(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Lovell)
7 May 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS
Appeal against conviction in the District Court – where the appellant was found guilty by a jury of maintaining an unlawful sexual relationship with a child – whether the Judge erred in allowing the evidence of a social worker to be led as evidence of an initial complaint – whether the Judge’s directions regarding the initial complaint were adequate
Held (per Bampton J, Kourakis CJ and Lovell J agreeing): Appeal dismissed – the evidence led from the social worker was properly admitted as evidence of initial complaint – the Judge provided the jury with adequate and appropriate directions.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD
Appeal against sentence imposed in the District Court – where the appellant was found guilty of maintaining an unlawful sexual relationship with a child – where the appellant was sentenced to seven years imprisonment with a with a non-parole period of three years and three months – whether the sentence imposed was manifestly inadequate
Held (per Bampton J, Kourakis CJ and Lovell J agreeing): Appeal allowed – the sentence imposed by the Judge was manifestly inadequate – the appellant is resentenced.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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The appeal concerned a conviction and sentence imposed in the District Court. The appellant, Mr K, was found guilty by a jury of maintaining an unlawful sexual relationship with his adopted daughter, D, between 1981 and 1985. Mr K appealed against his conviction, arguing that the trial judge erred in admitting evidence of an initial complaint made by D to a social worker and that the judge’s directions to the jury regarding this complaint were inadequate. Separately, the Director of Public Prosecutions appealed against the sentence imposed, arguing it was manifestly inadequate.
The legal issues before the Full Court of the Supreme Court of South Australia were whether the evidence of the social worker constituted admissible evidence of an initial complaint, and if so, whether the trial judge’s directions to the jury concerning this evidence were sufficient. The Court was also required to determine whether the sentence of seven years imprisonment with a non-parole period of three years and three months was manifestly inadequate for the offence of maintaining an unlawful sexual relationship with a child.
The Court dismissed Mr K’s appeal against conviction. It held that the evidence led from the social worker was properly admitted as evidence of an initial complaint, and that the trial judge provided adequate and appropriate directions to the jury on this matter. However, the Court allowed the Director’s appeal against sentence. It found the sentence imposed by the District Court judge to be manifestly inadequate, considering the nature and duration of the offending, and resentenced Mr K to 12 years imprisonment with a non-parole period of six years, with adjustments for time already served.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
I would dismiss Mr K’s appeal against conviction. I would grant permission to the Director to appeal against sentence, allow the appeal, set aside the sentence imposed in the District Court, and resentence Mr K.Background The Information filed in the District Court alleges that Mr K between 14 August 1981 and 19 July 1985, being in a position of authority, maintained an unlawful sexual relationship with D contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (“the offence”). Mr K adopted D in 1981 following his marriage to D’s biological mother. The unlawful sexual acts relied on to prove the offence were digital penetration of D’s vagina and Mr K causing D to perform fellatio upon him (“the sexual acts”).The discussion regarding the evidence of complaint Before empanelment of the jury, the prosecutor informed the Judge that he proposed to call a social worker named Mary White, who would give evidence of a complaint that was made by D to her in 1985. The prosecutor said that he had discussed the terms of that evidence with Mr K’s counsel, Mr Charman, and that there was no dispute about that evidence. The prosecutor then took the Judge to Ms White’s statement, which annexed a bundle of records from the Department for Community Welfare, and provided the Judge with a copy of a document titled “Continuation Sheet” which included an entry dated 1985. The prosecutor explained to the Judge that he had highlighted a passage in the entry and the following discussion occurred between Judge and counsel:[1][1] Transcript of proceedings, R v K, IC (District Court of South Australia, DCCRM-18-517, Judge Cuthbertson, 22 May 2019) at 3-5.MR ALLEN:I propose to lead evidence of the conversation between Ms White and the complainant on that day and, as your Honour will see, in response to a question that was put by Ms White, there’s a demonstration by the complainant pointing to the area around her vagina.HIS HONOUR: What does it say, that highlighted writing?MR ALLEN:It says ‘Spoke with [D] –’ who is the complainant ‘– who stated that she hated her father because he hit her too much hard on the legs, ran the bath water too hot. I asked her whether dad ever touched her anywhere that she didn’t like. She said “Yes” and pointed between her legs. Couldn’t establish how long ago or how frequently’. And then it continues. But that’s the extent of the evidence I’m going to lead.HIS HONOUR: About running the bath water too hot and hitting her too hard, is that, strictly speaking, a complaint of a sexual offence?MR ALLEN:I highlighted the entire passage. That’s the whole conversation. I’m only going to lead the second part of that conversation relating to the question and the demonstration.HIS HONOUR: About between the legs?MR ALLEN:Correct.The Judge then asked Mr K’s counsel:HIS HONOUR: Do you agree that meets the test of complaint evidence?MR CHARMAN: I do, given the test is as wide as it is and it refers to a sexual matter of some sort.HIS HONOUR: I suppose if you wanted the other bit in to make it in context, you would be entitled to have it in.MR CHARMAN: I’m not sure it’s helpful to me.HIS HONOUR: I tend to that view too.MR CHARMAN: Can I indicate in relation to that, just to be clear at the beginning, a couple of pages before that in the annexure there’s a thing called the ‘Child Protection Intake’ which is a formalisation of the intake of the complainant. If your Honour is on the page my friend referred you to.HIS HONOUR: I’m not on that page because he’s given me a copy of it.MR CHARMAN: Perhaps I’ll read it. There’s a ‘Child Protection Intake’, the note of notification being the same day. It refers to the same allegations in general.…HIS HONOUR: Yes, I’ve got it.MR CHARMAN: Depending on how all the evidence pans out, I can indicate I may take her to this as a formal notice consistent with what was said in that discussion and you will see there where things that the complainant didn’t like were A, B and C, the things, and then there’s D, ‘rub her gently around the pubic area when she was in the bath’. I may take her to that. It may well be a clarification of what was said initially.HIS HONOUR: In the complaint?MR CHARMAN: Yes.HIS HONOUR: That’s not objectionable, is it?MR ALLEN:No.MR CHARMAN: I understand in that context – my friend and I have discussed this - in terms of the offending they rely upon the fingers being inserted in the vagina and the penis being inserted into the mouth and those are the actual events that make out persistent sexual exploitation.(Emphasis added)Thereafter the jury was empanelled and the trial proceeded.D’s evidence
Evidence
Evidence Before The Court
The prosecutor then took the Judge to Ms White’s statement, which annexed a bundle of records from the Department for Community Welfare, and provided the Judge with a copy of a document titled “Continuation Sheet” which included an entry dated 1985. The prosecutor explained to the Judge that he had highlighted a passage in the entry and the following discussion occurred between Judge and counsel:[1][1] Transcript of proceedings, R v K, IC (District Court of South Australia, DCCRM-18-517, Judge Cuthbertson, 22 May 2019) at 3-5.MR ALLEN:I propose to lead evidence of the conversation between Ms White and the complainant on that day and, as your Honour will see, in response to a question that was put by Ms White, there’s a demonstration by the complainant pointing to the area around her vagina.HIS HONOUR: What does it say, that highlighted writing?MR ALLEN:It says ‘Spoke with [D] –’ who is the complainant ‘– who stated that she hated her father because he hit her too much hard on the legs, ran the bath water too hot. I asked her whether dad ever touched her anywhere that she didn’t like. She said “Yes” and pointed between her legs. Couldn’t establish how long ago or how frequently’. And then it continues. But that’s the extent of the evidence I’m going to lead.HIS HONOUR: About running the bath water too hot and hitting her too hard, is that, strictly speaking, a complaint of a sexual offence?MR ALLEN:I highlighted the entire passage. That’s the whole conversation. I’m only going to lead the second part of that conversation relating to the question and the demonstration.HIS HONOUR: About between the legs?MR ALLEN:Correct.The Judge then asked Mr K’s counsel:HIS HONOUR: Do you agree that meets the test of complaint evidence?MR CHARMAN: I do, given the test is as wide as it is and it refers to a sexual matter of some sort.HIS HONOUR: I suppose if you wanted the other bit in to make it in context, you would be entitled to have it in.MR CHARMAN: I’m not sure it’s helpful to me.HIS HONOUR: I tend to that view too.MR CHARMAN: Can I indicate in relation to that, just to be clear at the beginning, a couple of pages before that in the annexure there’s a thing called the ‘Child Protection Intake’ which is a formalisation of the intake of the complainant. If your Honour is on the page my friend referred you to.HIS HONOUR: I’m not on that page because he’s given me a copy of it.MR CHARMAN: Perhaps I’ll read it. There’s a ‘Child Protection Intake’, the note of notification being the same day. It refers to the same allegations in general.…HIS HONOUR: Yes, I’ve got it.MR CHARMAN: Depending on how all the evidence pans out, I can indicate I may take her to this as a formal notice consistent with what was said in that discussion and you will see there where things that the complainant didn’t like were A, B and C, the things, and then there’s D, ‘rub her gently around the pubic area when she was in the bath’. I may take her to that. It may well be a clarification of what was said initially.HIS HONOUR: In the complaint?MR CHARMAN: Yes.HIS HONOUR: That’s not objectionable, is it?MR ALLEN:No.MR CHARMAN: I understand in that context – my friend and I have discussed this - in terms of the offending they rely upon the fingers being inserted in the vagina and the penis being inserted into the mouth and those are the actual events that make out persistent sexual exploitation.(Emphasis added)Thereafter the jury was empanelled and the trial proceeded.D’s evidence
Decision
Reasons for decision
There is nothing, on my assessment, in this matter that justifies the sentence imposed on Mr K. It is a significant departure from the applicable standards against which it needed to be measured. As such, it is manifestly inadequate and interference by this Court is justified to maintain those standards and to correct the sentence. The inadequacy of the sentence is such that I would grant permission to appeal and would not exercise any available discretion to dismiss the Director’s appeal.[24][24] R v F, AD [2015] SASCFC 130 at [52]; R v Dransfield [2016] SASCFC 68 at [57] (Nicholson J).Conclusion I would dismiss Mr K’s appeal. I would grant permission to the Director to appeal, allow the appeal, set aside the sentence imposed, and resentence Mr K to a sentence of 12 years imprisonment. I would fix a non‑parole period of six years. I would reduce the head sentence and the non‑parole period by the 10 months and one week spent in custody leaving a head sentence of 11 years, one month, and three weeks and a non-parole period of five years, one month, and three weeks. I would backdate the sentence to 16 May 2019, when Mr K was taken into custody. LOVELL J: In relation to the appeal against conviction, the appeal should be dismissed. I agree with the reasons of Bampton J and the orders she proposes. In relation to the appeal against sentence, I would grant permission to appeal and allow the appeal. I generally agree with the reasons of Bampton J. I agree with the orders and sentence she proposes. I add the following remarks. The victim is the prisoner’s adopted daughter. From when the victim was four years of age, the prisoner regularly sexually abused her, inserting his finger in her vagina and having her perform acts of fellatio on him. The conduct continued for approximately four years. The offending was regular and persistent and only ceased after intervention by a government agency. It is well established that leave should only be granted with respect to Crown appeals against sentence in cases that are ‘rare and exceptional’.[25] As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen:[26]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.[25] Everett v The Queen (1994) 181 CLR 295 at 299.[26] (1994) 181 CLR 295 at 299. A Crown appeal against the adequacy of a sentence should be approached with great care, and the ‘rare and exceptional’ test should be rigorously applied. However, the Crown will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’.[27] Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted, and the appeal allowed, despite the public interest in not twice vexing the respondent.[28] [27] R v Nemer (2003) 87 SASR 168 at 172 [24]; R v Harkin (2011) 109 SASR 334 at 339 [19].[28] R v McIntosh [2017] SASCFC 87 at [16].
Ratio Decidendi
Legal Principle Established
Mr K submitted that the sentence is not manifestly inadequate and that this is not a “rare and exceptional case” warranting the grant of permission to appeal. Mr K argued that the Judge heard sentencing submissions made by his counsel and received the report of the psychologist, Dr Balfour, which detailed his personal circumstances. It was submitted that the following exchange between the Judge and Mr K’s counsel flowed from those submissions and Dr Balfour’s report:[18]HIS HONOUR … the information I have from Dr [Balfour], which seems to accord with common sense, is that he is unlikely to reoffend, the offending was the probable result of a concatenation of circumstances and in particular the lack of conjugal rights causing frustration, which caused him to relieve the pressure with his daughter.MR ALLEN:That’s right your Honour, and your Honour would also take –HIS HONOUR: So those circumstances are unlikely to recur having regard to the fact that he’s now happily married to his second wife.MR ALLEN:And the gap in time, there has been no offending, there is no similar offending.HIS HONOUR: The gap of time and the lack of any record of any violent-type offending.[18] Transcript of proceedings, R v K, IC (District Court of South Australia, DCCRM-18-517, Judge Cuthbertson, 4 September 2019) at 6.Consideration On the imposition of a sentence a defendant settles into an expectation of his or her release from prison after the expiration of the sentence imposed.[19] It is necessary to approach applications by the prosecution for permission to appeal with some indisposition, so as to ensure that the governmental power to ask for the imposition of a more severe penalty, which encroaches on the defendant’s anticipated post-sentence freedom, does not become an instrument of oppression. In R v Osenkowski, King CJ warned:[20]It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. 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 crime 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.[19] Everett v The Queen (1994) 181 CLR 295 at 299.[20] (1982) 30 SASR 212 at 212-213. Mr K’s offending against his adopted daughter D began when she was aged about four years and continued for approximately four years. The offending came to an end only she was removed from his care.
