Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law officer - Applications to increase sentence - Other matters - Circumstances not warrant appellate interference.

Second Respondent: Legal Aid Commission of Tasmania

Judgment Number: [2004] TASSC 93

1 I have read the reasons for judgment prepared by Evans J and agree with them. I too, would dismiss the appeal.

2 I have read the reasons for judgment prepared by Evans J and agree with both his reasoning and conclusion. I would dismiss the appeal.

3 The Director of Public Prosecutions appeals against the sentences imposed on each respondent upon their conviction on two counts of indecent assault. When sentenced, each respondent had already spent 15 days in custody in respect of the crimes. This was made known to the learned sentencing judge and in sentencing each respondent he was obliged to pay regard to the period spent by that respondent in custody in relation to the crimes, the Sentencing Act 1997, s16(1)(a). JGW was fined $1,000 and sentenced to three months' imprisonment, the whole of which sentence was suspended on condition that he was of good behaviour for three years. NLW was fined $400. The Director contends that each sentence is manifestly inadequate.

4 Whilst each respondent was convicted of the same crimes, it is important to keep in mind that the factual basis for the sentencing of each respondent was markedly different and, indeed, was contradictory. This is not unusual where, as here, one offender (JGW) pleaded guilty on the basis of agreed facts, and the other offender (NLW) was found guilty following a trial and it fell to the learned sentencing judge to determine the facts referable to the sentencing of JGW in the light of the evidence given on his trial.

5 The crimes were committed on the morning of Saturday, 7 September 2002 when NLW, then 18 years of age, and her male partner JGW, then 26 years of age, were baby-sitting NLW's half-brother J, then 4 years of age, at his parents' residence. Also at that residence was a brother of J, B, then aged 12. During the morning two friends of the respondents, JD and MJ, visited the residence. In the presence of JD, NLW and JGW indecently assaulted J, who was not wearing a nappy, by placing a vacuum nozzle over his penis. They also indecently assaulted J by rubbing Deep Heat on his testicles. J's father became aware of what had occurred and contacted the police. The respondents lied to the police about their involvement in these incidents and blamed B for the mistreatment of J.

6 J did not suffer any lasting physical injury. Chemical burns caused by the Deep Heat quickly cleared up. The psychological impact on him of what occurred is not known. These assaults are shocking because of the disparity between J's age and the age of each respondent and, more particularly, because of the interference with J's penis. Had the vacuum cleaner nozzle and the Deep Heat been applied to some other area of J's body, the conduct would probably have been condemned as very cruel teasing, but would not have resulted in criminal proceedings. Force was applied with a derisory objective, rather than with the intention of causing J serious harm. The indecent element in each assault is an incident of that derisory objective, not lust. To say this is not to lose sight of the reality that these assaults may have caused J significant psychological harm. NLW is J's older half-sister. There is a risk that her participation in the denigration of J in the presence of others may have a lasting psychological impact on him.

7 Counsel for the Director of Public Prosecutions submits that as the respondents' crimes involved the abuse of a young child, sentences of imprisonment (partly suspended in the case of NLW, but not suspended in the case of JGW) were necessary to denounce their conduct. Counsel referred the Court to the decision in R v Bayley 77/1972 where Burbury CJ said:

"Any ill-treatment of children, of course, shocks the conscience and causes feelings of revulsion by members of the community. But this case must be kept in perspective. ... But in this crime, as well as in all other crimes, the primary avowed purpose of the criminal law in punishing people is to deter other people from committing similar crimes. See The King v Porter 55 CLR (Sir Owen Dixon) at p 182. And in the process of sentencing the Courts assume that punishment achieves this purpose, although not doubt it does so with varying degrees of success. I am certainly not persuaded that the crime of ill-treating children should be placed in a special category and dealt with differently. I am not impressed that assaults on children of the kind with which I am concerned here maybe described in terms of a 'syndrome'. And although the purpose of punishment of such crimes may generally be stated to be deterrent, the revulsion of the public to ill-treatment of small children, and the community requirement that the Court, as the community's instrument of justice, should denounce such conduct by punishment, are important factors. This, of course, is not to say that the Court should allow itself to be a vehicle for the expression of feelings of primitive vengeance and retribution by well-meaning members of the community. But the restrained moral sense of the community as a whole is not to be disregarded, and the Courts' sentencing policy may properly be influenced by that moral sense. (See Whitcombe (1971) CLR p 51; R v Donaldson [1968] 1 NSWR 642)."

8 R v Bayley was an horrific case involving the manslaughter of a small girl aged 2, and wilful mistreatment of a small girl aged 4. The facts of that case are not remotely comparable to the differing factual scenarios upon which each respondent fell to be sentenced. Whilst a judicial officer sentencing an offender for a crime that involves the abuse of a child should be conscious of the need to denounce that conduct by punishment, this does not mean that a sentence of imprisonment must necessarily be imposed. The sentence must reflect all the circumstances of the case.

9 At the time of the offence, NLW had been in a relationship with JGW for about five months, and during this period he had violently assaulted her on a number of occasions. On the morning of the crime, she was told by B that JGW had treated J violently. She left the residence and tried, unsuccessfully, to telephone her father for assistance. When she returned to the residence, JGW pushed her and threatened her. She was in fear of JGW. He had taken amphetamines earlier that day and was in a violent mood. She retreated to a bedroom, crying, and whilst there, heard the vacuum cleaner. She went to the lounge-room and turned it off. JGW abused NLW, turned the vacuum cleaner back on, gave her the end nozzle and told her to put it on J's penis. She did so out of fear of the repercussions if she did not comply. After this incident, which was quite momentary, she took J to the bathroom and whilst there, JGW entered, saw a tube of Deep Heat, and told NLW to put some on J's testicles. She objected. JGW told her that if she did not do so he would knock her out. She did as she was told, and upon JGW leaving the bathroom, she bathed J to remove the Deep Heat. Later that day, she was again assaulted by JGW who told her to say nothing about what had occurred to J.

10 Subsequent to NLW's first interview with the police, in which she lied about what had occurred, she wrote to the police making admission in relation to the second incident. She pleaded guilty on the day her trial was to commence. When sentenced, she had severed her ties with JGW and reconciled with her family. She had no prior convictions.

11 Counsel for the Director submits that the fine of $400 imposed on NLW was inadequate to denounce her conduct, and that a sentence of imprisonment, even if partly suspended, was necessary to achieve that end. This submission ignores the reality that the substantive penalty suffered by NLW was 15 days' imprisonment as well as a fine of $400. Counsel submits that that an appropriate penalty would have been a sentence of 3½ months' imprisonment, backdated for 15 days and wholly suspended from the date of sentencing on a condition as to good behaviour. Had such a sentence been imposed, and had NLW satisfied the condition as to good behaviour, this aspect of the sentence would have been less punitive than the fine actually imposed. That this could be the outcome of what counsel contends would have been an appropriate sentence was apparently of no concern. It seems that the concern motivating this appeal is a concern that the sentence imposed does not expressly refer to the fact that NLW has served 15 days in custody. In result when NLW's sentence is considered for other purposes, this aspect of her penalty is not apparent. No regard should be had to this concern. A failure to so tailor a sentence as to make it apparent on the face of the record that the offender has been punished by a period of actual imprisonment is not, in itself, a sufficient basis for this Court to intervene; R v Doyle 157/1998, Cox CJ at 1.

12 When the offences were committed, NLW was 18 years of age and had no prior convictions. On the facts for her sentencing, she had not initiated either indecent assault, had only participated because of JGW's intimidation, and had shown compassion towards J as soon as she was free to do so. It was she who bathed J in order to remove the Deep Heat. On these facts there was no prospect of NLW being sentenced to a term of imprisonment with immediate custodial effect. However, prior to her being sentenced, she had spent 15 days in custody in relation to the offences. In these circumstances it would have been quite reasonable not to have imposed any further penalty upon her. In fact, the learned judge chose to impose a further penalty by way of a fine of $400. If anything, that fine was unwarranted. It was most certainly not a manifestly inadequate penalty.

13 I would dismiss the appeal against the sentence imposed on NLW.

14 JGW was in the lounge-room with NLW and JD. Having made a comment to NLW to the effect of "what can we do now", JGW grabbed J from behind and NLW, who was sitting next to a vacuum cleaner, turned it on and placed the nozzle over J's penis. JGW was sitting behind J and NLW was kneeling in front of J. JGW and NLW laughed as J was telling them to stop and screaming. After about 20 to 30 seconds, JGW and NLW desisted and then discussed what else they could do. NLW said she had some Deep Heat in her sports bag. While JGW continued to hold J, she took the Deep Heat from the bag and rubbed some on J's testicles. His screams and cries attracted the attention of MJ and B, who ran to the lounge room. MJ got a wet face washer. He handed the washer to J and told him to place it on his testicles to cool them down. As this occurred JGW and NLW were laughing. There was no evidence that JGW intimidated NLW into participating in these events.

15 Upon his trial, JGW denied guilt and continued to falsely blame B for the abuse of J. JGW had prior convictions for crimes of dishonesty and a conviction for assault.

16 When sentenced, JGW was in employment and had the custody of his two children, aged 5 and 7, by a relationship that predated his relationship with NLW.

17 The argument advanced by counsel for the Director of Public Prosecutions in relation to the inadequacy of JGW's sentence is much the same as her argument in relation to NLW's sentence, save that counsel contends that in this instance the inadequacy arises from the suspension of the sentence of imprisonment. Counsel does not contend that the period of the sentence of imprisonment is inadequate. The penalty suffered by JGW is a period of 15 days in custody, a fine of $1,000 and a suspended sentence of three months' imprisonment. When all aspects of the penalty are borne in mind, it can be seen that the sentence is within the range of penalties for offences such as his. In the period 1990 - 2000, there has been an increased tendency to wholly suspend sentences in cases of indecent assault. During this period, 41 per cent of single count sentences were suspended, as were 37 per cent of global sentences. Typical cases to attract an order for total suspension were cases of relatively minor assaults where a custodial sentence was imposed to mark the seriousness of the conduct but was suspended because prospects of re-offending were slight. See Professor Warner's text, Sentencing in Tasmania, 2nd ed, 322, par 11.429.

18 Whilst it is difficult to compare instances of particular indecent assaults, it can be said with confidence that the range between the most serious and the least serious forms of this crime is extremely wide. Factors in crimes that can be compared are the force used and the nature of the indecent conduct. As to force, JGW essentially restrained J. JGW applied little force to J and did not act violently or viciously towards him. As to the nature of the indecent conduct, it was not intrusive and did not, as is often the case, involve inveigling a young person into acquiescing to sexual behaviour that, in the course of time, almost inevitably causes the victim to suffer shame and remorse. Reprehensible and repugnant as JGW's conduct was, his crimes are at the lower end of the scale of seriousness for crimes of indecent assault. Bearing in mind that JGW had spent 15 days in custody, it was open to the learned sentencing judge to decide that the further three months' imprisonment he imposed on JGW should be wholly suspended on condition that he be of good behaviour for a period of three years. The fine of $1,000 ensured that the suspension of the three month period of the sentence did not denude the sentence of punitive effect. It is well recognised that where the scales are evenly balanced as to whether a term of imprisonment should be suspended, it may be appropriate to impose a fine coupled with a suspension of the term of imprisonment, rather than a sentence of imprisonment with immediate effect; Bryant v Bessell A62/1994 and R v Leigh (1969) 54 Cr App R 169.

19 Counsel for the Director contends that this Court should substitute an immediately effective sentence of three months' imprisonment for that part of JGW's penalty that involves a suspended sentence of three months' imprisonment and a fine of $1,000. Even if I was persuaded that the sentence favoured by counsel for the Director was a more appropriate sentence than that imposed by the learned sentencing judge, I would dismiss this appeal. Such a change to the sentence would be tinkering at its worst (Aherne v R 20/1982, Nettlefold J at 3), and could never justify an appeal against sentence by the prosecution; R v O [2004] TASSC 53 and R v McDonald (2002) TAS R 221.

20 I would dismiss the appeal against the sentence imposed on JGW.