R v Smart [2005] VSCA 226

2 On 16 June 2005 the appellant pleaded guilty before a judge of the County Court at Melbourne to two counts of indecent assault (counts 1 and 2) and one count of being in possession of child pornography (count 3), and after hearing a plea in mitigation, on 20 June 2005 the judge sentenced the appellant on each count to a term of imprisonment of six months, each to be served concurrently, making for a total effective sentence of six months. The appellant now appeals against the sentence by leave of a judge of this Court granted on 29 July 2005.

3 The facts of the matter were agreed at the plea hearing to be as follows. The appellant was born on 17 August 1951 and at the time of sentencing was 53 years old. The complainant was born on 7 May 1980, the second of five children. Following the separation of his father and mother, his mother moved to live with a man "A" at a rented flat in East Malvern which A shared with the appellant. In December 1989 the complainant and one of his sisters went to live at the flat with their mother and A and the appellant. They stayed for a couple of months. The complainant's mother was, however, spending a lot of time with A, and the complainant, who was then only ten years old, was feeling ignored.

4 The appellant was a music master at a boys' school and presented himself to the complainant as a "very nice person" and a father figure. He would occasionally rub the complainant on the back in an affectionate manner, making the complainant feel good about himself, and evidently the complainant welcomed the attention. The appellant was also in the habit of coming home late after the complainant and his sister had been put to bed, and after a while he started waking up the complainant and asking him for a hug. When that occurred the complainant got out of his sofa

bed and the appellant hugged him in a gentle and soft manner without waking the complainant's sister. The practice soon developed into a regular event. The complainant liked and looked forward to the affection and on most nights he would be waiting for the appellant to come home.

5 Late in December 1989 or possibly early in January 1990, matters escalated to the point where the appellant started to invite the complainant into the appellant's bed. He reassured the complainant to follow him to the bedroom and once there took off his top and pants and got into bed wearing only underpants. He then put his arms around the complainant and hugged him from behind, in what was called a "spoon position", making the complainant feel secure and warm. They stayed there until early in the morning, when the appellant woke the complainant and got him to go back to his own bed so as not to "get into trouble". Over the next fortnight that practice became a nightly event.

6 On one of those nights when the complainant was in the appellant's bed, the appellant caressed the complainant's buttocks, and inserted his finger through the crack between the complainant's buttocks and rubbed his finger around the complainant's anus continuously in a circular motion. Thereafter he repeated the same sort of conduct not less than seven times in a two-week period. Count 1 was therefore propounded as a representative count of indecent assault relating to that conduct.

7 On the last occasion on which that sort of conduct occurred, the appellant woke the complainant from the sofa bed where he was sleeping, motioned him to come into the appellant's room and then repeated the same sort of conduct as was described in count 1. That conduct comprised the subject of count 2. On that occasion, however, the complainant woke to find that his mother had entered the bedroom. She told him to get out of the room, which he did, and he was then smacked by A, who told him never to go into the appellant's bedroom again.

8 Within two days of finding the complainant in bed with the appellant, the complainant's mother looked into the appellant's room and found in the cupboards magazines with photographs of naked young boys. The matter was reported to the Malvern Police Station, but the material was disposed of after A persuaded the complainant's mother that the appellant did not deserve to be subjected to police action.

9 Then in July 2002 the complainant reported the indecent assaults to the Malvern Police Station again, and on 15 May 2003 police attended the flat. During a search of the flat they found a large number of random downloaded and printed images of naked young boys, apparently under the age of 16 years, and they seized the computer hard drive for later analysis, although they found no relevant material on it. The possession of the downloaded pornography comprised the subject of count 3.

10 In a subsequent interview with police, the appellant admitted that the complainant used occasionally to come to his bed during the period in which the complainant was living at the flat in December 1989 and January 1990, but said that the complainant just "twigged" to the fact that the appellant was awake and would just come in of his own accord. The appellant at that stage denied allegations put to him by police that he had placed his hands on the complainant's buttocks and rubbed them in a gentle motion and that he had put his finger through the crack between the complainant's buttocks and rubbed his finger around the complainant's anus. When asked why he had committed the conduct alleged, he answered: "I don't have a reason and don't admit to it", and when asked why he had the child pornography in his possession, he said that it was for personal use. At a later stage he added in effect that it enabled him to indulge his fantasies in a harmless fashion and thereby avoid the temptation of re-offending with little boys.

11 In the judge's sentencing remarks, his Honour described the indecent assaults as unpardonable and as the sort of abuse of children which the courts are obliged to denounce as best they can by the imposition of stern sentences. His Honour also noted that the appellant had been before the court in July 1996 in relation to not dissimilar matters, albeit that they had occurred prior to the conduct the subject of the instant offences. The judge said, however, that it was necessary to balance against those considerations the fact that the instant offences had occurred a long time ago and that there was no suggestion of any further offending of that type, and that the appellant had had a relatively distinguished career, first as a classical musician and later as a boys' school music master. The judge noted too that the appellant had pleaded guilty to the offences, thus saving the community the costs of a trial, and was therefore entitled to a sentencing discount.

12 His Honour thereafter referred to submissions made on behalf of the appellant as to the appellant's state of ill-health. According to a report from the Chadstone Road Clinic, which was before his Honour and which his Honour appears to have accepted, the appellant is an insulin-dependent diabetic who requires insulin injections four times a day. He has alcohol-related cirrhosis of the liver and peripheral neuropathy, and he has had a trans metatarsal amputation of his right foot with resulting complications necessitating frequent specialised foot care. The complications of his diabetes include retinopathy, ulceration of his feet requiring podiatry and specialised dressing three times per week, and he is in constant danger of hypoglycaemic attacks.

13 The judge next stated that he considered the law to be that medical conditions have to be considered on a case-by-case basis and that the issue in this case was whether or not the appellant's condition was such that it would make the imposition of a prison sentence a cruel and inhumane punishment. In turn his Honour resolved that issue on the basis that, whilst he was not unmindful of the difficulties which the appellant would face in gaol, the court was not to be deflected from imposing an appropriate penalty.

14 The judge further paid attention to the question of delay. His Honour noted that the offending conduct was, if not detected, then to some extent suspected in 1990, and that there was a possibility that the appellant had been spoken to by police about the matter some considerable time ago, and yet it was only now that the appellant was being dealt with. The judge also noted the lengthy delay between the time of complaint in July 2002 and the police interrogation of the appellant in May 2003 and the committal hearing in February 2005. The judge said that he considered that the period of delay may have assuaged any fear the appellant had had that he would be proceeded against. In the result, the judge said, he proposed to moderate the penalty to be imposed in respect of the counts of indecent assault by ordering that the sentences be served concurrently with the sentence to be imposed on the count of possession of child pornography, despite that the indecent assaults and the possession of pornography were discrete offences committed at different times.

15 Finally, on the count of possession of child pornography, the judge noted that although the pornography had not been disseminated, the very fact of its downloading tended to contribute to the market for such material, and that in conformity with current sentencing practices it was appropriate to impose a term of imprisonment to be served immediately.

16 The appellant advances six grounds of appeal against the sentences imposed, namely:

1. That the judge erred by failing to place sufficient or any weight upon the appellant's state of ill-health.

2. That the judge misdirected himself as to the test to be applied if ill-health is to be taken into account as a mitigatory consideration when sentencing an offender.

3. That the judge erred by failing to place any or sufficient weight upon the fact of delay.

4. That the judge erred by finding the appellant to be a "serious sexual offender" on count 3.

5. That the judge erred by sentencing the appellant as a "serious sexual offender" on count 3.

6. That the individual sentences and total effective sentence were manifestly excessive.

17 In argument before us, counsel for the appellant dealt with the grounds in a different order, and it is convenient to deal with them substantially in the order which he adopted.

18 In his sentencing remarks, the judge noted that because the appellant had twice before been convicted of sexual offences he fell to be sentenced as a serious sexual offender on conviction on count 1, but that his Honour did not consider that there was occasion to impose cumulative sentences nor to impose a sentence disproportionate to the offending to achieve the aim of the legislation. Those observations reflected submissions made by the prosecutor on the plea and accepted by defence counsel at that time, that the appellant fell to be sentenced as a serious sexual offender in relation to counts 1 and 2. The appellant plainly could not be sentenced as a serious sexual offender on count 3, because the charge of possession of child pornography is not an offence listed in Clause 1 of Schedule 1 to the Sentencing Act 1991 and therefore not a "sexual offence" within the meaning of s.6B of the Act.

19 Under cover of ground 5, it is now submitted for the appellant that, because the Return of Prisoners indent states that "the prisoner is sentenced as a serious sexual offender on all counts on this presentment", rather than upon counts 1 and 2, the judge committed a specific sentencing error which vitiates the sentence and reopens the sentencing discretion.

20 Despite the Crown's acceptance of that proposition, I reject it. In my judgment, the entry on the Return of Prisoners indent is a case of falsa demonstratio non nocet cum de corpore constat, and I have little doubt that the judge will wish to correct the return, to accord with the sentence that he passed, as soon as the error in the return is drawn to his Honour's attention.

Ground 4: Finding the appellant was a serious sexual offender.

21 Under cover of ground 4, counsel for the appellant contends that the judge was also in error in accepting a submission put on behalf of the Crown, and accepted by defence counsel at the plea hearing, that the appellant fell to be sentenced as a serious sexual offender in respect of counts 1 and 2.

22 The argument is that, although the appellant had twice before been convicted of a sexual offence as defined in s.6B, and thus literally came within the definition of serious sexual offender as it applies in s.6C(1)(b) and (c), the latter provisions should be construed as confined to convictions for sexual offences committed after the date of the offences in respect of which the appellant stood to be sentenced. In turn that proposition was based upon the common law precept that an offender is not to be exposed to an increase in penalty as if for a subsequent offence unless the offence for which the offender is being sentenced was committed after being punished for the earlier offence. Counsel for the appellant contends that it is a cardinal principle of statutory construction that a statutory provision is not to be interpreted as abrogating fundamental rights, including, it is said, the precept that an offender is not to be exposed to an increase in penalty as if for a subsequent offence unless the offence for which the offender stands to be sentenced was committed after that offence, unless the statute clearly manifests an unmistakable and unambiguous intention to do so; and, in his submission, ss.6C(1)(b) and (c) do not do so.

23 In my opinion, the argument should be rejected. In R. v. Cowburn[1] this Court held that the predecessor to s.6C(1)(a) abrogated the principle that a prior conviction is not to be treated as an aggravating circumstance unless it is truly prior to the conviction in respect of which the offender stands to be sentenced. It appears to me that the reasoning followed by the Court in that case applies mutatis mutandis just as plainly to ss.6c(1)(b) and (c). It is true, as counsel for the appellant submitted, that the reasoning in Cowburn proceeds by reference to a slightly different common law principle to that upon which the appellant relies. As counsel for the appellant pointed out, the Court in Cowburn was focused on the common law notion that a conviction is not to be treated as an aggravating circumstance unless already entered, whereas the precept upon which the appellant relies relates to the time of offending. I am, however, not persuaded that that makes any difference. Despite the ingenuity of counsel's submissions, and the undoubted rigour and research by which they were backed, it appears to me that ss.6C(1)(b) and (c), like s.6C(1)(a), do manifest an unmistakable and unambiguous intention to apply to prior convictions for sexual offences whensoever committed. If they did not, the section would have the remarkable consequence that s.6C(1)(a) applies to offences whenever committed but ss.6C(1)(b) and 6C(1)(c) apply only to offences committed after the subject offence. That possibility invokes consideration of two further common law precepts of statutory construction. The first, which is stated in the judgment of Gibbs, J. in Beckwith v. The Queen[2], that the rule formerly accepted that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute, the ordinary rules of construction must ordinarily be applied. The second, which comes from the seminal joint judgment of Mason and Wilson, JJ. in Cooperbrooks Wollongong v. Federal Commissioner of Taxation[3] is that the fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. When one views ss.6C(1)(b) and (1)(c) as part of the whole of which s.6C(1)(a) is a part, I am left in no doubt that they, like the latter section, are intended to apply to offences in respect of which convictions are entered whensoever committed.

Ground 2: The test to be applied to ill health.

24 Counsel for the appellant contended that the judge had erred by stating that the test to be applied in assessing the effect upon sentence of a prisoner's ill health as one of avoiding cruel and inhumane punishment. It was submitted that the proper test is as enunciated by King, C.J. in R. v. Smith[4] and recently referred to with approval by Callaway, J.A. in R. v. Boxtel[5], namely that:

" ... Generally speaking ill health will be a factor tending to mitigate punishment only where it appears that imprisonment will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." (Emphasis added).

It followed, it was submitted, that the judge in defining the test in terms of cruel and inhumane punishment had either set the bar too high or, in effect, reversed the test, from one of whether the appellant's ill health would make the burden of imprisonment greater, to one of whether the imprisonment would make the appellant's ill health greater.

25 I accept that submission. The relevance to be accorded to prisoner ill health in the sentencing synthesis is as stated in Smith and Boxtel and, according to the sentencing remarks, the judge reasoned on a different basis so as, in effect, to exclude ill health as a sentencing consideration. As indeed was conceded on behalf of the Crown, the error is such as to vitiate the exercise of the sentencing discretion.

26 In deference, however, to the judge, and despite the undoubted rectitude of the test in Smith and Boxtel, it should be acknowledged that there is a large measure of value judgment in any decision as to whether the ill health of an offender would make the burden of imprisonment so much greater than for others that a shorter period of imprisonment is warranted. Probably, there is even more room for divergence of opinion as to whether there is a serious risk of imprisonment having a gravely adverse effect on an offender's health. The test in Smith and Boxtel no doubt sets the parameters of the debate. But, in my respectful opinion, it avails no one to pretend that decisions on the burden of ill health are susceptible to scientific precision. What does need to be borne in mind is that the process upon which the judge was engaged was one of intuitive synthesis, which is to say a process of balancing competing sentencing considerations in order to produce a sentence as appropriate to the offender as to the offence, and, if I may say so with respect to his Honour, a description of that process in terms redolent of the third great charter of English liberty[6] is not necessarily that far wide of the mark.

27 Be that as it may, it falls now to re-sentence the appellant. In his plea, counsel for the appellant submitted that the judge below had given too little weight to the burden of the appellant's ill health, and thus produced a sentence which was manifestly excessive. What is more, he urged, while the appellant doubtless falls to be re-sentenced, as it were, as at the day of the original sentence, developments since the appellant's incarceration on 20 June 2005 bear out that the effects of imprisonment upon the appellant are particularly onerous. By reason of his medical condition, he has suffered from several infections since he was gaoled, and he has been in and out of prison hospital, and on occasion has had to be admitted to a public hospital for treatment. It is extremely difficult for him to shower, which in prison he is required to do each day, and after showering he must wait up to two hours before receiving the medical attention he needs to have his feet re-dressed. He has access to some podiatric services, but they are limited and irregular, and his condition is worsening as a consequence. He can apparently only walk with the aid of a walking frame, and in the mainstream prison he has difficulty in obtaining insulin supplies to control his diabetes and in obtaining antibiotics necessary for the control of infection.

28 As to the offences themselves, counsel submitted that they should be seen as being towards the lower end of the relevant scale of seriousness. The appellant too, he said, had shown genuine remorse. He had pleaded guilty at an early stage and he had not re-offended for a very long period of time, except for the possession of the child pornography.

29 Counsel for the appellant submitted too that the appellant had already suffered considerably, for, apart from his perilous state of health, he lost his livelihood when convicted of offences in 1996, and he has since used up all his savings. He is now dependent upon a social security pension and is forced to, or does live alone, away from children. Counsel submitted that a term of immediate imprisonment is unlikely to assist with rehabilitation, indeed, perhaps the contrary.

30 Counsel acknowledged the principles which have been held to apply to the sentencing of offenders for the possession of child pornography. But he urged the view that the appellant's offending in that regard should be seen as the conduct of, in effect, an addict who offends so as to avoid the temptation of engaging in graver crimes, and not of one who trafficks for profit. Counsel for the appellant also stressed the long delay since offending and sentencing, which it would seem was in no way the fault of the appellant, and his age, and he urged that he should not be seen as any longer a risk to the community. He submitted accordingly that at least some part of any sentence of imprisonment to be imposed should be suspended.

31 In my opinion the judge below was correct when he described the two offences of indecent assault as unpardonable offences. They were committed against a vulnerable little boy at a very difficult time in his life, when he was seeking platonic affection and support. The appellant took despicable advantage of his weakness and his conduct in my view warrants denunciation of a high order and a sentence which reflects the continuing need for general deterrence of offending of that kind. I am equally unmoved by the idea that the offence of possessing child pornography is somehow pardonable on the basis of the avoidance of a greater evil. That offence too warrants a gaol sentence, for the reasons expressed by the sentencing judge, which with respect I adopt. I would accordingly re-sentence the appellant on each of counts 1 and 2 to six months' imprisonment and on count 3 to six months' imprisonment, making, as before, for a total effective sentence of six months' imprisonment.

32 But, in light of the serious ill health of the appellant and what I am persuaded is undoubtedly the substantially greater burden of imprisonment upon him because of his ill health, I am persuaded that two months of the sentence imposed on each count should be suspended.

33 I agree. In deference to the well considered argument of Mr Boyce on the question whether the appellant should be sentenced on counts 1 and 2 as a serious sexual offender, I consider that, for the reasons given by Nettle, J.A., on a plain reading of s.6C(1)(b) and (c) of the Sentencing Act 1991, that provision is concerned with conviction whenever that may occur.

34 I agree with the orders proposed by Nettle, J.A. and I agree with the reasons he has given for those orders. I also agree with the remarks of Chernov, J.A.

CHERNOV, J.A.:

35 Mr Smart, you have no doubt heard that part of your sentence will be suspended. I am obliged by the legislation to inform you that the reason for the suspension is to enable you to continue with your rehabilitative progress, and also to tell you that if you breach the law such that you will be convicted, the great probability is that you will be required to serve the balance of your sentence. Do you understand that?

APPELLANT: I understand.

1. The appeal against sentence imposed on the appellant by the County Court on 20 June 2005 is allowed.

2. The sentence imposed below is set aside.

3. The appellant is re-sentenced on each of counts 1, 2 and 3 to six months' imprisonment, making for a total effective sentence of six months' imprisonment.

4. Two months of the sentence imposed in respect of each count is suspended for a period of 12 months.

5. The Court declares that in respect of the offences that are the subject of counts 1 and 2 the appellant was re-sentenced as a serious offender, more particularly, a serious sexual offender, for the purposes of the Sentencing Act 1991 and directs that this declaration be entered in the records of the Court.

6. The Court declares that the period to be reckoned as already served under the sentence is 81 days and it is ordered that the fact of this declaration and its details be entered in the records of the Court.

The Court also notes that the appellant has been sentenced on counts 1 and 2 as a serious sexual offender but considers that, notwithstanding this, a higher sentence than would usually be the case is not warranted, as is prescribed by the legislation.

[1] (1994) 74 A.Crim.R. 385 at 388-393.

[2] [1976] HCA 55; (1976) 135 C.L.R. 569 at 576.

[3] [1981] HCA 26; (1981) 147 C.L.R. 297 at 320.

[4] (1987) 44 S.A.S.R. 587 at 589.

[5] [2005] VSCA 175 at [29]- [33].

[6] Bill of Rights. 1 Will. and Mar. Sess 2, c.2 (1689).