Regina v BOYS [1999] NSWCCA 11 | Case summary

1 SPIGELMAN CJ: Peter Gerard Boys appeals against the severity of the sentence imposed upon him by Acting Judge Nader, sitting in the District Court in Newcastle. His Honour sentenced the appellant to a period of ten years imprisonment, comprising a minimum term of seven and a half years and an additional term of two and a half years. This was allocated to the various charges which I will hereafter describe. 2 The appellant pleaded guilty to eight separate crimes. Those crimes were sexual offences against five girls, each of whom had been a pupil of the appellant. Two separate offences were charged in the case of each of three girls, and one offence for two other girls. 3 The number of different victims, the circumstances in which the crimes occurred and the period of time over which they occurred are such as to establish a pattern of conduct for which his Honour concluded a period of imprisonment of ten years was appropriate. His Honour indicated that the determination of individual sentences for the different charges was made after assessing the overall criminality of the whole of the conduct, in order to arrive at the result of ten years with a minimum term of seven and a half years. 4 No complaint is made of the way his Honour allocated the sentences to the individual offences; the appeal is directed to the total period and the relationship between the minimum and additional terms. 5 This Court has heard this appeal and is delivering the judgment in the City of Newcastle. The crimes all occurred within this region where the appellant taught and directed the Marching Koalas Band, which was comprised of pupils from a number of schools. The evidence makes it plain that Boys was a manipulative sexual predator who abused his position of trust, exploited his power and subjected the girls to emotional blackmail. His conduct, together with the adverse effects on the victims and their families, was plainly such as to warrant a significant sentence of imprisonment. 6 On appeal, the function of this Court is to review the sentencing process undertaken by Acting Judge Nader in the District Court and to consider whether it was affected by error, either of fact or of law. Our task is to determine whether the appellant received what he deserved; that is to say, measured punishment, administered justly, according to law. 7 Of the eight crimes for which he was sentenced, seven were contraventions of s73 of the Crimes Act (NSW) 1900 and one was a contravention of s76 of the Crimes Act. The offence under s76 is concerned with indecent assault. Section 73 is a special offence, dealing with school teachers and fathers or stepfathers. 8 In the period up to 23 March 1986, the period which is relevant to four of the crimes, s73 read as follows: "Whosoever, being a school master or other teacher or a father or stepfather, unlawfully and carnally knows any girl of or above the age of ten years and under the age of seventeen years, being his pupil or daughter or stepdaughter, shall be liable to penal servitude for fourteen years." 9 This provision was amended with effect from 23 March 1986, when a new s73 was confined to girls of the age of sixteen years, and also the maximum penalty was reduced to a period of eight years. At the same time s66C(2)(b) was introduced into the Act, which applied to the situation with girls between the ages of ten and sixteen years, formerly covered by s73. Under s66C(2)(b) the maximum penalty was then ten years. 10 It was common ground before us that, by reason of the application of s55 of the Interpretation Act (NSW) 1987, the appropriate maximum period for two of the offences under s73 was ten years, and that is because those offences were committed against girls at a time when they had not yet reached the age of sixteen years. In the other five s73 offences the appropriate maximum was eight years, and that was because on each of those occasions the victims were above the age of sixteen years. 11 It is plain from his Honour's allocation of sentences to the ten separate charges, setting aside for the moment the s76 count, that what his Honour did was to impose a sentence in each case of half the maximum; that is to say, for what I will refer to as the first charge which involved a girl under the age of sixteen years, he imposed a sentence of five years, and for what I will refer to as the last charge, being count 2 on the indictment, he also imposed a sentence of five years, again in the case of the girl not having then reached sixteen years. 12 It was this last sentence which he divided into a minimum and an additional term of two and a half years each, to reach the ultimate effect which he sought to attain, of a minimum term of seven and a half years and an additional term of two and a half years. 13 The first of the eight crimes to which the appellant pleaded guilty involved a girl in his fourth form class. The occasion was a barbecue and sleep-over for members of the band at the appellant's own home. The girl was a virgin and not yet sixteen years of age. In her evidence she revealed the degree of abuse of authority involved in the offence when she said: "I was really excited about being with him, because he was the king, he was the main number one man." 14 She also said: "He was like a god to me and the other kids." 15 Furthermore, she said: "During class he would single me out and just treat me like dirt. The same would happen during band. I would always be crying, I was never stable, I didn't know what he expected from me, I didn't know where I stood. I was really confused. He isolated me." 16 The second crime which he committed with the same girl occurred while the girl was in his fifth and sixth forms, including occasions on which the appellant attended at her house to tutor her for history, and on other occasions in which he took her late in the evening to the music staff room at Broadmeadow High School for the purposes of sexual intercourse. 17 The second girl was his pupil at Broadmeadow High School. The first of the two crimes of which he was convicted in her case occurred at a camp with the Broadmeadow High School Band. Shortly thereafter, over the Christmas holiday period further acts of intercourse occurred at the appellant's home. 18 The fourth crime to which he pleaded guilty with respect to the second pupil occurred over the course of the next year, when there were a number of acts of intercourse in rooms near the music room at Broadmeadow High School. This girl said that the appellant had manipulated her. 19 The third pupil against whom the appellant committed the offences of which he has been convicted attended Morisset High School and then Newcastle High School, during which period she was a member of the Marching Squad with the Marching Koalas. She was sixteen years old in August 1987 when he took her to a friend's flat at Lambton for the purposes of sexual intercourse. 20 The second crime for which he had been convicted in relation to this girl occurred in the next month, September 1987, in the music staff room after band practice. This girl testified to the following effect: "I think the reason I did have sex with Peter Boys was that he was our teacher. He had so much control over all the members, he told us what to do and when to do it." 21 The fourth girl against whom he committed the crime of indecent assault was his music student at a time that he taught at Cessnock High School. The girl was only fourteen when he enticed her to masturbate him on the return trip from a musical excursion attended by music students of Cessnock High School. This girl explained: "The way Peter controlled me was to make me feel that I had done something wrong, and I would do anything for him to regain his attention. I would do anything to please him and he would use this knowledge often during our relationship...there was always a sense of control in his behaviour towards me. Looking back, it was frightening because of the emotional intensity created by his manipulation, which occurred daily." 22 The fifth girl against whom he committed a crime of which he has been convicted was a student at Broadmeadow High School and a member of the Marching Koalas Band. The appellant committed sexual intercourse with the girl after inviting her to his own home during the school holidays in January 1986. This young woman gave detailed testimony about the adverse consequences for her future life which were caused by this incident of sexual abuse. It was an incident in which no question of consent arose. She gave a description of really not knowing what was going on. The consequences for her in her future life were confirmed in the report of the clinical psychologist which was tendered before the trial judge. The girl said: "I feel that Peter Boys abused his authority as a teacher to take advantage of me." 23 In his reasons for judgment delivered on 17 April 1998, Acting Judge Nader set out the details of the offences, the course of conduct and the evidence of manipulative conduct on the part of the appellant. His Honour gave particular weight, and properly so, to the fact that the appellant was in a position of trust. His Honour emphasised that the appellant as a teacher had a duty on behalf of the families of the girls, and also the community as a whole, both to protect them and to guide them. 24 The degree of dereliction involved in the course of conduct by the appellant was correctly taken into account by his Honour. His Honour also correctly gave particular weight to the effect of the position of power and authority that the appellant had over the girls, on their immature minds. 25 I agree with his Honour that the course of conduct revealed by the eight offences constituted a gross dereliction of duty by a person in a position of trust. The abuse of his position and power and the emotional blackmail that he so demonstrated was such that only a substantial term of imprisonment was appropriate in this case. 26 Evidence was tendered below, including a number of character references from other members of the community. His contribution through his work as a music teacher and musician was emphasised in written statements and in oral evidence before the Court. The assertion is made in written submissions on behalf of the appellant that "there is nothing in the remarks on sentence to indicate that his Honour had any serious regard to any of it". 27 This is wrong. His Honour expressly states in his judgment: "A number of matters have been put on his behalf very lucidly and very concisely and shortly, but with considerable force, that stand in his favour. I need not repeat them." 28 It is not necessary for a trial judge to recite evidence of this character in detail. The proceedings on sentence and the oral evidence occurred on 17 April 1998. His Honour delivered his judgment on the same day. Plainly, all of these matters were in his mind. His Honour's general reference to them was adequate in the circumstances. 29 The written submissions also made reference to the early plea of guilty which is entitled to weight. His Honour made express reference to that fact, indicating that he took into account the expense to the community saved by the avoiding of a lengthy trial and also the avoidance of the aggravation of the impact on the victims if they had had to give evidence at a trial and been cross-examined. All of this was avoided by the plea of guilty. 30 His Honour also took into account the degree of contrition and remorse and also the aggravated circumstances of incarceration which will occur by reason of the need to serve the sentence in protective custody. His Honour also took account of the effect on the appellant by reason of the destruction of his career and the break-up of his family. 31 All of the matters referred to in the written submissions, and almost all of those referred to in oral submissions, were referred to expressly or implicitly in his Honour's judgment. 32 The basic submission for the appellant is that, looking at the sentence as a whole, the trial judge failed to properly assess the objective criminality of the offence. The principal thrust of this submission was that by reason of the length of the sentence it appears that the cumulative effect of the matters to which I have referred, and some other matters, were not given weight by his Honour. 33 The submissions on behalf of the appellant focused on a number of propositions. First, that offences by teachers are less serious than by fathers. It is by no means clear to me that that is always so. Also, that offences against girls over sixteen, as all but two of the complainants were, in respect to the s 73 charges, should be regarded as less serious. There is no doubt that the age of the girls is a relevant consideration for sentencing. In this case, that is taken into account by the concession made by the Crown that the sentences were in some cases to be treated as those of ten years, and in other cases the maximum was to be eight years. 34 It was also submitted that offences without threats or overt deception are less serious. That may be the case, although in many cases involving threats of violent conduct there may be other charges in respect of which more serious penalties could be imposed. 35 It was also submitted that offences where a relationship continues into adulthood should be treated more leniently. It is by no means clear to me that that is always the case, but I accept that that is a relevant consideration. 36 The other additional facts are the facts of an early plea of guilty and the serving of time in protective custody, which I have already made mention of. 37 Also, considerable weight was placed on the proposition that the offences had ceased approximately ten years before the day the sentencing exercise was undertaken. Reliance was placed upon the case of R v Todd (1982) 2 NSWLR 517 at 519-520, approved by the High Court in Mill v R (1988) 166 CLR 59 at 64 and 66. I accept that this is a material consideration for the imposition of sentences in this case. 38 I have noted above that two of the offences occurred in circumstances in which the appropriate maximum penalty was ten years, and that in those cases, as in the other s73 cases, his Honour imposed a maximum of half the maximum, being five years. These were the two offences which his Honour decided to make cumulative upon each other. In one case he imposed a fixed term of five years, and in the other case he divided the five year period into a two and a half year minimum term and a two and a half year additional term. 39 There has been no submission that it was not appropriate for his Honour to make these offences cumulative. His Honour's reasoning indicated clearly that he took into account the principle of totality. It is to the effect of his Honour's reasoning in that respect to which the submissions were primarily directed, namely, that considering all of the circumstances and notwithstanding the fact that his Honour had imposed individual sentences of half the maximum - in circumstances where there is no criticism of his decision to make two of the offences cumulative - nevertheless the overall sentence was disproportionate to the objective criminality involved. 40 In my view there is nothing in the analysis presented to this Court to justify interference with his Honour's exercise of discretion. His Honour indicated with some care why he had come to the position of imposing a total sentence of ten years, consisting of a minimum of seven and a half years and an additional term of two and a half years. His Honour thus, on the cumulative sentences, took into account the principle of totality. 41 In my opinion, his Honour was entitled within the exercise of his discretion to come to the conclusion that all of the circumstances in this case justified a sentence of the total amount which he imposed. I have identified earlier the important aspects of this conduct. I have described it as the conduct of a sexual predator and one who abused his position of trust, who exploited his power and indeed preyed on the vulnerability of young women under his authority. This conduct, occurring as it did, relevantly over a period of some five years, although there was one earlier offence under s 76, involving as it did five separate girls, entirely justified the total period of imprisonment which his Honour imposed. 42 Nothing has been put which would suggest that the balance between the effective minimum term and the additional term was wrong. 43 Some reference was made in the written submissions to special circumstances. His Honour found none, and I agree that it was open to his Honour to so find. 44 In my opinion, leave should be granted and the appeal dismissed. 45 McINERNEY J: Yes, I agree with the orders proposed by the Chief Justice for the reasons he has advanced. 46 SPIGELMAN CJ: The order of the Court is, leave to appeal granted; appeal dismissed.

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Regina v BOYS

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