Baf v The Queen - [2021] SASCA 69

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BAF v THE QUEEN
[2021] SASCA 69
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Kelly and the Honourable Justice Livesey)
1 July 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
The applicant pleaded guilty to maintaining an unlawful sexual relationship with a child and assault occasioning actual bodily harm. The offences were committed against the applicant's stepdaughter in the mid-1980s and early 1990s. The sexual offending occurred over the course of about nine years, when the complainant was aged between five and 14.
The complainant’s account of the acts committed and the frequency of the sexual offending were contested in a disputed facts hearing. The sentencing Judge held that he was satisfied beyond reasonable doubt about the complainant’s account of the sexual offending.
Pursuant to s 26 of the Sentencing Act 2017 (SA), the applicant was sentenced to a single sentence of ten years’ imprisonment. This was reduced by 10% to a term of nine years’ imprisonment on account of guilty pleas entered shortly before the trial commenced. A non-parole period of six years was fixed.
The applicant seeks permission to appeal on the grounds that the Judge failed to give adequate reasons and that the sentence and non-parole period are manifestly excessive.
Held (per the Court), giving permission to appeal the ground concerning the adequacy of the reasons, but dismissing the appeal and otherwise refusing permission to appeal:
1. Careful regard must be given to the reasons as a whole, in the context of the conduct of the hearing, as well as to the evidence given by the victim and the applicant, together with admissions made by the applicant to third parties. When these materials are properly considered, it is clear that the Judge’s reasons are not inadequate and the findings are supported by the evidence.
2. Given that there was significant offending involving a gross breach of trust over a sustained period, which caused long term harm to the complainant, it cannot be said that the starting point of 10 years was manifestly excessive.
3. Neither the head sentence of nine years nor the non-parole period of six years is manifestly excessive.

Criminal Procedure Act 1921 (SA) s 157(1); Criminal Law Consolidation Act 1935 (SA) ss 40, 50(1); Sentencing Act 2017 (SA) s 26; Supreme Court Act 1935 (SA) s 19C; Supreme Court Criminal Rules 2014 (SA) s 106A, referred to.
JGS v The Queen [2020] SASCFC 48; IMM v The Queen (2016) 257 CLR 300; DL v The Queen (2018) 266 CLR 1; Keith v Gal [2013] NSWCA 339; Wainohu v New South Wales (2001) 243 CLR 181; Day v The Queen [2021] SASCA 38; R v D (1997) 69 SASR 413, considered.

BAF v THE QUEEN
[2021] SASCA 69

Court of Appeal – Criminal: Kelly P and Livesey JA
THE COURT:

The applicant seeks permission to appeal against sentence pursuant to s 157(1) of the Criminal Procedure Act 1921 (SA).
The applicant pleaded guilty to maintaining an unlawful sexual relationship with a child,[1] and assault occasioning actual bodily harm.[2] Both offences were committed against the applicant’s stepdaughter during the mid-1980s and early 1990s. The applicant is married to the complainant’s mother. The sexual offending occurred over the course of about nine years, when the complainant was aged between five and 14. The single assault occurred when the complainant was about 11. There was a further attempt at an assault when the complainant was 17, after which she moved out of the family home. The complainant is now aged around 41 years.
[1] Contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 40 of the Criminal Law Consolidation Act 1935 (SA) (now repealed).
Substantial aspects of the allegations relating to the unlawful sexual relationship, including the complainant’s account of the acts committed and the frequency of the offending, were contested in a disputed facts hearing. In reasons delivered on 14 January 2021, the Judge found that he was satisfied beyond reasonable doubt about the complainant’s account of the sexual offending.[3] There was no dispute about the allegations made in respect of the assault charge.
[3] R v BAF, Reasons for Decision of Auxiliary Judge Barrett, delivered 14 January 2021 (Reasons).
On 4 March 2021, the applicant was sentenced pursuant s 26 of the Sentencing Act 2017 (SA) to a single sentence of nine years’ imprisonment for both offences, reduced by 10% from 10 years’ imprisonment on account of guilty pleas made shortly before the trial commenced in Mount Gambier. The sentencing Judge fixed a non-parole period of six years. The sentence commenced on the day of sentencing. The Judge also made a non-intervention order preventing any connection of any of sort whatsoever with the complainant.
The offending
It is not necessary for the purposes of these proceedings to recount the history of the offending in detail. The complainant gave evidence that the applicant began sexually offending against her when she was aged five at Jarrah Street, when the applicant digitally penetrated her vagina in the applicant’s bed. There was no further offending until the family moved to a new house about three years later. The complainant said that from when she was about eight until she was about 14, the applicant sexually offended against her on multiple occasions. Those offences included three types of sexual intercourse. The Judge generally accepted the complainant’s evidence and sentenced the applicant on that basis.
Sentencing remarks
In his sentencing remarks, the Judge considered admissions the applicant had made to a psychologist as demonstrating a degree of remorse. However, he also noted that the applicant denied any part of the complainant’s allegations which he had not already admitted to a psychologist. He therefore considered that he could give little weight to the applicant’s remorse.
The Judge took into account a detailed psychological report of Dr Balfour, and a report from a consultant physician, Dr Cobain. Those reports referred to difficulties in the applicant’s upbringing and to early exposure to sexualised behaviour. They assessed the applicant’s prospects of ceasing offending as fair to good, and the Judge accepted that, by this point in the applicant’s life, there was no reason to think that he had not rehabilitated.
The Judge also considered medical records which indicated that the applicant and his wife suffered from a number of physical ailments which would make serving a prison sentence more difficult. He also kept in mind that for a number of years the applicant had cared for three of the complainant’s children, two of whom still lived with him at the time of sentencing.
The Judge described the offending as protracted, frequent and serious. It was serious offending against a child who was entitled to protection from the applicant.
The application for permission to appeal
On 22 March 2021, the applicant filed a Notice of Appeal. The grounds in that notice were limited to a complaint that the sentence was manifestly excessive. On 28 May 2021, the applicant filed Amended Grounds of Appeal. The Director of Public Prosecutions filed a DPP Notice on 4 June 2021 indicating his view that each of the amended grounds is plainly unarguable.
Following callover appearances before the President on 27 April and 7 June 2021, she listed this matter for hearing this morning. Pursuant to s 19C of the Supreme Court Act 1935 (SA) and r 106A(c) of the Supreme Court Criminal Rules 2014 (SA), the President has determined that we sit this morning as a bench of two Judges.
The proposed appeal can be distilled to two complaints. The first is that the Judge erred in failing to give adequate reasons following the disputed facts hearing. That complaint extends to the Judge’s treatment of the credibility and reliability of the complainant. The second is that the sentence and non-parole period are manifestly excessive. We address each in turn.
Were the Judge’s reasons inadequate?
In support of the complaint that the Judge’s reasons were inadequate, the applicant pointed to a number of inconsistencies in the complainant’s evidence, and submitted that the Judge failed to explain why he found the complainant to be a generally truthful and reliable witness in spite of these inconsistencies. He also submits that the Judge failed to adequately distinguish between credibility and reliability in his assessment of the complainant in his reasons. Reliance was placed upon the decisions in JGS v The Queen[4] and IMM v The Queen:[5]
Before proceeding further, it is important to be clear about what is meant by “credibility” and “reliability” in this context. At law, a distinction was ordinarily drawn between the two concepts. The credibility of a witness was commonly understood as meaning the “truthfulness” of the witness – whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness’s ability to observe and remember facts. For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time. Credibility and reliability are used in those senses …
[4] JGS v The Queen [2020] SASCFC 48 (Lovell J with whom Peek and Bampton JJ agreed).
[5] IMM v The Queen (2016) 257 CLR 300, [114].
A Judge’s failure to provide adequate reasons for a decision is an error of law productive of a miscarriage of justice.[6] The extent and content of reasons required in a particular case will vary, depending upon the nature of the jurisdiction which the court is exercising, the particular case under consideration and the matters in issue.[7]
[6] DL v The Queen (2018) 266 CLR 1, [132].
[7] Keith v Gal [2013] NSWCA 339, [110]; Wainohu v New South Wales (2001) 243 CLR 181, [56].
In the course of detailed reasons, the Judge directed himself that a rejection of the applicant’s evidence did not demonstrate that the prosecution allegations had been proved beyond reasonable doubt. Nonetheless, important admissions were made by the applicant to third parties and these narrowed considerably the scope for dispute over the facts alleged by the complainant.
At a time when the applicant and his wife were hoping to care for the complainant’s children, the applicant agreed to see a psychologist because allegations of sexual offending had been made. The applicant admitted to the psychologist that he had performed cunnilingus on the complainant on one occasion when he was drunk, that he caused her to commit fellatio on another occasion when he had taken drugs and, significantly, he conceded that there may have been other occasions when he sexually abused the complainant but he could not remember them because he was either drunk or on drugs. He generally acknowledged that the complainant was unwilling but scared because she had seen how angry he could be.
The applicant also admitted that, on the last occasion he abused the complainant when she was 13 or 14 years of age, he threatened the complainant to do what he said or he would use a pillow over her face. He had said, “do it and even if you don’t I’ll hold you down anyway”. In his evidence, the applicant agreed that the complainant was scared and submissive.[8]
[8] Reasons, [151].
The Judge described the applicant’s attempts to “distance himself from some of these disclosures [as] self-serving and unbelievable”.
One area of inconsistency, outlined this morning, concerned the details of the last incident, and we refer to the use of a knife, to whether there had been prior penile vaginal intercourse, and the victim’s statement that she had lost her virginity to her boyfriend. It was suggested that this last statement was inconsistent with the applicant having previously engaged in penile vaginal intercourse with the complainant. These issues were carefully reviewed by the Judge.[9] It is significant that the complainant’s statement about losing her virginity was made to the applicant and the complainant’s mother. It is also significant that the sentencing Judge found that the final incident involving the pillow “did not come out of the blue”.[10]
[9] Reasons, [56]-[61], his resolution of the issues in favour of the complainant is set out between [149] and [154].
[10] Reasons, [154].
Another inconsistency seized upon by the applicant is that the victim said that after the first incident there were similar acts which also occurred at Jarrah Street. However, in her later statements the victim confined herself to only one incident at Jarrah Street. Though the Judge preferred the victim’s evidence about what happened in the first incident, he sentenced the applicant on the basis that there was no further abuse at Jarrah Street. When rejecting the applicant’s account of that first incident the Judge relied upon his rejection of the applicant’s evidence that he had told his wife about that incident in circumstances where his wife denied that she had ever been told about it by her husband.
The Judge addressed the extent of the applicant’s sexual offending. He acknowledged that the applicant’s account of admittedly abusing his stepdaughter on a handful of occasions over a five-year period was “unusual, though not impossible”. Nonetheless, again relying upon disclosures made by the applicant and the victim’s evidence, the Judge preferred the victim’s evidence generally beyond reasonable doubt.
Another example of the way in which the Judge resolved questions of credibility and reliability in favour of the victim was his treatment of the undisputed facts that the victim asked the applicant to be present at the birth of two of her children and, in addition, she did not object to her children moving in with the applicant and the complainant’s mother. Whilst the Judge described this evidence as “certainly unusual” he emphasised that the victim explained that she was separated from her domestic partner at the time of the birth of the two eldest children. She had been subjected to domestic violence. She had also suffered bouts of mental ill health and was, as a result, unable to adequately care for her children. The Judge was aware of these issues, and the assertion that the victim had a motive for making allegations against the applicant and that she had had bouts of mental illness and treatment. He resolved all of those issues in favour of a finding that the victim was both credible and reliable. He made his findings beyond reasonable doubt.
It is necessary in cases such as these to pay very careful regard to the reasons as a whole, in the context of the conduct of the hearing, as well as to the evidence given by the complainant and the applicant, together with the admissions made by the applicant to third parties. When these materials are all properly considered the basis for the Judge’s findings and his reasoning regarding the victim credibility and reliability are clear. In the circumstances, the reasons are not inadequate and the findings are supported by the evidence.
Were the sentence and non-parole period manifestly excessive?
The applicant submits that the head sentence reached by the Judge of nine years was manifestly excessive, either by virtue of purported errors made when finding the disputed facts proved beyond reasonable doubt, or having regard to all of the applicant’s personal circumstances.
There is no need to address the relevant authorities which have been very recently addressed in this Court[11] and the Court of Criminal Appeal.[12] Plainly, this was a case coming within R v D.[13] The applicant concedes as much.
[11] Day v The Queen [2021] SASCA 38, [61]ff (Kelly P, Lovell and Livesey JJA), citing House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ); Dinsdale v The Queen (2000) 202 CLR 321, 325-326 (Gleeson CJ and Hayne J); R v V, AJ [2012] SASCFC 10, [3] (Doyle CJ, concurring with Gray J): “Offenders will escape due punishment if the passage of time and resumption of a law-abiding life are given too much weight in cases of this kind”.
[12] R v McIntyre [2020] SASCFC 101; R v RGC [2020] SASCFC 102.
[13] R v D (1997) 69 SASR 413, 423-424 (Doyle CJ).
On the findings made by the Judge, there was significant offending over a sustained period until the violent rape when the complainant was 13 or 14 years of age, after which the abuse stopped. The offending involved a gross breach of trust, with long term harm caused to the complainant.[14]
[14] And the community, R v MJJ (2013) 117 SASR 81, [84] (Kourakis CJ).
As is typical in cases such as these, a long period of time had elapsed since the period of the abuse. The applicant’s conduct since that time had generally been commendable. Nonetheless, the Judge was not satisfied that the applicant had been entirely co‑operative, although there had been rehabilitation and the various admissions made by the applicant “bespeak a degree of remorse”.
It cannot be said that the starting point of 10 years was, on the findings made, manifestly excessive. The non‑parole period fixed of six years was two thirds of the head sentence of nine years. In the circumstances of this case, we are firmly of the opinion that neither the head sentence nor the non‑parole period were manifestly excessive.
The ground concerning the adequacy of the reasons is reasonably arguable, but that ground of appeal is dismissed. Permission to appeal is otherwise refused.