R v Hanslow

in THE COURT OF CRIMINAL APPEAL 60738/01

KIRBY J SMART AJ

Tuesday 7 May 2002 REGINA v James Anthony HANSLOW Judgment 1 KIRBY J: James Anthony Hanslow (the applicant) seeks leave to appeal against the severity of a sentence imposed by Gibson DCJ on 28 May 1999. He also seeks an extension of time to prosecute this appeal. 2 Mr Hanslow stood trial before Gibson DCJ and a jury on two counts, as follows: · First, a charge under s 61B of the Crimes Act 1900 (the Act) that, in late 1989, he assaulted a girl under the age of 10 years, with intent to have sexual intercourse. · Secondly, a charge under s 61E(1) of the Act that, in late 1989, on the same day, he committed an act of indecency upon the same young girl. 3 Mr Hanslow pleaded not guilty. However, after a short trial in April 1999, he was found guilty on both counts. In respect of the first and more serious count, Mr Hanslow was sentenced to a fixed term of imprisonment of two and a half years, such term to be served by way of Periodic Detention commencing on 11 June 1999. On the second count, that of indecent assault, his Honour imposed a fixed term of imprisonment of nine months, also to be served by way of periodic detention, commencing on the same date, that is, 11 June 1999 (Periodic Detention of Prisoners Act 1981) (since repealed). 4 Mr Hanslow's history since that sentence was imposed has been complicated. On 12 July 2001, the Parole Board revoked the order for periodic detention. Mr Hanslow is now in full time custody. 5 Before describing the circumstances which led the Parole Board to revoke that order, I should describe the offences themselves.

The Offences 6 In late 1989, Mr Hanslow was sixteen years old. He had a younger sister. She was friendly with a girl who lived next door. That girl, the complainant, was nine years old. Both her parents worked. She frequently came to the Hanslow home after school, before her parents arrived home from work. 7 In 1989, the complainant came to the Hanslow house. Mr Hanslow suggested a game. He began dancing with the complainant to music. In what his Honour described as an impulsive act, Mr Hanslow pulled the complainant close to him. He rubbed the outside of her clothing near her breasts. He then kissed her. These actions gave rise to the second count, that of indecent assault. His Honour described the offence as being "at the bottom of the range" of seriousness. 8 Mr Hanslow then took the complainant to a bedroom. He removed his shorts and her underwear. He lay on top of her, attempting to insert his penis into her vagina. He did not succeed. The complainant was scared. She protested. However, Mr Hanslow ignored her protests. After several minutes he got off her and went to the bathroom. 9 The complainant said that she would not tell anyone. And she did not do so until 1997. The trial, as mentioned, took place in 1999, that is, ten years after these events. 10 In that ten years Mr Hanslow has had a somewhat checkered history. He obtained his School Certificate. He also obtained part of the qualification as a diesel mechanic. From the age of seventeen he began living with his wife in what appears to be a stable relationship. They had two young children at the time he was required to face these charges. A third child has since been born. 11 Mr Hanslow, however, had difficulty with alcohol and drugs. In 1991 he was charged with driving whilst affected to a high level by alcohol. He was required to serve 100 hours community service. In 1997 he was convicted of driving whilst disqualified. An order was made requiring a further 100 hours community service. In April 1999, shortly before his trial, he was again convicted of driving whilst under the influence, and whilst disqualified. An order for periodic detention was made. His Honour structured the sentence so that the order for periodic detention, which he imposed, would commence upon the expiration of the previous order.

Events since the Sentence 12 Two affidavits have been admitted describing Mr Hanslow's attempts to fulfil his obligation to attend for periodic detention. The first is an affidavit by Mr Hanslow of 5 April 2002, and the second an affidavit by his wife, Ms Jennifer O'Brien of 30 April 2002. 13 Mr Hanslow's affidavit annexes a copy of his attendance record in respect of periodic detention. Mr Hanslow was ordered to attend the Wollongong Periodic Detention Centre at Unanderra on 11 June 1999. He appears not to have done so for the first two weeks. However, he thereafter did attend between 25 June 1999 and 14 May 2000, apart from occasions when he was granted leave of absence or excused upon the basis that he was sick. 14 The circumstances which caused Mr Hanslow not to attend for periodic detention are described by him and his wife in their affidavits. When the order was made, he was living in Moruya. He caught the bus from Moruya at 8.00 am on a Friday. He attended the Centre at Unanderra on twelve occasions. On one occasion he was called to the prison office to sign papers. Two other inmates were present in the office. The papers he signed recorded the offences for which he had been convicted. The papers were seen by the other inmates. And so it was that other inmates became aware that Mr Hanslow had been convicted of sexual offences involving a child. 15 Mr Hanslow thereafter was taunted by other inmates. He was also assaulted. The Department recognised his predicament. They arranged for him to complete his periodic detention at Parramatta. The journey from Moruya to Parramatta absorbed the whole of each Friday. Unfortunately, however, the journey home involved the same train used by inmates from Unanderra. He was harassed on that journey. The police were called to the train on one occasion. He was obliged to make arrangements for his brother to pick him up on another. 16 Both Mr Hanslow and his wife describe their fears for their own and their children's safety. Mr Hanslow was abused by neighbours. His car was scratched. He approached the Department to seek its assistance. He was told that the only alternative was to cancel the Periodic Detention order and serve the balance of his sentence fulltime. 17 This was plainly unpalatable advice. Mr Hanslow and his wife instead chose to leave the area. That involved his wife leaving her job which she had held for some ten years. They moved north. However, on 14 May 2001, Mr Hanslow was arrested for a number of serious driving offences. He was found to be driving whilst affected by alcohol (high range), and whilst disqualified, and at a speed which was dangerous. In respect of those offences, he was sentenced to nine months imprisonment, to commence on 13 May 2001, and to expire on 12 February 2002. A non-parole period of six months was fixed to expire on 12 November 2001. 18 Mr Hanslow's arrest naturally brought to light his failure to attend for periodic detention. The Parole Board revoked the periodic detention order. Giving credit for time served, the Board fixed the balance of his sentence as follows: Count 1: A fixed term of two years and eighteen days to commence on 13 May 2001, and expire on 30 May 2003. Count 2: A fixed term of three months and sixteen days to commence on 13 May 2001, and expire on 28 August 2001.

The Grounds of Appeal 19 The notice of appeal does not set out the grounds of appeal. Using the written submissions made on behalf of the applicant as a guide, the grounds of appeal are as follows: · First, that his Honour was in error in failing to fix a minimum term and an additional term. · Secondly, that his Honour was in error in failing to give reasons for not fixing a minimum term. · Thirdly, and alternatively, the sentence imposed was manifestly excessive.

The Legislative Requirements 20 Before going to his Honour's remarks on sentence, I should say something about the change in the law, as it related to periodic detention, which commenced operation on 1 February 1999, that is a matter of months before his Honour sentenced Mr Hanslow on 28 May 1999. In R v Bang (unreported, CCA, 1.9.92), Badgery-Parker J said this: (at 17-18) "A literal interpretation of the provisions of the Periodic Detention of Prisoners Act 1981, might be thought to require a sentencing judge to engage upon a two stage process: first, to determine the appropriate sentence of imprisonment, and then, having reached a conclusion about that, to undertake examination of the question whether in the circumstances of the particular case that sentence ought be served by way of periodic detention. Indeed, I think it is correct to say that that approach was regularly adopted by judges of the District Court and of the Supreme Court over a period of years without criticism from the Court of Criminal Appeal." 21 Nonetheless, recognition that an order for periodic detention involved an element of leniency tended to blur the two stage process. Allen J, in R v Sadebath (unreported, CCA, 14.5.92), said this: (at 7-8) "Nevertheless it (periodic detention) is severe punishment. Insofar as the severity of the hardship caused by it during the time it is being served is less than it is in the case of a full-time custodial sentence, that disparity can be dealt with by increasing the length of the periodic sentence." 22 However, the amendment in 1998 to the Periodic Detention of Prisoners Act 1981, with operation from 1 February 1999, made it plain that, thenceforth, a two-stage approach was required. The Attorney, in the Second Reading Speech, said this: "The intention of section 5(1) is that the sentence of imprisonment should be determined first, and only then should consideration be given to whether the person serves the sentence in full-time imprisonment or by way of periodic detention. Despite the wording of section 5(1), interpretation of the section by the courts has been variable, thereby reducing the diversionary effect of periodic detention. The bill repeals section 5(1) and inserts new sections, including new section 5(1A), which requires a court to set a fixed term or a minimum and an additional term before making a periodic detention order. Offenders sentenced to periodic detention will therefore be in no doubt, from the outset, as to the term they face in full-time custody if they fail to attend periodic detention." 23 The same amendment introduced another important change. Whereas a prisoner in breach of an order for periodic detention had, in the past, been brought back before a Judge (often the sentencing Judge), after February 1999 such breaches were dealt with administratively. The Parole Board was given the power to revoke an order for periodic detention and calculate the term which remained, giving credit for time spent on periodic detention. That is what occurred in this case. 24 Thenceforth the practice described by Allen J of compensating for the leniency of periodic detention by extending the term of imprisonment could not be followed.

The Sentence Imposed 25 Here, we do not have amongst the appeal papers the transcript of the sentencing proceedings. It would appear, however, that his Honour's attention was not drawn to the recent changes in the legislation. I believe, as a matter of inference, that the sentence imposed by his Honour reflected the sentencing practice before the February 1999 amendment. I say this for a number of reasons. First, his Honour's remarks on sentence included the following exchange, which is obviously a reference to the previous practice rather than the regime introduced a few months before: "You will understand, you have probably been told this, but you will understand that if you do not present yourself on that day or if you do not carry out the periodic detention or if you go there affected by alcohol or affected by drugs, that you will come back before me and you will do it full time. Do you understand that? PRISONER: Yes." 26 Secondly, it is apparent from his Honour's remarks that he intended to extend a measure of leniency to Mr Hanslow in making the order of periodic detention. His Honour said this: (p 4) "I think that in the totality of the circumstances of this case that a custodial sentence is required and I am also of the opinion that in the light of his age at the time and the position that he now is in, that custodial sentence can be served by way of periodic detention, so I propose and I impose on him a sentence of fixed term of two and a half years." 27 These remarks do not, or do not unambiguously, reflect the two stage approach introduced in February 1999. After that time, a sentencing Judge was required, first, to fix an appropriate period of imprisonment. He or she was then required to give consideration to whether the sentence could be appropriately carried out in circumstances other than full time custody. It was no longer appropriate to telescope those issues, extending the term of imprisonment to compensate for the leniency involved in periodic detention (R v Wegener [1999] NSWCCA 405). Yet, I believe, the terms of imprisonment imposed have been extended in accordance with the previous practice. Alternatively, the terms imposed were excessive. 28 I believe that error has been established, and that it is necessary for the Court to re-sentence.

Re-Sentencing 29 The re-sentencing of Mr Hanslow is complicated by the offence which led to his apprehension in May 2001. He was, as mentioned, charged with driving with a high range concentration of alcohol, driving whilst disqualified, and driving at a speed which was dangerous. He was convicted at the Kempsey Local Court of each of these offences. A sentence of nine months imprisonment was imposed, commencing on 13 May 2001 and expiring on 12 February 2002. A non-parole period of six months was fixed, expiring on 12 November 2001. 30 Mr Hanslow had therefore served a significant period of Periodic Detention, before his completion of the sentence was disrupted. The disruption does not reflect adversely upon him, and created significant hardship for him and his family. He did thereafter, of course, simply ignore his obligations under the periodic detention order, and that does reflect adversely upon him. It may, however, be assumed that Mr Hanslow would have been admitted to parole in respect of the driving offences on 12 November 2001. His custody, thereafter, may be assumed to relate to the offences which are now under review. 31 The term in respect of the second count fixed by the Parole Board in July 2001 has since expired (28 August 2001). Nonetheless, since I believe there was error, and the term imposed was excessive, I will re-sentence on that count. 32 In all the circumstances, I am inclined to the view that the time served by Mr Hanslow, whether by periodic detention, or in full time custody, should be regarded as adequate in respect of the criminality involved in respect of counts 1 and 2. I would therefore propose the following order.

2. That leave to appeal against sentence be granted.

4. That the sentence imposed by Gibson DCJ, as amended by the Parole Board be quashed.

5. That in respect of the first count, Mr Hanslow be re-sentenced to a fixed term commencing on 13 May 2001 and expiring today, 7 May 2002; and in respect of the second count, Mr Hanslow be re-sentenced to a fixed term of 1 month, concurrent, that is commencing on 13 May 2001, and expiring on 12 June 2001. 33 SMART AJ: I agree with Kirby J. I add the following additional reasons. 34 The sentence of two and a half years imprisonment, albeit to be served by periodic detention, imposed on the offence of assault with intent to have sexual intercourse with a child under ten years is manifestly excessive for these reasons:

(a) at the time of the offence the applicant was a juvenile aged sixteen years. It is highly improbable, if the matter had been reported promptly, that the applicant would have been sentenced to imprisonment by the Children's Court. Further, any custodial penalty, if imposed, would have been served in a Juvenile Justice Centre.

(b) the applicant has suffered real prejudice in the delay of almost ten years in standing trial in that he has lost the opportunity of being dealt with in the Children's Court and its less punitive regime.

(c) by the time the applicant was facing trial he had settled down and also into a regular relationship with his de facto partner and there had been no subsequent acts of sexual aberrancy.

(d) the attempt to have sexual intercourse failed; it is appreciated that the incident was very distressing for the victim. The complainant came into his home when he was alone and not equal to coping with the task. He did not seek her out. 35 Being satisfied that the judge erred in that a sentence of two and a half years imprisonment was not, in the circumstances, permissible, it falls to this Court to re-sentence. 36 The sentence of nine months imprisonment on the indecent assault charge, albeit to be served by periodic detention, is also manifestly excessive. The offence was rightly described by the judge as being at the bottom end of the range. It was an impulsive action by a sixteen year old boy not equipped to deal with the situation he faced. A custodial sentence for the offence would not have been contemplated by the Children's Court. 37 For the sake of completeness I would add that the Periodic Detention of Prisoners Act 1981 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 (Schedule 1). The provisions of the Periodic Detention of Prisoners Act 1981 (including the 1998 Amending Act) are included in the Crimes (Sentencing Procedure) Act 1999, s 6 and the Crimes (Administration of Sentences) Act 1999, Part 3 ss 80 -101 and Schedule 5, Division 2. Clause 20 provides that any order for Periodic Detention that immediately before the appointed day (3 April 2000) was in force under the 1981 Act, is taken to be a Periodic Detention order in force under this Act (the Crimes (Administration of Sentences) Act 1999). 38 I agree with the orders proposed by Kirby J. 39 KIRBY J: The orders of the court will be as proposed by me. *********

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