R v THOMSON [2000] NSWCCA 476

New South Wales Court of Criminal Appeal

CITATION : R v THOMSON [2000] NSWCCA 476 FILE NUMBER(S) : CCA 60574/99 HEARING DATE(S) : 20/11/2000 JUDGMENT DATE : 22 November 2000

PARTIES : REGINA v Dennis John THOMSON JUDGMENT OF : Barr J at 1; Carruthers AJ at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0251 LOWER COURT JUDICIAL Nader ADCJ QC OFFICER :

COUNSEL : Crown: PG Berman SC Applicant: R Burgess SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys

DECISION : Leave to appeal granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60574/99

BARR J CARRUTHERS AJ

Wednesday, 22 November 2000 REGINA v Dennis John THOMSON JUDGMENT

1 BARR J: The applicant Dennis John Thomson seeks leave to appeal against sentences imposed upon him in the District Court. On 31 May 1999 the applicant pleaded guilty to three counts to aggravated indecent assault on a person under the age of sixteen years. He was called on for trial for seven sexual offences against a boy of eleven or twelve years of age. Four of the counts were for sexual intercourse and the others were for aggravated indecent assault. After the jury were empanelled to try him on all counts he offered a plea of guilty to the three counts of aggravated indecent assault and the Crown accepted the plea in discharge of the indictment. 2 Before 1995 the applicant and the complainant's mother began living together. In June 1995 they married. Living with them was the complainant, a boy then eleven or twelve years of age, and his sister. The applicant indecently assaulted the complainant on a number of occasions throughout 1995. On one occasion, which took place between 1 June and 1 November, the complainant was alone in the lounge with the applicant. The applicant seated himself beside the complainant on the floor and began to rub, the complainant's, penis. He then put his mouth on the complainant's penis. 3 On another occasion, in November or December, the complainant and the applicant were alone in the house watching a video. The applicant was drinking wine. When the video ended the applicant sat on the lounge chair next to the complainant, placed his hand down the front of his underpants, masturbated him and touched his penis with his mouth. 4 The final incident took place on 1 December. The complainant was in the spa, clad only in underpants. The applicant joined him and rubbed his penis on the outside of his underpants. 5 Otherwise the applicant masturbated the complainant a number of times over the year and on some occasions put his mouth on the complainant's penis. He told him not to tell anyone and threatened that if he did, he would withhold promised gifts. The complainant kept these matters to himself because he was afraid and did not know how to stop the applicant behaving in that manner. 6 On 4 December 1995 the applicant was interviewed by the police but did not admit any sexual misconduct. 7 The offences constituted a breach of trust, as the sentencing judge, Acting Judge Nader of Queen's Counsel, observed, and had a serious effect on the complainant, who had suffered sleeplessness, nightmares based on abuse by the applicant, suicidal thoughts, irritability, aggression, doubts about his sexuality and self-blame for the events complained of. At the time of sentence he was exhibiting symptoms of post-traumatic stress disorder. 8 On the first count, and taking into account five months and fifteen days' pre-sentence custody, his Honour imposed imprisonment for two and a half years, comprising a minimum term of one year and an additional term of one year six months. On the second and third counts his Honour sentenced the applicant to concurrent terms of imprisonment each of three years, comprising a minimum term of one year six months accumulated on the minimum term imposed on the first count and additional terms of one year six months. The total effective sentence, excluding pre-sentence custody, was therefore one of four years, comprising a minimum term of two years six months and an additional term of one year six months. The maximum sentence for each offence was imprisonment for seven years. 9 It was submitted that the sentences were excessive in all the circumstances particularly in view of the pleas of guilty, the effect that imprisonment would have on the applicant because of his poor physical and psychological health and the fact that the offences were out of character. 10 It was submitted that the applicant had no memory of the incidents alleged but pleaded guilty because he wanted to avoid the need for the complainant to give evidence. A report of Dr Jolly, psychiatrist, was before his Honour and Dr Jolly offered the opinion that from time to time the applicant had not properly registered things when intoxicated and that it was not impossible that he had acted in an uninhibited style. Dr Jolly concluded that the applicant probably genuinely did not have a full memory of the things to which he pleaded guilty. However, Dr Jolly observed that the applicant had conceded that he may have masturbated in front of the complainant when he had drunk too much. 11 His Honour quoted extensively from Dr Jolly's report and said - There is some suggestion that he cannot remember these things. The psychiatrist has expressed himself with uncertainty about that but the prisoner says that in any event he has pleaded guilty to avoid (the complainant) having to give evidence and in fact I am informed by (counsel) that he has not had to give evidence in any proceedings. I have no doubt that personal deterrence is not necessary in this case and that no part of the sentence should be attributable to that element of, that particular aspect of sentencing principle. 12 I do not consider that this amounts to finding that the applicant had no memory of the incidents giving rise to the charges, though his Honour apparently took the view that the applicant could not remember everything that he had done to the complainant and gave weight to the fact. 13 The applicant's lack of recollection would render the pleas of guilty less valuable as evidence of contrition because they would be offered in the face of a Crown case the applicant could not meet. 14 On the other hand, the utilitarian value of the pleas would be undiminished. As to that, his Honour was at some pains to stress the importance of the pleas of guilty because they made it unnecessary for the complainant to undergo what his Honour called the "appalling experience" of giving evidence, particularly of being cross-examined. 15 It was correctly submitted that the applicant was entitled to a significantly lesser sentence for the utilitarian benefit of his pleas of guilty. However, the sentences themselves do not suggest to me that a proper allowance was not made on that account. 16 It was submitted that the applicant was suffering from severe depression and a longstanding injury to his groin, that he became impotent and drank very heavily during the latter half of 1995. His Honour took those matters into account. However, it does not appear to me that these matters went any way towards explaining why the applicant acted as he did. Dr Jolly observed that he had tried, in interviewing the applicant, to assess what had happened and why. He went on to say that he still did not know and did not know whether the applicant knew properly either. 17 Then it was submitted that the offences were out of character. As I have observed, the applicant's assaults on the complainant took place over a period of about a year. He was only to be sentenced for three of them, of course, but proof of the others was relevant to the applicant's character. It would be correct to say that there was no evidence that the applicant was attracted to any boy other than the complainant and it might be correct to say that he was not homosexual, but quite a different thing to say that the three offences for which he was sentenced were out of character. Whatever may have been the position early in the year, the offences seem to me to have been firmly within character by the time the applicant committed those for which he was to be sentenced. A finding otherwise would have been against the evidence. 18 Then it was submitted that because of the applicant's state of health he would serve his prison sentence hard. His Honour observed that the offences were committed when the applicant was under great stress for a number of reasons, including the deterioration of his marriage. His Honour observed that the applicant was not strong, healthy or young and would have to serve his sentence in strict security and in strict protection. It was submitted that notwithstanding that his Honour mentioned these matters, the sentence imposed was so long that his Honour must have given them insufficient weight. 19 Reliance was placed upon sentencing statistics. It was submitted that given the maximum penalty of seven years' imprisonment, an effective sentence of just less than four and a half years was outside the permissible range of sentencing discretion. I do not find the statistics cited of much assistance because they seem to refer only to sentences imposed for single offences. It has to be borne in mind that the applicant committed three offences over a period of about half a year, a long time. His criminality was much greater than that of an offender committing a single offence. 20 I do not think that the effective sentence fell outside the range of his Honour's sentencing discretion. I would grant leave to appeal but would dismiss the appeal. 21 CARRUTHERS AJ: I agree with the orders proposed by Barr J. **********