R v Spiller [2000] NSWCCA 36

New South Wales Court of Criminal Appeal

CITATION : R v Spiller [2000] NSWCCA 36 FILE NUMBER(S) : CCA 60283/99 HEARING DATE(S) : Monday 21 February 2000 JUDGMENT DATE : 21 February 2000

PARTIES : Daniel Patrick Spiller (applicant) Regina (respondent) JUDGMENT OF : Hidden J at 1; Carruthers AJ at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1156 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : D G Dalton (applicant) D M Woodburne (Crown) SOLICITORS : Nicola Velcic & Associates (applicant) Solicitor for Public Prosecutions (Crown) CATCHWORDS : CRIMINAL LAW - Sentence - indecent assaults on stepdaughter - not manifestly excessive LEGISLATION CITED : Crimes Act 1900 R v Baxter (CCA unreported 26 May 1994) CASES CITED: R v Turner (No2) (CCA unreported 28 July 1995) R v Barrett (CCA unreported 26 July 1995) DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60283/99

HIDDEN J CARRUTHERS AJ

Monday 21 February 2000 Regina v Daniel Patrick Spiller

Reasons for judgment

1 HIDDEN J: The applicant, Daniel Patrick Spiller, seeks leave to appeal against sentences imposed upon him by his Honour Judge Gibson in respect of three counts of aggravated indecent assault under s61M(2) of the Crimes Act, an offence carrying a maximum penalty of ten years imprisonment, and one count under subs 61M(1) of the Act, carrying a maximum of seven years imprisonment. 2 His Honour sentenced the applicant in respect of the second count, that is one of the counts under subs (2) to imprisonment of four years, comprising a minimum term of two years and an additional term of two years. On the other count under that section, his Honour imposed concurrent sentences of fixed terms of 18 months, and on the count under subs (1) his Honour imposed a fixed term of 12 months, also to be served concurrently. Effectively, the sentence to be served is a minimum term of two years with an additional term of two years. 3 The three more serious counts related to offences committed against a girl over a period when she was aged between about six and nine years. There was evidence that the three counts were not isolated incidents but were part of a pattern of indecent behaviour over roughly a three year period. The less serious count relates to indecent conduct with a girl aged twelve and relates to one incident only. 4 The applicant had been living in a defacto relationship with the mother of the two girls. He is now thirty years old. He does have a criminal record but not for offences of this kind. When the offences came to light, he himself went to the police and made a full confession of his behaviour. 5 He was involved in a motor vehicle accident in 1990, sustaining an injury which led to some brain damage. His Honour had regard to that matter, although there was a psychiatric report of Dr Bruce Westmore which did not see that brain damage as contributing in any significant way to his behaviour. On the other hand, Dr Westmore saw the offences as arising in the context of the relationship and concluded that the applicant did not meet the diagnostic criteria for paedophilia. He did not see him as a substantial risk to children in the community in that he was not to that extent a predator of children. 6 He had in the past been a heavy drinker and a user of heroin. It seems his drinking moderated after his accident and he gave up marijuana after his arrest for these offences. In the light of that background, his Honour found special circumstances. 7 Mr Dalton, who appeared for the applicant today, submitted that the effective sentence is manifestly excessive. He argued that the error may well have arisen from his Honour's assumption that a custodial sentence was necessarily called for for offences of this kind, leading his Honour to assess the appropriate sentence from a starting point that was too high. It certainly is the case that offences of indecency with children where no penetration is involved do not necessarily carry a full-time custodial sentence: see R v Baxter (CCA, unreported, 26 May 1994). 8 However, in my view a fair reading of his Honour's remarks does not disclose an assumption on his Honour's part that there had to be a sentence of full-time custody in matters of this kind, regardless of the facts and circumstances involved. What his Honour said was this: His conduct in relation to these two young girls was appalling. They were his stepdaughters. They were entitled to look to him for love and protection against this very type of action from other men and the very person to whom they are entitled to look towards to protect them is the person that has taken advantage of them in their most vulnerable years. And in relation to the younger of the two girls, this extends over a considerable period in excess of two years and in my view there is only one thing that can be done in relation to a person that breaches his trust in that way and that is to put him in custody.