SAGE v R

Court of Criminal Appeal (NSW)|2007-07-13|Before: Giles JA, Latham J, Mathews AJ

JUDGMENT OF: Giles JA at 1; Latham J at 2; Mathews AJ at 17

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed

CATCHWORDS: Sentence appeal - pleas of guilty to sexual offences committed against children whilst outside Australia - ss 50BA(1) and 50BC(1)(a) Crimes Act 1914 (Cth) - whether undue emphasis upon specific deterrence - sentence not manifestly excessive.

COUNSEL: Applicant- W Flynn Respondent - C Ng

SOLICITORS: Applicant - Marsdens Law Group Respondent - Commonwealth Director of Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2007/952

GILES JA LATHAM J MATHEWS AJ

27 JULY 2007 PETER SAGE v REGINA Judgment 1 GILES JA : I agree with Latham J. 2 LATHAM J : The Applicant seeks leave to appeal against sentences imposed by McLoughlin DCJ on 24 March 2006 following the applicant's pleas of guilty to 5 counts of Sexual Intercourse with a Person Under 16 Whilst Outside Australia (s 50BA(1) Crimes Act 1914) and 2 counts of Committing an Act of Indecency on a Person Under 16 Whilst Outside Australia (s 50BC(1)(a) Crimes Act 1914). A further 5 charges under s 50BC(1)(a) were taken into account pursuant to s 16BA of the Crimes Act 1914. 3 The offences under s 50BA(1) carry a maximum penalty of 17 years imprisonment. The offences under s 50BC(1)(a) carry a maximum penalty of 12 years imprisonment. On each of the first 4 counts under s 50BA(1) the applicant received a sentence of 5 years imprisonment with a non parole period of 3 years. On the fifth count under s 50BA(1) the applicant received a sentence of 5 years imprisonment with a non parole period of 2 years. On each of the counts under s 50BC(1)(a) the applicant received a sentence of 3 years imprisonment with a non parole period of 2 years. The partial accumulation of these sentences resulted in an aggregate sentence of 7 years and 6 months imprisonment, with an aggregate non parole period of 4 years and 6 months. 4 The sole ground of the appeal is that his Honour placed undue weight on the principle of specific deterrence in arriving at the sentences he imposed, resulting in an overall sentence that was manifestly excessive. It is not necessary to canvass the facts in relation to the offences in any significant detail in order to deal with this ground. The following summary is taken from the written submissions filed on the applicant's behalf. 5 The applicant departed Australia from Sydney on Sunday 29 January 2005 to the Philippines and returned on 20 February 2005. Upon his return the Australian Customs Service conducted a search of the applicant's luggage and photocopied numerous documents found in his possession. The documents included diary notebooks, photos of young Asian males and a hand drawn map of the Philippines. Recorded in the notebook were a large number of male names, phone numbers and personal details including apparent references to sexual performance and physical appearance. Recorded in the diary were daily events with some further reference to male names and ages and translations of sexual terms from English to a Filipino language. 6 The diary indicates that the applicant engaged in a number of sexual encounters with men and teenage boys. From an examination of the coded entries in the notebook it is evident that some of these encounters were with males aged under the age of 16 years. Several of the diary entries relating to 14 and 15 year old boys include the comments "no pubes, few pubes, early pubes and beginning of pubes". On 22 June 2005 the applicant voluntarily participated in two taped records of interview at the Australian Federal Police Sydney office. During those interviews the applicant detailed some matters but was not fully forthcoming at first as to his involvement in criminal activity.

The Relevance of Specific Deterrence 7 The applicant was almost 67 years of age at the time of sentence. He had no criminal convictions and had led a productive and worthy life as a draftsman with the Land Titles Office for 38 years, receiving the Public Service Medal prior to his retirement at the age of 55. He had engaged in a variety of community service work since retirement. He was in a stable homosexual relationship of 15 years standing and his only other significant relationship ended in 1990 with the death of his partner from cancer. He presented a strong subjective case which was recounted at length by the sentencing judge in the remarks on sentence. 8 The applicant's case on sentence included a report by a psychologist, Mr Benad. Included in that report was the following opinion :- A review of Mr Sage's formative adolescent and adult life failed to reveal any evidence of any sexual, emotional or mental abuse which may have contributed to the said offences. His psychosexual history supports the view that he has lived a relatively stable existence. Despite this apparent stability, he has recently engaged in reckless functioning to satisfy paedophilic sexual urges. Whilst he reports to have been sexually satisfied within his committed relationship, he reports a more recent attraction to adolescent males not previously evident. I have difficulty accepting that Mr Sage has only recently become spontaneously attracted to adolescent males. I suspect his attraction is more longstanding. If one is to accept his reports, he has been able to successfully suppress such urges until 2005. Mr Sage suffers a significant psychosexual disturbance. He has participated in sexual activity which is consistent with the condition paedophilia. The extent of his actions fail to support the view that this was an isolated behavioural disturbance. ………………………………………………………………………….. Mr Sage requires specialist sex offender treatment. Treatment would necessarily aim to modify maladaptive thoughts and feelings that underlie aberrant behaviour. …………………………………………………………………………. One can but hope that incarceration together with sex offender treatment will provide him with a motivation to avoid further trouble with the law. 9 A sensible reading of this report suggests that the prospect of re-offending by the applicant had not been discounted by Mr Benad. The whole of this opinion was set out at pp 24-25 of his Honour's remarks, immediately before his Honour stated "The criminality involved in these offences was of the highest order. The sentence that is to be imposed is designed to adequately punish the offender and to have a deterrent effect on him and others." 10 In addition, the Pre-Sentence Report tendered in the proceedings contained a similarly guarded prognosis :- [His] insight into his offending behaviour appears somewhat limited. In discussing his offending behaviour, he at first minimised it by stating that the victims were old enough to know what they were doing, indicating a lack of awareness about issues of informed consent. This was supported by the investigating Federal agent who noticed his lack of awareness about the serious nature of his offending. In a discussion with a psychologist from the Department of Corrective Services Sex Offender Programs, she considered that the offender's detailed diary notes relating to the offences suggest that the offender has spent significant amounts of time dwelling on and recording his offending behaviour, which may increase his level of risk of re-offending. Mr Sage has indicated that he is willing to participate in any programs to address his offending behaviour.

This passage was also quoted by his Honour at pp 20 - 21 of the remarks.

11 The applicant gave evidence and was taken to this aspect of the Pre-Sentence Report by his legal representative. The applicant maintained that the detailed entries in the diary were not made for the purposes of future titillation, rather they were "simply part of my record-keeping process." Further the applicant said that he disagreed with the expression of opinion concerning his risk of re-offending on the basis that "I have the character, the strength of character to resist any further temptations and I mean that. I believe I will not re-offend again. I have made a vow to God and I make it to his Honour and to the court that I have no intention of re-offending in the rest of my lifetime in such matters again." 12 However, in cross-examination when it was put to the applicant that the diary entries included descriptions of the sexual prowess of the boys, and that in those circumstances the diaries were an attempt to retain a memory of the sexual performances and physical descriptions of the younger victims, the applicant agreed that such was the case. The applicant then reluctantly conceded that the diary was kept for titillation purposes. 13 In the light of this evidence and the evidence contained within the report of the psychologist, it was clearly open to his Honour to factor into the sentencing exercise the need for specific deterrence. In so far as the applicant's counsel contended that his Honour failed to take account of the applicant's evidence in this regard, I would reject that submission. The applicant's evidence on the subject of his risk of re-offending is clearly reflected at page 18 of the remarks, where his Honour repeats what the applicant had said regarding his "willpower to say no to the temptation." 14 The applicant's submission that his Honour placed undue weight upon the need to reflect specific deterrence in the sentence to be imposed, so as to justify the intervention of this Court, entails a finding that the sentence is manifestly excessive. The applicant does not make this submission in relation to any particular sentence, nor is there any complaint about the fact of partial accumulation of the sentences. The manifest excess, if there be any, is said to reside in the aggregate sentence and non parole period. 15 A number of sentences for similar offences imposed at first instance in the District and Supreme Courts of NSW, Queensland and Western Australia were before the sentencing judge. A perusal of the facts of those cases establishes that sentences of a similar order to those imposed upon the applicant were imposed upon offenders aged between 40 and 76, for comparative sexual conduct, following pleas of guilty and with otherwise strong subjective features. Given the maximum penalties for the offences committed by the applicant and the acknowledgement that some accumulation was warranted, I can see no basis for concluding that either the individual sentences, or the aggregate sentence as an expression of the totality of the applicant's criminality, were outside his Honour's legitimate sentencing discretion. 16 The orders I propose are :- 1. Leave to appeal granted 2. Appeal dismissed 17 MATHEWS AJ : I agree with Latham J. **********

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