PARTIES: ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Miscellaneous matters - Other sex offenders - Maintaining sexual relationships with children - Indecent and aggravated sexual assaults upon children - Impact on victims - Whether 9 months' imprisonment manifestly inadequate.

Judgment Number: [2003] TASSC 8

3 Sentenced to imprisonment for 2 years 6 months with effect from 13 December 2002.

1 The respondent pleaded guilty to three separate indictments, the first two alleging that he maintained a sexual relationship with two young persons under the age of 17 years, and the third alleging that he indecently assaulted a third complainant. On all three indictments he was convicted and sentenced to a global penalty of nine months' imprisonment. The Attorney-General seeks leave to appeal against the sentence on the ground that it is manifestly inadequate in all the circumstances of the case.

2 By the first indictment it was alleged that the respondent had maintained the relationship between 1 July 1982 and 31 July 1986 with a child, R, who had been born in July 1976 and was aged between 6 and 10 years while the relationship subsisted. She was not related to him, but her guardians were friendly with the respondent and his wife and the complainant frequently stayed at the latter's home. On at least 15 separate occasions the respondent indecently assaulted her by placing his hand under her pyjamas while she was in bed and inserting his finger into her vagina. On one occasion after having done so, he pulled his penis out of his trousers and kept rubbing it all over her face, mainly around her mouth. She said in her statement, which was brought to the attention of the learned sentencing judge and not challenged, "I just lay there not moving with my eyes open; all I could feel was that it was wet." The incident went on for several minutes.

3 In the second indictment it was alleged that the respondent had maintained a sexual relationship between 1 January 1985 and 31 December 1986 with a child, K, who had been born on 31 January 1978 and was accordingly aged nearly 7 years at its commencement and was a month short of her 9th birthday at its end. On six occasions the complainant was assaulted by the respondent while she was in bed staying at his home. K was the cousin of R and two years younger, but R lived with her and K's mother and was brought up by the latter until she was about 14 years old. The respondent had assaulted K on these occasions by placing his hand down her pyjamas and rubbing her vagina.

4 The third indictment alleged that the respondent indecently assaulted a child, A, between 1 October 2001 and 22 December 2001 by placing his finger on her vagina. The child, aged 4 years, was his grandchild and had been staying with him and his wife. Again, the assault had been perpetrated while the child was in bed and the respondent had placed his hand down her pyjama pants.

5 The impact on each of the victims was significant. In the case of R and K, both now adults, each suffers from low self esteem. K cannot bear to be alone and has trouble sleeping. The relationship with her mother has broken down and she has become isolated and has lost many of her friends. R has nightmares three to four times a week, fearing that her own daughter, who is one year old, will suffer the same fate. She is over-protective of that child and of another older one. She has difficulties with sexual relations and cannot maintain a relationship. She suffers from nerves and has eating disorders. Following discovery of the incident with the child A, her parents' relationship broke down and they were separated for six months, both seeking solace in alcohol. Now re-united, they are hyper-vigilant and will not allow their children to go out with anyone. The child no longer goes to day care and does not see her grandmother. She suffers from anxiety and panic attacks.

6 Mr Coates on behalf of the applicant submits that the penalty of nine months' imprisonment is manifestly inadequate in the aggravating circumstances of there being three separate complainants, all of whom were of tender years at the time of the offences, of the conduct in question persisting for a considerable length of time in respect of the first two complainants and of the respondent's persistence in his criminal conduct by again offending in late 2001. He stresses that there has been demonstrable rather than anticipated serious impact on all three complainants, particularly the two elder ones, and emphasises the gravity of the sexual assaults upon R in particular.

7 The respondent is 55 years of age. His own marital relationship has, predictably, broken down as a result of the detection of his offences, as has his relationship with his own children and other members of his community. He has no previous convictions of a sexual character, but several for offences against road safety measures indicative of an alcohol problem. When first confronted by his wife in about January 2002, he made a partial admission of fault to her, but when interviewed by police in February that year, he denied all of the complainants' allegations of wrongdoing. The indictment was filed on 8 November 2002 and soon thereafter he indicated, through his counsel, his willingness to plead. Mr Mackie on his behalf submitted to the learned sentencing judge that his client had had a change of heart subsequent to his interview with the police because he was remorseful and did not wish to put the complainants through the ordeal of having to give evidence in court proceedings.

8 The learned sentencing judge accepted that the respondent had demonstrated remorse, had admitted his misconduct to his wife and had pleaded guilty. He said, "You will benefit from the substantial discount in penalty accorded to sex offenders who plead guilty and thereby relieve their victims of the stress of giving evidence and provide them with the satisfaction of having their complaints vindicated".

9 It is trite law that some discount may be given for a plea of guilty. In R v Shannon (1979) 21 SASR 442, the plea per se was not regarded as invariably requiring a reduction in the severity of the sentence, but a number of propositions set out by King CJ at 452 - 453 included the assertion that a plea of guilty might be taken into account in mitigation of sentence where it results from genuine remorse, repentance or contrition, or it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial or the necessity of witnesses giving evidence. In Schumacher (1981) 3 A Crim R 441, the avoidance of the stress of a complainant giving evidence, occasioned by a plea of guilty, was regarded as a significant mitigating factor and one justifying, in the public interest, the giving by the courts by way of discount of a moderate encouragement to plead. In Siganto v R [1998] HCA 74; (1998) 194 CLR 656 at 663 - 664, it was said:

"... a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence."

(per Gleeson CJ, Gummow, Hayne and Callinan JJ). See also Cameron v R (2002) 187 ALR 65.

10 Significant though the mitigating effect is of a plea engendered by the desire to spare the complainants further distress by giving evidence and which results in their vindication, it must be balanced against the gravity of the offences themselves. All three offences were extremely serious in that they involved the molestation of very young children by a person in a position of trust and all have severely impacted upon the victims. The conduct complained of in the two charges of maintaining a sexual relationship extended over lengthy periods and occurred on more than a score of occasions. Furthermore, in respect of the complainant R, the acts themselves were of a particularly intrusive and degrading nature. Although those acts occurred many years ago, the abuse of the third and youngest complainant puts the lie to any suggestion of permanent reform on the respondent's part. Even allowing for a substantial or significant discount below that which would have been appropriate had the mitigating factors in this case not been present, a penalty considerably in excess of that imposed was required in the public interest solely in respect of the abuse of the complainant R, let alone in respect of all three matters of complaint. In my view, a global sentence in the order of three years was warranted, but having regard to the element of double jeopardy which is occasioned by a Crown appeal and since its institution, the anxiety of the respondent that his sentence might be increased, this Court should impose by way of substituted sentence a penalty somewhat less than would have been appropriate at first instance. I would allow the appeal, quash the sentence of nine months' imprisonment and sentence the respondent to imprisonment for two years six months from 13 December 2002.

11 I respectfully concur with the Chief Justice, for the reasons he has expressed, that the sentence of nine months' imprisonment was manifestly inadequate having regard to the nature and number of the crimes and their impact on the respective complainants. I agree that the sentence should be quashed and in its place the respondent should be sentenced on the three indictments to imprisonment for two years and six months from 13 December 2002.

12 I have read the reasons for judgment of the learned Chief Justice in draft form, and agree with the orders that he proposes. I also agree with his Honour's reasons, except on one point. Whilst I think that an increased sentence of two years six months' imprisonment is appropriate after allowing for double jeopardy, I would not arrive at that conclusion on the basis that a sentence of three years' imprisonment would have been appropriate but for double jeopardy, and then reducing it by six months to allow for that factor. The respondent was originally sentenced on 13 December 2002. He has not been released from custody since then. As a result of this appeal, he has had to spend about three months in a state of uncertainty as to whether his sentence will be increased and, if so, to what extent. A discount for double jeopardy must make appropriate allowance for the emotional effects of that state of uncertainty over the last three months, without over-compensating for them. In my view a discount of six months for this factor alone amounts to over-compensation. However I regard a sentence of two years six months' imprisonment as an appropriate, though perhaps somewhat lenient, sentence, taking into account all the relevant factors referred to by the learned Chief Justice, including the double jeopardy principle. On that basis I concur in the orders proposed.