Director of Public Prosecutions (SA) v Corey Glen Krawtschenko No. SCCRM 96/296 Judgment No. 5836 Number of Pages 11 Sentence

[1996] SASC 5836

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA Cox, Perry and Lander JJ

CWDS
Sentence - crown appeal - child sexual abuse - Crown appeal against sentence - respondent pleaded guilty to vaginal sexual intercourse with a five year old girl and procuring the same child to perform an act of gross indecency with him - respondent videotaped acts - held sentence of two years and three months with non-parole period of one year and six months was so inadequate as to justify intervention - sentence of four years and six months with three year non-parole period substituted. Criminal Law Consolidation Act 1988 (SA) s49, referred to. R v Osenkowski (1982) 30 SASR 212; R v Drewett (1983) 111 LSJS 94; R v Griffiths (1977) 137 CLR 293; R v Bitter (1981) 27 SASR
183; R v Everett (1994) 181 CLR 295; R v Malvaso (1989) 168 CLR 227; R v Lane (1995) 80 A Crim R 208; R v Lewis (1993) 60 SASR 582, considered.

HRNG ADELAIDE, 16 September 1996 #DATE 22:11:1996

Counsel for appellant:     Ms W Abraham

Solicitors for appellant:    DPP (SA)

Counsel for respondent:     Mr B M Nitschke

Solicitors for respondent: Brian M Nitschke

ORDER

JUDGE1 COX J
1. I would give the Crown leave to appeal against sentence in this matter. I would then allow the appeal, quash the sentence passed by the District Court and substitute a sentence of four years and six monthsÕ imprisonment, with a non-parole period of three years, both to run from 25 March 1996.I agree with the reasons of Perry J.

JUDGE2 PERRY J
2. This is an application by the Director of Public Prosecutions for leave to appeal against sentence. The respondent pleaded guilty in the District Court to charges that he had vaginal sexual intercourse with a five year old girl contrary to s49(1) of the Criminal Law Consolidation Act, and with having procured the same child to perform an act of gross indecency with him. He was given a single sentence covering both counts, namely, imprisonment for two years and three months with a non-parole period of one year and six months. The Director complains that the sentence is manifestly inadequate in that it fails adequately to reflect the seriousness of the respondentÕs conduct, and does not maintain an appropriate standard of punishment for sexual offences involving children under the age of 12. The appellant complains further that the sentence fails to reflect adequately the principle of general deterrence, and using the words of this Court in the well known passage from the case of Osenkowski, that the sentence is so "disproportionate to the seriousness" of the offending "as to shock the public conscience".

3. The incident in question occurred in September 1995. The respondent is single and was then aged 23 years. He has no previous convictions. The respondent had known the victim for some time before then. He had met her father when they were both employed as security guards by the same firm, and became a friend of the family. He had cared for the child on many occasions and had the trust of her parents.

4. The respondent owned a collection of pornographic magazines and video tapes.

5. In the months preceding the offence there was what is euphemistically described in the papers as inappropriate physical contact between the respondent and the victim. This took the form of the respondent having her rub her body against his.

6. On the day in question he took the child for an outing and returned with her to his own home, which he shared with his mother. He chose a time when he knew his mother would not be at home. He had previously set up a video camera in his bedroom. He lay down on his bed with the child and proceeded to have intercourse with her while she lay on top of him. The conduct went on for some minutes, during the course of which on a number of occasions the head of his penis penetrated the outer lips of her vagina. The episode was filmed.

7. The matter was reported to the police. The appellant was advised about the film, and handed it over to them. It was viewed both by the learned sentencing Judge, and at the request of counsel for the appellant and with the consent of both counsel, by this Court.

8. When interviewed by the police the respondent sought to suggest that the child had been partly responsible, but before the learned sentencing Judge he accepted full responsibility.

9. The learned sentencing Judge had the benefit of a lengthy psychological report. The psychologist assessed the respondent as having a level of intelligence in the lower average range. He did not diagnose the respondent as suffering from paedophilia. Not surprisingly the psychologist found that there was a degree of premeditation in the respondentÕs offending. He expressed the view that the offence occurred by reason of the respondentÕs desire for sexual experimentation and self-gratification. The report does not identify any pathological condition. However, he thought that the respondent would benefit from the Sexual Offenders Treatment and Rehabilitation Program.

10. A victim impact statement indicated that the victim was still receiving counselling. The learned sentencing Judge commented that there was a grave risk that the child would suffer long-term emotional harm. That clearly must be so.

11. The maximum penalty for unlawful sexual intercourse with a child under 12 years is imprisonment for life.

12. In her submissions, Ms Abraham for the Director emphasised what she suggested were a number of aggravating features. These were the age of the child; the fact that the acts were recorded on video tape (which was obviously to be used for later sexual stimulation by the respondent); the fact that the acts were clearly premeditated, he having set up the camera in advance; that the incident in question occurred against a background of prior contact with the child with a sexual overtone, almost as though preparing her for the assault in question; and finally the fact that the respondent acted in breach of the trust and confidence reposed in him by the parents of the child and by the child herself.

13. There is much weight in those contentions. There is no question but that the circumstances of the offence were particularly abhorrent. The presence of those aggravating circumstances cannot be denied.

14. Mr Nitschke of counsel for the respondent opposed the grant of leave. He submitted that the sentence imposed was not manifestly inadequate.

15. It is true, as Mr Nitschke submitted, that the remarks on sentence made by the learned sentencing Judge do not reveal any demonstrable error of approach. The learned sentencing Judge identified the various aggravating circumstances and referred to the offending as "grave". He took into account in favour of the respondent the fact that he had expressed remorse, that he had pleaded guilty, and that he had no prior convictions.

16. Mr Nitschke drew attention to the authorities which emphasise that it is only in limited circumstances that the court grants leave to the Crown to appeal against sentence:"Mere disparity, however, even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal against sentence. É. An appellate court should be cautious about allowing a prosecution appeal against sentence, thereby taking a second bite at the sentencing process for the purpose of imposing a more sever penalty on a prisoner."

17. The stringency of the test for intervention by this Court is emphasised by the requirement that the Director must obtain leave to appeal against sentence. The jurisdiction to grant leave "should be exercised only in the rare and exceptional case".

18. In my opinion, the seriousness of the charge, the age of the victim, the premeditation and the filming of the incident for future sexual gratification take the case out of the ordinary and compel the conclusion that the sentence imposed was so inadequate as to justify the intervention of this Court.

19. I would grant leave to appeal and reassess the sentence.

20. As to an appropriate penalty range, I will refer to two of the authorities referred to by counsel.

21. In Lane, this Court allowed a Crown appeal against the sentence imposed upon a suburban primary school teacher who pleaded guilty to representative counts of unlawful sexual intercourse with a boy who, at the time when the offending conduct commenced, was one of his pupils. The offences began when the victim was nine years old and continued until he was 16. The admitted acts included anal penetration and the display of pornography to the victim. The court quashed a sentence of three years imprisonment with a non-parole period of 18 months and substituted a sentence of six years imprisonment with a non-parole period of four years.

22. In Lewis the DPP sought leave to appeal against a sentence of five years imprisonment with a non-parole period of 30 months on six admitted counts of unlawful sexual intercourse with a child over a five year period while the child was aged between five and ten years. Leave to appeal was given and the sentence increased to eight years with a non-parole period of six years.

23. The substituted sentence in Lewis was imposed before the truth in sentencing legislation, whereas the sentence in Lane was imposed after that legislation came into effect.

24. While the present case does not involve a course of conduct of the duration involved in either Lewis or Lane, it is nonetheless a most serious offence of its kind. It falls into a class of offence in which the need for general deterrence becomes a dominant factor in the sentencing process. The need to protect young children from depraved acts of this kind compels the Court to impose sentences which will deter others and at the same time give expression to the condemnation of the community.

25. In the circumstances I would give leave to appeal, quash the sentence under appeal and substitute a sentence of four years and six months imprisonment with a non-parole period of three years.

JUDGE3 LANDER J
26. Application by the Director of Public Prosecutions for leave to appeal against a sentence imposed upon the respondent on 17 July 1996.

27. The respondent pleaded guilty to two offences namely, unlawful sexual intercourse with a person under twelve, and gross indecency. The particulars showed that both charges arose out of the one incident on 16 October 1995.

28. As the two offences arose out of the one incident the learned sentencing Judge in the District Court imposed a single sentence pursuant to s18a of the Criminal Law (Sentencing) Act 1988 (SA). He sentenced the respondent to imprisonment for two years and three months and fixed a non parole period of one year and six months. He ordered the sentence to run from the date which the respondent was taken into custody, namely 25 March 1996.

29. The offences occurred at the respondentÕs home where he resided with his mother.

30. The victim is the five year old niece of the respondentÕs girlfriend. The respondent was well known to the victimÕs parents, (in particular the father with whom the respondent was employed) and the victim, having been a friend of the victimÕs family for some years.

31. Prior to this incident the respondent was well aware that the child appeared to have been exposed to sexually inappropriate activity which primed her curiosity about sexual matters.

32. The respondent told Mr Balfour, a psychologist who was asked to prepare a report on behalf of the respondent, that he was aware that the child had had access to pornographic magazines and had witnessed her parents having sexual intercourse. He told the Police that he was aware that whilst he and the childÕs father watched pornographic videos the child was able to see the screen from her bedroom. Further, for about four months prior to the offence he was aware that the child had exhibited sexually overt behaviour.

33. In the months prior to the commission of these offences, the respondent had involved himself with the victim in activity of a sexual nature, and had either encouraged or allowed the victim to rub herself against his body in a way similar to the conduct the subject of the charges which I will later describe, but in circumstances where both the victim and he were clothed.

34. On 16 October 1995 the respondent went to some lengths to put himself in a position to commit these crimes. He chose a day when his mother was at work. He set up video equipment to record the act which he had in contemplation. He volunteered and prevailed upon the childÕs custodians to be allowed to care for the child for the day. The respondent therefore acted in deliberate breach of his trust to the child and her parents. It is clear that the respondent had pre- planned all of this. Mr Balfour wrote:
    "I believe that Mr Krawtschenko meets this criteria because there
    was some evidence to suggest that he was ÔgroomingÕ the child
    before he attempted to sexually exploit her inappropriate sexual
    behaviour. He befriended the child to gain her trust before
    sexually victimising her."

35. The respondent took the child into his bedroom. He removed all of his clothes except his underpants which he pulled down, and lay down on the bed. The child, apparently with knowledge that video tape was operating, then got on top of the respondent and rubbed her vagina against his penis. The respondent then moved her panties aside and penetrated her vagina with his penis. The child fully co-operated in the act and indeed showed signs of previous education in the manner of her co-operation including taking the respondentÕs penis in hand and trying herself to assist in her penetration.

36. The Court was asked by the Director of Public Prosecutions to view the video, which it did prior to the hearing of this application for leave to Appeal. The video displays in graphic terms the act of intercourse and the act of gross indecency. It shows an extraordinarily precocious child who has a knowledge of sexual matters far beyond her years.

37. The offences were committed in circumstances where the respondent was guilty of a breach of trust towards the parents of this child and the child herself. That breach of trust not only included the acts for which he pleaded guilty but also the allowing of the inappropriate sexual contact for a period prior to the acts themselves.

38. Of course the offences were committed in the further circumstances of aggravation where the respondent video taped the act of intercourse, no doubt for the purpose of satisfying his sexual gratification and for the purpose of using the act itself to continue to satisfy his sexual gratification. It is again clear enough on the video, and from the respondentÕs admissions, that the respondent used a remote control for the purpose of changing the camera angle so as to achieve a better display of the sexual acts.

39. The further aggravating factor was the fact that the child was well aware that the act was being video taped. This can be clearly seen from a viewing of the video.

40. A victim impact statement shows that the child has received extensive counselling since this incident and was, at the time of the respondent being sentenced, still undergoing counselling. She has suffered an interrupted sleeping pattern with nightmares and is fearful of the respondent.

41. The respondentÕs criminal conduct was discovered by his mother, who brought the matter to the attention of the authorities. When interviewed by the police the respondent admitted inappropriate sexual contact but initially suggested that the instigator of the contact was the young victim. He denied that there had been any penetration. He admitted he video taped the episode but said that he had done so only for the purpose of testing the camera.

42. At the time of the offence the accused was twenty four, single, and living at home with his mother. He had no previous convictions whatsoever. Mr Balfour, a psychologist, described him as having a level of intelligence in the lower end of the normal range, that is a level of intelligence in the bottom 15 per cent of the general population for his age group.

43. The respondent was adopted by his parents as a baby and his adoptive father died when the respondent was eleven years of age. Since then he has lived with his adoptive mother, who at the time of these offences was sixty three and employed in the public service. He has apparently always had a very good relationship with his mother who he described as "a fine mother."

44. He attended Para Hills East Primary School, St Peters College and Goodwood High School, leaving school after completing year eleven. At seventeen he obtained full time employment as a welder. He worked as a welder with short interruptions until about twenty two. He was then unemployed for a few months before obtaining employment as a security officer where he met the victimÕs father, who was also a security guard, employed by the same firm. He seems to have had, at least on what he told Mr Balfour, an unexceptional childhood and early adulthood. He has, as I have said, no previous offences. He has experimented with cannabis but not with other drugs and does not abuse alcohol.

45. Mr Balfour considered the respondentÕs sexual development unremarkable. In particular the respondent denied to Mr Balfour having any ongoing sexual attraction to children in general.

46. Mr Balfour reached this opinion:
    "In my opinion, Mr Krawtschenko does not suffer from a psychotic
    illness (break with reality), intellectual disability,
    significant alcohol and drug abuse problems, a major mood
    disorder, or a serious personality disorder.The psychological
    profile is that of a man of low-average intelligence with
    adequate literacy skills who does not suffer from any major
    psychopathology. Although he has committed a sexual offence
    against a child I do not believe that there is sufficient
    evidence to diagnose him as suffering from pedophilia (sic). Mr
    Krawtschenko exhibits only a few of the psychological and
    behavioural characteristics which are commonly observed in
    chronic pedophiles (sic)."

47. Mr Balfour then discussed matters which characterised paedophiles. He reached the conclusion that the respondent has a good prognosis, for the reasons to which Mr Balfour referred in his report, and that the respondent would be a good candidate to refer to the Sex Offender Treatment and Assessment Programme. I have some difficulty about that aspect of Mr BalfourÕs opinion. If it is the case, as he says, that the respondent suffers from none of the matters previously described, then it is difficult to understand what treatment it is that will be of assistance to him. It may be that whilst the respondent is not presently capable of being classified as a paedophile he does have some characteristics which if untreated could lead to chronic paedophilia.

48. Mr Balfour offered this further opinion:
    "At the time of the offence, Mr Krawtschenko was aware of the
    nature and quality of his actions and their wrongfulness. There
    was a degree of premeditation in his offending. He told me that
    he knew a couple of days in advance of the offence that
    Ôsomething sexual might happenÕ and this was when he set up the
    video camera to record the offence. Furthermore, he chose a time
    when his mother was at work and he would have the house to
    himself.Mr KrawtschenkoÕs offence is the actions of a man who
    exploited the victim purely for his own sexual experimentation
    and self-gratification. I would view his offence as being
    opportunistic and manipulative rather than predatory and the
    result of a constellation of factors which coincided. The victim
    appears to have been exposed to some sexually inappropriate
    activity which primed her curiosity about sexual matters and this
    would explain her overtly sexual behaviour. Having viewed

    pornographic videos and magazines may have produced this type of
    behaviour in the victim. His offences are not the actions of a
    socially inadequate man who was unable to find an age-appropriate
    sexual partner due to poor social skills."

49. I think the objective evidence bears out Mr Balfours opinions. I think it is clear enough that this offence was committed by this respondent purely for his own sexual gratification and with the intention of using the video of the sexual act for his continuing sexual gratification.

50. None of that however helps the respondent in terms of explaining his actions. It seems to me that all that can be said for the respondent is that he is a young man with no previous offences, who pleaded guilty after being committed to the District Court. In relation to the last aspect, of course, whilst credit must be given to the respondent for the plea, an acknowledgment of guilt was inevitable having regard to the evidence which the respondent himself had created and preserved on video.

51. The DPP claims in the circumstances that the sentence imposed by the learned sentencing Judge was manifestly inadequate in that it failed to reflect adequately the seriousness of the criminal conduct, to maintain an adequate standard of punishment for sexual offences involving children under the age of twelve, and to adequately reflect the principle of general deterrence. In those circumstances it was put that the sentence was so disproportionate to the seriousness of the offending as to shock the public conscience.

52. Section 352 of the Criminal Law Consolidation Act 1935 (SA) provides that the Director of Public Prosecutions may, with the leave of the Court of Criminal Appeal, appeal to that Court against a sentence passed on any person. An application for leave to appeal by the Director to the Court of Criminal Appeal involves special considerations. It is not enough for the Court, for the purpose of granting leave to appeal, to be satisfied that the sentence is manifestly inadequate. In Everett v The Queen (1994) 181 CLR 295 at 299 the High Court said:
    "An appeal by the Crown against sentence has long been accepted
    in this country as cutting across the time-honoured concepts of
    criminal administration by putting in jeopardy for the second
    time the freedom beyond the sentence imposed. That being so, a
    "court entrusted with the jurisdiction to grant or refuse such
    leave should give careful and distinct consideration to the
    question whether the Attorney-General has discharged the onus of
    persuading it that the circumstances are such as to bring the
    particular case within the rare category in which a grant of
    leave to the Attorney-General to appeal against sentence is
justified." (Malvaso v The Queen (1989) 168 CLR 227, at pp 234-
    235).

53. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293, at p.310:
    "an appeal by the Attorney-General should be a rarity, brought
    only to establish some matter of principle and to afford an
    opportunity for the Court of Criminal Appeal to perform its
    proper function in this respect, namely, to lay down principles
    for the governance and guidance of courts having the duty of
    sentencing convicted persons."

54. The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle"."

55. In The Queen v Osenkowski (1982) 30 SASR 212 at 213 King CJ put it this way:
    "The proper role for prosecution appeals, in my view, is to
    enable the courts to establish and maintain adequate standards of
    punishment for crime, to enable idiosyncratic views of individual
    judges as to particular crimes or types of crimes to be
    corrected, and occasionally to correct a sentence which is so
    disproportionate to the seriousness of the crime as to shock the
    public conscience."

56. It is clear enough that the role of this Court is not simply to interfere so as to circumscribe the prerogative of any individual judge in extending leniency in the appropriate case to an offender.

57. For the reasons already stated, and in particular because of the breach of trust, the priming of the child, the premeditation, the videotaping of the act and the requiring of the child to participate knowingly in the videotaping of the act, these particular offences, even though they occurred on the one day, can be described as being in the worst category of offences of this kind.

58. I have already indicated that there is little that can be said on behalf of the respondent save for his age, previous good record and the extent to which he has shown contrition as I have explained.

59. On the other hand, this was a crime committed on a five year old child in breach of trust for the immediate and continuing sexual gratification of the perpetrator with full knowledge that his actions may cause damage to that child. A sentence of two years and three months is not sufficient to reflect the seriousness of the crime. Offences of this kind give rise to a requirement that general deterrence should play a major part in the sentencing process: The Queen v Myer (1984) 35 SASR 137.

60. Children are particularly vulnerable to the immoral who would use them for the purpose of their own sexual gratification. Children and their parents and the community at large ought to be able to expect that the courts will take all steps reasonably available to deter those who would use children in such a fashion. Not only must this respondent be deterred from any repetition of the conduct which he has displayed to a young child, but it must be seen that anyone who would indulge in like minded conduct can expect a substantial penalty.

61. In R v Lewis (1993) 60 SASR 582 at 584 King CJ said:
    "The community at large, as well as this Court, can only view
    with abhorrence the sort of conduct in which the respondent
    engaged. It was a deliberate and persistent abuse of his
    position of trust engaged in over a period of years and beginning
    only very shortly after the commencement of the respondentÕs
    relationship with the childÕs mother. In such a case the need
    for the punishment to fit the crime, thereby marking societyÕs
    condemnation of the conduct, and the need for deterrence of
    others who have children in their care and who are tempted to
    abuse their position of trust must take precedence over all other
    considerations."

62. For all of those reasons, in my respectful opinion, the sentence imposed by the learned sentencing Judge was not only manifestly inadequate but it fails to adequately reflect the seriousness of the criminal conduct, and it is so disproportionate to the seriousness of the offending so as to shock the public conscience.

63. In those circumstances, in my opinion, the Director must have leave to appeal and the appeal must be allowed for the purpose of substituting a sentence for the sentence arrived at by the learned sentencing Judge.

64. In R v Lewis the former Chief Justice considered that a sentence of twelve years would have been appropriate in circumstances where the respondent had engaged in oral sexual activity over five years with the child of his de facto, commencing when that child was five years. The respondent in that case displayed pornographic material to the child. The Chief Justice however concluded that a substantial discount would have to be allowed for the pleas of guilty and the co- operation of the respondent, and the fact that the respondent in that case had himself been the victim of sexual abuse as a child. He therefore imposed a head sentence of eight years with a non parole period of six years. Two matters must be noticed immediately. First the course of conduct was over five years. Secondly the sentence was pre Truth in Sentencing. On the other hand there are other aggravating circumstances in this case not present in R v Lewis such as the priming of the child and the videotaping of the sexual acts. As well the respondent in this case could not himself point to the disadvantages that Lewis had had as a child. Moreover the respondent in this case did not display the frankness and the degree of co- operation that Lewis did, and as I have already explained his plea of guilty was inevitable.

65. In R v Lane (1993) 80 A Crim R 208 a sentence of six years with a non parole period of four years was imposed in circumstances where a teacher, who was also a friend of the victimÕs family, was convicted of three counts of illicit sexual intercourse with a person under the age of twelve years, a young male who was then about ten over a period of years until the boy was fifteen or sixteen. In that case the respondent showed the young boy pornographic material to overcome the reluctance by the victim to participate in an act of anal intercourse.

66. In this case there was not the course of conduct evident in R v Lane, but the child in this case was much younger and much more vulnerable. The other matters of aggravation have already been mentioned.

67. In my opinion the appropriate sentence for these offences would be a sentence of imprisonment of six years with a non-parole period of four years.

68. I would grant leave to appeal, allow the appeal and substitute a sentence of imprisonment of six years with a non parole period of four years.