New South Wales Court of Criminal Appeal CITATION : Regina v DJS [2001] NSWCCA 189 FILE NUMBER(S) : CCA 60760/99 HEARING DATE(S) : 14 May 2001 JUDGMENT DATE : 14 May 2001 PARTIES : Regina DJS JUDGMENT OF : Powell JA at 14; Wood CJ at CL at 15; Sully J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/2512 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : E. Wilkins - Crown R. Burgess - Applicant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Applicant LEGISLATION CITED : Crimes Act (1900) NSW Crimes (Sentencing Procedure) Act 1999 NSW CASES CITED: R. v Hearne 2001 NSWCCA 377 at par 25 DECISION : Conviction quashed. Pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act charge preferred in District Court dismissed. IN THE COURT OF CRIMINAL APPEAL 60760/99 POWELL JA WOOD CJ at CL SULLY J Monday 14 May 2001 REGINA v D J S JUDGMENT 1 SULLY J: On 8 November 1999 the applicant pleaded guilty in the District Court at Sydney to a charge of indecent assault. The charge had been brought pursuant to Section 66 of the Crimes Act (1900) NSW as it then stood; that section providing for a maximum penalty of imprisonment for five years. 2 The learned sentencing Judge recorded a conviction but deferred passing sentence conditionally upon the entering, by the applicant, into a recognisance himself in the sum of $500 to be of good behaviour for a period of twelve months. No particular conditions were attached by his Honour to the recognisance. 3 The primary objective of the present appeal is to have expunged the formal conviction. 4 The relevant facts are straightforward and can be taken as follows from the remarks on sentence at page 12: "The offence occurred 20 years ago when the prisoner himself was just fourteen years of age. His sister, at that time, was somewhat younger, she being only eight. The offence comprised him taking the complainant into a bedroom where they were in a wardrobe - no doubt to hide from their parents - and he removed her underwear and touched her on the vagina. He was disturbed by his mother who became aware what was going on, told him to stop, and that was the end of the matter. No report was made at that time, and if I may say so, I could well understand why the mother would not make the report about the incident." 5 The learned sentencing Judge made the following findings of fact, all of which are significant for present purposes: "It seems to me to be an offence which was, at its highest, some form of a child experimenting in some sexual activity. There is no suggestion before me that there was any ongoing sexual perversion ever displayed by the prisoner. The event now has occurred so long ago and did not fit into what, to my mind, is a serious example of indecent assault ...." 6 His Honour dealt briefly, but fairly, with the relevant subjective matters. He noted that the prisoner was a relatively young man with a family of his own, and that he had strong domestic and familial support. His Honour noted that the applicant had no criminal antecedents relevant for his Honour's particular purposes. His Honour made the assessment of the applicant that he was, at his Honour put it, "a responsible young man who has a very good brain and excels in his university work." 7 It is against that general background that it falls now to be considered whether his Honour erred so as to justify the intervention of this Court. In my respectful opinion, his Honour did so err in the following respects. 8 First, after his Honour had recorded the conviction and conditionally deferred the passing of sentence, counsel then appearing for the applicant, (not being counsel who now appears for the applicant) asked that the bond not be predicated upon a conviction. His Honour replied: "No, I do not intend not to impose a conviction. I think these sort of offences must carry with them the recognition that those who interfere with children in any circumstances must result in a conviction, but I do not intend to take any course different from the one that I have taken." 9 In my opinion, the sweeping proposition there stated ought not be left to stand uncorrected. It is one thing to say that any adult who interferes with a child should, absent exceptional circumstances, be at least formally convicted. It is quite another thing to say that an offence of the kind here in point should, "in any circumstances" warrant a conviction. It cannot be correct, in my opinion, to apply so sweeping a generalisation to an event described by his Honour as "at it highest, some form of a child experimenting in some sexual activity." See and compare the recent judgment of a differently constituted Bench of this Court in R v Hearne 2001 NSWCCA 377 at paragraph 25. 10 Secondly, his Honour did not deal properly, in my respectful opinion, with the important fact that the offence with which he was dealing was strikingly stale. That fact called, in my opinion, for a careful consideration of at least the following matters: 1. What exactly had caused the complainant to come forward at all some 20 years after the date of the alleged offence? 2. When did she begin counselling? What was the nature and extent of the counselling? Was there any need to be careful about the credibility and the accuracy of the allegation, in the sense that the therapy which the complainant had received was of a kind apt to overlay authentic independent recollection with the suggestions of the treating therapist? 3. To what extent does the proper consideration of 1 and 2 justify a finding of adverse consequences to the complainant, fairly attributable to a solitary incident characterised as his Honour characterised the only incident acknowledged by the applicant? 4. Exactly what factors, whether objective or subjective, - being factors clearly established by credible evidence, - point to such a culpability particular to the applicant as to call for the recording, in the interests of justice, of a formal conviction, with all the social and personal stigmata attaching in contemporary society to any offence of indecent assault? In this connection, it needed to be borne carefully in mind that any such conviction would be a recent conviction attaching to the record of an adult in respect of an isolated incident occurring some 20 years previously in the very different personal and social circumstances of the time at which he was aged in the order of 14 years. 11 In propounding the questions to which I have been referring, I wish to make it clear that I am not implying in any way that the incident with which his Honour was concerned should have been simply dismissed out of hand as trivial. I am not implying that his Honour should simply have disregarded the things said in the complainant's own statement which was part of the material before him. All that I am wishing to propose is that in a case where the recording of a recent conviction in respect of so stale an incident was the matter to be decided, it was, in my view, incumbent upon the sentencing Judge at least to take time to consider carefully how a fair balance was to be struck of all of the aforesaid considerations. 12 In my opinion, the stigmatising of this applicant by a formal conviction was, for all of the foregoing reasons, erroneous. Is a somewhat more lenient sentence required in law? In my opinion it is. The considerations to which I have referred seem to me to satisfy to s 10(3) of the Crimes (Sentencing Procedure) Act 1999 NSW. The period of the recognisance has expired without any breach. The applicant has been, since 1997, under the shadow of this charge with all that that entails in terms of personal, professional and familial consequences. It is not, in my opinion, necessary in the interests of justice now to add to that accumulated burden the additional and special burden of a formal and recent conviction. 13 I would, myself, grant leave to appeal. I would allow the appeal. I would quash the conviction; and, without proceeding to conviction, and pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act, I would order that the charge preferred in the District Court be dismissed. 14 POWELL JA: I agree with Sully J's decision and his reasons for so doing. 15 WOOD CJ at CL: I also agree. 16 POWELL JA: The orders of the Court are those as stated by Sully J. ********** 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. 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