Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Miscellaneous matters - Sex offenders incapable of controlling sexual instincts - 20 complainants - Whether 6½ years' imprisonment manifestly excessive.

Judgment Number: [2006] TASSC 86

1 I agree in substance with the reasons for judgment of both Slicer and Tennent JJ and agree that the sentence was not manifestly excessive.

2 The appellant was convicted on his plea of thirty-six counts of indecent assault contrary to the Criminal Code, s127, four counts of maintaining a sexual relationship with a person under the age of 17, (s125A), one count of aggravated sexual assault (s127A), and one count of unlawful sexual intercourse with a young person (s124). The crimes were committed between 1976 and 1987 when the appellant was aged between 31 and 42. The sexual misconduct involved adolescent males aged between 13 and 16 years. The learned sentencing judge summarised that conduct in the following terms:

"In order to satisfy your criminal sexual attraction to post-pubescent boys, a condition known as is ephebophilia, you utilised a variety of means to bring yourself into contact with potential victims and obtain their trust. They included:

* maintaining an association with a religion and related youth groups;

* coaching athletics at a school and incidental to this, rubbing down athletes;

* involving yourself with youths through your golf club and other organisations;

* inviting youths to your home for activities that included prayer meetings, playing cards and working on your home;

* supplying youths with cigarettes and alcohol; and

Once you had inveigled a victim into a vulnerable situation, such as, submitting to a rub down or playing strip poker, you preyed on him sexually. You frequently plied a victim with alcohol in order to diminish his inhibitions. With exceptions to which I will refer, the predominant form of your abuse involved the handling of the boy's or your penis. It began with you touching the victim's penis and where there was acquiescence this was pursued to the point of masturbation and extended to mutual masturbation. The exceptions include the following instances which all occurred after you had entered the bed of a victim:

* an occasion when you put a finger into a boy's anus.

* two separate occasions when you pressed your penis against the small of the back of a boy; and

* an occasion when you pressed your penis against the side of a boy.

You on two separate occasions placed your mouth over the penis of a victim. On another occasion, when a 16 year old boy refused to remove his shorts for a rub down, you held him down and wrestled with him in an unsuccessful effort to remove this shorts. This is the only instance when you used force in an endeavour to overcome resistance to an advance. My impression of this episode is that once the boy's resolve was clear, you desisted. I am not satisfied that you, on any occasion, prevailed over a victim's resistance by means of force. Ordinarily you desisted when an advance was rebuffed."

3 No issue is taken with those findings on this appeal.

4 The appellant, aged 60 at the time of his pleas, was sentenced to a term of imprisonment for 6½ years and the non-parole period fixed at four years.

5 The single ground of appeal is that the sentence was "manifestly excessive".

6 The appellant, himself a person with a difficult and troubled upbringing, having entered the priesthood of the Catholic Church, but not being ordained, was employed at the Marist College in Burnie as an athletics coach between 1975 and 1979. Eighteen of the crimes were committed during that period on boys entrusted to his care. In 1976 he commenced work in the insurance industry with a distinguished career retiring before sentence. In that period he continued his association with young males through the Catholic Church, youth clubs and sporting and community organisations. The remaining twenty-four counts occurred between June 1980 and February 1987. The respondent accepted on the hearing that in that latter year the appellant, through his own resources, successfully overcame his inclinations and desisted from further sexual predation. But his condition, asserted at the sentencing hearing but not supplemented by medical opinion, could not be accepted as a significant mitigating matter. His conduct was a product of the human condition, not one of legal justification or acknowledgement. That a person is sexually attracted to young persons, be they male or female, might make the conduct more understandable and susceptible to modification, but ought not ameliorate sanction. A paedophile ought be punished as a paedophile, not as a victim of inclination. Subjective circumstances, which include upbringing and early experience, remain relevant to sanction but not the conduct itself.

7 In all other respects the appellant was entitled to many mitigating matters. Apart from sexual predation, he had lived a productive life and served his community well. The learned sentencing judge accepted all of those matters and no error is claimed in his dealing with the character or history of the offender.

8 Here, the age of the offender as at the time of sentence is of little import (R v Hunter (1984) 36 SASR 101; Trew (1984) 12 A Crim R 422; Professor Warner, Sentencing in Tasmania, 2nd ed, 3.510). The pleas were a product of complaints and investigation, not of volunteered admission. It was accepted that the appellant had made an early plea and in so doing had spared the complainants much trauma. It was accepted that the plea was not just a recognition of the inevitability of conviction (Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186). There was remorse and an appropriate response to the charges (Warner (supra) at 3.601 - 606). The sentence was a recognition of the needs of retribution, the consequences of sexual misconduct on twenty children or youths over many years, and the betrayal of faith and trust by a predator. It reflected more the objective principles of sanction and public interest than the subjective characteristics of the offender. The learned sentencing judge was entitled, and required, to apply those principles. Here, absence of penetration was relevant, but not significant to the sentencing process.

9 The parameters of sanction to sexual misconduct are by the very nature and variation in the circumstances, difficult, if not impossible, to determine. Examination of Warner 11.4 and the cases referred to, illustrate the complexities. The nature of the crimes, their repetition and continuance, warranted the sentence imposed. No error in its calculation has been shown, nor is error manifest by its length.

11 On 2 December 2005 following a plea of guilty to 42 offences, the appellant was convicted and sentenced to 6½ years' imprisonment with a non-parole period of four years. By his notice of appeal he asserts that sentence was manifestly excessive. There is no suggestion on this appeal that the learned sentencing judge did not take into account all relevant matters. The challenge to the sentence goes to the weight accorded those matters.

12 The offences to which the appellant pleaded guilty were 36 counts of indecent assault, four counts of maintaining a sexual relationship with a young person under the age of 17 years (which by their nature indicate there were at least three sexual acts with each complainant), one count of aggravated sexual assault and one count of unlawful sexual intercourse with a young person. The complainants, there were 20 of them, were all young males between the ages of 13 and 16. The offences took place over the period 1976 to 1987.

13 The conduct which gave rise to the charges included the appellant touching a complainant's penis, the appellant causing a complainant to touch his penis, the appellant rubbing his penis against a complainant's body, the appellant masturbating and then ejaculating on a complainant, the appellant inserting a finger into the anus of a complainant and the appellant performing fellatio on a complainant.

14 In his submissions, counsel for the appellant dealt with a number of mitigating factors. He accepted that the number of victims was an aggravating factor, but submitted that the nature of the offending was at the lower end of the scale. There were only three occasions where the issue of penetration arose and they involved the brief insertion by the appellant of his finger into the anus of one boy and two occasions where the complainant's penis was in the appellant's mouth. He argued the sentencing of the appellant for these offences could be distinguished from those cases where actual penetration occurred.

15 Counsel referred to the age of the appellant at sentence. He was 60. Counsel referred to par3.510 in the second edition of Professor Warner's text Sentencing in Tasmania and the quote there from a case dealing with a 73 year old offender, namely "a sentencing judge cannot overlook the fact that each year of the sentence represents a substantial portion of the period of life which is left to him." That comment may be highly relevant for an offender in his or her seventies. However in the present case, the learned sentencing judge noted the appellant's age and there was no other material to suggest that this factor was a particularly significant one. I would not regard the appellant's age as a matter which should have been given significant weight as a mitigatory factor.

16 The appellant's good character, apart from this offending, was referred to. There is no argument the appellant had a successful career in the insurance industry over many years and that he also contributed to the community in a positive way over many years, including since his retirement. A number of references were put before the learned sentencing judge and it was pointed out many of the authors were aware of the charges. As a mitigatory factor this can, in my view, be a two-edged sword depending on the nature of the offending before a court. There can be little doubt that, had the industry in which the appellant worked and the community he provided assistance to during the time of offending been aware of what he had done, the opportunities to do the good things he did may have been limited. However, that he has continued community involvement over many years after that was a factor taken into account.

17 The factor which clearly could be, and was, considered is that the appellant had no convictions otherwise than for some minor traffic offences.

18 Counsel also referred to what he described as the appellant's sexual dysfunction and the fact that the appellant was able to regain control of himself and stop offending. He also said that the appellant did not choose to do what he did. At the sentencing hearing counsel had told the court that the appellant had a "condition" called ephebophilia. There was no material suggesting this was some sort of illness. Rather it appeared to be a description of the nature of the appellant's conduct, that is, a sexual attraction to post-pubescent boys. Counsel suggested the reasons for this condition were possibly that the appellant's own earliest sexual encounters were with older males and the training he received for the priesthood.

19 It is hard to see this as a particularly mitigating factor. The inference the court was being asked to accept was that the appellant had something akin to a disease over which he had no control which had resulted in the offending. That cannot be accepted. Even were it accepted he had a disease of a psychological nature, about which it must be said there was absolutely no material put before the court, then clearly the appellant did nothing but live with it and accept and embrace its consequences for the 11 years over which he offended. It was accepted that the appellant voluntarily ceased offending over a lengthy period before these offences came to light.

20 The appellant's ill health was referred to. In 1995 he had a heart attack which resulted in surgery. He had a further admission to hospital for the same problem in September 2004. He suffers shortness of breath and repeated chest pain. He needs to carry a spray with him at all times and takes a number of medications. It was submitted the stress of imprisonment would have a detrimental effect on his health. The learned trial judge recognised that the age and health of the appellant would mean a sentence of imprisonment would be unduly onerous.

21 A very significant mitigatory factor to which counsel referred was the appellant's plea of guilty. In this regard he again referred to Professor Warner at 105. Professor Warner said:

"Recent Tasmanian Decisions have accepted the following propositions advanced by King CJ in Shannon (1979) 21 SASR 442 at 452 - 453 as a correct statement of the principles governing the mitigatory effect of pleas of guilty:

(1) A plea of guilty may be taken into account in mitigation of sentence where -

(a) it results from genuine remorse, repentance or contrition, or

(b) it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency,

and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing judge is seeking to achieve.

(2) A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.

(3) In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.

(4) In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.

(5) The above propositions are not to be taken as weakening in any way the principle that there must be no increase in the sentence which is appropriate to the crime because the offender has contested the charge."

Counsel submitted there was an indication of remorse, the pleas were not, as in the case of some matters, a bowing to the inevitable, and the pleas had saved the victims the trauma of having to go through a trial and give evidence and the justice system the cost of what would have been a lengthy trial. Counsel submitted that the learned sentencing judge was not obliged to identify the amount of any discount, but the factors in this case did indicate a significant discount was appropriate.

22 In his submissions, Counsel suggested that the pleas in the present case should have perhaps attracted a discount in the region of one third. Had that been applied in the present case, that would mean the head sentence without the plea would have been nine years and nine months for offences "not involving penetration, force or threats". There can be no doubt the learned sentencing judge recognised that the appellant's plea deserved recognition. He said, "Your plea of guilty is a significant mitigatory factor."

23 However, for this appeal to succeed, the appellant must satisfy this Court that the learned sentencing judge made an error when he imposed the sentence that he did. Given the nature of the ground, the Court would need to be satisfied that the sentence in itself was so far beyond what should have been imposed had the learned sentencing judge considered all relevant factors and given them proper weight, that in itself it demonstrated error. It is not sufficient that members of this Court might have concluded a different sentence was appropriate.

24 As I said earlier, there is no suggestion that all relevant matters were not considered. It is the weight accorded them which underpins this appeal. Sentencing for sexual offences is always difficult. It is only necessary to look at chapter 11.4 of Professor Warner's text on sentencing to see the wide variety of factors that must be considered and the variables from case to case which can affect a sentence.

25 In the present case the learned sentencing judge was dealing with in excess of 42 sexual acts over 11 years involving 20 complainants, all of whose lives had been significantly affected by the offending. I am not satisfied that there has been anything put before this Court which would indicate the learned sentencing judge erred in his determination of the sentence such as to invite interference by this Court.