THE QUEEN v. WILLIAM ASKEW SOMERVILLE

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Headnote

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Sentencing gross indecency with adolescents.

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JUDGMENT

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Cons, J.A. :

1. On the 10th May this year the appellant pleaded guilty to three charges of gross indecency with boys of 13 years of age. He was sentenced to imprisonment for 18 months on each of the charges, the periods to run concurrently. The judge below thought that two years would have been an appropriate sentence, but reduced it to 18 months on account of the pleas of guilty.

2. The appellant is now 57 years of age. He is a bachelor, born in Australia, but having lived in Hong Kong since 1958 where he has wide and apparently successful business interests as well as in India and throughout the Far East.

3. It would seem that he was in the habit of receiving young boys in his flat is Causeway Bay. We do not know exactly what went on, but certainly at times he and the boys would sit and watch television. It was on such an occasion that the first two offences were committed. The appellant was sitting on a sofa with one boy on either side, and then, with one hand to each, he took hold of the boys' penises, but did not go inside their clothes.

4. The third offence took place some two months later when another visiting boy was leaving to go home at 11:00 p.m. The appellant pushed money down inside the front of the boy's trousers and in some way or other managed to touch the boy's penis, but again at that moment, his hand was outside the trousers.

5. This is the first time that the appellant has appeared in court for conduct of this nature. A psychiatrist gave evidence on his behalf in the court below and presented a very full report. In substance it is that for family historical reasons the appellant, despite his physical age, has in fact a sexual age of only about 14 years; on the two occasions in question he would have been acting as an adolescent himself, and in the view of the psychiatrist would  have been treated as such by the boys themselves. Genital touching is quite common in boys of that age and does not normally lead to homosexuality. The psychiatrist would not have expected the appellant's conduct to have had any lasting adverse effect upon the boys. At the same time he took the view that the shock of these proceedings has brought the appellant up sharply, and he is confident that with the counselling that the appellant is willing to accept, he is unlikely ever to commit a further offence of this nature.

6. The object of sentences in cases of this kind was said by Sheldon J. in R. v. Robert Odlun Backhous⁽¹⁾, one of the cases to which counsel would have referred us had we not stopped him, to he this :

"Offences involving indecent behaviour by grown men with young or adolescent children are, of course, rightly regarded by the courts as deserving in appropriate cases condign punishment, not only to mark the public's distaste for their activities but also as far as  possible to deter them from repeating any such offences and others from following their example."

However that case itself, and others to which counsel would also have drawn our attention, indicate a judicial view that, except with regard to persistent offenders, those aims can usually be achieved by prison sentences considerably shorter than those imposed in the present case.  Had the circumstances rested as we have outlined them so far, the appellant could have expected a sentence of not more than several months.

7. There are however, in the present case, two features which deserve special consideration. Firstly, with every respect to the psychiatrist, it is difficult to accept that the appellant was no more than  just a boy among boys. Sexually speaking that may have been correct; materially speaking it was certainly not. The judge put it in this way:

"I am of the mind that the accused was in a position of superiority to these boys. He is so much older than they are, he is from a different cultural and social  background and, importantly, he  must have represented financial superiority to them as he was so able to offer his home and its assets for them to contemplate. To a degree he must have represented financial power and been seen as a provider of food."

The reference to food is there because on the first occasion the appellant had given the boys money earlier that evening to go out and purchase food, and on the second he had given ten dollars when the boy had complained of hunger as he was about to leave for home. The psychiatrist said that the appellant would not have connected the passing of money with the sex act. But the boys would certainly have done so, particularly on the last occasion, for it was by pushing the money inside the boy's trousers that the appellant somehow engineered the opportunity to touch his penis.

"In that (said the judge below), I saw a corruption directed at youth which, apart from the age of the boys themselves, aggravated the offence ..."

We agree with his view, but having indicated our agreement we nevertheless feel that even so the circumstances did not warrant so long a sentence. The judge appears to have been influenced to some extent by the thought that the appellant's relations with the boys had been deliberately engineered over a period of time with a specific view to the obtaining of sexual gratification from them. With every respect to the judge we do not think that view is justified on the facts admitted which, on the face of them, amount to no more than two isolated instances. Had the circumstances rested as we have now outlined them, 12 months would have been an appropriate sentence, reduced to 9 months because of the pleas of guilty.

8. But there is yet another matter to be considered in this case. This time it is a factor in mitigation, personal to the appellant and of a medical kind.

9. A report from a Consultant Surgeon of the British Military Hospital was put before the judge. It shows that the appellant has suffered for ten years from a skin cancer, technically known as "BASAL CELL CARCINOMA'', in the form of a slowly growing  lesion on the right side of his face. Treatment in 1979 had at first seemed to produce good results, but sadly there had been local recurrence.  By February this year an extensive area had become affected. He was advised to have radical and wide ranging surgical removal followed by skifgraft. Not surprisingly the appellant was very alarmed at the prospect but eventually accepted the combined advice of the consultant suigeoh, a Consultant Dermatologist and an X'Ray specialist. The operation was carried out in March with the skin for the graft taken from his thigh.

10. At the time of the trial it was thought that the operation had been successful, although the surgeon advised that very careful follow-up attention was needed. His report says:

"The graft is still immature and vunlerable to trauma and infection and needs close watching. Dressings are still required to protect the area."

He adds that it is essential that the patient should be very carefully monitored and  be seen at two weekly intervals for the next three months, - that would have been to about the middle of August, - and that even then, with patient's history, further recurrence or new lesion could be expected.

11. Of course there are medical facilities in the prisons, and the appellant would receive treatment there if necessary. But we mean no disrespect to the prison doctors, and we are confident that they will take no offence, when we say  that we doubt that with the demands that are made upon them, they would be able to provide the same care as the surgeon who actually performed the operation.

12. Today we have had the benefit of further reports. They show that the cancer is in fact far more extensive than it appears from the first report. Furthermore, despite the operation, new cancers seem to be forming in the same area. To put it bluntly, the prognosis is not encouraging. Added to that there is a good chance that if they are not correctly treated they will turn into cancers of a more virulent nature.

13. For these reasons, and we would emphasize for these reasons alone, we think that we are entitled to take a compassionate view and suspend the sentence so that the appellant will be able to receive the continuous and careful treatment that the medical staff of the British Military Hospital can give him. This is not to be taken as a precedent. In normal cases it would not be right to suspend the sentence. That is a view which has been more than once judicially expressed, and we respectfully agree. An immediate custodial sentence is inevitable for offences of this nature unless there are very special circumstances. We are satisfied that those circumstances exist in the instant case.

14. We therefore allow the application, treat it as the appeal itself and vary the sentences imposed to sentences each of nine months, suspended for 2 years from today.

(1) (1981) C.A.R. (s) 126