GPR v The Queen [2007] NTCCA 12

PARTIES: GPR

v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 4 of 2007 (20618824)

DELIVERED: 30 October 2007

HEARING DATE: 24 October 2007

JUDGMENT OF: ANGEL, MILDREN & SOUTHWOOD JJ

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – application for extension of time within which to appeal – application allowed - leave to appeal against sentence granted

APPEAL – CRIMINAL LAW – Appeal against sentence – one count of gross indecency and two counts of indecent dealing – whether sentences were manifestly excessive – whether the sentences were outside the range of sentences imposed in 1991 for similar offences on offenders with similar antecedents - appeal allowed – re-sentenced

Sentencing Act (NT), s 5(2)(b), s 55A and s 78BB

The Queen v Peter Campbell Chandler (unreported, proceeding number 9124845, delivered on 9 June 1998);
Green v The Queen (2006) 19 NTLR 1;
Moon (2000) 117 A Crim R 497;
Randenkovic v The Queen (1990) 170 CLR 623

REPRESENTATION:

Counsel:
Appellant: I Read
Respondent: R Coates and H Roberts

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Sou0753
Number of pages: 15

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

GPR v The Queen [2007] NTCCA 12
No CA 4 of 2007 (20618824)

BETWEEN:

GPR
Appellant

AND:

THE QUEEN
Respondent

CORAM: ANGEL, MILDREN & SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 30 October 2007)

Angel J:
[1] I have nothing to add to the reasons of Southwood J for extending time within which to seek leave to appeal, granting such leave, allowing the appeal and re sentencing the appellant as we did on 24 October.


Mildren J:
[2] I have read a draft of the Judgment prepared by Southwood J. His Honour’s reasons reflect my own opinion. I have nothing further to add.
Southwood J:


Introduction
[3] On 24 October 2007 the court allowed the appellant’s appeal against three sentences of imprisonment that were imposed on him by the Supreme Court. The court made the following orders:


1. The time in which the appellant may file an application for leave to appeal against sentence is extended.
2. Leave to appeal against sentence is granted to the appellant.
3. The appeal against sentence is allowed.
4. The sentences of imprisonment imposed on the appellant by the Supreme Court on 22 March 2007 are set aside.
5. The appellant is sentenced to two years and six months imprisonment for the crime of gross indecency. The sentence of imprisonment is back dated to 16 March 2007.
6. The appellant is sentenced to six months imprisonment for the crime of indecent dealing with a child under the age of 16 years. The sentence of imprisonment is to be served concurrently with the sentence of imprisonment for the crime of gross indecency.
7. The appellant is sentenced to 18 months imprisonment for the crime of aggravated indecent dealing with a child under the age of 10 years. Twelve months of the sentence of imprisonment is to be served concurrently with the sentence of imprisonment for the crime of gross indecency.
8. The total sentence of imprisonment of three years is to be suspended after the offender has served 12 months in prison from 16 March 2007.
9. Under s 40(6) of the Sentencing Act it is specified that the appellant is not to commit another offence punishable by a term of imprisonment during the period of two years immediately following his release from prison.


[4] The court stated that the judges who constituted the court would publish their reasons for decision at a later date. Following are my reasons for decision.


The sentences of imprisonment imposed at first instance
[5] On 22 March 2007 the sentencing judge sentenced the appellant to: three years and four months imprisonment for the crime of gross indecency which was backdated to 16 March 2007; nine months imprisonment for the crime of indecent dealing with a child under the age of 16 years; and to two years and seven months imprisonment for the crime of aggravated indecent dealing with a child under the age of 10 years.


[6] The sentencing judge ordered that the sentence of imprisonment for indecent dealing with a child under the age of 16 years be served concurrently with the sentence of imprisonment for the crime of gross indecency and that one year and five months of the sentence of imprisonment for the crime of aggravated indecent dealing with a child under the age of 10 years be served cumulatively upon the sentence of imprisonment for the crime of gross indecency. The total sentence of imprisonment imposed on the appellant was four years and nine months. The sentencing judge ordered that the total sentence of imprisonment be suspended after the appellant had served 18 months in prison on condition that the appellant enter into a bond in the amount of $1000 to be of good behaviour for four years from the date of his release from prison.


The Facts
[7] The sentencing judge found that the following facts had been proved. The appellant was born in June 1953. He was 37 or 38 years of age at the time he committed the crimes. He is now 54 years of age. He was raised in Adelaide. The appellant told a psychiatrist who provided a report which was tendered in evidence that his mother was a very strange person. The appellant found it very difficult to relate to his mother. The appellant’s mother had wanted a girl and when the appellant was a child she often dressed the appellant in girl’s clothes. The appellant’s mother was extremely possessive but also oddly withdrawn. As a teenager the appellant was extremely embarrassed because his mother insisted on buying clothes which he intensely disliked. He eventually left home in order to get away from his mother.


[8] The appellant left school at the age of 16 years having passed year 11 with quite good marks. He worked for a number of years as a technician. In 1992 he changed direction and he undertook casual work as a cabler before joining a cabling company.


[9] The appellant has lived in Darwin since 1974. He married in 1978. He has one son who lives in the north of Western Australia. The appellant told the psychiatrist that his marriage was never strong. However, both his wife and his son are continuing to support him. They provided references which were tendered in evidence.


[10] The psychiatrist described the appellant as shy, insecure, socially marginalised and sexually ambivalent. The appellant told the psychiatrist that at the age of about 21 or 22 he had a relationship with a young man of the same age who was also rather anxious and shy. The relationship involved occasional sexual contact but the appellant and the young man did not live together. In the appellant’s words to the psychiatrist, he was fascinated in one way and appalled in another. The appellant still thinks from time to time of sexual contact with men. However, he has never done anything about his feelings. He does not watch pornography and he does not subscribe to X-rated television channels.


[11] The psychiatrist also reported that at the time the appellant committed the crimes he was unhappy because of continuing problems at work and life at home never seemed good. The crimes cannot be explained as the outcome of a mental illness, but the psychiatrist observed, that under pressure, shy, insecure and socially marginalised individuals may act in uncharacteristic ways. It was the psychiatrist’s opinion that there was no risk of the offender re-offending in a similar manner.


[12] From time to time during 1991 the appellant and his wife had the care of two boys. The eldest boy was 13 years of age and the youngest boy was eight or nine years of age. On occasion the boys would stay at the appellant’s home for sleepovers. When they did the eldest boy would sleep on a mattress on the floor in the appellant’s son’s room and the youngest boy would sleep on a mattress in the spare room.


[13] During 1991 the appellant committed the offence of gross indecency on the 13 year old boy while the boy was asleep on the mattress in his son’s bedroom. The child awoke as a result of feeling the prickles caused by the appellant’s beard. The appellant was lying on the floor facing the boy with the boy’s erect penis in his mouth. The appellant looked at the boy and said, “You hate me now, don’t you?” and then left the room. On another occasion when the 13 year old boy was sleeping at the appellant’s home the boy was awoken by the sensation of the appellant fondling his genitals, holding his penis in one hand and stroking it and his scrotum. The boy did not say anything and eventually the appellant desisted and left the room.


[14] The facts of the crime of indecent dealing with the youngest boy were as follows. The boy woke up in the appellant’s house one morning to the sensation of the appellant pulling at his genitals. The appellant was crouching down beside the mattress and pulling the boy’s penis through his clothing. After a couple of seconds the boy struck the appellant’s hand in order to get him to stop what he was doing. The appellant did not stop, so the boy hit the appellant’s hand harder and the appellant desisted. The appellant then left the room quickly without saying anything.


[15] The crimes did not come to light until some time in 2006. When interviewed by police in June 2006 the appellant made a full confession. The appellant told police it was not sexual gratification on his part and he was not interested in sexual intercourse with the children. He said he was fascinated with their bodies.


[16] The sentencing Judge found that the crimes had a devastating affect upon the children. He stated that the victim impact statements well demonstrate the psychological affects which have lasted in fluctuating intensity for over 15 years and they provide a graphic demonstration of how even sexual assault of short duration and not involving physical force can cause long lasting and psychological damage to victims who were children at the time the crimes were committed.


[17] Prior to committing these crimes the appellant had no convictions for any criminal offences.


The Grounds of Appeal
[18] The appellant relied on two grounds of appeal. First, the appellant submitted that each of the sentences of imprisonment imposed on the appellant was manifestly excessive. Secondly, the appellant submitted that each of the sentences of imprisonment imposed on the appellant was outside of the range of sentences imposed by the Supreme Court during 1991 for similar offences on offenders with similar antecedents. The appellant abandoned a third ground of appeal. The abandoned ground of appeal was that the sentencing judge gave undue weight to the victim impact statements.


The arguments of the appellant
[19] As to both the first and second grounds of appeal the appellant relied on the principle that an offender is to be sentenced in accordance with the statutory maxima and sentencing standards applicable at the time of his offending: Randenkovic v The Queen (1990) 170 CLR 623; Green v The Queen (2006) 19 NTLR 1. The appellant stated that in 1991 the range of sentences for the offence of gross indecency of a child with counts of indecent dealing on the same indictment on offenders in a position of trust and with no relevant prior convictions was a head sentence from 18 months to three and a half years with a period of actual imprisonment of about six months.


[20] The appellant argued that the objective seriousness of the offending and the subjective factors in the case warranted a sentence which was at the lower end of the range of sentences. The relevant sentencing factors were as follows: the offences were of brief duration; the appellant made full confessions when interviewed by police in 2006; without the appellant’s confessions it is likely that the offences could not have been proved; the pleas of the appellant clearly evidenced a willingness to facilitate justice; the appellant cooperated with police; his plea of guilty was an early plea of guilty; the appellant was thoroughly remorseful; the offences were out of character; the appellant had no prior or subsequent convictions; the appellant was unlikely to re-offend and had excellent prospects of rehabilitation.


[21] In support of the appellant’s argument the appellant referred the court to a number of sentences that were passed by the Supreme Court between 23 July 1990 and 13 August 1992. The head sentences of these cases ranged from 18 months to three years and six months. The sentences of imprisonment were either wholly suspended or partly suspended after a period of six months or a non-parole period of six months was fixed. In one of the matters on which the appellant relied the sentencing judge was referred to sentencing statistics which were to the effect that the imposition of an immediate sentence of imprisonment for a first time sexual offender was the exception rather than the rule.


The arguments of the Crown
[22] The Crown argued that the principle that a sentencing court should so far as practicable apply the sentencing standards applicable at the time of the commission of the offence was subject to certain qualifications. In Green v The Queen (supra) at par [45] Martin CJ stated:
The view I have expressed is subject to important qualifications. First, the general principle is not an inflexible rule. If good grounds exist, it may be appropriate to apply current sentencing standards. Secondly, the general principle can be applied only if it is reasonably practicable to do so. If the available evidence fails to establish a change in sentencing standards between the commission of the offence and the time of sentencing, the court will be left with no alternative but to apply current standards. There is a third qualification. Statutory changes in sentencing regimes can complicate the application of the general principle as a matter of practicality and they might dictate that the general principle has been qualified or is inapplicable.


[23] The Director of Public Prosecutions stated that in the circumstances of this case the Sentencing Act operated to qualify the general principle in particular respects. Most notably, the court is required to have regard to the harm done to the victim: s 5(2)(b) of the Sentencing Act, the court must order the offender to serve a term of actual imprisonment: s 78BB of the Sentencing Act, and if the court determines to fix a non-parole period the court must fix a non-parole period of 70 per cent of the head sentence: s 55A of the Sentencing Act. Further, the available evidence in this case failed to establish a change in sentencing standards. A change in sentencing standards can only be established if there exists an authentic and credible body of statistical material which is capable of establishing the range of sentences that existed at the earlier time.


[24] In the circumstances of this case the sentencing judge correctly applied the approach described in Moon (2000) 117 A Crim R 497 at 511. The sentencing judge had regard to the maximum penalty at the time the crimes were committed and the nature of the conduct proscribed by the relevant sections of the Criminal Code. In the circumstances the sentencing discretion was properly exercised.


Conclusion
[25] Having had regard to the various sentencing remarks referred to by the appellant and to current sentencing practices I am satisfied that in 1991 different sentencing standards were applicable to the crimes committed by the appellant. The sentencing standards applicable to such offences in 1991 were more lenient. Although the size of the sample of sentencing remarks referred to by the appellant is small the sample includes the sentencing remarks of five judges of the Supreme Court of the Northern Territory, which is a court constituted by six judges, and there is considerable consistency in the approaches of the judges in passing such sentences. The Director of Public Prosecutions was unable to refer the court to a case in which an offender was sentenced to a higher sentence of imprisonment than the highest sentence of imprisonment referred to by the appellant.


[26] In 1991 the maximum sentence for each offence for which the appellant was sentenced was lower than it is today, a more therapeutic approach to sentencing was adopted by the Supreme Court, the prevalence of such offending does not appear to have been an issue, and the Supreme Court gave less weight to general deterrence. Concern was also expressed by a number of the sentencing judges about the treatment that such offenders would receive in prison and the lack of a Sexual Offender Program in prisons in the Northern Territory. In a number of cases the court made it a condition of a suspended sentence that the offender was to undertake some form of counselling or receive some form of medication in order to control his behaviour.


[27] Contrary to the submissions of the Director of Public Prosecutions it is apparent that in 1991 sentencing Judges did consider the harm caused to the victims of such crimes. It was not uncommon for expert reports about the extent of the harm caused to the victims to be tendered in evidence and at least on one occasion a victim impact statement was tendered in evidence. It is for this reason that the appellant abandoned the third ground of appeal.


[28] Support for the conclusion that offenders were sentenced more leniently in 1991 for such crimes is to be found in the sentencing remarks of Kearney A/CJ in The Queen v Peter Campbell Chandler (unreported, proceeding number 9124845, delivered on 9 June 1998). In that case the offender committed the crime of gross indecency. He sucked a seven year old boy’s penis for a short time. The offender was sentenced to 15 months imprisonment, to be suspended after three months. After reviewing a number of sentencing remarks of the Supreme Court, Kearney J stated, “I think it is right to sentence you along the general lines in which people were sentenced for this offending back in 1991. I should say that because offences of that sort committed in recent years, 1996, 1997 and today, are sentenced more severely than they were back in 1991.”


[29] In contrast to the sentencing standards of 1991, the sentencing judge in this case stated that this type of offending has been far too common for many years. His Honour gave considerable weight to general deterrence. He stated that, “General deterrence, that is deterring others who are minded to commit offences of this type, is a very significant factor in the exercise of the sentencing discretion. The community, and children, are entitled to know that the criminal court will do what it can to protect children.” The sentencing Judge made these remarks in circumstances where there was no evidence before him about the prevalence of such crimes at the time the offender committed the crimes for which he was sentenced.


[30] In the circumstances it is apparent that the sentencing judge erred in that he did not apply the sentencing standards that were applicable in 1991. His Honour erred because he was not given all of the assistance that he should have been given by counsel who appeared before him. The sentencing judge was not provided with the various sentencing remarks of the Supreme Court that were made available to this court. Ordinarily leave to appeal against sentence would be refused in such circumstances. However, the Director of Public Prosecutions did not object to the additional materials being placed before this Court. He fairly acknowledged that it would have taken considerable time for the appellant’s legal advisors to have undertaken the necessary research and gathered together all of the materials.


Re-sentencing the appellant
[31] In concurring with the other members of the court about the sentences of imprisonment to be imposed on the appellant I had regard to the following matters.


[32] The offending was serious. There was a considerable difference between the age of the appellant and the age of the children. The appellant was in a position of trust and he assumed a duty to keep the boys safe. The children were completely vulnerable at the time the appellant committed the crimes. The children felt humiliated and degraded and they have suffered considerable emotional harm. The offender engaged in abhorrent conduct which is the sought of conduct that causes moral outrage in the community.


[33] The objective seriousness of the offender’s conduct is qualified by the following factors. The offender’s culpability is reduced to a degree because at the time he committed the crimes he was under pressure at work and unhappy at home and because of his personality he was at risk of behaving in an uncharacteristic manner, the crimes were of brief duration and the appellant did not behave in a violent manner. No force was used by the appellant and he stopped his offending conduct when the children indicated that they objected to what he was doing.


[34] There are significant mitigating circumstances. The appellant did not commit any other crimes before he committed these crimes. The offending was out of character. The appellant has not committed any crimes since he committed these crimes and the risk of the appellant re-offending is minimal. The appellant was bashed by other prisoners while on remand. More than 16 years has elapsed since the offender committed these crimes. The appellant is thoroughly remorseful for the crimes that he committed and there are good prospects of the offender being rehabilitated.


[35] The sentences of imprisonment imposed on the appellant recognise that the appellant’s crimes were in no way precipitated by the conduct of the children. In no way whatsoever did the children have to accept the appellant’s conduct. The community strongly disapproves of the appellant’s crimes and the appellant must be justly punished for his crimes. At the same time little weight is to be given to the sentencing purpose of specific deterrence and there is no evidence before the court that such crimes were prevalent in 1991.
----------------------------------------------------