A, Mr v Police - [2010] SASC 249

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
A, MR v POLICE
[2010] SASC 249
Judgment of The Honourable Justice Duggan
13 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - ELDERLY OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY
Appeal against sentence – appellant convicted of five separate counts of indecent assault – sentence of 21 months' imprisonment and non-parole period of 7 months imposed – whether sentence manifestly excessive – whether magistrate erred in failing to suspend the sentence – whether appropriate regard given to principle of totality, delay between commission of offences and laying of the charges, age and health of appellant and his rehabilitation – whether classification of offending as falling within middle to upper end of scale of seriousness erroneous.
HELD: appeal dismissed – relevant matters relating to delay properly taken into account – unlikely that magistrate did not take appellant's age into account – appellant’s health not a particularly significant factor for sentencing purposes – no error made in assessing gravity of offending – magistrate entitled to have regard to series of offences as serious – was appropriate to have regard to general deterrence – sentence within appropriate range for offences of this type – total sentence not disproportionate to the seriousness of the offending taken as a whole – not a crushing sentence – factors relevant to suspension of sentence properly taken into account – no error demonstrated in sentencing process – sentence not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Liddy (No 2) (2002) 84 SASR 231; R v E, AD (2005) 93 SASR 20, considered.

A, MR v POLICE
[2010] SASC 249
Magistrates Appeals: Criminal

DUGGAN J: Following a trial in the Adelaide Magistrates Court, the appellant was found guilty of five separate counts of indecent assault. The Magistrate who presided over the trial sentenced the appellant to 21 months’ imprisonment and fixed a non-parole period of seven months.
The appellant appeals against the sentence imposed. The grounds of appeal are that the sentence is manifestly excessive and that the Magistrate erred in failing to suspend the sentence. The appellant also argues that the Magistrate failed to have appropriate regard to the principle of totality, the delay between the commission of the offences and the laying of the charges, the age and health of the appellant and his rehabilitation since the commission of the offences.
Background
The offences were committed between 1980 and 1985. At that time the appellant was married to his first wife and resided with her and their children. All five offences were committed at or near the family home and each of the five victims were known to the appellant through relationships they had with either his wife or daughter.
The offences came to light after the appellant’s daughter, JA, made a report alleging that her father had repeatedly engaged in sexual intercourse with her when she was a young child. Following an investigation, the Director of Public Prosecutions advised against pursuing charges in relation to this alleged conduct and no proceedings were instituted. However, at about the same time the police commenced their investigations into the present offences. Information given to the police in the course of the investigation into the complaints by JA resulted in them enquiring into allegations of sexual misconduct against the five victims in the present case. Each of the victims was a friend of JA and her family.
The offence charged in count 1 occurred between 1 January 1980 and 31 May 1980 and involved an indecent assault against EA. EA went to the same school as JA and was a close friend of hers. She frequently visited the appellant’s home. The Magistrate found that EA was approximately 16 years of age at the time of the offence. However as EA was born on 15 December 1964 she was actually between 15 and 15 and a half years of age at the time.
The incident occurred late afternoon or early one evening when EA was visiting the appellant’s home. EA was standing in the dining room of the home when suddenly the appellant stood behind her. He reached over her shoulder, grabbed her right breast and simultaneously rubbed between her legs in the area of her vagina. He attempted to kiss her on the back of the neck and pressed his groin into her lower back. EA managed to break away from the appellant. She said she was in a state of panic and confusion when this occurred.
The victim of the offending charged in count 2 is TM. The offence occurred in 1980. At the time of the offending TM was 17 years of age. TM’s mother was friendly with the appellant’s wife and this is how she came to spend time at the appellant’s home. TM was staying at the appellant’s home on the day of the offending. She had been at a birthday party the night before and upon returning to the appellant’s house in the morning went to sleep in JA’s bedroom. The appellant entered the bedroom and placed his hand on her right breast. TM stated that the appellant placed his hand under the bed sheet and that the contact was “skin to skin.”. At this point she awoke and said something like “What do you think you’re doing?” The appellant responded by saying “I’m just waking you up” and left the bedroom.
The conduct the subject of count 3 was against VC and occurred in 1982, when she was 18 years of age. VC’s mother is the cousin of the appellant’s wife. VC said she had a close relationship with the appellant’s family and that she would visit the family’s home as often as she could. On one particular occasion she attended the appellant’s home for the purpose of obtaining assistance with some knitting. At the completion of her visit the appellant walked her to her car. As they walked to the car the appellant was leaning on or towards her to such an extent that they bumped shoulders. She could smell alcohol on his breath. When they arrived at the car and she turned to thank him, he grabbed her by both arms and pushed her up against the car. He then put his tongue inside her mouth and his left hand inside her jumper. He then grabbed her right breast. VC struggled to break free, slapped the appellant and yelled for him to move away. He let go of her and she got into the car and drove away.
In 1984 the appellant offended against DW, who is the younger sister of TM. It is unclear precisely when in 1984 the offence was committed. The Magistrate found that DW was 14 or 15 years of age at the time of the offence. As DW was born in 1970 she was actually between 13 and a half and 14 and a half years of age.
An uncharged act formed part of the history to this offending. The uncharged act occurred when DW was nine or ten and on an occasion when she was spending the night at the appellant’s house. On this occasion the appellant was alone at the table in the dining room when DW entered. During a discussion which followed the appellant placed his hand through an opening in DW’s nightgown and touched her left nipple.
On the day of the offending the subject of count 4 DW accompanied her family in a visit to the appellant’s home. At this time the appellant and his family resided in a block of units and the family’s apartment was accessible by an elevator. During the visit she decided to join her father and the appellant for a walk along the beach. All three left the apartment together. However, when her father returned to the apartment in order to collect a forgotten item, she found herself alone in the elevator with the appellant. Once they were alone the appellant attempted to put his hands down the top of her shirt. She crossed her legs and slid down to the floor of the lift. He pulled her to her feet, said something like “ Don’t be a silly little girl” and unbuttoned her shirt. He placed his hands on her exposed breasts and commented “Developing nicely”. He then let go and moved away from DW. Her father returned shortly thereafter and DW did not mention what had occurred.
KC, the fifth victim, was also a school friend of JA. She was 21 years of age at the time of the offending in 1985. She had a close friendship with JA and her parents. Her relationship with the appellant was so close that she called him “Dad”. The offence occurred on the night before her wedding. She had arranged to stay at the appellant’s home that night and late in the evening she was alone with the appellant in the kitchen of the home. She hugged the appellant and said “Thank you Dad for everything”. The appellant ran his hand over her left leg, placed his hand on her left breast, squeezed her breast and said “You don’t really think of me as your dad do you?”. She pushed him away, remarked “Not anymore, I don’t”, and left the kitchen.
The errors in relation to the ages of two of the victims were in the appellant’s favour.
Delay
The last offence took place in September 1985. The police investigation commenced in 2004 after complaints by JA that the appellant had engaged in sexual intercourse with her over a period of many years. As already stated the police did not pursue that matter on the advice of the Director of Public Prosecutions.
In a case such as the present delay, of itself, is of limited significance. However, it is necessary to consider the reason for the delay which, in this matter, took place between the commission of the offences and the police investigation. The Magistrate referred in his sentencing remarks to the reticence of the victims in reporting the assaults on them:[1]
You took a risk that none of your victims would disclose what had happened. That was, as I have said in my earlier reasons, a calculated risk on your part. It was a risk that you almost got away with. Each of your victims was understandably confused and alarmed and not willing to disclose to anyone, not even their closest relatives, their parents or any of their friends at that time or within a short period of that time what had occurred. In particular, they did not wish to hurt or prejudice the relationship that they had with your daughter and the relationship that they had with your former first wife.
[1] Summing up, [10].
The appellant should not be entitled to benefit from a delay in reporting if these considerations encouraged him to persist in this type of conduct in the confidence that it would not be reported. However, the type of life led by the appellant over a lengthy period between the offences and detention can be a relevant factor. Counsel for the appellant referred to his rehabilitation over this period.
Differing views have been expressed as to whether there can be rehabilitation without remorse for the offending. Mullighan J referred to some of the relevant authorities in R v Liddy (No 2).[2]
[2] (2002) 84 SASR 231 at [48]f.
In my view the matter is best approached in the present case by taking into account the fact that, after committing the offences, the appellant continued in a worthwhile career which included community involvement and he did so without reoffending. It is apparent that the Magistrate took these matters into account in favour of the appellant. He said:[3]
I accept that issues of personal deterrence are not particularly significant. I do so on the basis that you have not offended since the last of the offences that I am dealing with which was in 1985. I think therefore the court and the wider community can be confident that you are not likely to reoffend and, for that reason, personal deterrence is not particularly significant.
His Honour also referred to the fact that the appellant was well regarded in his chosen profession and that he had given devoted service to various charity and sporting organisations. These considerations were given particular attention when the Magistrate fixed the non-parole period.
[3] Summing up, [21].
Age and health
The Magistrate did not refer to the appellant’s age in his sentencing remarks. However, it was a factor of which he was obviously aware. It is highly unlikely that he did not take it into account. Furthermore, it has limited relevance in the present matter. This was not a case in which the Magistrate was required to assess the effects of a long term of imprisonment on a man of the appellant’s age.[4]
[4] See the discussion in R v Liddy (No 2) (2002) 84 SASR 231 per Mullighan J at [25]f.
In a report tendered at the sentencing hearing Mr Tottman, a psychologist, expressed the view that the appellant suffered from depression. It was recorded in the report that the appellant attempted suicide in 2005. This was after JA and the present victims had made complaints about him. Mr Tottman did not see the appellant until 18 February 2010.
Dr Joyner, a general practitioner, saw the appellant for the first time in February 2010. He stated in a report tendered before the Magistrate:
My assessment of his mental status is that he is still somewhat depressed but not actively suicidal, he is lacking in motivation to be able to change his lifestyle at this stage and probably only after sentencing can be then begin to move on with the rest of his life which seems at a standstill at this stage. His physical health is stable and there are no severe ongoing issues at this stage that I feel would need to be taken into account during any sentencing.
From a mental health perspective there is a risk that severe sentencing could result in increased reactive depression which could potentially lead to a suicidal reaction although this is not evident at this stage.
Again, this is not a case in which the appellant’s health was a particularly significant factor for sentencing purposes.
The level of seriousness of the offending
Defence counsel submitted to the Magistrate that the offending was towards the lower end of the scale. The Magistrate stated in his sentencing remarks that, in his view, the conduct fell somewhere between the middle to upper end of the scale. Counsel for the appellant argues that this classification is unjustified.
Although there is reference from time to time to a matter being at a certain level of the scale of offending for a particular offence, the opinion thus expressed is always subjective, particularly in the case of an offence such as indecent assault. It is more relevant on appeal to have regard to the circumstances of the offending in order to determine whether there was an error in assessing its gravity.
Where the conduct alleged consists of a series of offences, it is necessary to determine the gravity of the offending by reference to the course of conduct involved. The Magistrate was correct in observing that the appellant took advantage of the victims who were in a vulnerable position because of their age and the fact that they were guests in his house. There is little doubt that the embarrassment which they suffered as a result of these encounters inhibited them from reporting what had occurred. The appellant must have realised that this was so. The victims explained in their victim impact statements the extent to which the offences affected them psychologically. In light of these matters the Magistrate was entitled to regard the series of offences as serious. It was appropriate to have regard to general deterrence when sentencing. Furthermore, the appellant cannot claim leniency by reason of remorse for admitted wrongdoing.
Counsel for the appellant also complained of inaccuracy in the Magistrate’s comments in the following passage of his sentencing remarks:[5]
In my view, and hopefully without being too melodramatic, your offending may be likened to that of a predator that lays in wait camouflaged for an unsuspecting victim to wander within striking distance. In your case, the camouflage you adopted was to clothe yourself with a mantle of trust and respect engendered by your status as a professional man of high repute and by the warm and welcoming personality of your wife and your daughter and, to a lesser extent, your son. Each of the victims regarded the house in which you and your family resided from time to time as a ‘safe haven’. It was a place in which friendship and hospitality abounded.
The remarks are somewhat colourful as the Magistrate himself appears to have contemplated. Nevertheless there is an underlying basis in the evidence for the aggravating features of abuse of trust, the unsuspecting attitude of the victims and the repetitive taking of advantage of their vulnerable position, all of which are reflected in these comments.
[5] Summing up, [7].
When it came to fixing the sentence, the Magistrate referred to provisional sentences which he considered appropriate for each offence. His Honour said that imprisonment for five months was appropriate for each of the three offences where the victims were under 18, and three months for each of the two offences were the victims were over 18. However, one sentence was imposed for all offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). Where it is alleged that a sentence is manifestly excessive it is appropriate to consider the course of conduct involved in the overall offending and the repetitive nature of the offences. In my view the sentence was within the appropriate range for offences of this type.
Totality
Although the Magistrate imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988, the total sentence was arrived at by an aggregation of notional sentences for each individual sentence. However, the total sentence was not disproportionate to the seriousness of the offending taken as a whole so as to result in a crushing sentence.[6]
[6] R v E, AD (2005) 93 SASR 20 at [38].
Suspension
It was suggested by counsel for the appellant that the Magistrate did not take relevant factors into account when deciding whether to suspend the sentence.
When the Magistrate addressed the question of suspension he referred to the lapse of time since the commission of the offences and the fact that personal deterrence was not particularly significant as far as the appellant was concerned. His Honour referred to the evidence of the appellant’s health. He said he took into account all relevant matters which included the nature of the offences, but concluded that it was inappropriate to suspend the sentence.
In my view, the Magistrate had regard to those matters which he had been asked to rely upon in suspending the sentence. The decision not to suspend was open to him in the exercise of his discretion.
Conclusion
The appellant was found guilty of committing indecent acts on the victims. It is clear that none of the victims consented to his approaches and that the appellant’s actions resulted in lasting distress for them. The repetitive nature of the offending is a particularly aggravating factor.
The Magistrate was required to take into account the community involvement and considerable achievements of the appellant. It was also important to have regard to the absence of any other offending. However, these matters were taken into account and, in particular, they resulted in a low non‑parole period.

No error has been demonstrated in the sentencing process and, in my view, the sentence is not manifestly excessive.
The appeal will be dismissed.