R v Fidler [2006] VSCA 17

2 The applicant sought leave to appeal against sentence and on 16 September his application under s.582 of the Crimes Act 1958 for leave to appeal was dismissed. He elected to appeal to this Court, and now seeks leave to appeal on the grounds that:

1. The sentence on Count 2, the total effective sentence and the non-parole period are manifestly excessive.

2. The judge erred in failing to have regard to the likelihood that the conditions imposed under the Sex Offenders Registration Act 2004 ("the S.O.R. Act") reduced the risk of reoffending and, as a result, the weight to be accorded to protection of the community and specific deterrence.

3 The facts giving rise to these offences were as follows. The victim (M) in July 2003 began working for the first time at a country restaurant, he then being 16 years' old. He met the applicant who was working as a cook and who befriended him. M told the applicant that he was 16 and the applicant asked M if he would "root a 22-year-old woman". When M said that he would, the applicant said that he would arrange for M to have sex with such a woman "free of charge". The next week the applicant told M that he had arranged a woman for him on a particular night, and when they finished work at the restaurant he and M left the restaurant on foot. The applicant told M that he should masturbate before having sex with a woman so that the sex would last longer. The applicant then bought a cask of red wine from a liquor shop and they subsequently caught a taxi to the applicant's home arriving at approximately 8.30 p.m.

4 The applicant then poured M a glass of wine and they sat in the loungeroom. The applicant told M that the woman would arrive at 9.45 p.m. and invited him to read pornographic magazines. He gave M more wine throughout the evening. The applicant then suggested that he and M should both masturbate and gave M some lubricant. After some time M said he was sick of waiting and the applicant picked up his telephone, talked into it and told M that the woman's car had broken down and she would arrive soon. He gave M more wine and then asked M if he had ever used a blow-up doll. He produced such a doll, already inflated. M was tired and wanted to sleep. The applicant asked M if he wanted him to "prepare" M for the woman, but M declined.

5 M thereafter fell asleep. He woke up, it being still night-time, and found that his trousers had been pulled down and that the applicant had put the doll on top of him. M's penis had been inserted into the doll's "vagina". When the applicant realised M was awake he quickly removed the doll. M pulled up his pants and returned to sleep (Count 1).

6 M subsequently awoke once again and found the applicant sucking his (M's) penis. When the applicant realised M was awake, he moved away. M was angry and asked if the applicant was going to bed and requested a doona. The applicant asked M if he could get under the doona with him and M replied that he could not. M once again fell asleep (Count 2). M woke up later that night, feeling a painful sensation in his anal region. He yelled and pulled his trousers back up. It was dark and difficult to see, but he felt the applicant grab him around the waist. He subsequently fell asleep once again. He woke up at approximately 8 a.m. and realised that lubricant had been smeared on his buttocks and around his anus. The applicant was sitting at a nearby table. M tried to act naturally so that he could get away from the applicant, and shortly afterwards left the house and ran away. When later he saw his mother he told her partially what had occurred (Count 3).

7 The applicant, when interviewed by police on 31 July 2003, denied the allegations made against him. The police searched his house under warrant and found magazines, a blow-up doll, lubricant, wine glasses and a piece of cardboard torn from a cardboard wine cask.

8 A victim impact statement made by M was tendered and demonstrates the emotional trauma he suffered as a result of the applicant's activities. In it M said that he now finds it hard to get close to or trust anyone, that he has shut himself off from the rest of the world and that his confidence and self-esteem have dropped and he has become angry, confused and scared, and suffers panic and anxiety attacks.

9 During the plea it was put on behalf of the applicant that he was then 27 years' old. He had been employed at the restaurant for some 15 months before the offences occurred. He had led a lonely existence and had been struggling with his sexual orientation in the period before the offences. He had no history suggestive of psychiatric disorder. In his favour it was put that he pleaded guilty, he came before the court without relevant prior convictions, or convictions for violence or of a sexual nature. His offending arose in circumstances where he was confused as to his sexuality, there being no suggestion that he was attracted to young males, nor did he have a proclivity for children or adolescents. He was remorseful, in custody for the first time and would probably be required to serve any sentence imposed by the court in protection because of the nature of his offending. There was no evidence to suggest that he was a substantial risk to the general community. The prosecutor accepted that while the offending was serious, it was not at the top range for these types of offences that come before the courts and he had a reasonable prospect of rehabilitation.

10 The judge concluded that matters of significance in this case were the following:

"(1) Your plea of guilty. (2) The circumstances of your offending and the age difference and physical size between you and the victim. (3) The planning and premeditation in the offending conduct. (4) That you do not suffer from any psychiatric disorder. (5) That you do not have any proclivity for adolescent males. (6) That you have no relevant prior convictions. (7) That you are sexually confused and this was your first experience at homosexual activity. (8) That the victim had not given you any indication or any basis for believing that he was interested in you as a sexual partner. (9) That you deliberately enticed him to your home in the expectation of sexual activity with a female in order to have your way with him. (10) That you are remorseful for your criminal offending. (11) The impact your criminal conduct has had on the victim."

11 Mr Meredith for the applicant submitted that the sentence on Count 2 was manifestly excessive in view of the nature of the sexual penetration involved, the fact that the applicant desisted upon the complainant's becoming aware of what was occurring, the psychiatric assessment that the applicant was a shy and socially awkward man confused about his sexuality, his age, 26 at the time of offending, his plea of guilty and lack of prior convictions, his remorse, his good work history, the absence of any paedophilic tendency, and the prosecution concession that the applicant was not a high risk of reoffending. It was argued that the difference between the sentence imposed on Count 2 and those imposed on Counts 1 and 3 was disproportionate. It was also argued that the conditions likely to be imposed under the S.O.R. Act 2004 reduced the risk of reoffending and, as a result, the weight to be accorded to protection of the community and specific deterrence.

12 In my view, there is no substance in these submissions. The victim was young, vulnerable and impressionable. The circumstances of the offending included enticing the victim into the applicant's home, plying him with alcohol and interfering with him whilst he was asleep. The offending was very serious. It was premeditated and the applicant singled M out and told him a false story about procuring an older woman for him to have sex with in order to lure him to his home. The offending was persistent and repeated despite M's obvious protestations. As the victim impact statement demonstrates, M has suffered from anxiety, panic attacks, loss of confidence and self-esteem, all of which was to be expected. The judge took into account all relevant matters, including the psychological report made by Dr Deborah Wood. Furthermore, the individual sentence on the count of rape was not excessive in that the offence was committed after the applicant had already sexually assaulted M and M had protested.

13 Under ground 2 it was argued that the judge had no regard to the likelihood that the conditions imposed under the S.O.R. Act reduced the risk of reoffending, and as a result the weight to be accorded to the protection of the community and specific deterrence. It was put that these conditions are substantial and are indeed likely to reduce the risk of reoffending.

14 Again, there is, I think, nothing in this ground. Conflicting submissions were indeed made by the Crown during the plea as to the applicant being a registrable sex offender and a serious sexual offender. The applicant, however, was not sentenced as a serious sexual offender but was properly characterised as a registrable offender. Mr Meredith submitted that the judge was therefore obliged to take into account that the reporting conditions imposed under Part 3 of the S.O.R. Act are substantial and are likely to reduce the risk of reoffending and hence the need for protection of the community and specific deterrence. But he also accepted that before this ground could have significance in this appeal it would be necessary to show that the judge had placed excessive regard on the weight to be given to the protection of the community and specific deterrence. In fact, the judge accepted that the applicant had prospects of rehabilitation and merely stated that unless the applicant resolved his sexual confusion and looked for willing partners, there remained a risk that he would offend again in the future. Specific deterrence remained a significant matter for the Court to consider. The judge also pointed out, with every justification that,

"Those that single out vulnerable youths in their workplace, entice them to their homes, ply them with alcohol and then sexually abuse them over a long period of time must expect little sympathy from the courts if detected."

15 All of these comments were, in my view, entirely appropriate in the circumstances and do not suggest that the judge accorded the protection of the community and specific deterrence excessive weight. I should add that in DPP v. Ellis[1] Callaway, J.A. said:

"As a general rule, in my opinion, an offender's reporting obligations under the Sex Offenders Registration Act are irrelevant. Parliament has decided that persons sentenced for particular offences constitute a class in relation to whom such obligations are appropriate. They are an incident of the sentence. It would unduly burden the sentencing process if judges were required to take them into account any more than if they were required to take into account other ordinary incidents of the criminal justice system. An exception should be recognised only where the reporting obligations operate with unusual severity on a particular offender. In other words, they are relevant to sentencing only in exceptional circumstances."

16 In deference to Mr Meredith's careful argument, I should say that there could be unusual cases in which a sentencing judge might take the view that the reporting conditions imposed under Part 3 of the S.O.R. Act were of such a nature as significantly to reduce the risk of further offending by a particular accused person. Mrs Quin, for the Crown, argued that this would be irrelevant in the sentencing of a registrable sex offender either because of what had been said by Callaway, J.A. in Ellis (supra) or, for the future, because of s.5(2BC) of the Sentencing Act which was introduced by s.27 of the Sex Offenders Registration (Amendment) Act 2005 and came into force, we were told, on 1 August 2005. Mrs Quin's argument was that a reduction in the risk of reoffending would thus be a direct "consequence" of the reporting conditions which would arise from the imposition of sentence and so inevitably caught by s.5(2BC) as a matter to which the sentencing court "must not have regard".

17 It is not necessary, having regard to the reasons already given, to decide these questions in the present case. I should say, however, that specific deterrence and the protection of the community are central factors in the instinctive synthesis leading to virtually any sentence as s.5(1) of the Sentencing Act 1991 makes obvious. In the unusual case where a judge was satisfied that the reporting conditions imposed under the S.O.R. Act were likely to reduce significantly the need for specific deterrence or the protection of the community, it is by no means clear to me that the sentencing judge should or could ignore this fact. To do so would have the consequence that the judge was sentencing the offender on an assessment of specific deterrence and the need for protection of the community which, ex hypothesi, was in the judge's view in the circumstances of the particular case quite wrong. But I need say no more on this difficult issue.

18 Both grounds of the application for leave to appeal fail. The application should be dismissed.

19 I agree and I do so for the reasons advanced by the learned presiding judge. I also wish to associate myself with his comments concerning the operation of the Sex Offenders Registration Act.

21 The orders of the Court are, therefore, that the application for leave to appeal against sentence is dismissed.

[1] [2005] VSCA 105; 153 A. Crim. R. 340 at 347, [16].