New South Wales Court of Criminal Appeal CITATION : Regina v SILCOCK [2004] NSWCCA 442 HEARING DATE(S) : 29/11/04 JUDGMENT DATE : 21 December 2004 JUDGMENT OF : James J at 1; Hidden J at 44; Bell J at 46 DECISION : Appeal dismissed CATCHWORDS : CRIMINAL LAW - Sentencing - Crown Appeal - indecent assault - whether sentencing judge failed to comply with principle of sentencing stated in Pearce - sentencing judge decided not to impose lengthy custodial sentence because of previous sentences passed on respondent - respondent has many health problems LEGISLATION CITED : Crimes Act Crimes (Sentencing Procedure) Act R v Baxter (unreported, NSWCCA 26 May 1994) CASES CITED : R v MJR (2002) 54 NSWLR 368 Pearce v The Queen (1998) 194 CLR PARTIES : Regina v Trevor John SILCOCK FILE NUMBER(S) : CCA 2004/2396 COUNSEL : D M LWoodburne - Crown A Webb - Respondent SOLICITORS : S Kavanagh - Solicitor for Public Prosecutions - Crown S O'Connor - Legal Aid Commission - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/0008 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/2396 JAMES J HIDDEN J BELL J Tuesday 21 December 2004 Regina v Trevor John SILCOCK Judgment 1 JAMES J: This is a Crown appeal against sentences imposed on the respondent Trevor John Silcock in the District Court by his Honour Judge Freeman on 16 September 2004. On each of five charges of indecent assault, to which the respondent had pleaded guilty, his Honour imposed a sentence of imprisonment for two years commencing on 16 September 2004, all the sentences to be concurrent. His Honour made an order pursuant to s 12 of the Crimes (Sentencing Procedure) Act suspending each sentence, conditionally upon the respondent entering into a recognisance to be of good behaviour during the term of the sentences, accepting the supervision and directions of the Probation and Parole Service and undertaking psychological counselling, if necessary in the opinion of his treating doctor and the officer of the Probation and Parole Service in charge of his case. 2 The victim of all of the five offences was a boy born in June 1971, who I will refer to as "the complainant". The first two offences were committed between 14 July 1981 and 31 December 1984; the third offence was committed between 1 March 1983 and 31 March 1983; the fourth offence was committed between 1 March 1983 and 1 February 1984; and the fifth offence was committed between 1 February 1984 and 28 June 1985. All of the five charges were brought pursuant to s 61E(1) of the Crimes Act (now repealed), under which the maximum sentence was imprisonment for six years. 3 The five offences which were charged were a few only of the acts of sexual assault committed by the respondent on the complainant between 1981 and 1985. Many of the acts of sexual assault had been so similar that the complainant was unable to individually distinguish them. 4 Although the offences for which the respondent was sentenced had been committed between 1981 and 1985, the complainant did not report any of the offences to the authorities until the year 2000. After the complainant reported the offences, further delays occurred before the respondent was sentenced on 16 September 2004. 5 Judge Freeman's statement of the facts of the offences in his remarks on sentence was closely based on a set of agreed facts which had been admitted into evidence in the proceedings on sentence and was not the subject of any complaint on this appeal. In his remarks on sentence his Honour stated the facts of the offences as follows:- "The prisoner first met his victim at Woonona, when the victim was 10 years old. On the day of their very first meeting, with the approval of the victim's mother, the boy stayed overnight in the prisoner's flat and sexual activity was initiated by the offender that night and continued over the following four years. The prisoner befriended the victim's family, in a sense deliberately ingratiating himself with them and trading upon the problems with alcohol suffered by the victim's mother to blind her to what it was that he was doing to her son. With the mother's permission, the prisoner often took the boy away, the better to effect his sexual attacks upon him and indeed, for a period of time, so had he grafted himself onto this family, that he lived with the family and shared a bedroom with his victim. The five identified occasions in the indictment are: on the first day of meeting the prisoner fondled the victim's genitals over his trousers and later persuaded the child to engage in mutual masturbation; about two weeks after that, the prisoner encouraged the victim to be naked on a bed and he pushed his erect penis between the boys legs and buttocks simulating sexual intercourse until he ejaculated; the third count relates to a time when he was living with the family when the victim was 11 and it is an occasion on which the prisoner masturbated the boy, introduced the boy's penis into his mouth and sucked it. When the victim was 11 or 12 years old according to count 4, the prisoner took him on a holiday to Sawtell at which time the prisoner paid the boy for his participation in mutual masturbation and count 5 relates to a later school holiday period, when the victim was 12 or 13. Again, he was taken to Sawtell and he engaged in mutual masturbation with the prisoner introducing the victim's penis into his mouth". 6 The offences of child sexual assault on the complainant for which the respondent was sentenced by Judge Freeman were not the first offences of child sexual assault for which the respondent had been sentenced. 7 On 19 February 1988, for an offence of indecent assault of which the respondent had been found guilty after a trial, a District Court judge deferred passing sentence conditionally upon the respondent entering into a recognisance to be of good behaviour for five years. 8 During the term of this recognisance and in breach of it, the respondent committed five further offences of indecent assault. He pleaded guilty to charges of these offences. On 7 May 1990 his Honour Judge Herron in the District Court on each count deferred passing sentence, conditionally upon the respondent entering into a further recognisance to be of good behaviour for five years. His Honour directed that there be no action on the breach of the recognisance previously entered into. 9 On 11 April 1997 the respondent was sentenced in the District Court by his Honour Judge Johnston for nine offences of aggravated indecent assault and one offence of committing an act of indecency, which had been committed against four boys ranging in age from eight to fourteen years and all of which had been committed within the term of the recognisance granted by Judge Herron. The respondent had pleaded guilty to charges of these offences. In sentencing the respondent Judge Johnston also took into account five further offences of indecent assault, all of which had been committed within the term of the recognisance granted by Judge Herron. On six of the charges the respondent was ordered to perform 300 hours of community service. On the remaining charges Judge Johnston deferred passing sentence, conditionally upon the respondent entering into a recognisance to be of good behaviour for three years. 10 The respondent, who was born in November 1937 and, accordingly, is now sixty-seven years old, has had, and continues to have, a number of serious health problems. In 1975 the respondent suffered severe burns to 65 per cent of his body. In 1978 he began to suffer, and he continues to suffer, from psoriasis, a chronic skin disorder. Drugs which have been administered to the respondent to treat his psoriasis reduce the ability of his immune system to cope with infection. 11 In 1993 the respondent was diagnosed as having cancer of both the penis and the bladder, a highly unusual combination of cancers. On 25 May 1993 a partial amputation of the respondent's penis was performed. The respondent was treated with radio therapy to the bladder and penis, which caused radiation burns to his groin and lower abdomen. 12 In March 1996 the respondent underwent a bilateral orchidectomy, in which his testes and much of his scrotum were removed. 13 In late 1996 a suprapubic catheter was surgically inserted in the respondent's abdomen and he has continued to need to use a catheter. There is a risk of the respondent contracting an infection at the site of the entry of the catheter into his abdomen. In a report dated 17 June 2004 Dr Knight, a general practitioner who has been treating the respondent since 1984, expressed the opinion that, if the respondent was required to serve a custodial sentence in which he had to share facilities with other inmates, he would be at serious risk of contracting a life threatening infection against which his immune system would have little ability to protect him. 14 In his remarks on sentence Judge Freeman found that the offences were objectively serious, particularly because of the seriously adverse effect of the offences on the complainant, as shown by a statement by the complainant, and because in committing the offences the respondent had abused a position of trust. His Honour stated:- "Were I simply dealing with the matter on this basis (that is the objective seriousness of the offences), I would unhesitatingly impose a lengthy period of full-time custody ". 15 His Honour found that neither the delay which had occurred between the commission of the offences and the reporting of the offences, nor the delay which had subsequently occurred in the criminal proceedings against the respondent should lead to the adoption by his Honour of any different sentencing option. His Honour remarked that often offences of child sexual assault "do not surface for long periods of time, until the victim has managed to screw him or herself up to the point of making the necessary revelations". Delays which had occurred in the criminal proceedings against the respondent were at least partly attributable to adjournments which had been sought by the respondent on the grounds of his requiring medical treatment. 16 In his remarks on sentence Judge Freeman then proceeded to trace the history of the respondent's health problems and the history of the previous criminal proceedings against him for offences of child sexual assault, which I have already summarised earlier in this judgment. 17 With regard to the bilateral orchidectomy which the respondent had undergone in March 1996, his Honour rejected a submission made by counsel for the respondent in the proceedings on sentence that the respondent had undergone the operation as a means of rehabilitating himself by reducing his capacity to offend and found that the respondent had undergone the operation more as a means of gaining relief from the extreme discomfort caused by swelling of his genitals. His Honour noted an opinion by a psychiatrist that, the operation having been performed, the risk of the respondent re-offending had been markedly reduced. 18 With regard to the respondent's health Judge Freeman said:- " I should deal with one or two other propositions that were put to me. One is that such is the state of his health that a term of custody should be avoided because of the extreme risk of infection whilst in custody with communal showers and the like. Dr Knight speaks of that risk, it being related to his suprapubic catheter and the inflamed and potentially easily infectable flesh around it. I should say that I do not regard the prisoner's state of health to be such as would be beyond the capacity of the Corrections Health Service to treat. It has been clear on repeated inspection since 1994 that there is no recurrence of tumour at the original site in his bladder. He requires the replacement of his catheter at six-weekly intervals. These are not matters outside the expertise, as I understand it, of Corrections Health or at least, outside the expertise of specialists to whom Corrections Health could send the prisoner, were he in custody". 19 His Honour Judge Johnston's remarks on sentence of 11 April 1997 were before Judge Freeman in the proceedings on sentence and Judge Freeman commented on those remarks on sentence as follows:- "The remarks on sentence very carefully and fully, if I may say with respect, composed by his Honour Judge Johnston, seemed to indicate that he was influenced very deeply by the prisoner's physical condition; the fact that his prospects of re-offending had been markedly reduced; the fact that he had undergone this orchidectomy; the fact that he was suffering very substantial health problems at that time because of the difficulty of treating his concurrent conditions of urethral restriction, psoriasis, radiation burns and the like. His Honour – and again I say this with great respect – recorded the fact that the offences with which he was dealing had been breaches of previously granted bonds, and consequently, were extremely aggravated, given the history of bonds and their repeated breaches, but nonetheless concluded that a non-custodial sentence was an appropriate one". 20 In his remarks on sentence his Honour noted that there had been no Crown appeal from any of the previous sentencing decisions made in 1988, 1990 and 1997 and that the offences for which he was sentencing the respondent had been committed before the offences for which the respondent had previously been sentenced and, unlike the offences for which Judge Herron and Judge Johnston had sentenced the respondent, were not aggravated by having been committed in breach of a recognisance. 21 Towards the close of his remarks on sentence Judge Freeman addressed what appeared to his Honour to be a crucial issue. At p 10 of his remarks on sentence his Honour said:- "What I am concerned with now is the very great tension which exists between my own view of what offences of this nature require in terms of the imposition of full-time custody on the one hand and the fact that even worse offences, many of them committed in circumstances of aggravation, have been dealt with by three senior judges in the past. Whilst I am not bound by their decisions, I must avoid the impression or appearance at least, of second-guessing them and imposing what, to my mind, would have been an appropriate sentence, lest it appear that I'm sentencing him for the whole range of his gross misbehaviour over the last 20 years and not just for these offences involving (the complainant)". 22 At p 11 of his remarks on sentence his Honour said:- " So let me make it clear. I would have, myself, sent him to full-time custody, for these offences alone, occurring in 1981 through to 1985. I do not regard delay as requiring me to depart from that stance. I do not regard his age, at almost 66, as requiring such an extraordinary allowance as to cause me to depart from that stance. I do not regard the delay which has taken place (in the circumstances in which it has taken place) as requiring adjustment of that initial outlook. I am persuaded virtually solely by his subsequent history and the way in which it has been dealt with by the courts, that I should stay my hand from incarcerating him immediately and for a long period of time". 23 His Honour continued:- "Nonetheless, at least the imposition of a term of imprisonment is necessary, in my view, to mark the seriousness of these offences and to give at least the appearance of the court doing that which it is required to do: act in the protection of the children of our community against predators such as this prisoner. In all the circumstances, I propose to stay the operation of those sentences". 24 On this appeal the principal submissions made by the Crown were as follows. 25 It was submitted by the Crown that in sentencing the respondent the sentencing judge had failed to comply with the principle of sentencing stated in the well known passage in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 624 (45):- " A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality". 26 It was contended by the Crown that the five offences for which the respondent was sentenced differed in their objective seriousness, the second offence being objectively more serious than the other offences and the third and fifth offences being objectively more serious than the first and fourth offences. Consequently, if Judge Freeman had complied with the sentencing principle stated in Pearce and fixed appropriate sentences for each offence, he would have imposed sentences of different lengths for the various offences. However, his Honour had imposed sentences of the same length for all of the offences. Furthermore, if his Honour had fixed an appropriate sentence for the second offence, the sentence for that offence should have exceeded two years and it would not have been open to Judge Freeman to suspend the execution of such a sentence (s 12 of the Crimes (Sentencing Procedure) Act). 27 It was submitted that there had been a further contravention of the principle of sentencing stated in Pearce in that, notwithstanding that the offences had all been committed against the same complainant, they had been committed at different times, at different places and consisted of different conduct by the respondent and, consequently, there should have been some cumulation or partial cumulation of the sentences for the offences, yet Judge Freeman had made all the sentences fully concurrent. 28 It was further submitted by the Crown that Judge Freeman, having formed a view of his own as to what sentences should be imposed on the respondent for the offences for which he was sentencing the respondent, should not have allowed his sentencing decision to be controlled, at least to the extent to which it was, by the previous sentencing decisions of other judges who had sentenced the respondent for other offences. By allowing himself to be persuaded "virtually solely" by the previous sentencing decisions to stay his hand and not impose sentences of imprisonment to be served immediately, which his Honour considered that the offences required, his Honour had ended up imposing sentences which were manifestly inadequate to reflect the objective seriousness of the offences. Even if it was unlikely that the respondent, because of his ill health, would re-offend, it was still necessary for sentences to be imposed on the respondent which would give effect to the need for retribution and general deterrence. 29 It was acknowledged by the Crown that no Crown appeal had been brought from any of the previous sentencing decisions but the Crown pointed out that there are a number of constraints on the bringing of a Crown appeal against sentence and because no Crown appeal has been brought it cannot necessarily be inferred that a sentence should be regarded as not having been manifestly inadequate. 30 Counsel for the respondent submitted that Judge Freeman had been entitled to reason as he had in his remarks on sentence. It was contended that for Judge Freeman to have ignored the previous sentences imposed on the respondent for worse offences would have led the public to question whether justice was being properly administered. Decision 31 The present case is unusual and indeed extraordinary. Usually, when a judge is sentencing an offender who has previously been sentenced by other judges, the judge is sentencing for an offence or offences which were committed by the offender after the offences for which the offender has previously been sentenced. 32 On the appeal neither counsel was able to refer the Court to any authority which was in point or of any real assistance. Counsel for the respondent did refer to the decision of this Court in R v Baxter (unreported, NSWCCA 26 May 1994) in which a Crown appeal against sentence was dismissed. However, Baxter is clearly distinguishable from the present case. In Baxter the Court of Criminal Appeal held that it had been within the discretion of the sentencing judge not to impose custodial sentences for three offences of committing an act of indecency, because the offender had previously been sentenced in Victoria to non-custodial sentences for four offences, including offences of indecent assault, committed against the same victim and to have imposed custodial sentences for the less serious New South Wales offences would have jeopardised a continuing course of psychiatric treatment the respondent was undergoing, with beneficial results, pursuant to the sentences imposed in Victoria. 33 In his remarks on sentence Judge Freeman clearly stated the process of reasoning by which he arrived at the sentences he ultimately imposed. Apart from the previous sentences passed on the respondent, he would have sentenced the respondent to lengthy sentences of full-time custody to be served immediately. However, "virtually solely" because of the previous sentences passed on the respondent, his Honour refrained from imposing the sentences which he otherwise would have imposed and imposed sentences of imprisonment for two years only, the execution of which he ordered to be suspended. 34 In my opinion, and without my needing to decide whether it was permissible for his Honour to have at least some regard to the sentences previously passed on the respondent, it was an error for his Honour to permit his sentencing decision to be controlled, to the extent to which it was, by the previous sentences passed on the respondent. The function his Honour was required to perform remained the function of imposing sentences on the respondent which his Honour considered to be proper sentences, having regard to all the objective and subjective circumstances. 35 There are, of course, some principles requiring consistency in sentencing. There is a general principle that a sentence passed on a particular offender for a particular offence should be consistent with the range of sentences passed on offenders generally for that kind of offence. There is also the principle of attaining parity and avoiding disparity in the sentencing of co-offenders. However, the Court was not referred to any authority which would support any principle that, if a particular offender has been sentenced leniently in the past, he should continue to be sentenced leniently. 36 Judge Freeman's apprehension expressed in his remarks on sentence that, if he were to impose the sentences he considered appropriate, it might appear that he was sentencing the respondent, not only for the five offences committed against the complainant, but for the whole of the respondent's criminal conduct over the previous twenty years, was, in my opinion, unnecessary. His Honour could have made it quite clear in his remarks on sentence, as he in fact did, that he was sentencing the respondent only for the five offences committed against the complainant. 37 Having decided that, because of the previous sentencing decisions, he would not impose lengthy custodial sentences to be served immediately and that the sentences he imposed would be suspended, his Honour made no real attempt to comply with the sentencing principle stated in Pearce. 38 I have held that error occurred in the sentencing of the respondent. However, the Crown appeal was brought on the ground that the sentences were manifestly inadequate and the question remains of whether the sentences were manifestly inadequate. 39 In the extraordinary circumstances of this case I have formed the conclusion that this Court should not find that the sentences were manifestly inadequate. 40 Apart from considerations which apply to Crown appeals generally, I rely particularly on the respondent's many health problems, which I have discussed earlier in this judgment and which I consider should be given greater weight than Judge Freeman did. His Honour referred in his remarks on sentence to Dr Knight's evidence about the risk of the respondent contracting an infection (which Dr Knight said would be life threatening), if he was required to serve a custodial sentence and share communal facilities. There was no countervailing evidence and no good reason for rejecting Dr Knight's evidence and, indeed, Judge Freeman did not reject Dr Knight's evidence. The only comment Judge Freeman made, apparently without any evidentiary foundation, was that he did not consider that it would be beyond the capacity of the Corrections Health Service to treat the respondent (if he did contract an infection). 41 Other matters which I have taken into account include the age of the respondent, the unlikelihood of his re-offending after the bilateral orchidectomy and the delays which have occurred in the criminal proceedings brought against him. 42 I also take into account that the offences were committed between 1981 and 1985 and it is necessary to apply, so far as possible, the principle of sentencing stated in R v MJR (2002) 54 NSWLR 368, namely that a sentencing court should take into account sentencing practice at the date of the commission of an offence, when sentencing practice has since moved adversely to the offender. It was submitted, and I accept, that, if the respondent had been sentenced in about 1985 in accordance with sentencing practice then applying, he probably would have received a less severe sentence than would now be imposed for similar offences committed recently. 43 In my opinion, this Court should dismiss the Crown appeal against sentence. 44 HIDDEN J: I agree with the order proposed by James J and with his Honour's reasons. 45 I can understand that the sentencing judge perceived an incongruity in dealing the respondent for his first set of offences much more severely than he had been dealt with by other judges for subsequent offences. In my view, the leniency extended to the respondent for those subsequent offences was a relevant matter. However, I agree with James J that it was not entitled to the determinative significance which his Honour gave it. 46 BELL J: I agree with James J. ********** Last Modified: 12/21/2004 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.