K, IC v The Queen; R v K, IC
[2020] SASCFC 34
•7 May 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
K, IC v THE QUEEN; R v K, IC
[2020] SASCFC 34
Judgment of The Court of Criminal Appeal
(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.
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 34M; Sentencing Act 2017 (SA) s 68; Criminal Law Sentencing Act 1988 (SA) s 29D, referred to.
R v Landmeter (2015) 121 SASR 522; R v Maiolo (No 2) (2013) 117 SASR 1; R v Partington (2018) 132 SASR 11; R v Usher (2014) 119 SASR 22; R v Jones [2018] SASCFC 80; R v S, DD (2010) 109 SASR 46; R v El Rifai [2012] SASCFC 98; R v J, JA (2009) 105 SASR 563; R v P, S (2016) 261 A Crim R 329; R v B, P [2006] SASC 229; Breen v The Queen (1976) 180 CLR 233; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v D (1997) 69 SASR 413; R v Gibbs [2017] SASCFC 140; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Bonython-Wright (2013) 117 SASR 410; R v F, AD [2015] SASCFC 130; R v Dransfield [2016] SASCFC 68; R v Nemer (2003) 87 SASR 168; R v Harkin (2011) 109 SASR 334; R v McIntosh [2017] SASCFC 87, considered.
K, IC v THE QUEEN; R v K, IC
[2020] SASCFC 34Court of Criminal Appeal: Kourakis CJ, Bampton and Lovell JJ
KOURAKIS CJ: I would dismiss the appeal against conviction for the reasons given by Bampton J. I would grant permission to the Director of Public Prosecutions to appeal against the sentence imposed in the District Court. For the reasons given by Bampton J, that sentence should be set aside. I would join in the resentencing proposed by her Honour.
BAMPTON J: Mr K was convicted of maintaining an unlawful sexual relationship with a child following a jury trial in the District Court.
He was sentenced on 23 October 2019 to imprisonment for seven years reduced by time spent in custody to a head sentence of six years and two months’ imprisonment. A non-parole period of three years and three months was fixed.
Mr K appeals against the conviction with permission on two grounds. Ground 1 asserts that the trial Judge erred in allowing the evidence of a social worker to be led as evidence of initial complaint. Ground 2 asserts that the Judge’s directions regarding initial complaint were inadequate.
The Director applies for permission to appeal against the sentence on grounds of manifest inadequacy and that the Judge failed to provide reasons for the substantial departure from the sentencing standards set by this Court for this type of offending.
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
D gave evidence that the sexual acts occurred whilst she lived with Mr K and her mother at Christies Beach and Elizabeth. She said that the acts of digital penetration occurred in the evenings when she was having a bath. The acts of fellatio occurred in her bedroom when Mr K was putting her to bed. She said that the sexual acts occurred regularly and repeatedly from about the time she was four years old until she was removed from the care of her mother and Mr K in 1985 at the age of eight.
The prosecutor did not lead any evidence from D regarding the making of an initial complaint and she was not cross-examined on the topic.
D gave evidence that she first reported the allegations to police in 2016. She was cross‑examined as to the circumstances of her report.
Evidence of initial complaint
As foreshadowed by the prosecutor, the evidence of initial complaint was led through the social worker, Ms White. Ms White gave evidence that she spoke to D in her role as a social worker with the Department for Community Welfare. Ms White, by reference to the notes she made on 18 July 1985 when she spoke with D and her mother at their home, told the jury about the substance of her conversation with D. She explained that she asked D words to the effect, “Did dad ever touch you anywhere that you didn’t like”. Ms White said that D’s “response to that was “yes” and pointed between her legs”. Ms White said that was the extent of the conversation and that D was removed from the home and “went into a placement that night with the permission of her mother”.
In cross-examination, Ms White said D did not volunteer the complaint but responded to her question and that D did not give, nor was she asked for, any further details. Ms White also confirmed in cross-examination that because of the complaint she transported D to the Sexual Assault Referral Clinic that night. Ms White said that D would have been medically examined but that she did not know the results of that examination. When asked in cross-examination whether D’s “family was a reasonably dysfunctional family”, Ms White said, “There certainly were some issues with the family”.
It was not put to Ms White that the complaint had not been made in the way that she had described.
The evidence of the investigating officer
The investigating officer confirmed that D reported the matter to police on 23 February 2016. He said that he was not able to obtain any medical records in relation to a medical examination performed on D following her removal from her family. He also said that he was not able to obtain a statement from D’s mother as she suffered dementia and that he had obtained incomplete records from the Department of Community Welfare and the Family Court in relation to D’s family.
The defence case
Mr K neither gave or called evidence. It was his case that the offending did not occur and through cross-examination of D and reliance on agreed facts he suggested that D was not a reliable witness.
Mr K’s appeal
Mr K submitted that the admission of and/or directions on complaint evidence wrongly strengthened the prosecution case and was prejudicial to him and as a result there was a reasonable possibility that a miscarriage of justice has occurred.
Ground 1
Mr K complained that the evidence of complaint has limited weight and was prejudicial to him. He contended that the complaint evidence elicited by Ms White was leading. It was submitted that, unlike the situation in R v Landmeter,[2] the conversation during which the complaint was made was not a conversation that could “[aid] an appreciation of the events from [the complainant’s] point of view and so bearing on her credibility and potentially explaining why the authorities were not notified about the allegations until some years later after the events”[3] as D did not give evidence of the complaint. It is to be noted that the evidence of complaint in Landmeter was given by the complainant who said that she told her father (who did not give evidence) of the sexual abuse and that he took no action.
[2] (2015) 121 SASR 522 at [15].
[3] R v Landmeter (2015) 121 SASR 522 at [16].
Mr K submitted that although s 34M(3) of the Evidence Act 1929 (SA) (“the Evidence Act”) allows “any person” to give evidence of complaint, because the conversation was initiated and led by Ms White and was so vague it could not amount to evidence of complaint. Mr K complained that the conversation could not be seen to be a complaint of a sexual offence, let alone the charged conduct and that it did not trigger any investigation.
It was contended that the elicited complaint had some similarities to R v Maiolo (No 2),[4] where the complainant spoke to a police officer numerous times regarding a complaint involving another person. It was submitted the conversation in this matter did not lead to a clear complaint as occurred in R v Partington[5] where the complainant eventually stated that she was raped during a telephone conversation with a counsellor.
[4] (2013) 117 SASR 1 at [15] (Peek J).
[5] (2018) 132 SASR 11 at [38]-[40].
It is evident from the discussion between Judge and counsel set out above that there was no application for exclusion of Ms White’s evidence and no objection to her evidence being led as evidence of complaint at trial. As highlighted by the Director, the Judge expressly enquired of Mr K’s counsel whether it was agreed that the proposed evidence of complaint met the test for complaint evidence. Counsel agreed that it did.
It follows that a failure to object to the admissibility of the evidence means the admission of it is not an error of law and on appeal its admission must be shown to have caused a miscarriage of justice.
The question for determination is whether the complaint referred to the charged conduct. To demonstrate consistency of conduct and show how the offending first came to light, the complaint must be referable to the offence.[6]
[6] R v Usher (2014) 119 SASR 22 at [50] (Kourakis CJ, Peek J agreeing); R v Maiolo (No 2) (2013) 117 SASR 1 at [22]-[27]; R v Jones [2018] SASCFC 80 at [68].
The Director submitted that the relevant disclosure to Ms White must be considered against the facts of the case. At the time of the relevant disclosure, D was just about to turn eight. It can be inferred from the evidence at trial that she was living in a difficult family situation and was, after that time, removed entirely from the care of her mother and Mr K.
It was submitted that it is unrealistic to expect a complainant to provide a detailed account of all that occurred and that this is particularly so if the complainant is a child. Further, it was submitted that if this was a basis for excluding the evidence it is likely that in most cases in which there has been a long history of abuse involving multiple acts of sexual abuse, the evidence of complaint would be excluded in the exercise of the discretion because the complainant will be unlikely to have given a detailed account of what occurred.
As the Director stated, the relevant allegation at trial for the purpose of proof of the offence included digital penetration of D’s vagina. In the circumstances of this case, the Director maintained that the verbal “yes” accompanied by D gesturing between her legs was sufficient to amount to a “report or any other disclosure” in relation to a “sexual offence” for the purpose of s 34M(6). It was submitted that the disclosure was clearly a reference to an aspect of the charged offending, that is, digital penetration. It was further submitted that the evidence was capable of satisfying the reasons for admission and the use the jury could make of such evidence as set out in s 34M(4)(a).
Counsel for the Director explained that it is evident by reference to the material available to counsel on the prosecution brief prior to trial that the disclosure to Ms White was an “initial complaint” for the purposes of s 34M. It was submitted that it was clear from the brief how Ms White came to be at D’s home on 18 July 1985. It was clear why, during a broader discussion with D, she asked D the question which prompted the relevant disclosure. The Director pointed out that D’s assertions in her statement that she told her mother that Mr K had been “hurting” her were not led at trial. The jury were informed that D was removed from her home and placed with a neighbouring family.
It was also pointed out that Ms White’s statement and her notes in relation to her interaction with D’s family were on the prosecution brief. Ms White’s involvement with the family pre-dated the occasion of the relevant disclosure. Her notes recorded that D’s mother telephoned on 18 July 1985, when Mr K was not home, asking to speak to Ms White. Ms White’s home visit, during which D’s disclosure was made, followed later that same day.
Ms White’s notes of the conversation with D included, in addition to the disclosure that was led at trial, that D’s disclosure about Mr K’s violence. The notes record that Mr K came home that night on 18 July 1985, was very angry, and smashed things. They also record that D was removed from the home and placed into care on 18 July 1985.
It was submitted by the Director that there was no dispute at trial that the disclosure by D to Ms White was the initial complaint. On the basis of the information on the brief and available to the defence, it was submitted, that it was entirely understandable that Mr K’s counsel took the view that the disclosure to Ms White was admissible as evidence of initial complaint. In any event, the Director submitted that counsel made a forensic decision to cross‑examine on the evidence of the disclosure made by D. Ms White confirmed that the complaint was in response to her question, that it was lacking in detail and that D made no reference to any type of sexual offending. The Director submitted that it is not for this Court to go behind the issues at trial and the way that the trial was conducted.
Consideration of ground 1
To be characterised as an initial complaint, D’s response to Ms White’s question must amount to a “report or any other disclosure” in relation to a sexual offence within the terms of s 34M(6). It must be capable of demonstrating consistency of conduct in accordance with s 34M(4).[7]
7 R v S, DD (2010) 109 SASR 46 at [30] (Peek J); R v Usher (2014) 119 SASR 22 at [51] (Kourakis CJ); R v El Rifai [2012] SASCFC 98.
It was held in R v J, JA[8] that consistency of conduct includes both the timing and circumstances of the complaint, as well as consistency between the content of complaint and the offending conduct that is alleged.
[8] (2009) 105 SASR 563.
In R v S, DD, Peek J noted, in relation to whether a statement amounts to a complaint of a sexual offence, that:[9]
… a statement may be so vague that it does not constitute a “complaint of a sexual offence” on its face at all. For example, statements such as “my father upsets me” or “I hate my father” may, on the prosecution case, be made by a complainant because of sexual interference, and in response to it, but they simply do not satisfy a minimal objective standard of a “complaint of a sexual offence”.
(Emphasis in original)
[9] (2010) 109 SASR 46
As submitted by the Director, generality of itself is not a bar to admissibility. In R v P, S, Nicholson and Lovell JJ (with whom Parker J agreed) said:[10]
Once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to a charge on the Information. Complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referrable to such an offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. It need only be referrable in a general way as it would be “unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity”. However, what was said must encompass generally the conduct alleged in a particular count. In rare cases, it may not be necessary for the complaint to be accompanied by or include a description of the offending, provided that, on the relevant facts, the complaint can be understood as being referable to only the conduct charged.
(Footnotes omitted)
[10] (2016) 261 A Crim R 329 at [23].
In R v Usher, Kourakis CJ (with whom Peek J agreed) said:[11]
Provided that the complaint is sufficiently general, it is not necessary for it to be admissible under s 34M(3) of the Evidence Act that the details of the complaint are entirely consistent with the offence charged. Nor is it necessary that the complaint refer to the specific details of the offending comprised by the charge. However, there must be an identity between the two before it can be received.
(Footnote omitted)
[11] (2014) 119 SASR 22 at [50].
Justice Vanstone and I observed in Landmeter:[12]
… that evidence of the fact of a complaint about an alleged sexual offence answers the description of an initial complaint and is admissible, even where it is not accompanied by a description of the offending conduct. That is so, provided the evidence is capable of being probative in terms of the purposes set out in s 34M(4)(a)(i) or (a)(ii), that is, to inform the jury as to how the allegation first came to light or as evidence of the consistency of conduct of the alleged victim.
[12] (2015) 121 SASR 522 at [12].
In relation to the criticism that the evidence of complaint has limited weight and is prejudicial to him, the evidence revealed how the offending came to light at that time and was an explanation as to why it was that D was removed from the care of Mr K and the offending came to an end. The disclosure was also capable of demonstrating consistency of conduct in the ways envisaged by the Court in numerous other matters. As the Judge directed in his summing up, the weight to be attached to evidence was a matter for the jury.
As the Director submitted, the fact that no investigation was triggered by the complaint has no bearing on whether the disclosure amounts to initial complaint, the question of admissibility or use that could be made of the complaint at trial.
Further, there is no requirement that a disclosure include a threshold level of detail before it can be considered a complaint.
The evidence of initial complaint evidence in this matter is not rendered inadmissible because D did not give evidence of her disclosure to Ms White. As Vanstone J said in R v B, P, “[i]ndeed the recent complaint can still be attested to even where the complainant is not asked about it or, presumably, where he or she has forgotten it”.[13]
[13] [2006] SASC 229 at [44] see also Breen v The Queen (1976) 180 CLR 233.
In my view, the evidence was properly admitted as evidence of initial complaint, it is referable to the charged offence and it is capable of amounting to consistency of conduct on the part of D. There was no error of law in the admission of the complaint evidence, nor has its admission resulted in a miscarriage of justice in the particular circumstances of the trial. Ground 1 is not made out.
Ground 2
This ground concerns Mr K’s assertion that the Judge’s directions regarding initial complaint were inadequate. In summing up, the Judge instructed the jury on the topic of complaint evidence as follows:
I now want to say something to you about complaint evidence. Complaint evidence, or at least initial complaint evidence, is the first time someone hears the complainant make an allegation to another person of what has happened to her. Evidence that a first complaint of sexual intercourse was made by a complainant and any contents of the complaint is allowed to inform you as to one, how the allegation first came to see the light of day and, two, it may be some evidence of the consistency of conduct of the complainant or it may be some evidence of the lack of consistency of conduct of the complainant, and in that respect if it’s being used that way, it might either help you be satisfied about the complainant’s evidence, if it shows consistency, or it may help you to have some doubt about the complainant’s evidence if it shows some lack of consistency, but it is not admitted as evidence of the truth of it, as it would be hearsay evidence if used as evidence of the truth of it.
As I have explained to you before, evidence as to the truth of it comes from the complainant, herself, and the evidence of the surrounding circumstances. I have already explained to you that if the complainant told 10 people, and they all came and gave evidence that the complainant had said that the accused had interfered with her, that would not make her evidence any stronger; it would all depend on her own credibility, not the fact that she may or may not have told other people about it, and having those people come here and give evidence that ‘She told me something happened’, you could have a hundred of them, but it would not make the case any stronger, it all depends on whether you accept her evidence beyond reasonable doubt. But it might, as I said, show you how the matter got to see the light of day and become under investigation by the police and it may show consistency.
It might make you think ‘Well, that’s just what you would expect to happen with a young girl in those circumstances, for it to come out in that way and for her to say what she did, when she did, to whom she did. That makes me feel a little bit happier about her evidence’. Or it might have the opposite effect, it might make you think ‘Well, that’s pretty suspicious the way she told so and so in those circumstances, to that person, and that causes me to think pretty carefully about her evidence and wonder if it’s the truth’. Or it may have no effect on you whatsoever one way or the other. But they are the two ways you can use evidence of complaint. You will recall that in this matter Ms White attended the address at Woodford Road, Elizabeth North and asked the complainant ‘Did dad ever touch you anywhere you didn’t like?’, and the response was ‘Yes’, and she pointed between her legs, and that was the extent of the conversation.
Now, does that make you feel ‘Well, here we have a shy girl who’s being asked about whether her dad did anything and all she said was “Yes, he touched me down there”’. Does that make you feel more comfortable in her evidence? That is what you would expect from a girl in these circumstances. Or does it make you feel ‘Well, that doesn’t show consistency, because she’s telling me that he had sexual intercourse with her on lots of occasions but she never mentioned that to Ms White, all she said was “Yes” and pointed between her legs. That makes me thinks there’s a lack of consistency because it’s a different story, it’s different to what she’s telling us’. Or does it make you think ‘She’s shy and it’s embarrassing and she’s asked about it out of the blue and that’s what she said and that’s what one might expect’?
So that’s the way you can use that evidence and you remember on 23 February 2016 she attended the Sturt Police Station and reported it and it saw the light of day and the police started investigating.
(Emphasis added)
Mr K complains that the reference to “young girl” in the direction on complaint evidence could be a general comment regarding complaint evidence and not related to D. Mr K also took issue with the Judge’s incorrect recitation of Ms White’s evidence where he said, “Well, here we have a shy girl who’s being asked about whether her dad did anything and all she said was “Yes, he touched me down there”. As set out above, the evidence given by Ms White was that D answered “Yes” and pointed between her legs in response to her question about whether Mr K touched her in a way she did not like. Mr K submitted there was also no direction given by the Judge about how vague the complaint was and whether D’s pointing could be a reference to a touch that was a not sexual touch.
Mr K stated that the direction carried with it an assumption that it was initial complaint evidence about the alleged conduct without further comment. It was submitted that as it was not complaint evidence, the direction could have been that the evidence has no value.
The Director contended that the reference to “young girl” was during that part of the summing up where the Judge was clearly explaining to the jury the ways in which they could use the evidence of complaint in the trial. The reference in full is “a young girl in those circumstances”. It was submitted that the reference to a “young girl” could only be taken as a reference to D in that context. However, even if it was not, the Director argued that there is nothing about the direction which could have confused the jury or led to misuse of the evidence of complaint.
The Director contended that, despite the inaccurate recitation of Ms White’s evidence, in the context of the directions on this topic as a whole, the jury could be under no illusion as to what the Judge was trying to convey. It was submitted that the jury heard the evidence of complaint expressly from Ms White during the short trial and they heard that evidence recounted correctly by both counsel in their addresses.
Consideration of ground 2
The reference to “young girl” must be considered in context by reference to the words preceding and following it:
But it might, as I said, show you how the matter got to see the light of day and become under investigation by the police and it may show consistency.
It might make you think ‘Well, that’s just what you would expect to happen with a young girl in those circumstances, for it to come out in that way and for her to say what she did, when she did, to whom she did. That makes me feel a little bit happier about her evidence’. Or it might have the opposite effect, it might make you think ‘Well, that’s pretty suspicious the way she told so and so in those circumstances, to that person, and that causes me to think pretty carefully about her evidence and wonder if it’s the truth’. Or it may have no effect on you whatsoever one way or the other. But they are the two ways you can use evidence of complaint.
(Emphasis added)
It is clear the reference by the Judge to “a young girl” was a reference to D during his direction to the jury about how they could use complaint evidence.
On my assessment, whilst the Judge incorrectly recounted the complaint evidence when he said; “yes, he touched me down there”, having regard to whole of the evidence, the final addresses, and the summing up, there is no possibility of error on the part of the jury as to the evidence given by Ms White.
The jury heard the evidence of complaint from Ms White and they heard that evidence correctly recounted by both counsel in their addresses. They also heard the Judge correctly recite Ms White’s evidence in the sentence before the incorrect recitation the complaint evidence and in the third sentence following it.
In respect of the criticism by Mr K as to the vague nature of the complaint, as the Director submitted, the affirmative answer given by D to the question put to her, coupled with her pointing between her legs, is clear evidence of where she pointed and is clearly referable to a charged act and capable of satisfying the requirements of initial complaint.
Significantly, Mr K did not ask for a redirection or raise with the Judge his concern about the directions on initial compliant following the summing up. As noted by the majority of the High Court in Perara-Cathcart v The Queen,[14] the fact that defence counsel did not apply for a further direction “affords some practical indication that the trial judge, whose task was to direct the jury only as to so much of the law as they needed to know to resolve the real issues in the case, succeeded in that task”.[15]
[14] (2017) 260 CLR 595. In that case the Court, in determining an appeal from this Court, considered a ground of appeal that a direction regarding the permissible and impermissible uses of discreditable conduct evidence was not given.
[15] (2017) 260 CLR 595 at [60].
The trial Judge directed the jury in accordance with s 34M(4) of the Evidence Act. Ground 2 is not made out.
As neither ground of appeal is made out, I would dismiss Mr K’s appeal.
The Director’s application for permission to appeal against sentence
The Director, in seeking permission to appeal, submitted that the Court has established a clear sentencing standard for the type of offending committed by Mr K. That standard is a starting point of about 12 years imprisonment.[16] It was submitted that the starting point of seven years taken by the Judge is a significant departure from the sentencing standard routinely applied and that the Judge gave no reason for such departure from the standard.
[16] R v D (1997) 69 SASR 413 at 424.
The Director argued that the features of this type of offending specifically referred to in R v D and incorporated into the sentencing standards are all present in this case, namely, multiple instances of sexual offending of this kind on a child under 12 years of age, over a period of time, and committed by a person in a position of trust. The Director stated that while the standards identified in R v D are flexible and permit a higher or lower starting point depending on the particular case, there is nothing in the circumstances of this case that warranted a starting point that was five years below the applicable standard. There is nothing, the Director submitted, that mitigated the offending itself.
The standard in R v D is well-known and, by legislative amendment to s 29D of the Criminal Law (Sentencing) Act 1988 (SA) and now s 68 of the Sentencing Act 2017 (SA) (“the Sentencing Act”), Parliament has given legislative force to the standard set in R v D for offending both before and after that decision.[17]
[17] R v Gibbs [2017] SASCFC 140.
The Director submitted that, as a parent – adoptive or otherwise – Mr K was in a position of trust. He turned everyday acts of a parent (bath time and bedtime) into something vastly different from the usual experience of children with their parents. He corrupted D’s childhood, exploiting her vulnerability in his care, and he did so for his own sexual gratification.
It was submitted that the duration, frequency, and nature of the offending committed on a child of such a young age, placed the offending at the upper end of the scale of seriousness for offending of its type. It was submitted that there is nothing in the offending, the way it ended, or Mr K’s subsequent behaviour and refusal to accept the verdict which would justify the Judge departing so significantly from the applicable standard. The Director contended that although the Judge found him to be at low risk of reoffending, Mr K refuses to accept the jury verdict, and as such nothing can be said in his favour in terms of cooperation, insight, and remorse.
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.
The offending was regular and persistent throughout the charged period. As required by the charge, it involved two different repeated sexual acts, namely, digital penetration of D’s vagina by Mr K and him causing her to perform fellatio upon him.
The offending was committed more than 30 years before trial and was not brought to the attention of the police until 2016. D gave evidence of being threatened not to say anything by Mr K at the time of the offending. As submitted by the Director, Mr K must bear some responsibility for the delay in the matter being brought before the Court.
No comment was made by the Judge in his sentencing remarks about the damage wrought on D’s life by the offending as graphically detailed in her victim impact statement. D described how her schooling was stunted, how her mental health has been affected, and how her interpersonal relationships and participation in life have been impaired.
Dr Balfour reported that Mr K is, in his opinion, an unsophisticated man of limited educational achievement. Mr K told Dr Balfour that his spine was damaged during birth which led to long-term spinal degeneration and chronic pain. Mr K left school towards the end of second year high school to escape the incessant bullying he endured due to his short stature. During early adolescent Mr K was treated with hormone therapy in an attempt to increase his height. That treatment was marginally successful. Mr K had steady employment after leaving school but retired prematurely due to chronic back pain caused by spinal osteoarthritis.
Dr Balfour reported that, due to Mr K’s entrenched denial of the offending, he was unable to specially question him regarding the dynamics of his sexual offending behaviour. Dr Balfour concluded that Mr K’s risk of reoffending is low and that the type of psychosocial problems that contributed to his offending behaviour would respond well to assertive case management and strict community supervision once he is released on parole.
Prior to being taken into custody Mr K was the carer for his wife of 30 years, who suffers a mental impairment. At the time of his arrest for this offending, Mr K and his wife were “homeless and living on the streets out of a shopping cart”.[21]
[21] Transcript of proceedings, R v K, IC (District Court of South Australia, DCCRM-18-517, Judge Cuthbertson, 4 September 2019) at 3.
Mr K is aged 68 and has no relevant prior convictions. His bail was revoked on several occasions between being charged with the offence and 16 May 2019 when his last bail agreement was revoked. The periods he has spent in custody total 10 months and one week.
The Judge gave no reason for departing from the sentencing standard set by this Court and endorsed by Parliament for sexual offending against children. In R v Bonython‑Wright,[22] Kourakis CJ (with whom Blue and Stanley JJ agreed) said in relation to the predecessor of s 68 of the Sentencing Act that the standard should apply unless explanation is given for why it should not apply. His Honour said:[23]
The primary purpose of the enactment of s 29D of the Sentencing Act was to legislatively abrogate the common law practice of courts forewarning the public of an increase in sentencing standards. That practice may have delayed the imposition of the standard enunciated in R v D and may have limited it to offences committed after that decision was handed down. However, the enactment of s 29D of the Sentencing Act also recognised the seriousness with which the community regards offences of that kind.
It is not open to sentencing judges, nor to the Full Court, to adopt another standard unless and until the clear statement of principle in R v D is overruled or amended by a Full Court of five. Nonetheless, the sentencing standard retains the flexibility to which Doyle CJ referred. The discretion which the flexibility allows must be exercised judicially by reference to the standard, and not in a way which undermines it. The selection of a different starting point should be supported by reference to circumstances which distinguish the case at bar from the generality of cases to which Doyle CJ referred.
[22] (2013) 117 SASR 410 at 429.
[23] (2013) 117 SASR 410 at [97]-[98].
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].
The sentence imposed was manifestly inadequate. The sentence reflects an error of principle in departing from the standard set by Parliament and this Court for sexual offending against children. The prisoner’s personal circumstances are recounted in the reasons of Bampton J. In my view, the gravity of the offending far outweighs the prisoner’s personal circumstances. Strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the prisoner is not twice vexed by the repeated coercive power of the State.
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