Ferguson v R [2001] TASSC 20

R v Hryczszyn [1976] Tas SR 10; Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186, applied.

Judgment Number: [2001] TASSC 20

1 The order of sentence of 21 months' imprisonment to take effect from 26 October 2000 is quashed.

2 In lieu thereof, there will be a sentence of nine months' imprisonment to commence on 26 October 2000.

1 The appellant was arraigned on an indictment containing three counts of indecent assault and two counts of unlawful sexual intercourse with a person under the age of 17 years. He pleaded not guilty.

2 Shortly stated, the Crown case on count 1 was that on an occasion towards the end of 1996, the appellant indecently assaulted the complainant, then aged 15 years, by fleetingly touching her breasts whilst giving her a massage. With respect to counts 2 and 3, the Crown case was that about a month or so after the events charged by count 1, whilst in his car, the appellant firstly indecently assaulted the complainant by touching her breasts and sucking her nipples, and immediately thereafter had sexual intercourse with her. With respect to the remaining two counts, the allegation was that a similar indecent assault, followed by sexual intercourse, took place in the complainant's flat when she was aged 15 years and three months.

3 Upon his trial, the appellant was found not guilty of the first and the last two counts on the indictment, but guilty of counts 2 and 3. The learned trial judge sentenced the appellant to 21 months' imprisonment. This appeal is against that sentence upon the ground that (inter alia) the sentence was manifestly excessive.

4 The learned Director of Public Prosecutions, who appeared as counsel for the respondent on the appeal, conceded that the sentence was manifestly excessive. The Court is indebted to him for making that helpful and appropriate concession although, of course, whether a sentence should be quashed is ultimately a matter for the Court and not for counsel.

5 The complainant was born on 8 February 1981. At the end of 1996, she lived in Launceston with her parents. She attended a local high school. That year, she played indoor hockey and through this sport met the appellant who acted as a masseur for a men's hockey team.

6 The appellant was a police officer and so was the complainant's father. The complainant's mother and the appellant had a sexual affair before the complainant was born, but had not seen each other for many years. They met again at the indoor hockey centre. The covert sexual affair resumed.

7 On Friday evenings during the hockey season in mid-1996, the complainant's mother invited friends to her house for drinks. The appellant joined some of these Friday evening gatherings. He sometimes gave the complainant and her mother a massage. Whether this happened on Friday evening visits or on other visits is unclear. As well as the appellant and the complainant's mother becoming lovers, the appellant and the complainant became friends. He sometimes gave the complainant cigarettes unbeknown to her mother.

8 On a Friday evening in either November or December 1996 when the complainant was a couple of months short of 16 years of age, the appellant and a friend of his, Peter Cowen, arrived at the complainant's house. A gathering was in progress. Prior to their arrival and with her parents' permission, the complainant had drunk about two beers and "a rum". The complainant wanted to visit a friend of hers who worked in a shop. As her parents had been drinking, the complainant asked the appellant to take her to see this friend. He agreed. The two set off in the appellant's car, the complainant taking with her a half drunk can of beer and a unopened one. The appellant took a somewhat roundabout route to the shop. On the way, the complainant told the appellant that she wanted to urinate and he pulled into a car park on the side of the road. The complainant got out and ran behind a pine tree some distance away. She returned and got into the car. The appellant gave her a cigarette and they talked for a couple of minutes and then he reached across and fondled the complainant's breasts underneath her clothing. Next, the appellant then reached across her and flicked the passenger seat back so it was almost horizontal. The appellant then undid the complainant's trousers, pulled them down to her ankles, took his own trousers down and had vaginal intercourse with her. During the course of this, the appellant fondled her breasts and sucked her nipples. The complainant remained passive during the commission of these two crimes,.

9 Afterwards the complainant and the appellant got dressed and the latter drove the former to visit her friend at the shop. He waited for her while she was inside. According to the appellant's evidence in cross-examination, on coming out, the complainant told the appellant that she had "scored" by which he understood her to mean that she obtained some marihuana. The appellant drove the complainant back to her house.

10 Thereafter, the complainant and the appellant remained friends and, having regard to the verdict of the jury with respect to the last two counts on the indictment, there was no repetition of the appellant's unlawful behaviour.

11 Not long after the commission of the crime, the complainant's parents separated and in about the middle of the following year, the complainant left Tasmania and went to live in Sydney.

12 At the time of the commission of these crimes, the appellant was 46 years old. He had been a police officer for 26 years. He resigned from the service as a result of these matters coming to light. He had no prior convictions. In his comments on passing sentence, the learned trial judge set out some of the details of the appellant's service as a police officer which showed that he had served with distinction. His Honour then went on to say:

"However, there are a number of aspects to this case which weigh heavily against you in relation to the question of penalty. I have already mentioned the age difference. At the time of these crimes, you were involved in a sexual relationship with your victim's mother. Ordinarily such an adulterous relationship would be of no significance in criminal sentencing, but in this case I find that you were motivated to commit these crimes partly by the thrill that you got from having sex with both a mother and her daughter. Another significant feature in this case is that you have shown absolutely no remorse in relation to these crimes. In fact, you bragged about them. I accept Mr Cowen's evidence that, after returning your victim to her home, collecting him and leaving, you thrust your fingers under his nose, invited him to smell them, and told him that you had just 'fucked the guts out of her'. You subsequently bragged to a young man on two occasions about this particular incident, and about having had sex with a mother and daughter 'double'. You also bragged about having a 'double', by which you meant sex with a mother and daughter, to a woman whom you did not meet until some 11 months after you committed these crimes. There was no hint of remorse on your part during the trial."

13 At the trial, evidence was given by Mr Cowen, the man who had accompanied the appellant to the complainant's house on the night the crimes were committed. He said that when he and the appellant left the complainant's house that night, the appellant boasted to Mr Cowen in the crudest possible manner that he had had sexual intercourse with this girl in the knowledge that she was only 15 and still attending school. Shortly afterwards he repeated this boast to Mr Cowen and at one stage referred to "having the daily double", clearly a reference to having sexual relations with the complainant and her mother. Evidence was given at the trial from two other witnesses of the appellant boasting about having sexual intercourse with a mother and her daughter. Mr Brown, who appeared as counsel for the appellant, submitted that there was no evidence that the appellant was motivated to commit the crimes "partly by the thrill that [he] got from having sex with both the mother and her daughter". That submission is not accepted. That inference was clearly an appropriate one to draw from the appellant's boastful conduct over a period of time following the occurrence of the event. Further, such bragging was clearly a circumstance of aggravation for it indicates a contemptuous attitude to the law that proscribed his conduct with the complainant.

14 Further, during the course of his comments on passing sentence, the learned trial judge noted that whilst the appellant had no previous convictions, his supply of cigarettes to the complainant and his failure to do anything about what the appellant admitted appeared to him to be a supply of marihuana to a school child, meant that his character was not entirely faultless. These were appropriate observations to make.

15 Referring to all the events charged by the indictment, the complainant said in evidence that she "just blocked it all out". She made no complaint to anyone until police officers approached her in 1999. Only then did she disclose the events with respect to which she gave evidence. She has subsequently undergone counselling. She said in evidence that she has been a wreck ever since, thinking of her own feelings. Of course, as Mr Brown submitted, care should be taken with respect to this material as firstly, it was unsubstantiated by any expert opinion and, secondly, it would be difficult to sort out cause and effect between the crimes of which the appellant was found guilty and the other events of which the complainant gave evidence. Further, it appears that the break-up of her parents' marriage had an adverse effect upon the complainant.

16 In his comments on passing sentence, the learned trial judge referred more than once to the appellant's lack of remorse, including the fact that "there was no hint of remorse on [his] part during the trial". Of course, it must steadfastly be borne in mind that absence of remorse, particularly when evidenced by a plea of not guilty, is not a circumstance of aggravation. See R v Hryczszyn [1976] Tas SR 10; Harris v R [1967] SASR 316; R v Schioparlan (1991) 54 A Crim R 294. On the other hand, remorse is a circumstance of mitigation. See Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186. A plea of guilty, particularly in a case involving sexual crimes committed upon a young person is, in most cases, a substantial circumstance in mitigation of an otherwise appropriate penalty. The plea saves the victim the very considerable trauma of having to give evidence of his or her ordeal in the public court. The significance of a plea in such cases is clearly reflected in the sentence imposed, as is apparent from a perusal of the sentencing records of this Court.

17 This was, as the learned trial judge observed, a serious case. It involved a breach of trust that the appellant owed the complainant as a friend of hers, and as a friend of her parents. But for that friendship, he would not have been in a position to commit the crime. Although the appellant did not use or abuse his office as a police officer in order to commit the crime, its commission did involve a breach of the oath taken by all police officers to (inter alia) "prevent all offences against the person ... of the Sovereign's subjects; ... " Police Regulation Act 1898, s16, Sch2, Form 1. Accordingly, these crimes constituted a breach of the position of trust that the appellant held in the community at large.

18 Notwithstanding all of these matters, a sentence of 21 months' imprisonment was clearly well outside the range of sentences that have been imposed by this Court in similar circumstances. No doubt this fact caused the Director of Public Prosecutions to make the concession that he did.

19 Although there was no remorse to mitigate against sentence, it can be said that the appellant did not plan the commission of these crimes as the circumstances which made them possible only arose after the complainant asked him to drive her to the shop. Further, imposition of sentence should take account of the fact that these crimes have cost the appellant dearly in terms of his career and, according to submissions put by his counsel at the trial, may well cause the disintegration of his marriage. Finally, on this aspect of the matter, regard may be had to the fact that the appellant was a police officer and this will mean that his period of incarceration will be particularly difficult for him.

20 Taking into account all these circumstances, an appropriate sentence is nine months' imprisonment.

* The order of sentence of 21 months' imprisonment to take effect from 26 October 2000 is quashed.

* In lieu thereof, there will be a sentence of nine months' imprisonment to commence on 26 October 2000.