B, RS v Police - [2005] SASC 432

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
B, RS v POLICE
Judgment of The Honourable Justice Debelle (ex tempore)
16 November 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal against sentence imposed by a Magistrate - appellant pleaded guilty to two counts of indecent assault and one count of gross indecency - victims were sisters aged under 10 - whether sentence was manifestly excessive - whether sentence should have been suspended - appeal dismissed.
Criminal Law Consolidation Act 1935 s 74; Criminal Law (Sentencing) Act 1988 s 18A, s 29D, s 38, referred to.
Beattie v R (1993) 169 LSJS 266; R v D (1997) 69 SASR 413; R v H, ST [2003] SASC 119, considered.

B, RS v POLICE
[2005] SASC 432
Magistrates Appeal: Criminal

DEBELLE J. This is an appeal against sentence.
On 22 March 2005 the appellant pleaded guilty in the Port Adelaide Magistrates Court to three counts of indecently assaulting two young girls and one count of committing an act of gross indecency with one of those girls. On 24 August 2005 the magistrate convicted the appellant on his pleas of guilty. Exercising the power in s 18A of the Criminal Law (Sentencing) Act1988, the magistrate ordered one penalty in respect of all four counts. He sentenced the appellant to imprisonment for three years and two months with a non-parole period of 20 months. The sentence was to commence on 24 August 2005.
The appellant has not yet served the sentence. On the same day he was released on bail pending the hearing and determination of this appeal.
The appellant appeals on the ground that the sentence is manifestly excessive and on the further ground that any sentence of imprisonment should have been suspended.
The victims in this matter were twin sisters aged nine years at the time of the offending. They resided in the house next-door to the dwelling in which the appellant resided with his wife and children. The victims were friends of his daughter. The parents of the two victims allowed their two daughters to sleep at the appellant’s house from time to time. On those occasions the appellant and his wife were responsible for the care and welfare of the two victims as well as for their own children.
The offending occurred on three occasions when the victim spent the night at the appellant’s house. The offending the subject of counts 1 and 2 occurred when both victims had gone to bed. They were sleeping in the one bed. The appellant lay on the bed between them. He touched victim A on her left breast on the outside of her clothing. He then placed his hands under her top and touched her left breast. Thereafter he lifted her top and kissed her left breast. Victim B was in the same bed and pretended to be asleep until the appellant kissed A’s left breast. B then pretended to wake up and the appellant left the room.
The count of gross indecency concerns a second occasion when the children were playing hide-and-seek in the appellant’s house. The appellant asked victim A to go into a bedroom with him. She did so. The appellant then lifted her to a position where his penis and her vagina were at the same level. The appellant then began to move in a manner which simulated sexual intercourse while both were fully clothed.
The third count of indecent assault concerned victim B. Whilst visiting the appellant’s children, B was in the appellant’s bedroom playing on his computer with A. While A was using the computer, B sat on the bed. The appellant sat next to B. He then kissed her on the cheek, although part of his mouth made contact with the victim’s mouth. At the same time he placed his hands on the victim’s left breast on the outside of her clothing. The victim became scared and left the room.
As is apparent from this recital of the facts, each of the victims was a witness to the offending on her twin sister on two occasions.
Before the learned magistrate, both the appellant and the respondent acknowledged that the offending was sufficiently serious to warrant the imposition of a term of imprisonment. However, Miss Davey, who appeared for the appellant, submitted that there was good reason to suspend the sentence pursuant to s 38 of the Criminal Law (Sentencing) Act1988. In that respect, she relied on the appellant’s personal circumstances and his attempts to rehabilitate himself.
The appellant is aged 41 years. He has no prior convictions. He was born in the Philippines and grew up in circumstances of considerable poverty. As a child, he was sexually assaulted by his grandfather. Although that assault has had a psychological impact upon him, it has not caused the appellant to engage in paedophiliac behaviour.
In the two years prior to his offending, the appellant had been having difficulty in his work place. He was the subject of victimisation which upset him and caused him to suffer depression. He lost weight and began to experience feelings of worthlessness. This, it is said by both psychologists, has been the cause of his offending.
After the offending the appellant was seen by Mr Fugler, a clinical psychologist. Mr Fugler, in turn, referred him to the Sexual Offender Treatment Assessment Program (“the SOTAP program”). The appellant has regularly attended that program and has completed by now some 12 months of that program. At the time of sentencing he had completed nine months of that program. It was expected that he would complete the full program of which, at this time, some nine months or more remain to be completed.
Despite initially seeking to minimise his misconduct, the appellant now appreciates his criminality and according to Mr Sowerbutts, who has been involved in the SOTAP program, there is a very low risk of the appellant offending again in the future.
The appellant’s wife considers him to be a devoted father and husband, a man who took his familial obligations seriously. Not surprisingly, she has been extremely shocked and upset by the appellant’s misconduct.
All of these matters are addressed in greater length in the sentencing remarks of the magistrate. In addition, it is plain from his remarks that he has considered the reports from Mr Fugler and Mr Sowerbutts. His detailed reasons contain extracts from those reports. The magistrate’s reasons also disclose that he has carefully considered the relevant authorities in this context.
Miss Davey, who appeared for the appellant, contended that the magistrate placed undue weight on the decision in R v H, ST [2003] SASC 119. I do not agree. Although he has placed some reliance on it, it is readily apparent from his sentencing remarks that he was aware of the considerable differences in the nature and circumstances of the offending by the appellant and the offender in R v H, ST. He saw the decision in that case as providing no more than “general guidance”. After reviewing all matters, he concluded that the appellant’s offending constituted deliberate and serious criminal acts perpetrated against two young children. At the same time, he had regard to the factors which operated in favour of the appellant. They are set out in his reasons.
The sentence is undoubtedly a harsh one. It might be said to be at the higher end of the range of sentences which might be imposed for this kind of offending. However, in all the circumstances, the sentence is within the discretion of the magistrate. There is no ground in my view for interfering with the sentence. In this regard I do not overlook the further submissions in relation to the length of the sentence made by Miss Davey. She drew attention to the fact that the sentence interferes with the SOTAP program. I believe this is a matter to be considered more in relation to the suspension of the sentence than in relation to the length of the head sentence.
Miss Davey also referred to the reliance placed by the magistrate on what is now s 29D of the Criminal Law (Sentencing) Act1988 (“the Sentencing Act”). Section 29D was introduced into the Sentencing Act by the Statute Amendment (Sentencing of Sex Offenders) Act 2005. It came into operation on 11 August 2005. By that section the Parliament declared that the change in sentencing standard enunciated in R v D (1997) 69 SASR 413 reflects the standard for offences involving paedophilia. The expression “offences involving paedophilia” is defined by s 29D(2)to mean: “all offences to which the 1997 amendment of sentencing standards is applicable”. The expression “the 1997 amendment of sentencing standards” is defined by s 29D(2) to mean the change to sentencing standards enunciated in R v D.
Miss Davey submitted that the decision in R v D was not concerned with the kind of offending of which the appellant had been guilty. In her submission that decision was concerned with a course of sexual misconduct including unlawful sexual intercourse with a child and committed by a person in position of trust and authority. With respect, there is a degree of ambiguity in the reasons of the Chief Justice at p 423 in the first paragraph under the heading “Sentencing Standards” as to the kind of offences to which his remarks are intended to apply. The possibility for ambiguity is more apparent when one has regard to the recitation of the terms of s 74 of the Criminal Law Consolidation Act and, in particular, the reference to sub-s (11) at p 418 of the reasons. In the particular circumstances of this case, I do not think it is necessary to seek to resolve this issue. In this case, the magistrate had prepared his sentencing remarks which had been considered over a period from 7 July 2005 until he published them on 24 August 2005. After he had prepared those remarks, his attention was drawn, only on the morning of 24 August, to the fact that the Statute Amendment (Sentencing of Sex Offenders) Act 2005 had only recently come into operation. The learned magistrate then sought to add further justification to his sentence by relying on both s 10(4) and s 29D of the amended Act. He was correct in his reliance on sub-s 10(4). There is a question as to the propriety of his reliance on s 29D. What is important is the fact that the magistrate had determined the sentence without relying on s 29D. In the particular circumstances of this case his reliance on s 29D can be put to one side and, even if he were incorrect in relying upon it, it does not give rise to an error in the exercise of his sentencing discretion which would warrant setting aside this sentence.
I turn to the question whether sentence should be suspended. The magistrate carefully addressed this issue. He dealt with it at some length in his reasons. He listed the factors which might constitute good reason for suspending the sentence but he said he was not persuaded that they provided sufficient cause for him to exercise his discretion to suspend the sentence. His reasons are set out in some detail in his sentencing remarks.
Miss Davey submitted that there are a number of reasons why the sentence should have been suspended. She properly refers to the fact that a suspended sentence constitutes a sentence and to that extent remains a deterrent. As she says, although deterrence is now required to be the paramount consideration, it is not the only consideration to which regard should be had. The very use of the word “paramount” indicates that there are other matters for consideration.
She further points out there is benefit to the community in a sexual offender completing a course of treatment in the SOTAP program than being incarcerated where such a program and the benefit of such a program are not available. She refers also to the appellant’s pleas of guilty and his genuine contrition, to the difficulties in his earlier life, to his prior good character, his employment history, and to the fact that the offending has occurred in the context of the appellant suffering from depression as a result of difficulties in the workplace. Since he has been charged the appellant has moved house to avoid contact with the victims. She refers to the favourable remarks contained in the pre-sentence report and to the important fact that the risk of re‑offending is low. It is apparent from the reasons of the learned magistrate that he has had regard to all of those factors. They are contained in his reasons and I will not recite them. In particular, he has had regard to the observations of this Court in Beattie v The Queen (1993) 169 LSJS 266 where the Court said:
The indecent handling of boys of [a young age] is a serious crime, and it is necessary for the courts to impose sentences which serve, as far as possible, as deterrence to those who attempt to commit such crimes.
Plainly those remarks are equally applicable to indecent assaults upon young girls. Later, at p 268 the Court said:
… the protection of young children against persons who are minded to commit this type of offence against them must be the paramount consideration for the sentencing judge and this Court.
The community properly looks to the courts to do what the courts can to protect children against this kind of abuse. I think that that consideration is the answer to the arguments put ... in favour of the suspension of the sentence.
His reliance on those remarks was in all the circumstances proper. The magistrate had a discretion whether to suspend the sentence. Miss Davey has said everything which could be adduced in favour of the appellant but I do not believe she has demonstrated the magistrate erred in the exercise of his sentencing discretion. It has not been demonstrated he has erred by having regard to irrelevant factors. He has had regard to all relevant factors. For these reasons he has not erred in exercise of his discretion. I must therefore dismiss the appeal. The orders will be:
1. Appeal dismissed.
2.The appellant to surrender himself to the Port Adelaide Magistrates Court by no later than 12 noon on 17 November 2005.
3. No order as to costs.