Hawkins v R [2004] TASSC 55

Criminal Law - Particular offences - Other offences against the person - Sexual offences - Offences against children - Prolonged period of offending followed by significant period of non-offending - Fixed parole eligibility period - No suspension of portion of sentence - Whether sentence manifestly excessive.

Judgment Number: [2004] TASSC 55

1 I agree in substance with the reasons for judgment of Slicer J. In my opinion the total of 7½ years' imprisonment with a non-parole period of 4½ years was not manifestly excessive when regard is had to all the circumstances of the case, including the fact that the appellant had not committed any other offence for almost 20 years. The punishment was consistent with the range of punishments that have been imposed for similar crimes.

2 With respect to the view of Slicer J, I would not go so far as to say that by allowing the appellant to be eligible for release on parole the learned judge was effectively suspending portion of the sentence of imprisonment. Nevertheless, I am of the view that the non-parole period of 4½ years adequately took into account the fact that the appellant appeared not to have re-offended for almost 20 years. It was directed towards a continuation of his apparent rehabilitation but at the same time required his incarceration for the minimum period appropriate for his crimes.

3 The appellant by his notice of appeal claims that a sentence of imprisonment of 7½ years following his plea to the crimes of maintaining a sexual relationship, unlawful sexual intercourse and indecent assault, is erroneous on the grounds that:

"1 The learned sentencing judge erred in law in that he failed to give any or any sufficient weight to the accepted fact that the appellant had, as at the date of sentencing, not committed any relevant offence for almost 20 years.

2 That the learned sentencing judge erred in law in that he imposed a sentence that was manifestly excessive in all the circumstances."

4 The crimes were committed against seven young males, three of whom were aged 13 at the time of the first sexual contact. Three were aged 15 and the remaining complainant, 17. They were committed over a ten year period and involved four counts of maintaining a sexual relationship, three of unlawful sexual intercourse, two of unlawful carnal knowledge, and one of indecent assault. Because of an amendment to the Criminal Code in 1997, convictions only were recorded with respect to the two counts of unlawful carnal knowledge involving one of the complainants and no additional penalty was imposed.

5 The sexual misconduct took place at various locations in Tasmania and occurred while the offender was an ordained vicar in the Anglican church. Contact with each of the youths occurred through their membership of, or involvement with, the church and the position of the appellant within that church. The learned sentencing judge, having recounted the details of the conduct, described the overall culpability in the following terms:

"The foregoing is a chilling litany of devious sexual abuse. Although your victims were not prepubescent, six of the seven were still children at the time you seduced and sexually abused them. Mostly, they came to you for help and guidance. They were at an age of emotional insecurity; an age when homosexual activity by a much older person in authority was destined to cause each of them untold emotional troubles for many years, if not for life. By virtue of the fact that you were a clergyman, you held yourself out to these children, their parents, and the community in which they lived as a person who could be trusted to give appropriate pastoral guidance to those who needed it. With breathtaking hypocrisy you betrayed the trust that you had encouraged your victims and their families to place in you in order to commit these crimes and gratify your sexual lust. All this has caused untold human suffering."

6 Although it is the sentence of 7½ years' imprisonment which is the subject of the contention that it is manifestly excessive, its components ought be separately examined to ascertain whether they are appropriate and only then ought their cumulative effect be considered in the light of the claim of being manifestly excessive. There were two indictments. The first dated 30 October 2003 alleged the maintenance of a sexual relationship with a young person between January 1979 and December 1982 commencing when the youth was 13 years old. This attracted a sentence of imprisonment of 12 months. The second, dated 17 November 2003, comprised an act of oral sexual intercourse with a 15 year old youth, the act occurring in 1981. The remaining acts of sexual misconduct were comprised in a complaint which alleged three charges of maintaining a sexual relationship, two of sexual intercourse and one of indecent assault. That complaint alleged a consistent course of predation between 1977 and 1982. Those offences attracted a composite penalty of five years' imprisonment. If each of those matters set out in the complaint had been the subject of a single and separate penalty, the cumulative effect could have been, quite properly, greater than five years' imprisonment (eg, Mullins, 26 March 2004, Crawford J).

7 The sentence as a whole does not itself manifest error by its very total. It equates with those sentences imposed where sexual abuse of young persons occurs over a prolonged period of time and where, as in this case, it included the continued conduct of maintaining a sexual relationship, and as such falls within the appropriate range. (See generally Harding 30 May 2002; Poynton 30 September 2000; Fraser 23 May 1996; H 28 August 2002; R 28 August 2002; R P 7 April 2003). The sentence was structured so that the differing types of sexual misconduct were identified and a sentence imposed in accordance with those forms of abuse. The sum of those sentences does not manifest error. It is difficult to determine a particular penalty by seeking similarity with other decided cases or comments on passing sentence. Cases such as Daniels [1999] TASSC 62; (1999) 8 Tas R 397; R v F (1998) 8 Tas R 88 might often involve particular circumstances and approaches specific to the victim or subjective attributes of the offender.

8 Regard is often had to the lapse of time between the commission of the crimes and detection. (R v F (supra); Brown 3 September 1986; Rimmer 9 July 1997; Hoskinson 19 June 1989 and Abel v R A94/1994). The reasons are various. In some cases the Courts have taken into account the life of the offender subsequent to the offence as being evidence of rehabilitation (Smith v R (1982) 7 A Crim R 437), the disintegration of the personal life of the offender (R v Todd [1982] NSWLR 517) and the effect of imprisonment so long after the event (Frawley v R (1981) 55 FLR 163). Rehabilitation remains a significant factor in determination of penalty for crimes committed long ago (Bell v R [1982] Qd R 216. Here the argument is that the sentence did not reflect those considerations. The learned sentencing judge accepted as a fact that the appellant had not offended for almost 20 years but did not state in his comments that he was paying regard to the prospect of rehabilitation. He accepted that the plea relieved the victims of the Court related ordeal, that the offender was of advanced years, had no prior convictions and that prison would be a particularly bad experience for him. I would accept that it would have been appropriate for the learned sentencing judge to have suspended portion of the sentence. In effect, he so did. The previous dichotomy of determining a head sentence by reference to factors such as the nature of the crime, its impact and the general needs of retribution and deterrence, with separate considerations applying in a decision to suspend portion of it because of subjective characteristics, such as was previously the position as stated in cases such as Percy [1975] Tas SR 62 and Causby [1984] Tas R 54, would appear to be subsumed by the decision of the High Court in Dinsdale [2000] HCA 54; (2000) 202 CLR 321. All of the relevant sentencing factors appear to be relevant to both components of the effective sentence (Weininger v R [2003] HCA 14; (2003) 196 ALR 451).

9 The sentencing process has been made more complex by Parliament in its enactment of the various amendments to the Parole Act 1975 (see generally, Devine v R [2003] TASSC 52). This is not an appropriate case to consider the interrelationship of a suspended sentence with the fixing of a non-parole period except in the most general terms. The suspension of portion of a sentence allows for certainty in the date of release and enables the Court to retain power for future transgressions and, to some extent, provide a future form of control. The determination of a non-parole period permits release dependent upon conduct during a period of detention but would enable release upon licence, the terms of which might be far more onerous than the conditions imposed by a court. In this case, the decision by the learned sentencing judge to fix a non-parole period of four years effectively took into account the prospects for reform. The non-parole period was a little more than one-half of the minimum non-parole period fixed by Parliament. Suspension of, say, three years of the overall sentence would doubtless have permitted an earlier release since the parole period would have been varied. However, such a possibility would have required the sentencing tribunal to fix a minimum or slightly increased non-parole period. That course would have affected the necessity to impose a sanction which reflected the needs for retribution and general deterrence. The course adopted by the learned sentencing judge reflected the course of conduct, the harm caused to the complainants and their need for retribution and permitted early release if the future conduct of the offender warranted parole and licence. The structure of the sentence itself does not suggest error by reason of failure to accommodate the prospects of reform.

10 In my opinion, the specific ground has not been made out. I would likewise reject the more general ground of the sentence being manifestly excessive.

12 I have had the advantage of reading the reasons for judgment prepared by Slicer J and agree with him that the appeal should be dismissed. The only comment I wish to make relates to a contention advanced by counsel for the appellant that in recognition of the appellant's rehabilitation, a portion of the sentence should have been suspended. I reject that contention. In a case such as this, where a long sentence of imprisonment has been imposed, it is rarely appropriate to suspend a portion of the sentence. An order that partly suspends a sentence is made on the assumption that it will be appropriate to release the prisoner after serving what is fixed as the operative period of the sentence. When the time comes to release the prisoner, that assessment may be shown to be quite wrong by intervening events such as the conduct of the prisoner during the operative period of the sentence. For this reason, it is rarely prudent to suspend a portion of a long sentence. When paying regard to matters such as the reform prospects of the recipient of a long sentence, the preferable course is to fix a parole eligibility period. The contingent benefit of a parole eligibility period may be far less attractive to a prisoner than the certainty of the suspension of a period of the sentence; however, the fixing of a parole eligibility period is a significantly more reliable means of resolving the appropriateness of a prisoner's early release, as that determination is made by the Parole Board immediately prior to the proposed release. See generally my comments in Devine v R [2003] TASSC 51, pars24 - 27. Whilst substantially different consequences may flow from the suspension of a portion of a sentence than may flow from the fixing of a parole eligibility period, resort may be had to either or both of these sentencing options when recognising a prisoner's reform prospects. In this case, the learned sentencing judge rightly imposed a parole eligibility period and did not err in failing to suspend a portion of the sentence.