New South Wales Court of Criminal Appeal CITATION : REGINA v BOOTH [2000] NSWCCA 239 FILE NUMBER(S) : CCA 60753/98 HEARING DATE(S) : 29 May 2000 JUDGMENT DATE : 29 May 2000 PARTIES : Regina v Rodric David Booth JUDGMENT OF : Sully J at 18; Adams J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0124 LOWER COURT JUDICIAL Latham DCJ OFFICER : COUNSEL : D C Frearson (Crown) J S Andrews (Applicant) SOLICITORS : S E O'Connor (Crown) T A Murphy (Applicant) LEGISLATION CITED : Criminal Appeal Act 1912 Sentencing Act 1989 CASES CITED: Regina v AGR (unreported, NSWCCA, 24 July 1998) DECISION : Leave to appeal granted; Substantive appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60753/98 SULLY J ADAMS J MONDAY 29 MAY 2000 REGINA v RODRIC DAVID BOOTH JUDGMENT 1 ADAMS J: The appellant, who is fifty-four years of age, was sentenced in November 1998 in the District Court at Parramatta in respect of fifteen charges of inappropriate sexual relations with a boy who was aged nine when the offences started. 2 They occurred over a period of about seven years, relatively more frequently in the earlier years and becoming rarer as the boy got older and as he felt no longer willing to involve himself in the sexual activities and was able to intimate this to the appellant. The circumstances did not involve any violence or threat of any kind nor did the appellant ever attempt to frighten the complainant from exposing their behaviour. It was clear, however, in the circumstances that the complainant knew that he should not tell his parents what was happening and that subtly or otherwise this was due to the appellant. 3 I should state at the outset that I do not regard these crimes as any more heinous because the complainant was a boy. The law prohibits, and rightly so, sexual exploitation of the young, and it matters not whether those relations be heterosexual or homosexual. They are exploitive. They are, in a very real sense, oppressive and carry a substantial risk of permanent harm to the psycho-sexual development of persons who the community has a duty to protect. 4 It is unnecessary for present purposes to describe the sexual behaviour in detail. They involve the appellant placing hands on the complainant's private parts, attempts to have anal intercourse and oral sex. They occurred on occasions when pornographic material was provided to the complainant and over the years comprised a form of illegal, morally culpable and potentially very dangerous sexual education. 5 It appears that whilst the appellant must have known that these acts were criminal he did not, at least until after his arrest, see them as immoral. I have no doubt that there are some men in the community who still think the way this appellant did before his arrest. Insofar as the law is able to correct this view, it should do so and, accordingly, in cases of this kind, the element of general deterrence is substantially, if not overwhelmingly, the most significant aspect of sentencing. 6 It was submitted by the appellant that the learned sentencing judge erred in describing the sexual behaviour as having been committed "about twice a month over the period 1985 to 1992". 7 The initial Crown concedes that this was a mistaken description of the extent of criminality. Nevertheless, it is clear from the material before her Honour that, as her Honour stated, the fifteen counts with which the appellant was charged and to which he pleaded guilty were "representative of a sustained course of sexual exploitation of the victim". 8 Her Honour referred to the evidence adduced before her that the appellant believed that he had been sexually assaulted by his father as a child and by at least one other male, although, as her Honour fairly observed, "his memory of this abuse remains incomplete". Not only was his memory incomplete but even that which he mentioned, so far as I am able to judge by the brief account of the matter in the report of Doctor Robilliard called by the appellant on sentence, did not go further than perhaps some isolated occasions. As Doctor Robilliard mentioned, the appellant did not describe these events in consultation with him but rather in a written communication which, however, was not tendered before her Honour. 9 In addition, the appellant himself had not even, when disclosing the earlier sexual abuse, made any connections between his own sexual behaviour and his early sexual experience. This offence falls far short of that referred to in Regina v AGR (unreported, NSWCCA, 24 July 1998). Her Honour stated, in this respect, that she was prepared to approach sentence on the basis that the alleged abuse "may have contributed to the prisoner's confusion as to his sexual identity preference" but concluded, quite rightly in my view, that it did "not excuse or justify his behaviour. However, it merely assists in understanding it." I do not consider the way in which her Honour dealt with this aspect of the case was otherwise than proper. 10 The next substantial point made in the appeal relates to the plea of guilty. It was submitted on the appellant's behalf that her Honour gave inadequate attention to its significance. This, of course, can only be demonstrated, not by the production of statistics, but by showing that the sentence was not markedly different from that which would have been imposed had the matter proceeded to trial. 11 Her Honour accepted that the appellant was genuinely contrite and that he deserved "some recognition by way of discount for that contrition and for the plea of guilty which I accept was entered at the first available opportunity". My view of the sentence is that it undoubtedly reflects a substantial reduction by virtue of the appellant's plea of guilty, contrition and commencement of rehabilitation. 12 The fundamental question for this Court is whether the sentence was more severe than is warranted in law. See s 6(3) Criminal Appeal Act 1912. 13 Even if her Honour erred in describing the character of the continuing offences in the way which I have mentioned, namely, as having been committed about twice a month over the period 1985 to 1992, I am of the view that the culpability of the appellant for the offences specified in the indictment and particularised in the statement of facts warranted the sentences passed on him by the learned sentencing judge. 14 Accordingly, I do not consider that the error, if it be one, is material. 15 The last significant matter pressed on the appellant's part relates to the circumstances that the appellant will need to serve his sentence in protection. There can be no doubt that this constitutes a considerable level of hardship in the sentence which would not be the lot of the ordinary prisoner and it is now, and has been for some time, accepted by sentencing courts that this must be taken into account when considering the appropriate sentence to pass. 16 Her Honour considered this matter in the context of whether special circumstances within the meaning of s 5 of the Sentencing Act 1989 existed. As is obvious from the sentences which were passed, she gave a significant discount by varying the statutory formula which was otherwise applicable between what was then the minimum and additional terms. Count 1 comprising indecent acts was punished with a twelve months fixed term. Counts 2 to 8 and 11 to 13 involved attempts to have anal intercourse and other sexual acts of less seriousness which attracted fixed terms of two years imprisonment. Counts 9 and 10 concern indecent acts at the time when the complainant was under the authority of the appellant and attracted fixed terms of three years imprisonment whilst counts 14 and 15 alleging fellatio and attempted anal intercourse without consent in each case and whilst the complainant was under his authority attracted sentences of eight years, comprising a minimum term of five years and an additional term of three years. 17 I consider these sentences to be entirely justified. I would, therefore, grant leave to appeal and dismiss the substantive appeal. 18 SULLY J: I agree with the orders proposed. I am in general agreement with the reasons given by his Honour. The orders of the Court will be the orders proposed by his Honour. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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