New South Wales District Court CITATION: Peter Lane v Regina [2006] NSWDC 164 HEARING DATE(S): 20th September 2006 EX TEMPORE JUDGMENT DATE : 09/27/2006 JUDGMENT OF: Nicholson SC DCJ DECISION: Appeal dismissed, conviction confirmed, sentence confirmed. CATCHWORDS: Criminal Law - Appeal from Local Court - indecent assault - disinhibited behaviour - alcohol - significant power imbalance because of complainant's disability. PARTIES: Peter Lane - Appellant Regina - Respondent FILE NUMBER(S): 06/22/1338 COUNSEL: H. Barker, Crown Prosecutor's Chambers, Penrith SOLICITORS: Defence: Mr J. Mulder, Legal Aid Commission JUDGMENT 1 HIS HONOUR: Peter Lane, who gave an address at Ingleburn when he was arrested, appeals against the severity of a sentence imposed upon him by her Honour Magistrate Barry in the Penrith Court. 2 Her Honour dealt with him for an act of indecency that occurred in the late afternoon of 7 December 2005 at Penrith. She imposed a sentence of fifteen months imprisonment which was backdated to 24 June 2006 when the appellant was arrested. 3 The Court's task is to evaluate, by way of rehearing, the evidence before the learned magistrate and come to its own view about the sentence that ought to be imposed; always bearing in mind that if a sentence greater than the magistrate was to be imposed that the appellant ought be warned. 4 Luke T. is aged twenty. He suffers from attention deficit hyperactivity disorder and autistic characteristics of moderate range. He was first diagnosed as autistic at the age of two and a half. He was at the Nepean Accident and Emergency with his father. He had gone to the male toilets, had locked the door behind him, sat on the toilet seat and urinated. 5 The appellant tells his counsel that he was at the hospital, seeking treatment for something or other, and also chose to use the toilet. He appears to have been able somehow or other to unlock the cubicle that Luke T. was in. 6 Luke T. had finished the toilet and had pulled his pants up. The appellant, who clearly must have been under the influence of alcohol, walked up to the complainant, said to him that thought he was pretty and that he wanted to marry him. The appellant then kissed the complainant on the lips and touched him around his breast. The complainant pushed the appellant away, telling him that he was not allowed to do that, that the appellant was a stranger. 7 On two occasions the appellant again assaulted him in that way and the complainant repeated on each of those occasions that he was not allowed to do that as the appellant was a stranger. 8 The appellant then touched the complainant on his penis and testicles, squeezing the testicles hard, causing the complainant to cry. Yet again, the complainant said to the appellant, "Stop that.", he was not allowed to do that and he was not allowed to touch his private parts. 9 The appellant repeated that he loved the young man and wanted to marry him. The appellant then left the toilet area and the complainant also left. Complaint was made shortly thereafter to the complainant's father. 10 When the police arrived they approached the appellant, who they felt was highly intoxicated with a long neck bottle of VB beer next to him. The appellant's response to his situation was in these terms: "All I want is a roof over my head and what I have to do to get locked up. How bad do I have to be?" 11 The appellant tells his solicitor that basically he has lived in the last few years an itinerant lifestyle. He is fifty-six, I think it is, years old and this is his first time of full-time custody. He has, in his earlier life, been employed in various occupations but received a disability pension some years ago for some sort of degenerative cancer of the spine. 12 He himself has four children, one by a marriage more than thirty years ago now and the other three from a marriage that lasted some twenty-eight years. He has been separated from that wife for eight years now. He has lost contact with his family. 13 It would appear that he has a real problem with alcohol. There are accounts of him falling on the railway tracks, there are accounts of him being assaulted, there is history of him having prescribed concentration of alcohol offences and assault offences. It would be fair enough to infer that those assault offences are probably related to alcohol consumption. True it is, he does not have any offences of this kind. 14 If one has regard to the objective criminality of this offence the starting point is to recognise that all humans are entitled to the integrity of their body. It would appear on at least three, and perhaps four, occasions this appellant persisted in face of rejection of his advances by the complainant. That adds, in my view, to his criminality. He has also targeted a person who clearly is handicapped. That is not a factor though that I feel I can take into account because it really constitutes an element of another offence with which the appellant could have been charged. But I am entitled to take into account the power imbalance between he, on the one hand, and the complainant on the other. 15 My own view is that the sentence of fifteen months, with a nine month non-parole was a sentence that made allowance for his record and for his itinerant lifestyle. 16 It is likely when he is released, unless there is some good fortune befall him so far as the Department of Housing is concerned, that he will resume the itinerant lifestyle and likely resume the alcohol consumption because it does not appear to me from anything that Mr Mulder has said that he has come to grips with his alcohol problem or the trouble that it can get him into. 17 In all the circumstances I would have, quite possibly, actually imposed a sentence slightly stronger than this. It seems her Honour has found special circumstances. It is unlikely I would have. 18 In all the circumstances the appeal will be dismissed. HIS HONOUR: The formal orders are that the appeal is dismissed. The conviction confirmed. The sentence of imprisonment imposed by the Local Court confirmed. The non-parole period of nine months confirmed. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.