New South Wales Court of Criminal Appeal CITATION : R v DESBOROUGH [2000] NSWCCA 170 revised - 17/05/2000 FILE NUMBER(S) : CCA 60545/99 HEARING DATE(S) : 1 May 2000 JUDGMENT DATE : 1 May 2000 PARTIES : Regina Rodney DESBOROUGH JUDGMENT OF : Hulme J at 1; Carruthers AJ at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0093 LOWER COURT JUDICIAL McGuire DCJ OFFICER : COUNSEL : Crown: M Grogan Appellant: TJ Golding SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy DECISION : The sentence imiposed by Judge McGuire on 29 April 1999 be quashed; The Applicant be sentenced to a fixed term of imprisonment for a period of 12 months from 29 April 1999 IN THE COURT OF CRIMINAL APPEAL No: 60545/99 HULME J CARRUTHERS AJ Monday 1 May 2000 REGINA -v- Rodney DESBOROUGH JUDGMENT 1 HULME J : This Applicant for leave to appeal pleaded guilty pursuant to Section 51A of the Justices Act to two charges, one of sexual intercourse with a person between the age of 10 and 16 and the second of aggravated indecent assault. Pursuant to Sections C(2) and 61M(1) of the Crimes Act, those offences attract maximum penalties of 10 years and 7 years imprisonment respectively. 2 On 29 April 1999 the Applicant adhered to his pleas and was sentenced by Judge McGuire to imprisonment for a minimum term of 1 year and 6 months commencing on that day with an additional term of 1 year and 9 months. In respect of the second offence, the Applicant was sentenced to imprisonment for 1 year also commencing on 29 April 1999. His Honour also ordered that on the Prisoner's release to parole he was to subject himself to all directions of the officers of the Probation Service, in particular, with regard to any psychological or psychiatric counselling". 3 The circumstances of the offences were as follows. The Applicant spent a Saturday afternoon in a hotel and was driven home by his de facto wife. He was drunk. In the words of the victim "he couldn't walk straight". His wife then went off to work. 4 The Applicant retired to their bed and began to watch television. The victim, his daughter, came in and they started rumbling around and tickling. In the course of this activity the Applicant said to his daughter "I know another place where you are ticklish", pulled her undies off and committed cunnilingus. Then he took off his pants or underpants and placed his penis adjacent to his daughter's vagina. 5 His daughter said "we shouldn't be doing this" and the Applicant said "you're right" and moved away. Both persons replaced their clothes. The Applicant apologised and said it had happened because he was drunk and rang his wife, told her something bad had happened, namely that he had made sexual advances towards the victim and then put the victim on the phone to talk to her mother. Her mother said she would come home as soon as she could. 6 Both the Applicant and the victim then went outside and while awaiting for the victim's mother's arrival lay on the grass and looked at the stars. When the mother arrived home there was then discussion between her and her daughter and her and the Applicant. Although after discussing the matter, the Prisoner's wife was of and expressed the view that the matter could be dealt with within the family, the Prisoner that night rang the Child Abuse Prevention Service whose phone number he obtained from the telephone directory and told them he had made sexual advances to his daughter. 7 Later, the Prisoner attended at the offices of that organisation and when the police became involved participated in an interview in which, apart from some matters which do not seem to me to be of much present significance, he admitted the substance of events as described by his daughter. 8 At the time of the offence in September 1998 the victim was 11 years old. The Prisoner had commenced a relationship with the victim's mother in 1984. Within the household there was also another daughter of the Prisoner's wife some 5 years older than the victim. There was no suggestion that there had been any previous or subsequent misconduct by the Prisoner towards either daughter and subsequent to the offence there has been frequent contact between the Prisoner and the other three members of the family. 9 The victim's mother gave evidence that although the victim had received some counselling she stopped because she thought it wasn't beneficial and was well adjusted and continued to mix normally. The mother has no fears of any recurrence. Two friends of the Applicant who have had care of the victim from time over the last 3 years, said that she "has remained a well adjusted child and has shown no emotional withdrawal. We have not observed any change in her attitude or behaviour since the alleged incident." 10 Properly, his Honour regarded the Applicant as a first offender and found the he was contrite and remorseful. His Honour recognised that the Applicant reported the matter forthwith, making admissions to the police and entering pleas of guilty at the earliest opportunity. His Honour also accepted that alcohol was a substantial factor in the Applicant's behaviour. 11 His Honour expressed concern at a report from Cedar Cottage which is an organisation directed to the pre-trial diversion of offenders. That report included a number of grounds for concluding that the Applicant was unsuitable for participation in the program. These were:- 1. The Applicant had failed to fully validate the child victim's statement. 2. Little progress had been made in the course of the assessment by the Applicant to demonstrate some understanding of the impact of his abusive actions on the child victim and her family. 3. Low motivation for treatment: no indication on the Applicant's part that he identifies he has a problem which he can address through participating in treatment at the pre-trial diversion program. 12 The report went on to say that given those three matters, there was no indication that the Applicant's participation in the program would assist in the healing and emotional well being of the child victim and her family. 13 I must confess I am unable to share his Honour's concern at the matters raised in the report from Cedar Cottage. Although there were some differences between the Applicant's version of events on the night in question and the victim's account, when compared with the extent to which the two versions do agree, particularly on the most important matters, the differences do not seem to me to be of great significance. Particularly is this so in light of the Applicant's actions from the moment his daughter made protest. Some of those actions - the immediate telephone call and confession to his wife - a refusal to keep the matter within the family and away from the authorities clearly indicate an appreciation of the seriousness of his conduct. And to the extent to which one can rely on the printed word, some of the statements made during the course of the Applicant's interview with the police and in the course of his evidence do demonstrate an understanding that his actions had a serious impact. That said it must be recognised that there was a significant amount of evidence before his Honour to the effect that the incident had produced no observable change in the victim's emotions, attitude or behaviour. 14 Nor do I find it surprising that the Applicant displayed a low motivation for treatment through the program. After all the evidence suggests that he had had 14 years in a household with one or two young girls growing from babies or very young to puberty without any similar or other inappropriate incident. The events, the subject of the charges occurred on one night, without any apparent premeditation and while the Applicant was drunk. He was not an alcoholic and was determined not to drink again. 15 Given these matters and the fact that the Applicant retained the support of his wife and the victim, it is not obvious to me that participation in the pre-trial diversion program was needed to "assist in the healing and emotional well being of the child victim and her family". 16 His Honour also described the Applicant's conduct as "objectively most serious" and said that it was plain he "shamefully abused the trust which was reposed in him as the father of that child" and "took advantage of his relationship with that child to abuse her for his own sexual gratification". His Honour went on to say:- "Society demands that Courts impose punishment which reflects its abhorrence of crimes of this kind. It further requires that Courts offer some measure of protection to children by the deterrent effect of sentences. Deterrence which may avoid similar conduct by some other parent towards a child. (sic)." 17 There can be no doubt that general deterrence is an important factor in the imposition of sentences for offences of the nature of that committed by the Applicant and that the Applicant abused his trust, took advantage of his relationship with his daughter and that his conduct was shameful. On the other hand, the circumstances that the offences occurred out of the blue as it were, without pre-meditation, while the Applicant was drunk, without any pressure other than the relationship between the Applicant and the victim, and that the Applicant immediately desisted as soon as it was brought home to him what he was doing and his actions in immediately reporting the matter take these offences right out of the category of those with which the courts commonly have to deal. 18 Although I do not suggest that this is the only aspect of deterrence relevant, offences occurring in the circumstances that the Applicant's offences did, are less likely to be deterred by punishment than by the paternal responsibility which the Applicant seems to have exhibited in all other aspects of the family's life. 19 Although I am unable to point to any specific error in any part of his Honour's reasoning, apart, as I have indicated, from his concern with the Cedar Cottage report, I am left with the impression that in the circumstances of this case, his Honour placed too much emphasis on the topic of general deterrence and gave insufficient recognition to the factors arguing for leniency. The two offences were but part of the one incident and the sentence of 3 years and 3 months, approximately 1/3 of the 10 years appropriate for a worst case of an offence under S66C(2), strikes me also as appellably severe. 20 Although it is unnecessary to pursue the point that given that the total sentence imposed exceeded 3 years, my impression is that his Honour had no power to direct, as opposed to recommend, terms of the Applicant's parole. 21 Given the overall circumstances and in particular the Applicant's extraordinary speed and indications of remorse in immediately telephoning his wife and shortly thereafter the authorities, together with his prior record, it seems to me that the case is one where a sentence no longer than that already served by the Applicant was appropriate. In light of his own actions subsequent to the offence, it does not seem to me that this is a case where a parole period is required. 22 Accordingly, I would propose the following orders:- 1. That the sentence imposed by Judge McGuire on 29 April 1999 be quashed. 2. That the Applicant be sentenced to a fixed term of imprisonment for a period of 12 months from 29 April 1999. 23 CARRUTHERS AJ: I agree. I would only add one matter arising from what occurred in part of the sentencing process. The pre-trial diversion of offenders program has its statutory base in the Pre-trial Diversion of Offenders Act 1995 as amended. A decision was ultimately made that the applicant was assessed as not being suitable for participation in a special program under the Act. Accordingly s16 applies so that the Act as a whole ceases to apply to the prisoner in relation to the particular child sexual offences concerned. The question must necessarily arise then as to whether it was appropriate in the instant case, or indeed in any case, for the Crown Prosecutor's report, a report in the nature of the report to be tendered in this case dated 25 February 1999 under the hand of the co-ordinator of Correctional Services. That report is highly critical in some respects of the applicant and is dependent upon, among other things, things which have been already passed on to the author of the report by various persons. I do not for one moment criticise the Prosecutor in the instant case for tendering the report or counsel appearing for the applicant who consented to the tender of the report. However, it seems to me that it is in conflict with the provisions of s16 that once the Act ceases to apply to an offender in relation to the subject charge, that the offender should be required on the sentence proceedings to cope as best he or she can with adverse comments contained in the report of the relevant person concerned with the Diversion of Offenders Program. So much is clear from the comments of the Applicant in the present case. 24 Mr Grogan of counsel who helpfully appears before the Court in the instant case has indicated that he will refer the matter to the Director of Public Prosecutions for further consideration. 25 As previously indicated, I agree with the orders proposed by the presiding judge and his reasoning therefore. 26 HULME J: The orders of the court are that the sentence imposed by Judge Maguire on 29 April 1999 be quashed and the applicant sentenced for a fixed term of imprisonment for 12 months from 29 April 1999. The effect of those orders is that the applicant is entitled to be immediately released. ********** 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.