R v Bowen [2008] VSCA 33

Court of Appeal (Vic)|2008-02-28|Before: BUCHANAN, VINCENT and KELLAM JJA

Criminal law - Sentencing - Gross indecency - Indecent assault - Offences committed over 40 years ago against two separate school age victims - Appellant acquainted with each victim's family - Sentencing judge erred in treating two counts on presentment as sexual offences encompassed by Part 2A of Sentencing Act 1991 - Sentencing discretion re-opened - Question of applicable maximum penalties in circumstances where term of imprisonment subsequently reduced by legislature - Application of s 114(2) of Sentencing Act 1991 - R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 300 - Manifest excess - No prior convictions - Delay - Appellant's professional career ruined - Appellant and second victim commenced long term adult relationship - Appeal allowed - Appellant re-sentenced.

**1 I will ask Vincent JA to deliver the first judgment.

2 The appellant pleaded guilty in the County Court at Melbourne, on 14 March 2007, to seven counts of gross indecency (counts 1, 3, 7, 11, 12, 14 and 17) and 11 counts of indecent assault (counts 2, 4, 5, 6, 8, 9, 10, 13, 15 ,16 and 18).

4 After hearing a plea in mitigation of penalty, the sentencing judge, on 2 April 2007, imposed the following terms of imprisonment:**

His Honour directed that three months of the sentences imposed on each of counts 1 and 2, one month of that imposed on each of counts 5, 9, 15 and 18 and four months of the sentence on count 14 be served cumulatively upon the sentence handed down on count 13. This created a total effective sentence of two years and eight months' imprisonment in respect of which a non-parole period of 20 months was fixed.

**5 His Honour further declared that by reason of the appellant's convictions on counts 13 onwards, he was sentenced as a serious sexual offender.

6 It is clear, however, that counts 14 and 17, each of which related to the commission of an offence contrary to s 69(4) of the Crimes Act, are not sexual offences encompassed by the provisions of Part 2A of the Sentencing Act 1991 which relate to serious sexual offenders, and his Honour fell into error in so treating them. It was conceded by counsel appearing for the Crown before us that, in consequence, the exercise of sentencing discretion should be regarded as re-opened.

7 In these circumstances, the proceeding before us was conducted essentially on the basis that the appeal must succeed and the appellant be re-sentenced. It is nevertheless necessary to refer to two other grounds of appeal which were the subject of attention in this Court, as they bear upon the question of the maximum penalties for the offences involved.

8 In the written submissions advanced on behalf of the appellant, it was claimed that the judge was incorrectly informed and proceeded to sentence the appellant by reference to the incorrect applicable maximum penalties for the offence of gross indecency under s 69(4) of the Crimes Act and indecent assault under s 68(3), namely, three years and five years respectively. These claims were made on the basis that s 114(2) of the Sentencing Act 1991 applied. [1]

9 In the case of the offences under s 69(4), at the time of their commission the appellant was liable to imprisonment for a maximum period of three years. The section then read:**

(4) Any male person who in public or in private commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than three years.[2]

10 That provision was contained in Subdivision 8 of Part 1 of the Crimes Act 1958, the entirety of which was repealed by s 5 of the Crimes (Sexual Offences) Act 1980 and the following provision substituted -

(a) commits, or is in any way a party to the commission of, an act of gross indecency by, with or in the presence of a person under the age of sixteen years; or

(b) procures, incites or attempts to procure the commission of an act of gross indecency by, with or in the presence of a person under the age of sixteen years -

is guilty of an indictable offence and, subject to sub-section (2), liable to imprisonment for a term of not more than two years.[3]

11 At the hearing, counsel conceded that his initial contention was misconceived and the changes did not alter the maximum penalty applicable to the appellant's offence. He argued, however, relying upon the decision of the Court of Appeal in New South Wales in R v Ronen,[4] that, although s 114(2) was not applicable, the judge was nevertheless required to have regard to the adoption by the legislature of a more lenient view of the form of behaviour to which both provisions were directed when subsequently imposing sentence. In Ronen, which concerned the maximum penalty applicable for some offences of conspiracy to defraud the Commonwealth of taxation revenue, in a case where the statutory provisions changed during the conspiracy, Howie J stated:

The argument was that, because the offences in the Code are in substance the same as those with which the applicants were charged, it should be taken that the maximum penalty for an offence of defrauding or conspiring to defraud the Commonwealth has been reduced regardless of the particular statutory basis for such an offence. ...[5]

In my opinion the argument should be rejected for very much the same reasons as the sentencing judge rejected it. The simple fact is that the maximum sentence prescribed by the repealed Crimes Act provisions were not reduced in any real sense. It is artificial in my view to describe the repeal of one offence and the enactment of a different offence as a reduction in the sentence for the repealed offence.[6]

However, notwithstanding that I am of the opinion that the maximum penalty was imprisonment for 20 years for the conspiracy offences, it may not necessarily follow that the fact that the maximum penalty for the fraud offences in the Code is imprisonment for 10 years is totally irrelevant. The judge in the present case, as a matter of fairness and justice, took into account the change in attitude of the Parliament to the seriousness of the type of offences committed by the applicants when determining the appropriate sentences to impose upon them. ...[7]

...The judge was bound to take the change of legislative policy into account, not simply as a matter of fairness to the applicant, but also because it maintains consistency in the way that the courts are guided in sentencing by the legislature's view of the seriousness of the offending expressed through the maximum penalty prescribed for an offence.[8]

**12 No final view need be expressed concerning the circumstances or extent to which this principle should be applied. Ordinarily, and for the reasons to which Howie J referred, it is reasonable to assume that the reduced penalty regime would be regarded as governing the situation. But it seems to me that this may not always be the case and could be dependent upon a number of factors, including, for example, possible changes in circumstances that may have caused the legislature to adopt a different view of the seriousness of later offending, but could not be seen to bear upon earlier conduct of a similar kind. However, this possibility need not be explored in the present case, and I see no reason why the reduced penalty here should not guide the Court. There is no indication that any attention was given to this issue in the court below, and there is force in the appellant's argument on this aspect.

13 A similar claim was presented in relation to the sentences imposed for the various offences of indecent assault. The applicable maximum penalty at the time of their commission was ten years' imprisonment. The provision under which the charges were laid was repealed in 1967 and a new section enacted with a maximum possible term of five years. Counsel contended that, in this situation, s 114 was applicable and that the judge had been correctly so informed.

14 Although there is some attraction in this argument, I doubt that it is correct. Section 68(3) of the 1958 Act read:**

(3) Whosoever attempts to commit either with mankind or with any animal the abominable crime of buggery, or is guilty of any assault with intent to commit the same or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than ten years.[9]

The provision encompassed a variety of different kinds of offending, of which the commission of an indecent assault upon a male was only one. As part of the process of reform of the law relating to offences of a sexual character, the legislature repealed the words 'or of any indecent assault upon a male person' in the section and introduced the following provision:

(3A) Whosoever unlawfully and indecently assaults any male person shall be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than five years.[10]

As can be seen, the elements of the offence remained precisely the same, but with a lower maximum penalty. I doubt that, as a matter of statutory construction, s 114(2) has application. Arguably, its area of operation would not include a situation in which there has been no reduction in the maximum penalty for an existing offence, but in which the provision which encompassed the offence on which the charge was based has been repealed and replaced by another provision which creates a new offence, albeit with the same elements. But in the final analysis, whether that is the position cannot, in the present matter, assume importance. If my doubts are unjustified and it does not apply, the judge was correctly informed. On the other hand, if they are, then this is precisely the kind of situation to which the views adopted in Ronen are apposite.

15 I now turn to the circumstances relating to the commission of the appellant's offending, concerning which I understand there is no dispute.

**16 Counts 1 to 8 arose out of the appellant's association with a complainant to whom I will refer as B. Counts 9 to 18 all arose out of his subsequent association with the complainant to whom I will refer as Z.

17 In 1961, the appellant was a first-year medical student at Melbourne University. B was aged 12 and in his second year of secondary education. The appellant's mother and B's mother became acquainted through their mutual interest in photography, and as such B would visit the appellant's home, where, in the darkroom, B and he would engage in mutual masturbation (counts 1 and 2 are representative of multiple similar acts).

18 Counts 3, 4, 5, 6 and 7 arose during the September school holidays in 1962, when it was the appellant's practice to take B bowling. He would then take the boy to his (the appellant's) home. On one occasion, the appellant directed that B masturbate him until ejaculation (count 3). He then masturbated B (count 4). The appellant then placed B's penis in his mouth and performed oral sex (count 5). Later, he applied Vaseline to B's penis and masturbated him again (count 6), following which he directed B to masturbate him to ejaculation (count 7).

19 In the summer of 1962-63, the appellant was employed as a lifeguard at the local swimming pool and he arranged for B to attend. The appellant took B into a plant room where he asked B to masturbate him to the point of ejaculation.

20 The victim of counts 9 to 18, Z, was born on 1 October 1956. The appellant met Z at the beginning of the 1969 football season, when, as a young medical practitioner working at the Box Hill Hospital, he treated Z's brother for a football injury. The appellant became acquainted with his family and spent a lot of time at their home. When Z was 14 in 1971, the appellant started touching him in a sexual way. This was the beginning of a long sexual relationship. The appellant arranged for Z to visit his home, ostensibly to mow his lawn or clean his swimming pool, but the sentencing judge found that in reality he wanted Z to be available for his sexual pleasure. Initially, the activity involved mutual genital touching. This quickly graduated to mutual masturbation and oral sex.

21 Z recalled an occasion when he was in the appellant's bedroom and both were naked. The appellant performed mutual oral sex and then masturbated him. He then directed Z to masturbate him to the point of ejaculation. This activity followed the drinking of alcohol which the appellant provided, and there was further sexual activity on occasions when Z stayed at the appellant's home when he would sleep in the appellant's bed.

22 The appellant became very close to Z and his family, and Z worked part-time at the appellant's medical clinic and stayed frequently at his home. By the time he had turned 15 in October 1971, these arrangements were well established. The appellant would take him out socially and provide him with alcohol and drugs. He purchased clothes for Z that the boy's parents could not afford. He paid for his haircuts. The sleeping arrangements at the appellant's home were such as to make it look as if Z had his own bedroom but, in fact, he slept with the appellant. At times Z accompanied the appellant to social occasions where the appellant boasted to friends that he had had a sexual relationship with Z from the time he was 14. Z recounted that the appellant would take photographs of him naked and with an erect penis.

23 Z recalled an occasion when he turned 15 and the two were in the bath together. The appellant told him that he was going to introduce him to an activity called rose-leafing, which involved licking around the anus. He told Z to get on his hands and knees and then commenced to lick the area around Z's anus with his tongue. He then required Z to do the same thing to him. The appellant carried Z to his bed, where he again licked Z's anus. This was followed by mutual oral sex (counts 13 to 17).

24 Z recalled a camping holiday at San Remo, when the appellant visited the camp site. Z and the appellant slept in a trailer, and, whilst lying together, the appellant cuddled Z and touched his penis (count 18). As Z got older he began to make excuses to limit the sexual contact with the appellant, but it continued for a very long time. At the age of 18 years, Z left home to live with the appellant. He remained in a relationship with him until he was 26 years of age.

25 With respect to the appropriate individual sentences, orders for cumulation and the resultant total effective sentence, and the non-parole period to be fixed, the appellant's counsel drew the Court's attention to -**

(a) The applicable maximum penalties for the offending;

(b) The appellant's age at the time of the offending in counts 1 to 8 and the related fact that, had he been presented on those counts soon after the offending, he would have been sentenced as a young offender;

These are, of course, relevant considerations. Although he was significantly older than his victim and a medical student at the time these offences were committed, the appellant was nevertheless quite young and presumably still relatively immature and would have been so treated by the courts.

(c) The fact that the appellant and the complainant in counts 9 to 18 had a long-term relationship well into the complainant's adulthood;

I have grave difficulty in seeing how the long-term relationship which existed between the appellant and his victim could be perceived as in any way mitigatory of his behaviour. It is either irrelevant as unrelated to his offending, which seems highly improbable, or, in part at least, the consequence of predatory behaviour directed against a confused and vulnerable young person. This is certainly the image that emerges from Z's victim impact statement, the contents of which have not been disputed. The appellant was, it must be remembered, 27 years of age and a medical practitioner when he commenced offending against a 14 year-old boy. There can be no doubt that at that time he well understood the seriousness of what he was doing, and to some extent this is evident in the very attempts he made to conceal his conduct. The sentencing judge found:

You arranged for [the boy] to visit your home, ostensibly to mow your lawn or clean your swimming pool, but the reality was that you wanted him to be available for your sexual pleasure.

26 The aggravating features of this conduct, which included grooming behaviour and appalling breaches of the trust placed in him by the young boy's family, need hardly be emphasised. Other matters to which the Court's attention was directed were -

(d) The extraordinarily long delay between the offending, the reporting thereof and the sentencing of the appellant (the offending occurred in about 1961 to 1963 and 1971 to 1972);

(e) The absence of any relevant prior or subsequent convictions or findings of guilt at the age of 63;

(f) The appellant's positive good character, including his history of hard work and community service;

(h) The punishment already suffered by him through public opprobrium and the loss of his career and professional standing;

(i) The appellant's mental state, including evidence that he was suffering from a major depressive disorder; and

All of these matters must, of course, be taken into account in the appellant's favour.

**27 When regard is had to all of the circumstances in which the offending occurred, the appellant's conduct on each occasion can be seen to have been extremely serious. As counsel for the Crown submitted, he engaged in predatory and exploitative conduct in relation to each of his victims, specifically 'targeting' the second. From the perspective of the appellant, these events may have long since been perceived as being in the past, with little or no significance to his normal daily functioning. However, that cannot be said of the victims, whose impact statements make saddening reading. Each has suffered profoundly over the years that have passed since that time, and it is apparent that their rehabilitation is by no means complete.

28 As I had occasion to remark in DPP v Toomey[11]:**

It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.

Although much has been done in recent years to encourage young persons who have been subjected to inappropriate behaviours to report what has happened, by reason of the presence of a variety of factors it must be anticipated that often the commission of such offences will not be revealed for years and that their eventual disclosure will be both extremely difficult and painful for those offended against their families and others associated with them.

If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences. In my view, this cannot be permitted to occur.

**29 Taking into account all of these considerations, I have concluded that, save for the sentences handed down on counts 1 and 2, the individual sentences imposed and orders for cumulation made by the sentencing judge can be reasonably described as extremely lenient and I would re-impose them.

30 I propose that the appellant be re-sentenced as follows:**

I would otherwise impose the same sentences handed down in the court below.

**31 I would direct that one month of each of the sentences on counts 1, 2, 5, 9, 15 and 18 and four months of that imposed on count 14 be served cumulatively upon the sentence on count 13. The sentences would otherwise be served concurrently.

32 This would create a total effective sentence of two years and four months' imprisonment, in respect of which I would fix a non-parole period of one year and four months.**

The sentences imposed in the County Court on counts 1 and 2 are set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of nine months on each of counts 1 and 2.

Otherwise the individual sentences imposed in the County Court are confirmed.

It is ordered that one month of each of the sentences imposed in respect of counts 1, 2, 5, 9, 15 and 18 and four months of the sentence imposed in respect of count 14 be served cumulatively on the sentence imposed in respect of count 13.

The total effective sentence is two years and four months' imprisonment.

It is directed that the appellant serve a term of one year and four months' imprisonment before he is to be eligible for parole.

It is declared that 346 days are to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

It is further declared that for the purposes of s 50(5) of the Sex Offenders Registration Act 2004 the appellant, having been found guilty and sentenced on three or more Class 2 offences, is required to comply with

the reporting obligations imposed by that Act for the remainder of his life.

The appellant is sentenced in respect of counts 13, 15, 16 and 18 as a serious sexual offender.

[1] 'Section 114(2) If an Act (including this Act) or subordinate instrument reduces the penalty or the maximum or minimum penalty for an offence, the reduction extends to offences committed before the commencement of the provision effecting the reduction for which no penalty had been imposed at that commencement.'

[2] Crimes Act 1958, No 6231.

[9] Crimes Act 1958, No 6231.

[10] Crimes (Amendment) Act 1958, No 7577.

[11] [2006] VSCA 90, [22]-[24].

(Sexual Offences) Act 1980

(Amendment) Act 1958

(Sexual Offences) Act 1980

(Amendment) Act 1958

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