N v R No. SCCRM 94/103 Judgment No. 4619 Number of Pages 7 Criminal Law and Procedure

[1994] SASC 4619

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MOHR(2), BOLLEN(1) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - particular offences - offences against the person - sentence - 3 counts of indecent assault and one of attempted unlawful sexual intercourse - victim was the stepdaughter of the appellant - one sentence imposed - sentence of 2 years and 6 ,months not manifestly excessive. R v Lewis (1993) 60 SASR 582, discussed.

HRNG ADELAIDE, 20 May 1994 #DATE 22:6:1994

Counsel for appellant:     Ms M E Shaw

Solicitors for appellant:    Duncan Hannon

Counsel for respondent:     Mr P R Brebner

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an appeal against sentence. The appellant pleaded guilty at his appearance in the Magistrates Court to three counts of indecent assault and one of attempted unlawful sexual intercourse. He was committed for sentence to the District Court.

2. The charges of indecent assault were representative charges. The victim alleged that the appellant had indecently assaulted her on many occasions between 1st July 1991 and April 1993. The appellant acknowledged a course of conduct of this type which lasted for 12 months or a little more.

3. The victim was born on 1st June 1978. Her mother had married the appellant in 1984. The victim was the stepdaughter of the appellant.

4. In her statement the victim said:-
    "Towards the end of 1991 when I was in Year 8 at Thomas
    More College at Salisbury Downs, Brian started fondling
    with my boobs. He would always do it over the top of my
    clothes. He would not do it under, not that I can
    remember anyway. I was about 13 years old when this
    started happening. It was in 1991. This was pretty
    constant when it would happen. It was just about once a
    day or whenever he had the chance. It would mainly
    happen when we would be just playing around. It wasn't
    just a touch it would be full on. He would grab them
    with his hands and them (sic) move his hands around. It
    would mainly happen around home all the time. I don't
    remember any certain times or dates when anything did
    happen though.

When I was in Year 9 in 1992 I remember it was either
    the middle or late in the year that Brian and I went and
    did the food shopping at Cheap Foods in Salisbury. I
    remember that it was a Thursday night. There was Mum,
    Brian and me that went shopping and Anthony had gone to
    Music lessons. Brian and I were standing in the meat
    section and I was joking about a Polish sausage when
    Brian fondled with my boobs. It wasn't very long, it
    was just a quick squeeze. I said to him, 'Don't, not in
    public'. It was bad enough at home, but worse in
    public. Some of my friends shopped there and it would
    have been bad if they had seen what happened. He
    ignored me when I told him not to do it and he then did
    it again. In the end I walked off to find Mum.

Before all this happened at Cheap Foods, Brian would
    constantly fondle my boobs over the top of my clothes,
    never under my clothes. It was bad enough though over
    the top. It would happen so often that I didn't even
    bother to write it in my diary that I keep. It would
    happen nearly every day that I could remember. I can't
    remember any certain other dates though. I don't
    remember it happening on my birthdays though, because my
    Grandma and my friends would always come down to be with
    me then."

5. The charge of attempted sexual intercourse was a charge of attempted cunnilingus.

6. The victim said:-
    "Late in 1992, after my birthday there was a 'BUDDY
    HOLLY' impersonator that came to Adelaide for a concert.
    I remember that I wanted to go to it and the tickets
    were $15.00. Some of my close friends from school were
    going and the trip to go was arranged through the Music
    Department at school.

I remember that I was at home when Brian came in and I
    said, 'Look Dad, I need $15 to go and see this Buddy
    Holly concert'. I had shown him the notice to go before
    and he just said, 'Oh yeah'. He went into his bedroom
    and I was saying, 'Oh please', because I really wanted
    to go. Then he said, 'Drop your pants'. I didn't
    really know what to do. I was sitting on his bed at the
    time. I don't know what exactly happened but I remember
    that I had my pants down and he was opening the lips of
    my fanny with his hands. That's what I call my vagina.
    I don't know how I got my pants down, I can't remember
    now. Anyway, he started to lick me on the fanny right
    in between my legs. As soon as he did this, I jumped up
    and pulled up my pants and ran out of the bedroom. As I
    was running out the bedroom he stopped me in some way
    but I can't remember how exactly. He said to me, 'Don't
    tell anyone, it's out (sic) secret'. I ran into my
    bedroom and I cried. I thought it was disgusting. I
    felt like a total whore because he made me do this so
    that I could get the $15.00."

7. The victim said that she gave no consent to the conduct of the appellant. Eventually the victim told her mother about what had happened. Her mother spoke to the appellant. She then left him. The marriage was brought to an end.

8. At the time of sentencing in February 1994 the appellant was 48 years of age. He had no relevant prior convictions. He worked for the same employer for 25 years. He pleaded guilty at the first opportunity. He made frank admissions. There is no reason to doubt that he, the appellant, was then and is now contrite. He set about having treatment. He consulted a psychologist, Mr A.N.E. Fugler. He saw Mr Fugler during June and July 1993. Mr Fugler says:-
    "I examined Mr N on the 5th October, 1993 in
    relation to charges of attempted unlawful sexual
    intercourse and indecent assault, committed on his
    daughter, Renee, aged 13 years at the time of the
    offences. You will be aware that I saw Mr N for
    psychotherapy, related to his aberrant sexual behaviour,
    during June and July, 1993 and that he also attended the
    Sexual Offenders Treatment and Assessment programme,
    completing a number of measures of psychological and
    sexual functioning. I have had the opportunity of
    referring to the results of those tests, with your
    client's consent."

9. Mr Fugler examined the appellant in relation to these charges on 5th October 1993. So the appellant had put himself in Mr Fugler's hands for his aberrant sexual behaviour soon after his wife left and before the police spoke to him.

10. Mr Fugler stated his conclusions thus:-
    "Brian N now admits full responsibility for his
    offending behaviour and accepts that, as the adult, it
    was he who initiated and controlled the sexual activity
    that took place with his step-daughter Renee. When he
    first attended at the Sexual Offenders Treatment and
    Assessment Programme in May, 1993 he exhibited a number
    of cognitive distortions and minimised his
    responsibility for deviant sexual behaviour. A number
    of significant changes in both attitudes and beliefs
    occurred after the intensive therapy sessions that I had
    with him, and as a result of these, I do not believe
    that he is a serious danger with respect to exhibiting
    re-offending behaviour. He has sufficient understanding
    of his behaviour to recognise any signs which might
    place him at risk, and is motivated to seek assistance
    if these occur."

11. This was very important information for the purposes of sentencing.

12. Dealing, then, with the offences charged there were three of indecent assault. These assaults consist of handling and fondling the victim's breasts outside her clothing. There was one charge of attempted cunnilingus. But the learned Judge knew, and was entitled to know, that there had been many more instances of indecent assault of this type during at least a period of twelve months.

13. I have mentioned that the appellant's wife left him. He lost home and family. He lost employment although he received a superannuation payout. Despite that he suffered financial loss from losing his employment. He suffered the indignity of losing his job.

14. I have read the remarks of the learned sentencing Judge carefully. In my opinion, he took into account everything relevant. In particular, he said:-
    "You admit full responsibility for these offences and I
    take into account all of the contents of Dr Fugler's
    report, and I note that he believes that you are not a
    serious danger, with respect to exhibiting re-offending
    behaviour, but yours, on your own statement, was a
    course of conduct of twelve months or more, and that is
    a matter that I have to have regard to."

15. The learned trial Judge gave full credit for early admission, co-operation with the police and plea of guilty. He, very sensibly, decided to impose one sentence. He sentenced the appellant to imprisonment for two years and six months. He fixed a non-parole period of eighteen months.

16. The grounds of appeal are:-
    "1. That the learned sentencing Judge erred in not
    suspending the sentence imposed upon the appellant.
    2. That the learned sentencing Judge erred in that the
    sentence imposed was manifestly excessive."

17. There are two passages in the remarks of the learned Judge which counsel submits demonstrate error in reasoning. The first passage is:-
    "Having said that, of course, and having been referred
    to R v Lewis, which was a decision of the Court of
    Criminal Appeal in July last year, I myself had a
    similar case at Port Augusta in December last. There
    the man had suffered actual harassment from an older man
    when he was a boy. Also, he was in ill-health and, of
    course, he was not in the role of a guardian and,
    therefore, there was no question of a breach of trust.
    The assaults were committed on boys who were a lot
    older."

18. The headnote of the case of R v Lewis (1993) 60 SASR 582 accurately sets out the facts and the reasons for decision. That headnote is:-
    "The DPP appealed against a sentence of five years with
    a non-parole period of 30 months imposed for six counts
    of unlawful sexual intercourse with a child on the
    ground that it was manifestly inadequate. The abuse
    occurred over a five-year period while the child was
    aged between five and 10 years of age. During the
    period of abuse the defendant was cohabiting with the
    victim's mother.
    Held (per King CJ, Duggan and Debelle JJ concurring)
    (allowing the appeal): (1) The trial judge failed to
    have due regard to the circumstances of aggravation in
    the case. The lengthy period of abuse, certain
    abhorrent features of the abuse, the fact that the
    defendant was in a relationship of care towards the
    victim, the age of the victim and the lasting effects of
    the abuse on her were matters necessitating a heavy
    deterrent sentence.
    (2) The sentence was manifestly inadequate and should be
    increased to eight years with a non-parole period of six
    years. The need for deterrence in child sexual abuse
    cases and the maintenance of a proper standard of
    punishment for such cases necessitated the interference
    of the Court.
    (3) The defendant's plea of guilty, his co-operation
    with police following the laying of the complaint, his
    decision to engage in voluntary treatment and the
    defendant's own history of sexual abuse as a child were
    factors which merited a reduction in the sentence from
    12 years to eight."

19. Counsel submitted in her Outline (and spoke to the point):-
    "It is submitted that the Sentencing Judge was in error
    in placing this case in a similar category to R v Lewis
    so as to lead to the conclusion that the offences were
    too serious to enable any sentence of imprisonment to be
    suspended."

20. Perhaps it can be said that the passage in which His Honour referred to R v Lewis is incomplete. The learned Judge does not state any conclusion about the relevance of the case of R v Lewis. His Honour said that he had been referred to Lewis. He mentioned that he had had a similar case last year, and then moved on to another point. I do not think that he has, as suggested by counsel, treated R v Lewis as authority for the proposition that he could or should not suspend. R v Lewis is a useful case. But its facts are very different than those here. And they demonstrate a higher degree of criminality on the part of the accused person in that case than exists here.

21. The reasons given by the learned trial Judge for not suspending is capable of debate. His Honour said:-
    "I just remind you, perhaps you don't even know, but in
    the statement the child said 'I felt terrible what Brian
    did to me. I could not say anything, because I really
    didn't want Mum and Brian to go through a divorce over
    this or anything. If this happened I would feel that it
    was my fault. I have already been through one divorce
    with parents and I didn't really want to go through
    another'. So the child is effectively silenced, because
    of her desire to keep the family together, and that is
    why I made that remark to your counsel, that I would not
    suspend the sentence."

22. I acknowledge that there is room for doubt about whether "silencing" alone is a necessary barrier to suspension. But the remarks of the learned Judge are commendably brief. What did he mean by his remark that the child was "effectively silenced"? The remark was made against the background of the facts. The victim kept silent and did not complain for a long time. She did that because she did not want run the risk of breaking up the family. Her "silence" opened the way for continued conduct. That is what I think His Honour meant or it is that to which I think he was referring. There is no error in that reasoning. It merely amounts to a further recognition of the gravity of the continued conduct as opposed to an isolated act or very few acts.

23. I can find no error in the reasoning of the learned trial Judge, no overlooking of anything, no misunderstanding of any fact, no following of any forbidden path, no giving undue weight to any one fact. Of course, he gave great weight to the gravity of the offence. He was bound to have done so.

24. There being no discernible error does this sentence itself cry out that there must have been some error in reasoning? And do the considerations available for a plea of guilty cry out that there has been error in reasoning. On both scores I think not.

25. These were serious offences. They amounted to a grave and flagrant breach of trust by stepfather against his stepdaughter. There may be no need to give much attention to personal deterrence (see the conclusions of Mr Fugler already quoted). But general deterrence remains. All the good which could be said (and was well said) of the appellant demanded a measure of leniency. The one sentence of two years and six months with a non-parole period of eighteen months is, in my opinion, lenient. Were it not for all the "good" which I have mentioned a longer period would have been well justified. I do not think that all that "good" was enough to justify suspension. No good reason for suspending the sentence existed. I say all this even if my interpretation of the two passages which I have mentioned is wrong. If this Court were called upon to re-consider the sentence for itself I would still not fasten on any lesser sentence than that fixed by the learned trial Judge. The conduct was just too grave to merit any suspension, to merit any shorter period of the head sentence, or to merit any lesser period for the non-parole period.

26. I would dismiss the appeal.

JUDGE2 MOHR J I agree.

JUDGE3 DUGGAN J I agree that this appeal should be dismissed for the reasons given by Bollen J.