Chief Justice doubles term of imprisonment to 18 months; suspends portion not served
Chief Justice Anthony Smellie on Friday doubled the sentence of a man who had pleaded guilty to indecently assaulting his 8-year-old daughter, ruling that the original sentence of nine months, with three months suspended for two years, was unduly lenient.
However, Justice Smellie noted that since the defendant had already been released from prison after serving the six-month immediate imprisonment portion of the sentence, it would be “unduly harsh and tantamount to a kind of ‘double jeopardy’” to recommit him to prison now.
If the defendant re-offends within the two-year period of suspension, he will be liable to imprisonment for a further period of 12 months instead of the original three.
The appeal was argued in December by Crown Counsel Michael Snape.
The chief justice began his judgment by ordering that nothing be published which would lead to the identity of the child, including the identity of the respondent – the father – to the Crown’s appeal.
Mr. Snape had argued that, when the matter was heard in Summary Court, Chief Magistrate Nova Hall correctly identified 18 months as the starting point for determining sentence. He said she then gave credit for the mitigating factors, including the man’s guilty pleas and remorse, but failed to take into account the aggravating features, such as the kind of touching that occurred and the activities he forced her to watch.
Justice Smellie referred to the magistrate’s reasons. She had said she was suspending three months of the nine month sentence as an act of leniency. Her concern was “the reaction of the child victim who did not want her father to go to prison and who was expressing guilt in bringing about such an event [by reporting it some years later to a school authority].”
The magistrate explained, “I hoped to lessen her anxiety by reducing the actual period of time that the defendant would spend in prison.”
The chief justice indicated that concern for the girl was a legitimate factor. Reducing a term of immediate imprisonment so as to mitigate the impact of sentence on the victim is recognized as a legitimate exercise of the judicial discretion on sentencing, he said.
“It is, indeed, a peculiar aspect of this troubling case, that this vulnerable girl is not yet mature enough appropriately to grasp and come to terms with the abuse she has suffered but would blame herself, quite unfairly, for her father’s predicament,” the judge said. That this was an ongoing concern was evidenced even at the appeal, when attorney Ben Tonner presented a letter to the court from the girl and another young family member. It was clear there was an added emotional burden on her arising from her concern to protect not only her relationship with her father but also his relationship with another family member.
“She is clearly prone to blaming herself if he is further imprisoned for his offenses committed against her,” the judge continued. “In the particular circumstances of this case, it must be accepted that these are powerful factors influencing a decision on the appropriate period of incarceration.”
But while due regard must be paid to the concerns that led the magistrate to reduce the sentence, Justice Smellie said, sentencing guidelines from the U.K. indicate that “serious and repeated offenses of such a sexually abusive nature against a child entrusted to one’s care, should attract a significantly longer term of imprisonment than nine months.”
He noted Mr. Snape’s argument that too much deference had been paid to the background of the defendant, in particular the history of abuse he reportedly suffered as a child. But the relevance of that history was not readily apparent in a psychiatric report on the defendant, the judge pointed out. He accepted Mr. Snape’s argument that it was not apparent from the magistrate’s reasons how she took the aggravating features into account.
He said he was compelled to the conclusion that the sentence was unduly lenient – that is, it fell outside the range of sentences that could be considered reasonable, having regard to all the relevant factors. “With deterrence in mind as a relevant factor raised by the aggravating factors of the case (in particular the repeated targeting of a vulnerable victim who has been seriously harmed) a longer sentence was required. The aggravating factors in this case should have been applied at least to offset the mitigating factors.”
However, it did not necessarily follow that the magistrate was required to impose a longer term of immediate imprisonment, he said, emphasizing “immediate.” He noted again the magistrate’s concern for the girl and said he was mindful of the same concerns.
In addition to completing the term of imprisonment imposed on him, the defendant had complied with other terms of his sentence and was expressly committed to undergoing psychiatric and/or psychological counseling. The judge expressed the view that the defendant should be required to do so to the satisfaction of his counselors before being allowed to be in the unsupervised custody of the girl or any other vulnerable child again. Those responsible for the girl might wish to obtain a protective order of the court to that effect, he suggested.