Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Other matters - Diminished culpability - Rehabilitative prospects - Remorse.

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398; R v Mason-Stuart [1993] SASC 4322; (1993) 68 A Crim R 163, referred to.

Judgment Number: [2005] TASSC 16

The sentence of six years' imprisonment is quashed and in lieu a sentence of five years' imprisonment to commence on 15 January 2004, with a non-parole period of three years, is ordered.

1 The appellant was arraigned on two indictments. He entered pleas of guilty to:

* two counts of maintaining a sexual relationship with a young person;

* one count of sexual intercourse with a young person; and

2 All charges except one count of indecent assault were laid by an indictment dated 6 May 2004. The single count of indecent assault was laid by an indictment dated 21 June 2004. For convenience, I shall simply refer to all charges in respect of which sentence was imposed as counts 1 to 6, the indecent assault charged by the indictment dated 21 June 2004 being count 6.

3 The learned sentencing judge imposed a single sentence of six years' imprisonment for all the crimes. He ordered that the appellant not be eligible for parole until he had served four years of that sentence. The appellant has appealed against that sentence upon the ground that it is manifestly excessive. He represented himself upon the hearing of the appeal.

4 All the crimes were committed during 2002. At that time, the appellant was aged about 40 years. He was living at Bridgewater with his three male children aged 18, 16 and 5.

5 Early in 2002, S, a 16 year old boy and the complainant on count 1 (maintaining a sexual relationship with a young person), asked the appellant if he could stay at his house as he was "having problems at home". The appellant agreed to this proposal and S stayed at the appellant's house from early 2002 until October of that year. During that time, two other youths visited the appellant's house. They were friends of S and the appellant's eldest son. One was D, the complainant on count 2 (maintaining a sexual relationship with a young person), and the other was A, the complainant on counts 3 and 4 (indecent assaults) and count 5 (unlawful sexual intercourse with a young person). Both D and A were aged 16 at the time they visited the appellant's house. D had a mild intellectual disability.

6 The complainant on count 6, H (indecent assault), was a 15 year old boy at the relevant time. This crime was committed when H visited the appellant's house on a single occasion as a friend of the appellant's eldest son. It is appropriate to refer to the circumstances surrounding this indecent assault after setting out the facts concerning the other three complainants.

7 The sexual relationship between the appellant and S developed soon after S had moved into the appellant's house. It began one evening when S was using a computer. The appellant came into the room, approached S from behind, put his hands down his trousers and fondled his penis. S told the appellant to go away. Over the next few nights, this conduct was repeated. On one occasion, the appellant asked S to take his clothes off, but he refused. Subsequently, the appellant entered the room naked and persuaded S to take his clothes off and join him on the bed. There followed acts of masturbation and anal sexual intercourse in which the appellant penetrated S. He persisted with intercourse, even in the face of S's complaint that it was hurting. Thereafter, mutual masturbation and oral and anal intercourse with S became virtually a nightly occurrence for several months. The appellant and S shared the same bed. The appellant showed S pornographic pictures obtained over the internet and plied him with alcohol and cannabis. The appellant frequently molested S by touching him in a sexual manner in front of others. The appellant exercised a degree of dominance over S by making him do housework and cooking; by controlling his pocket money; and by enforcing curfews. It is clear that the appellant exploited S, a vulnerable youth, both sexually and generally for his own gratification. The unlawful relationship came to an end when police were notified about there being pornographic material in the house. S returned to live with his mother.

8 The learned sentencing judge was told that S considered that the unlawful behaviour had ruined his life. Sleep disturbance was reported, together with a lack of trust and difficulty with inter-personal relationships. S also complained that frequently he had been the butt of homophobic jibes from the people in his community. The circumstances surrounding the commission of the crime charged by count 1 are obviously very grave and call for the imposition of condign punishment.

9 With respect to count 2, D went to the appellant's home on five occasions to visit S. On each occasion the appellant had sexual contact with him. The appellant supplied both D and S with tobacco, cannabis and alcohol and showed them pornography on the internet. Most of the sexual acts perpetrated on D were committed by the appellant in S's presence. They consisted of several incidents of mutual masturbation, several incidents of oral intercourse and one incident of attempted anal intercourse. On the last visit, D has an epileptic seizure and was taken by ambulance from the appellant's house to the hospital.

10 A also visited the appellant's house on about five occasions. He was treated by the appellant in much the same way as D and S were treated. The indecent assault charged by count 3 consisted of the appellant masturbating A against his wishes while the latter was in bed at the appellant's house. Count 4 was committed shortly after count 3 when the appellant made A masturbate him. The unlawful sexual intercourse with a young person charged by count 5, was committed on the same night when the appellant made A suck his penis for about five minutes.

11 H, the complainant on count 6, was a friend of the appellant's eldest son. One night he went to a party at a nearby house in Bridgewater. There he consumed "a significant amount" of cannabis and alcohol. At the party, someone shaved off H's eyebrows. The following day, H and a friend of his went to visit the appellant's eldest son. The appellant suggested that "they finish the job". Accordingly, the appellant's son and H's friend held H down and the appellant pulled his trousers off. The appellant then put shaving cream on H's genitals and shaved his pubic hair. The learned sentencing judge was told that "whilst doing that [the appellant] touched the complainant's penis".

12 This disgraceful conduct, although sexual in nature, falls into a different category from the conduct constituting the crimes charged by counts 1 to 5.

13 At the date sentence was imposed, the appellant was aged 42 years. He had been convicted of soliciting in 1982. In October 2003, he was convicted of possessing child pornography and a month before the date of the sentencing hearing that is the subject of this appeal, he was sentenced to three months' imprisonment for an act of indecency. The criminal conduct on this occasion consisted of the appellant exposing and fondling his penis while sitting in his parked car. The conduct was observed by a 10 year old boy who happened by.

14 The last two matters concerned unlawful conduct that occurred after the commission of the crimes charged by counts 1 to 6 and therefore are not prior convictions. However, they are, of course, not entirely irrelevant for the purpose of imposing sentence.

15 The learned sentencing judge was handed a report written by the Ombudsman. It disclosed that the appellant was made a ward of the State when aged 9 years. It also disclosed that whilst in care, the appellant was sexually abused on several occasions. He was abused at the hands of other boys and at the hands of at least one adult. With respect to the latter abuse, the Ombudsman wrote that the appellant was forced to "engage in various sexual acts on a very regular basis, including another boy. This involved violent sexual degradation".

16 The learned sentencing judge was given a psychiatric report prepared by Dr Sale. When aged about 10 years, the appellant was given hormone therapy because the prescribing medical practitioner believed that he was showing precocious, sexualised behaviour. This treatment led to the appellant developing breasts, which had to be surgically removed. As a teenager, the appellant spent long periods of time in the Royal Derwent Hospital under some kind of compulsory order. According to Dr Sale, the appellant was the victim of sexual assaults whilst he was at the Royal Derwent Hospital. At one stage, he tried to escape, climbed an electricity pylon and consequently suffered severe electrical burns which necessitated lengthy periods of hospitalisation. Not surprisingly, the appellant has had a very limited education and is equipped with only the most basic literary skills.

17 The appellant's three children were born of two marriages. Both the appellant's wives were mentally disabled and until his arrest, the appellant had the substantial care of his children.

18 At the age of 4 years, the appellant suffered severe injuries when he was involved in a car accident. These injuries left him with a right sided facial paralysis. Dr Sale concluded his report as follows:

"... there has been a longstanding problem in relation to [Mr B's] sexuality, for both strength and orientation. These problems were probably originally a result of head injury and severe family dysfunction. The effects of institutionalisation, possible sexual abuse, and improper medical treatment then compounded these original difficulties.

As a result of these various issues, [Mr B] is a profoundly damaged man whose behaviour has been frequently a cause of concern.

My overall views remain much the same as in 1990, ie that he is a damaged man with a relatively high sexual drive, little opportunity to satisfy that sexual drive, and that his array of sexual interests included those the community find abhorrent. I believe that anti-androgen drugs as Cyproterone remain relevant, but only on the basis of informed consent rather than compulsion.

Alternatively, SSRI agents (usually prescribed as antidepressants) can diminish sexual drive in many individuals. Unfortunately, there is no way of measuring compliance."

19 The learned sentencing judge referred to Dr Sale's comments. He said:

"Although you have little in the way of formal education and there is reason to suggest that you have some intellectual limitations, these difficulties have not deprived you of the capacity to use a computer, to access pornography and to manipulate and subjugate your victims. To satisfy your depraved objectives you have used your position of advantage and seniority over four vulnerable youths. By doing so you have put in jeopardy their future peace of mind and may well have severely damaged the lives of some of them."

20 In other comments, the learned sentencing judge made it clear that he acknowledged the importance of the appellant's pleas of guilty. Although they were entered at a late stage, his Honour correctly described them as "a significant mitigatory factor". He noted, in addition, that the appellant had demonstrated remorse, and was "receiving regular psychiatric counselling in an effort to identify and deal with the cause of [his] aberrant behaviour".

21 Presumably, then, but for the plea of guilty and attendant remorse, the learned sentencing judge would have imposed a sentence in excess of six years' imprisonment.

22 Counts 1 and 2 were very serious crimes. The appellant exploited two 16 year old boys who were vulnerable and easily led. He engaged in sexual conduct with each complainant for his own sexual pleasure, having manipulated and cajoled the complainants into acquiescence. The same comments may be made with respect to counts 3, 4 and 5, but it must be borne in mind that all these crimes were committed within the space of a few hours. As I have observed, count 6 was an indecent assault of a slightly different nature to the indecent assaults charged by counts 3 to 5. The conduct which gave rise to count 6 can be categorised as humiliating and embarrassing sexual bullying.

23 The crime of maintaining a sexual relationship with a young person was introduced into the Code in 1994. Since its introduction, 71 sentences have been imposed with respect to this crime. The circumstances of each crime and each offender vary markedly and there is insufficient data at this stage to establish a range of sentences for this crime. See Professor Warner, Sentencing in Tasmania (2 ed) 326; Crowley v R [2003] Tas SC 147 at par18.

24 The sentence imposed in this case is at the very top end of the 71 sentences imposed to date. Only 5 of those 71 sentences are the same as, or longer than, this sentence. Those 5 sentences are for 6 years, 6½ years, 7½ years (two) and 8 years. All of them, except one of the 7½ years sentences, were imposed following pleas of guilty. Non-parole periods of 4½ years were fixed in the case of both of the 7½ years sentences. The non-parole period in the case of the 8 years sentence was 6 years, and 4 years non-parole was fixed in the case of the other two sentences.

25 In my view, the circumstances surrounding the commission of the appellant's crimes were not as serious as the circumstances surrounding the crimes of any one of the other five offenders in respect of whom a sentence of 6 years or more, imprisonment was imposed.

26 With respect to the appellant's most unfortunate childhood, the learned sentencing judge said:

"An extract from the Ombudsmans review of a complaint made by you that you were sexually abused as a child whilst under State care was put before the Court. In the light of that extract I have no hesitation in accepting that you were so abused and that this is a factor in your aberrant behaviour."

27 With respect to the future, counsel for the appellant told the learned sentencing judge that since the appellant had been in custody, he had voluntarily sought out counsellors to address the issues referred to in the Ombudsman's report. Counsel also told the learned sentencing judge that in addition, the appellant had been voluntarily working with a psychiatrist "to deal with the issues at the root of all his criminal conduct essentially".

28 The material before the learned sentencing judge disclosed three substantial mitigatory factors.

(1) The appellant's pleas saved the complainants from the anxiety, tension and embarrassment of giving evidence. Counsel for the State accepted that the pleas were not simply an acceptance of the inevitable findings of guilt. The pleas were accepted as cogent evidence of remorse.

(2) The abuse and general ill-treatment of the appellant as a child in the care of the State was found by the learned sentencing judge to be a factor in the appellant's aberrant behaviour. Consequently, the culpability for his criminal conduct was thereby diminished to some extent. See R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398; R v Mason-Stuart [1993] SASC 4322; (1993) 68 A Crim R 163.

(3) The appellant's voluntary efforts to come to grips with and deal with his wrongful conduct weighed heavily in favour of fixing a non-parole period close to the minimum allowed by law.

29 In all these circumstances, I am persuaded that some unidentified error tainted the exercise of the sentencing discretion in this case. I would allow the appeal and quash the sentence of six years' imprisonment. In lieu thereof I would order a sentence of five years' imprisonment to date from 15 January 2004 and fix a three year non-parole period.

30 The appellant has appealed against a sentence of six years' imprisonment, with a non-parole period of four years, following his conviction upon two counts of maintaining a sexual relationship with a young person, three counts of indecent assault, and one of unlawful sexual intercourse, contrary to the Criminal Code, ss125A, 127 and 124. The crimes were committed against four male complainants between April and October 2002. The sole ground of appeal is that the sentence was:

"... manifestly excessive in all the circumstances of this case."

31 The appeal was heard by a court differently constituted during the same Term as that of the Director of Public Prosecutions v M [2005] TASSC 14 which involved a sentence of four years' imprisonment imposed for a single count of maintaining a sexual relationship with a young family member, and some issues are common to the determination of both appeals. I have stated in my reasons for judgment in M the principles which I regard as being relevant to the determination of penalty in cases involving the Code, s125A and repeat them here. In this case there were multiple complainants, although the crimes were committed over a shorter period of time. Nevertheless the effects on the victims have been significant. Notwithstanding the differences in circumstances, I do not regard the sentence warranted akin to that imposed in M.

32 Consistent with my reasons stated in M, I conclude that the sentence itself is manifestly excessive. The appeal ought be upheld.

33 I differ from the conclusion reached by the learned Chief Justice and would impose a substituted sentence of four years. The youths, although vulnerable in some respects, were each aged over 16 years. Except for the incident involving the shaving of the pubes, the misconduct was consensual although doubtless facilitated by the provision of alcohol and marihuana. The period of misconduct was over six months, not many years. The conviction for soliciting in 1982 is relevant but carries little weight and the conviction recorded in February 2004 relating to possession of proscribed material in May 2003, also relevant, cannot be treated as a prior conviction. Material prepared for another purpose suggests the appellant to be himself sexually damaged. Treatment, diversion and future control must be considered alongside retribution. The conduct here is, in my opinion, far less reprehensible and prolonged than that considered in M and the harm caused to the victims, fortunately, not as great. My reasons for preferring a sentence less than that proposed by the learned Chief Justice is to attempt proportionality, leaving longer sentences for cases concerning a different range of behaviour rather than altering the range of penalties for the more serious matters upwards through comparison. Examination of the range of penalties imposed in the years 2000 to 2004 already demonstrate an upward movement, but cases not dissimilar to this nevertheless show a range of 3 - 4 years' imprisonment with varying periods of suspension or non-parole periods to accommodate subjective characteristics of the offender. Further, despite current perceptions, the fixing of a minimum non-parole period does not necessarily permit release upon the completion of one-half of the sentence. Parole permits consideration of change and public safety at a future time with the benefit of an examination of post-sentence conduct and examination. The Parole Board ought be trusted to fulfil its responsibilities required by Parliament.

34 I would impose a sentence of imprisonment of four years and fix a two year six month non-parole period.

36 I would like to add some comments in relation to sentences for the crime of maintaining a sexual relationship with a young person. The conduct of offenders sentenced for that crime can vary from, at one extreme, a few relatively minor acts of indecent assault to, at the other extreme, multiple acts of rape involving great violence. As a result of the wide variation in the degree of criminality of offenders convicted of this crime, there is a very wide range of sentences for it. The Crown did not contend that sentences for this crime, or for sex crimes in general, needed to be heavier in this State. It is therefore appropriate to review the appellant's sentence by reference to the range of sentences that have been imposed for this crime. Of course one must not overlook the fact that the appellant also pleaded guilty to one count of sexual intercourse with a young person and three counts of indecent assault.

37 In the factual material presented to the learned sentencing judge, there was no suggestion that any of the appellant's acts amounted to rape. In my view the principal factors warranting the reduction of the sentence are that the appellant's conduct involved seduction rather than rape; that his victims were close to the age of consent; and that he pleaded guilty, thus sparing the complainants from giving evidence and being cross-examined. Because of those factors, I think that a sentence well removed from the heavy end of the relevant range was appropriate.

38 All of the factors referred to by Slicer J are relevant ones. However, having regard to the crimes committed by the appellant and the other relevant considerations, I believe that the sentencing orders proposed by the learned Chief Justice are appropriate.