Clarence Lindsay Virgo v R No. 4237 Judgment No. SCGRG 93/117 Number of Pages 5 Criminal Law and Procedure Sentence

[1993] SASC 4237

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), DEBELLE(2) AND MILLHOUSE(3) JJ

CWDS
Criminal law and procedure - sentence - one count of indecent assault on 12 year old daughter - plans for re-establishment of family unit - first offender - guilty plea - sentence 2 years' imprisonment with non-parole period of 2 months upheld on appeal.

HRNG ADELAIDE, 22 October 1993 #DATE 22:10:1993
Counsel for appellant:     Mr J A Telfer
Solicitors for appellant:    Barnfield Somerville Verlato
Counsel for respondent:     Mr B J Jennings QC
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal from a sentence imposed in the Magistrates Court at Mount Gambier for the crime of indecent assault. The appellant pleaded guilty to one charge of indecent assault upon his twelve year old daughter. He was sentenced to imprisonment for two years with a non-parole period of two months. 2. Mr Telfer, who appeared for the appellant before us, has argued that the head sentence of two years was manifestly excessive and that the learned magistrate erred in refusing to suspend the sentence. 3. The incident which is the subject of the charge was described by the victim in the statement which was before the magistrate. The background to the incident was that a short time before, the appellant had displayed to the girl a video which depicted, among other things, a man lying on the ground with about five women performing oral sex on him. There was another scene in the movie that had a man and a woman having sexual intercourse on a staircase. On that same occasion the appellant showed the girl a condom. Some time after that there was an argument in the household between the appellant and the victim and her sister. As a result of that argument the appellant drove the victim to a remote spot on a country road and the incident which is the subject of the charge occurred. The girl described it in these words:
    "I was feeling scared and worried. Dad got back into the
    car and started to drive off slowly. Dad told me as we were
    driving along to get into the front seat. He said to me that he
    wanted to be the first. By that I think he meant to have sexual
    intercourse with him. I refused to get into the front. He
    grabbed me by reaching behind him with his left arm and grabbing
    me on the right arm. He tried to pull me into the front. I
    told him that I wouldn't get into the front with him. He said
    that if I didn't get into the front that he would hit me. I
    hopped into the front and sat down in the passengers seat. Dad
    stopped the car but kept it running. He reached across with his
    left hand and put that behind my head. He reached across with
    his right hand and put that on my left side, on my waist. He
    tried to force me toward him. I tried to pull away. He was
    saying things like 'come on I only want to be the first'. I
    pushed his left hand away from me and kept telling him to stop
    being stupid. He appeared to get angry and then just drove off.
    As we were driving Dad asked me if I wanted to drive. I told
    him I didn't want to. He told me to sit on his knee. He
    stopped the car and I hopped over to the driver's seat and sat
    on his knee. I started to steer the car whilst he worked the
    gears and foot pedals. As we were driving along Dad pulled my
    t-shirt out of my jeans. He reached under my t-shirt and my
    crop top. He started to feel my breast. I was to scared to say
    anything to him. Dad said to me that he knew I was enjoying it
    because my nipples were sticking out. My dad started to undo my
    belt on my jeans. I pushed his hand away but he tried it again.
    He then asked me why I wouldn't let him touch me below when I
    let him touch my breasts. He then told me that whenever he went
    for my breasts I had to push his hands away. He made it sound
    like a game. I continued to drive until we got to a main road." 4. I should mention that the girl said that prior to that incident, whilst the car was on the road, the appellant said to her that if he left her there, "the black people would get me and break into me", by which she understood him to mean that they would have sex with her. 5. It was put to the learned sentencing judge on behalf of the appellant that what had occurred, occurred in a bid to teach the girl something of the dangers of sexual involvement. This was apparently not contested by the prosecution before the learned magistrate, and he stated that he dealt with the appellant on that basis. The magistrate said:
    "The defendant inappropriately set about putting her off
    by trying to scare her. The very least that might be observed
    in relation to his conduct was that it certainly owed it's
    origin and authority to no standard text on sexual education." 6. This court, in these circumstances, is bound to approach this matter on the basis that the incident which occurred, occurred in some kind of misguided attempt to educate the girl about the dangers of sexual involvement. Nevertheless, it was a serious incident. The appellant had absolutely no right to handle the girl in this way whatever his motives might have been. Moreover the incident occurred in circumstances which involved a degree of force, and which could only have been quite terrifying to the girl, and she was indeed "quite scared" by what occurred. 7. The conduct of the appellant was frightening and emotionally disturbing conduct and committed in circumstances which were likely to cause the girl, and did cause the girl, distress and fear. The conduct was a breach of the position of trust which this father occupied in relation to his twelve year old daughter. He had a responsibility to protect her and to guide her in relation to sexual conduct. Instead of that, he subjected her to this frightening and necessarily emotionally disturbing treatment. 8. The learned magistrate placed emphasis upon the aspects of both personal deterrence and general deterrence. The aspect of personal deterrence was obviously important. It was put to the magistrate that moves were on foot to re-establish this family, and it appeared from the material before the magistrate that it was likely that progress would be made in that direction and that the family would be re-established. In those circumstances it was important that the punishment imposed would be such as would bring home to the appellant the enormity of his conduct and would operate to deter him from conducting himself in that way, either towards this girl or her sister, in the future. The aspect of general deterrence is obviously of great importance in these cases. Child sexual abuse is unhappily an all too prevalent feature of our society. There is a responsibility on the courts to impose punishments which operate as a deterrent to people who are tempted to engage in that sort of behaviour and are tempted to take advantage of their position of dominance in a family, to satisfy their sexual appetites with those members of the family who are dependant upon them for guidance and care. 9. I think that in the circumstances of this case, having regard to the deterrent aspects of punishment which necessarily must play an important part in this type of offence, the head sentence of two years was reasonable. The non-parole period of two months is a very small proportion of that head sentence and was an extremely lenient and merciful treatment of the appellant. No doubt the magistrate, in fixing such a low non-parole period, wished to do nothing which would unnecessarily disrupt the plans for the re-establishment of the family. 10. Mr Telfer has urged upon us matters which he says should have inclined the magistrate to suspend the sentence, and he contends that the magistrate has not taken them into account. It is true that in discussing the appropriateness of suspension the magistrate did not expressly refer to the fact that the appellant was a first offender, or that he had pleaded guilty, but there is no reason at all to suppose that those obvious factors were absent from his mind. 11. The other factor heavily relied upon by Mr Telfer is the plan for the re-establishment of the family unit. The learned magistrate expressly took that into account. Mr Telfer has told us that since sentence was passed, and whilst the appellant has been on bail, in fact the family unit has been re-established and that the Department of Family Services is no longer involved with the family. 12. It must be emphasised that this court does not sentence appellants afresh. Its task is to consider whether the sentence which was imposed was within the scope of the sentencing court's discretion on the material before that sentencing court. It is only in the most exceptional cases that events which have occurred since sentence was passed can be admitted as fresh evidence. 13. In any event, I do not think that the events which have occurred since really are a basis for saying that the magistrate would have exercised his discretion differently if he had been aware of them. The magistrate had in mind, when he refused suspension, the plans which were already on foot, and had already progressed to a considerable degree for the re-establishment of the family. He said:
    "I am mindful of the fact that it is the Department's
    belief that a gaol term would not be in the family's best
    interest, but would interfere with the family's attempts to
    reconstitute itself on a sound footing. The objective of the
    reunification of the family is an important factor and is
    related to the defendant's rehabilitation. I bear that in mind
    but also I bear in mind there is the interest of the community.
    As I have said, I believe the general deterrent aspect and the
    specific aspect so far as the defendant is concerned to be taken
    into account here. This was a breach of trust so far as the
    defendant's behaviour (his inappropriate and offensive
    behaviour, indeed) is concerned and it would be wrong of me to
    overlook that obvious fact. It is my belief the defendant is
    required to serve a custodial term and for the reasons I have
    indicated I decline to suspend the period of imprisonment." 14. It seems to me that the learned magistrate had regard to all relevant considerations and properly exercised his discretion with respect to suspension. I think that this case did call for some custodial period, and the term of the non-parole period fixed by the magistrate is mercifully short. I see no ground upon which this court should interfere with the exercise of the magistrate's discretion, and I would dismiss the appeal.

JUDGE2 DEBELLE J I agree with the Chief Justice that the sexual misconduct on this occasion constituted a very serious offence, and it was a grave breach of the trust reposed in any father. It is clear that, although the learned magistrate was prepared to deal with the matter on the basis expressed by the Chief Justice, namely, that it was a misguided attempt at sexual education, it's very clear also that the learned magistrate expressed a proper scepticism in that respect. The offending called for a substantial sentence and, in my view, the head sentence imposed by the learned magistrate was one which was proper given the circumstances of this offence. It was, well within the exercise of his discretion and there is no cause to interfere. 2. It is clear also that the learned magistrate carefully weighed the factors affecting the question whether he should suspend the sentence. The Chief Justice has already referred to what the magistrate has said in carrying out that task. At the end of the day, having balanced all the relevant factors, and in particular the question of what was appropriate in order to bring home to the appellant the enormity of his conduct with whatever was appropriate to restore the family unit, he took what the Chief Justice has properly called a merciful path, in ordering the very short period to be served by way of a non-parole period. 3. I agree with the Chief Justice that there is no cause to interfere with the manner in which the learned magistrate has exercised all of the sentencing options in relation to the difficult task he had before him.

JUDGE3 MILLHOUSE J I have the misfortune of differing from my brothers. I concede the accuracy of the Chief Justice's recitation of the facts, and the force of what he has said, and of what my brother Debelle has said against allowing the appeal. 2. Consideration of this appeal should not have been delayed for the more than nine months which has passed since penalty was imposed in January. However, the time has passed, and the situation has changed. We have to deal with the human problem. Mr Telfer has told us this morning that the family has now been reunited and is living in Adelaide. He says the Department has ceased involvement with them. The appellant's wife has a nine day old baby, and they have been in court. It just seems to me that it would be wrong, I go so far as to say unjust, not to take these factors, undisputed by Mr Jennings, into account in considering the appeal. They could not of course have been known to the learned special magistrate. I think they should be taken into account. They sway me sufficiently to suggest the appeal be allowed to the extent of suspending the sentence imposed by the learned special magistrate.