Wilks, S. v The Queen

[1992] FCA 844

Re: STEPHEN WILKS
And: THE QUEEN
No. ACT G38 of 1992
FED No. 844
Number of pages - 7
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Burchett(1) and O'Loughlin(1) JJ.

CATCHWORDS

Criminal Law - appeal against severity of sentence - factors of retribution and rehabilitation - balancing of those factors - substitution of sentences to take account of those factors

HEARING

CANBERRA

#DATE 6:11:1992

ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The sentences of two years' imprisonment to date from 2 June 1992

and the non-parole period of one year to date from the same date be set aside.

3. In substitution therefor, the appellant is sentenced to two years'

imprisonment on each count, the sentences to be served concurrently and to date from 2 June 1992.

4. The Court further directs that the appellant be released on 2

December 1992 upon his entering into a recognisance self in the sum of $2,000 conditioned that:

1. he will be of good behaviour for a period of 12 months;

2. that he be admitted to the Mancare institution in Canberra, submit himself to the supervision of the officer-in-charge of that institution for a period of 12 months and obey the house rules of that institution during that period.

Note: settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

GALLOP, BURCHETT AND O'LOUGHLIN JJ. This is an appeal against the severity of concurrent sentences imposed by the Supreme Court of the Australian Capital Territory (Miles C.J.) on 28 July 1992. The appellant was arraigned on 24 July and pleaded guilty to one offence of committing an act of indecency upon a person under the age of 10 years, to wit 4 years, and one offence of committing an act of indecency in the presence of the same child. On both counts the appellant was sentenced to two years' imprisonment to date from 2 June 1992, the sentences to be served concurrently, and the Court fixed a non-parole period of one year to date from the same date. The Court further recommended that the appellant be placed in the sex offenders' program, if there is such a program - if there is not, something similar, and that he receive alcohol and drug counselling whilst in prison.

1. The orders sought in the Notice of Appeal are that the sentences be set aside and that this Court suspend their operation or impose concurrent sentences of imprisonment of a shorter term.

2. The facts of the offences were set out in a statement of facts tendered in evidence to the sentencing judge. None of those facts was in any way disputed. The child was born in Canberra on 27 June 1987 and was thus four years nine months of age when the offences were committed between 19 and 22 March 1992. The facts were that the child lived with his mother, a single parent, and two sisters aged three and a half years and 13 months in the suburb of Braddon. The appellant knew the mother through her estranged de facto husband and he went to live with the mother and her children on about 10 March 1992. the arrangement was that he live on the premises, share the rent and look after the children when the mother went out.

3. The appellant was caring for the three children on Friday, 20 March 1992. He had apparently cashed his dole cheque and obtained supplies of liquor and cannabis. He was under the influence of those drugs when he displayed his erect penis to the boy and also played with the boy's penis. The child told his mother of those events on Sunday morning, 23 March 1992. She took the children to a friend's home where she contacted the Sexual Assault Unit of the Australian Federal Police. The same day, the appellant was interviewed, when he gave the police full details of the offences.

4. The appellant was born in Sydney on 16 April 1964. He was adopted at birth. The adopting parents separated when he was five years of age. The sentencing judge accepted that the appellant had difficulty in schooling and otherwise in his early years and began drinking alcohol to excess while a schoolboy. He has never had a steady job and has mostly lived on social service payments. He had difficulty in maintaining long term personal relationships and has some prior convictions for dishonesty, though not of a very serious nature. He has no prior convictions for sexual offences and no prior history of paederasty or paedophilia. He has no real interest in sexual relations with women.

5. His Honour observed that offences of indecency with children are to be treated as serious, especially when committed by those who stand in a position of trust as that appellant did. He accepted the opinion of a psychiatrist who had examined the appellant at the request of the appellant's legal advisers. That opinion was:
   

"I don't believe that there is a major risk that Stephen Wilks would offend against children in the future although if he were to again be in circumstances of minimal support and intoxicated he could well lose control over his behaviour and seek sexual amusement or comfort with a child. Treatment for this man should be directed toward rehabilitation of his overall personality with a particular focus on his drug problems. Without a better organised life and social and employment foci to help structure his existence he will continue to drift and therefore be at risk of either harm to himself or disturbed behaviour towards others. I believe it highly unlikely that a period in prison would usefully contribute to Mr Wilks's rehabilitation and would almost certainly further damage his already vulnerable personality."

1. His Honour added that the Mancare program (a program of sustained treatment of drug addiction and related problems involving institutional therapy, care and supervision conducted by the Salvation Army) appeared to be eminently suitable for the appellant for the purposes of treatment of his drug addiction and rehabilitation. However, his Honour went on to emphasise that the court's function is to sentence, and treatment of the offender for the purpose of rehabilitation is only one factor among many. He said that the sentence must reflect the seriousness with which society regards sexual exploitation of the young for the gratification of the more mature, and to provide protection for the young in so far as the courts are capable of providing such protection.

2. His Honour took into account the appellant's pleas of guilty, his ready admission of the offences and the contrition shown by the appellant. He also took into account the particular difficulties and hardships undergone in prison by persons who commit offences against children.

3. On the hearing of the appeal several submissions were made on behalf of the appellant. First it was submitted that the sentencing judge failed to give the prospect of the rehabilitation of the appellant the prominence that it warranted, and that the prospect of rehabilitation of the appellant by his placement at Mancare ought to have persuaded the sentencing judge that an immediate custodial sentence was not required, particularly as the appellant had already spent two months in custody and other shorter periods in a detoxification centre.

4. So far as the facts of the offences are concerned, it was submitted that on the ladder of seriousness of offences of indecency on children under the age of 10, the offences fell towards the bottom of the range, bearing in mind that there was no penetration of the child attempted or achieved, no physical harm was done to the child and that the offences were committed during one incident, which was an isolated occurrence, and on impulse when the appellant was heavily intoxicated.

5. Accepting, as we do, that such an offence, even in those circumstances, is a grave matter abhorrent in the eyes of our community, we consider that the real prospects of rehabilitation of the appellant warrant, in this situation, a different course from that taken by the Judge. On the facts of this case, the sentencing discretion miscarried when it was directed solely to imprisonment. It was a case for suspension of some part of the sentence on the footing of a recognisance ensuring a significant period of appropriate treatment in order to achieve and reinforce rehabilitation.

6. Since that approach was not taken, it is appropriate for us to exercise the sentencing discretion. In doing so, it should be noted that we have the assistance of suggestions made by the appellant's own counsel that there is a strong need of the benefits which could be derived from a period of 12 months' treatment within the Mancare program.

7. The appellant has indicated through his counsel that he is willing to enter into a recognisance conditioned that he submit himself to the supervision of the Mancare institution and obey that institution's house rules for a period of 12 months. We were also informed, and there was no dispute by the Crown, that the institution is willing to receive the appellant as an inmate of the institution.

8. The orders that we make are:
   

(1) the appeal is allowed;

(2) the sentences of two years' imprisonment to date from 2 June 1992 and the non-parole period of one year to date from the same date are set aside;

(3) in substitution therefor, the appellant is sentenced to two years' imprisonment on each count, the sentences to be served concurrently and to date from 2 June 1992;

(4) the Court further directs that the appellant be released on 2 December 1992 upon his entering into a recognisance self in the sum of $2,000 conditioned that:

1. he will be of good behaviour for a period of 12 months;

2. that he be admitted to the Mancare institution in Canberra, submit himself to the supervision of the officer-in-charge of that institution for a period of 12 months and obey the house rules of that institution during that period.