R v B, DS - [2010] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, DS
[2010] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
16 November 2010
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant pleaded guilty to indecent assault, unlawful sexual intercourse with a person under the age of 12 and rape – sentencing Judge imposed 15 years’ imprisonment and fixed non-parole period of nine years – sentencing Judge made a reduction for totality – appellant 69 years of age at time of sentencing – whether sentence manifestly excessive – whether sentencing Judge erred in failing to reduce sentence for each individual offence.
HELD: Appeal allowed for limited purpose of directing that sentence of 15 years’ imprisonment constitutes single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and that a non-parole period of nine years is fixed in relation to that head sentence – reduction for totality ought to have been made in respect of each individual sentence – sentence was within appropriate range – sentence not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Power (2001) 214 LSJS 58; R v Hunter (1984) 36 SASR 101; Gulyas v Western Australia (2007) 178 A Crim R 539; R v Liddy (No 2) (2002) 84 SASR 231; R v Ellis [2010] SASC 118, considered.

R v B, DS
[2010] SASCFC 55
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: The appellant pleaded guilty to charges of indecent assault, unlawful sexual intercourse with a person under the age of 12 and rape. The sentencing Judge sentenced the appellant to 15 years’ imprisonment and imposed a non-parole period of nine years. The appellant now appeals against the sentence on the basis that it is manifestly excessive.
All three offences were committed against the same complainant, who was the appellant’s step-daughter at the time. In 1980 the appellant formed a relationship with the complainant’s mother (“B”). He began to reside with B and her four daughters at their family home in Mount Gambier in 1981.
The appellant committed the indecent assault and unlawful sexual intercourse offences in 1982. The complainant was approximately 10 or 11 years old at the time of these offences. Both acts occurred within the family home.
The unlawful sexual intercourse charge occurred one evening when B had left the home for the purposes of attending a Weight Watchers meeting. The appellant had been drinking at a hotel and returned to the family home in an intoxicated state. Taking advantage of B’s absence, he forced the complainant to the floor, dragged her along the carpet, and removed her pyjama pants and underwear. He touched her on the vagina for a period of approximately ten minutes before attempting to penetrate her vagina with his penis. He unsuccessfully attempted to penetrate the complainant several times and left her on the floor twice in order to gather different lubricants. He eventually fully penetrated the complainant’s vagina. The complainant unsuccessfully attempted to escape throughout this episode. She struggled against the appellant, attempted to pull away and move backwards. At times he held her down with her hands above her head. When he attempted penetration and eventually succeeded she was unable to move as he was on-top of her. When the complainant experienced pain she started whimpering, but this did not cause the appellant to stop. The incident lasted approximately 20 to 30 minutes in duration, coming to an end when the appellant looked at his watch, told the complainant to get dressed and said “Mum won’t be far away.”
The indecent assault offence occurred on a Saturday night when the family were at home. The appellant was again drinking alcohol on that evening. The complainant went to the toilet at around about her bedtime. The appellant followed her, forced his way into the toilet and pushed his hand inside the front of her jeans. She described this as her vagina being grabbed by the appellant.
Some time near this offence the victim was seen by a doctor and gave a statement to the police. The allegations made by her were denied by the appellant and no charges were laid.
The appellant committed the rape offence on 11 January 1986. The complainant was 14 years of age at this time. She had recently decided to discontinue her schooling and was working with the appellant to earn pocket money. At the completion of a working day the appellant offered to take the complainant for a driving lesson. He purchased a six pack of beer and they drove to a nearby pine forest. When they arrived the complainant drove around the forest for a period of time in order to practise driving. The appellant eventually propositioned the complainant about having sex with her. She refused. Thereafter the appellant took over the driving and, under the pretence that he was lost, parked on top of a sand hill. The complainant left the vehicle in order to go to the toilet. When she returned she was forced to the ground by the appellant. She attempted to escape and the appellant threatened that he would leave her there to die if she did not have sex with him. He made her remove her pants and underwear and then penetrated her vagina with his penis. This caused her to experience a large amount of pain and bleed. He also grabbed one of her breasts. The rape came to an end by the appellant withdrawing his penis and ejaculating on her. Upon returning home with the complainant, the appellant admitted to B that he had raped her daughter.
The complainant was seen by a doctor again after this incident. The doctor observed that she had injuries to her vagina, a bruised breast, bruised legs and a bite on her neck. Statements were taken by the police. The appellant did not make any admissions to the police and no charges were laid.
After this incident the complainant was placed in foster care and only returned to live with her mother and the appellant on two occasions, each for a short period of months.
In addition to these three offences there was a background of sexual acts perpetrated against the complainant. These acts did not form a basis for sentencing but were treated as relevant in so far as they provided an explanation of the background circumstances in which the offending occurred.
The present charges were laid after the complainant reported the appellant’s behaviour to the Mullighan enquiry.
At the time the appellant was sentenced he was 69 years of age. His antecedents tendered at sentencing did not contain any offences of a similar nature.
In sentencing the appellant the sentencing Judge made a reduction of 20 per cent on account of the pleas of guilty. This reduction was appropriate.
The appellant’s age and the fact that he has not offended since 1986 were relevant matters to take into account in his favour and it is apparent from the sentencing remarks that they were taken into account.
Referring to the appellant’s age, the sentencing Judge said:
I do take into account your current age and also your good behaviour from after the offences were committed in the 1980s until now. Consistent with the remarks of this court in The Queen v Liddy,[1] your age cannot subsume the other matters, including the nature of your offending and, in particular, your gross breach of trust against an innocent young girl and the violence you subjected her to.
[1] R v Liddy (No 2) (2002) 84 SASR 231.
In R v Ellis,[2] Sulan J commented on the relevance of the advanced age of the appellant in that case:[3]
Courts have often extended a degree of mercy in cases of advanced age because each year of the sentence represents a substantial proportion of the period of life which is left to an elderly offender.[4] Although the present case involves an elderly offender, there is the additional consideration, that the appellant is an offender who has escaped the consequences of his criminal conduct for decades before finally being brought before the Court. Had he been convicted of his crimes soon after committing them, the appellant would have spent a significant number of years in gaol in the prime of his adult life. Instead, he had the benefit of living what may arguably have been his best years as a free man. This benefit must reduce the force of the submission that the appellant will be spending a significant proportion, if not all, the latter years of his life in custody.
These remarks are applicable to the present case. The sentencing Judge was required to take the appellant’s age into account, but it was also necessary that he impose an adequate punishment for the crime committed.[5]
[2] [2010] SASC 118.
[3] [2010] SASC 118 at [83].
[4] Gulyas v Western Australia (2007) 178 A Crim R 539 at 547.
[5] R v Hunter (1984) 36 SASR 101 at 103.
The offences were particularly serious. The first offence took place when the complainant was only 10 or 11 years of age. She resisted to the extent that a child of that age can resist, but the appellant overcame her struggles. The incident lasted approximately 20 to 30 minutes.
The rape occurred at a deserted location. The appellant told the complainant that he would leave her there to die if she did not let him have sex with her. Despite this, she struggled against the appellant’s attack. When examined at the hospital shortly after the attack, the complainant had the injuries already detailed.
The indecent assault occurred when the complainant was attempting to use the toilet. The appellant forced his way into the toilet and sexually assaulted her.
Apart from the pleas of guilty, there were no mitigating factors. The fact that the appellant was an alcoholic at the time the offences were committed is not a matter which can be taken into account in his favour.
When, to the circumstances of the offences, is added the fact that the appellant was in a position of trust in relation to the complainant it is apparent that the sentence was within the appropriate range for offences of this nature. In my view, the sentence was not manifestly excessive.
However there is one aspect of the sentence which calls for consideration.
The learned sentencing Judge stated that he was imposing a head sentence for each offence and he reduced each sentence by 20 per cent. He directed that the sentences be served cumulatively. He then reduced the total sentence further having regard to the principle of totality.
In R v Power,[6] the sentencing Judge imposed individual sentences for a series of offences and directed that they all be served cumulatively. He then reduced the total sentence in recognition of the principle of totality. Martin J (Doyle CJ and Williams J concurring) said:[7]
The remarks of the sentencing judge create uncertainty as to the sentence eventually imposed. If individual sentences are imposed and expressed to be cumulative upon each other, the total period of accumulation cannot be reduced by deducting from the total a single period unconnected with any of the individual sentences. In order to reduce the accumulated period of the individual sentences, it was necessary for his Honour to reduce an individual or a number of individual sentences. In other words, if his Honour intended to impose an effective total of 12 years imprisonment, but not to impose a single sentence pursuant to s.18A, it was necessary for his Honour to impose individual sentences that added up to 12 years.
[6] (2001) 214 LSJS 58.
[7] (2001) 214 LSJS 58 at [14].
Although it is not altogether clear, it does appear from the terminology used by the sentencing Judge in the present case that he imposed three individual head sentences and made them cumulative upon each other before reducing each of them to take account of the guilty pleas.
This suggests that His Honour was not utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) in order to sentence the appellant to one penalty for the three offences and that, in accordance with R v Power, the reduction for totality should have been made in respect of each sentence.
It would be appropriate in these circumstances to allow the appeal for the limited purpose of directing that the sentence of imprisonment for 15 years is a single sentence pursuant to s 18A of the Act and that a non‑parole period of nine years be fixed in relation to that head sentence.
GRAY J: I would allow the appeal for the limited purpose proposed by Duggan J. I would otherwise dismiss the appeal. I agree with the orders proposed and with the reasons of Duggan J.
KELLY J: I agree with the orders proposed by Duggan J for the reasons he has given.