D v R No. 4234 Judgment No. SCCRM 93/346 Number of Pages 4 Criminal Law and Procedure Sentence

[1993] SASC 4234

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

CWDS
Criminal law and procedure - sentence - three counts of gross indecency in presence of person of age of 12 years, one count of indecent assault, one count of unlawful sexual intercourse - victim boy aged 12 years - man aged 41 years with prior convictions - offences committed while on bail for other offences against a boy - sentence, after taking 7 months in custody into account, of 8 years' imprisonment with non-parole period of 6 years held on appeal to be not excessive.

HRNG ADELAIDE, 21 October 1993 #DATE 21:10:1993
Counsel for appellant:     Mr C A Bonnici
Solicitors for appellant:    Christopher Bonnici
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: Director Of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a sentence passed upon the appellant in the District Court following upon his conviction on a plea of guilty to three counts of committing an act of gross indecency in the presence of a person of the age of 12 years, one count of indecent assault against the same child, and one count of unlawful sexual intercourse with that child by the performance of an act of fellatio upon him. 2. The offences occurred between 1 June and 26 September 1991. At that time the appellant was on bail with respect to offences of indecency committed against a young boy, for which he was subsequently convicted and sentenced. 3. The appellant is a man who was aged 41 years at the time of the commission of these offences. The victim was a boy aged 12 years. 4. The boy was in the habit of visiting a young friend in a block of flats in which the appellant resided. The appellant allowed him into his flat. In the flat, video cassettes were displayed, and those videos depicted the performance of sexual acts between males. 5. After a time the appellant engaged in sexual acts with the boy. There was a course of conduct involving repeated sexual acts over a period of about four months. On occasions, the victim stayed overnight at the appellant's flat and sexual activity took place. 6. On two occasions the appellant filmed the boy engaging in sexual acts. On one of those occasions he paid the boy $5 or $10 to engage in that activity. 7. During the course of this relationship the appellant paid sums of money to the boy. He denied that those moneys were paid specifically for sexual acts and said that the money was, in fact, paid to the boy to perform chores about the flat. He agreed, however - as, plainly, must be the case - that they were related to the sexual acts "in a roundabout way". 8. I say that that must be the case because it is evident that the receipt of money would have constituted some attraction to the boy in the relationship and, therefore, operated as an inducement for him to continue with the relationship and to perform the sexual acts. 9. Mr Bonnici, who appeared for the appellant before us, has contended that the sentence was manifestly excessive. The sentence imposed by the learned judge was imprisonment for 8 years with a non-parole period of 6 years. The appellant had spent 7 months, or a little over 7 months, in custody prior to the passing of sentence but his Honour made the sentence operate from the day upon which it was passed. In the result, the effective sentence was in the region of 9 years and the effective non-parole period, which his Honour fixed at 6 years, was, therefore, in the region of 7 years. 10. Mr Bonnici has laid stress upon the appellant's plea of guilty and upon his co-operation with the police. He has also argued that something in the nature of the principle of totality ought to be applied, at least by analogy, because of the circumstances in which the appellant comes to be before the court. 11. The appellant was sentenced on 6 December 1991 to a term of imprisonment for a total of 2 years for the offending to which I have already referred, and in respect of which he was on bail at the time of the commission of the present crimes. He served about 12 months of that sentence and was released on 24 November 1992 on parole. On 27 January 1993 he was arrested in respect of the present matters. 12. Mr Bonnici has argued that the present sentence superimposed upon the sentence for the previous offending constitutes an unduly harsh punishment for the offending over that period. 13. I am unable to see the matter in that light. The present set of offences is quite distinct from the offending for which he was previously sentenced. Even if the present offending had come to light at the time he was dealt with for the previous offending, the sentence imposed for the present offending would have had to be, in accordance with principle, cumulative upon the sentence imposed for the previous offending. 14. No blame attaches to those responsible for the prosecution for the delay in the present matters coming to light. Apparently the boy did not make a complaint until not very long before the arrest of the appellant. 15. The appellant saw fit not to disclose this offending until it was brought to light by the boy's complaint. I cannot see, therefore, that the appellant has any ground of complaint as to what occurred, and it seems to me that there was no reason to reduce the sentence which was otherwise appropriate for the present offending by reason of the course of events. 16. There are quite serious aspects of the case. As I have said, the boy was only 12 years of age. The offending involved a course of sexual conduct extending over a period of 4 months. I think the inference that videos were used as a means of seducing the boy to comply with the appellant's wishes is overwhelming. The recording of the boy's activities on video by the appellant is an aggravating feature of the matter. 17. A most serious aspect of the case is that the offending occurred whilst the appellant was on bail for other offences of similar character. His arrest for those offences should have been a warning to him but, notwithstanding that, he took advantage of the liberty which bail gave him to engage in this conduct with a boy who happened to be visiting a friend in the flats in which the appellant resided. 18. It is impossible to view these crimes as other than very serious. 19. The appellant has no claim to leniency on the ground of prior good conduct. He has a record of offences against the law, including two episodes of indecent conduct with males. One occurred in 1984, when he was convicted of two counts of indecent assault and was sentenced to 13 months imprisonment, which sentence was, however, suspended. 20. The other episode was the episode to which I have already referred, and in respect of which he was on bail at the time of the present offences. That offending consisted of two crimes of gross indecency, an attempt to induce a child to expose his body, and the inducing of a child to expose his body. The child victim was a boy. He was sentenced on 6 December 1991 to a total of 24 months imprisonment with a non-parole period of 18 months in respect of those offences. 21. I think that in view of the serious nature of the crimes which the appellant has committed, the seriousness of the attendant circumstances and the appellant's record, it cannot be said, notwithstanding the plea of guilty and co-operation with the police, that the punishment imposed for the present offences is excessive. 22. In my opinion, the appeal should be dismissed.

JUDGE2 MILLHOUSE J The penalty is a severe one, but not nearly so severe as to justify us in interfering on the ground that the learned sentencing judge's discretion miscarried. There has been no other error in sentencing shown and, therefore, I agree that the appeal should be dismissed.

JUDGE3 DEBELLE J This was a particularly serious course of offending. The Chief Justice has referred to the aggravating features of the sexual misconduct. Those features are aggravated even further by the fact that the appellant had an earlier conviction for two counts of indecent assault involving sexual misconduct of a like nature to that which occurred on these occasions. These matters are aggravated even further by the fact that the appellant committed these offences whilst he was on bail for the offences for which he was convicted in December 1991. The sentence was, in my view, well within the discretion of the sentencing judge. I agree with the Chief Justice that there is no cause to interfere with the sentence imposed.