JUDGMENT OF: Crawford CJ, Tennent and Porter JJ

Criminal Law - Particular offences - Offences against the person - Sexual offences - Sentence - Particular cases - Maintaining sexual relationship with a child - Principles to be applied.

Director of Public Prosecutions v M [2005] TASSC 14; (2005) 154 A Crim R 475, followed.

Judgment Number: [2009] TASSC 42

2 Sentence of imprisonment for 2½ years quashed and in its place the respondent is sentenced to imprisonment for 4 years from 12 November 2008 and it is ordered that he is not to be eligible for parole until he has served 2 years' imprisonment.

1 Upon his plea of guilty to maintaining a sexual relationship with a young person under the age of 17 years, the respondent was sentenced to imprisonment for 2½ years and it was ordered that he be eligible for parole after serving half of the sentence.

2 The Director appealed on one ground, that the sentence was manifestly inadequate in all the circumstances of the case. In my view the ground has been established and this Court should increase the sentence.

3 The crime was committed over a period of approximately five years between 2002 and 2007. The respondent was aged 55 at the start and 60 at the end and the complainant, a boy, was aged 12 at the start and a day short of his 17th birthday at the end. The respondent was a great uncle of the complainant and a family friend of the boy's mother. The respondent had two sons, the youngest of whom was the same age as the complainant.

4 When he was 12 years old, the boy stayed overnight at the respondent's house. There were a number of visitors that night, so he was to share the respondent's bed. After he had gone to bed, the respondent entered it. He grabbed the groin of the boy, who pretended to be asleep, thinking that the respondent would stop. The respondent pulled the boy's boxer shorts down and put his penis in the boy's anus, causing him pain. The boy remained quiet and as still as possible. During the incident the respondent asked him if he was awake, but he did not answer. After the respondent finished and fell asleep, the boy left the bedroom and slept on the lounge room floor. Nothing was said between them about the matter the following day.

5 About two months later, when he was still 12, the boy went to the respondent's house to visit his son. When he arrived the respondent was on his own saying that his son would be home shortly, and the boy decided to wait. The respondent locked the front door and closed the lounge room curtains. He asked the boy if he would like to try something. He pulled down the boy's pants and started to play with his penis, asking if the boy liked it. The reply was, "No", but the respondent continued anyway. A short time later his son returned.

6 When the boy was about 14 years old he was staying at the respondent's home. He was in the bathroom, having just come out of the shower, when the respondent came in and locked the door behind him. He asked if the boy could do something for him, to which the reply was "No". The respondent said it was okay. He took out his erect penis and placed the boy's hand on it. After a couple of seconds the boy withdrew his hand, unlocked the door and left. As he did so, the respondent told him not to tell his father what they had done because he would kick the boy's bum.

7 When he was between the ages of 12 and 15½, the boy was regularly groped by the respondent through his clothing. He recalled that it included when sitting at a table when the boy's mother was present.

8 Incidents stopped for about six months when the boy was 15½. However when he was 16 and at the respondent's residence with the latter's son, the boys were drinking alcohol. The cousin went to bed before the complainant who was drunk, having consumed about nine cans of beer. He passed out on the respondent's bed wearing a t-shirt and boxer shorts. He woke to find the respondent having anal sex with him, his t-shirt on the floor and his boxer shorts pulled down. He screamed because it was painful and he was scared. He jumped out of bed, threatened to tell his father and left.

9 Thereafter the boy avoided the respondent and told his mother that he no longer wanted to see him, without explaining the reason. No further incidents occurred.

10 In June 2008, the complainant told his mother something of what had happened. On 3 August 2008, police went to the respondent's home concerning an assault he wished to report. During the course of the conversation he disclosed that he had been assaulted because he had molested the complainant. He made no further disclosures to the police at that time.

11 An investigation into the matter commenced and on 14 August 2008 the complainant provided a statutory declaration outlining what had happened to him. A statutory declaration was obtained from the respondent's son which tended to support the complainant concerning the circumstances surrounding the second incident. A statutory declaration was also obtained from the respondent's carer in which she said that in late July 2008, the respondent told her that he had fondled the complainant two years before and got into bed with him.

12 On 20 August 2008, police interviewed the respondent about the matter. He admitted having a sexual relationship with the complainant, but stated that the first incident occurred when the boy was 15 or 16. When asked whether it commenced when he was 12, the respondent said he did not think so. He told police that he did not have a very good memory. He said that he had anal sex with the complainant on two occasions prior to his 60th birthday. He admitted that he grabbed the complainant on the penis on numerous occasions. He said that the other incidents probably occurred but he could not specifically remember. He accepted that the incident in the bathroom probably happened. He told police that he knew that he had done the wrong thing and that he knew that the complainant's mother had trusted him.

13 In a victim impact statement the complainant said that he was adversely affected in a number of ways. He had experienced problems with social interaction, especially with other males, feeling uncomfortable around them. He had fears of elderly men. He did not like to use public toilets because he was scared that an older man might be there. Throughout his school years he constantly had the impression that people thought he was a freak because somehow they knew what was happening to him. He considered that as a result he became very disruptive at school and on one occasion was violent. He said that he had to deal with depression at a young age. He tried to repress his emotions, but halfway through his first year of college he began to suffer from extreme depression. It got to the stage where he did not want to wake up in the morning, so just slept all day and left school all together. After a few weeks of lying in bed, he started to consume alcohol on a regular basis and had suicidal thoughts on multiple occasions. He attempted suicide three times by using drugs, cutting and trying to jump out of his apartment's balcony. He had been lucky to have friends around him to help him through those stages of his life. He had suffered with nightmares. He had tremendous trust issues with people as he was afraid of getting close to them. He felt uncomfortable about becoming intimate with another person. Generally, his life had been difficult and he was looking forward to the case being resolved so that he could start rebuilding his life.

14 At the time of sentencing, the respondent was 61 years old. He had no relevant record. He was one of 11 children who left school early to help his mother raise his younger siblings. He commenced work as an electrician and was employed in the mining industry for about 30 years. He was married for 11 years and at the time of sentencing had two adult children from that marriage.

15 Typically for a crime of this nature, he was unable to offer an explanation for it. He said that shortly before the relationship commenced he separated from his wife and he was relatively lonely and confused.

16 A mitigating factor was his response to the charge. He was on bail until he pleaded guilty on 24 November 2008 when, on his own initiative, bail was revoked, and he has been in custody ever since. His counsel said that he was cooperative with police and the differences between what he told the police and what the complainant asserted were accounted for by disparities in his recollection.

17 When the allegations first surfaced a family member confronted the respondent about the matter. The confrontation turned physical and the police became involved. The respondent indicated that his wrongdoing was the root cause of the incident and following that he made a suicide attempt and was admitted to hospital for a time. It was after that that the police interviewed him.

18 Other mitigating factors put before the sentencing judge were that he had been entirely ostracised by his family. His two sons, ex-wife and siblings had nothing to do with him. He was in poor health. From 2001 he suffered three strokes and three heart attacks in six separate episodes. He had three stents in his heart and took medication. He had a high risk of further strokes and heart attacks.

19 There was nothing said by the learned judge in the comments on passing sentence that is material to the appeal. The sentence of 2½ years' imprisonment was backdated to take into account time in custody. It was ordered that the respondent's name be placed on the Register under the Community Protection (Offender Reporting) Act 2005 and that he comply with the reporting obligations under that Act for seven years.

20 It was submitted by the Director to this Court that the respondent's access to the complainant was based on familial trust and that the sexual abuse was a breach of that trust. The crime was described as opportunistic, predatory and morally reprehensible. It was submitted that what happened in the first incident may well have amounted to rape, the boy not doing anything to indicate consent and certainly not wanting what occurred. It was submitted that the circumstances of the last incident undoubtedly amounted to rape of the sleeping youth.

21 The respondent's counsel accepted that the significant age disparity was an aggravating factor, as were the breach of trust and the significant impact the crime had on the complainant. However, it was pointed out that no threats or overt violence were used and that most of the unlawful acts, with the exception of the two acts of anal intercourse, were not serious examples of unlawful sexual acts. It was argued that while it was not disputed that the crime was opportunistic, predatory and morally reprehensible, those are inherent characteristics of most examples of the crime.

22 The point was made by the respondent's counsel that the crime of maintaining a sexual relationship with a young person under the age of 17 years is a unique one that enables the Crown to charge unlawful sexual acts rolled up as one crime, notwithstanding some vagueness and uncertainty in the allegation of each of those unlawful sexual acts. It was submitted that notwithstanding that a number of sexual acts, by definition three at least, are necessary for the commission of the crime, the respondent was liable to be sentenced for one crime and not for a number of different crimes. It was argued that for that reason, it would have been wrong to sentence the respondent as if he had pleaded guilty to one count of rape along with other identified sexual crimes.

23 That submission was contrary to the views of the majority of this Court, when differently constituted, in Director of Public Prosecutions v M [2005] TASSC 14; (2005) 154 A Crim R 475. The principal judgment was of Evans J, with whom Blow J agreed on matters of principle. At 489 - 490, Evans J said that a person convicted of three unlawful sexual acts should ordinarily suffer the same penalty whether they are the basis of a charge of maintaining a sexual relationship with a young person under the age of 17 years or are charged as separate crimes. In this case four particular unlawful sexual acts were identified and in addition the sentencing judge was told of a course of indecent assaults that were similar to each other. Evans J said that where a number of unlawful sexual acts are vague, the sentencing exercise will be much the same as that undertaken where an offender is convicted of a number of crimes involving specific unlawful sexual acts and the evidence warrants the judge taking into account, as a surrounding circumstance, the fact that the crimes were committed as part of a sustained course of sexual abuse.

24 The Court should apply those principles. On that basis, the sentence should have been imposed upon the basis of four specific unlawful sexual acts committed in the context of regular indecent assaults by groping the boy through his clothing when he was between the ages of 12 and 15½. The four specific unlawful sexual acts included two acts of anal intercourse when the boy was 12 and 16 respectively. The second of those acts was undoubtedly rape, for the boy was asleep when he was penetrated. The first of those acts was also committed against the boy's consent but the Director conceded that there was a possibility of a defence to rape based on honest and reasonable belief concerning consent. The other two specific unlawful sexual acts were indecent assaults when the boy was 12 and 14 respectively and involved the accused playing with the boy's penis on the first occasion and having the boy hold his penis, for a couple of seconds, on the second occasion.

25 Section 125A(4) provides that on a charge of maintaining a sexual relationship it is not necessary to prove the dates on which, or the exact circumstances in which, any of the unlawful sexual acts were committed. It was submitted by the respondent's counsel that the section creates a unique crime for it allows an element of vagueness or uncertainty in particulars of the allegations and it enables conviction in circumstances where, if the unlawful sexual acts constituting it had been separately charged as crimes, conviction for them might not have resulted. It follows, so it was submitted, that the penalty upon proof of those sexual acts on a charge of maintaining a sexual relationship should be less than the total of the penalties that would have been imposed upon proof of those sexual acts if separately charged.

26 It is unnecessary to decide whether it is correct to say that the section enables conviction in cases where it would not be open if the unlawful sexual acts were separately charged. The submission is contrary to the view of the majority in DPP v M. It seems to have within it an argument that a finding that an unlawful sexual act was proved on a charge of maintaining a sexual relationship has less certainty about it, or less value or weight, than such a finding if the unlawful sexual act is separately charged. There is no merit in such an argument and that is plainly so in a case where the accused person has admitted his guilt of the respective unlawful sexual acts.

27 It is arguable that the sentence of 2½ years' imprisonment would have been an inadequate one if imposed on a charge for the final act of anal rape only. It was manifestly inadequate when regard is had to the other three unlawful sexual acts to which the respondent admitted, and particularly the first of those acts.

28 Both acts of anal intercourse occurred without the young victim's consent. They were degrading acts with considerable potential for causing psychological harm that in fact resulted. Even allowing for the mitigating factors, including the response of the respondent to the charge and his plea of guilty, 2½ years' imprisonment was such an inadequate punishment for the respondent's crime that the Court's clear duty is to quash it and replace it with a more appropriate one.

29 I would quash the sentence and replace it with imprisonment for 4 years from 12 November 2008 and I would order that the respondent is not to be eligible for parole until he has served half of the sentence.

30 I agree with the reasons of Crawford C J and would also allow the appeal.

32 I agree with the reasons for judgment of Crawford CJ and with the orders he proposes.