W v Tasmania [2007] TASSC 24

Judgment Number: [2007] TASSC 24

1 Appeal allowed.

2 Sentence quashed.

3 Appellant sentenced to imprisonment for 3 years from 29 September 2006 and ordered not to be eligible for parole until he has served 18 months of that imprisonment.

1 The appellant pleaded guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years. On 6 October 2006, he was convicted and sentenced to imprisonment for four years commencing on 29 September 2006 and it was ordered that he not be eligible for parole until he had served two years of the imprisonment. It was ordered under the Community Protection (Offender Reporting) Act 2005, that the Registrar under that Act cause his name to be placed on the Register and that he comply with the reporting obligations under that Act for a period of five years from the date of his release from prison. He has appealed against the sentence. The three grounds of appeal that were maintained at the hearing were the following:

a. finding there was no evidence of remorse when the material before him was replete with such evidence; and

b. failing to give appropriate weight to such evidence.

2 The learned sentencing Judge failed to give the appellant sufficient discount from what otherwise would have been an appropriate sentence for the plea(s) of guilty entered by the applicant [sic] in the circumstances of this case.

...

4 The learned Judge erred by imposing a sentence which was manifestly excessive having regard to all the circumstances of the case."

2 In summary, the facts were as follows. In November 1991, the appellant commenced a relationship with a woman who had two daughters and a son. The complainant, who was one of the daughters, was then 13 years of age. Over the next year or so, the appellant became a much loved father figure for her. He showed a special interest in her, was attentive to her and flattered her. He took her side when she was in conflict with her mother. In short, he led her into giving him her total trust and love. At the end of 1992, when she was 15 years old, her sister left the house to live with her father. Early in July 1993, when the appellant was about 38 years old and the complainant was 15 years 10 months old, he was travelling with her in the back seat of a car when he made his first sexual advance towards her by placing her hand on his trousers over his erect penis. At about that time he untruthfully told her that if she and her mother were not getting along, her mother had handed her future care over to him. He told her that he would train her so that she could satisfy sexually her future partner. He also told her untruthfully that her mother knew and approved of the sexual training.

3 There followed an escalating course of sexual contact, starting with kissing, touching and masturbation, always followed by the teacher's appraisal of her sexual performance. Such was the trust he had lured her to place in him, she believed that his criminal conduct was normal behaviour done for her benefit with the approval of her mother. The sexual conduct then progressed to oral sexual intercourse, which occurred so frequently between July 1993 and August 1994 that it became a normal part of her every day life whenever he was home from his occupation of fishing. There was one attempt at vaginal sexual intercourse that was painful and not repeated.

4 In August 1994, just after her 17th birthday, the mother's suspicions concerning the closeness of the relationship between the two were confirmed by a man who told her that they had shared the same bed in his home when staying there. There was no further sexual conduct between the appellant and the complainant.

5 It was not until November 2003 that the complainant reported the matter to police. For a reason that does not appear to have been explained, the appellant was not spoken to by police until October 2005.

6 The first ground of the appeal attacks, in particular, a statement by the learned sentencing judge in his comments on passing sentence that "I detect no remorse for your wicked conduct". After summarising the events constituting the crime, the learned judge said:

"In August 1994, after the complainant turned 17, her mother found out about all this. When she confronted her daughter, she was told that she thought her mother knew all about it. Sadly, the mother's response was to expel her daughter from the home. When the mother confronted you about your criminal conduct, you said, with breathtaking arrogance, 'It's none of your business, it's between A and I and you will need to ask her.'

It was nearly 10 years before the complainant reported your crime to the police. Your arrogance continued as is evident from a remark made to a family friend at about that time, "I don't know what A has told you but I have only had oral sex with her."

After fostering the complainant's complete trust in you, you set about a calculated course of grooming a teenage female child into becoming your sexual plaything. The victim impact statement and psychologist's report shows that you have caused your victim to suffer substantial psychological harm, not the least of which is totally unwarranted feelings of guilt that she experiences every day of her life. Although you pleaded guilty and saved the complainant the trauma of giving evidence for which you are entitled to some credit, I detect no remorse for your wicked conduct."

7 The learned judge had been informed by counsel for the State that during the period of the crime, the complainant was fighting regularly with her mother. On having her suspicions confirmed in August 1994, the mother confronted the complainant and they had a heated argument about the relationship. The complainant said that the appellant had told her that her mother had known all about what was going on between them. Her mother asked whether she was sleeping with the appellant. She did not deny it and as the learned judge observed, her mother's response was to expel her daughter from the home. She went to stay with a friend of the family for a short period of time but was allowed to return home. Her mother continued her relationship with the appellant, and he continued to live with them. The complainant was told by her mother to keep away from him.

8 At the time she confronted her daughter, the mother also confronted the appellant when he came home that evening. His response was "it's none of your business, it's between [the complainant] and I and you will need to ask her." He refused to answer questions from the mother about the relationship. For a period of time, the mother attempted to have both the appellant and her daughter disclose what had been going on. He never denied the conduct. He had told the complainant that in some cultures their relationship was regarded as normal. He also told her that what he had done was not wrong, that he had done it for her benefit and that she was lucky that she had a father who loved her so much. However, as mentioned earlier, his sexual relationship with the girl did not continue from that time.

9 In March 2004, a family friend told the police about what the complainant had revealed in 1994 concerning the relationship. About eight to 10 weeks later, the appellant visited the friend and told her that she knew how much he cared for the complainant and that he understood that the friend had made a statement to the police about him having had sex with her. The friend confirmed that she had done so. The appellant went on to say, "I don't know what [the complainant] has told you, but I've only had oral sex with her", and added, "She was going to have oral sex with other males anyway so she may as well learn how to do it properly with someone who cares for her." He went on to say how much he cared for the complainant and how different his feelings for her were than for her mother. He reiterated that it was only oral sex and said it had happened frequently.

10 When police interviewed the appellant on 27 October 2005, he denied any unlawful sexual conduct with the complainant during the relevant period. However, he stated that he had dealt with the intimacy of his relationship with her in an appropriate manner. He was initially charged with separate unlawful sexual acts and not with maintaining a sexual relationship with a young person under the age of 17 years. Depositions were not taken and on 29 June 2006, he was committed for trial. However, prior to that date his counsel intimated to the prosecution that he would plead guilty once the appropriate charge or charges had been resolved. He in fact pleaded guilty on 29 September 2006.

11 In a victim impact statement, the complainant referred to how she had worked slowly to understand and heal the devastation to her self-esteem and her family ties. She continued:

"A good part of that healing process has included bringing this case to the police - initially for the purposes of validation - a need for which was borne of anger and frustration at [W's] apparent dismissal of the issue, but subsequently to open the channels of communication on a subject that had been hitherto taboo in our family - presenting an obvious barrier to any genuinely familial relationship. Despite the trauma and pain this action has caused both of my parents, my siblings and myself, I feel it has been successful in that it has allowed for a situation where [W] has been able to accept responsibility and go some way towards understanding the consequences of his actions. I am pleased that he has realised the absolute necessity of attending to his own personal issues with counselling. This allows me to move on in life knowing that this matter has been addressed in a manner which will not only heal my grief but allow him to more fully and responsibly enjoy his family in the future."

12 It was submitted to the learned judge by counsel for the Crown that when it was first raised with him in 1994, the appellant showed no remorse for his conduct, and it was pointed out that even in 2004, when he became aware that the family friend had made a statement, he did not acknowledge the wrongfulness of his actions. Similarly, as already mentioned, when interviewed on 27 October 2005, he denied any unlawful conduct.

13 Notwithstanding the appearance of lack of remorse on the part of the appellant, his counsel urged the learned judge to find that there was remorse and some documentary material was presented to evidence it. First, counsel referred to the fact that since 1994 the appellant had not resumed the sexual relationship but had tried to have an appropriate relationship with the complainant thereafter. He had employed her for a time in a business he owned. He sold her a house. When she had a child recently she contacted him to introduce him to the child and her husband. Counsel accepted that the contact was only occasional and although friendly, it was strained because of the proceedings. She had, in fact, sued him for damages arising out of his sexual assaults. The action was unresolved.

14 His counsel said that notwithstanding the way in which he conducted himself at the police interview, he had acknowledged his guilt whenever his conduct was raised with him by members of the community. Two references were tendered in support of that. One was from Mr Scott Newton, dated 28 September 2006. He was a valuer and State President of the Australian Property Institute. He spoke highly of the appellant. Relevant to the issue of remorse, Mr Newton said: "[W] has expressed to me on numerous occasions his deep remorse for having been involved in the relationship with the complainant in this case. He has expressed his sincere regret about his conduct."

15 The other reference, dated 28 September 2006, was from Mr Matthew Wallace, the Managing Partner of KPMG in Hobart. He spoke highly of the appellant so far as his business integrity and character were concerned. Relevant to the issue of remorse, he said:

"Late last year I became aware that [W] had been charged with maintaining a sexual relationship with a minor. I decided to raise this with [W]. During our discussion about it, I was impressed that [W] did not try to deny it, instead confirming that he was guilty, and he articulated clearly to me what a gross error in judgment he was guilty of. It has been obvious to me that [W] has continued to be disappointed with himself and very remorseful for his conduct, not so much for the personal ramifications, but for the minor involved and those affected around him.

[W] told me that he was very concerned that he did not want the minor put through any more trauma, especially not any court proceedings. He stated that, as he was doing his best to continue an appropriate relationship with the complainant, it was important that he do whatever he could to make sure she was not further traumatised. [W] said that he would make redress however he could. [W's] acknowledgment of his guilt without a trial is testament to that."

16 Also placed before the learned judge was a report, dated 26 September 2006, from a clinical psychologist, Dr H E Stanton. He stated that over the past four years, the appellant had sought his help in resolving a number of long-term problems, the most pressing of which pertained to his difficulty in maintaining a stable, long-term relationship. Dr Stanton referred to childhood difficulties for the appellant concerning long-term sexual abuse he suffered at the hands of a Catholic priest and the breakdown of his relationship with his mother. He then referred to the emotional and then sexual bond that developed between the appellant and the complainant, and continued:

"For this, [W] accepts full responsibility. He has expressed great regret over his actions and I feel that, in this, he is quite genuine. During the course of the sexual relationship he was not really aware that he needed help. His extreme remorse over behaviour he now sees as totally irresponsible is quite believable. In virtually all other respects, [W]impresses me as a very moral person with a desire to make his present relationship as strong as possible and to provide strong guidance both to his own children and those of his partner. His present life is one of unobtrusive decency.

This opinion, which I have developed over my work with [W] stems, in part, from the manner in which, in the years following the end of his relationship with the complainant, he has sought professional help in order to gain insight into his relationships with women. A strong motivating force behind this search for help is, I believe, his desire to ensure he would never again be guilty of the inappropriate behaviour he engaged in with the complainant. Through the process of reflection and counseling we have undertaken together, [W] appears to have gained a great deal of insight into his earlier behaviour. Through voluntarily undertaking this journey of self-discovery, which has stretched over the period of four years, his remorse certainly seems to be quite genuine."

17 It was submitted by the appellant's counsel that the conduct was a lapse during an otherwise good and blameless life and that contrary to the State's submission, the appellant had demonstrated some remorse which ought to have been given full weight. The learned judge observed that the State would say that the appellant did not show remorse when spoken to by the family friend in 2004, but in fact showed considerable arrogance. Counsel for the appellant urged the learned judge to look at the entire picture since 1994 and relied on the plea of guilty and the fact that the appellant had fully accepted his guilt in more recent times. The learned judge said, "I'm saying in the earlier stages it doesn't seem to me there was much by way of remorse", with which counsel for the appellant took no issue. In reply, counsel for the State referred again to the appellant's statements to the family friend, in which he played down and justified his criminal conduct, and pointed out that they were probably made two years after he had commenced to see Dr Stanton. Counsel for the State pointed out once again that a year later, in 2005, the appellant did not admit responsibility for his actions when interviewed by police.

18 At the hearing of the appeal, counsel for the appellant understandably relied on the statements concerning remorse of Mr Newton, Mr Wallace and Dr Stanton, along with the plea of guilty, as evidencing that there was in fact remorse on the part of the appellant in recent times. Dr Stanton had referred to an acceptance of "full responsibility", an expression of "great regret" and the existence of "extreme remorse". Counsel pointed out that Dr Stanton did not assert that remorse was apparent from when he first saw the appellant in about 2002, or even in 2004 at the time the appellant spoke to the family friend. Dr Stanton's report expressed the existence of genuine remorse in September 2006 and not at any particular time prior to then. The testimonials of Mr Newton and Mr Wallace were also written in September 2006 and although they attested to expressions of remorse on a number of occasions, only Mr Wallace dated them when he indicated that his discussion with the appellant about his crime was no earlier than late 2005.

19 It is the appellant's case that the learned judge erred when he stated that there was no remorse and that if the learned judge was contemplating rejecting the suggestion of remorse, he should at the very least have given the appellant the opportunity of providing further evidence of it. Instead, it was submitted, the learned judge lulled the appellant's counsel into believing that the assertion of remorse was accepted to a limited extent by his Honour's statement to counsel that "I'm saying in the earlier stages it doesn't seem to me there was much by way of remorse."

20 Remorse is a mitigating factor. Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186; Ferguson v R [2001] TASSC 20 at par16. It is not necessarily shown by a plea of guilty and in any event, if its presence is contested, and its presence would be material to the sentence, it must be established on the balance of probabilities because it is a matter that would favour the accused person. R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 286. It must, of course, be genuine, but assertions that it exists must not be rejected upon the basis that it is not genuine, unless the accused person is given the opportunity of proving the contrary provided, as I have said, the resolution of the issue would be material to the determination of the sentence. Nash v Haas [1972] Tas SR 1; R v Olbrich at 286. With respect to the learned judge, I feel that the appellant's grievance is soundly based. Although it is impossible to know the extent to which, if any, the sentence of imprisonment would have been reduced if the learned judge had accepted the late expressions of remorse as genuine, I think in all the circumstances of the case, it would be unjust not to uphold the first ground of appeal. It was erroneous to reject the assertion of remorse without giving the appellant a further opportunity to prove it. Accordingly, I would uphold ground 1, quash the sentence and re-sentence him upon the basis that his late expressions of remorse were genuine.

21 The second ground of appeal is based on the statement of the learned judge that the appellant was "entitled to some credit" for having "pleaded guilty and saved the complainant the trauma of giving evidence". It was submitted by counsel for the appellant that "some credit" was inadequate and did not reflect sufficiently that, particularly in a case involving sexual crimes committed upon a young person, a plea of guilty should normally be regarded as a substantial circumstance in mitigation of an otherwise appropriate penalty. Ferguson v R at par16. Without knowing the extent to which the learned judge reduced the length of the sentence of imprisonment by reason of the plea of guilty, it is impossible for this Court to be satisfied that error occurred because he gave "some credit" for the plea.

22 The final ground of appeal asserts that the sentence was manifestly excessive. It is unnecessary to determine it in view of my decision that the first ground of appeal should be upheld and the sentence quashed. I comment that the sentence was a relatively severe one and equivalent to one of at least five years' imprisonment if there had not been a plea of guilty.

23 Counsel for the appellant referred the Court to a number of matters. They included that no physical force or threats were used, that the initiation of a close relationship was not sexually motivated, that the complainant's psychological trauma was ameliorated as a result of the appellant accepting responsibility for his conduct and pleading guilty and that with the exception of one month, the complainant was 16 years of age and within one year of the age of consent at the time of the offence. Counsel emphasised that at the age of 51 years at the time of sentencing the appellant was otherwise of excellent character, to which referees attested, with no prior convictions, that he indicated that he would plead guilty at an early stage and that, albeit at a late stage, he accepted responsibility for his conduct, acknowledged his wrongdoing and demonstrated genuine remorse.

24 It was submitted by the appellant's counsel that when considering the length of the sentence of imprisonment that should be imposed, the Court should take into account the order the learned judge made requiring the appellant to report under the Community Protection (Offender Reporting) Act for five years. That order remains. It was not made the subject of the appeal. (His counsel conceded that the appellant had no right of appeal against the order.) No doubt the Court may take the consequences of his conviction into account. Nevertheless, it cannot be ignored that the purposes of the Act, as expressed in the preamble, are not to punish but to reduce the likelihood of re-offending and to facilitate the investigation of any future offences that may be committed by the offender, and for that reason, an offender's reporting obligations should not have much influence on the sentence, in most cases.

25 Counsel for the appellant also submitted that weight should be given to the 12 year period that elapsed between the commission of the crime and the charge and imposition of the sentence. The Court should have regard to the fact that in the intervening period the appellant did not re-offend. However, the mere fact of delay should have little, if any, effect in a case where the crime was a sexual one committed against a child. It was explained to the learned judge that the complainant did not want to go to the police at an earlier point in time than she did because she was too concerned about the impact her disclosure would have on her mother, her siblings and the son of the appellant. In addition, she was scared that no one would believe her. It has been said that lengthy delay, not attributable to the fault of the accused person, will often lead to considerations of fairness to him playing a dominant role in the determination of the sentence. R v Todd [1982] 2 NSWLR 517 at 519 - 520; R v Law, ex parte Attorney-General [1995] QCA 444; [1996] 2 Qd R 63 at 66; R v Schwabegger [1998] 4 VR 649 at 660; Prehn v R [2003] TASSC 55 at par21. However, the mitigating effect of delay will depend on the circumstances of each case and in this case it does not extend very far beyond the chance for the appellant to demonstrate rehabilitation and eventual remorse. It has not been suggested that he suffered a detriment in some way as a result of the delay or that there was any other particular reason why, out of fairness, it should operate in reduction of the sentence.

26 Commonly, consensual activity with a young person who was within about a year or so of the age of consent is not punished with a long period of imprisonment. But once again, each case depends on its own circumstances. Particularly aggravating in this case were that the appellant filled the role of the complainant's father and that having gained her love, he used deception to lure a sexually immature and naïve girl into engaging in sexual activity with him on a great many occasions. That a substantial percentage of them involved oral sex demands a sentence of imprisonment of some length. It is a far worse case than most of those that come before courts involving a complainant of her age.

27 I would re-sentence the appellant to imprisonment for three years from 29 September 2006 and order that he is not to be eligible for parole until he has served 18 months of that imprisonment.

File No CCA 71/2006

28 I have read and agree with the reasons for judgment prepared by Crawford J. I, too, would allow the appeal and re-sentence the appellant to three years' imprisonment from 29 September 2006 and order that he not be eligible for parole until he has served 18 months of the sentence.

29 I have had the opportunity to read the reasons of Crawford J in this matter and agree with those reasons and the orders proposed.