regularly rubbing his penis between her thighs and graduated, as she got older, to anal intercourse, vaginal intercourse and oral intercourse. He would also touch her breasts. The rubbing of the penis happened weekly and it was asserted the anal penetration and touching of breasts occurred at least fortnightly.
The appellant gave evidence at the trial during which he admitted that he had had vaginal sexual intercourse with J twice. He said, however, that on each occasion J had asked for the sex and after the first, said that she liked it and wanted the second. He denied any other sexual acts or any type of sexualised behaviour between he and J.
The learned sentencing judge made a number of findings of fact for the purpose of sentencing and then sentenced the appellant to serve a period of six years' imprisonment with a non-parole period of four years. The appellant now submits that sentence was manifestly excessive in all the circumstances.
The appellant was unrepresented at the hearing of this appeal. He did not understand the process or what it was he was required to satisfy the Court about. With the assistance of the learned President of the Court, his attack upon the sentence was narrowed to an argument that the sentence imposed was beyond the range an offender could expect for this type of offending. The difficulty, however, both before and after discussion about this was that the appellant's approach was that he had pleaded guilty to having intercourse twice, but he did not do anything else and so the sentence imposed was much too high. It was pointed out to him that he was sentenced not on the basis of what he admitted to but on the basis of the jury's verdict and the findings of the learned sentencing judge. He had not challenged either of those.
However, during the course of his addressing the Court, the appellant referred to one area of the findings to which he took exception. He asserted that J had told the Court nothing happened between them while they lived together at an address at Gagebrook, between 1984 and 1986 and that the learned sentencing judge, when sentencing had said "The crime was committed over a period of about six years from 1983 to 1989 ...". A review of the evidence of J shows she gave no such evidence. She did not describe any specific acts during that period. However, her evidence was clear that sexual acts were occurring throughout the period she lived at that particular address.
Was the sentence manifestly excessive in all the circumstances?
The learned sentencing judge found that when J was between 8 and 14 years old at times when J was living with him, her mother living elsewhere with two other children, the appellant:
"… habitually assaulted her indecently by rubbing your penis between her legs and by having anal, vaginal and oral intercourse with her, on many occasions without her consent. A circumstance of aggravation is that you often wore women's underwear when you were committing crimes, I find, because it gave you sexual stimulation. Of course, it is not a crime to be a cross-dresser, but to so dress in those circumstances no doubt increased the psychological harm you caused the child by your sexual predation, for you were her father and she looked to you, in the absence of her mother's presence, for moral guidance and a stable upbringing.
Your crime is, in my view, a terrible one. You have seriously damaged the life of a woman who, as a young girl, learned to love and trust you as her father. Fortunately the damage she has suffered is not as bad as is often seen in cases like this. But your crime was a gross betrayal of her love and a breach of trust. There are no mitigating circumstances and no indication that I can see of remorse on your part. Indeed there were aspects of your evidence that suggest that you blamed her for your commission of this crime, a totally untenable proposition.
You are 54 years of age and without prior conviction. You claim that you were the object of sexual abuse as a child and the Court has been given a psychiatric report written with respect to you. But as I said to Ms Baumeler a moment ago that report contains nothing to suggest that because of the sexual assault you suffered as a child, your criminal responsibility for the commission of this crime is diminished."
The learned sentencing judge sentenced the appellant on the basis of six years of sexual misconduct of varying types in respect of a little girl who thought for at least part of the time the appellant was her father. He described the conduct as sexual predation. The appellant was in a position of trust and abused that trust. The learned sentencing judge saw no sign of remorse.
As to the issue of remorse, the appellant told this Court that he admitted to having sexual intercourse twice. He also pointed to the fact that he had admitted his behaviour to a Mrs S. She gave evidence at trial that she spoke to the appellant and he was crying, saying that his life was wrecked and he had lost his children. She asked him, "Well, why did you do it?" and he had replied he did it because he loved her. The appellant had also asked her if she had made a statement about this. He then said that J was only after money.
As to the admissions made in Court about the two acts of intercourse, had they been in the form of admissions in the context of recognition that he had done something terribly wrong for which he accepted full responsibility, these admissions could indeed have been accepted as an indication of remorse. However, the appellant did not make admissions in those terms. He, in effect, told the Court he did have intercourse, but on the first occasion J had offered it as a birthday gift and on the second she had approached him, said she had enjoyed the first time and could they do it again. In effect he was placing the blame on J for his conduct which was, as the learned sentencing judge found, no indication of remorse.
As to the statement to Mrs S, there was no evidence of what he actually admitted to and in any event again, his focus was upon what he had lost and a motive being attributed to J for why she might have made allegations against him and not at all on an acceptance of responsibility for the harm he might have caused. There can be no indication of remorse discerned from that evidence.
There was little indication of remorse demonstrated by the approach of the appellant before this Court. He persisted with the view that he had intercourse twice with J's consent and that he did nothing else despite the jury's verdict and the learned sentencing judge's findings which he had not attacked by appeal.
The appellant referred to some previous sentences of the Court, in particular R v P 11 March 2004, R v M 26 March 2004 and Tasmania v KP 19 April 2005. In all of these cases it should be noted that the offender pleaded guilty. They were, as a consequence, entitled to some reduction in their sentences to recognise that fact. In R v P (supra), the offender was the uncle of two girls he interfered with. The abuse of one occurred when she was between 12 and 14 years old and continued over 18 months. The abuse of the second occurred when she was 11 or 12 years old and continued over 6 to 12 months. There was no vaginal intercourse with the second girl, only the first. The offences occurred around 1971. The offender had serious health problems and required daily care. The court recognised that were it not for these serious health difficulties, the sentence would be much longer. The offender was ordered to serve 2½ years' imprisonment. Hence there were at least four factors in that case which led to a reduction in sentence, that is, the plea of guilty, the lesser nature of the conduct in respect of one girl, the shorter period of offending and the health problems, none of which were present in the case of the appellant.
In R v M (supra), again the sentence of the offender was reduced to give effect to prompt acceptance of guilt by admissions, a plea of guilty and very poor health. The offending also occurred in the 1970s. That offender was ordered to serve three years. In Tasmania v KP (supra), the offender committed crimes against three girls, two of whom were his daughters. He offended in 1960, 1980 and between 1970 and 1974/75. He was sentenced to a total of 2 years and 9 months' imprisonment. At the time of sentence he was 70 years old and confined to a wheelchair. The court there had to deal with the plea of guilty, age of offender, very poor health and an issue of parity in sentencing between this man and the girls' uncle, who had also abused two of them. There were, again, in these two cases factors resulting in a reduced sentence which were not present in the appellant's case.
To succeed on this appeal, the appellant must satisfy the Court that having regard to all relevant factors, the sentence was so far beyond what the Court would have imposed that it demonstrates error. It is not sufficient merely that the sentence was a high one. Having reviewed the findings of fact made by the learned sentencing judge, I am not satisfied that the appellant has demonstrated that the sentence was in all the circumstances manifestly excessive.
I would dismiss the appeal.
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