Richman, Peter Robin v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Blow J,Porter J
• Judgment Date: 21 December 2011
• Docket Number: 347/2011
• Date: 21 December 2011

[2011] TASCCA 18

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Blow and Porter JJ

347/2011

Richman, Peter Robin

and

State of Tasmania

Aust Dig Criminal Law [3537]

Criminal Law — Appeal and new trial — Appeal against sentence — Other matters — Maintaining sexual relationship with young person under 17 — Sentence of two years' imprisonment — Non-parole period of one year and three months — Whether sentence manifestly excessive.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 The appellant appeals against a sentence of two years' imprisonment, subject to a non-parole period of 15 months, imposed on him by Tennent J upon his conviction, on his plea of guilty, to a charge of maintaining a sexual relationship with a young person under the age of 17 years.

2 The grounds of appeal involve contentions that the head sentence and the non-parole period are manifestly excessive, and that the learned sentencing judge erred in:

• •disregarding submissions that the sexual relationship was provoked by the complainant;

• •declining to regard the case as atypical;

• •determining that the need for general deterrence demanded the imposition of an actual custodial sentence; and

• •imposing a non-parole period greater than one half of the head sentence.

3 The sexual relationship that is the subject of the conviction commenced some time after 3 May 1981 and concluded not long after January 1982. During this period the female complainant was 15 years of age and the appellant 46 years of age.

4 For some years prior to 1981, the complainant had been a member of the Rosny Children's Choir. The appellant was the choir's organist. They became acquainted and a friendship developed between them. The appellant, on occasions, gave the complainant a lift home after choir rehearsals. The complainant's parents had separated when she was three years of age. She resided with her mother. The complainant's mother came to regard the appellant as a trusted family friend. He often had a cup of tea with her after giving the complainant a lift home. This continued during the period of his sexual relationship with the complainant.

5 The complainant looked on the appellant as a confidant and father figure, and often wrote essays for him expressing her feelings about herself and her life. As the appellant drove her home they talked about the things that were troubling her. According to the medical report provided to the Court on behalf of the appellant, one of the topics she raised was sex. The complainant's emotional involvement with the appellant began in excess of eight months before their sexual relationship. It is referred to in a diary note she made, dated 5 September 1980, headed ‘I need someone’. At the outset of the diary note she appears to equate friendships with being on a merry-go-round and refers to moving from one merry-go-round to another when ‘she sees one which might be better’, but having made the move it ends up the same as before except with someone different. She says: ‘At the moment I'm on [the merry-go-round] with Peter Richman’. She concludes the entry: ‘Peter is the someone I need. I need him to love me like his daughter. I love him like a father, but I feel that he doesn't understand, not many do’.

6 When driving the complainant home some time after 3 May 1981, the appellant stopped his vehicle on the side of the road and kissed her. He then touched her breasts, initially over her clothing and subsequently directly on her skin. He placed her hand on his penis and told her to rub it. Herubbed her vagina. This incident marked the commencement of their sexual relationship. Thereafter, over a period of a couple of months, similar sexual activity occurred on more than five occasions. In the course of driving the complainant home, the appellant parked in a secluded spot, kissed her, inserted his tongue in her mouth, touched her breasts and her vagina and instructed her to touch and stimulate his penis, which she did. On the second occasion that they had sexual contact, the appellant inserted his finger into the complainant's vagina. He also requested her to perform oral sex on him, which she did.

7 The prosecutor informed the sentencing judge that whilst the complainant participated in the sexual relationship, this was in order to maintain the close bond that had developed between her and the appellant, and she feared losing what she believed was his love and affection. In her victim impact statement the complainant said that she considered the appellant to be her adopted dad in replacement for her own father whom she rarely saw.

8 The appellant ran a business from premises in Sandy Bay. Some time after his sexual relationship with the complainant began, he employed her to do filing at his business premises on Saturday mornings. She did so over a period of a couple of months. When the appellant and the complainant were alone at the premises the appellant played pornographic videos for her, and then initiated sexual contact. The contact was much the same as that which occurred in his vehicle and included digital penetration of her vagina and anus. At his request she digitally penetrated his anus. On one occasion he requested her to perform oral sex on him whilst he licked her vagina. Sexual activity of this type occurred on nearly every occasion that the complainant went to the appellant's business premises.

9 In January 1982, the complainant, who was staying in the north of the State, joined the appellant at Rutherglen Village where he was working. Ostensibly she was there to assist with his work. During the complainant's visit, she performed oral sex on the appellant and he licked her vagina.

10 It was accepted by the prosecution that it was the appellant who brought the sexual relationship to an end. The appellant's counsel on the sentencing hearing, Mr Morgan, explained to the sentencing judge that this occurred, not long after the incident at Rutherglen, on a Saturday morning when the appellant and the complainant were at the appellant's business premises. That morning the appellant telephoned Jennifer Filby, the head of the choir, told her of the relationship and requested her to come to the premises to assist with its termination. She immediately did so and the relationship thereupon finished. The appellant offered to resign from his position with the choir, and for some months avoided having anything to do with it. The complainant remained a member of the choir, but left some time after she turned 16. Thereafter, Ms Filby persuaded the appellant to resume his previous role with the choir.

11 The complainant's victim impact statement includes the following. She suffered 30 years of psychological trauma as a result of the appellant's sexual abuse. He took advantage of her need for a father figure to use her for his sexual gratification. This took away her personal power, made her feel of little value; and led to others victimising her as well. She developed bulimia when she was 14 years of age, about halfway through Grade 9. [This was about a year prior to the commencement of her sexual relationship with the appellant.] She started drinking alcohol during school hours when 16, and became a heavy marijuana user when 17. Whilst she had stopped using marijuana for about seven to eight years, she was still a heavy consumer of alcohol. She had found it difficult to regain her self-confidence and considered that because of the appellant's abuse she was 20 years behind in her capacity to earn an income. She had reclaimed her life, had completed two degrees and was completing an honours degree. She struggled to have meaningful relationships, whether platonic or potentially romantic, and this was because her involvement with the appellant had stifled her ability to do so. She was unable to enjoy her sexuality as an adult.

12 In the course of the sentencing hearing the prosecutor made a variety of statements to the sentencing judge on the vulnerability of the complainant when the appellant took advantage of her, and the adverse consequences of what he had done to her. Ultimately these statements were to the following effect. Before the complainant's sexual relationship with the appellant, she had already experienced troubles in her life which had been compounded by the absence of a father figure from an early age. When 8 years of age she had been the subject of a sexual assault by a relative and she had been victimised sexually by others subsequent to her relationship with the appellant. It was accordingly very difficult for the complainant to isolate the detrimental impact of the appellant's behaviour on her from the impact on her of abuse by others. By the age of 18 she had left home. and moved to the mainland where she developed significant drug and alcohol problems. She returned to Tasmania in 2002, and sought the assistance of counsellors. It was not until 2009, or early 2010, that she felt able to make a formal complaint to the police about the appellant's conduct. The prosecutor asked the sentencing judge to take into account that the appellant was aware that the complainant was very troubled at the time of commencing the sexual relationship.

13 In the course of the sentencing hearing the prosecutor informed the sentencing judge that on 25 August 2010, the appellant voluntarily attended on police and participated in an audio visual record of interview, during which he admitted sexually assaulting the complainant and said that he initially stopped his vehicle when driving the complainant home in order to talk to her about her problems, but the sexual urge took over. The appellant also told the police that he had developed an affection and fondness for the complainant, and was aware that she treated him as a counsellor and father figure.

14 Counsel for the appellant on the sentencing hearing, opened his submissions by stating that...