R v A, GP - [2012] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v A, GP
[2012] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
5 July 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
The appellant was found guilty by a District Court judge sitting without a jury of one count of gross indecency, one count of inciting a child to commit an indecent act and three counts of indecent assault - the appellant sought leave to appeal against conviction - permission to appeal was refused - another judge of the District Court sitting without a jury found the appellant guilty of three counts of indecent assault of a person under the age of 12 - it was agreed that the judge who heard the second trial would sentence the appellant for both matters - sentencing judge imposed a 16 year term of imprisonment (sentence being cumulative) and a non-parole period of 10 years - the appellant was granted permission to appeal - whether the sentence imposed is manifestly excessive - whether the judge erred in referring to R v D (1997) 69 SASR 413.
Held: Anderson J (Nyland and David JJ agreeing) - Appeal dismissed - the head sentence and non-parole period are not manifestly excessive - both the head sentence and non-parole period are within the appropriate range for this type of offending - the sentencing judge did not erroneously refer to R v D (1997) 69 SASR 413.
Criminal Law Consolidation Act 1935 (SA) s 58A; Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 10(4), referred to.
R v D (1997) 69 SASR 413, applied.

R v A, GP
[2012] SASCFC 80
Court of Criminal Appeal: Nyland, Anderson and David JJ

NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Anderson J.
ANDERSON J.
Introduction
The appellant was found guilty by a District Court judge, sitting without a jury, of one count of gross indecency contrary to s 58 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) (count 1), one count of inciting a child to commit an indecent act contrary to s 58A(1)(a) of the CLCA (count 2) and three counts of indecent assault contrary to s 56 of the CLCA (counts 3 to 5). Counts 1 to 5 are collectively the first group of offences. The maximum penalties for these offences were 3 years imprisonment for gross indecency, 2 years imprisonment for inciting a child to commit an indecent act and 10 years imprisonment for each of the three counts of indecent assault of a person under the age of 12 years.
The appellant sought leave to appeal against his conviction on one ground, namely, that the learned trial judge reversed the onus of proof. On 18 May 2012 the applicant was refused permission to appeal on this ground by a judge of this Court.
The judge gave reasons for refusing permission to appeal. After hearing the argument in this Court, which was identical to the argument put before the judge, the Court ruled unanimously that permission to appeal against the conviction should be refused. The Court when it refused permission adopted the reasons published by the single judge.
In another trial before another judge of the District Court, again sitting without a jury, the judge found the appellant guilty of three counts of indecent assault of a person under the age of 12 contrary to s 56 of the CLCA (the second group of offences), the maximum penalty was 10 years imprisonment on each count. The victim in the second group of offences was the appellant’s daughter and the victim in the earlier matter was the daughter of a woman living in a relationship with the appellant at the time of the offences. The victims in both cases were 7 or 8 years of age and 8 or 9 years of age respectively.
The solicitors for the appellant agreed that the judge who heard the second trial should sentence the appellant for both groups of offences. The appellant has been granted permission to appeal against the sentence. The appellant argues that the sentence imposed is manifestly excessive.
The sentencing judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sentence was one of 16 years imprisonment. The judge fixed a non-parole period of 10 years. The appeal ground is that both the head sentence and the non-parole period are manifestly excessive.
Background
First group of offences
The first complainant gave evidence that the appellant played board games with the children and that there were sexual connotations involved in the games. The complainant said that there were directions on the squares of the board game such as “take off your pants” and “touch (another person)”. On one occasion the appellant landed on a square directing him to take off his pants, which he proceeded to do. He exposed his penis because he was not wearing any underwear. That was the count of gross indecency for which the appellant was convicted.
On another occasion the complainant said she was lying in bed with the appellant under the bedcovers. He told the complainant that she had pulled down his pants and that she was required to pull them back up. She said she saw his underwear around his ankles. She said that it was not her that had pulled his pants down. She said that when she pulled back the covers she could see his penis. He asked her to touch his penis. She said she touched it and it was wet.
The judge held that these acts were undertaken by the appellant “with a view to gratifying a prurient interest” under the relevant section at the time, namely, s 58A of the Criminal Law Consolidation Act 1935 (SA). The judge found that the appellant’s actions incited or procured the commission by a child of an indecent act.
On the third count of indecent assault the complainant gave evidence that she and her sister and another young girl were in a spa bath with the accused. None of them, including the appellant, was wearing clothes. She said:
We were all playing and he [the accused] was sitting in the bath with his legs together and up. He would pick me up and straddle me on his legs and then slide me down and then I would jump out and it was the next girl, and we did that.
She said that she was naked and that her vagina slid down his legs. She said that she was facing him and her vagina came into contact with his leg. She said the accused held her around the waist and demonstrated a movement starting with her arms outstretched in front of her pulling a person from the knees downwards towards the waist. She said:
My vagina would be touching, sliding down his legs and then onto his penis.
Count 4 was another indecent assault and the complainant gave evidence that she and her sister were painted by the appellant when they were naked. That is, the appellant painted onto their bodies what he called a bikini by using blue paint, by painting bikini tops on their chests and also painting their vagina.
The complainant said that the appellant said at that time, “Oh, if you go down to the beach the boys are all going to look and like your bikini”.
Finally count 5 was another indecent assault and the complainant was taken with her sister to the beach by the appellant. She said that he took her into the water because he said he wanted to get sand out of her bathers. She said that she did not have any sand in her bathers and he put his hand and stroked her vagina allegedly trying to get sand out. She said when he stroked her vagina it felt like it was for a while and she felt uncomfortable.
The appellant did not give evidence. The prosecution tendered an interview with a police officer. In the interview he essentially denied all of the allegations. He did admit to painting the children on their tops but said they were wearing clothes on their bottom halves.
Second group of offences
In relation to the second group of counts of indecent assault before the sentencing judge, the judge described the offending relating to the first count in the following way in his sentencing remarks:
The victim woke when you were pulling down her pyjama pants and underpants. You rubbed the area between her bottom and her vagina for some time and she heard you licking your fingers between these acts. You then moved her hand up and down on your penis. You later apologised to the victim saying that you thought that she was in fact her mum. You told her not to tell anyone or you would get into trouble and go to gaol.
The judge also said in his reasons for verdict that the complainant always slept in the appellant’s bed. The complainant in her evidence told the court that count 1 occurred on Father’s Day weekend, which is always the first Sunday in September. It was agreed that in 2001 Father’s Day was on 3 September.
The complainant was asked by the appellant whether there was anything he could do to make up for what he did. The complainant did not answer. The appellant then said he would take her to the Royal Adelaide Show, which he did.
After the Show, the complainant returned home on the bus. She did not tell her mother what had happened because she did not want the appellant to get into trouble.
The complainant’s mother recalls a particular occasion when the complainant was 8 or 9 years old, returning home from an access visit with an “excess” of toys and Show bags from the Royal Adelaide Show. The complainant’s mother told the court that the complainant did not seem upset that day.
Count 2
In relation to count 2 the complainant also slept in her father’s bed. The complainant said she was “pretty sure” it was the Friday night of the weekend this time. The complainant particularly recalled the day of the week “because it wasn’t time to go and I had to stay another night”.
The complainant told the court that she woke up again to her father pulling down her pyjama pants. This time he touched her “from the front way”, and was rubbing her vagina for an estimate of 10 or 15 minutes while she lay on her back.
The complainant said she was crying and moved further away from the appellant until he stopped. The complainant said nothing to him afterwards. The judge said in his reasons for verdict, summarising the evidence:
[22]I think at some point he did say he thought I was Mum again, but I can’t remember when that was.
The complainant got out of her bed and went into the lounge room for about half an hour. The appellant came out and asked her why she was there. She said (Reasons for Verdict):
[23]I think I told him I was bored and I couldn’t get back to sleep and he just told me to come back to bed so I did.
Nothing further occurred that night and the complainant said things were “as normal” the next day.
Count 3
The complainant said that count 3 was not “that long afterwards”, and occurred during her access weekend with the appellant. She told the court that she again slept in her father’s bed, but could not recall if it was the Friday or Saturday night. Again she was woken up by her father. She said the appellant was (Reasons for Verdict):
[27]… touching me near my hip area trying to get either my pants down or just in the front of them.
The complainant said the appellant did not succeed in getting her pants down. He did not touch her anywhere else because she rolled away from him towards the edge of the bed.
She remained awake in the bed until her father woke and got up. Neither of them said anything about what happened and she said her father behaved “just like nothing had ever happened”.
As with the other occasions, the complainant did not tell her mother what had happened when she arrived home because she was “too scared” and did not know “what really was happening”.
The sentencing considerations
As I have indicated, the victim in the first set of offending was 7 or 8 years of age and was the daughter of a woman with whom the appellant had a de facto relationship. The conduct occurred over a period of approximately 12 months. The judge concluded that the offending consisted of a course of conduct without having any regard to some uncharged acts.
The sentencing judge said in relation to both groups of offences:
The offending in relation to both matters has some similarities, particularly in relation to the offences committed whilst you had a young child in bed with you. In both cases you were in the position of a parent to these children. One of these children was your own natural child and the other was a step daughter. Your offending constituted a gross abuse of the trust reposed in a parent. The role of a parent is to nurture and protect children, not to use them for sexual gratification.
The sentencing judge then referred to the effects on the victims. He referred to the victim impact statement given by the appellant’s daughter relating to the second group of offences and also referred to the victim impact statement of his step-daughter relating to the first group of offences. Both victims were seriously affected by the offending.
When sentenced the appellant was 53 years of age. He told the forensic psychologist Dr White that he was physically and sexually abused when he was a child. The appellant had a good employment record. He was also supported by his wife.
There was a previous conviction in 1997 for two counts of indecent assault. The appellant was sentenced on that occasion in the Port Adelaide Magistrates Court and received a sentence of 3 months imprisonment which was suspended. The judge describes the timing of the most recent offending as follows:
Those offences [for which the suspended sentence was imposed] were committed according to the antecedent report in January 1996. In other words, around the same time as you committed the earlier of these two sets of offences at …. You committed the 2001 offences about four or five years later. Unfortunately, the suspended sentence you received in the Port Adelaide Magistrates Court did not deter you from the further conduct in 2001.
The judge was not impressed with the appellant’s statement that he only admitted the offences for which he was convicted in 1997 to get them out of the way. In other words he denied the conduct giving rise to the offences but pleaded guilty, on his version, solely for convenience. The judge clearly rejected that suggestion.
The judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). He said that the first group of offences would have attracted a sentence of 7 to 8 years imprisonment and the second set of offending, occurring after the conviction in the Port Adelaide Magistrates Court, should attract a higher sentence of 9 or 10 years. He decided that the sentences should be cumulative. He then imposed one sentence of 16 years imprisonment. He gave no discount because there was no plea or any expression of remorse. He declined to reduce the sentence on the grounds of totality. He then fixed a non-parole period of 10 years.
Arguments on appeal
Mr Kane for the appellant argued that the sentencing judge imposed a sentence which is manifestly excessive because he wrongly took into account R v D (1997) 69 SASR 413.
Mr Kane suggests that the sentence imposed in R v D, which sets out the sentencing standards for matters involving penetrative unlawful sexual intercourse, was wrongly applied to the appellant. He submits that R v D is distinguishable from the present case because there was no penetration and should not have been relied upon as an authority for sentencing the appellant. The sentencing judge said:
The sentencing standard for such offences was set in the case of R v D in 1997 and applies to offences committed both before and after that case.
I do not agree that the sentencing judge erroneously referred to R v D. Straight after referring to R v D the sentencing judge went on to indicate that if there had been penetrative sexual abuse the sentence imposed would have been higher. That is a proper reference to R v D in my view.
Mr Kane submitted that although the offending was serious it was at “the lower end of the scale for offending of that type”.
The Director of Public Prosecutions conceded that the sentence was towards the upper end of an appropriate range but argued that it was not manifestly excessive. He gave several reasons for this submission.
His first submission was that the appellant had already come before the court in 1997 for like offending against the sister of the complainant in the first group of offences. He was not being sentenced as a first time offender. The Director submitted that there was a real need for personal deterrence pursuant to s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA).
Second, the Director submitted that in each instance the appellant breached a position of trust. The first group of offences were committed against the daughter of the appellant’s partner at the time and the second group of offences was committed against the appellant’s daughter. The Director argued that this offending cannot be described at the lower range of seriousness.
The Director next contends that there was nothing that mitigated the offending or anything in the appellant’s personal circumstances that called for leniency. The Director emphasised the fact that eight separate occasions of sexual abuse were before the court for sentencing and considering the prior offending, there was no basis for leniency.
Consideration
I agree with the submissions made by the Director. This was serious offending against young, naive children who trusted the appellant. He abused that trust and as a consequence these victims have to deal with the effects of the abuse for the rest of their lives. It was not at the lower end of the scale for offending of this type.
The Director argued that there was no obvious error in the approach taken by the sentencing judge. I agree with that. In my view it cannot be said that the sentencing judge failed to take into account any relevant matters nor that he wrongly took into account any irrelevant matters. The only question is whether the sentence is manifestly excessive.
The fact that the appellant did not learn from the merciful sentence imposed in 1997 is significant in my view. Three young children all in a close relationship with the appellant have been abused by him to satisfy his prurient interests. The offending in all cases was manipulative and cunning and he warned the second complainant not to tell anyone or he would go to gaol.
The extent of the offending both as to its seriousness and extending over some years and the fact that there was little to be said by way of mitigation dictates a substantial penalty.
The sentencing judge of course had the advantage of seeing and hearing the appellant during his trial. The sentencing judge did not form a high opinion of the appellant. The judge said in his reasons for the verdicts:
[49]I cannot accept that a father would react in such an offhanded way when confronted with accusations of sexual abuse by his daughter. In cross examination, Mr A was extremely evasive, especially about the SMS message, and also about the subsequent conversation. At one point he completely denied that she sent him a SMS message at all. Later, he admitted she did, but he said he only had a vague memory of its contents.
[Footnote omitted]
[50]Mr A’s evidence about that was also inconsistent with what he told the police in the interview on 4 July 2010. …
[51]I am satisfied beyond reasonable doubt that Mr A was not telling the truth about both the SMS and the subsequent conversation. I reject his evidence whenever it conflicts with that of J. I am satisfied that her account was honest and reliable on these issues.
…
[102]I have already stated that I formed a very poor impression of the credibility and reliability of Mr A’s evidence about these events. In particular, I reject beyond reasonable doubt his evidence about the so-called bed-wetting episode for the reasons I have already expressed. I reject beyond reasonable doubt all of Mr A’s evidence wherever it conflicts with that of J. I am satisfied beyond reasonable doubt that his denials of J’s allegations are false.

The sentencing judge also had the benefit of viewing the police interview of the appellant. The judge said:
[56]I found Mr A’s presentation during the interview very unimpressive. He was evasive, self-righteous, and almost incoherent at times, and his answers to questions were often self-contradictory and illogical.
From these comments and his conduct generally it can be seen that the appellant has no feelings of remorse or contrition. He has maintained his innocence in trials before two judges and sought permission to appeal his convictions for offences against his daughter. He has given evidence in an attempt to exculpate himself and has been disbelieved.
Conclusion
I have come to the view in all the circumstances that it is very serious offending. It involves gross breaches of trust and persistent offending even after the merciful suspended sentence was imposed prior to the second group of offending. In my view this Court should not interfere in the head sentence imposed by the judge. Likewise I am of the view that the non-parole period is also appropriate. In my view neither the head sentence nor the non-parole period are outside the range of appropriate sentences for this serious offending.
It seems that the appellant has been unable to appreciate the significance of being placed in a position of trust and then abusing young children. He seems to have no comprehension of how his offending has affected his victims. I would therefore dismiss the appeal against sentence.
DAVID J: The sentence imposed was severe. However, after carefully considering the matter and the seriousness of the appellant’s behaviour, I am of the view that the sentence was not manifestly excessive. I agree with the reasons of Anderson J in coming to that conclusion. I would therefore dismiss the appeal against sentence.