Reported Decision : 160 A Crim R 85 New South Wales Court of Criminal Appeal CITATION: CHAPLIN v R [2006] NSWCCA 40 HEARING DATE(S): 13 February 2006 JUDGMENT DATE: 1 March 2006 JUDGMENT OF: McClellan CJ at CL at 1; James J at 36; Buddin J at 37 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL APPEAL - two offences - detain without consent with intent to obtain sexual gratification contrary to s 86(1)(b) of the Crimes Act and indecent assault - sentenced to a total non-parole period of four years with an overall sentence of six years imprisonment - submission that manifestly excessive rejected - commission of offence whilst on conditional liberty - offence serious requiring a significant sentence LEGISLATION CITED: Crimes Act 1900 R v Dodd (1991) 57 A Crim R 349 R v Falls [2004] NSWCCA 335 R v Fernando [2002] NSWCCA 28 CASES CITED: R v Jones NSWCCA unreported 30 June 1994 R v Tran [1999] NSWCCA 109 R v Vranic NSWCCA unreported 7 May 1991 R v Whyte (2002) 55 NSWLR 252 PARTIES: David Andrew John Chaplin (Appl) The Crown FILE NUMBER(S): CCA 2005/1949 COUNSEL: Dr P Power SC (Crown) R Burgess (Appl) SOLICITORS: Director of Public Prosecutions (Crown) Legal Aid Commission of NSW LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1263 LOWER COURT JUDICIAL OFFICER: Gibson DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1949 McCLELLAN CJ at CL JAMES J BUDDIN J WEDNESDAY 1 MARCH 2006 CHAPLIN, David Andrew John v REGINA Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty at the Local Court to one count of attempting to detain without consent with the intent to obtain an advantage, namely sexual gratification contrary to s 86(1)(b) of the Crimes Act 1900. The maximum penalty for such an offence is 14 years imprisonment. The applicant also pleaded guilty to one count of indecent assault contrary to s 61L of the Crimes Act for which the maximum penalty is five years imprisonment. 2 On 18 March 2005 Gibson DCJ sentenced the applicant to an effective sentence of seven years imprisonment with a non-parole period of five years. In relation to the indecent assault his Honour sentenced the applicant to a non-parole period of 18 months imprisonment commencing on 8 June 2004 as part of an overall sentence of 2 years. For the charge of attempting to detain without consent with intent the applicant was sentenced to a non-parole period of four years commencing on 7 June 2005 as part of an overall sentence of six years imprisonment. The facts 3 The two offences occurred on 8 June 2004 within a short period of time. The first offence occurred when the applicant saw a 12 year old school girl walking in Lansdowne Street, Mortdale in her school uniform about 3.55 pm . He followed her into Princess Street and took a folded piece of cloth from his pocket. The applicant put his arm around the left side of the girl at head height and put the cloth over her mouth. The girl screamed "get off me" and pulled down and backwards towards the applicant and under his arm. The applicant said: "sorry, sorry" and walked away quickly in the same direction as the complainant had been walking. The complainant followed slowly behind him until she reached her home and told her mother what had happened. 4 The second assault occurred soon after when the applicant was approaching a walking track near Como Bridge. At about 4.30 pm he saw the second victim, who was aged 19 years, walking towards him. After they had passed he turned to follow her. He caught up with her and placed his left hand around her so that it was on her belly button. He then brought his right hand across her face placing it on her right cheek and pulled her head towards her right shoulder. As he did this he said: "you're beautiful." The complainant attempted to break the applicant's grip, and he said: "can I give you a kiss?" and kissed her cheek. The complainant screamed, "help" and the applicant let go of her. He jogged back up the track as two witnesses came to her assistance. 5 The applicant was arrested at about 5.25 pm that afternoon having been identified by the first victim in the course of a drive around. The applicant immediately admitted the offences and participated in an ERISP. He expressed remorse and a desire to seek treatment. He said that he was "very sorry" for what had occurred. In relation to the first victim he said that he did not really know why he did it. Later he said his intention had been to "just grab her and touch her … I suppose on her breasts, I don't know." He said he put his hand around her mouth and then realised what he was doing was wrong and let go. He continued, "that's why … I suppose it's good being arrested so when I go back to gaol this time, to make sure I do the program this time … to work out exactly why… I do it." When questioned about the indecent assault on the second victim the applicant stated that he rubbed the outside of her shorts, in the vaginal area, with his hand. 6 During the interview the police found a receipt for the purchase of a paring knife in the applicant's belonging. He initially said that he bought the knife to cut fruit for lunch. However, he later admitted that he bought the knife to use for "wrong things" to grab and "intimidate a girl" with the intention of touching her up, but he "couldn't actually do it." He said that he disposed of the knife after the first incident. Subjective matters 7 The applicant had a troubled upbringing. He was born in Sydney but adopted at birth, although he was not told this until he was in high school. He has no information about his biological parents. He had a poor relationship with his adopted mother who was physically aggressive towards him. He had a better relationship with his adopted father but he died in 1995. His adopted parents had twins, only one of whom survived and who suffers from an intellectual disability. 8 The applicant left school in Year 10 and spent 12 months in the Royal Australian Navy as an apprentice fitter and turner. However, he was chronically unable to organise himself and constantly came under notice for failing dress requirements and not keeping timings. He was discharged as unsuitable. 9 Between 1991 and 1993 he worked in numerous jobs as a factory hand or a labourer. He spent a period of time living as a homeless person. He could not settle down and had few friends. He then returned to live with his adopted family. From about 1993 he worked in the hospitality industry, usually pizza outlets. He socialised at work and his alcohol and marijuana consumption increased. 10 The applicant is a single man but prior to the relevant offences he was convicted of the offence of inflicting actual bodily harm with intent to have sexual intercourse. He was sentenced for this offence on 28 November 2001 to a non-parole period of two years with an overall sentence of three years and nine months. He was released to parole on 9 December 2002 and accordingly, was on parole at the time of the commission of the present offences. 11 The evidence before the sentencing judge was that the applicant has complied with the directions of the Probation Service. Although he commenced he did not complete the community based Sex Offender Program. Apparently, the arrangements for attending at the Program conflicted with his opportunity for employment. Instead he was referred to Dr Neilssen, although in retrospect the applicant believes he should have focused on the Program and completed it. 12 Dr Neilssen reported that the applicant had initially been referred to him prior to sentence for his previous offence, which was committed in part because of the effects of alcohol and his depressed state. He was assessed as being a little odd and was suspected at that time of having an underlying mental illness. When interviewed by Dr Neilssen in October 2003 he did not report symptoms of mental illness. However, the applicant presented in a way that was typical of someone with damage to the frontal lobes, with slightly eccentric appearance and a wide eyed stare. 13 Mr Gregory Fathers, a psychologist, observed that the bizarre aspects of the applicant's behaviour were possibly related to organic brain dysfunction of the frontal lobe. He noted a history of possible skull fracture when the applicant was ten years old. He reported that prior to his arrest on the present matters, the applicant was living an isolated life with no family support and limited social skills. He was not eating properly, had a disturbed sleep pattern and consumed alcohol and marijuana in a binge on his days off work. He said that the applicant had significant problems with thinking and concentration, at times accompanied by prominent distress and dysphoria. He felt withdrawn and socially isolated. His abuse of alcohol and other substances had played a role in helping him distance himself from the threat of rejection and control his anxiety. 14 The applicant told Dr Westmore, a psychiatrist, that he felt his behaviour was due to the fact that he spent a long time as a single man and spent the last ten years of his life being rejected by girls. He became distressed when discussing his offending behaviour and his concerns about not understanding why he behaves in such a way. Dr Westmore observed that the most salient aspect of the applicant's history is the absence of any significant long term relationship and relatively few sexual contacts. He said that it was likely that repeated failures may have resulted in low levels of confidence from a personal and sexual perspective. 15 Both Dr Westmore and Mr Fathers were of the view that the applicant needed on-going treatment. Dr Westmore said that the applicant did not have an anti-social personality disorder, but that the repeated nature of his offending was of major concern, as was the fact that he had not had any therapy. He deferred an opinion about his intelligence but stated that he urgently needed long term extensive therapy. Mr Fathers said that the applicant's lack of personal and social success became fixated on his lack of perceived sexual adequacy and lack of personal attractiveness. He lacked social skills and judgment, was immature, and had an obvious social handicap because of his odd manner of presentation. He said that he needed on going assessment and treatment and that any intervention should have a broad approach, aimed initially at his sexual fantasies. 16 The applicant gave evidence that he had been on protection in the MRRC since his arrest on 8 June 2004 but that late in 2004 after an incident he was moved into limited association protection. He detailed the consequential restriction on his liberty, in particular only being allowed out of his cell three hours per day. He said that he had seen a couple of psychologists but that there was no work or courses available to him. He expressed remorse, saying he felt "terribly bad" about what had happened, particularly in relation to the 12 year old victim. 17 The applicant gave evidence that he appreciated that he had an alcohol problem which was affecting his life. He also said he wanted to enter the Sex Offender Program at Long Bay, known as the CUBIT program, so that he would not re-offend. He was unable to undertake that course during his previous period of imprisonment. The appeal 18 The only ground of appeal advanced by the applicant is that the sentence is manifestly excessive. In support of the appeal the applicant submits that the offences were not objectively serious and the applicant's subjective features, his early pleas of guilty, his remorse and desire to understand and address his offending behaviour and the fact that he has been held in limited association protection should have resulted in a lesser sentence. 19 The applicant accepts that given his personal circumstances and possible frontal lobe damage his Honour was correct in determining that general deterrence played a lesser role to other factors in the sentencing process. However, the applicant complains that his Honour has placed too much weight on the protection of the community and personal deterrence. It is submitted that the sentences imposed are disproportionate to the objective gravity of the offences even after taking into account the circumstances of the applicant, the fact that he was on parole at the time of the offences and the need to protect society. (R v Whyte (2002) 55 NSWLR 252). 20 The applicant stresses the remarks of Gleeson CJ, Lee CJ at CL and Hunt J in R v Dodd (1991) 57 A Crim R 349 where their Honours, citing Jordan CJ in Geddes (1936) 36 SR NSW 554, said at 354: "… there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity … ." 21 The applicant accepts in relation to the first victim that her age and psychological harm that she suffered was an aggravating feature. So was the fact that the applicant was on parole for a more serious offence of a sexual nature. However, it is submitted that the offence was limited to an attempt to detain and occurred in a public street in daylight. There was no suggestion on the evidence that there was an intention to take the victim anywhere else. The applicant admitted that the purpose of the detention was to indecently assault the victim by touching her on the breasts but emphasises that that was the extent of the sexual gratification intended. There was no evidence of any intention to have sexual intercourse. When the victim resisted the applicant immediately desisted and apologised. Furthermore, the applicant admitted in his ERISP that he realised what he was doing was wrong. It is submitted that although there were aggravating features, the objective gravity of the offence was not such as to justify a sentence of six years imprisonment. Having regard to the discount of 25% for the early plea of guilty the applicant points out that the starting point for the sentence must have been eight years for an offence carrying a maximum penalty of fourteen years. This is submitted to be excessive. 22 Attention is drawn to the decision in R v Falls [2004] NSWCCA 335 which was relied upon by the Crown in submissions to the sentencing judge. Falls was charged with an attempt to detain for advantage contrary to s 86(1) of the Crimes Act. After an appeal the same head sentence was imposed on him by this Court, by majority, as was imposed by the sentencing judge in the present case. 23 Although the applicant accepts that Falls case is superficially similar to his own, it is submitted there are significant differences. Falls had attempted to lead his victim towards a drive way of a block of units and had placed his hand on her neck for the purpose of forcing her to come with him. Falls also had numerous prior convictions including sexual assault and break enter and stealing offences. He had also served almost nine years imprisonment in relation to a serious aggravated sexual assault. 24 The applicant submits that his own case is not as objectively serious as Falls and that the subjective matters in his case are far more compelling. 25 Similar submissions are made in relation to the offence contrary to 61L of the Crimes Act. Decision 26 Although I accept that there are a number of subjective matters which are favourable to the applicant in my opinion it has not been demonstrated that the sentencing judge has fallen into error. The offence contrary to s 86(1)(b) was particularly serious given the tender age of the victim. It is not surprising that she has indicated that she was "really freaked out … I thought he was trying to abduct me." She stated that she was "crying and really afraid." She has suffered on-going psychological and sleeping problems as a result of the attack. The evidence makes plain that the young victim suffered extreme fear and terror. 27 An important feature of this case is that the applicant committed both offences while subject to conditional liberty. This Court has stated that the commission of an offence while on conditional liberty is an aggravating feature (see R v Tran [1999] NSWCCA 109 at [15]). That aggravation will be more severe in circumstances where a similar offence is committed while a person is on conditional liberty. This has been described "as a matter of major aggravation" R v Jones NSWCCA, unreported, 30 June 1994 per Finlay J at 6. 28 The offence to which the applicant had previously been sentenced was that of "inflict actual bodily harm with intent to have sexual intercourse" which is relevantly similar to the present offences. 29 The matter has been more recently considered in R v Fernando [2002] NSWCCA 28 where the Chief Justice said at [41]: "This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on a parole, will be considered as a matter that aggravates the offence." 30 In R v Vranic, NSWCCA, 7 May 1991, unreported, Lee J with whom Gleeson CJ and Abadee J agreed said at p 4: "The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation, ie parole has failed to achieve its purpose. The Court in such circumstances cannot proceed on the same expectations of rehabilitation that is open in other circumstances." 31 The offence contrary to s 86(1)(b) has been marked out by the legislature as a serious offence, a maximum penalty of fourteen years imprisonment being provided. When such an offence is committed the punishment must be sufficient to both punish and deter the offender from repeating the offence. Sadly in this case the applicant has already been convicted and served a sentence in relation to a similar offence. The present offences were committed while he was on parole. Accordingly, the need identified in the authorities to both protect the public and make clear that the law will impose severe penalties for those who re-offend required a significant sentence. 32 There are many factors in the applicant's life, including his apparent physical impairment and psychological problems which may, in part, explain his offending. However, these matters cannot outweigh the need for the imposition of a term of imprisonment which marks out the seriousness of the crime. 33 Careful examination of his Honour's remarks on sentence indicates that his Honour was mindful of the need to balance the criminality of the applicant's offending, questions of deterrence and retribution with the subjective circumstances of the applicant. 34 In relation to the sentence imposed in relation to each offence I am not persuaded that error has occurred. 35 Although I would grant leave to appeal the appeal should be dismissed. 36 JAMES J: I agree with McClellan CJ at CL. 37 BUDDIN J: I agree with McClellan CJ at CL. ********** 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.