New South Wales Court of Criminal Appeal CITATION : R v SCHWENKE [2004] NSWCCA 289 HEARING DATE(S) : 11 August 2004 JUDGMENT DATE : 11 August 2004 JUDGMENT OF : Hodgson JA at 1; Hulme J at 2; Smart AJ at 25 DECISION : Appeal dismissed LEGISLATION CITED : s9 Crimes (Sentencing Procedure) Act PARTIES : Regina George Francis Schwenke FILE NUMBER(S) : CCA 60193/04 COUNSEL : Crown: B Knox SC Respondent: AP Cook SOLICITORS : Crown: S Kavanagh Respondent: Marsdens Law Group LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3318 FILE NUMBER(S) : LOWER COURT Marien DCJ JUDICIAL OFFICER : - 8 - IN THE COURT OF CRIMINAL APPEAL 60193/04 HODGSON JA HULME J SMART AJ Wednesday, 11 August 2004 R v George Francis SCHWENKE Judgment 1 HODGSON JA: I agree the Crown did not identify any particular error in the remarks on sentence so that the appeal depended on the contention that the sentence was manifestly inadequate. I agree with the Crown's submission that offences of this nature are very serious offences that should generally attract sentences of imprisonment, although it may sometimes be appropriate to suspend the sentence. However, substantially for the reasons given by Hulme J, I am not satisfied that the sentence imposed in this case was so inadequate as to justify the upholding of a Crown Appeal. 2 HULME J: This is a Crown appeal against the imposition under s9 of the Crimes (Sentencing Procedure) Act of a 3 year good behaviour bond in respect of an offence of having sexual intercourse with a female aged 13 years. The offence arises pursuant to s66C of the Crimes Act and carries a maximum penalty of 16 years imprisonment. 3 It is convenient to refer to the female as "the complainant" although it was not she who complained at any time. The Respondent, then aged 22, was a friend of the complainant's brother and was staying with their family at the time. While staying there, the Respondent and the complainant formed a boyfriend/girlfriend relationship. 4 According to the complainant, on the night of the offence the Respondent went to sleep in the lounge room watching television. She woke him up, walked him into his room, they started kissing, and then the Respondent asked if it would be alright if he had made the next move. She said "what do you mean by that" and he replied words to the effect "do you mind if I sleep with you". She agreed. During the activity which followed, she said if hurt and asked him to stop. She said that he did so straight away. 5 At about that time the complainant became pregnant although she and the Respondent conceded intercourse occurred also on another two occasions, the dates of which are unclear. It is, accordingly, impossible to conclude that the particular act of intercourse which was the subject of the charge led directly to the pregnancy. 6 The Respondent gave evidence in the sentencing proceeding. Based on observations during that time and reports which were before him, his Honour found that the Respondent suffered "some cognitive and intellectual underdevelopment". His Honour also accepted that the Respondent had been taken from school by his parents in year 6 for reasons which are unclear and then received some schooling at home. He referred to the Respondent having had an alcohol problem since about the age of 16 or 17. 7 The Respondent has a not insignificant criminal record. His first offence, committed when he was 18 was a mid-range PCA. Subsequently his record has included two offences of common assault, seven of assaulting or otherwise hindering police officers in the execution of their duty and, prior to the offence with which this Court is concerned, about three offences of maliciously destroying or damaging property. In October 1999 the Respondent appears to have been arrested and in due course convicted in respect of possessing implements to enter or drive a conveyance, stealing a motor vehicle and maliciously destroying property. For these offences he was sentenced in the following December to 54 days imprisonment commencing on the day of his being charged and concluding on the day of sentence. Otherwise the Respondent's offending has attracted fines or, in the vast majority of cases, recognisances or bonds. 8 According to the statement of facts tendered on sentence, on 16 December 2002 an interim apprehended violence order was made, "for the protection of the victim against the Defendant". The complainant gave birth on 20 January 2003. On 7 April 2003 the Respondent attended the Local Court for a hearing in relation to the AVO. According to the statement of facts:- "The Defendant was seen by police speaking with the victim. The victim was seen to walk away from the Defendant and return a short time later with her child. The Defendant was again seen to talk with the victim. Police spoke with the Defendant a short time later and moved the victim. The behaviour of the Defendant contravenes order No. 5 which states "the Defendant must not approach, contact or telephone the protected person(s), except as…" 9 Also on 7 April the Respondent was charged in respect of the offence with which this court is concerned. He was initially refused bail but this was granted on 11 April. Included in his bail conditions was one to the effect of not contacting or approaching the complainant. This condition seems to have been breached on a number of occasions. 10 It appears that sometime after April 2003 the Respondent went to Melbourne. After a month the complainant contacted him. She was upset that he had left. He returned to Sydney and then both went down to Melbourne. They returned a couple of months later having realised, according to the Respondent, that it was unfair to the child to have left him in Sydney with the complainant's grandmother. 11 After they returned to Sydney they were living together for a period but the relationship broke up in December in consequence of arguments arising from the amount of alcohol the Respondent was consuming and orders precluding him seeing the child. It appears also that the complainant's mother took a strong line in that regard. 12 The complainant attended with the Respondent when, on 24 November 2003, the latter attended on Dr Roberts for the purposes of obtaining a psychiatric report to be used in the sentencing proceedings. 13 When he returned from Melbourne he apparently approached the Housing Department with a view to obtaining accommodation. They said he needed an income and told him to obtain the dole. Instead of following this advice he rang the boss of an organisation by whom he had been employed for some time following the beginning of August 2002 and asked if he could come to work. The boss agreed and the Respondent has been in full time employment there since. For the purposes of the sentencing proceedings, this "boss" provided a reference in the course of which he said of the Respondent:- "He is punctual and reliable; friendly and courteous at work. He takes pride in producing quality and quantity. He listens to instructions and carries them out in a manner which is above average. He is honest and sincere. In short, a very good employee." 14 In evidence before his Honour there was also a Pre-Sentence Report which indicated that the Respondent's initial contact with the Probation and Parole Service was in 1999. In the following 2 years and in the period April to August 2003, the Respondent's response to supervision was considered poor. However the report records that since September 2003 the Respondent has been compliant. He has also undertaking counselling to deal with his addiction to alcohol and according to that counsellor shows a "great willingness" to work with his emotional issues and seems "committed to cleaning up his act." The report records that the Respondent was admitted to the psychiatric unit at Campbelltown Hospital on 12 December 2003 for one month due to being in a highly depressed state with suicidal ideation and describes the Respondent as presenting as an immature young man who struggles to cope under stress. That last proposition derives compelling support from observations made by Dr Roberts. 15 Judge Marien, who sentenced the Respondent, in his remarks on sentence accepted that offences under s66C were very serious, reflecting community views that children under 16 lack the maturity to make decisions about their own sexual activity and should be protected. His Honour observed that normally a full time custodial sentence should be imposed, as indeed the Crown urged in the instant case subject to the reservation, as I understood the submissions, that the Crown accepted a suspended sentence was a possibility. However, his Honour also referred to remarks in R v Philip Sea (unreported NSWCCA, 13 August 1990) where, in relation to an offence similar to that committed by the Respondent, Badgery-Parker J said:- "If one tries to draw a line through all of the cases, it seems to me that one of the most significant matters and indeed probably the most significant of the matters which determine whether a particular offence is to be placed in a spectrum offences of this kind must be expressed in terms of the degree to which the offender is seen to have exploited the youth of the girl." 16 Judge Marien took the view in the instant case that despite the difference in years there was no significant difference between the intellectual and cognitive development of the Respondent and the complainant and that there had been no exploitation of the complainant by the Respondent. His Honour concluded that the relationship between the complainant and the Respondent was not one where the latter had exercised any power or influence over the complainant. 17 His Honour accepted, that for all practical purposes, the Respondent's plea was entered at the first reasonable opportunity, saying also:- "The intellectual under development of the offender and his, in my view, lack of maturity for his years, a view which I formed on the evidence and seeing him before me does not in my view make him a medium for demonstration to the community that there should be general deterrence for this offence. That is consistent with the principle in sentencing that the principle of general deterrence is usually not as important as sentencing children. Not that I suggest that the offender is a child, but I do find that his intellectual capacity and maturity is under developed." 18 In support of its contention that the sentence was manifestly inadequate, the Crown submitted that the fact that the Respondent was a guest in the victim's family home created a circumstance of trust which had afforded him the opportunity of establishing a relationship with the complainant and that the offence was an abuse of the support and trust which had been afforded to him. The Crown also submitted that the Respondent's mental condition was not such as to justify the weight given to it and the consequent moderation of the weight to be given to general deterrence. It was further submitted that the Judge had erred in drawing an analogy between the situation of the Respondent and that of a child. 19 The Crown acknowledged Judge Marien's reference to R v Sea but submitted that the concept of "exploitation" should not be construed narrowly. Reference was made to one of the definitions in the shorter Oxford Dictionary as "the action for utilising for selfish purposes", submitting that is precisely what the Respondent did. Attention was also drawn to the observations in R v McClymont (unreported, NSWCCA, 17 December 1992) that the relevant statutory provision was there "to protect" persons such as the complainant from willingly participating in such activities. 20 The Crown also submitted that the Respondent showed no remorse for his conduct indeed making it clear that he wished to continue his relationship with the complainant and that there was no relevant evidence of any rehabilitation or prospects of rehabilitation which would warrant the sentence imposed. 21 The Crown further submitted that the complainant's becoming pregnant was an aggravating feature and referred the Court to R v Skinner (1993) 72 A Crim R 151 and R v CJB [2000] NSWCCA 161. With this last proposition I would agree, subject t the qualification that the pregnancy could have been attributed to the offence with which the Respondent was charged. However, in circumstances where the pregnancy cannot be directly related to the act of intercourse charged I do not think it is a matter of great weight. I, of course, accept that the first act of intercourse between the complainant and the Respondent (as this one apparently was) increased the prospect that there would be further acts and the more further acts, particularly of unprotected sex, there were the greater chance of pregnancy. But it does not seem to me that the pregnancy makes the Respondent's offending as charged significantly greater than is in any event contemplated by the section against which he offended. 22 While I do not accept that there was any relevant issue of trust involved, I also agree that the Respondent has not shown the remorse which or acceptance of wrong-doing which one would normally expect before imposing a sentence of the leniency of that imposed in this case. I accept the accuracy of the principle for which R v McClymont was cited. 23 Nevertheless, the Respondent's particular circumstances did take the sentencing task which Judge Marien faced, well outside the norm for offences under s66C. Although there are clearly principles or rules which apply, sentencing remains very much a discretionary exercise. It would have been quite wrong for his Honour to approach the matter as if the Respondent did not have the particular features to which I have referred and once those features are taken into account it is impossible to say that the sentence imposed was outside the legitimate exercise of his Honour's discretion. In so concluding I do not for one moment intend to suggest that offences against s66C are not, as Judge Marien recognised, very serious but every particular case or every particular offender has to be judged on its or his own merits and in these circumstances I do not believe the Crown has proved that his Honour erred. 24 I would propose that the appeal be dismissed. 25 SMART AJ: I agree with both judgments which have been given. 26 The order of the course is that the appeal is dismissed. ********** Last Modified: 08/24/2004 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.