REGINA v THOMAS [1999] NSWCCA 168 | Case summary

3 ADAMS J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent by his Honour Acting Judge Horler QC at the District Court on 17 December 1998. On 14 November 1997 the respondent had pleaded guilty to five counts of buggery (s 79 Crimes Act 1900), three counts of homosexual intercourse with a male between the ages of 10 and 18 years (s 78K), one count of sexual intercourse without consent with a person under 16 years (s 61D(1)) and one count of indecent assault (s 61E(1)). The first of these categories carries a maximum sentence of 14 years, the second ten years, the third ten years and the fourth four years penal servitude. The representative character of these charges was made evident by the fact that when the respondent appeared on 15 January 1998 for the sentence proceedings he asked pursuant to s 21 of the Criminal Procedure Act 1986 that a further 16 crimes be taken into account, comprising 13 offences under s 81 of the Crimes Act 1900, one under s 61D(1), one under s 87A and one under s 61E(1) (the Form 2 offences). With the exception of the victim of the indecent assault under s 61E(1), specified in the indictment, all the other crimes taken into account were committed on one or more of the same victims who were the subject of the crimes referred to in the indictment. The offences comprised oral and anal intercourse, masturbation and fondling genitalia outside clothing. They took place when most of the victims were aged 10 or 11 and continued until they were 15 or 16. The statement of facts tendered without objection in the proceedings stated, in respect of three of the victims, a large number of sexual assaults had occurred and the offences particularised in the indictment and taken into account were those which he recalled most clearly. Of course, these other offences were not the subject of conviction nor were they taken into account. They are material only to the extent that the sentence could not properly proceed upon the basis that the specified offences were the only offences of the relevant kind committed by the respondent. 4 The learned sentencing Judge concluded that the sexual crimes admitted by the respondent were premeditated and pre-planned. The respondent identified and targeted children from troubled homes who were vulnerable and might therefore be likely to exchange sexual favours in return for presents and some display of affection. His Honour further concluded, inevitably, that these incidents were not isolated but part of a systematic pattern of sexual misconduct. They were committed over an eight year period from 1978 to 1986. The defendant was interviewed by police in May 1997. Although he made extensive admissions, the tone of his responses was to deny recollection of the details, deny any allegations which suggested unwillingness, at least initially, by the victims to participate in the sexual activities he instigated and generally to minimise their extent and predatory character. Indeed, in relation to one victim, then 12 or 13, concerning what he claimed was the first act of anal intercourse committed on him, he said that, "He seemed to know that that's what I wanted him to do, and virtually put it on me". No submissions were put on the respondent's behalf to the learned sentencing Judge taking issue with the statement of facts which had been tendered by the Crown and that the respondent's account in the record of interview should be preferred. Having regard to the course of proceedings, I am satisfied that the respondent did not seek to controvert the tendered statements of facts and the allegations of the victims as contained in their signed statements. No point is taken in this Court by the respondent concerning the factual basis upon which the Court below sentenced him and it is unnecessary to be troubled further about it. Nevertheless, it is, I think, desirable to state that sentencing judges should ensure that the precise factual basis upon which they sentence is expressly stated in their reasons for judgment. It will not always be the case where a statement of facts is tendered by the Crown that failure to object to it implies admission of its truth. This is especially so where the Crown also tenders the prisoner's record of interview which, as in this case, might contradict some part of the statement of facts. 5 The respondent was 52 years old at the time of sentence so that the offences were committed between the ages of 32 years and 40 years. On 4 August 1989, he was convicted and sentenced of five counts of homosexual intercourse with a male between 10 and 18 years in respect of a victim additional to than those involved in the present offences and relating to 1986 and 1987. In respect of these crimes he was sentenced to terms of penal servitude of five years and six years and three terms of seven years, structured to create an aggregate sentence of 12 years. After re-determination, the last of these sentences expired in June 1996. Also, on 4 August 1989 the respondent was convicted of assault and robbery with striking, armed robbery, assault and robbery in company whilst armed, assault and robbery whilst armed and conspiring to commit armed robbery. He was sentenced to penal servitude, respectively, for 15 years, 10 years (concurrent), 10 years (concurrent), 10 years (cumulative) and 5 years (concurrent). A non-parole period of 19 years 9 months expiring 28 March 2008 was imposed. In September 1989 these sentences were redetermined, resulting in a minimum term of 11 years, 9 months and 11 days expiring on 8 April 2001 and an additional term of 3 years, 10 months and 16 days expiring on 24 February 2005. The sentences for the sexual crimes were thus served concurrently with the sentences for the robberies. It must be assumed that the sentencing judge considered that the overall sentence reflected the criminality involved in all the offences. 6 The sentences imposed themselves indicate the seriousness of the offences. In this appeal, Mr Zahra of counsel for the respondent tendered the statements of facts concerned. This material was not before his Honour Acting Judge Horler QC and, accordingly, cannot be used to increase the sentences imposed by him. As I understand it, they were tendered in support of the submission that the starting point for considering the appropriateness of the sentences under appeal is the fact that the respondent is serving a sentence the minimum term of which expires on 8 April 2001, so that an otherwise appropriate sentence must be adjusted downwards to reflect the overall criminality of the present offences considered with those for which he was sentenced in August 1989. The Crown does not, in this Court, submit otherwise. Having regard to the evidence of the psychologist to which I refer below, it is appropriate to proceed on the basis that the earlier sexual crimes were committed on children, which is confirmed by the statement of facts so far as the 1989 convictions are concerned, indicating, however, that only one child was involved. 7 It is necessary to consider the respondent's criminal record as to other offences. They involved a number of petty thefts, three charges of breaking, entering and stealing, attempted false pretences and two charges of receiving. He was convicted in 1975 of indecently assaulting a male. He was placed on a recognizance to be of good behaviour for three years, but in apparent breach of his bond, committed a further offence of indecent assault on a male for which he was sentenced to 12 months imprisonment. 8 The respondent did not give evidence on the sentence proceedings. A report was tendered on his behalf from a psychologist who elicited a history which was capable of explaining to some extent the prisoner's sexual behaviour involving children. Although his family life was, it seems, healthy and positive, when he was sent at the beginning of year 7 to boarding school, he was, he said, sexually abused over a period of 18 months by a priest at the college. He stayed there for two years and then returned home but did not disclose the abuse. He completed his high school education at the local school. The respondent has been consistently employed since he left school and in 1981 set up his own business in Sydney making lounge chair frames which he was operating when he was arrested and imprisoned in 1986 for the sexual and armed robbery offences to which I have referred. It seems that he did not inform the psychologist, in terms, that these offences (and the two earlier offences in 1975 and 1976) involved children but she was permitted to give evidence without objection that she assumed this was so. The respondent claimed that his sexual disorientation commenced when he was abused at boarding school. It is, of course, extremely difficult to corroborate such an allegation but his Honour accepted that the respondent was abused in his formative years and I consider that it was appropriate for him to do so. Were it not for this abuse and its effects on the personal development of the respondent, it may be that the cast of mind which led him to seek the emotional satisfactions which committing these offences supplied would not have arisen but I do not regard this as a significant mitigating factor. It also was accepted by his Honour that the respondent, during the relevant period, was and had been for some time, an alcoholic who coped with his problems by heavy drinking. His Honour considered that the combination of sexual confusion in part caused by what happened to him in his teenage years, linked with his alcoholism "goes a long way to explaining" the respondent's subsequent serious criminal conduct; as his Honour also said, it did not excuse it. 9 The contributing causes of criminal behaviour are always relevant in sentencing. Amongst other things, they help to indicate whether rehabilitation is a reasonable prospect, whether the crime was an isolated incident which might fairly be regarded as a temporary aberration or, conversely, reflect a more deeply seated and consistent pattern of criminality. Even so, as has been frequently said, the process of sentencing is not purely logical and criminal behaviour will rarely, if ever, be sufficiently explained by science. The distinction between explanation and excuse is, at all events, quite fundamental. The psychologist reported that the respondent suffered from "endogenous depression" but did not suggest that he suffered from this condition at the relevant time, although it may well be that his feelings of self-worth were adversely affected by his feelings about his homosexuality. The psychologist stated that the respondent said that he was "exceedingly ashamed and embarrassed about his attraction to adolescent and pre-adolescent young males, stating that it was confined to a period of his life around the time of his offences [but]. . . he vehemently rejects the proposition that he may be a paedophile". As the sentencing Judge noted, she was, it seems, impressed by the respondent's candour. Whether there is a material distinction between being a paedophile and behaving as a paedophile is not an issue about which it is necessary to decide. However, even accepting that the respondent intends to take advantage of counselling programs available to him in prison and that there are some psychological signs of change, this denial does not support an optimistic view of the likelihood of rehabilitation. In my opinion, the learned sentencing Judge quite rightly expressed scepticism about this matter. Nevertheless, the public interest in rehabilitating persons such as this respondent led his Honour to the conclusion that special circumstances existed such as warranted a departure from the prima facie relationship between the minimum and additional sentences. This was an appropriate course. But, by the same reasoning, the protection of the community required consideration also in weighing the elements relevant to sentencing this respondent. 10 The pleas of guilty were significant as they avoided trials which must have been at least embarrassing and possibly distressing to the victims. They were also evidence of contrition. However, in my view this factor was qualified by the substantial lack of candour demonstrated in his interview with the police when he was confronted with the boys' complaints. 11 As to the commencement date of the sentence to be imposed, the Crown contended below that it should date from 17 December 1998, namely the date of sentence, whilst defence counsel submitted that it should be 2 May 1997, the date of his arrest (at which time, of course, he was still serving a sentence for armed robbery). His Honour then gave a judgment indicating that the global sentence he intended to impose, in respect of both the charges in the indictment and the Form 2 offences, was a term of six years imprisonment comprising a minimum term of four years dating from 17 December 1998 with an additional term of two years. His Honour sought assistance on how the orders imposing this sentence should be cast and briefly adjourned to enable consideration to be given by the parties to this matter. Upon resumption, the Crown submitted that his Honour would fall into appealable error if he imposed the sentence which he had indicated and that a minimum term of six years would be "more appropriately reflective of the seriousness of these offences". This submission was not accepted. His Honour took into account on the first charge in the indictment the Form 2 offences and sentenced the respondent to penal servitude for six years comprising a minimum term of four years commencing 17 December 1998 and expiring on 16 December 2002 and an additional term of two years to commence on 17 December 2002 expiring on 16 December 2004 in respect of each and every count specified in the indictment, each sentence to be served concurrently. 12 So far as the last count on the indictment is concerned, the sentence is invalid (as the Crown in this Court conceded) since s 61E(1) imposes only a maximum term of imprisonment of four years unless the victim is not only under the age of 16 years but also under the authority of the prisoner, which latter element did not obtain in this case. 13 In Pearce v R (1988) 156 ALR 684, the appellant was convicted of two counts specifying different crimes where an element of each involved inflicting the same grievous bodily harm on the same victim. The sentencing judge took the course of imposing identical concurrent sentences which had the effect that, prima facie, he was doubly punished for the one act. HcHugh, Hayne & Callinan JJ, said (at 694)- 45. "To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. 46. "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. 47. "Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. 48. "Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. 49. "Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. The appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against "a sentence" it was, of course, the individual sentences that fell for consideration, not just their overall effect. If the court is of opinion that some other sentence '...is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefor.'" 14 In the circumstances, I consider that the learned sentencing judge erred in failing to deal distinctly with the salient facts of each charge and that the global approach his Honour adopted indeed masked error, the most obvious of which was to sentence the respondent for a relatively trivial offence to more than the statutory maximum. It is necessary, therefore, briefly to set out the circumstances of the offences. The first two charges allege anal intercourse with the victim who met the respondent when he was 10 or 11 riding his bike at Tempe Tip. The respondent asked the youngster if he wanted something to eat and took him to a shop in his car after which they went to the respondent's factory where oral intercourse occurred. The respondent gave the boy $10 and they arranged to meet the following weekend. For the next year or so, similar sexual activities occurred of which those taken into account were a selection, as I have already mentioned. At this time, the respondent took the victim back to his home and anally penetrated him although the boy complained of pain. The respondent gave him $10. The second occasion charged in the indictment occurred at the respondent's factory and was the occasion when the respondent said that "I was working late and he came around and I really don't know why, but he, he seemed to know that that's what I wanted him to do, and virtually put it on me." The boy was 12 or 13 at the time. On most, if not all of these occasions, money was paid by the respondent to the victim. The victim ran away from home when he was 14 and it is obvious that there were serious problems in his relationship with his parents. His association with the appellant lasted until he was 16 which was his age as at the date of the last matter taken into account. (As to the Form 2 offences, six concerned the victim involved in these two counts and the others involved four other victims.) 15 Having regard to the respondent's convictions in 1975 and 1976, which clearly failed to deter him in respect of sexual crimes against children, the objective seriousness of the offence charged in the first count of the indictment and those taken into account, and having regard to the principle of totality, I am of the view that a sentence on this count of six years comprising a four year minimum term and a two year additional term commencing on 17 December 1998 (with the consequence that the additional time which he will be required to spend in custody is a mere one year and eight months), is manifestly inadequate. 16 In respect of the third count in the indictment, also alleging anal intercourse, this was committed on a victim then about ten years old, who had met the respondent about a year earlier when the first indecent assault (specified in the Form 2) occurred so far as this victim is concerned. Mutual oral sex and masturbation occurred on other occasions. This victim, who described himself as an "uncontrollable child" and who was in the care of his grandmother at the time he first met the respondent, was shortly after placed in the respondent's care, I think through the intervention, or at least with the agreement, of what was then the Department of Community Services, although this is somewhat unclear. There is no suggestion that the social workers involved were aware of any sexual misbehaviour by the respondent although, having regard to the extent of his contacts with young boys at this time, it seems to me that appropriate enquiries would certainly have raised suspicions about the respondent's motives. However, the evidence about this is little more than suggestive and nothing turns on it. The point is that, on the occasion of the offence in the indictment, the victim was in the care of the respondent by virtue of the permission given by the boy's grandmother to spend the evening in question with him. 17 The fourth count in the indictment charges an act of anal intercourse committed on a boy then 13 or 14. He was introduced by another paedophile and submitted on the promise of money and marijuana. The victim was a young man at risk who had met the other paedophile whilst sniffing glue at a railway station. The victim's association with the respondent continued for about three years. The respondent supplied him with marijuana, alcohol, food and board. The victim claimed that the respondent threatened to kill him if he ever mentioned to anybody the activities in his house where other boys lived and still more visited. This was denied by the respondent when it was put to him during his police interview and I do not take it into account. 18 Count 5 in the indictment alleges anal intercourse committed upon a fourth victim when he was about 11 years old, again having been introduced to the respondent by another paedophile. The victim was a runaway who had lived with the other paedophile for a few days then went to stay with the respondent. In March 1984 the respondent was given what has been called guardianship through the intervention of a social worker attached, it was said, to the Children's Court. The victim had denied that the respondent had attempted any sexual interference with him and it seems that the social worker somewhat naively accepted this assurance. Again, it appears to me that relatively straight-forward enquiries would have been likely to at least have raised such a suspicion of the respondent's motives as to have indicated that guardianship was inappropriate. Again, however, these matters were the subject merely of passing mention in the material tendered to the Court and any conclusion is inappropriate. At the time that this particular victim was placed under the guardianship of the respondent it appears that other young teenagers were living with him in what any sensible enquirer should have thought were questionable circumstances. The victim states, and I accept, that no sexual interference occurred following the respondent's becoming his guardian, but this does not excuse the respondent's earlier behaviour. As with a number of the respondent's other victims, he had assumed their care, whatever the formal position might have been and this rendered his abuse of them even more culpable than it otherwise would have been. 19 The sixth, seventh, eighth and ninth counts involve a victim who was 12 or 13 years old when he first met the respondent, again through another paedophile. About a year or so later, oral sex and masturbation occurred and, when the victim was about 15 further acts of oral sex, masturbation and anal intercourse took place. On the occasion to which count nine refers, the respondent continued anal intercourse with the victim after being asked to stop. The continuing association with the respondent occurred mainly because of the victim's friendship with other boys whom the respondent was also sexually molesting. Although the respondent gave him alcohol on the occasions when they met and the victim said that he did not feel in control and that the respondent was "pretty intimidating", it does not appear that he was induced to engage in sexual activities by the promise of any gifts. Rather, it appeared that the sexual activities were a part of his association with the respondent's other victims. 20 The last count in the indictment concerns an indecent assault which occurred when the respondent fondled the victim outside his clothing. 21 The extensive nature of the pattern of offences disclosed in the indictment and the Form 2 demonstrate a calculated course of deliberate criminality involving the exploitation of vulnerable young boys over a period of about eight years. There is no suggestion in the evidence that the means adopted by the respondent to seduce the boys were ever forceful or violent. Such methods, of course, would make the crimes far more serious. They were not isolated offences but, on the contrary, arose out of systematic predation. Having regard especially to the present state of the law concerning homosexual sexual relations it is, I think, important to state that my view of the seriousness of these offences does not reflect any attitude concerning their homosexual character as such. The appropriate sentence should not be influenced by any a priori views about homosexual or heterosexual behaviour. This case is about the sexual exploitation of children by an adult who misused his position and deliberately committed criminal acts upon vulnerable victims. Had the victims been young girls, the offences would have been equally serious. 22 The law applying to the offences under consideration is an expression of the obvious and substantial public interest in the protection and nurturing of children and young persons. This is not only the responsibility of the individual adults in whose care they may be placed for one reason or another but the community through the law, with all its faults and limitations, is also accountable for their protection. Of its very nature, the criminal law is always invoked too late to prevent the particular crimes which instigate its application but part of its function must be to deter, if possible, would-be offenders and, where this fails, to punish them for their wrong-doing, protect the community from their depredations by incarceration, and, if possible, rehabilitate them so they will not offend again. The need to protect victims, such as children, who cannot protect themselves and who are particularly vulnerable to predators such as the respondent renders these considerations even more important than they otherwise might be and must reduce the impact of any mitigation which might arise because of the particular history and personal circumstances of the offender. 23 It is, of course, impossible to measure the harm done by this respondent to his victims. No evidence as to this matter was adduced. Ordinary human experience suggests that sexual activities of the kind committed here during the developing pubertal period of a child's life might well have far reaching deleterious effects on his or her social and psycho-sexual development. Having regard to the respondent's own claimed personal history, he must have been acutely aware of this but, at all events, it is no more than common sense. These children were manipulated and used as objects to satisfy the respondent's own emotional and sexual requirements. As an adult he had a moral duty to protect them if he could even if the law can prescribe no more than require him to have left them alone. 24 Furthermore, this offender had already been punished by the criminal law in 1976 for an offence involving a child but this was insufficient to deter him. He had also committed serious armed robberies involving threats of serious injury to life and limb. 25 Bearing in mind the seriousness of the armed robbery offences and the sexual crimes, both those for which the respondent has already been sentenced and those which this Court is considering, the totality of the respondent's criminality exceeds by a considerable margin the period of imprisonment that resulted from the judgment below. As I have mentioned, the minimum term of 11 years 9 months and 11 days commenced on 29 June 1989 and expiring on 8 April 2001 was in effect extended to a minimum term of 13 years 5 months and 11 days ending 16 December 2002, something markedly less than two years. I have no doubt that sentences passed in the District Court were manifestly inadequate and must be increased. 26 In exercising its jurisdiction to increase sentences on appeal by the Crown it is settled principle and, to my mind at all events appropriate, that this Court should give recognition to the element of double jeopardy involved in a Crown appeal, the prisoner twice standing for sentence, by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. Furthermore, the principle of totality may require an adjustment downwards of a sentence which might be appropriate if it stood by itself in order that the overall sentence should not result in an excessive penalty by the mere arithmetical accumulation of sentences. An advantage, however, in the course adopted below of dating the sentences for the present offences from the date of judgment is that the artificiality of imposing an apparently lenient sentence by merely extending the minimum and additional terms is to some degree avoided. Accordingly, the first of the sentences that I propose will date from 17 December 1998, the date upon which the respondent was sentenced for the present offences. 27 In respect of the first count, taking into account the matters on the Form 2, I propose a fixed term of imprisonment of six years commencing 17 December 1998 and expiring on 16 December 2004. In respect of the second count in the indictment, I propose a sentence of six years penal servitude comprising a minimum term of imprisonment of two years commencing on 17 December 2004 and expiring on 16 December 2006 with an additional term of four years commencing on 17 December 2006 and expiring on 16 December 2010. In respect of each of the third, fourth and fifth counts, I would impose a fixed term of imprisonment, concurrent with that imposed on the first count of six years commencing 17 December 1998 and expiring on 16 December 2004. In respect of each of the sixth, seventh and eighth counts, I would impose a fixed term of imprisonment, concurrent with that imposed on the first count of six years commencing 17 December 1998 and expiring on 16 December 2004. In respect of the ninth count I would impose a fixed term of imprisonment of two years cumulative upon the sentences imposed on the sixth, seventh and eighth counts, commencing on 17 December 2004 and expiring on 16 December 2006. In respect of the tenth count I would impose a fixed term of imprisonment of three months concurrent with the sentence passed on the first count, commencing 17 December 1998 and expiring 16 February 1999. It follows that the earliest date upon which the respondent would be eligible to be released on parole is 16 December 2006.

REGINA v THOMAS

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