R v Devlin [2015] NSWDC 181

District Court New South Wales

Medium Neutral Citation: R v Devlin [2015] NSWDC 181 Hearing dates: 17 December 2014 Date of orders: 20 February 2015 Decision date: 20 February 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment for 12 months. The execution of the sentence is suspended under s12 Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW – Sentence - Indecent assault - Offender assessed as suitable for a home detention order, home detention is not available for the offence Legislation Cited: Crimes (Sentencing Procedure) Act Crimes Act Interpretation Act Category: Sentence Parties: The Crown Craig Devlin Representation: Counsel: Mr B Campbell – The Crown Ms S Howell - Offender

Solicitors: Director of Public Prosecutions O'Brien & O' Brien File Number(s): 2013/190773 Publication restriction: There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants

SENTENCE 1. HIS HONOUR: On 17 December last year, Craig Devlin appeared for sentence after having pleaded guilty to an offence of indecent assault. He had also faced trial before a jury for an offence of sexual intercourse without consent but was found not guilty of that offence. 2. On that occasion I dealt with the objective gravity of his offending and his subjective circumstances. I imposed a sentence but ordered that he be assessed as to whether he was suitable to serve that sentence by means of home detention. 3. On that occasion I made brief reference to the eligibility requirements for home detention and held that an indecent assault upon an adult did not disqualify him. I referred to section 76 of the Crimes (Sentencing Procedure) Act and section 61I of the Crimes Act, where the heading to that section, "Sexual assault", makes it clear that, at least in the Crimes Act, a sexual assault does not include an indecent assault. 4. A home detention report has been prepared. It indicates his suitability, but the Crown has raised a number of arguments in support of a submission that Mr Devlin is, in truth, not eligible for home detention. 5. Firstly, the Crown points out that the Interpretation Act makes it clear that the heading to 61I is to be disregarded. That is what I was relying on, on 17 December last year. 6. The Crown points out that, had Parliament wished to make home detention available for those to be sentenced for indecently assaulting an adult, it would have used the same language to be found in section 66 of the Crimes (Sentencing Procedure) Act, which sets out the eligibility for an intensive corrections order. 7. The Crown also points out, accurately, that a perusal of the sentencing information system available through the Judicial Commission website reveals not a single instance of home detention being imposed for an indecent assault. 8. I accept those arguments, in particular, the submission regarding a comparison between the eligibility requirements for an intensive corrections order and for home detention. 9. Mr Howell did attempt to persuade me that my initial conclusion concerning availability was correct. He pointed out that the words "sexual offences involving children" had to be given work to do, and submitted that if the words "sexual offences" did not include indecent assaults, then there was no work for that term. However, there are sexual offences involving children which do not involve intercourse or indecent assault, incest being a perfect example. So, although those words may not have much work to do, it cannot be said that they have no work to do. 10. Mr Howell also made a submission that because, as I found earlier, his client's conduct was not for the purpose of sexual gratification, it could not be said to be a sexual assault. I do not accept that submission. The actions of the offender were clearly sexual in nature, even though he may not have got any sexual gratification from them. 11. So, despite Mr Howell's submissions, I do make a finding that Mr Devlin is ineligible to be given the benefit of a home detention order. 12. I note in passing that it is difficult to discern any policy reason why a person convicted of indecently assaulting an adult could be given an intensive corrections order but not home detention. In the second reading speech when home detention was first introduced as a sentencing option, the then Attorney-General spoke about community safety. It is difficult to discern how an offender given the benefit of an intensive corrections order presents less of a risk to the community than the same offender given a home detention order. 13. What then flows from the situation that now reveals itself? The only alternatives that are available are two widely differing sentencing options, a suspended sentence of imprisonment or full-time imprisonment. 14. An intensive corrections order is not available for two reasons; firstly, a referral for assessment as to the suitability of an offender to serve a sentence of imprisonment by means of an intensive corrections order can only be made "before imposing a sentence of imprisonment" (see section 69 of the Crimes (Sentencing Procedure) Act), but in any case, even if that legislative impediment was not there, as was discussed on the last occasion, the lack of community service options would mean that in any case Mr Devlin would be found to be unsuitable. 15. The starkness of the contrast between the only two sentencing options available is immediately obvious. I need not dwell on the obvious leniency that a suspended sentence of imprisonment upon this offender would bring about, or the obvious consequences to him of being required to serve a full-time sentence of imprisonment for the first time at his age, he being a man of prior good character. 16. In a real sense, what I am required to do is to choose the least worst sentencing option. The sentencing law as it exists in New South Wales currently has resulted in an extremely unsatisfactory position. 17. Mr Howell pressed upon me, in sentencing submissions made last year, and again today, a number of factors which he suggested meant that full time imprisonment was inappropriate. In addition to the ones he mentioned earlier, which I dealt with on the last occasion, he also referred to the circumstance that this matter has now been hanging over the offender's head for some time. 18. It remains the case, of course, that his conduct that morning was seriously wrong. His desire to humiliate his then wife by exercising his dominion over her, by showing her that he was in charge of such basic matters as to whether she wore underwear or not, was seriously criminal. 19. I have decided, not without considerable hesitation, as is obvious, that the least worst sentencing option is to do what Mr Howell asks me to do. I fully agree that the result is a sentence which fails to reflect the objective gravity of the offender's conduct, and the complainant would be right to think that, as matters have turned out, justice has not been done. 20. To impose a suspended sentence of imprisonment on an offender who conducted himself the way this offender did is by no means an appropriate outcome, to put matters bluntly. He goes, effectively, unpunished for what he has done. But, as I mentioned, it is a choice between two entirely undesirable outcomes, and in my view, especially given the offender's prior good character, and the circumstance that his offending occurred in the context of a highly emotionally charged state, full-time imprisonment is not appropriate either. 21. The order I therefore make is this. 22. The sentence of imprisonment that I imposed on the last occasion is suspended under section 12 of the Crimes (Sentencing Procedure) Act for the duration of that sentence. The non-parole period I announced on that occasion has now become otiose and is to be disregarded. 23. The offender is to enter into a good behaviour bond for the period of the sentence. The conditions of that bond are that he is to accept the supervision of the Probation and Parole Service, including attendance at psychological services for specialist counselling on domestic abuse as required by the Probation and Parole Service and accept any other referrals for treatment ordered by the Probation and Parole Service, and fully comply with such treatment. The offender is not to consume any alcohol during the period of the bond and is to accept random breath testing and comply with such testing as the Probation and Parole Service requires. 24. Of course, the stay that automatically came into consequence as a result of me referring the offender for a home detention assessment is now at an end.