R v Wisbey

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60504/00 WOOD CJ AT CL GROVE J

FRIDAY 17TH OCTOBER 2001 TONY WISBEY V REGINA (NSW)

Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence imposed upon him by Judge Sides QC, on 20 July 2000 following his pleas of guilty to a series of offences. They may be briefly noted. Count upon indictment 2 This involved an offence of sexual intercourse with a child aged between ten and sixteen years: (s 66C (1) of the Crimes Act 1900, an offence for which the maximum available sentence is imprisonment for eight years). In relation to this count an offence of aggravated indecent assault was also taken into account. 3 The offence the subject of the indictment occurred in May 1997 and involved a thirteen year old boy who had been staying with the applicant. It occurred when the applicant sucked the boy's penis while he was asleep in his bed, causing him to awake. He had been on bail for an earlier sexual assault at the time of its commission. 4 The offence on the form 1 occurred over the Easter weekend in 1998. On this occasion, again during the night, the applicant touched the same boy in the area of his genitals. 5 When this matter came before his Honour on 26 November 1999, it was stood over by way of a Griffiths remand until 26 May 2000, to enable the applicant to develop a co-operative relationship with a counsellor in order that he might address the disability and the personal problems which I will later mention, and to prove himself to the Court. He was required, as a condition of his bail, to accept the reasonable directions of the Probation and Parole Service in relation to counselling and therapy. 6 His Honour took this course notwithstanding the fact that the matter had previously been adjourned for six months for a similar purpose. His Honour did, however, make it clear to the applicant that if he did not co-operate and show signs of progress, his bail would be revoked and he could expect to receive a gaol sentence. 7 When the matter came back before his Honour on 29 May 2000 it became apparent that the applicant had not co-operated in relation to counselling and his bail was then rescinded.

Section 51A Document 8 This encompassed the following counts: Count 1 - Aggravated sexual intercourse without consent, the circumstance of aggravation relating to the fact that the victim was under the age of sixteen years, (s 61J Crimes Act) an offence for which the maximum available penalty was imprisonment for twenty years); Count 2 - Same offence as that involved in Count 1; Count 3 - Same offence as that involved in Count 1. 9 These matters came before his Honour on 20 July 2000, following pleas of guilty entered in the Queanbeyan Local Court earlier that day. As a consequence, they were dealt with at the same time as the offence on the indictment, thereby allowing the applicant to be sentenced upon a totality basis. 10 Counts 1 and 2 involved another thirteen year old boy and occurred in April 2000 at the applicant's home. Each involved acts of oral intercourse. The offence involved in Count 3 occurred between January and May 1999. The victim, on this occasion, was an eight year old boy who similarly was subjected to an act of oral intercourse. 11 These three offences occurred while the applicant was on bail for the offence which was included in the indictment, that being an offence to which he had pleaded guilty on 6 August 1999. Additionally, the year 2000 offences were committed during the period of the Griffiths remand.

The sentences 12 The sentences passed by his Honour were as follows: (a) Offence on indictment, (taking into account the form 1 matter) - fixed term of eighteen months to commence on 19 May 2000 and to expire on 18 November 2001; 13 (b) Counts 1 to 3 on the s 51A document, four years' imprisonment on each count to be served concurrently with each other but cumulatively upon the fixed term for the offence on the indictment, commencing accordingly on 19 November 2001 and expiring on 18 November 2005. A non-parole period of two years was fixed for these offences commencing on 19 November 2001 and expiring on 18 November 2003.

Subjective circumstances 14 In sentencing the applicant his Honour took into account the disability with which he had been born in August 1965 as a consequence of his mother having contracted Rubella during her pregnancy. This had left him with a condition of deafness and deficient literacy abilities, associated with the fact that, while he had been taught to lip-read, he had never learned sign language. 15 His Honour accepted that as a consequence he had not been able to form appropriate sexual and social relationships, particularly within the isolated community of Araluen where he lived. He was found to be emotionally and socially very immature, and to be more comfortable in the company of the young boys with whom he has mainly associated, and who shared his interest in trail bikes, model aeroplanes, computers and similar activities. 16 Additionally, it was established that he suffered from Crohn's Disease, a condition involving inflammation of the bowel which had necessitated a number of operations including an ileostomy in 1996. Although not diagnosed as suffering from any form of psychiatric illness, he had from time to time engaged in suicidal gestures and threats leading to admission to a psychiatric hospital on one occasion. 17 He was aged thirty-five years when he appeared for sentence. He had been educated to the age of fourteen years, was able to read and write and had considerable computer, electronic and mechanical aptitudes, particularly in relation to motor mechanics. He was in receipt of a disability pension which he supplemented by seasonal fruit picking and by the sale of vegetables which he grew himself. He was somewhat isolated from his parents although he maintained limited contact with them. 18 The material before his Honour left him satisfied that while his grandmother and other members of the local community had endeavoured to keep an eye on the applicant, and to ensure that he avoided the company of young boys, they had not been particularly successful in this regard. 19 Further, the material left his Honour satisfied that he had in the past declined to take responsibility for his offending, and had refused to move to Queanbeyan where he would have had access to appropriate services. However, his presence in such a larger community, it was recognised, might have increased his risk of re-offending. 20 The applicant's disabilities, his Honour recognised, meant that he would be "An extraordinarily vulnerable individual" within the prison system. It was for this reason that he had been held on strict protection since being taken into custody on 19 May 2000. 21 It was the case that he had a prior record of dishonesty, and of sexual offences involving young boys, which had been dealt with by recognisance, bonds and community service orders. One such bond was current at the time of the offence on the indictment, while a recognisance for an offence of sexual assault was current at the time of the offence in the form 1. 22 The further material placed before his Honour in July 2000 left him with the impression that there had been some progress and hope for the future, so far as the applicant had established a degree of rapport with a psychologist. On the other hand, it was the fact that two of the offences included in the s 51A document had occurred during this period of counselling. Furthermore, the pre-sentence report expressed continuing concerns of a serious kind which tended to cast a significant doubt upon the extent to which the applicant had developed any insight into his conduct and upon the question whether he had any favourable prospects of rehabilitation. 23 This report disclosed that in April 2000 the applicant had been barred from a refuge in Queanbeyan due to his aggressive and threatening behaviour. In May he had received fines totalling $1,600 in relation to a series of driving offences. He had also admitted to associating with boys in breach of his earlier bail conditions and he had become subject to an apprehended violence order following a complaint to the effect that he had been video taping them. 24 Ken Mayes, the unit leader of the Queanbeyan office of the Probation and Parole Service, advised that, by reason of strong local feeling, the applicant would be unable to return to Araluen. His report concluded: "In relation to sentencing options, Mr Wisbey remains unsuitable for a community service order or periodic detention. It is considered that at present Mr Wisbey cannot be effectively supervised by this Service in the community. He has no suitable accommodation and his behaviour and attitude indicate that he is an unacceptable risk in the community. Consequently, and despite Mr Wisbey's disability, a custodial sentence appears appropriate. Such a sentence may serve to impress upon Mr Wisbey the seriousness and unacceptable nature of his behaviour and could encourage him to accept responsibility for his actions.

Because of his disability, Mr Wisbey is not suitable for the sex offender programmes as they are conducted in groups. However enquiries with the Forensic Services Unit indicate that if Mr Wisbey is imprisoned, classification to the Long Bay Sex Offender Unit would be appropriate. Assessment of his communication skills would be undertaken and programmes arranged to address needs in this area. There is also a possibility that individual specialist counselling in relation to his sexual offending will be provided. A custodial sentence will also enable Mr Wisbey, with the assistance of this Service, to develop an appropriate pre-release plan. It is anticipated that such a plan could include supported/supervised accommodation, ongoing counselling and personal development opportunities. 25 His Honour found that the applicant's lack of insight and his continued offending, while on strict bail and subject to a Griffiths remand, meant that he was a danger to the community. This finding could not be seriously challenged in the light of the applicant's history which, unfortunately, places him into the category of a repeat offender with limited insight or ability to control himself. 26 In sentencing the applicant his Honour expressly took into account every circumstance that could possibly have operated in his favour commencing with the utilitarian value of his pleas of guilty. While recognising that there was no strong evidence of contrition, his Honour accepted that this could in part be attributed to his disabilities which hindered his capacity to gain insight into his criminality. As a result he considered it appropriate also to extend some leniency based on the contrition evidenced by the pleas. 27 His Honour also made it clear that because of his disabilities he was entitled to have his sentence mitigated as "He is not an appropriate individual to be made an example of". His criminality was dealt with on a totality basis. Express account was taken of the fact that his disabilities, and the fact that he would need to serve his sentence upon protection, would render his custodial sentence more burdensome than usual. 28 Special circumstances were found with regard to the need for an extended period of post-release supervision and counselling, to the fact that he would serve the sentence on probation and to the fact that there would be an accumulation of sentence.

The Appeal 29 It was the applicant's submission that the sentences imposed were excessive and in particular that, in imposing an accumulation of sentences, too much weight was given to general deterrence. Further, it was submitted that the objectives of punishment and rehabilitation could have been sufficiently dealt with by way of periodic detention or a suspended sentence. 30 In my view, the appeal is without merit. On the contrary, his Honour gave careful, compassionate and considered attention to every facet of the matter. The offences were serious. They were repetitive and they were accompanied by circumstances of aggravation so far as they occurred while the applicant was on bail or subject to a recognisance or during a period of a Griffiths remand: R v Readman (1990) 47 ACR 181. 31 Regrettably, and by reason of his disabilities and lack of insight, the applicant remains at a serious risk of re-offending notwithstanding the many attempts that counselling which have been made. His future prospects are very poor and other sentencing options have failed. 32 In my view, the approach taken by his Honour was entirely justified and the case is not one where the accumulation erroneously gave undue weight to the interest of general deterrence. On the contrary, his Honour expressly recognised that such interest was unimportant, in this case. What the accumulation did appropriately reflect was the totality of the criminality involved, in accordance with the authorities conveniently noted by Smart AJ in R v Tripodina (2001) NSW CCA 136. There clearly was a need to punish the offender, and to provide a personal deterrent for him which the sentencing options previously employed had failed to achieve. The fact of accumulation was otherwise allowed for as a special circumstance. 33 Neither periodic detention nor a suspended sentence would have been appropriate for an offender with the applicant's record, particularly for one who was appearing for sentence in relation to the number and type of offences here involved, each of which involved the utterly unacceptable sexual invasion of young boys. It is also not unimportant. in this regard that it was the assessment of the Probation and Parole Service, based on a long association with the applicant dating back to 1995, that it was unable to effectively supervise him in the community. 34 Being unpersuaded that an error of law has been shown, while I would grant leave to appeal, I would dismiss the appeal. 35 However, I would wish to add that it is important for the Corrections System to pay proper regard to the special needs of this applicant, concerning both his communication difficulties and his feeding problems relating to the ileostomy. It is their duty to ensure that those medical needs are addressed and not ignored as his solicitor suggested from the Bar table has been the case. It also seems to me appropriate that at some stage, during his period of incarceration, attempts should be made to provide one on one counselling, directed towards rehabilitation in relation to the kind of offending behaviour which brought him before the Court. 36 GROVE J: I agree with the judgment of Justice Wood and the orders which he proposed. I associate myself with the final remarks concerning the treatment of the applicant while in custody. 37 WOOD CJ at CL: The order of the Court will, therefore, be as I proposed. A copy of these remarks should be provided to the Corrective Service. **********

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