DPP v Weir

Local Court of NSW|2007-11-23

CITATION: DPP v Weir [2007] NSWLC 36 JURISDICTION: Criminal PARTIES: Director of Public Prosecutions Garry Robert WEIR FILE NUMBER: PLACE OF HEARING: Downing Centre DATE OF DECISION: 11/23/2007 MAGISTRATE: Chief Magistrate G L Henson CATCHWORDS: Indecent Assault - Gross Indeceny - Solicit to an act of gross indecency LEGISLATION CITED: Crimes Act 1900 Hoare v The Queen (1989) 167 CLR 348 R v AB (2005) 156 A Crim R 577 R v BJW (2000) 112 A Crim R 1 R v Doan (2000) 50 NSWLR 115 R v Evans (unrep 24/3/88 NSWCCA) R v Fisher (1989) 40 A Crim R 442 R v Harmouche [2005] NSWCCA 398 R v JDB (2005) 153 A Crime R 164 CASES CITED: R v MJR (2002) 54 NSWLR 368 R v Johnson [2004] NSWCCA 76 R v Lett (unrep 27/3/95) per hunt CJ at CL R v Sconamiglio (1991) 56 R 81 R v Pearson [2005] NSWCCA 116 R v Taylor [2000] NSWCCA 442 R v Thomas & Houton (2000) 49NSWLR R v Zamagias [2002] NSWCCA 17 Veen v The Queen (No 2) (1988) 174 CLR 465 REPRESENTATION: ORDERS:

The Offender is charged with 2 counts of Gross Indecency with a male under the age of 18 years and 1 count of soliciting a male under the age of 18 years to be a party to an act of gross indecency. He is also charged with 3 counts of aggravated indecent assault on a victim under the age of 10 years. The offences involve two separate victims and encompass three offences committed during 1989 and three further offences committed during 2001,2004 and 2005. On 1st May 2007 the offender was arrested and charged with the offences. After participating in the Criminal Case Processing scheme he entered pleas of guilty to all charges.

The 1989 offences are brought in accordance with the provisions of Section 78Q(1) and 78Q(2) of the Crimes Act 1900. The maximum penalty for each offence in 1989 was two years imprisonment. These provisions have since been repealed.

The 2001,2004 and 2005 offences are brought in accordance with the provisions of Section 61M(2) of the Crimes Act 1900. The maximum penalty for each offence is 7 years imprisonment. The jurisdictional limit where such offences are prosecuted in the Local Court is 2 years imprisonment for each offence. The jurisdiction of the court is further constrained by the provisions of Section 58 of the Crimes (Sentencing Procedure) Act 1999. By virtue of Section 58(1) a Local Court may not, where it considers sentences should be imposed on a cumulative basis, impose a total term of imprisonment that exceeds a period of 5 years after the date on which the first sentence begins. The facts

1989 Offences [Section 78Q]: The victim of the first series of offences in 1989 was 11 years of age at the time of their commission. He is the younger brother of the offender's former wife. The first offence involved the rubbing of the child's groin on the outside of his trouser pants. The offender was at that time entrusted with baby-sitting the victim.

The second offence involved rubbing the victim's leg, and rubbing the victim's penis on the outside of his clothes for a couple of minutes. On this occasion the victim objected to the conduct and the offender ceased his actions. Once again the offender was acting in the capacity of baby sitter to the victim.

The last offence involving this victim again occurred during baby-sitting responsibilities. The accused asked the victim if he could view his penis. The victim displayed his penis to the offender who then asked if he could put it in his [the offender's mouth]. The victim replied in the negative and then left the room.

2001-2003 Offence [Section 61M(2)]: The accused is the godfather of this victim. She was at the time between 5 and 7 years of age. The age of the victim is quite clearly relevant to the lack of specificity as to the day, month and year when the actual conduct took place. Irrespective of the exact date, the conduct to which the Offender enters his plea consists of placing the victim on his knee whilst reading a book to her and putting his left hand down her jeans, under her underpants and touching the victim on her vagina. Proximate to this time the victim's father called out for her and the offender removed his hand from her pants.

2004 Offence [Section 61M(2)]: The victim of this offence is the same victim as referred to in the 2001-2003 offence. She would have been either 7 or 8 at the time of this offence and again the age of the victim is the reasonable explanation for the lack of specificity as to the day and month of the offence.

On this occasion the offender took the victim and her brother to see a musical production called "The Lion King". After returning the children to their home and saying goodbye the offender stopped on the stairs and kissed the victim with an open mouth on her mouth. The victim reacted adversely and ran down the stairs away from the offender.

13 May 2005 Offence [Section 61M(2)]: The victim of this offence is the same victim referred to in the previous two offences. She was 9 years of age at the time. On this occasion the offender drove her to a birthday party. The party was held at night in the Sydney Museum. Part of the entertainment involved a torchlight tour through the museum. During the tour, whether by accident or design, the victim and the offender were alone in a darkened environment. The offender picked the victim up and rested her on his hip. He pulled down her shirt with his right hand and began to sucking her nipple and sucking around her nipple. The victim attempted to stop the offender, struggled and after extricating herself ran to her godmother. Her godmother was at the time, the offender's wife. The victim did not complain, for reasons to do with embarrassment and fear but asked to go home with her godmother as opposed to the offender to avoid being in his motor vehicle. This request was met.
On 8th December 2006 police interviewed the offender. The allegations were put to him. He denied them.

Where an offender enters a plea of guilty a sentencing court is required to consider the provisions of Section 22 of the Crimes (Sentencing Procedure) Act 1999. In so doing the court, inter alia, may impose a lesser penalty than it would otherwise impose.

Primarily a decision to impose a lesser penalty involves the type of considerations set out in the guideline judgment of R -v- Thomson and Houlton (2000) 49NSWLR 383 wherein the Court said, inter alia, "(iii) The utilitarian value of a plea to the criminal justice system should generally be in the range of 10-25% discounted on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea. What will be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge."

It is clear in these proceedings that there should be a discount for the utilitarian value of the plea. An indication that there would be a plea of guilty in the proceedings was given on the second occasion of the matter came before the Court. The offender is entitled to have the plea considered as having been entered at arguably the earliest stage in the proceedings. In line with R -v- Thomson and Houlton (supra) and R -v- Harmouche [2005] NSWCCA 398 at 39 I acknowledge there is a benefit to the State and the consequential savings of a need to conduct a defended hearing, particularly in removing the need for either victim to attend to give evidence and be subjected to cross examination.

The view is often expressed that a plea of guilty attracts a 25% discount on the sentence that might otherwise be imposed. That view is erroneous and fails to reflect the guidelines expressed by the Chief Justice in R -v- Thomson and Houlten. In that decision the Chief Justice referred to a range of 10-25%, not a minimum discount of 25% and That the primary consideration determining where in the range a particular case should fall is the timing of the plea.

It is my view that the appropriate discount to be given for the utilitarian value of the plea in these proceedings should be significant. The expeditious nature of the plea and thereby obviation of need to call either victim justifies in my view a significant discount which I quantify as being 25%.

Aggravating, mitigating and other factors in sentencing

Section 21A of the Crimes (Sentencing Procedure) Act 1999 requires the Court to have regard to a number of matters during the sentencing process. In these proceedings there are identified aggravating factors requiring consideration as well as a reduced field of mitigating factors. Each of those factors is to be considered in the context of Section 3A - the statutory indication of the purposes of sentencing. Section 3A(g) is of particular relevance because of the tender of a Victim's Impact Statement on the part of the victim in relation to the 2001-2005 or second set of offences. I turn firstly to the aggravating factors relied on by the Prosecution and that fall within the provisions of Section 21A(2) of the Act. Aggravating factors

Section 21A(2)(d) requires the court to consider a record of previous convictions as an aggravating factor. The offender was previously convicted in 1979 and 1992 of similar offences. On each occasion he was released conditionally on good behaviour bonds. The fact of a prior conviction is not of itself a matter that can lead to the conclusion that the offences before the court are objectively more serious. That reality may however be taken into account in determining that retribution deterrence and the protection of society indicate that a more serious sentence is warranted: see R -v- Johnson [2004] NSWCCA 76. Given that the matters before the court are instances of the same type of offending behaviour represented in the 1979 and 1992 matters the Court readily concludes that the principles set out in Johnson are relevant to these proceedings. This does not mean that the Court, as it were, can punish the offender more severely because of the failure of the previous sentences to have the desired effect. This would result in an element of double jeopardy and be contrary to law. It does mean however that the enduring nature of the offending requires a measure of circumspection to be applied on the question of rehabilitation and that those factors of deterrence and the protection of society referred to above must be carefully considered.

In addition to the provisions of Section 21A(2)(d) being relevant the Prosecution submits the Court the provisions of Section 21A(2)(g), (k), (l) and (n) are also relevant as aggravating factors. Whilst I agree in relation to Section 21A(2)(g) and 21A (2) (k) I do not agree that sub paragraphs (l) and (n) apply in these proceedings in relation to what may be described as the 2001-2005 offences. Section 21A(2)(l) does in my view apply in relation to the 1989 offences.

I form this view in relation to the 2001-2005 offences because of the nature of the charges and the decision in R -v- JDB (2005) 153 A Crime R 164 wherein the Court held that the Judge erred in finding, as an aggravating factor, that the offence was committed against a vulnerable victim when it was already an element of the offence that the child was under ten.

I remind the Prosecution that an offence prosecuted under Section 61M(2) has as one of its constituent elements in circumstances of aggravation….that the victim was under the age of 16 years.

In my view the court is not so constrained in relation to the 1989 offences because the charges are preferred as being committed against a person under the age of 18 years. In R -v- Pearson [2005] NSWCCA 116 the Court said: " It was submitted by the Crown that Her Honour had been entitled to take Into account not the bare fact that the complainant was under the age of 16 years but that she was only 13 years old and more vulnerable than if she had been closer to 16 years. In my opinion the Crown's submissions should be accepted."

The Prosecution in its submissions on sentence further argues that Section 21A(2)(n) is relevant inasmuch as the conduct represents part of a planned or organised criminal activity. I reject that submission. Although I accept the offender has long had a predilection to abuse both a position of trust and young children and that this conduct is attributable to the existence within him of the conditions referred to in the reports of Greta Goldberg, Psychologist, Dr. Daniel Gibson and Professor David Greenberg, psychiatrists I am not satisfied that the conduct of the offender is established to have been planned or organised as opposed to opportunistic.

The irregularity of the conduct, sometimes separated by long periods of time runs counter to a conclusion of organisation and planning. As with other aggravating factors, the Prosecution is required to satisfy the Court beyond reasonable doubt that the provisions of Section 21A(2)(n) apply. Such proof has not been presented and it would be inappropriate for the court to speculate given the observations and opinions expressed in the reports tendered to the court. I return to the other matters of aggravation mentioned earlier.

Section 21A(2)(g) requires the court, where appropriate, to take into account that "the injury, emotional harm, loss or damage caused by the offence was substantial." In my view this mirrors the requirement to reflect in the sentence an extended appreciation of the provisions of Section 3A(g) of the Act, the determinant being either injury, emotional harm, loss or damage which is substantial. The word "substantial" is not defined within the Crimes (Sentencing Procedure) Act 1999. It is defined in the Shorter Oxford English Dictionary to mean "of considerable importance….real and tangible rather than imaginary." To assist in determining whether this criterion is met I turn to the Victim Impact Statement tendered by the Prosecution on behalf of the primary victim of the offences occurring during the period 2001-2005.

Receipt and consideration of victim impact statements are provided for in Division 2 of the Act. Authority for the Court to consider the contents of a victim's impact statement [subject to the statement otherwise conforming to the provisions of the Act] is provided in Section 28(1).

Having considered the statement I am of the view that the description given by the primary victim of "nightmares, worries and feeling insecure as well as feeling angry. My family and I have lost friends and our extended family because of what [the offender] has done" encapsulates the personal and extended consequences of the offender's conduct and does in my view come within the meaning of the word "substantial". Consideration of the more expansive explanations by the primary victim as to the impact of the conduct on her life and her future set out within the body of the victim impact statement strengthens this conclusion.

So far as the provisions of Section 21A(2)(k) are concerned, it is clear that both as baby sitter to the victim of the 1989 offences and as godfather to the second victim the offender abused the position of trust or authority in relation to the victim. Although the words "trust or authority" are not defined the role of baby sitter is analogous to a position of being in loco parentis whilst the nomination and acceptance of the role of godfather to a child within society is widely recognized both as a reposing and acceptance of a trust, whether acknowledged within accepted religion or otherwise.

There is no doubt that given the age of the respective victims, the provisions of Section 21A(2)(l) are made out by the Prosecution. Mitigating factors

Section 21A(3)(k) of the Act requires the Court to take into account a plea of guilty as a mitigating factor. I have dealt with this aspect earlier in my remarks regarding the considerations relevant to Section 22 of the Act. It is not the case that the Court may consider it twice. Character

In addition to the psychiatric and psychological reports the offender tenders a number of references. They are from his present wife and members of her family. Each express support for the offender. The wife of the offender as one might expect gives a more detailed assessment of the offender's character and her belief that irrespective of the outcome on sentence she is confident their marriage and affection for each other will endure. I acknowledge their optimism. It presents a very different picture of the future than that postulated by one of the victims. Such references however cannot be relied on as indicia of good character. The offender's previous convictions over an extended period of time do not in my view allow him to place good character before the Court in mitigation of penalty. Mental condition

Psychiatric and psychological reports tendered as background to the offender, and to the offender's offending behaviour describe an upbringing that could only be called aberrant. Sexually abused by both his mother and his father at an early age, ongoing inability to fix his sexual identity and a history of inability to properly function within society combine to establish that the offender suffered from an upbringing that was less than fortunate. In one report he is described as displaying symptoms consistent with a Paedophilic and Hebophilic Disorder, in another as suffering from a Paraphilic Disorder (Paedophilia). Two of the reports identify the existence of a major depressive illness. All three reports express optimism in relation to the ability to address the depressive illness. Professor Greenberg's report is concerning when viewed from the perspective of the probability of a risk of re-offending but qualified in terms of optimism as to management on a long term basis provided the offender is compliant with psychiatric treatment which addresses both his depression and paedo/hebophilic disorder. Professor Greenberg adds the admonition that the offender will need to remain in treatment for many years perhaps underscoring the current and potential difficulties to the community and the offender presented by the existence of his diagnosed condition. I note that the offender was directed towards counselling and treatment at the time of his last conviction but failed to pursue it because of the financial cost. Part of the cost of failing to address the aspect of causation was the commission of three further offences and the impact on the life of yet another victim.

It is of course important for the Court to have the benefit of insight into the offender's personal circumstances. However, while it is appropriate to take such a background into consideration it cannot be regarded as an excuse notwithstanding that such a link may assist in understanding the reason why the offender committed the offences R -v- Lett (unrep 27/3/95) per Hunt C.J. at CL.

To be fair the offender does not rely on the opinions expressed in the various reports to justify or excuse his criminal offending behaviour. Nor has it been suggested to the Court that the nature of the offender's upbringing and existing mental conditions are such that the Court should not in line with the principles set out in R -v- Sconamiglio (1991) 56 A Crim R 81 at 86 give general deterrence the weight it ordinarily attracts for matters of this nature. The Sentence

No better place can be found to set out the approach to be taken on sentence in these proceedings than to reiterate the words set out on page 9111 of the Sentencing Bench Book available to all judicial officers in this State.

"The abhorrence with which the community regards the sexual molestation of young children and the emphasis attached to general deterrence in sentencing offenders is reflected in the judgment in R v BJW (2000) 112 A Crim R 1, where Sheller JA stated at [20]: "The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A Crim R 151 at 154".

The case of R v Fisher (1989) 40 A Crim R 442 at 445 is also frequently cited: "This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations. …..This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults….." The sentencing of offenders convicted of sexual offences against children is complicated by the range of offending behaviour proscribed by the legislation, the relationship of the offender to the victim, the often lengthy delay between the commission of the offence and the conviction and sentencing of offenders, and the legislative changes that have taken place over recent years.

It remains the case that tampering with children of tender years is a matter of grave concern to the community R -v- Evans (unrep, 24/3/88 NSWCCA) and courts have recognized a change in community attitudes to child sexual assault. Mason P expressed the view in R -v- MJR (2002) 54 NSWLR 368 at [57] that there has been a pattern of increasing sentences for child sexual assault and that this: "has come about as a response to greater understanding about the long term effects of child sexual abuse and incest: as well as by a considered judicial response to changing community attitudes to these crimes."

The decision in MJR also has relevance in relation to the first set of offences to which the offender pleaded guilty. In that case the Court held that the sentencing Court is: required to take into account the sentencing practice as at the date of commission of an offence when sentencing practice has moved adversely to the offender."

In these proceedings the sentencing practice has clearly moved adversely to the offender. Not only do the Courts themselves take a stronger line on sentence to reflect the changing in community attitudes, the maximum penalty for this type of offence is far greater than that which applied in 1989.

Senior Counsel for the offender submitted that had the offender been sentenced in 1989 or 1992 [when the last offence was dealt with] he would have received a sentence of a good behaviour bond. I have given careful consideration as to whether that is a realistic assessment. Whilst I agree that is the type of penalty which was not unexpected for a matter of this nature at that point in the development of the criminal law in this area I do not agree that a Court sentencing an offender for 4 offences of this nature as opposed to one would necessarily have imposed the same kind of sentence for multiple offences as it would for a single offence. This is particularly so when objectively it would have involved two separate victims. As the Court said in R -v- AB (2005) 156 A Crim R 577: " Caution must be exercised when a criminal escapade involves consequences for more than one victim. In these circumstances there is a special need to ensure that by imposing concurrent sentences insufficient recognition is not given to the fact that more than one victim has been impacted by criminal activity."

It is my view that had the offender been sentenced in 1992 for these offences at the same time as he was sentenced for the other offence of like nature he would have been sentenced to a term of imprisonment. The objective seriousness of the multiple offending could not in my view be properly reflected by the sentencing court at that time imposing yet another good behaviour bond. As the High Court said in Veen -v- The Queen (No 2) (1988) 174 CLR 465: "A paramount principle of the law on sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct." This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence having regard to all the circumstances of the case Hoare -v- The Queen (1989) 167 CLR 348.

Judged from this perspective, and ever mindful of the provisions of Section 5 of the Crimes (Sentencing Procedure) Act 1999 the appropriate sentence for the 1989 offences, bearing in mind the totality of the offending and having regard to the fact that the maximum penalty at that time was two years imprisonment would have been, after application of the identified discount, one of eight months imprisonment. Apart from the likelihood of a plea of guilty this sentence also takes into account a conclusion that the objective seriousness of the conduct places it marginally below the middle range category of offending and also has regard to the offender's criminal record and subjective circumstances [drawn from the extensive history in the tendered psychiatric reports].

The second lot of offences must, by analogy, be viewed differently. As indicated the maximum penalty for these offences is 7 years imprisonment with a jurisdictional limit of 2 years. The fact that the Local Court is limited in jurisdiction does not detract from the objective seriousness with which this offence is viewed by the legislature, so much is clear from the decision of R -v- Doan (2000) 50 NSWLR 115. The Court is required to assess where the objective seriousness of the offences lie by having regard to the maximum period for the offence not the maximum penalty which may be imposed by a local court.

In my view the conduct within these offences lies in the middle range category of offending. I arrive at that conclusion based on the conduct disclosed in the statement of facts, the frequency of offending and the aggravating factors referred to earlier. The appropriate sentence for these offences is imprisonment for one year and eight months.

Applying the discount referred to earlier this would result in a sentence of six months for the 1989 offences and 16 months for the second group of offences.

Senior Counsel in her detailed submissions on behalf of the offender argued that the offender should be placed on a Section 12 bond. It is pertinent to note that this was the starting point of the plea in mitigation and an eminently pragmatic one. It would have been abundantly clear to Senior Counsel by dint of her lengthy experience that it would be unrealistic for the offender to expect any sentence less than one of imprisonment.

I have given careful consideration to the submissions made that I should suspend the sentences I have determined reflect the objective seriousness of the conduct and the subjective features set out in Section 21A and the common law. I am mindful of the guidance in relation to the suspension of sentences set out in decisions such as R -v- Zamagias [2002] NSWCCA 17 and what the court said at [32]: "a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognized that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. It is perhaps trite to observe that although the purpose of punishment is the protection of the community that purpose can be achieved in appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate."

I am not of the view that the fact the offender's personal circumstances have changed and or that prolonged therapy might assist in managing his condition are of themselves sufficiently persuasive to override what I believe to be the paramount purpose of sentencing in matters of this nature, namely general deterrence. I am also mindful of the view taken by the Court in R -v- Taylor [2000] NSWCCA 442 at [49] that when the court comes to the view, as I have, that the offences for which the offender is being sentenced are ones where the element of general deterrence is of particular importance, a suspended sentence is not appropriate. I decline to exercise my discretion to suspend the execution of the sentences in these matters.

The Offender is sentenced to imprisonment for a period of six months in respect of each of the three 1989 offences. I direct that such sentences be served concurrently and commence forthwith.

The Offender is sentenced to terms of imprisonment that consist of a non-parole period of twelve months and a total term of 16 months on each of the three offences relating to the periods 2001 -2005 consisting of a minimum period of twelve months with a parole period of four months during which the offender may be released subject to the supervision of the Probation and Parole Service and conditioned to obey all reasonable directions of that service. Each sentence is to date from 22nd May 2008 and is to be served concurrently with the sentences imposed for each of these offences but is to be cumulative upon the sentences imposed in respect of the 1989 offences. The effective period of full time imprisonment is 18 months. The offender will be eligible for release on 21st May 2009.

Graeme Henson Chief Magistrate 23rd November 2007

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Judgment (54 paragraphs)

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Cases Cited (9)