R v S [1985] TASSC 25

2 The whole of the sentence imposed by the learned Chief Justice is set aside, and in lieu thereof the respondent is sentenced to imprisonment for four months.

1 The respondent, a man of 36, was convicted on his plea of guilty of two charges of indecent assault of a seven year old girl, a child of his next-door neighbour, by licking her vagina. The first count related to an occasion between 1st June 1984 and 21st December 1984, and the second count to an occasion on or about 21st December 1984. The uncontested facts stated by the Crown Prosecutor to the learned trial judge were, in summary, that on the night to which the second count refers, the respondent was at his neighbour's house on a visit. The neighbour is the de facto husband of the child's mother. The mother of the child was away from the house at the time, leaving this child and another with her de facto husband. The respondent left the lounge-room to go to the kitchen, where he took hold of the child and then led her into the laundry. She was reluctant to go "and the accused told her he didn't care and the end result was she went into the laundry which adjoins the kitchen, with the accused. Once in the laundry the accused undid the button and zip on the child's jeans, pulled off the jeans and the pair of panties the child was wearing at the time." The respondent then commenced to carry out the offence, and did so for some time. The child told him to stop because he was hurting her and he said to her "Nonsense", and continued. After a time, the child's 'stepfather' came into the kitchen, the respondent desisted and returned to the kitchen. The stepfather saw her pulling on her jeans, questioned her, and having been told by the child what had occurred, immediately reported the matter to the police. The respondent was interviewed, admitted the offence, and also admitted the offence referred to in the first of the two counts.

2 The learned Chief Justice sentenced the respondent to nine months imprisonment, but wholly suspended that sentence on condition that the respondent be of good behaviour for a period of eighteen months, and submit to the supervision of a probation officer during that time; and also during that period submit to such psychiatric and medical treatment as may be directed by the probation officer. The Attorney-General has applied for leave to appeal against the sentence on the ground of manifest inadequacy.

3 The learned trial judge in his comments on passing sentence said that he was particularly influenced by the five following considerations:-

(1) The respondent at the age of 36 years had no prior convictions for offences of that kind.

(2) His Honour was satisfied that the respondent had shown, from the time he was first interviewed by the police, genuine remorse, shame and distress at what he had done.

(3) The respondent and his family had already suffered as a result of his actions.

(4) The complainant child had suffered no physical injury and it did not appear that she had suffered any psychological harm as a result of the offences. His Honour said that the possibility that some psychological effects might manifest themselves later could not be rejected, but the materials before him did not demonstrate that it was probable that they would do so. Furthermore, the possibility of that occurring had been reduced by the fact that the respondent had pleaded guilty and relieved the complainant of the ordeal of having to give evidence.

(5) The respondent genuinely wanted help (and had already undertaken a course of treatment by a psychiatrist), and was motivated to seek and continue treatment.

4 His Honour said that in his view those considerations, and the desirability of the court taking what steps it could to rehabilitate the accused and ensure that there was no repetition of offences such as this persuaded him that it was an appropriate case in which to suspend the execution of the sentence of imprisonment.

5 In my respectful opinion, the sentence of nine months imprisonment, wholly suspended on those conditions, was so clearly inadequate as to indicate an erroneous exercise of the sentencing discretion upon the well-known principles set out in House v The King (1936) 55 CLR, p99, Cranssen v The King [1936] HCA 42; (1936) 55 CLR, 509, and other cases often cited to this court in a similar context. Had an immediate custodial sentence of nine months imprisonment been imposed it could not have been said that it was inadequate, but the fact that the sentence was wholly suspended clearly places the penalty as a whole in a category very different so far as adequacy is concerned from an immediate custodial sentence of that length or thereabouts, because the effect of the suspension was to deprive the sentence virtually of all general deterrent effect. These were offences in which the factor of general deterrence was of particular importance in pursuance of the courts' duty to do what they can to protect children from this kind of sexual depredation.

6 I adhere to what I said in Reg v Percy (1975) Tas SR, p62 (CCA) at pp72 and following, as to the usual reasons for suspending a sentence of imprisonment, but the context in that case was different from the present. Of more point for the present purpose were the observations of Chambers J in that case, ibid. at p82, where his Honour said:-

"I agree with what Gibson J said in Painter v The Queen, unreported, CCA Tas 4th November 1964, that imprisonment as a deterrent is easily comprehended by the ordinary man, but a suspended sentence is unlikely to produce the same effect, ..."

7 These were serious offences of indecent assault on a young female child, committed by a mature man who took advantage of a position of trust in the broad sense, in that he was a friend of the child's stepfather, and thereby was able to have access to the child.

8 The offences were of a predatory nature, potentially psychologically disturbing and potentially corrupting in the long term, and they were of a nature which the community strongly and rightly condemns. They were of such a nature as to call for ordinarily, in the case of a mature adult male to whom no special circumstances applied at the time the offences were committed, a custodial sentence of imprisonment.

9 There were in this case no circumstances applying to the respondent or to the offences or the context in which they were committed to justify suspension of the sentence, in my opinion. There was ample evidence to justify the references which the learned trial judge made to the five mitigating factors, but they in my view pointed more appropriately to reduction of sentence than to suspension. I do not think that suspending the sentence would have been likely to have any significant rehabilitative effect. The very important factor of general deterrence was in my respectful view given too little weight.

10 In my opinion an immediate appropriate sentence would be six months' imprisonment, but since my colleague, Cosgrove J has proposed a sentence of four months, I am prepared to agree with that.

11 The respondent pleaded guilty to two counts of indecent assault. He was sentenced to imprisonment for nine months, but the execution of the whole of that sentence was wholly suspended on condition that he be of good behaviour for eighteen months. A probation order was made which was co-terminous with the condition of suspension. The Honourable the Attorney General appeals on the sole ground that the sentence was manifestly inadequate.

12 The appellant was indicted on two counts of indecently assaulting, between 1st June 1984 and 21st December 1984, a girl born on 19th September 1977. A nolle prosequi was entered in relation to one of these counts. The third count alleged an assault on a specific date, that is the 21st December 1984. At the time of that assault the girl was therefore aged seven. At the time of the other assault she would have been either six or seven, but Crown counsel informed the trial judge that she was in fact seven. In each case the assault alleged was that of licking the young girl's vagina. There is no particularity about the assault of unspecific date, but the accused admitted that he had so assaulted her at his own house. As to the events of 21st December 1984, however, there is considerable available detail.

13 The facts stated by the Crown Prosecutor (which were not contested) showed that the respondent was, at that time, in occupation of the house next door to that in which resided the girl in question (S), her mother, stepfather and step-sister (aged 2). All of the family were at home on the night of 21st December. At 8.00pm the respondent called to visit the stepfather. At 8.15pm the mother left the house. After some time, the respondent left the lounge-room where he had been talking to the stepfather. He went to the kitchen, took S by the hand and led her to the laundry. There he took off her trousers and panties and commenced the assault alleged. The child told him to stop because it was hurting her. He said "Nonsense" and continued the assault. The two year old was in the kitchen and could see into the laundry. S heard her stepfather approach. The respondent desisted from his assault and told S to dress. He then left the house. The stepfather questioned S and reported the matter to the police.

14 An examination of S revealed no physical abnormality, and there is no present evidence of damage to her personality. She appears to have borne no sense of resentment against the respondent.

15 The respondent, when interviewed by the police readily admitted his guilt, even to the point of confessing that he had assaulted S on three or four occasions (a confession which must be put to one side in any consideration of sentence). He exhibited a strong sense of shame and remorse. He has sought psychiatric treatment. His plea relieved S and her family of the embarrassment of court proceedings.

16 Since his arrest, he has been subjected to neighbourhood harassment, and S's family have made unfounded accusations against him. He has been forced to move from the neighbourhood. When in prison for a short time it was necessary for his own protection to keep him closely confined. He has been subject to a great deal of worry and has lost about three stone in weight. His wife, though supportive, is suffering from stress and his child of two years is showing signs of strain. His psychiatrist reports as follows:-

"[JS] has been seen by Dr Burges Watson for the purposes of a legal report and I have been seeing Mr [S] since the 2nd January, 1985 for the purposes of treatment. As Dr Burges Watson has taken all the particulars regarding the offence and Mr [S]'s background I will not go into that but simply note the main issues in treatment up to the present time.

Firstly, treatment has been largely supportive, ie offering Mr [S] an opportunity to talk about his feelings and the situation rather than any therapy involving change in personality structure, which would be much more prolonged and difficult. Secondly, the offence with which Mr [S] is charged does seem to be out of character in that he has not had a history of sexual offences and so the reasons why the alleged offence should happen at this particular stage in his life are not clear to me. Thirdly, Mr [S] has no clear memory of the events with which he is charged and one of the issues in treatment has been to try and enable him to recollect what happened as he does have memory associated with the time before and the time after the alleged offence and he also has a genuine wish to be able to remember this, as he feels if he is guilty that it is important for him to accept it. I have used hypnotherapy in a session on the 2nd March 1985 to go back over the events of the particular night when he went to the next-door neighbour's house and the alleged offence was said to occur. Under hypnosis he had no recollection of the events with which he is charged, which is slightly unusual although it is theoretically possible that if he did commit the offence that his mind may have repressed it because it is too painful to face.

Mr [S] seems genuinely motivated in seeking help and has attended the sessions regularly." (My emphasis)

17 The learned trial judge listed the following as considerations which influenced him in arriving at his sentencing decision:-

"(1) The accused at the age of 36 years has no prior convictions for offences of this kind.

(2) I am satisfied that the accused has shown, from the time when he was first interviewed, genuine remorse and shame and distress at what he has done.

(3) The accused and his family have already suffered as a result of his actions.

(4) The complainant suffered no physical injury and as counsel for the Crown properly pointed out, it does not appear that she has suffered any psychological harm as a result of these crimes. The possibility that some psychological effects might manifest themselves later cannot be rejected, but the materials before me do not demonstrate that it is probable that they will do so. And further, the possibility of that occurring has been reduced by the fact that the accused pleaded guilty and relieved the complainant of the ordeal of having to give evidence.

(5) The accused genuinely wants help and is motivated to seek it and to continue treatment."

18 I have been much troubled by this appeal. I recognize, without question, that sentencing is an art in which full weight must be given to the particular circumstances of each case and each individual, and that appellate courts should be slow to reverse decisions of such a nature. I discount entirely the notion that assaults on young children must be followed by a custodial sentence taking immediate effect. True it is that it is the duty of the court to protect young children. That is recognised not only in the criminal sphere, but in other jurisdictions of this court. But the court must be strong to withstand any suggestion that its powers should be exercised to effect mindless revenge. Those powers should be exercised soberly and with restraint, for the protection of the community at large, for the protection of the guilty as well as the innocent. But, after an anxious review of this case, I am unable to escape the conclusion that the mechanism of the suspended sentence was inappropriate.

19 The facts which follow are those which lead me to so conclude -

1 The respondent had committed this bizarre sexual assault on S twice.

2 He was so driven to it that, in the confines of a small Housing Department house, he committed one assault despite the objections of the girl, the presence of her sister, and the fact that her stepfather was close by in the house.

3 The girl was of an age where it is possible that lasting moral or psychological harm could have been done. This did not deter the respondent.

4 The psychiatric report on the respondent offers no real hope of a change in his personality or behaviour.

5 The respondent had been to prison before, although that was a long time ago.

6 The respondent was a mature man. His sexual aberrations were not the product of repressed adolescence.

7 Most of the considerations which influenced the trial judge to suspend the sentence were principally matters of mitigation. I refer to his plea of guilty, his shame, remorse and distress, his suffering at the hands of the community almost to the point of being a social outcast, and his absence for prior convictions for this type of offence.

20 I concede that to distinguish between matters relevant to mitigation and those relevant to suspension of sentence is to draw a very fine line, and an inconstant one. Matters which would suggest suspension for a young non-aberrant offender may suggest only mitigation for a mature aberrant offender. It is really a question of the efficacy of suspension. When a sentence is wholly suspended, it gives little effect to another curial duty ie, to impose a sentence which expresses in appropriately moderate terms the community's abhorrence of the crime and tends to vindicate community moral standards. That aspect of sentencing should not be obscured unless there is a real prospect that suspension will be truly efficacious. In this case I regard the prospective efficacy as so slight that the mechanism ought not to have been used.

8 In the light of the psychiatric report and his admissions to police I view his expressed desire for help and treatment with some reserve.

9 The social punishment which he has already received is a proper ground for reduction of sentence. It does not, in my opinion, afford grounds for hope of effective containment of his sexual impulses.

10 The suspension of his sentence is not likely to enhance the prospect of rehabilitation by medium of fear. There are already existing more potent reasons for fear than that. Many of them existed before these offences occurred.

21 These factors have led me to conclude that the discretion of the sentencing judge was wrongly exercised. I would favour setting aside his order, and appropriating the matters which he listed to the context of mitigation. I would substitute for this order a sentence of four months imprisonment.

22 Such an order would effect a reduction in the head sentence. As the only ground of appeal asserted the manifest inadequacy of the original sentence, and as both counsel in fact urged the court to accept the head sentence as correct, it is a curious result. It may be thought to be even more curious in that Crown counsel sought no more than that part of the head sentence should be put into effect. However, having reached the conclusion that suspension was inappropriate, the court is free to make the order which seems to it to be correct (see s402(4) of the Criminal Code). Most convicts would, I suspect, regard the sentence which I propose as more severe than that imposed by the trial judge (see Paynter v The Queen, Tas (unreported) Serial No 95/1964 Court of Criminal Appeal).

23 The respondent pleaded guilty to an indictment containing two counts of indecent assault upon a seven year old girl. He licked her vagina on two occasions separate in time and place. He was sentenced to nine months' imprisonment which was wholly suspended upon condition that he was of good behaviour for a period of 18 months. He was also placed under supervised probation for the period of 18 months with a provision that he submit to such psychiatric or medical treatment as the probation officer might direct.

24 The Crown has applied for leave to appeal against the sentence on the grounds that it was manifestly inadequate having regard to all the circumstances of the case. Mr Cullen, for the Crown, did not argue that the head sentence of nine months was inadequate but submitted that it should not have been wholly suspended.

25 The respondent was the next-door neighbour of the complainant and her mother and stepfather. On 21st December 1984 the respondent visited the complainant's home. After being in the lounge room for a time, he left such room and took the complainant into the laundry, pulled off her jeans and panties, placed her legs apart and commenced to lick her vagina. The child told him to stop because it was hurting her but he continued for some time. He was kneeling on the floor and she was standing. When questioned by the police a few days later the accused admitted the offence. He also admitted having done the same thing to her on an earlier occasion in the bedroom of his own home. He said that it was something which he could not control. There was no evidence that he had consumed liquor at any time relevant to either offence.

26 There was no physical injury to the child and so far there does not seem to have been any psychological damage done to her. However, it is always difficult to predict what effect incidents of this nature committed upon a young child may have in the future.

27 The learned trial judge found that the respondent was genuinely remorseful and genuinely wanted help. I am not in a position to challenge those findings. There was also evidence that the respondent sought such help by attending sessions with Dr Burgess. However, the psychiatric evidence was meagre and did not indicate whether or not there were any prospects for the respondent to be cured of his sexual deviation.

28 This is quite a serious case of indecent assault involving two separate incidents upon a young girl by a friend of her family. It should be regarded more seriously than a momentary touching of the vagina on a single occasion. Even though the respondent may have been genuinely remorseful after he was found out, it is quite probable that he would have continued his conduct had he not been interviewed by the police. In my view, the learned trial judge erred in giving too much weight to any prospects for the rehabilitation of the respondent and too little to deterrence and proper community outrage. I consider that, in this case, the latter factors outweighed any factors which might be relevant to rehabilitation. I do not believe that a sentence of nine months' imprisonment which was wholly suspended would be seen as having an effective deterrent effect or would give adequate expression to the feelings of right-minded persons well informed about all the circumstances of this case. It is my view that an immediate custodial sentence is appropriate. What concerns me is whether any part of the head sentence should be suspended.

29 In his comments when passing sentence the learned trial judge said that he was especially influenced by these considerations:-

"(1) The accused at the age of 36 years has no prior convictions for offences of this kind.

(2) I am satisfied that the accused has shown, from the time when he was first interviewed, genuine remorse and shame and distress at what he has done.

(3) The accused and his family have already suffered as a result of his actions.

(4) The complainant suffered no physical injury and as counsel for the Crown properly pointed out, it does not appear that she has suffered any psychological harm as a result of these crimes. The possibility that some psychological effects might manifest themselves later cannot be rejected, but the materials before me do not demonstrate that it is probable that they will do so. And further, the possibility of that occurring has been reduced by the fact that the accused pleaded guilty and relieved the complainant of the ordeal of having to give evidence.

(5) The accused genuinely wants help and is motivated to seek it and to continue treatment."

"In my view in this case, those considerations and the desirability of the Court taking what steps it can to rehabilitate the accused and ensure that there is no repetition of offences like this persuade me that this is an appropriate case in which to suspend the execution of the sentence of imprisonment which I propose imposing."

30 In varying degrees, all of the considerations mentioned by the learned trial judge were mitigating circumstances. However, I think that genuine remorse and a genuine desire to obtain help and the seeking of it and the continuation of treatment could also be taken into account as an indication that the respondent was prepared to rehabilitate himself. The fact that he had attended counselling sessions with Dr Burgess regularly for about three months prior to the trial should not be ignored. However, as I have said, the psychiatric evidence did not indicate what were the prospects of him being cured of his errant sexual behaviour.

31 It would seem that it is open to this Court to pass another sentence upon the respondent, whether more or less severe (s402(4) of the Criminal Code). However, I do not feel disposed to alter the head sentence of nine months' imprisonment. Mr Cullen did not argue that it should be increased and Mr Wilkinson, for the respondent, did not suggest that it was outside a proper range. That is not to say that I may not have imposed a less severe sentence had I been the trial judge. However, I believe that some account should be taken of the possibility that the respondent can reform himself. I would be prepared to suspend the last four months of the sentence of nine months' imprisonment.

1 I do not see a justification for reducing the head sentence of nine months' imprisonment.

2 The respondent must serve a substantial part of that sentence because he and others must be deterred from indecent assaults like the present ones and because the proper feelings of the community must be given due weight.

3 There are some factors, although not particularly weighty, which should be taken into account as indicating that he may not offend again.

4 For that reason, he should be given an opportunity to reform by having part of his sentence suspended. If this is done on condition that he does not commit any sexual offence for a period, then hopefully he will have an added incentive to make sure that he does not offend again.

33 I cannot conclude without saying that I do not equate the circumstances of the present case with those in The Queen v Reid (Unreported, Tas, Serial No 57/1984). There, there was much stronger evidence in relation to rehabilitation and also the children involved were young enough not to appreciate what was taking place.

34 I would give leave to appeal and allow the appeal and make the following orders:-

1 That the sentence of nine months' imprisonment upon the respondent be confirmed but that, in lieu of such sentence being wholly suspended, the last four months of such sentence be suspended upon condition that he does not commit any sexual offence for a period of 18 months after his release from prison.

2 That the respondent be placed under the supervision of a probation officer for a period of 18 months upon his release from prison and that he be of good behaviour during such period and obey the reasonable directions of such probation officer including any directions as to submission to any psychiatric or medical treatment.