CLARK v Police - [2008] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CLARK v POLICE
[2008] SASC 146
Judgment of The Honourable Justice David
3 June 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
Appellant found guilty of indecent assault of five year old child – magistrate sentenced appellant to a term of 24 months imprisonment with a non-parole period of eight months – appellant appealed on the basis that the magistrate erred by imposing a sentence which is manifestly excessive and by not exercising his discretion to suspend the sentence – whether s 38(2c) of the Criminal Law (Sentencing) Act 1988 (SA) correctly applied – held, no suggestion that appellant’s health cannot be adequately managed, or would be adversely affected by a term of imprisonment – whether attitude of prosecutor during sentencing submissions should have been taken into account in the exercise of the magistrate’s discretion to suspend the sentence – held, the prosecutor’s sentencing submissions may be of assistance in alerting the court to the fact that the discretion could be exercised, but does not bind the court – whether sufficient weight given to the matter of delay between the time of the commission of the offence and the time of sentencing – held, matter of delay and circumstances of the offender at the time of sentencing taken into account by magistrate – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 10(4), s 19(2), s 38(2c), referred to.
R v Godwin (2001) 80 SASR 195; R v Smith (1987) 44 SASR 587, applied.
R v Nemer (2003) 87 SASR 168, considered.

CLARK v POLICE
[2008] SASC 146
Magistrates Appeal

DAVID J. This is an appeal against a sentence for indecent assault. At the time of sentencing, on 27 March 2008, the appellant was aged 72 years. At the time of the offending the victim (whom I will refer to as “V”) was a female aged five years. The magistrate imposed a sentence of 24 months imprisonment with a non‑parole period of eight months. He declined to suspend that sentence.
The appellant now appeals against both the severity of the sentence and the decision of the magistrate not to suspend the term of imprisonment imposed.
Background
The appellant was originally charged with three offences upon V. I set out the Information:
Offence details
1.Between the 1^st day of February, 1975 and the 21^st day of June, 1975 at Richmond in the said State, indecently assaulted [V], a person of the age of 5 years.
Section 56 of the Criminal Law Consolidation Act 1935.
This is a minor indictable offence.
2.Between the 1^st day of February, 1975 and the 21^st day of June, 1975 at Richmond in the said State, indecently assaulted [V], a person of the age of 5 years.
Section 56 of the Criminal Law Consolidation Act 1935.
This is a minor indictable offence.
3.Between the 1^st day of February, 1975 and the 21^st day of June, 1975 at Richmond in the said State, indecently assaulted [V], a person of the age of 5 years.
Section 56 of the Criminal Law Consolidation Act 1935.
This is a minor indictable offence.
The appellant pleaded not guilty to all counts. The magistrate found him not guilty of count 2, but guilty of counts 1 and 3. The magistrate’s decision in relation to count 1 was reversed on appeal. After the appeal process had been completed, the magistrate sentenced the appellant in relation to the remaining count.
The basis of fact on which the magistrate found the charge proved, and upon which he sentenced, was that at the time of the offending the appellant was in a defacto relationship with V’s grandmother. During that period V’s mother was living at the grandmother’s house with V and her younger brother. V’s mother had temporarily separated from her husband. On one occasion the appellant called V into a dark bedroom and said to her, “Here, suck this”, and put his penis into her mouth. The magistrate accepted V’s evidence that the conduct the subject of the offence had in fact happened, and her evidence that as a result of it she felt like being sick. A little later, V’s mother noticed something was wrong with her and decided to move out of the house with her children.
The allegations were not reported to the police until November 2004.
Since the date of the offending there have been legislative changes. The appellant was charged pursuant to the legislation that was in operation at the time of his offence. The maximum penalty for an offence of indecent assault was five years imprisonment. The maximum penalty for the indecent assault of a person under the age of 14 years is now a maximum of 10 years imprisonment.[1] It is also to be noted that the offending would not now be classified as an act of indecent assault, but rather one of unlawful sexual intercourse, due to the expansion of the definition of “intercourse” in the criminal law to include such acts as oral intercourse. Nevertheless, I bear in mind, as did the magistrate, that the appellant could only be sentenced on the law as it then applied.
[1] Criminal Law Consolidation Act 1935 (SA) s 56(1)(b), (2).
Appeal
There are two grounds of appeal:
1. The sentence and the non‑parole period are manifestly excessive.
2. The Learned Magistrate erred in failing to suspend the sentence of imprisonment.
The appellant argues that the sentencing magistrate did not sufficiently take into account a number of matters which affected both the head sentence imposed and the decision not to suspend. They can be summarised as follows:
(a)the health of the appellant;
(b)the attitude of the prosecutor during sentencing submissions; and
(c)the lapse of time between the offending and the sentence.
The appellant’s argument is that these factors were not properly taken into account in relation to both aspects of the appeal.
Health of the Appellant
There is no doubt that at the time of sentencing the appellant’s health was precarious. The magistrate was provided with a number of medical reports. Further reports were also provided to this Court during the hearing of the appeal. The appellant has heart disease and cancer of the prostate, for which he is receiving treatment. At the time of sentencing he was due to have surgery for an aortic aneurysm. That surgery has since taken place and was successful. The prognosis appears to be optimistic.[2] I am told that treatment for the appellant’s prostate cancer will last for seven weeks. He is also suffering from the effects of alcoholism and depression.[3]
[2] Medical report of Mr David King, vascular surgeon.
[3] Medical report of Dr M G Cacas, 4 June 2007.
The appellant argues that his medical condition is such that the magistrate erred in not giving enough regard to it, both when setting the head sentence and when exercising his discretion not to suspend that sentence. He quite properly referred to the decision of R v Smith[4] where King CJ said:
Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.
[4] (1987) 44 SASR 587, 589.
The appellant also argues that the magistrate did not properly consider s 38(2c) of the Criminal Law (Sentencing) Act 1988 (SA). That section reads as follows:
…
(2c)If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant's ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:
(a)     remunerated employment;
(b)     necessary medical or dental treatment for the defendant;
(c)     averting or minimising a serious risk of death or injury (whether to the defendant or some other person);
(d)     any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).
The appellant argues that Parliament intended this provision to cater for cases where imprisonment would be a greater burden on an individual due to the individual’s health, but where an ordinary suspended sentence bond would be too lenient. The appellant argues that the magistrate had not adequately considered the potential application of this section in the light of the appellant’s health.
In R v Godwin, Prior J, with whom Nyland and Lander JJ agreed, said:[5]
As King CJ said in R v Smith, the courts must be cautious as to the influence they allow the state of health of an offender to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his or her state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.
This statement of principle by King CJ is obviously acknowledged and reflected in the language of s 38(2c) of the Criminal Law (Sentencing) Act. If, in a particular case, it seems that it would be unduly harsh for a defendant to serve any time in prison because of that person’s ill health, disability or frailty that is, by the express terms of s 38(2c), a ground for suspending a sentence of imprisonment. That provision was incorporated into the Criminal Law (Sentencing) Act by a provision that came into effect some 12 years after the decision in Smith. The home detention particularised in subs (2c) calls for a positive finding that it would be unduly harsh for the appellant to serve any time in prison. It also limits the period of detention to no more than 12 months. [Footnotes omitted.]
Section 38(2) and the term “unduly harsh” in that section has therefore been taken to be reflective of, and indeed synonymous with, the test originally set out in R v Smith.[6]
[5] (2001) 80 SASR 195, 200.
[6] (1987) 44 SASR 587.
The Magistrate’s Sentencing Remarks
When dealing with the question of the appellant’s health, the sentencing magistrate said:[7]
Your counsel, Mr Mead, has urged me to suspend the sentence of imprisonment. I have to consider whether there is a good reason to suspend the sentence. In doing so I have to bear in mind the circumstances of the offence, as well as your circumstances as an offender.
If good reason exists it could only arise because of your personal circumstances. The cases show that a prison sentence for an indecent assault on a very young child can be suspended where there are personal circumstances justifying it. In your case I have to consider your age and your state of health and the impact that an immediate custodial sentence may have on your state of health, which I accept, is precarious. Because of your ill health I have to consider whether it would be unduly harsh for you to serve time in prison and, if so, to consider suspending the sentence, perhaps with a condition of home detention, as contemplated by s 38(2c) of the Criminal Law (Sentencing) Act.
Generally speaking, ill health will be a factor tending to mitigate punishment only where it appears that imprisonment will be a greater burden on an offender by reason of his or her poor health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health: R v Smith (1987) 44 SASR 587 at 589. Because of your present conditions your health is at risk whether or not you are imprisoned. I take into account the information contained in the report dated 4 June, 2007 of your general practitioner, Dr Cacas. I have regard to his opinion concerning the impact that an immediate custodial sentence may have. I accept, as a matter of common sense, that stress associated with an immediate custodial sentence is likely to have an adverse effect on you. However, there is nothing to indicate that your condition cannot be satisfactorily managed in gaol. There is nothing to indicate that you will not be able to undergo surgery at the Royal Adelaide Hospital on 9 April, 2008 as scheduled, even if you are imprisoned.
[7] Sentencing remarks 3, [15-17].
In my view, the magistrate has properly weighed up and considered the question of the appellant’s health. There is no suggestion on any of the material before the magistrate, or before this Court on appeal, that the appellant’s health conditions could not be treated properly, or would be adversely affected by, a term of imprisonment. As can be seen from his sentencing remarks, the magistrate also clearly contemplated home detention under s 38(2c) of the Criminal Law (Sentencing) Act. Unfortunately since having been sentenced by the magistrate in this matter, the appellant has had a serious operation. He appears to have recovered well from that operation, but now has to undergo treatment for prostate cancer. The disadvantages he suffers are present whether or not he is in custody. The magistrate had to weigh up the seriousness of the offence with those matters personal to the appellant, and, in my view, no error can be shown.
I also add that, pursuant to s 19(2) of the Criminal Law (Sentencing) Act, the magistrate had the power to refer the matter to the Central District Criminal Court for the purpose of sentencing if a penalty of less than two years was not appropriate. The magistrate did not do so, and clearly took into account the health of the appellant in so doing. He said in his sentencing remarks:[8]
Having regard to the nominal maximum penalty and to the sentencing standards that applied in 1975 and to your age and circumstances, particularly your state of health at the time of sentencing, I consider that the offence merits a sentence of imprisonment in the range of 20 to 24 months. Consequently, I do not intend to remand you for sentence in the Central District Criminal Court. I am required to fix a non‑parole period. In determining what proportion of the sentence you should serve in prison, your state of health is an important consideration which should be given significant weight.
I am of the view that the magistrate has clearly borne in mind those matters of health both in regard to the imposition of the head sentence, and also in his decision not to suspend. The magistrate clearly and appropriately considered the offending to be very serious, and what could only be described as being at the upper end of the range of behaviour for the offence of indecent assault (as it applied in 1975). There could be no reduction for any form of contrition, and therefore, in my view, a head sentence of 24 months falls far short of being manifestly excessive. The magistrate has also clearly taken into account those matters personal to the accused, including his poor health, the delay in his prosecution and his age, in the imposition of a merciful non‑parole period.
[8] Sentencing remarks 3, [14].
The Attitude of the Prosecutor During Sentencing Submissions
This argument only applies to the magistrate’s decision not to suspend. The prosecutor who was present at the sentencing submissions before the magistrate deposed to this Court the following:
I further submitted that in this case, and having regard to all relevant factors, and in particular the matters of the defendant’s ill health, his age and the low accord to be given to issues of personal deterrence in this case, the discretion to suspend the imprisonment penalty was open to His Honour. Further, I submitted that those matters, and anything else that may be submitted to the Court on the defendant’s behalf, were of course relevant to the length of any imprisonment term imposed.[9]
The appellant argues that the magistrate should have taken this submission into account and improperly refrained from so doing. It is clear from the magistrate’s sentencing remarks that he did not advert in any way to that submission. In my view, that argument has no validity. The attitude of a prosecutor at sentencing may be helpful to a magistrate or judge, but its use can be no more than that. In R v Nemer Doyle CJ made this statement of principle:[10]
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 (Malvaso). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso (1989) 50 SASR 503 per King CJ.
The exercise of the discretion whether or not to suspend a sentence is the magistrate or judge’s alone. To inform the magistrate or judge that the discretion to suspend was open may be of assistance; to be contrasted to a situation where as a matter of law the discretion is not open. However, it is no more than that.
[9] Affidavit of Kathryn Hodder sworn on 11 April 2008.
[10] (2003) 87 SASR 168, 173.
Question of Delay
The appellant further argues that in the exercise of the discretion whether to suspend the sentence, the magistrate has not given sufficient weight to the question of the long delay between the offending and sentencing. In his sentencing remarks the magistrate said:
Your personal circumstances have changed considerably during the 33 years that have elapsed since your offending conduct. You are now 72 years of age. You have retired. You retired from your employment as an orderly at the Royal Adelaide Hospital in 1995. You subsist on an aged pension. Your work history shows you in a good light. You are the father of three children. You are in poor health. I accept that you suffer from multiple, serious health problems, which are life‑threatening. The prostate cancer and, at about that time, you were also diagnosed with a renal aortic aneurysm. That condition, according to Associate Professor Daniel Roos, is more life threatening than your prostate cancer. Just before Easter you arranged to undergo surgery at the Royal Adelaide Hospital on 9 April, 2008 to repair the aortic aneurysm. It is most important that that surgery is not postponed.
I take into account, with repeating in detail, everything Mr Mead has told me about your antecedents generally and your background. You admit that you have convictions prior to, and since, this episode of offending. You have no convictions at all for offences of this nature. I accept that during the period that has elapsed since the offending conduct you have demonstrated your ability to rehabilitate yourself and that the risk of re‑offending is virtually non‑existent.[11]
The magistrate has clearly taken into account how the delay has impacted upon the appellant, and the disadvantage he is now facing because of his age and ill health. He has also taken into account the appellant’s good record since the offending. I reject that argument.
[11] Sentencing remarks 2, [7].
Conclusion

In my view, the sentencing magistrate has carefully and thoroughly weighed the competing factors, both when setting a head sentence and non‑parole period and when exercising his discretion whether or not to suspend the sentence he imposed. He has properly considered the offending to be very serious. The nature of the act, the age of V and the fact that the appellant was in a position of trust makes the appellant’s offending all the more serious. The magistrate has carefully borne in mind those matters personal to the appellant, namely his age, health and the effect of delay. He has quite properly considered the statutory requirement set out in s 10(4) of the Criminal Law (Sentencing) Act which says:
A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.
The magistrate has carefully considered the question of general, as distinct from personal, deterrence in this case. Bearing in mind all of these factors, it cannot be said that the sentence is manifestly excessive, nor can any error be shown in the exercise of the magistrate’s discretion not to suspend that sentence.
I dismiss the appeal.