R v B, R - [2019] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, R
[2019] SASCFC 86
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
18 July 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD
Application for permission to appeal by the Director of Public Prosecutions (DPP) against the sentence imposed on the respondent, RB, on two counts of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The relationships were with RB’s stepdaughter, JD, and one of his biological daughters, AB. The offending against JD occurred over a nine year period, from when JD was aged five to when she turned 15. The offending included many acts of digital penetration, as well as acts of cunnilingus and fellatio, and forcing JD to watch pornography.
The offending against AB occurred over a six year period from when AB was three until she turned eight or nine. The offending included RB squirting AB’s genital area with water whilst in the bath, and general touching of the genital area whilst engaged in play or under the covers when AB was in bed.
RB was sentenced to 10 years imprisonment for the offending against JD, which was reduced by 40% to six years imprisonment on account of RB’s early guilty plea. RB was sentenced to two years imprisonment for the offending against AB, which was again reduced by 40%, to one year, two months, one week and five days imprisonment. Those sentences were cumulative upon each other, and a non-parole period of five years, eight months and four days was set. The DPP appeals against the sentences for both offences on the grounds that they are manifestly inadequate.
Held per Kourakis CJ (Peek and Hughes JJ agreeing) allowing permission to appeal and allowing the appeal:
1. The offending against JD was so protracted, extensive and harmful that it demanded some explanation for imposing any less than a 12 year sentence of imprisonment.
2. The sentence of 10 years was not only manifestly inadequate, it undermined the standard set in R v D.
3. With respect to the offending against JD, a starting point of 13 years imprisonment should be imposed. Applying a 40 per cent reduction, but with some rounding off, the sentence is 7 years 9 months 3 weeks imprisonment.
4. The sentence against AB was manifestly inadequate. The imposition of such a short sentence without any explanation raises a question of principle.
5. The offending against AB warrants a sentence of 10 years imprisonment. Applying a 40 per cent reduction, the sentence is 6 years imprisonment.
6. Although there is little reason to impose concurrent sentences when offending of this kind is committed against different victims, as RB is now 71 years old, to impose cumulative sentences would be crushing.
7. The sentence for the offending against AB is to commence after RB has served four years imprisonment for his offending against JD. The degree of concurrency primary reflects considerations of totality, having regard to RB’s advanced age.
8. The total head sentence is to be 10 years.
9. The non-parole period is to be eight years.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Sentencing Act 2017 (SA) ss 11(4), 53(1), 54 , referred to.
R v D 69 SASR 413; R v Bonython-Wright (2013) 117 SASR 410; R v MJJ, R v CJN (2013) 117 SASR 81, discussed.
Everett v The Queen (1994) 181 CLR 295.; House v King (1936) 55 CLR 499; R v Harkin (2011) 109 SASR 334; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168, considered.

R v B, R
[2019] SASCFC 86
Court of Criminal Appeal: Kourakis CJ, Peek and Hughes JJ

KOURAKIS CJ: This is an application for permission to appeal brought by the Director of Public Prosecutions (DPP) against the sentences imposed on the respondent (RB) in the District Court on two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The first of the offences in time was committed against RB’s stepdaughter, JD. The second was committed against his daughter, AB.
RB was sentenced to six years imprisonment for the first offence and to a cumulative sentence of one year, two months, one week and five days for the second. A non-parole period of five years, eight months and four days was fixed. I would grant permission to appeal. I would allow the appeal and impose a sentence of seven years, nine months and three weeks for the first offence. For the second offence, I would impose a sentence of six years to commence after RB has served four years of the sentence imposed for the first offence. I would fix a non‑parole period of eight years. My reasons follow.
The offences
The offending against JD occurred over a nine year period between 1978 and 1987, from when JD was aged five to when she turned 15. The offending included many acts of digital penetration, often committed in the course of what should have been innocent play between a parent and a child, and acts of cunnilingus and fellatio, the latter of which was committed in the matrimonial bedroom. RB also forced JD to watch pornography at his work place after which he digitally penetrated her. Many similar acts were committed at the office of the Ardrossan Community Club where RB was a member. On one occasion of digital penetration, when JD was aged between 10 and 12, JD complained of pain. RB chided her by saying he would have to report the pain to his wife or that JD would be taken to a doctor. That prospect understandably terrified JD and she did not complain again. On another occasion RB threatened to show JD’s mother naked photos of her if she did not comply with his requests.
The offending came to an end when JD left the family home to attend a boarding school in Adelaide. JD disclosed the offending in 1997 after receiving counselling.
The offending against AB occurred over a six year period between 1982 and late 1987 or early 1988, from when AB was three until she turned eight or nine. It follows that there was a period of time in which RB was offending against both daughters. The offending against AB commenced again with a corruption of ordinary parental care and involved squirting AB’s genitals with a water pistol and spent plastic shampoo bottles. RB touched AB around her genital area whilst engaging in play or under the covers when she was in bed. That offending only came to an end when RB attempted to touch AB and she told him to stop. RB did not again attempt to sexually assault his daughter. The offending against AB only came to light as a result of JD’s disclosure.
RB’S personal circumstances
RB was born on 13 October 1947. He was 71 years of age at the time of sentencing and had no other relevant offending history. He completed year 12 and studied mechanical engineering at the University of Tasmania.
In 1972, RB commenced employment as a mining cadet with BHP and worked for that firm over his entire working life before retiring in about 2005. His work took him to various regional centres in this State and elsewhere.
In 1976, RB met his wife, who had recently divorced. Her daughter, JD, was four years of age. They married and together had two daughters, SB, who was born in 1977, and AB, who was born in 1979.
In the regional town in which he eventually settled, RB served on the hospital board for many years, including as chairman. He was the treasurer of the town’s Community Club and a member of several other clubs. He fundraised for a charity. The many references received by the sentencing Judge showed that he was a highly valued and respected member of the Ardrossan community. The mitigating effect of that good character is subject to s 11(4) of the Sentencing Act 2017 (SA) (the Sentencing Act), but the Judge found that RB’s good character had not assisted the commission of the offences.
RB suffers from several medical conditions which are managed effectively by his general practitioner and specialists to whom he was referred. The most pertinent is stress induced cardiomyopathy, which is stable.
After the offending against JD and AB was exposed, RB paid for their counselling and psychiatric treatment through his wife. He wrote letters of apologies to JD and AB and an explanatory letter to his other daughter SB.
RB received psychological treatment from Dr Jenkins for his sexual deviancy over a period of about two years from 1997, but no report from him was provided to the Judge. RB also received treatment from a clinical psychologist, Ms Taylor, from March to October 2018 for anxiety precipitated by his arrest. A report from Ms Taylor was received by the Judge. Ms Taylor expressed the opinion that RB was unlikely to reoffend.
A report of the forensic psychologist, Dr Lim, was also received by the Judge. Dr Lim diagnosed RB as suffering a Paedophilic Disorder, but also considered that there was a low risk that he would reoffend.
Statements made by RB recorded in the reports of both Ms Taylor and Dr Lim showed that at the time of the offending he had little appreciation of how morally and criminally reprehensible his conduct was. Dr Lim reported:
[RB] made full and frank admissions with regards to the two victims at the current assessment. He reflected that at the time, when he first started abusing his stepdaughter, he had justified his actions as “a loving sort of game and environment that I was giving her. It felt to me very much like a love relationship which progressed into a love affair”. Moreover, he stated that he did not “understand back then, that my actions constituted the psychological abuse of a child”. In relation to his sexual abuse of his biological daughter, [RB] said, “It was like another relationship that I entered into, just as my [sexual] relationship with [my stepdaughter] was ending”.
[RB] reported it was after he started seeing Mr Alan Jenkins for psychological therapy, that he developed insight and the realisation that his actions were “very sick”. He remarked, “In hindsight, I was weak. I didn’t say no to myself when I should have. I was the adult and their parent… I feel wretched whenever I think about what I did to them now and the psychological consequences this has had on them…I know [JD] has had difficulties developing sexual relationships with men, and [AB] is still so traumatised by what I did that she had been suicidal and has had to see a psychologist. It makes me feel wretched that I’m the cause of their suffering”.
Ms Taylor reported:
[RB] struggles to register why it was so bad. After the allegations first came to light, [RB]’s first born biological daughter sent him letters, and articles to make him understand how damaging his behaviour was.
During this current legal process and after reading the impact statements, [RB] is registering that there have been significant negative long term impacts for his daughter and step daughter, but he does not comprehend why. It doesn’t make sense to him given all the good things in their family life.
[RB] did know at the time of the offences that his behaviour was not socially sanctioned. He understood at the time, that some activities might cross a legal barrier, and he sought to avoid those. But he did not understand there would be a mental effect for the girls.
At the time [RB] thought he was giving them pleasure, and does not understand why his behaviour caused such serious consequences for his stepdaughter and daughter. He does not fully believe their lack of agency, and because he believes there was mutuality of interest, he does not really understand why they are so upset by it all these years later. He believes his step daughter is being vindictive because of the loss of their relationship.
Impact on JD and AB
JD was 46 years of age at the time of sentencing.
In her victim impact statement, JD said that as far back as she could remember she has ‘lived with feeling confused, unimportant and extremely alone’ and also felt afraid, humiliated and ashamed. JD explained that she was denied the right ‘to grow up feeling safe, confident, happy and loved’. JD disclosed that she suffers ongoing anxiety and depression.
JD felt aggrieved that at the same time RB was offending against and harming her he was projecting a false image to the rest of the community and his peers, receiving their respect and living a fulfilling and rewarding life. To JD, on the other hand, RB was a ‘monster’.
AB was aged 39 at the time of sentencing. She did not give a victim impact statement, but wrote a letter informing the Judge that she has had no contact with RB since her late teenage years but she had no desire to see RB imprisoned ‘[a]s long as other children are safe’.
The sentence
The sentencing Judge gave no indication as to how she arrived at the length of the terms of imprisonment she imposed. The sentences were imposed cumulatively.
For the offending against JD, the Judge adopted a starting point of 10 years, reducing it by 40 per cent to six years to give RB the benefit of his early guilty plea. The starting point adopted by the Judge for the offending against AB was two years, which the Judge reduced by reason of RB’s early guilty plea to one year, two months, one week and five days.
By operation of s 53(1)(c) of the Sentencing Act, RB was a serious repeat offender. Section 54 of the Sentencing Act therefore mandated a four fifths non‑parole period unless the defendant’s personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the community, and personal and general deterrence. RB gave evidence on oath about his personal circumstances, but the Judge was not satisfied that they were exceptional. The Judge was plainly right to so find. The Judge therefore fixed a non-parole period of five years, eight months and four days.
Permission to appeal
Leave to appeal should only be granted to the prosecution in ‘rare and exceptional’ cases.[1]
[1] Everett v The Queen (1994) 181 CLR 295 at 299-300.
Permission may be granted to establish or maintain adequate sentencing standards and to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[2] The establishment of a matter of principle includes what is necessary to avoid manifest inadequacy or inconsistency in sentencing standards.[3]
[2] R v Harkin (2011) 109 SASR 334 at [19]; R v Osenkowski (1982) 30 SASR 212 at 212-213; R v Nemer (2003) 87 SASR 168 at [22]-[24]; House v King (1936) 55 CLR 499 at 504-505.
[3] Everett v The Queen (1994) 181 CLR 295 at 300.
Sentencing standard for Maintaining an Unlawful Sexual Relationship
In R v D, Doyle CJ identified the insidious effects on the community of offending of this kind as follows:[4]
… They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this.
…
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.
[4] (1997) 69 SASR 413 at 423-4.
In R v MJJ, R v CJN, I referred to the broad community impact of offending of this nature:[5]
… There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.
[5] (2013) 117 SASR 81 at [84].
In R v D,[6] the sentencing standard for multiple instances of sexual offending committed on a child under 12 years, over time, by a person in a position of trust, was set at a starting point of 12 years imprisonment.
[6] (1997) 69 SASR 413.
Of course, that standard is not prescriptive. Moderate variation around the standard to reflect the particular circumstances of a case is not a departure from it. In an appropriate case, a departure from it may even be warranted.
However, in R v Bonython-Wright,[7] I explained that if there is a departure from the standard in R v D, then an explanation must be given.
[7] (2013) 117 SASR 410 at 429 (Blue and Stanley JJ agreeing).
Discussion
I commence with the sentence for the offending against JD. It is at the higher end of seriousness for offending of this kind, because of the length of time over which it persisted and the multiplicity and nature of the individual acts. The offending was a serious corruption of what should have been a caring and supportive relationship. Instead, RB maintained a relationship with JD in which she was sexually degraded and humiliated at a critical time in her own physical sexual development in order to satisfy his sexual interest. RB exploited the facade of his parental relationship and community position to commit the offending. It is not at all surprising that the offending has had the effect described by JD in her victim impact statement.
The Judge did not give, and there is no apparent reason for imposing, any less than the 12 year benchmark. I accept that a sentence of 10 years, in a less serious case than this, could be said to be within the range of penalty sanctioned by this Court in R v D. However, the offending against JD was so protracted, extensive and harmful that it demanded some explanation for imposing any less than a 12 year sentence of imprisonment. Indeed, there was a good case for imposing a longer sentence. The starting point of 10 years was not only manifestly inadequate, it undermined the standard set in R v D. I would give permission to appeal to ensure the maintenance of the standard. I would have commenced with a starting point of 13 years imprisonment before applying the 40 per cent reduction.
The offending against AB did not progress to the more serious penetrative assaults of JD. However, there is no reason to think that RB would not have gone further if for, whatever reason, AB had not rebuffed his approaches. Again, the conduct was a corruption of what ought to have been the proper relationship with his daughter, which went over many years. Moreover, the overlap between the offending against JD and AB shows a sinister disregard and lack of empathy for his children and their welfare. For the offending against AB, the sentence of just over one year, even though made wholly cumulative, is manifestly inadequate. The imposition of such a short sentence without any explanation also raises a question of principle. I would have commenced with a starting point of 10 years.

There is little reason to impose concurrent sentences when offending of this kind is committed against different victims even though the criminogenic causes in the offender are the same. However, RB is now 71 years of age. To impose cumulative sentences would be crushing.
The approach which best guards against error when sentencing for multiple offences in a case such as this is to fix sentences within the accepted range before adjusting the end result for totality by determining the appropriate degree of concurrency.
Applying the 40 per cent reduction, but with some rounding off, I would impose a sentence for the offending against JD of seven years, nine months and three weeks. Applying the 40 per cent reduction for the offending against AB, I would impose a sentence of six years.
I would order that the sentence for the offending against AB commence after RB has served four years of the sentence imposed on the first count. The degree of concurrency primarily reflects considerations of totality, having regard to RB’s advanced age. Therefore, I would impose a total head sentence for all offending of imprisonment for a period of 10 years. I would impose a non-parole period of eight years. Both the head sentence and non-parole period are to commence from 11 December 2018.
PEEK J: I gratefully adopt the summary of the facts and circumstances formulated by the Chief Justice. I will be brief.
If the charges had been restricted to the offences against JD, and the sentence was as imposed by the District Court Judge, I would not have been prepared to grant permission to appeal. I agree that the starting point of 13 years proposed by the Chief Justice is preferable to the starting point of 10 years adopted by the District Court Judge, but I do not consider that that would be sufficient to warrant a grant of permission to the prosecution having regard to the accepted precepts concerning prosecution appeals.[8]
[8] I have referred to these in cases such as: R v Jones (2010) 108 SASR 479; R v R,AW (2012) 113 SASR 179; R v McPartland and Polkinghorne (2014) 120 SASR 69; R v Jackson [2014] SASCFC 101; R v Brougham (2015) 122 SASR 546; R v Fusco [2017] SASCFC 47.
However, as to the sentence concerning AB, I consider that this is so low as to constitute radical error of principle and to require a grant of permission to appeal in accordance with the authorities.
In circumstances where the disposition of the offences against both JD and AB are inextricably linked due to considerations including partial concurrency, totality, the serious repeat offender legislation and the appropriate non-parole period, I consider that the granting of permission in relation to the AB offences both justifies and necessitates a grant of permission in relation to the JD offences as well.
Having passed through the permission process, I agree with the sentence and orders proposed by the Chief Justice and have nothing further to add.
HUGHES J: I would allow the appeal. I agree with the reasons of the Chief Justice and the orders he proposes.