R v AWL

R v AWL
[2003] SASC 416
Court of Criminal Appeal: Prior, Debelle and Bleby JJ

PRIOR J Debelle J will give reasons in this matter.
DEBELLE J The appellant pleaded guilty to four counts of unlawful sexual intercourse with his daughter contrary to s 49(3) of the Criminal Law Consolidation Act 1935 and to one count of procuring an act of gross indecency contrary to s 58A of the Criminal Law Consolidation Act.
The appellant pleaded not guilty to one count of gross indecency contrary to s 58 of the Criminal Law Consolidation Act. He elected to be tried by a judge alone without a jury. He was convicted of that offence.
For these six offences, the judge sentenced the appellant to a term of imprisonment for 10 years with a non-parole period of six years.
The appellant appeals against the conviction for gross indecency and, by leave, against the sentence. I deal first with the appeal against the conviction for gross indecency.
Appeal against Conviction
The trial for the charge of gross indecency proceeded on what were essentially agreed facts. The issue was whether, in law, the appellant could properly be convicted of the offence.
The appellant was charged with committing an act of gross indecency in the presence of a child under the age of 16 years contrary to s 58 of the Criminal Law Consolidation Act. Section 58(1) provides:
“(1) any person who, in public or in private –
(a) commits any act of gross indecency with, or in the presence of, any person under the age of sixteen years ...
shall be guilty of an offence and liable for a first offence to be imprisoned for a term not exceeding three years and for any subsequent offence to be imprisoned for a term not exceeding five years.”
Subsection (2) provides that it is not a defence to a charge under this section if the act of indecency was committed with the consent of the person concerned.
It was common ground that the appellant had taken a photograph of himself naked with his erect penis placed on a pillow close to the head of the victim, a child under the age of 16 years who was asleep with her head resting on the pillow. The offence was detected when that photograph and other photographs were discovered in the possession of the appellant. The appellant admitted he had taken the photographs. There was no suggestion of any other indecent act. The appellant did not touch the sleeping child in any way.
The only issue at the trial was whether the appellant could be guilty of the offence given that the child was asleep at the time. The trial judge held that it was not necessary for the prosecution to prove that the child had a conscious observance or understanding of the act. It was, he said, sufficient if the act occurred in the presence of a child whether awake or asleep.
The appellant contends that he cannot be guilty of the offence as the child was asleep at the time of the offending.
It is apparent that Parliament intended s 58 to have a wide operation. It applies whether the act of gross indecency occurred in public or in private. The act of gross indecency may either be committed with or in the presence of any person under the age of 16 years. The expression “in the presence of” is not defined but it is plain that it is intended that the offence will be committed if a person under the age of 16 years is present: see the definitions of “presence” in the Macquarie Dictionary and in the Oxford English Dictionary. All that is necessary is for the child to be present. The expression “in the presence of” is to be contrasted with the preposition “with”, which is also used in s 58 and which is directed to a gross indecency involving a child or directed towards a child. Section 58 is to be contrasted with a like provision in the United Kingdom which makes it an offence to commit indecency with or towards young children: s 1 of the Indecency with Children Act 1960. That section requires that the child or children be aware of the gross indecency: R v Francis (1988) 88 Cr App R 127. The use of the preposition “with” in s 58(1) might have the operation identified in R v Francis. It might have a narrower denotation: Crampton v The Queen (2000) 206 CLR 161. The fact that s 58 also uses the expression “in the presence of” indicates that Parliament intended to cast the net very wide and include conduct not falling within the expression “with ... any person under the age of 16 years”. Parliament intended to ensure the protection of children by creating a provision which will operate in a wide variety of circumstances and will not necessarily require any cognition by the child of the fact that the gross indecency has occurred. So it will operate in a case where a very young child is present where doubts might exist as to whether the child comprehended either the act or that it was grossly indecent.
The section is expressed in wide terms to ensure the protection of children. Its purpose is to protect children from the harmful consequences of acts of gross indecency committed with, or directed towards them, as well as to prohibit sexual gratification derived from the fact of the presence of a child at the time of the commission of the act of gross indecency. The protection of children requires not only that they not see acts of gross indecency but also that they are not subjected to them or unknowingly involved in them so that later knowledge causes shame or affront. For these reasons, it is not an essential ingredient of the offence that the child saw the act or was aware of it. It is sufficient to constitute the offence if the child is present when the act of gross indecency occurred. The offence will be established even if the child is asleep. The plain fact in this case is that the act of gross indecency is the appellant photographing himself with his penis placed close to the face of the sleeping child. The gross indecency plainly occurred in the presence of the child. The appellant has used a sleeping child to gratify his own prurient interest.
In reaching this conclusion, I have had regard to the reasons of Bray CJ in The Queen v Johnson [1968] SASR 132 at 134 – 135. However, Bray CJ was not then considering the present legislation and the decision is to be distinguished.
For these reasons, I think the judge was correct in concluding that the appellant was guilty of the offence of committing a gross indecency in the presence of a child under the age of 16 years.
The Appeal against Sentence
I turn to the appeal against sentence.
The appellant’s offending was extremely grave. The four counts of unlawful sexual intercourse were representative offences. The appellant’s daughter was just 12 years old when the offending began. The acts of sexual intercourse comprised vaginal sex, fellatio and cunnilingus over a period of some 13 months. The appellant admitted some 25 to 30 acts of fellatio, rubbing his daughter’s vagina 25 to 30 times, and performing cunnilingus on at least three occasions. The appellant took photographs of some of this conduct.
The appellant made frank admissions to the police. He entered an early plea of guilty stating that he did not wish to subject his daughter to any further hurt.
The appellant is aged 38. He has no relevant prior convictions. He has been constantly employed. He has had a normal upbringing unblemished by violence, drugs or abuse of any description.
The appellant had been married. The appellant and his wife separated more than four years ago. His daughter is the eldest of three children of that marriage. At first his former wife had custody of the children with the appellant having access at weekends and on public holidays. Later, after his former wife had entered into a new relationship, she asked the appellant to care for the children on more occasions so that she could develop the new relationship. The appellant has not entered into any relationship with another woman. He had difficulty managing his employment at the same time as taking care of the children. On occasions, he took his children to work. There was a suggestion also of financial difficulty.
There is no clinical evidence to suggest that the appellant suffers from any psychotic illness. He sexually exploited his daughter to satisfy his sexual needs. However, the evidence indicates that he prefers to have his sexual needs satisfied with an adult woman rather than a child so that, notwithstanding that he has engaged in paedophilia, he is unlikely to re-offend, particularly if he undergoes psychotherapeutic treatment.
The appellant is very conscious of the harm he has done his daughter and the hurt he has caused in his family. He plainly regrets his offending and is extremely contrite.
The maximum penalty for each offence of unlawful sexual intercourse is seven years’ imprisonment. The judge ordered one penalty for all of the five offences against the appellant’s daughter. He convicted the appellant without penalty for the offence of gross indecency. The judge said that he would have ordered a head sentence of 12 years but, because of the appellant’s co-operation and contrition, he reduced that sentence to 10 years. He fixed a non-parole period of six years. Both sentences commenced on 15 March 2003 when the appellant was taken into custody.
In my view, the sentence, although severe, is well within the sentencing discretion, particularly when regard is had to the remarks of this Court in R v D (1997) 69 SASR 413. The court can only interfere if it is satisfied the sentence is manifestly excessive. The decision in R v D must not be read like a statute. The court in that case was careful when identifying an indicative sentence to refer to a sentence of “about twelve years” in the one case and “about ten years” in the other. Plainly, the starting point will depend upon the gravity of the offending as well as upon the other factors identified in that decision.
On one view, the appellant’s contrition and co-operation and his plea of guilty might have justified a more substantial reduction in the sentence. However, those factors must be balanced by the fact that this was an extremely serious course of offending, more serious than that which occurred in R v D. It represented a gross breach of trust. It called for a severe penalty. Furthermore, the judge exercised a degree of leniency in not sentencing the appellant on the count of gross indecency. For all of these reasons, I would dismiss the appeal against sentence.
PRIOR J I agree with Debelle J. The appeal should be dismissed.
BLEBY J I agree that the appeal against conviction should be dismissed and I have nothing to add to the reasons of Debelle J.
Not without some hesitation I agree that the appeal against sentence should also be dismissed. In my opinion it was a very severe sentence but in the end I am not persuaded that it is such as would justify interference by this Court.
The judge’s starting point, according to the standard mentioned in R v D (1997) 69 SASR 413, was high, but the victim in this case was only just twelve at the time that the offending commenced. For a person below the age of twelve, the standard mentioned in R v D would justify a higher starting point. The victim in this case was at all times prepubescent and, in those circumstances, the age of twelve is a somewhat arbitrary figure.
There were circumstances of aggravation in the taking of the photographs. This was serious offending over an extended period. The sentencing judge also took into account in determining the sentence that he was not imposing a sentence for the charge of gross indecency, the subject of the appeal against conviction.
I am also satisfied that there was justification for the perhaps conservative reduction for the appellant’s plea and his contrition, given the strength of the prosecution case against the defendant.
In the end I am persuaded that there is no justification for this Court to interfere and I would dismiss the appeal against sentence also.
PRIOR J The order of the court therefore is appeal dismissed.

[2003] SASC 416

10 December 2003