The Queen v. Stach, R.C. [1985] FCA 52

Federal Court of Australia|1985-03-01

Criminal Law - sentencing - appeal by Crown against leniency of sentencing judge - guilty plea to three counts of gross indecency with a male with circumstances of aggravation and

one count of dealing indecently with a child with circumstances of aggravation - defendant released on entering into his own recognizance with conditions attached thereto - whether sentence manifestly inadequate - considerations raised by

Bowen, C.d., McGregor and Beaumont, J. 1 March 1985. Sydney.

ON APPEAL from the Supreme Court of the Northern Territory of Australia

BETWEEN : THE QUEEN Appellant AND: REGALDO CLAUS STACH Respondent ORDER

Judges making order: Bowen, C.J., McGregor and Beaumont, J. Date order made: 1 March 1985

ON APPEAL from the Supreme Court of the Northern Territory of Australia

BETWEEN : THE QUEEN Appellant AND: REGALDO CLAUS STACH

BOWEN, C.J. and BEAUMONT, J.: This 15 an appeal by the

Crown against the sentence of the respondent, Regaldo Claus Stach, by the Supreme Court of the Northern Territory (Muirhead, J.) upon his conviction after pleading guilty to four offences: first, three counts of gross indecency with a male with circumstances of aggravation contrary to

s.127(1)(b) and (2) of the Criminal Code Act, 1983 (N.T.);

and secondly, upon a separate ex orficic indictment. one

count of dealing indecently with a child with circumstances of aggravation contrary to 3.132 of the Criminal Code.

Pursuant to s.396 of the Criminal Code, his Honour also took

into account three other offences of which the respondent admitted his guilt, namely one offence of gross indecency with circumstances of aggravation and two offences of indecent assault. In respect of each of the first three counts, the respondent was sentenced to be imprisoned with hard labour for a period of two years and six calendar months, those terms to be concurrent. In respect of the fourth count (the subject of the ex officio indictment) the respondent was sentenced to be imprisoned with hard labour for a period of 12 calendar months, that term to be cumulative upon the other terms. However, his Honour directed that the respondent be released forthwith upon his entering into his own recognizance in the sum of $1,000.00, with one surety in a like amount, to be of good behaviour

for three years, conditions of that recognizance being:

(4h) that tor two years the respondent be under the supervision of a probation officer appointed by the Director of Correctional Services and that the respondent obey the directions of that officer as to reporting, residence and

(214i) that the respondent when directed by that officer leave the Northern Territory and move to South Australia there to undergo such psychiatric and medical treatment as

(iii) that for two years from the date of sentencing the respondent not return to the Northern Territory save with

the permission of that officer first had and obtained.

The maximum penalty for the three offences of gross

indecency with a male with circumstances of aggravation was 14 years' imprisonment. The circumstances of aggravation in

the present case were the ages of the victims: two were aged nine years, and one was aged eight years. The offence of indecently dealing with a child was punishable, in circumstances of aggravation, with a maximum penalty of seven years' imprisonment. There were circumstances of

aggravation in that the male victim was aged 7 years.

The prosecution case on the first three counts was that the respondent was one of a number of cub leaders who accompanied a group of 22 cubs from Tennant Creek on a weekend outing in June 1984 to Helen Springs Station, which lies to the north of Tennant Creek. During their stay at Helen Springs Station, the cubs were accommodated in the recreation room of the stockmen 3 quarters. On the night of

8 June 1984. the recreation room was also shared by the

respondent. In the early hours of 9 June, the respondent

left his bed with the intention of checking to see that the

cubs were all asleep and while checking the boys became

sexually aroused; using a small pocket torch, he approached, one at atime, four of the boys asleep on the floor of the recreation room; in each case, the respondent pulled back the boy's bedding, pulled down the boy's pyjama pants and underpants and, using the torch to illuminate the boy's penis, began to masturbate him for several minutes; after each offence, the respondent replaced the hboy's clothing and bedding and moved on to the next victim. The

respondent said that he believed that each boy was asleep at

On 11 June 1984, after receiving a complaint from one of the boy's parents, the police interviewed the four victims. Each said that, in fact, he had been awoken by the assault but that he had feigned sleep as he was afraid and confused as to what was happening. The respondent was then interviewed by police. He admitted the offences, confessing that he had assaulted the boys for his own sexual gratification. He claimed that whilst carrying out the bed check he found the boys to be vulnerable and that he could not resist his sexual urges. (The first three counts

contain charges in respect of three of these victims. The

respondent was subsequently charged in respect of his interference with the fourth victim. This charge will be

The facts constituting the offence the subject of the fourth count (the subject of the ex officio indictment), were that shortly after midday on 10 July 1984, the respondent, who was then on bail, travelled to the Telegraph Station at Alice Springs. At the station, he climbed a rocky incline adjacent to the men's public lavatories where he sat, ate his lunch and read a book while periodically

watching a group of children playing in a nearby creek bed.

Shortly afterwards, he observed a number of young girls playing in the vicinity of the men's lavatories. He walked to the lavatories with the intention of using one of the cubicles but changed his mind when he observed a number of young girls in the lavatory. The respondent then hada drink of water from one of the toilet taps and walked outside. A few minutes later, the respondent observed the young girls emerge from the male lavatories and move away towards the creek. The respondent then went back inside the lavatories and observed a small boy standing outside one of the cubicles. The boy was dressed ina track suit and was

holding a pair of underpants in his hands. The respondent

engaged the young boy in conversation and ascertained that

he had accidentally defecated in his underpants whilst

playing. The respondent then offered to assist in cleaning

The respondent then knelt next to the boy and used some lavatory paper to wipe the track suit. Whilst doing so, he placed his left hand a number of times on the boy's genital area. At no time was the clothing of the child interfered with and the respondent's actions were carried out with the flat of the hand. The episode lasted a short period and the respondent left the lavatory. Shortly afterwards, the victim spoke of the incident to his mother who subsequently contacted the police. The respondent was

interviewed by the police and made admissions in relation to

Particulars of the four offences to which the respondent pleaded guilty and which the learned judge took into account pursuant to s.396 of the Criminal Code were as follows. First, that on 9 June 1984, at Helens Springs Station, the respondent did unlawfully assault a nine year old boy with intent to commit an act of gross indecency and thereby did commit an act of gross indecency (Criminal Code, s.192). This offence was committed at the same time as the offences the subject of the first three counts. By s.192(2)

of the Criminal Code, if the person assaulted 1s under the

age of 16 years and the offender is an adult, he is liable to imprisonment for 14 years. Three other counts charged the respondent with indecently assaulting a male person at Helens Springs Station between 11 and 13 November 1983

(Criminal Law Consolidation Act and Ordinance, (N.T.) 3.72).

The maximum penalty for that offence was imprisonment for 7 years. The circumstances of these offences were similar to those committed by the respondent at Helens Springs Station on 9 dune 1984. One of these victims was also the victim of

The respondent is a single man aged 32 years. He was born in Germany but immigrated to Australia at an early age. He was educated in Adelaide. He left high school at the intermediate level and obtained employment in Adelaide. He later enrolled in a community college and matriculated. He moved to Darwin in 1977 and embarked upon a_ teacher training course at the Darwin Community College. After completing his teacher training course, the respondent was posted to the Tennant Creek School in 1981. Until the commission of the offences with which he was charged, the respondent had established a good reputation in the Tennant Creek community. He was a teacher of dedication and

The learned judge was not favoured with the benerit

of any expert evidence from a psychiatrist. However, there was tendered on behalf of the respondent a report dated 1 August 1984 from Dr. Frederick Smith, a clinical psychologist employed by the Department of Health of the Northern Territory. Dr. Smith reported by way of

"My assessment efforts tend to indicate that the main problems burdening this young man centre on (a) maladaptive sexual orientation, (b) some degree of denial in the Freudian sense, (c) depression, and (d) confusion.

Initially, treatment should, in my opinion, consider factors ¢ and d, even if only ina palliative way. Longer-term treatment should then address factors a and b. I believe that prognosis for the depression and confusion factors would tend toward the favourable, whereas prognosis regarding the problem of sexual

Unfortunately, Dr. Smith had also to point out that the Northern Territory Department of Health did not have the resources available which he would have required in working with clients toward meaningfully addressing problems of the sort the respondent was facing. He said that his particular approach would have centred largely on behaviour modification, employing an aversion-therapy program in concert with other comprehensive elements. Special

equipment and a proper racility would have been required for

the aversion-therapy. Also, considerable time would have been needed in dealing with the respondent's case or other similar cases. Dr. Smith indicated that there was not then in the Territory a sufficient number of such cases to justify the time and other resources that would be minimally required in dealing with this kind of problem. Moreover, in his view, there would be no reasonable assurance of a successful outcome even if the resources were at hand. But Dr. Smith said that he had discussed the respondent's case with Dr. Kenneth O'Brien, a psychiatrist at Hillcrest Hospital, Adelaide, a hospital which did have the

appropriate resources. Dr. O'Brien had agreed to accept the

respondent as an outpatient on a long-term comprehensive

program specifically aimed at modifying his behaviour

"My clear impression is that Mr Stach is sincere in his wish to change his maladaptive tendencies and to try to get his life back together. He openly admits his offences and he was fully cooperative in all aspects of the assessment procedures I carried out with him."

In his remarks on sentence, the learned judge took into account the respondent's difficulty in supressing his desires or impulses to indecently handle young children. The learned judge observed said that this was "a very worrying situation" and that he would have liked a psychiatric report; but that he had no reason to fear that

"the maladaption of the respondent s sexual orientation

would aeepen". Having noted that the respondent was anxious

to undergo psychiatric treatment and that it clearly was

necessary that he should do so as soon as practicable, his

"I recognize all that has been stressed concerning the deterrent aspects of punishment and it may well be true that many members of the public - in fact I'm sure it is, accept that the courts have an obligation to punish peopie such as you. This is understandable and it is not of course unusual for persons involved in this type of offence to be people of previous good character.

Be that as it may the character evidence presented on your behalf is impressive and you are fortunate that you have the advantage of people who are prepared to support you. Your conduct at Tennant Creek after your arrest and your concern or apparent concern for the children then was credible. Your behaviour at the Telegraph Station was the reverse but perhaps this illustrates the depth of your present problem. Accepting that my primary responsibility is to the community, I take the view in this case that the ultimate community safety in the interests of justice will be best served if I impose terms of imprisonment but direct that they be suspended forthwith subject to various conditions."

In attacking the sentence imposed, the Crown submits that the learned judge erred in a number of respects. In the first place, it is contended that the sentences imposed on the respondent, looked at individually or collectively, were manifestly inadequate. Particular

criticism 18 made of his Honour's failure to impose a

custodial sentence in the context of the maximum sentence provided. It 1s suggested that the learned judge gave undue weight to the rehabilitative aspects of his sentence and failed to place proper emphasis upon the element of general deterrence (see, e.g., R. v. Williscroft [19751 V.R. 292 at pp.299-300). It igs also submitted that the learned judge should have attached particular significance to the fact

that one of the offences was committed when the respondent

The Crown's submissions are formidable but it is well established that an appellate court does not interfere with a sentence merely because it is of the view that that sentence is insufficient or excessive: it interferes only 1f it be shown that the sentencing judge was in error in acting ona wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence (see

R. v. Tait and Bartley (1979) 24 A.L.R. 473 per Brennan,

Deane and Gallop, JJ. at p.476). Purther, although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal

against sentence. "It would be unjust to a defendant. whose

freedom 15 un jeopardy for the second time, to consider on

appeal a case made against him ona new basis - a basis

which he might have successfully challenged had the case against him heen fully presented before the sentencing

court" (see R. v. Tait and Bartley, supra, at pp.476-7; R.

v. Molina, Full Federal Court, 24 August 1984, unreported,

at pp.8ff.). We shall return to this aspect of the matter

On behalf of the respondent, it is submitted that no error of the kind necessary to warrant the intervention of an appellate court has been demonstrated in the present case. The learned judge, the argument runs, fully recognised the gravity of each of the crimes committed by the respondent, and imposed a sentence which, in his words,, would best serve the "ultimate community safety". And, the respondent says, the approach adopted by his Honour was at least reasonably open as a means to that end. True it is that Dr. Smith's prognosis was necessarily uncertain. But, the respondent argues, his Honour was entitled to take into account the circumstance that there was at least a prospect of reformation if the respondent submitted himself to a course of psychiatric treatment of the kind Dr. Smith recommended. Further, the respondent says, his Honour did not overlook the element of deterrence: a release on parole 1s not wholly a privilege to the respondent; it is an alternative form of punishment involving many restrictions

upon and imposing duties on the respondent, not relieving

him of the risk that his total period of imprisonment will

yet have to be served, possibly at a time quite remote from the commission of his crime (see Anderson v. R. (1977) 19

But the matter does not rest here. On the hearing of the appeal, the respondent also sought to adduce evidence in the form of an affidavit sworn by Dr. O'Brien on 19

February 1985. The Crown did not object to the reception of this fresh evidence but submitted that it was of little, if any, weight. In his report dated 31 January 1985 annexed to

his affidavit, Dr. O'Brien, an experienced forensic psychiatrist, said that he had seen the respondent on 27 August, 3 October, 24 October and 19 November 1984. In Dr.

"From a diagnostic point of view (the respondent) is a homosexual paedophil although he does have some heterosexual interests. He is aware of the nature of his deviant sexual attraction and has been completely cooperative with me in both keeping his abnormal urges under control and rechannelling his sexuality in a more appropriate direction. I have been using a technique of behavioural psychotherapy with him which combines the utilisation of the principles of behavioural controls with some psychotherapeutic exploration and insight orientated therapy. I have found Mr. Stach to be open and apparently honest with me. He 1S aware that the success of any therapy may well depend on the level of trust and honest that exists between the therapist and the patient. He is aware of 'danger' situations, such as unsupervised recreational activities with young boys, and has avoided such encounters. He resides with a Church

Minister and aiso, of course, hus the support of his mother whom he sees ona very regular basis assisting her in the running of her coffee shop in Norwood (a suburb of Adelaide). I should further add that Mr. Stach is a prompt and regular attender at my clinic and apart from the one cancelled appointment ... has not missed an appointment with me. Furthermore I have been in regular contact with his supervising Probation Officer and

she has not expressed any anxieties/concerns to me about his present supervision,"

"I am satisfied with your client's progress and am optimistic if the present arrangement continues that the risk of a subsequent offence of a similar nature is reduced. I recognise that Mr. Stach's therapy, to date,, has been of a relatively short duration and understandably a prognosnis, of a more definitive nature, can only be made when his therapy is further advanced."

In his affidavit, Dr. O'Brien said that he had again seen the respondent on 11 February 1985. That

consultation confirmed the opinions expressed in his earlier

In our view, the evidence of Dr. O'Brien is important for present purposes. At the hearing before the

learned judge, apart from drawing his Honour's attention to

the provisions of 5.401 of the Criminal Code, and making

some brief observations to the effect that general deterrence was an important consideration in the present type of case (cf. R. v. Thornton, Nader, J., unreported, remarks on sentence, 7 June 1984, at p.68), Crown counsel then appearing made no submissions to the learned judge with respect to, and did not seek to cross-examine on, the course of action proposed by Dr. Smith. The sentence was imposed on 3 August 1984. The Crown filed its notice of appeal on 17 August but took no steps to expedite the hearing of the appeal until January 1985. In the interim, the respondent proceeded to live in South Australia and underwent the

course of treatment recommended by Dr. O'Brien. No attempt

was made by the Crown on this appeal to rebut the opinions

In our opinion, even if some error in his Honour's sentencing process could be demonstrated, given the Crown's delay in pursuing its appeal in full knowledge of the parole conditions imposed on sentence, it would be unfair to the respondent if this Court were now to order a custodial sentence. The Crown having stood by for many months while the respondent' committed himself to the course of action professionally advised and directed by the learned judge, it is now too late to restore the original position without

prejudice to the respondent (see Tait and Bartley; Molina,

supra). For that reason alone. in our view, it would be wrong to impose a custodial sentence at this point of time.

however formidable in other respects the Crown submission that the respondent's conduct called for such a sentence.

of his Honour the Chief Judge, Sir Nigel Bowen and his Honour Mr. Justice Beaumont.

NORTHERN TERRITORY OF AUSTRALTA ) No. NTG 29 of 1984 ) DISTRICT REGISTRY GENERAL DIVISION)

ON_ APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY

BETWEEN THE QUEEN Appellant AND REGALDO CLAUS STACH

Respondent Coram: Bowen C.J., McGregor and Beaumont JJ. Date: 1 March 1985 REASONS FOR JUDGMENT McGregor J. This is an appeal by the Crown aqainst the

sentence imposed on REGALDO CLAUS STACH (respondent) by the

Supreme Court of the Northern Territory of Australia on 3 Auqust 1984, The respondent had pleaded guilty to and had been convicted of three counts alleging offences of aross indecency with a male with circumstances of agaravation contrary to $.127(1)(b) and (2) of the Criminal Code Act 1983 (N.T.). All offences were committed on 9 June 1984 and the subject of charges on 26 June 1984. An ex officio indictment further charged the respondent with indecently dealing with a child with

circumstances of aggravation contrary to s.132 of the Criminal

Code committed on 10 July 1984. The ages of the children concerned were from 7 to 9 years. Pursuant to s.396, his Honour also took into account at the wish of the respondent four (the learned trial Judge referred to them as 3) other offences of which the respondent admitted his quilt and which were committed on 9 June 1984 and 11 to 13 November 1983, viz. an offence of unlawful assault with intent to commit an act of gross indecency upon a child with circumstances of aggravation and three offences of indecent assault. Three of these four offences were committed

on young boys aged 9 years, one of whom was also the subject of

The respondent was sentenced in respect of each of the three said counts of gross indecency on 9 June 1984 to imprisonment with hard labour for a period of two vears and six calendar months, those terms to be concurrent, and, in respect of the ex officio indictment for indecent assault on 10 Julv 1984, for a period of 12 calendar months. such last term to be cumulative upon the three other concurrent terms. Pursuant to the Criminal Law (Conditional Release of Offenders) Act (N.T.), his Honour directed that the respondent be released forthwith upon his giving security by his own recognizance in the sum of $1,000 with one surety in the like amount to be of gocd behaviour for three years. The conditions of that recognizance included that respondent would undergo such psychiatric and medical treatment as he might be advised or directed by his probation

The Grounds of the Appeal include that the learned trial

(a) In that the sentence imposed was manifestly inadequate.

(b) In that proper consideration was not given to the retributive aspects of sentencing.

(d) In that undue consideration was given to the rehabilitative aspect of sentencing.

The facts relating to the crimes are set out in the remarks of the learned trial Judge on sentence and summarised

On 9 June 1984 the respondent was one of 3 or 4 cub leaders in charge of a group of young boys on a camping expedition at Helen Springs station near Tennant Creek. [In the early hours of that morning, whilst checking the sleeping boys, he became sexually aroused and using a small torch to guide him committed the acts of gross indecency which his Honour described on these boys. His Honour noted that it seemed to have been

accepted by the police that the respondent believed the boys to

be asleep. However, they were not, but through fear or embarrassment they remained quiescent or still. His Honour said:-

"As far as I know, there was no physical damage to any of the boys and the events did not go further than that. One never knows, of course, what psychological impact this behaviour has. Especially when those who perpetrate the conduct are people who are regarded with trust and

On 11 June 1984, the respondent was questioned by the police, participated in two Records of Interview, acknowledged his guilt and on 26 June 1984 was charged with the offences. He was

On 10 July 1984 the respondent went out to the Telegraph Station (approximately 3 kilometres from Alice Springs) with no ill motive at the time but he again committed an act of indecency on a boy inthe circumstances andas described by the trial Judge. Again, and on that day, the respondent was questioned, participated in a Record of Interview and admitted his guilt. As his Honour stated, the behaviour of the respondent terminated his involvement as a valuable member of the community at Tennant Creek and may have ended for a substantial time his career as a teacher. His Honour said that the respondent seemed to have lost "almost everything except....the support of a number of people in that rather isolated community." His Honour further noted that the respondent was aman of previous good character with mo prior convictions, born in Germany, reared in South Australia and one whose early life, because of domestic difficulties, had not been easy. His Honour said that the respondent had led a useful life, obtained work and, apparently recognizing the value of education, went back to college asa mature student, eventually qualifying as a teacher. His Honour referred to evidence before him as to the respondent's dedication

and merit in that field and to a psychologist''s report which

included his conversations with a psychiatrist in Adelaide. His Honour indicated that he would have liked to have had a psychiatrist's report but apparently because of the unavailability of psychiatrists in the Northern Territory, none

"To me as a sentencing judge and as a member of the community, this is a very worrying situation and I would have liked a psychiatric report. I have, I suppose, no reason to fear that the maladaption of your sexual orientation will deepen. I'm told that you are anxious to undergo psychiatric treatment and it is clearly necessary that you should do so

"IT recognize all that has been stressed concerning the deterrent aspects of punishment and 1t mav well be true that many members of the public - in fact I'm sure it is, accept that the courts have an obligation to punish people such as you. This is understandable and it is not of course unusual for persons involved in this type of offence to he people of previous good character.

Counsel for the Crown submitted that the sentences imposed on the respondent were manifestly inadequate, individually and collectively, in that there had been no imposition of an immediate custodial sentence. It was pointed out that in respect of each of the first three charges, having regard to the allegation of circumstances of aggravation. the maximum penalty was 14 years' imprisonment: and in respect of the fourth charge the subject of an ex officio indictment, the maximum penalty was 7 years' imprisonment, indicating how

seriously these offences were regarded by the legislature.

Counsel referred us to his Honour's words on sentencing - "Accepting that my primary responsibility is to the community, I take the view in this case that the ultimate community safety in the interests of justice will be best served if I impose terms of imprisonment but direct that they be suspended forthwith subject to various conditions."

Counsel contended that his Honour in so saying "erred" in giving

undue consideration to rehabilitative aspects of sentencing when

the whole of the evidence before his Honour was that

"psychiatric" treatment (he referred to a report of Dr. Smith. a

clinical psychologist) indicated "prognosis regarding the problem

of sexual orientation would tend to be uncertain at best": and the opinion of Dr. Smith was that "there would be no reasonable assurance of a successful outcome...." Counsel submitted the concern of the learned trial Judge with the prospects of further psychiatric rehabilitation, led his Honour into a third error of

therefore not giving proper consideration to the deterrent

aspects of sentencing, He said that even if there were

reasonable prospects of psychiatric rehabilitation there must have been shown exceptional circumstances in order that a sentencing tribunal replace immediate custodial sentence with some other form of sentencing option. He referred to R. v. Tait

and Bartley (1979) 24 ALR 473; The Queen _v. Dave (1980) 50

F.L.R. 57 (Davey); The Queen. v. Molina (unreported) No. NIG 14 of 1984, decision of the Full Court of this Court, 24 August 1984

(Molina); R. v. Wilton (1981) 4 A.Crim.R. 5 at p.5; The Queen v. Thornton (unreported) SCC Nos.128-132 of 1984, decision of Nader J., 7 June 1984 (Thornton). He submitted that this had not

been a case in which the Judge had made 1t clear (referring to

discussion with counsel during argument) that a non-custodial sentence was in contemplation (cf. Molina at p.10). He submitted that his Honour had been incorrectly reluctant to give anv

As to general principles of sentencing, he referred to

Davey at pp.64-66. On the question of non-parole periods, he cited R. v. Prindable (1979) 23 ALR 665 at p.669.

He submitted that in the present case the suspension of the term of imprisonment by his Honour produced a sentence so lenient as to be appealable; that it did not accord with the general moral sense of the community nor was it likely to constitute any sufficient deterrent to others or the respondent. He referred to R. v. H. (1981) 3 A. Crim.R. 53 at pp.65, 66,74;

R. v. Williscroft & Ors. £19751 V.R. 292. and ain particular at

p.298. He submitted that his Honour in the absence of psychiatric evidence had assumed that the respondent's desire to undergo psychiatric treatment would produce a satisfactory result

despite the statements by the psychologist whose report was

before him; that it was inappropriate to make such an assumption. One of the offences, he pointed out, had been committed by the respondent whilst on bail. As to the

seriousness of commission of offences whilst on bail, he referred to The Queen v. -Sallis: (unreported) Court of Criminal Appeal New South Wales, delivered 30 April 1981; R. wv. Richards £19811 2

Counsel for the respondent tendered, no objection being made by counsel for the Crown, an affidavit dated 19 February 1985 of Kenneth Peter O'Brien, a Forensic Psychiatrist. The affidavit set out the deponent's considerable qualifications in this field. The deponent referred to having seen the respondent on various occasions since his conviction because of a referral from a psychologist, Dr. Smith (to whose evidence has been referred to earlier) and "the probation clause", meaning, as Il understand it, one of the conditions of the recognizance fixed by the learned trial Judge. The deponent who has the care and supervision of the treatment of the respondent met him. and apparently treated him, on the dates below, viz. -

27 August 1984 17 September 1984 3 October 1984 24 October 1984

A scheduled appointment for 17 December 1984 was not kept but Mr. O'Brien was notified of this. He described the respondent as a homosexual paedophil who was aware of his deviant sexual attraction but had been completely co-operative in keeping

his abnormal urges under control and re-channelling his

"In summary, therefore, I am satisfied with your client's progress and am optimistic if the present arrangement continues that the risk of a subsequent offence of a similar nature is reduced, I recognise that Mr. Stach's therapy, to date, has been of a relatively short duration and understandably a prognosis, of a more definitive nature, can only be made when his therapy is further advanced."

Though the Court admitted into evidence the affidavit it is aware that its weight must be somewhat reduced because the deponent had not been cross examined. We were not told how long

Counsel for the respondent submitted that the sentence passed was reasonable in the circumstances and displayed no departure from accepted principles. He submitted that to imprison the respondent would involve a further community loss; that his client had showed contrition and a sincere attempt to rehabilitate himself; that he had volunteered information about his offences including ones not known to the police. He pointed out that the respondent had already suffered severe loss in that his teaching career was probably at an end. The offence

committed whilst on bail, he submitted, was less serious of its

kind than the others; that it was comparatively mild and one of a "compulsive nature". He pointed out that the respondent had succumbed to temptation only on three occasions. He argued that, so far as the evidence showed, the effect on the children of the respondent's conduct was effectively nil; that the offences were fleeting in nature. He said that so far as the views of the community were relevant the evidence showed that they were not all unfavourable towards the respondent. Evidence called on the respondent's behaif was really uncontested. He submitted the prosecution had failed to indicate clearly that it was seeking a custodial sentence and, having failed in its duty to raise this question at the hearing, could not now be heard in that regard.

He referred to Davey. He submitted that even if there had been demonstrated against his argument some error by the learned trial Judge it would be inappropriate to disturb the existing situation. He referred to the principle of "fairness" and drew our attention to Professor Fiori Rinaldi's article, "Dismissal of Crown Appeals Despite Inadequacy of Sentence" (1983) 7 Crim. L.J. 306. Counsel pointed out that in this case complying with a condition of his release, the respondent had embarked upon a course of psychiatric treatment; that it would be unfair now to

I have not attempted to set out completely all the arguments of counsel. The offences are beyond doubt of a serious nature which could, and may have, lasting effects on some or one

of the children (one of whom suffered the respondent's attentions

twice) possibly without that being apparent now. The period of imprisonment which the legislature has fixed indicates how gravely such matters are regarded. The offences themselves involved immoral acts committed on persons who could not really protect themselves; they also involved a serious breach of trust in the case of each child who had been committed to the charge of (or, in the case of one, who could be said to have entrusted himself to) the respondent. Whilst it has been said that the community would be at loss if the respondent were imprisoned, one has to be somewhat guarded as to the extent of that loss: when the respondent's compulsive (to borrow counsel's word) nature is borne in mind. In this respect it is necessary to note the form of expression of the forensic psychiatrist in the summary referred to above. He said no more than that he was "optimistic" that the "risk of a subsequent offence of a similar nature is reduced". The respondent's expressions of contrition, it is suggested, should not be over valued. He could hardly feel otherwise than remorseful for e.g. his activities in November 1983. Despite that contrition and the offences on 9 June 1984, there was a repetition whilst on bail on 10 July 1984 of his unacceptable conduct. Authorities which have been cited refer to how seriously offences committed whilst an accused is on bail must be regarded. In R. v. Richards (supra) at p.465, Street C.d., sitting as a member of the Court of Criminal Appeal, said -

break, enter and steal charged against her, twenty-four of the scheduled offences and the

receiving. offence. It is a matter for grave concern that the appellant, having been afforded the opportunity of liberty on bail whilst awaiting coming up for sentence, abused that opportunity by committing a further very large number of offences. As the lists of persons awaiting trial on serious criminal charges continue to lengthen, there are at large within the community an increasing number of persons on bail. Many of those persons will in due course plead guilty to, or be found guilty of, the offences for which they are awaiting trial. The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail."

See also The Queen v. Sallis (supra). That the respondent committed such an offence on bail suggests either that he was not sufficiently impressed with the process of the law which had already operated to charge him with serious offences; or the compulsive aberration, in his case, is stronger than might have been feared; and so is possibly to be likely to operate again if appropriate circumstances occur in the future. It is in his favour he volunteered the 1983 offences. co-operated with the police and pleaded guilty. The possibility that the young boys would have had to recall the details of the respondent's activities and describe them perhaps ina court of law has thus been avoided. And the respondent, by the probable loss of his teaching career, at least so far as it might bring him into contact with very young persons, has suffered a punishment even

The argument that a custodial sentence should not now be

imposed upon the respondent because the prosecution failed to seek that punishment before the trial Judge needs consideration. The transcript shows that the respondent's counsel before the trial Judge in argument raised immediately the consideration of a gaol sentence and then contended that it would be singularly inappropriate for the respondent. Without any such submission it would be well within the contemplation of this experienced trial Judge that an issue for him would be whether or not there should be such a sentence imposed. His Honour's own remarks during argument so indicated. It seems that the prosecutor, in

his submissions, proceeded upon the basis that a gaol sentence

was appropriate to satisfy the need for deterrence; yet his arguments were not explicit. In my opinion the issue of custodial sentence or other treatment was within the contemplation of the trial Judge as he heard submissions. It remains, however, the duty of Crown counsel to make "an appropriate reference to any special principles of sentencing" (R. v. Tait and Bartley (supra) at p.477); and whilst the Crown does not press "as an adversary....for a heavy sentence" it ought not to refrain, where appropriate, to point out to the Court reasons for imposing a custodial sentence; and even provide, if assistance is needed, some reference to the length of sentences

In my opinion the seriousness of the offences committed whilst the respondent was in a position of trust, and

particularly when one of them was committed whilst on bail, would

ordinarily require a custodial sentence and one to operate immediately, despite the strength of the character evidence called in his favour. It may be that the trial Judge, with very great respect, did not attach sufficient weight to the deterrent aspect of punishment, not only in respect of the respondent but others who might be more likely to commit similar offences if it were thought that such aberrations would not be likely to result in immediate custodial sentences. We are dealing with this case 6-1/2 months after the order of the trial Judge. The respondent, so far as the evidence shows us, has complied with the order of the learned trial Judge and it appears with some benefit being received from the treatment he has accepted. That treatment, for whatever period it may still continue, would be interrupted by any custodial sentence, to the detriment of the respondent, if not to the community. It seems to me, with respect, that this

appeal could and should have been brought on earlier. In this regard I do not overlook the difficulties which it was suggested at the Bar attended the obtaining of an expeditious hearing.

Those difficulties, I consider, might well have been avoided if there had been some resolute approach to this matter at an

Counsel for the Crown, during the course of arqument, told us that he did not seek to disturb the head sentence but sought only that there should be an order that the respondent

In my opinion the words of Jordan C.J. in R. v. Geddes 36 S.R. (N.S.W.) 554 provide an overall guide to which one might

general moral sense of the community in relation to

inclination, " See also R. v. Kane £1974] V.R. 759 at p.765; R. v. Williscroft & Ors. (supra) per Adam and Crockett JJ. at pp.298-301. Although it would have been better to have had any actual custodial aspect of sentence operate immediately, such a consideration ought not to dissuade this Court in the present circumstances from intervening if 1t thought fit. The legislature has indicated its view of the gravity of these offences. They may be punished with

sentences of seven years' imprisonment even without aggravating circumstances as, inall the offences, were present here. The Crown signified its intention of seeking a more appropriate punishment in its Notice of Appeal as early as 17 August 1984. The course I propose does not, I suggest, transgress the principle of "fairness" which Professor Rinaldi discusses in his thoroughly researched article mentioned earlier. In my opinion the sentence ought to be varied so that there should now be

imposed a period of immediate detention. Such decision will not

deprive the respondent of any advantage he may have had from

I propose, therefore, that the appeal be upheld and that

an appropriate minimum period of imprisonment be indicated.

Since I am aware that I am in a minority in this opinion, it may

not assist to fix such a period. If the head sentence is not

disturbed, I consider a non-parole period of 18 months would meet

pr--<ding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice McGregor.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (196 paragraphs)

Cases Cited (2)