Criminal Law - Particular offences - Sexual offences - Sentencing - Maintaining sexual relationship with young person - Sentence of 2 years 6 months' imprisonment - Six months suspended - Non-parole period of 1 year - Whether sentence manifestly excessive.

Judgment ID Number: [2003] TASSC 147

1 For the reasons prepared by Crawford J, which I have had the advantage of perusing, I agree that the appeal should be dismissed.

2 On 28 July 2003, the appellant pleaded guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A. The particulars of the charge were that between August 1974 and May 1975 he maintained a sexual relationship with the complainant, to whom I will refer as C. The period commenced when she was aged 15 and finished when she was 16. Her date of birth is 18 February 1959. His date of birth is 7 November 1943.

3 On 31 July 2003, the appellant was sentenced to imprisonment for 2 years 6 months with effect from 28 July. The last six months of that imprisonment were suspended on condition that he commit no crime within two years after his release from prison. Pursuant to the Sentencing Act 1997, s17(2), it was ordered that he not be eligible for parole before the expiration of one year from 28 July 2003. He has appealed on only one ground, that being that the sentence was manifestly excessive.

4 At the time of sentencing, the appellant was 59 years old. He was married when he was 26. His bride was 18. C, ..., was then aged 11. Before she was 13, he commenced to act improperly with her. He took her for a walk on his property, held her hand, told her that there was someone special and important in his life, whom he said he cared for and loved, and asked if she knew who it could possibly be. On her replying in the negative, he told her it was her, following which he squeezed her hand and kissed her on the lips. From about the time of her fourteenth birthday, he developed a sustained and clandestine relationship with her. He frequently wrote personal letters to her, the contents of them being generally of a romantic nature. When her father intercepted one of them, he established a post office box in C's name, the rental for which he paid, and he arranged for her to have a key to the box. By that means he continued to correspond regularly with her. He also kept in touch with her by telephone, developing a scheme whereby he would first alert her to his forthcoming call by causing her telephone to ring twice, hanging up and then calling again. By the time she was 15, she was wearing a gold ring he had given her. He had bought other gifts for her.

5 At a time when his wife was suffering severe post-natal depression, and C was staying with them, he had sexual intercourse with C for the first time. She was 15 years old and he was 30. He was a school teacher and she was a school student, but not at his school. He passed her off at his school as an assistant helping him with drama lessons, took her to a house next door to the school and completed his seduction of her there. Over the following nine months he had sexual intercourse with her at various places during a series of visits by her to the area in which he lived. He was always the initiator of sexual activity, never her. He coached her into performing oral sex on him, despite her initial reluctance. He took explicit Polaroid photographs of her and on one occasion sent her an explicit photograph of himself. Her parents had no idea of any inappropriate behaviour. He acted in beach of the trust that was placed in him and his wife to properly care for C when she came to stay with them. Of course, he was also in breach of his duty to his wife. She knew nothing of what was going on either.

6 At the end of 1974, C left school, aged 15. She continued with her visits from time to time and his criminal behaviour continued. He last initiated sexual intercourse with her in May 1975, when she was 16. Shortly following that she discovered that she was pregnant to him. He told her that he was happy about it and that he had intended and planned it. Her parents had to be informed, but they were led to believe that there had only been one act of intercourse. Against his wishes, the pregnancy was terminated. His wife was told something about the sexual relationship and condoned it, but she was not informed of its full extent.

7 The appellant resumed a sexual relationship with C a few years later, when she was aged about 20, once again keeping it secret from his wife. However, it appears that it ended once she learned of it. Thereafter, he and his family remained in a close and friendly relationship with her and her family. Many members of their families were aware of what had gone before, although what they had been told led most of them to believe that it had been confined to one act of sexual intercourse. No doubt C felt that she had to keep the truth hidden, because of the hurt it might cause others. In the meantime she married and had children.

8 Long-term detrimental effects of the sexual relationship on her have been very tragic. Her capacity to move through the developmental stage of adolescence in the usual way was interfered with. In 1994, she commenced seeing a psychiatrist, who detected clear deficits in her personality structure. Since then she has needed regular psychiatric treatment for depression. Her sexual relationship with the appellant, which he had induced by his seduction of her as a child, has been a major contributing factor to that depression. She was admitted to a psychiatric hospital in a suicidal state in 1994, 1996 and 2001. Her psychiatric treatment is ongoing. The consequences for her and her family have been, and continue to be, very severe. Sadly, matters have been made worse by members of her family opposing and criticising her decision to report his crime.

"A major contributing factor to this depression was the unresolved shame and anguish around the relationship with ... Michael Crowley in her early teens. [C's] distress about this relationship has been the focus of many of our psychotherapy sessions together over the years. There have been many times when shame and despair over this relationship have been a major contributing factor to suicidal thoughts in [C]. Specifically there has been unresolved grief and guilt about the termination of her pregnancy to Mr Crowley, as well as feelings of shame and confusion about the relationship itself and her role in it. As seen in many childhood sexual abuse victims, [C] has struggled with feelings of personal responsibility for the relationship and shame about this, ... ."

11 The complainant first caused the crime to be reported to the police in 2002. She did so partly in response to her awareness as a mother of the effect of sexual abuse on children. It was also partly because of her disgust at what she perceived to be the appellant's hypocrisy in never having displayed remorse or taken responsibility for what had happened, but nevertheless developing his professional work into areas of clinical care of vulnerable people as a private clinical psychologist and accepting a commission from the Anglican Church to conduct an inquiry into sexual misconduct by clergy and officers of the Anglican Diocese of Tasmania, with particular reference to paedophilia.

12 The learned sentencing judge referred to features about the appellant's crime that his Honour regarded as aggravating. Subject to any comments I make, I respectfully agree with what his Honour said. The aggravating features were:

1 (His relationship to the complainant.) That was significant in relation to the psychological impact of the crime on C.

2 The fact that the crime was committed in beach of the trust that C's parents placed in him when they allowed C to visit him and his wife.

3 The fact that the relationship resulted in pregnancy and the termination of that pregnancy. His Honour regarded that as all the more significant because C and her mother were Roman Catholics, and had been troubled for decades by the decision to terminate the pregnancy. Counsel for the appellant submitted that the learned judge should have disregarded the termination in the sentencing process, because it was against the wishes of the appellant, who wanted C to have his child. I reject that submission. It was a foreseeable consequence of his crime, in the course of the commission of which he deliberately impregnated C, according to what he told her. It was certainly not a consequence that was too remote as to be excluded from consideration. See Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1.

4 The intense and sustained cultivation of an inappropriate relationship over a period of years, culminating in the seduction of the complainant. That the reference to a period of years may have been an exaggeration, as was submitted by the appellant's counsel, has no significant consequence.

5 The repetition of unlawful sexual intercourse over a period of about nine months. That there were gaps in time, as pointed out by the appellant's counsel, because the appellant and C were not at all times in physical proximity to each other, has little weight.

6 The extent of the age discrepancy between the appellant and C. Courts sometimes show leniency when dealing with a youth or young offender, but the appellant did not fall into either category.

7 The extent of the long-term psychological impact on C. When about to impose the sentence, the learned judge observed that "because this crime was so evil, and because its consequences for the complainant were so severe, a significant sentence of imprisonment is called for". It is an undoubted sentencing principle that harm to the victim should normally lead to an increased penalty and more so when the harm is severe.

13 The learned judge paid regard to what he described as mitigating factors that weighed heavily in the appellant's favour, all of them relating to his conduct in later life. His Honour dealt with them in his comments as follows:

"He has pleaded guilty. There has not had to be any cross-examination of the complainant or anyone else, and court time has been saved.

He is genuinely remorseful. He seems to have taken some years to begin to regret his sexual exploitation of the complainant. The author of one character reference indicated that, at some stage, he became deeply involved in his church, largely because of his feelings of remorse regarding his inappropriate sexual relationship. In the early 1980s, after his parish priest had been given some information as to the relationship by others, he initiated a discussion with that priest about the relationship, expressed his sorrow in regard to his actions, and seemed to the priest to be very contrite and very concerned at the impact of his actions. It seems that, despite an expertise in psychology that must have given him an understanding of the possible consequences of his conduct, his remorse did not ever lead him to enquire frankly as to whether the complainant was experiencing any ongoing psychological difficulties. Reluctance to make such enquiries is perhaps understandable, but there is no suggestion that he has ever apologised to the complainant.

When this crime was committed, the prisoner was a teacher. He subsequently pursued a career in psychology. He now has a doctorate. He has done valuable work in relation to alcohol and drug abuse. He has developed a particular form of therapy which has led many psychologists to regard his work as magnificent. He is highly regarded for his skill as a therapist and as an educator, and for his selflessness in his professional work. There is a risk that his conviction for this crime will result in him ceasing to be entitled to practise as a psychologist. One matter of particular embarrassment is that his work has included sex abuse cases, and that he participated in the compilation of report for the Anglican Diocese of Tasmania in relation to sexual abuse by clergy. However there is no suggestion that this crime has interfered with the quality of his work. While some may consider that it was hypocritical of him to do any work in relation to sexual abuse, any recent misjudgement on his part as to such matters is not a significant factor when it comes to deciding upon an appropriate sentence for a crime committed in the 1970s. It is very significant however that the man whom I have to sentence today is a very different man, and a much more respected one, than the man who committed this crime nearly 30 years ago. The passing of many years between the commission of a crime and the imposition of sentence is not of itself a mitigating factor when, as is the case here, it would take great courage for the complainant to report the crime to the authorities. What is significant is that the prisoner has rehabilitated himself, and that he has now fallen from a position of high respect in his profession to one of shame and disgrace. It is an indication of the extent of the prisoner's rehabilitation that a great many professional colleagues, friends and family members have stood by him despite learning the details of his crime."

14 A consequence of C failing to report the crime to the police for about 27 years, a failure which in the circumstances was understandable and not undue, was that the appellant was able to achieve so much with his career, particularly as a psychologist. As was pointed out for the Crown, it is unlikely that his success, firstly as a teacher and then as a psychologist, would have been achieved if she had reported the crime shortly after its commission. In those circumstances it is difficult to argue that the delay has resulted in unfairness to the appellant. Nevertheless, a consequence of what the appellant had achieved in his life and of the fact that he had no other record of offending, was that the learned sentencing judge could be confident that he had demonstrated that he was otherwise of good character and unlikely to offend similarly again. The need for a sentence of personal deterrence was at a low level. On the other hand, the need for a sentence of general deterrence was at a high level, and a sentence containing retribution and denunciation for his crime, and the dreadful harm caused to C, was also demanded.

15 This was not a case where because of the appellant's good works and conduct over the period of almost 30 years since he offended, a non-custodial sentence should have been imposed. See Bell (1981) 5 A Crim R 347. A sentence of actual imprisonment was demanded by the circumstances of the offence and its deleterious effects on the complainant.

16 Counsel for the appellant urged the Court to have regard to all of the mitigating factors identified by the learned judge. It was not submitted that his Honour failed to have regard to any of them when calculating the sentence. The only ground of the appeal is manifest excessiveness. I note that a factor raised before the learned judge was that by reason of the appellant's conviction it was likely that his career would be destroyed, an event which has occurred, for after he was sentenced his name was removed from the register of psychologists.

17 Counsel for the Crown attempted to lessen the mitigatory weight of the appellant's plea of guilty, upon the basis that he had admitted to more than one person that he had sexual intercourse with the complainant following her discovery that she was pregnant. It was argued that as a result, the case against him was a strong one. While the submission has some force, it is substantially answered by the fact that he has fully admitted all that C has alleged against him and not merely one act of sexual intercourse as was originally disclosed to others.

18 Counsel for the appellant placed before the Court records of sentences that have been imposed in this State for the crime of maintaining a sexual relationship with a young person under the age of 17 years, in an attempt to persuade the Court that the appellant's sentence was outside the established and accepted range of sentences for the crime. However, as is pointed out by Professor Warner in Sentencing in Tasmania, 2 ed at 326, there is insufficient data to establish a range. Further, there can be such a vast difference between the particular circumstances of each case, ranging from three acts of low level indecent assault to a considerable number of acts of sexual intercourse and deviant and sustained sexual abuse of a child. Sentences for a single count have been as severe as seven years imprisonment. The records of previous cases do not establish that the appellant's sentence manifestly exceeded an established range.

19 There were a number of factors that called for mitigation of the sentence. Nevertheless, it is my judgment that the sentence was not manifestly excessive having regard to the aggravating factors identified by the learned judge and to which I have made reference. It is my opinion that the sentence was an appropriate one and that the appeal should be dismissed.

20 I have read the reasons for judgment prepared by Crawford J and agree with his reasons for dismissing the appeal.

21 As Professor Warner observed in her text, Sentencing in Tasmania, 2nd Ed, par11.436, the data for sentences imposed during the period from 1995 to 2000 for a single count of maintaining a sexual relationship with a young person is insufficient to establish a range for such sentences. However, this Court's sentencing database now includes 45 sentences (excluding the sentence which is the subject of this appeal) imposed on offenders whose primary crime was maintaining a sexual relationship; 24 of those sentences were imposed subsequent to 2000, that is, the end of the period to which Professor Warner's observation relates; and 12 of those 24 sentences ranged between three years and eight years. This demonstrates that the upper segment of the range of sentences for the crime of maintaining a sexual relationship is well beyond the penalty imposed on the appellant of two years six months' imprisonment with six months of that sentence suspended.

22 As convictions for the crime of maintaining a sexual relationship involve an unusually diverse range of circumstances, it is extremely difficult to compare particular convictions. One factor which is comparable, and which is not to the appellant's advantage, is the unlawful sexual conduct which underpins a conviction. At the lower end of the scale of such conduct is furtive, non-intrusive sexual contact which does not expose the victim to subsequent concern that he or she was a consensual participant in the conduct. Towards the upper end of that scale is vaginal and oral sexual intercourse, the conduct of the appellant. Where a victim has been inveigled into becoming a consenting participant in intrusive sexual conduct, the almost inevitable result is that the victim will, in the course of time, suffer from shame and remorse. The appellant's victim has so suffered. This, coupled with the other aggravating features of the appellant's crime referred to by Crawford J, reinforces my view that the sentence imposed on the appellant was not manifestly excessive and the appeal should be dismissed.