Regina v Puskas

1 PRIESTLEY JA: This is a Crown appeal against four of nine sentences imposed upon the respondent, Mr J. Puskas by his Honour Judge Sides in the District Court on 1 September 2000 and 6 October 2000. The respondent had pleaded guilty to all the charges for which he was sentenced. 2 I will set out the charges in the chronological order of the commission of the offences. I will also note the sentence in each case, together with a summary of the sentencing judge's statement of the facts. 3 First offence. The first offence charged took place on 11 December 1997; the charge was of an aggravated act of indecency with a young woman, N, aged fifteen. The maximum penalty, pursuant to s 61 O(1) of the Crimes Act, was five years imprisonment. 4 The offence occurred on the back seat of a car. N lay on the back seat and the respondent lay on top of her. They were both fully clothed. They were kissing and the respondent put his tongue inside N's mouth. At the same time he was pressing his genitals on to N's genital area in a grinding type of motion so that she could feel his penis pressing hard against her pubic bone. The incident lasted about ten minutes. 5 For this offence the respondent was sentenced on 1 September 2000 to imprisonment for eighteen months. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 His Honour Judge Sides directed the respondent be released from custody forthwith conditional upon his entering a bond to be of good behaviour for eighteen months and to appear for sentence if called upon at any time for any breach occurring during that period. The bond was to be subject to a number of conditions. These included supervision by the Probation and Parole Service and that the respondent accept all reasonable directions of that Service during that supervision including directions or instructions to undertake examination, assessment, therapy or treatment. Another condition was that the respondent not seek or obtain employment in a position where he would have unsupervised access to persons under the age of sixteen. 6 Second offence. The next offence charged occurred on 1 January 1999. The charge was that the respondent supplied a prohibited drug. The maximum penalty was fifteen years imprisonment. 7 The respondent passed a marijuana cigarette around in a motor car to a number of persons including N. 8 For this offence the respondent was sentenced on 1 September 2000 to a fine of $250. 9 Third offence. The next offence charged occurred on 7 April 1999. The charge was indecent assault upon a young woman, J, then aged sixteen. The maximum penalty was five years imprisonment. 10 A sequence of hugging and kissing between the respondent and J on that day culminated in the indecent assault when the respondent, having his arms around J at the bottom of her back, pulled her towards him until she was touching him when she felt his erect penis through their clothing until, after about two or three minutes J pulled away. 11 For this offence the respondent was on 1 September 2000 fined $2,500. J had turned sixteen a little over six weeks before the offence. 12 Fourth to eighth offences. The next five charges concerned offences committed against a young woman, F, which all occurred on the same day, 10 July 1999, when she was aged fifteen years and five months. The first two offences occurred at a beach, the last three in a car near F's home. All the offences charged were aggravated indecent assault, for which the maximum penalty, pursuant to s 61M of the Crimes Act, was seven years imprisonment. The circumstance of aggravation alleged in each charge was F's age. 13 The first of the two offences at the beach was that the respondent unbuttoned F's coat and fondled her breast inside her clothing. 14 The second offence at the beach was that the respondent touched F's genital area through her underpants with his finger. 15 The first of the offences in the car was that the respondent fondled F's breast on the outside of her clothing. 16 The second offence in the car was that the respondent fondled F in the genital area. (From the charge sheet it appears that this touching was outside her clothing.) 17 The third offence in the car (and the last of the five charged against the respondent concerning F) was that the respondent undid his fly and took hold of F's hand and placed it on his erect penis and held it there for two or three minutes. 18 For the last of the five offences against F the sentencing judge imposed the same sentence as he had for the first in the series, that against N, that is, the sentence was eighteen months imprisonment with a direction for immediate release conditional upon entry into a bond in the same terms and on the same conditions as set out earlier in regard to N's case. 19 In respect of the first offence against F at the beach and the first offence against her in the car, the sentencing judge on 1 September 2000 sentenced the respondent to six months imprisonment, declined to fix a non-parole period due to the length of the sentence and pursuant to s 80 of the Crimes (Sentencing Procedure) Act 1999 referred the respondent to assessment for suitability for home detention, stayed the two sentences and adjourned the further hearing of the matter to 6 October 2000. 20 In respect of the second offence at the beach and the second offence in the car the sentencing judge on 1 September 2000 sentenced the respondent to twelve months imprisonment, fixed a non-parole period of nine months and otherwise made the same orders referring the respondent for assessment for suitability for home detention, staying the two sentences and adjourning the cases as he had in respect of the previous two offences. 21 Ninth offence. The last offence charged, in chronological order, was that between 25 September 1999 and 10 October 1999 the respondent indecently assaulted a young woman, E. Although she was aged fifteen at the time, the charge did not rely on her age to support a count of aggravated indecent assault. The maximum penalty was five years imprisonment. 22 E asked the respondent if he wanted to see her tattoo. He said yes and she showed him her tattoo which was at the base of her spine very close to her bottom. The respondent caressed the area around the tattoo for a matter of seconds before he moved away. She had not consented to being touched there. 23 The sentencing judge said he did not see this as being a serious indecent assault and on 1 September 2000 sentenced the respondent to a fine of $750. 24 When the matter came before the court on 6 October 2000 for the sentencing judge to deal with the four sentences he had imposed in respect of F but had stayed pending the report as to the suitability of the respondent for home detention he noted that in so doing he had overlooked that the respondent was ineligible for home detention in light of the nature of the offences pursuant to s 76(b) of the Crimes (Sentencing Procedure) Act 1999. He added: " In relation to those matters I had considered that periodic detention was inappropriate due to his commitments in relation to the deaf child. It seems to me the appropriate way to deal with it is to suspend the sentences that were the subject of the stay under s 80. " 25 The sentencing judge then confirmed the two six months sentences pursuant to s 12 of the Crimes (Sentencing Procedure) Act and directed that the respondent be released from custody forthwith conditional upon entering a bond to be of good behaviour for six months and to appear for sentence if called upon at any time for any breach occurring during that period. The bond was to be in the same terms and on the same conditions as that which had been directed on 1 September 2000 in respect of N. 26 He made the same orders, except for the substitution of twelve months for six months, in regard to the two offences in respect of which he had sentenced the respondent to twelve months imprisonment. 27 His Honour Judge Sides gave full reasons on 1 September 2000 for the sentences imposed for the nine offences. In respect of each of the four victims he described how the respondent came to be acquainted with them. He was a music teacher at Burwood Girls High School. Some of the victims had been pupils there. Others had been members of bands which he organised. He also gave some private tuition. There was a relationship of teacher and student between him and some but not all of the victims at the time of the offences, but in every case the victim had met him in circumstances where he was an older person in a position of some authority as against her. In each case the victim had come to see him as an older figure who could be trusted and whom to some extent they treated as a confidante. In each case the physical aspect of the relationship progressed from hugging and embracing, not in itself necessarily threatening or unpleasant, to the respondent taking matters quite beyond any acceptable behaviour, committing the offences, destroying the victims' trust in him and causing them alarm and distress. 28 The sentencing judge referred to the interviews freely given by the respondent to investigating police. Although in many ways he appears to have been very frank, the sentencing judge remarked that some of the things he had said in the interviews showed "a distinct flavour of minimising his involvement" with F, making "admissions ... of a limited nature" in relation to J, and "minimising his involvement" in regard to N. 29 Sides DCJ summarised the situation in regard to the four victims by saying that in his view the respondent " took advantage of young people who he knew as a consequence of their being or having been pupils of his who were somewhat vulnerable individuals. This is not a case of an isolated lapse. There were four victims. The indecent assaults are spasmodic over a period of almost two years from December 1997 to October 1999. " 30 The judge next said that he could not be satisfied beyond a reasonable doubt that the offences were premeditated, on the other hand they were not purely spontaneous, involving some limited planning in which the respondent took advantage of the opportunities that presented themselves by manipulating events. 31 Sides DCJ then moved on to the explanation the respondent had made to investigating police when interviewed. The general effect of the explanation was that the incidents came about because of depression and frustration. The judge thought his explanation showed only limited insight, an opinion he felt was confirmed by the limited nature of the respondent's admissions. 32 However, the respondent expressed absolute sorrow for the pain he had caused and then consulted a psychiatrist and saw a counsellor. Further, however, the judge thought that when the respondent learned that F was going to the police his immediate concern was for himself rather than the victims. He did not then voluntarily come forward. The judge concluded that though there was evidence of contrition it was not of the highest order. 33 The sentencing judge then described the respondent's childhood and family background as well as his family situation at the time of sentencing. He thought certain aspects of his family situation were significant. 34 The respondent's wife was also a music teacher. They had three children who, at the time of the sentencing were aged six, three and a half and as to the latest only some weeks old. The second child had a severe hearing loss. There was evidence before the sentencing judge from the persons, expert in the therapy needed by such children, who had had the child in their care from the time her disability was diagnosed. They all spoke of the intensity of the therapy needed to develop the child's listening, speech and language skills to a level which would enable her to enjoy a standard education and a comparatively normal life. They all stressed that the early years were extremely important to the child and that her therapy required a "whole family commitment" on a continuing basis. They all also commented on the family support given by the respondent and his wife. The respondent had been attending weekly sessions at the Shepherd Centre with the child and "was very much an integral part of her therapy programme". They all stressed the importance of the father's presence, both for the general reasons already indicated but also for the particular attention he was in fact giving to her therapy. 35 One of the expert statements was provided by Sister Patricia Bailey, Director of the Catholic Centre for Hearing Impaired Children. What she said was essentially the same as the other therapists who provided statements. I set out here the most relevant part of her statement. (I should also mention here that the child wears two hearing aids.) " Language is best learned through natural conversational interaction in familiar daily home routines such as eating, bathing and dressing. For a hearing impaired child to develop spoken language she must be immersed in language all the waking hours. Not only is this done in the home but the child needs to be taken out frequently to be exposed to different language experiences. it is extremely difficult for a sole parent with two other children, especially with one being a very young baby, to provide this level of input of language. The first six years of a child's life is the critical time for the development of spoken language. This is even more so for a child with a hearing-impairment who is being prepared for regular schooling at six years of age. The child needs to hear a male as well as a female voice so that she can match her utterances to what she hears. A male voice, being lower is pitch, is easier to hear. Even though the child is regularly visited by a grandfather these visits are not as beneficial language wise as they could be because of his poor command of English. During the time the family were in this programme John was always very active in his daughter's development. He made himself available to participate in the home lessons when the teacher of the deaf visited twice weekly. John continued working on these lessons between visits. He also followed up the programme by frequently taking his family out for a variety of excursions. The contribution of a father to the social and emotional development of a deaf child is most important because:-

• the interaction between a father and a child is different from that between a mother and a child. It may be more play-based and will provide a variety of language activities.
• it gives the mother a welcome break from her responsibility and time to relax and/or see to her other duties and give special time to her other children. Caring for a young child with a hearing impairment requires frequent medical appointments. The child needs regular visits to have the hearing retested and ears checked. Each day the parents need to check the hearing aids to be sure that they are in optimal working condition. If there is a problem the aid needs to be taken immediately for repair. A child on an auditory-verbal programme cannot afford to be without hearing aids in top order at all times. The moulds need to be cleaned daily and the ears checked to make sure there isn't a problem that needs immediate medical attention. These needs make constant demands on the parents so the dedication of both mother and father is essential. John has made a valuable contribution to his daughter's language development since she was diagnosed with a hearing impairment. It is most desirable that he is able to continue to do this. "

The appeal . 36 The sentences appealed against. The Crown appealed against the sentences for the four of the five offences against F in respect of which the sentencing judge had ordered a stay on 1 September 2000 pending a report as to the suitability of the respondent for home detention. There was no appeal against the other five sentences. 37 Crown submission of four errors by the sentencing judge: The first alleged error. The sentencing judge had said in his reasons that he was persuaded that the case was sufficiently unusual to justify departure from the norm, which in most circumstances required a custodial sentence. He had said that the custodial component of the sentence would denounce the crimes. 38 The Crown submitted that the error was that the sentencing judge was wrong in finding the case was one of such exceptional hardship to the respondent's family that it justified departure from the normal course. The most important and relevant of the numerous authorities to the effect that ordinarily the consequences to the family of an offender or the consequences to other persons dependent in some way on an offender should not prevent the imposition of a full time custodial sentence were cited to the court. None of these cases was precisely like the present one, and although some of them had some resemblance to it, in my opinion the present case showed a greater degree of hardship and a more unusual combination of circumstances than any of the examples put before us. In my opinion the sentencing judge was entitled to form the view that he did, on the materials before him, about the exceptional nature of the case. In the course of making this submission counsel for the Crown pointed out that the sentencing judge had mistakenly described the respondent's wife as the family's only breadwinner whereas she was at the time on unemployment benefits. I do not think this was a material mistake. In any event the conditions of the respondent's bond made it highly likely that his wife had much better prospects of a job than the respondent. 39 A further point made in support of the submission that the judge had erred in finding the case a very unusual one was that there was an observation in one of the psychiatrist's reports, also admitted without objection, which was inconsistent with the evidence given by the therapists. Again, it seems to me to be quite clear that the judge accepted the evidence of the therapists and the respondent's wife about the extent of the respondent's involvement in the therapy for the deaf child. In any event, the psychiatrist's report was to the same effect as the evidence of the therapists and the respondent's wife at least as to the respondent's activities at the date of the sentence hearing. The psychiatrist can only have been reporting what he was told by the respondent which was that he had "now ... become involved in his deaf daughter's hearing intervention programme". The report was dated 1 August 2000. The latest interview the psychiatrist had had with the respondent was 26 July 2000. 40 In the circumstances, I think the sentencing judge was entitled to rely, and did rely, on the evidence of the therapists and the respondent's wife as showing, beyond a reasonable doubt, that the respondent had become very closely involved in his daughter's therapy and was an important factor in her future well-being and was a factor in the very unusual circumstances of the case, not capable of being fully and adequately replaced. 41 The second alleged error. This was said to be that the sentencing judge did not clearly state in his reasons the facts which he had accepted as being established beyond reasonable doubt upon which he was basing his conclusions about appropriate sentences. The examples which counsel gave of this were the three instances I have touched on and quoted from in par 28. 42 The submission was that in making these remarks the sentencing judge was showing an attitude of doubt about some of the factual matters before him but did not make clear whether he was making findings beyond reasonable doubt or rejecting findings or simply leaving matters in a state of uncertainty. 43 I do not think that in making the remarks particularised by the Crown the sentencing judge was doing anything open to the criticism levelled against him. In my view the method adopted by the judge in regard to the facts was quite clear. An agreed statement of facts was before him which, I think, was the basic material upon which he acted. There was the evidence about rehabilitation, which as to the documentary side, was admitted without objection and which quite clearly, the judge accepted. 44 Also before the judge were the transcripts of interviews between the respondent and the police. It was from some of the remarks made by the respondent, of a self-serving nature, in these interviews that the sentencing judge had formed the impressions he stated in the short quotations I have earlier set out. To the extent that admissions made by the respondent in those interviews were not contained in the agreed statement of facts, the sentencing judge was entitled to act upon them as part of the body of evidence he could treat as proved beyond reasonable doubt. As to statements by the respondent which were not admissions or did not bear directly on admissions, the sentencing judge was in no sense bound to accept such statements and the way in which he handled them seems to me to make it quite clear that he was not accepting them but actually taking them into account against the interest of the respondent as diminishing the degree of remorse exhibited by the respondent. 45 In my opinion, neither in regard to the particular matters put forward in support of the submission or the more general statement that the sentencing judge had not fulfilled the requirement of making clear which facts he was accepting as proved beyond reasonable doubt for the purpose of sentencing, did he in my opinion fail to comply with the requirement. 46 Third alleged error. It was submitted that the sentencing judge, by what he said on 1 September 2000 about the four charges leading to the sentences appealed against, had committed himself to the view that the criminality shown by the respondent required some deprivation of liberty; that is why he wanted an assessment of suitability for home detention. Once he had indicated this, it was submitted, it was not open to him to change that view once it became clear that s 76(b) prevented the use of the home detention penalty in the particular case; alternatively the change of mind was an indication of error. 47 One answer to this submission is that, in my opinion, the sentencing judge did not indicate on 1 September 2000 that he considered deprivation of liberty was necessary in the case; rather he was making it plain that he did not think custodial imprisonment was appropriate, because of the special circumstances of the case. This seems to me to be shown quite plainly first by his remark that he was persuaded that in the circumstances of the case the usual course should not be followed. That seems to me to be a pronouncement indicating there would not be immediate deprivation of liberty. That this was uppermost in his mind is incidentally shown by the fact that the last thing he is recorded as saying on 1 September 2000 is "... he doesn't have to go into custody". Another more substantial indication of the same thing is that in regard to the last of the five offences against F, which I think the judge singled out because he regarded it as the most serious of the five, he imposed a sentence of eighteen months imprisonment and immediately suspended it. 48 Thus, I do not think the judge manifested the intention to deprive the respondent of liberty which the Crown submits he did. 49 Further, and more basically, even if the judge had made an indication along the lines contended for by the Crown, I do not see how that could prevent him changing his mind before the sentencing process was complete. It was not complete until he made his final orders in regard to the four charges in question on the date to which he had stood over the proceedings. Even on this hypothesis then, which as I have indicated I do not think is correct, the judge had power to do what he did. Finally, if the judge did change his mind, that in itself cannot be taken as any indication of error. 50 I should perhaps record that in the course of argument about this aspect of the case, there was reference to subs (4) of s 12 of the Crimes (Sentencing Procedures) Act 1999 which had been added to the section by Act 43 of 2000. This was in answer to a submission in the respondent's written submissions relying on the new subsection. As I understood the Crown submission it was to the effect that the combined operation of s 12(4) and s 76(b) meant that s 12(4) simply had no operation in the circumstances. I agree with this. I do not understand the submission to have gone any further than this. If it did I would not accept it. In my view s 76(b) takes s 12(4) out of consideration in the circumstances of the present case but leaves untouched the suspensory power given by s 12(1). I do not think arguments based on s 12(4) assist either of the parties in the present case. 51 The fourth alleged error. The Crown contended that the result of the sentencing process showed that the sentencing judge had not paid sufficient regard to the seriousness of the offences; the result of the sentencing process was so lenient as to show error. 52 The reasons I have given earlier lead me to conclude that this submission should not be accepted. The sentencing judge was fully aware of the various sentencing considerations he had to take into account in the case and was fully aware that the course he took was one that should only be taken in exceptional circumstances. In my opinion the material before him justified him in treating the case as one of exceptional circumstances. Once that step was taken, the various orders he made in regard to the different offences all seem to me to have been quite proper. 53 In my opinion the appeal should be dismissed. 54 BARR J: I agree with Priestley JA. 55 KIRBY J: I agree with Priestley JA. **********

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