Regina v Lawson [2005] NSWCCA 346 | Case summary

Wednesday 14 September 2005 REGINA v BENJAMIN JOHN LAWSON Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hock DCJ in Sydney District Court on 22 November 2002. An extension of time for making the application has been granted. 2 The applicant pleaded guilty to an indictment containing eight counts. Five of these charged administering a stupefying drug, in each case, nitrous oxide commonly called laughing gas, with the intention of enabling him to commit an offence of aggravated sexual intercourse without consent. Two victims were involved who may be referred to as SB and BN. Two counts charged aggravated sexual intercourse without consent, the victim in each case being SB, who was at the time thirteen years of age. The eighth count charged aggravated indecent assault of a third victim (EC). EC was at the time aged twelve years. 3 The applicant sought that her Honour take into account on sentence pursuant to the Form 1 procedure, seven further offences. Two of these charges again alleged aggravated indecent assault in respect of which SB was the victim and two further similar charges alleged that BN was the victim. BN was aged fifteen at the time of these offences. The final three charges on the schedule alleged possessing child pornography; possessing a prohibited drug (cannabis) and hindering police in the execution of their duty. 4 The gravamen of the offences of sexual assault was summarized by the learned sentencing judge in these terms: "The offender is a paedophile who was also a youth leader at the New Life Baptist Church at Dee Why at the time of committing these offences. This position offered him the opportunity to engage in criminal conduct of very great seriousness with the teenaged boys named in the charges. He provided the boys, who were the victims of the offences with canisters and bulbs of nitrous oxide and instructed them how to use them. The nitrous oxide was provided in such large quantities that the boys were rendered unconscious and they were then sexually assaulted." 5 The evidence included an order signed by the applicant on behalf of a company which he operated arranging the delivery of four cartons containing 144 individual boxes of nitrous oxide. It might be noted that the applicant's letter to the supplier concludes with the observation: "…. I look forward to many future orders of similar nature each month with your organization." 6 An expert's certificate from Dr Ross MacPherson of Royal North Shore Hospital provided detailed information about nitrous oxide. As her Honour found, and the facts show, although the drug is dose dependent, that administered by the applicant was such as to result in impaired consciousness. 7 The seriousness of the applicant's offences is self evident in her Honour's remarks on sentence, the accuracy of which is not challenged. She recounted: "….. in August 2000 the offender collected SB, aged thirteen from his home to take him to a social occasion at another youth leader's home. Instead of going directly there the offender took SB to his flat and there SB began to play computer games. The offender then provided him with a cream canister, loaded it with two or three nitrous oxide bulbs and showed SB how to use it. SB told the police investigators that the nitrous oxide caused him to 'pass out'. On coming around SB found that his board shorts were pulled down, the offender was rubbing his penis and he then performed fellatio on him. SB observed the offender removed his own pants and masturbated during this incident. The offender later took SB to the social function, but he instructed him not to tell anyone what had occurred, as if he did, the offender would get into trouble. (Other counts) relate to an occasion in April 2001 when the offender provided SB with nitrous oxide with the intention of indecently assaulting him. BN was already at the offender's flat and SB observed that he was under the influence of nitrous oxide. SB again passed out, but when he came to, he saw that his own shorts had been removed and that the offender was masturbating BN's penis while the latter was unconscious. (A further count) relates to an occasion in February 2001 at a church camp when the offender, who was one of the adults in charge, offered to give EC, a twelve year old boy, a massage. He then used his knees to pin him to the bed, pulled down his pyjama pants and rubbed his genitals. (Other charges) relate to an occasion in April 2001 when the offender took SB and BN to the Manly Dam for a swim. On the way he stopped to buy boxes of nitrous oxide at Brookvale. He supplied BN and SB with a canister and bulbs to inhale. The offender then indecently assaulted BN. (Further charges) relate to an occasion on or about 23 March 2001 when the offender again provided SB with nitrous oxide, which he inhaled until he passed out and the offender then indecently assaulted him, and performed fellatio on him". 8 Her Honour noted that the offences were able to be particularized as the offender downloaded images onto his computer and the files were recovered by investigators. It is not without significance that the seventh charge on the Form 1 (hindering police) arose out of the execution of a search warrant at the applicant's residence when police located a CD rom among pages in a photo album. The applicant became agitated and snatched the disk from a detective's hand and in an ensuing struggle he broke the disk with his bare hands and commenced stomping on it. The fifth charge on the Form 1 (possessing child pornography) focussed upon an extensive amount of deleted files which were able to be recovered by investigators. An examination of the files revealed the majority to be homosexual pornography displaying images of young males either naked or engaging in sexual acts. 9 It might be added that the recovered files included a moving video depiction showing SB naked from the waist down, lying down and holding a canister (of the type to convey nitrous oxide) to his mouth. The camera zooms to SB's genitalia and the applicant's hand is seen to masturbate the penis and a sound track conveys his voice saying "good". 10 It is to be noted that the prescribed maximum penalty for unlawfully causing a person to take a stupefying drug is imprisonment for twenty five years and the prescribed maximum penalty for offences of aggravated sexual intercourse without consent upon persons under the age of sixteen years is imprisonment for twenty years. 11 On the two counts in the indictment charging aggravated sexual intercourse without consent in which SB was the victim her Honour imposed a fixed term of imprisonment for six years commencing on 5 March 2005; on a count of unlawfully causing SB to take a stupefying drug and taking into account the seven matters on the Form 1 her Honour sentenced the applicant to imprisonment to ten years and six months commencing on 5 March 2005; on two further counts of causing SB to unlawfully take a stupefying drug, the applicant was sentenced to imprisonment for ten years commencing on 5 March 2005; on the count of aggravated indecent assault in which EC was the victim, the applicant was sentenced to imprisonment for a fixed term of eighteen months commencing on 5 September 2002, and on two counts of unlawfully causing BN to take a stupefying drug, the applicant was sentenced to imprisonment for ten years commencing on 5 March 2003. 12 Having regard to the partial accumulations and the setting of non parole periods, the total effective sentence was imprisonment for thirteen years with an overall non parole period of nine years and six months. 13 The first ground of appeal complains that her Honour failed to give adequate discount for the utilitarian value of the pleas of guilty and the applicant's contrition. Her Honour quantified the discount which she allowed in this regard and specified it as 15 percent. 14 The submission on behalf of the applicant is that the discount is too low. It was contended that by pleading guilty the applicant saved three children from giving evidence in court, and thus causing further damage to them. No doubt they were not required to give evidence and I see no reason to conclude that the discount given by her Honour did not accommodate this circumstance. A written submission asserted that "it was not a strong Crown case". This would seem to be somewhat inconsistent at least as to some charges with a written submission made to the trial judge, part of which was recapitulated before this Court, in which counsel had recorded: "Your Honour will see from the facts that whilst it is conceded that in some respects (it) may be a strong Crown case, there are some charges to which the prisoner has now pleaded guilty such as counts 5 and 6 that are extremely weak". 15 The Crown contends that the relevant history in this regard is as follows: "The applicant was arrested on 14 June 2001. He did not participate in a recorded interview with police, as was his right. He was committed to stand trial on 4 December 2001. The trial was set down to commence on 25 March 2002 but that date was vacated on application by the defence. The applicant entered his pleas on 19 July 2002 but raised the prospect of traversing some of them on 5 September 2002. The matter was stood over to 13 September 2002, at which time the applicant indicated that he would in fact adhere to his pleas". 16 Although it was contended in this Court that her Honour may have been persuaded to find that the pleas of guilty were entered at the first reasonable opportunity, this contrasts with an acknowledgement at first instance on 25 October 2002 that the pleas were not at the earliest opportunity. 17 Attention is drawn to the circumstance that some counts were prosecuted by way of ex officio addition to the indictment and that the Director of Public Prosecutions was asked to consider a No Bill application in respect of some charges. 18 It may be accepted that the evidence in support of some counts was stronger than that in relation to others, and that the applicant's pleas of guilty had significant utilitarian value. The guideline judgment in R v Thomson and Houlton 2000 49 NSWLR 383 contemplates an assessment in a range of 10 to 25 percent. No miscarriage of her Honour's discretion is shown in her judgment that 15 percent was appropriate to the circumstances of this case. 19 Ground 2 asserts that her Honour erred in finding that there was little evidence of true remorse. The applicant points to a number of references tendered which it is contended "clearly attested to the offender's contrition". In particular, attention is drawn to a letter dated 18 July 2002 which the applicant sent to the Pastor of the New Life Baptist Church. The letter contains an apology but significantly the applicant wrote: "I have had to live this past year or so with the deepest regret that I made some poor judgments in the way in which I associated with some of the kids from the youth group and I wish that I could have remembered my place and not got so involved with them". 20 That gross understatement of the applicant's criminal activity would, to my mind, contradict the applicant's claim to have genuine remorse for what he had done. 21 The various letters of reference contain in almost every case an incantation that the author is aware of the charges which are described as "indecent assault and relating matters". Again it is difficult to perceive this articulation as indicating that the applicant is remorseful to the point of disclosing the full extent of his criminal behaviour to those from whom he sought references. It is true that to a Mr Marks, he may have made some indication of the facts and circumstances but the overall picture appears from all material. 22 Submission is made that a measure of remorse is inherent in a plea of guilty. That submission overstates the principle. A plea of guilty is capable of manifesting remorse but it is not inevitably the case. There is nothing inconsistent about a judge finding that a person who has pleaded guilty demonstrates little remorse. It is contended that the applicant's position is different where the Crown case is weak, but as I have pointed out in relation to the first ground, that was not so in relation to all counts. 23 No error in her Honour's finding is demonstrated. Indeed it is somewhat fortified by the content of a psychological pre-sentence report in which the reporters (Dr John Barron and Ms Narci Sutton) state that the applicant "denied the substance of most of the charges for which he has pleaded guilty" and has "strongly minimized his own sexual motivation". 24 It is convenient to deal with grounds 3 and 4 together. These complain that her Honour erred in giving little weight to the circumstance that the applicant had only one prior conviction and that he was not in breach of the good behaviour bond which he had received for that offence, and that she failed to give weight to the fact that this prior conviction was some twelve years old. 25 Her Honour was expressly aware of the circumstance that the applicant had only one entry on his criminal history and that this was a matter of indecent assault and that the current offences occurred well after the expiration of the bond which he received. The argument on behalf of the applicant asserts that he was entitled to favourable weight because he had not breached the bond for the earlier offence. The applicable principle is that an offender who commits a crime whilst subject to recognizance to be of good behaviour aggravates the seriousness of his or her offence, it does not become a factor of mitigation that an offender has avoided the circumstance of aggravation by not acting in breach of express conditions to be of good behaviour. There is no indication that her Honour did not adequately take into account the gap in time which had elapsed since the applicant's prior offence. She expressly noted the year of its occurrence. 26 The applicant is not shown to have been denied any leniency to which he was entitled. 27 The fifth ground contends that her Honour failed to give any discount to the applicant by reason of his offer to give assistance. The contention on behalf of the applicant is articulated in terms that he: "actually gave assistance to the police, which could have led to further charges being laid against him, but didn't. The sentencing judge did not mention this at all on her remarks on sentence, nor did she give any discount to the offender for such assistance". 28 Reference is made to cases where discounts for assistance to authorities are discussed: R v Lowe [2003] NSWCCA 313; R v Olson [2003] NSWCCA 349. The cases referred to concern offers of assistance in giving evidence against co-offenders or other offenders, of which the person seeking discount for his or her own crimes, is aware. It is notorious that people who give assistance of this nature are at particular risk in the prison system and, in some cases, outside of it. Those are important factors in assessing the discount. The applicant did not offer assistance of this nature. 29 The submission by the applicant rather refers to the sort of situation which is envisaged where a person stands for sentence for crimes of which the authorities would have been unaware but for the frank confession of the offender. That is not the applicant's case either. The authorities were well aware of the applicant's activity by reason of the courage of one of the victims in coming forward and reporting it. It is true, that the evidence in support of the large number of offences varied in its quality, but it is a misconception to regard the applicant's pleas of guilty in the circumstances of this case, as disclosing criminal conduct on his part, of which the authorities were unaware. 30 It was explained to this Court that the reference to the assistance given by the applicant was intended to relate to his attending the police station and providing material concerning what appeared in his own computer files. It is conceded that no charges emerged from this exercise. There were indications to police of the identities of people whom the applicant knew. There were, of course, also on the files pornographic depictions, which did not relate to identifiable people, which had been downloaded from the internet. That material was relevant to one of the charges taken into account on Form 1. In my view, the fifth ground is not made out. 31 The final submission is that the sentences were manifestly excessive. In this regard, as was done at first instance, reference is made to a sentence at first instance in the District Court in the case of R v Guider (20 September 1996). Whilst it is appropriate for a sentencing judge to take cognizance of established sentencing patterns, such are not derived from comparison with a single case. It is established that committing sexual offences whilst the victim has been drugged adds a significant degree of culpability to the administration of the drug intending to commit the offence: R v TA 2003 57 NSWLR 444. 32 Counsel for the applicant has extensively detailed the offences for which Guider was sentenced and contended that his situation was more serious than that of the applicant. The inappropriateness of seeking to compare with a single case might be demonstrated by a reference to a recent decision of this Court in R v Reyes [2005] NSWCCA 218 in which on a Crown appeal, offences of administering a stupefying drug for the purpose of committing sexual offence, saw sentences for those offences increased to terms of sixteen years with a non parole period of twelve years. It would not be appropriate simply to regard the applicant as comparable (or in contrast to) either Reyes or Guider. 33 In the present case the offences were premeditated and carefully planned as forcefully demonstrated by the order for the nitrous oxide which I earlier mentioned. No error has been demonstrated in her Honour's approach, her application of principle, nor in her consideration of the relevant factors concerning the applicant. In my opinion the sentences which she imposed were well within the range of the sound exercise of discretion. 34 I propose that application for leave to appeal be granted, but the appeal dismissed. 35 SIMPSON J: I agree. 36 BUDDIN J: I also agree. 37 GROVE J: The orders will therefore, be as I have proposed.

Regina v Lawson

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