Paul Richardson Sherratt v R No. SCCRM 93/215 Judgment No. 4127 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4127

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - Sentence - indecent assault (2 offences), unlawful sexual intercourse (3 offences) - victim 14 year old sister of 35 year old offender's live-in girlfriend - no prior convictions - plea of guilty - sentence 1 year imprisonment on each of indecent assault counts concurrent and 2 years on each of unlawful sexual intercourse counts concurrent but cumulative upon the one year term ie total 3 years, with non-parole period of 18 months - sentence severe but justified - appeal dismissed.

HRNG ADELAIDE, 17 August 1993 #DATE 17:8:1993
Counsel for appellant:     Mr P A Cuthbertson
Solicitors for appellant:    Norman Waterhouse
Counsel for respondent:     Ms P Kelly
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against sentences imposed upon the appellant in the Central District Criminal Court for two crimes of indecent assault and three crimes of unlawful sexual intercourse. 2. The appellant is aged 35 years and was living with the victim's half sister in a domestic sexual relationship. The victim was in the habit of visiting, and on occasions, staying with the appellant and her half sister. It was on occasions of such visits that the incidents which form the subject of counts 1 and 2 in the information occurred. The indecent assaults occurred while the victim's half sister was absent from the house. Sexual contact occurred between the appellant and the victim when he placed his hand in or in the vicinity of her vagina and thereby indecently assaulted her. 3. There was then an interruption of some 8 months in any sexual contact between the appellant and the victim. Then, on an occasion when the victim and her parents were visiting a national park, the victim suggested that she accompany the appellant when he returned to his home. He took her to his home in his car and on that occasion, three acts of sexual intercourse took place. They are the subject of the three charges of unlawful sexual intercourse. 4. The learned judge imposed sentences of 1 year on each of the counts of indecent assault to be served concurrently with one another and 2 years on each of the counts of unlawful sexual intercourse to be served concurrently with one another, but cumulatively upon the sentence for indecent assault. He fixed a 2 non-parole period of 18 months. He refused to accede to a submission made by the appellant's counsel that the sentences should be suspended. 5. The appellant has no prior convictions and there was positive evidence before the judge of his previous good character. He pleaded guilty and that plea followed candid admissions to the police. I think there can be no doubt about his contrition for his criminal conduct. He has suffered in consequence of it, having suffered the loss of employment. 6. The sentence imposed upon the appellant was undoubtedly a severe sentence. There are, however, quite serious aspects of the case. The girl was quite young, only 14 years of age, and there can be no doubt that she has suffered some adverse effects as a result of the conduct and no doubt also of the family tensions which resulted from its disclosure. There was, of course, a very considerable disparity in the ages of the appellant and the victim, he being 35 years of age and she only 14. There was also the serious aspect that this young girl was able to visit the appellant's house, and no doubt was permitted to do so by her parents, precisely because he was living in a settled domestic relationship with the victim's half sister. That put him in a position of some responsibility towards this young girl who was visiting the establishment. I have no doubt that she indicated a sexual interest in him initially. In that situation, it was plainly his responsibility to discourage her and to ensure that no sexual conduct took place, and to assume some responsibility for her by perhaps alerting her half sister to what was occurring. Instead of that, he took no action to discourage her, but on the contrary, used her sexual interest to gratify his own sexual appetite. 7. It is also a serious aspect of the case that this was no mere isolated occurrence in which he succumbed to temptation and which he subsequently regretted. There were two separate episodes, as I have indicated, separated by a period of months. Notwithstanding what had occurred on the previous occasion, when the opportunity presented itself on a subsequent occasion he took advantage of it by taking her to his home and going further in sexual activity than he had gone on the earlier occasion. 8. I think that those serious aspects of the case make it impossible for this court to say that the sentence imposed was manifestly excessive. It was a severe sentence, but as I have said, there were serious aspects of the case which warranted a sentence which reflected the seriousness of the conduct. 9. Moreover, despite the appellant's prior good character and the plea of guilty and his undoubted contrition, I feel that the judge would not have been discharging his duty if he had suspended the sentence. I think that exercising a discretion in that respect was correct. I would dismiss the appeal.

JUDGE2 MOHR J I agree.

JUDGE3 BOLLEN J I agree.