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[2012] TASCCA 7
Court of Criminal Appeal (Tas)
2012-08-08
Wood JJ, Blow J, Evans J, Tennent J
Original judgment source is linked above.
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions v STU [2012] TASCCA 7
Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Two convictions for maintaining a sexual relationship with young person under 17 and two convictions committing an indecent act with a young person under 17 - Global sentence of two years' imprisonment.
Judgment Number: [2012] TASCCA 7
1 The Director of Public Prosecutions appeals against the sufficiency of a sentence imposed on the respondent, for two convictions of maintaining a sexual relationship with a young person under 17 years of age, and two convictions of committing an indecent act with a young person under the age of 17 years.
2 The sentence under appeal was imposed by Blow J. It is a global sentence of two years' imprisonment as to which the respondent was made eligible to apply for parole after serving one-half of the sentence.
3 When sentenced, the respondent was 74 years of age. The criminal conduct that is the subject of his convictions began when he was in his mid-60s and ended when he was in his early 70s. His victims were two of his granddaughters and a friend of one of the granddaughters.
4 The facts provided by the prosecutor to the learned sentencing judge in relation to the respondent's crimes included the following.
5 The first charge of maintaining a sexual relationship related to a granddaughter of the respondent ("the first granddaughter"). During the period of this crime she frequently visited and stayed with the respondent and his wife. She turned 6 years of age in 2002. On an occasion during 2002 when she was at the respondent's residence and he and she were on his bed, he asked if he could put his penis on her. Notwithstanding that she said, "No", he pulled her legs apart and put his penis on the outside of her vagina and began rubbing it against her. She told him to stop and he eventually did so.
6 When she was approximately 7 years of age in 2003, on an occasion when she was at the respondent's residence, he asked her to suck his penis. She refused, but he told her that if she did not he would show her friend pictures he had taken of them. She went into a bedroom with the respondent. She was crying. He pulled down his pants, removed his penis and guided her face so that his penis went into her mouth. After some minutes she pushed him away. He told her he was sorry and then admitted that the photographs he had told her about did not exist. He made her suck his penis about three times in total over the period of the relationship.
7 On another occasion when this granddaughter was 7 years of age, the respondent sat her up on some boxes in the garage at his residence and put his finger inside her vagina. It hurt her, and when she said, "No", he pulled his hand away. He told her not to tell anyone as he would get into trouble.
8 On an occasion when this granddaughter was 8 to 9 years of age they were alone in the respondent's bedroom and she was sitting on the bed with her legs on his lap. He pushed her backwards so that she was lying on the bed, and put a finger inside her vagina. She told him to stop but he did not. The prosecutor told his Honour that the respondent penetrated the vagina of this granddaughter on occasions other than those mentioned but the number of those occasions could not be specified.
9 In about 2005, when this granddaughter was approximately 9 years of age, there was an occasion when the respondent undid her pants and put his tongue in her vagina.
10 When this granddaughter was about 10 or 11 years of age, she and a girlfriend, who is the subject of the second charge of maintaining a sexual relationship against the respondent, were together at his residence. Whilst they were on his bed he pulled down his shorts, took hold of his penis and asked the girls to touch it. They refused. In the presence of the friend, the respondent then put his tongue in his granddaughter's vagina. The respondent put his tongue in or on this granddaughter's vagina about seven times during the period of the relationship.
11 The respondent's unlawful sexual conduct with this granddaughter ceased when she told him that she did not want to do it anymore. This occurred in 2008 when she was about 12 years of age.
12 At the time of the incident when the respondent asked this granddaughter and her friend to touch his penis the friend was about 10 years of age and in grade 4. When the friend was in grade 5, on two separate occasions, the respondent offered her money to allow him to suck her breasts. On the first occasion he sucked one of her breasts and paid her $15. On the second occasion he sucked both of her breasts and paid her $10.
13 His Honour enquired of the prosecutor whether any other occasions of sexual misbehaviour were relied upon in relation to this friend. No doubt his Honour had in mind that the charge in relation to this victim was one of maintaining a sexual relationship. The prosecutor said that other occasions were referred to in the respondent's police interview. In the interview the respondent said that he had interfered with this victim approximately four times over three to four years, and made specific reference to an occasion when they were on a bed when he touched her vagina with his fingers. His other admissions appear to relate to the specific incidents detailed by the prosecutor that have already been mentioned.
14 The respondent's involvement with this girl and the granddaughter referred to took place in an atmosphere in which he ingratiated himself to them by supplying them with alcohol and cigarettes. He repeatedly told them that if they told anyone he would get into trouble, or something bad would happen to him.
15 The second granddaughter of the respondent, who is the victim of the two charges of doing an indecent act with a young person under the age of 17 years, was 6 years of age in 2010. In September 2010, she told her half-sister, the first granddaughter, that the respondent had put his finger in her "rude part". Some time later she also made a complaint to her mother, stating that the respondent had done things to her. She was interviewed by police in Queensland in November 2010, but did not make any disclosures. In the same month, the first granddaughter and her friend made formal complaints about the respondent to authorities in Queensland and Tasmania. On 8 November 2010, the respondent was spoken to by Queensland police about the allegations of these girls, and he denied them. The next day he agreed to be interviewed by police and admitted he had sexually assaulted the girls.
16 On 17 February 2011, the respondent participated in a recorded interview with Tasmania police. Of the allegations made by his first granddaughter, the victim of the first charge of maintaining a sexual relationship, the respondent said:
17 Of the allegations of his first granddaughter's friend, the victim of the second charge of maintaining a sexual relationship, he said:
18 Of his second granddaughter, the victim of the two charges of doing an indecent act with a young person, the respondent said:
19 When interviewed by Queensland police on 9 November 2010, the respondent volunteered that the previous day he had touched his second granddaughter under her clothing on her breast area and on her vaginal area. For this conduct he was charged in Queensland with the crime of unlawfully and indecently dealing with a child under the age of 16 years who was, to his knowledge, his lineal descendant. He pleaded guilty to the charge and, on 12 August 2011, Shanahan DCJ sentenced him to a wholly suspended term of 12 months' imprisonment. When imposing that sentence, Shanahan DCJ noted that when the second granddaughter had been interviewed she had made no disclosures in relation to the respondent's conduct, so it was purely because of his confession that he was charged.
20 In the course of the subject sentencing hearing the learned sentencing judge was provided with victim impact statements from the first granddaughter, the parents of the second granddaughter, and the mother of the friend. The first granddaughter said that the respondent's abuse of her had had a devastating effect on her, shattered her self-confidence and caused her to resort to self-harm. She found it very difficult to get close to people, had difficulty sleeping, had required counselling and would need counselling for a considerable time. The prosecutor explained that this victim had received counselling for at least two years. It had been of some assistance, but ongoing counselling was necessary. The first granddaughter initiated the complaints to police about the respondent so as to ensure that he did not abuse her half-sister, the respondent's second granddaughter, or anyone else. When the first granddaughter complained, she was about 14.
21 The mother of the friend who was the victim of the respondent's second crime of maintaining a sexual relationship said that her daughter did not want to talk about what had occurred. The mother detailed the close relationship that had formerly existed between her family and that of the respondent.
22 The parents of the second granddaughter said that before the abuse she was a very happy, content and innocent little girl, but since it she has lost her normal outgoing personality and had become much more subdued. Her behaviour had been affected adversely in a number of ways.
23 The prosecutor read from a statement of the son of the respondent who was the father of the two abused granddaughters. In it the son explained the devastating impact of the revelations about the respondent on the family and concluded with a statement that he no longer had a father.
24 The respondent was represented on the sentencing hearing by Michael Crisp. Mr Crisp opened his submissions by reading from two documents provided by the respondent. In them the respondent expressed his sincere apologies for what he had done, accepted full responsibility for his conduct, and agreed to pay for any psychological treatment his victims needed.
25 The information put before the Court by Mr Crisp included the following. The respondent's wife of nearly 50 years could not bring herself to support the respondent in any way. Their marriage was at an end, as was the respondent's relationship with his son who was the father of the two abused granddaughters. Since the disclosure of the respondent's criminal conduct, he had been residing with a younger sibling on the mainland.
26 In his working life the respondent had attained tertiary results and certificates that enabled him to qualify as a master mariner. In that position he took ships to sea all around the world for many years. Due to poor health he was retired on the ground of invalidity from that form of employment in about 1993. After retirement he continued to do ad hoc work out of various ports in Australia and spent some time teaching a variety of nautically related courses at the Australian Maritime College, before turning to commercial fishing, which he ceased in about 1999. For a short time he ran a takeaway shop, but as a consequence of the toll of his various ailments he ceased gainful employment in 2001. He had spent some time renovating a shack, taken classes on marine diesel engines and undertaken some marine survey work.
27 The learned sentencing judge was provided with four medical reports in relation to the respondent's many and varied health problems, together with two lengthy reports from Michael Crewdson, a psychologist and psychotherapist.
28 In very brief summary, the respondent's medical history included an incident in 1955 when he was knocked from a motorcycle and left with a shortened right leg, together with a generalised arthritic disorder. More recently, he had suffered from hypertension, type-two diabetes that required oral therapy; coronary-artery disease that required by-pass surgery in 1989, two stent insertions in 2007, one stent insertion in 2010 and further by-pass surgery in 2011; asthma, TURP surgery for an enlarged prostate on two occasions; aortic stenosis; Parkinson's disease, as a result of which he had difficulty with fine motor hand movements; debilitating back problems associated with an L5/S1 disc prolapse; foot-drop related to his Parkinson's disease or the disc prolapse; osteoarthritis; two hip replacements; and lap-band surgery for obesity in 2008. As a consequence of his cardiac problems, diabetes and prostate surgery he had been impotent since some time prior to the commencement of his criminal conduct. He needed a knee replacement. He was taking 14 different medications for his various conditions.
29 As at 28 September 2011, the date of Mr Crewdson's second report, he had been treating the respondent for depression and anxiety for 15 months, and had seen him on more than 40 occasions. Mr Crewdson described the respondent as having a sad dysfunctional background, which began with the loss of his father following World War II; a poor relationship with his mother; care away from the major family in homes sponsored by the Legacy organisation; and sexual abuse commencing when he was between the ages of 5 and 7 years. Initially this abuse had occurred in a domestic context with incestuous activity but progressed to violence compounded by later aggressive rapes. Mr Crewdson said there are three interactive factors of major importance in attempting to understand how the respondent, a man of previously excellent character, had sexually abused children he loved, who had apparently trusted him and reciprocated his affection. In brief summary, Mr Crewdson said that the first of these factors was the respondent's inability to continue his life at sea, combined with the onset of physical dysfunction and debilitating mental conditions that developed into a major depressive disorder. The second was his introversion and the third was the post-traumatic legacy of his own abusive sexual experiences that began when he was of an age and state of development comparable to that of his victims. Mr Crisp submitted to his Honour that these three interactive factors had combined to produce in the respondent, who was an otherwise good and loving grandfather, some form of cognitive distortion that led him to think that others enjoyed his conduct and that it was not harmful.
30 With regard to remorse, Mr Crisp put to his Honour that the width and depth of the respondent's remorse and sadness was immeasurable. Support for this submission is to be found in Mr Crewdson's reports which referred to the respondent's shame and included Mr Crewdson's observation that in his dealings with the respondent he did not obfuscate, or resort to the retrospective justification of his conduct. Mr Crisp reminded his Honour of the respondent's ready confessions when interviewed by police in Queensland, and subsequently in Tasmania, and pointed out that the respondent had pleaded guilty on the second occasion that he appeared before the Court of Petty Sessions in Hobart, which was the first occasion on which all the charges against him were before the court.
31 Mr Crisp said that the respondent accepted the Crown statement of facts and accepted that he would be sentenced on the basis of them. This was a material concession as, when interviewed by police in relation to his first granddaughter, the respondent had not accepted that he had penetrated "in her vagina". Mr Crisp said that the respondent did not require his Honour to examine the degree of penetration, as to do so would require his first granddaughter to give evidence. In result the respondent was sentenced on the basis that there had been penetration as stated by this granddaughter.
32 Mr Crisp provided his Honour with an actuarial table that assessed the life expectancy of a man aged 74 at 10.63 years and tendered a report from a consultant cardiologist who said that the potential for the respondent to survive more than the next ten years was quite good. Mr Crisp submitted that the respondent's ill health would inevitably make it harder for him to serve a period of incarceration than a person in good health.
33 As to the risk of the respondent re-offending, Mr Crisp relied on Mr Crewdson's opinion that this was a low risk. When his Honour made the point that unless the risk was non-existent it was necessary to make an order under the Community Protection (Offender Reporting) Act 2005, Mr Crisp responded that he made no submission to the contrary. His Honour went on to observe that in cases such as that which was before him, the need for general deterrence was far more significant than the need for personal deterrence.
34 The first ground of the Director of Public Prosecutions' appeal is that: "The learned sentencing Judge erred in law and in fact in failing to appreciate and/or take into account and/or sentence on the basis of all acts particularised and relied on against the respondent".
35 In support of this ground it is submitted on behalf of the Director of Public Prosecutions that his Honour erred because there was no reference in his comments when passing sentence to the following unlawful sexual conduct referrable to the first granddaughter:
36 As to the respondent's abuse of his first granddaughter, his Honour said the following in his comments when passing sentence:
"He sexually abused the first granddaughter on a number of occasions, beginning when she was about 6 years old and ending when she was about 12. He began doing this in his mid 60s and ceased in his early 70s. The abuse occurred on occasions when the girl visited his home. She would sometimes stay for several weeks. The first sexual act involved him rubbing his penis on the outside of her vagina. He got her to suck his penis on about three occasions, beginning when she was about 7 years old. He inserted one finger into her vagina on at least three occasions, beginning when she was 7 years old. He inserted his tongue into her vagina on about seven occasions, beginning when she was about 9 years old. When she was about 10 or 11 years old there was an occasion when he exposed his penis and asked this girl, and the girlfriend that I have mentioned, to touch it. They refused, but he proceeded to insert his tongue into the granddaughter's vagina. The sexual abuse of this granddaughter ceased after she said that she did not want to participate any more."
37 The first matter raised on behalf of the Director of Public Prosecutions in support of this ground relates to his Honour's comment that the respondent inserted one finger into his first granddaughter's vagina on at least three occasions. The prosecutor had informed his Honour that the respondent had penetrated his first granddaughter's vagina on occasions other than the three occasions specified, but that the prosecutor was unable to say exactly how many. When interviewed by police, the respondent had admitted touching his first granddaughter's vagina with his fingers probably ten times, no more than 20 times, but denied inserting his finger in her vagina. On the evidence before his Honour, that which his Honour said was correct. Digital penetration had occurred on at least three occasions. In the context of a crime of the nature of that in question, that his Honour did not specifically refer to the occurrence of digital penetration on other occasions that could not be specified is of no consequence. As noted by his Honour at the outset of his comments, the respondent had sexually abused his first granddaughter on a number of occasions.
38 The second and third matters raised on behalf of the Director of Public Prosecutions in support of this ground are the respondent's admission that he had touched his first granddaughter's breast with his hand and his admission that she had touched his penis with her hand three to four times. His Honour did not refer to these admissions or describe unlawful sexual acts of this nature in his comments when passing sentence.
39 I am quite unable to accept that it was necessary for his Honour to detail in his comments the nature and occurrence of each and every unlawful sexual act committed by the respondent against his first granddaughter. The respondent's crime against her involved abuse over a period of about six years. In such a case it was sufficient for his Honour to identify and describe the most material conduct. His failure to detail each and every unlawful sexual act does not amount to an error. In this regard see Trueman v Tasmania [2009] TASSC 29; (2009) 18 Tas R 435, Crawford CJ at pars[31] to [33], agreed with by Tennent J, par[70].
40 An illustration of that which I have just said is the manner in which his Honour dealt with the evidence referrable to the respondent's medical and psychological state and his life expectancy. That evidence was primarily contained in reports that ran to about 50 pages. With reference to it, his Honour said:
"[The respondent] is now in his mid 70s. ... He is not in good health. His medical problems include hypertension, diabetes, coronary artery disease, asthma, osteoarthritis and Parkinson's disease. He has had heart, prostate, hip replacement, and lap band surgery. He has obtained the assistance of a psychologist, who has reported that he was suffering from an untreated depressive disorder over the period of his offending. He had a fulfilling career which he had to give up for medical reasons. That appears to have led to demoralisation and then depression. He was sexually abused as a young child, and raped twice as a teenager. His psychologist considers those experiences, early psycho-social disruption, and the development of introversion, to be relevant to his offending conduct. I accept that he will need extensive continuing psychotherapy. Obviously imprisonment will be much harder for him than it is for most prisoners."
41 In so summarising about 50 pages of evidence, his Honour made no reference to the respondent's life expectancy and a number of other details. There is no suggestion that this involved any error on the part of his Honour. That which he said was sufficient with regard to this aspect of the matter. I should say that in giving this illustration I am not equating the importance of adequately identifying the respondent's criminal conduct with the less significant need to address the medical and related evidence referrable to him.
42 The second ground of the Director of Public Prosecutions' appeal is that: "The learned sentencing Judge erred in law and in fact in failing to acknowledge and pass sentence on the basis that many of the criminal acts for which the respondent stood to be sentenced were performed against the clearly expressed will of the complainants and in the face of their resistance to those acts."
43 This ground overstates the evidence of resistance by the complainants. The evidence referrable to resistance was as follows:
44 Whilst it is clear that by reason of the respondent's position relative to each of his victims, he prevailed on them to suffer his abuse, it is simply not correct to say, as this ground does, that many of his criminal acts were performed against the clearly expressed will of the complainants and in the face of their resistance to those acts.
45 That his Honour did not expressly refer to the limited evidence of actual resistance that was before him does not mean that he was not well aware of it and failed to pay due regard to it when sentencing the respondent. On a fair reading of his Honour's comments when passing sentence, it is clear that he was fully aware of the nature and scope of the respondent's criminal conduct.
46 The third and final ground of the Director of Public Prosecutions' appeal is that: "The learned sentencing Judge erred in law in imposing a sentence which was manifestly inadequate in all the circumstances."
47 It is extremely difficult to establish a sentencing range for a conviction for maintaining a sexual relationship with a young person under 17; Richman v Tasmania [2011] TASCCA 18 par[40], Crowley v R [2003] TASSC 147 par[18] and Director of Public Prosecutions v M [2005] TASSC 14 pars[9], [33] and [34]. For this reason it is also difficult to sustain a ground of appeal that contends that a sentence for this crime is either manifestly excessive or manifestly inadequate. Based on 95 sentences imposed for a single count of this crime between 2001 and August 2011, the median sentence for it is two years and four months; Richman v Tasmania (supra) par[41].
48 The respondent was not sentenced for a single count of maintaining a sexual relationship with a young person under 17. He was sentenced for two counts of that crime and two counts of doing an indecent act with a young person under the age of 17 years. His criminal conduct related to three young victims. His abuse of his first granddaughter began when she was 6, his abuse of her friend began when she was 10 and he abused his second granddaughter when she was 6. In some instances he abused his first granddaughter and her friend when they were together. He provided them with alcohol and cigarettes. He knew that the friend had previously been a victim of sexual abuse. He discouraged his victims from disclosing what he was doing. His conduct involved a gross breach of trust and it spanned a period of about eight years. His abuse has had a serious and pervading impact on his victims and their families.
49 Unquestionably the respondent's most serious crime relates to his first granddaughter. However, appalling as this crime was, it must be recognised that it did not involve ejaculation, penile penetration of her vagina or penetration of her anus by any means. Most regrettably, convictions for this crime can involve abuse of this nature and the abuse can be accompanied by considerable intimidation, if not actual violence.
50 The conduct of the respondent that is the subject of his conviction referrable to the girlfriend was:
51 The conduct of the respondent which was the subject of his convictions in relation to his second granddaughter was touching her on the vagina with his fingers on two separate occasions.
52 In the course of the sentencing hearing, the prosecutor pointed out to his Honour that three authorities on sentences for the crime of maintaining a sexual relationship with a young person under 17 that had been cited to his Honour by Mr Crisp, related to single counts of the crime, whilst the respondent was guilty of several charges. His Honour's response was to the effect that the authorities cited had probably dealt with worse conduct than that of the respondent and the prosecutor agreed. So do I. The totality of the respondent's criminal conduct is not as grave as that involved in a number of cases that have come before the Court of a single count for the crime of maintaining a sexual relationship with a young person under 17.
53 When sentencing the respondent, his Honour paid regard to his early admissions to the police in both Queensland and Tasmania; his lack of prior convictions; his severe ill health, the effect of imprisonment on him; his psychological treatment; his low risk of reoffending; his obvious remorse and the psychological explanation for his behaviour. Another matter that his Honour would have had in mind was the respondent's life expectancy.
54 Of the mitigatory matters that the respondent could rely on, to my mind the most significant flowed from his prompt confessions and his early pleas of guilty. He thereby vindicated each complainant and allowed them to avoid the trauma of giving evidence against him. This warranted the imposition of a significantly discounted sentence. It is to be remembered that when considering a range of sentences, some sentences that form the basis for the range have not had the benefit of this discount as they relate to convictions following a trial, the offender having pleaded not guilty.
55 I am not persuaded that the sentence imposed on the respondent was manifestly inadequate.
57 I have had the benefit of reading the draft reasons of Evans J in this matter. In respect of the ground of manifest inadequacy, I take the view that the sentence imposed, while it may perhaps be seen as being more lenient than it should be, is one which is not so far outside the range of sentences imposed for these types of crimes so as to demonstrate error. Otherwise I agree with the reasons of Evans J and would also dismiss the appeal.
58 I have read the reasons of Evans J. I agree with his Honour's reasons and the conclusions he has reached with regard to grounds 1 and 2 of the appeal. However, I am unable to agree with the conclusion relating to ground 3 that the sentence was not manifestly inadequate. There is no need for me to recite the factual basis for the sentence imposed and the contentions of counsel. I am grateful to his Honour for his comprehensive summary of these matters, as well as his characterisation of the criminal conduct under consideration and the impact upon the victims.
59 I commence my consideration by making brief reference to some matters of general principle applying to the sentencing of offenders for sexual crimes involving children. General deterrence is an important consideration; in R v S [1985] TASSC 25 Neasey J at 4, referred to the importance of general deterrence "in pursuance of the courts' duty to do what they can to protect children". This is particularly so in cases when the perpetrator is in a position of trust to the victim: R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1 at 20. Courts have an important role in protecting children by imposing sentences that will operate as a deterrent to those who may be inclined to engage in such conduct.
60 The sentences that are imposed must reflect the community's concern about offences involving the sexual abuse of children, recognising the awareness that now exists within our society of the potential for victims to sustain substantial harm as a consequence of such offending: R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; DPP v DJK [2003] VSCA 109 per Vincent JA at par[26]. A related objective of the sentencing process is denunciation, thereby reinforcing society's values and expectations of its members: Ryan v R [2001] HCA 21; (2001) 179 ALR 193 per Kirby J at 118; Crowley v R [2003] TASSC 147 per Crawford J (as he then was) at par[14]. I refer to denunciation in the sense used by Evans J in in DPP v NOP [2011] TASCCA 15 at par[41] as that of "appropriate vindication and to assuage informed public outrage".
61 The vulnerability of children and the need for protection is marked in cases where the victims are very young. Children are particularly vulnerable in the situation of abuse carried out by a family member: R v BJW at 20 - 21.
62 Before turning to the circumstances of this case I make some observations regarding the use of statistics, and the use of previous sentences for the offence of maintaining a sexual relationship with a young person under 17. Sentences imposed for this crime vary enormously as a reflection of the vast differences in the criminal conduct and circumstances that are captured by the offence: DPP v M [2005] TASSC 14, at par[9] per Slicer J, and par[33] per Evans J. For this reason, I consider that statistics drawn from the full range of cases without discriminating between categories of conduct are not helpful in the sentencing process.
63 In seeking reasonable consistency in sentencing, ie "treatment of like cases alike, and different cases differently", sentencing judges and appellate courts must have regard to previous sentences: Hili v R [2010] HCA 45; (2010) 242 CLR 520 at pars[49] and [53]. However, the use of what has been done in other cases demands a degree of caution: Hili (supra) at par[53]. One of the reasons identified is that "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned", Hili at par[54] quoting Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [304]. In a similar vein, Heydon J observed at par[79] that a past "sentence itself gives rise to no binding precedent. What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised." A word of caution is noted with regard to the use of past sentences as providing a sentencing range "while the history of sentencing can establish a range of sentences that have been imposed ... (it) does not establish that it is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits", Hili at par[54]. In this case there are too few cases similar in enough key respects to the sentence under consideration to provide a discernible and established range. Thus, any question as to the correctness of the upper and lower limits does not arise. In assessing the sentence here it is nonetheless of considerable assistance to have regard to previous sentences as they encapsulate the "accumulated wisdom and experience of first instance judges and appellate courts", Hili at par[54]. An assessment of the adequacy of the sentence under consideration is informed in a general or broad sense by the history of sentences imposed, but turns on a consideration of the facts and circumstances of the case and the application of binding sentencing principles.
64 In submissions for the Crown there was reliance on various decisions of this Court with regard to sentences imposed at first instance or after a successful Crown appeal for the crime of maintaining a sexual relationship with a person under the age of 17. It is not necessary to refer to them. Generally speaking, they involved heavier sentences for more serious conduct. I make the observation that some of the substituted sentences imposed by this Court were less than the sentence it considered should have been imposed at first instance due to double jeopardy, for example Attorney-General for the State of Tasmania v B [2002] TASSC 63 at par[25]; DPP v M (supra) at par[39], and Attorney-General for the State of Tasmania v C [2003] TASSC 8 pars[10] and [12]. The approach of this Court in substituting a sentence on a successful Crown appeal is now less constrained: DPP v Chatters [2011] TASCCA 8 at par[50].
65 The respondent's offending involved sexual acts perpetrated on three victims. They were very young. The sexual acts relating to one of the victims, the first granddaughter, included penetration of the child's vagina with his finger, penetration of her mouth by his penis and licking her vagina and inserting his tongue. There was a total of 13 such occasions, including seven occasions of licking or inserting his tongue into the child's vagina. Sexual abuse of the first granddaughter was not carried out on a frequent and regular basis, but his conduct occurred over a prolonged period, from when she was 6 to 12 years of age. Overall his conduct with respect to the charges spanned approximately eight years.
66 There were significant aggravating factors impacting on an assessment of the seriousness of the respondent's conduct and the level of his culpability. His conduct involved a grave breach of trust with respect to his two granddaughters. He was also in a position of trust with respect to the third complainant, the friend of one of his granddaughters. Moreover, when he sexually assaulted that child he was aware of a further vulnerability in that he knew she had been previously sexually abused. An aggravating aspect of one of the incidents involving the first granddaughter is that she was sexually assaulted in the presence of her friend, adding to the complainant's degradation and humiliation, and with the obvious potential that it would be a traumatic experience for both children. In assessing his culpability it is to be borne in mind that during one of the earlier sexual acts the complainant, the first granddaughter, had clearly demonstrated her distress. She had cried when he required her to suck his penis. He had continued until she pushed him away. The fact that on subsequent occasions he sexually abused that child knowing that he was perpetrating the kind of conduct that had caused her distress is an aggravating factor with respect to those subsequent occasions. There were other occasions when she said no. It is noted that there were occasions when in response he desisted. The fact that he subsequently repeated his acts of sexual abuse, despite what she had expressed to him on earlier occasions, is an aggravating factor with respect to those later incidents. He regularly exerted emotional pressure upon all three complainants to accede to his demands and to keep their silence in ways that were manipulative and calculated to be effective.
67 The impact of the offending was characterised as devastating by the learned sentencing judge. It is has been comprehensively referred to in the reasons of Evans J.
68 The fact that the sexual conduct did not involve ejaculation and anal and vaginal intercourse distinguishes the nature of the offending from some other offences of maintaining a sexual relationship with a young person under 17. It can be seen from comments on passing sentence in Tasmania that where the conduct has escalated to that level, generally speaking, sentences reflect that escalation. Of course, sentences imposed take account of other details of the offending and the circumstances of the case, such as whether the conduct was an isolated act, the age of the child, whether the offender was in a position of trust, and a vast range of variables with regard to aggravating and mitigating factors. Depending on these matters, there are instances of much heavier sentences having been imposed for conduct which has escalated to that level. If the sentence in this case were to be increased significantly, it would not impinge on the sort of sentences that have been imposed for that level of offending. The relativities in the nature of offending and sentences imposed would still be maintained.
69 There were matters in mitigation deserving of significant weight. I accept the respondent's plea of guilty warranted a substantial discount. His ill-health and various medical problems, by reason of which imprisonment would be a greater burden for him than most prisoners, and his shame and extreme remorse were other factors to be reflected in the sentence.
70 Notwithstanding these factors in mitigation, it is my respectful view that the sentence did not adequately reflect the gravity of the respondent's offending, especially having regard to the age of the victims and the respondent's position of trust. The conduct in relation to the first granddaughter was particularly debasing and intrusive, commencing when she was six years of age and continuing over a period of six years. A sentence of two years' imprisonment failed to give effect to the importance of general deterrence. It did not appropriately denounce his offending with respect to three young and vulnerable children and did not adequately reflect the harm caused to the victims and the community by his crimes. A sentence of imprisonment significantly longer than two years was required. In my view, the sentence was so far below that which was required that latent error has been demonstrated. The sentencing discretion has miscarried and I would uphold the appeal.
71 Even giving full weight to the matters in mitigation, a global sentence of not less than 3½ years' imprisonment was necessary to adequately reflect the matters relevant to the fixing of the sentence and the principles to which I have referred. The proper exercise of the sentencing discretion might well have resulted in a lengthier term of imprisonment; the upper bounds of that discretion do not fall for consideration here.
Director of Public Prosecutions
STU [2012] TASCCA 7
(2009) 18 Tas R 435
(2002) 54 NSWLR 368
(2001) 179 ALR 193
(2010) 242 CLR 520