DPP v Stu [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Tennent J,Wood J
• Judgment Date: 08 August 2012
• Docket Number: 1009/2011
• Date: 08 August 2012

[2012] TASCCA 7

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Tennent and Wood JJ

1009/2011

Director of Public Prosecutions

and

Stu

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Two convictions for maintaining a sexual relationship with young person under 17 and two convictions committing an indecent act with a young person under 17 — Global sentence of two years' imprisonment.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 The Director of Public Prosecutions appeals against the sufficiency of a sentence imposed on the respondent, for two convictions of maintaining a sexual relationship with a young person under 17 years of age, and two convictions of committing an indecent act with a young person under the age of 17 years.

2 The sentence under appeal was imposed by Blow J. It is a global sentence of two years' imprisonment as to which the respondent was made eligible to apply for parole after serving one-half of the sentence.

3 When sentenced, the respondent was 74 years of age. The criminal conduct that is the subject of his convictions began when he was in his mid-60s and ended when he was in his early 70s. His victims were two of his granddaughters and a friend of one of the granddaughters.

4 The facts provided by the prosecutor to the learned sentencing judge in relation to the respondent's crimes included the following.

5 The first charge of maintaining a sexual relationship related to a granddaughter of the respondent (‘the first granddaughter’). During the period of this crime she frequently visited and stayed with the respondent and his wife. She turned 6 years of age in 2002. On an occasion during 2002 when she was at the respondent's residence and he and she were on his bed, he asked if he could put his penis on her. Notwithstanding that she said, ‘No’, he pulled her legs apart and put his penis on the outside of her vagina and began rubbing it against her. She told him to stop and he eventually did so.

6 When she was approximately 7 years of age in 2003, on an occasion when she was at the respondent's residence, he asked her to suck his penis. She refused, but he told her that if she did not he would show her friend pictures he had taken of them. She went into a bedroom with the respondent. She was crying. He pulled down his pants, removed his penis and guided her face so that his penis went into her mouth. After some minutes she pushed him away. He told her he was sorry and then admitted that the photographs he had told her about did not exist. He made her suck his penis about three times in total over the period of the relationship.

7 On another occasion when this granddaughter was 7 years of age, the respondent sat her up on some boxes in the garage at his residence and put his finger inside her vagina. It hurt her, and when she said, ‘No’, he pulled his hand away. He told her not to tell anyone as he would get into trouble.

8 On an occasion when this granddaughter was 8 to 9 years of age they were alone in the respondent's bedroom and she was sitting on the bed with her legs on his lap. He pushed her backwards so that she was lying on the bed, and put a finger inside her vagina. She told him to stop but he did not. The prosecutor told his Honour that the respondent penetrated the vagina of this granddaughter on occasions other than those mentioned but the number of those occasions could not be specified.

9 In about 2005, when this granddaughter was approximately 9 years of age, there was an occasion when the respondent undid her pants and put his tongue in her vagina.

10 When this granddaughter was about 10 or 11 years of age, she and a girlfriend, who is the subject of the second charge of maintaining a sexual relationship against the respondent, were together at his residence. Whilst they were on his bed he pulled down his shorts, took hold of his penis and asked the girls to touch it. They refused. In the presence of the friend, the respondent then put his tongue in his granddaughter's vagina. The respondent put his tongue in or on this granddaughter's vagina about seven times during the period of the relationship.

11 The respondent's unlawful sexual conduct with this granddaughter ceased when she told him that she did not want to do it anymore. This occurred in 2008 when she was about 12 years of age.

12 At the time of the incident when the respondent asked this granddaughter and her friend to touch his penis the friend was about 10 years of age and in grade 4. When the friend was in grade 5, on two separate occasions, the respondent offered her money to allow him to suck her breasts. On the first occasion he sucked one of her breasts and paid her $15. On the second occasion he sucked both of her breasts and paid her $10.

13 His Honour enquired of the prosecutor whether any other occasions of sexual misbehaviour were relied upon in relation to this friend. No doubt his Honour had in mind that the charge in relation to this victim was one of maintaining a sexual relationship. The prosecutor said that other occasions were referred to in the respondent's police interview. In the interview the respondent said that he had interfered with this victim approximately four times over three to four years, and made specific reference to an occasion when they were on a bed when he touched her vagina with his fingers. His other admissions appear to relate to the specific incidents detailed by the prosecutor that have already been mentioned.

14 The respondent's involvement with this girl and the granddaughter referred to took place in an atmosphere in which he ingratiated himself to them by supplying them with alcohol and cigarettes. He repeatedly told them that if they told anyone he would get into trouble, or something bad would happen to him.

15 The second granddaughter of the respondent, who is the victim of the two charges of doing an indecent act with a young person under the age of 17 years, was 6 years of age in 2010. In September 2010, she told her half-sister, the first granddaughter, that the respondent had put his finger in her ‘rude part’. Some time later she also made a complaint to her mother, stating that the respondent had done things to her. She was interviewed by police in Queensland in November 2010, but did not make any disclosures. In the same month, the first granddaughter and her friend made formal complaints about the respondent to authorities in Queensland and Tasmania. On 8 November 2010, the respondent was spoken to by Queensland police about the allegations of these girls, and he denied them. The next day he agreed to be interviewed by police and admitted he had sexually assaulted the girls.

16 On 17 February 2011, the respondent participated in a recorded interview with Tasmania police. Of the allegations made by his first granddaughter, the victim of the first charge of maintaining a sexual relationship, the respondent said:

• •She would have been about 6 years of age when he started a sexual involvement with her that continued over a five year period.

• •It happened when he was alone with her and his wife was out.

• •He had placed his penis on the outside of her vagina as stated by her.

• •He had asked her to suck his penis and had put his penis in her mouth two to three times.

• •He had touched her vagina with his fingers, probably ten times, no more than 20 times, but denied inserting his finger in her vagina on any occasion. There was never any penetration.

• •On one occasion when he had touched her vagina with his fingers she had told him it hurt so he had stopped. He believed he had been rubbing too hard.

• •He exposed his penis to her to get her to touch it and she had done so three to four times.

• •He had kissed her vagina on one occasion and his tongue may have gone in a short distance.

• •He had touched her breast with his hand.

• •He had told her not to say anything as he would get into trouble.

17 Of the allegations of his first granddaughter's friend, the victim of the second charge of maintaining a sexual relationship, he said:

• •He had interfered with her approximately four times over a period of three to four years, and that it involved touching similar to that which had occurred with his first granddaughter.

• •The interference probably began when his first granddaughter told him that her friend had been interfered with before.

• •He recalled an occasion when he was on the bed with this girl and he touched her vagina with his fingers. He believed his first granddaughter was present at the time.

• •He had exposed his penis to this girl and asked her to touch it, but she did not like it.

• •He had sucked this girl's breast, but denied paying her money for it.

• •He had given both girls alcohol on occasions.

18 Of his second granddaughter, the victim of the two charges of doing an indecent act with a young person, the respondent said:

• •He touched her on the vagina with his fingers on two occasions at his Hobart residence. On the first occasion he had lifted her dress and put his hand on her vagina momentarily and moved it. On the second occasion he had finished by moving his finger over the middle of her vagina.

• •She was 6 at the time and it happened in June or July 2010.

• •He had told her not to tell anyone.

19 When interviewed by Queensland police on 9 November 2010, the respondent volunteered that the previous day he had touched his second granddaughter under her clothing on her breast area and on her vaginal area. For this conduct he was charged in Queensland with the crime of unlawfully and indecently dealing with a child under the age of 16 years who was, to his knowledge, his lineal descendant. He pleaded guilty to the charge and, on 12 August 2011, Shanahan DCJ sentenced him to a wholly suspended term of 12...