R v B, RP

[2019] SASCFC 9

Supreme Court of South Australia

(Court of Criminal Appeal)

R v B, RP

[2019] SASCFC 9

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bampton, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

4 February 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

This is an appeal against the sentence imposed for two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).

On 1 December 2017, following a trial by jury the appellant was convicted of maintaining an unlawful sexual relationship with Child A, in 2004 or 2005.  On 22 January 2018, following a trial by jury the appellant was convicted of a further offence of maintaining an unlawful sexual relationship with Child B, between 2000 and 2008.

The sentencing Judge imposed a notional head sentence of imprisonment for 12 years for each offence, coming to a cumulative notional head sentence of 24 years’ imprisonment.  Applying the principle of totality, her Honour reduced this and fixed a sentence of imprisonment for 18 years, with a non-parole period of 12 years.

The appellant appealed against this sentence on the ground that “[t]he head sentence and non-parole period are manifestly excessive”.

Held per David AJ (Bampton and Parker JJ agreeing), dismissing the appeal:

1. The sentencing Judge’s starting point of 12 years’ imprisonment for each of the two sets of offending is not inappropriate (at [40]).

2. The sentencing Judge complied with the obligation under s 50(11) of the Criminal Law Consolidation Act, by sentencing the appellant on the evidentiary basis most favourable to the appellant (at [41]-[42]).

3. The sentencing Judge did not err in making both sentences cumulative, given that these were separate offences against two children, each separately groomed and abused whilst the appellant was in a position of trust.  Any aspect of the cumulation of sentences amounting to a crushing period was addressed by the sentencing Judge applying the totality principle to reduce the notional cumulative head sentence (at [43]).

Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v D (1997) 69 SASR 413, applied.

R v B, RP
[2019] SASCFC 9

Court of Criminal Appeal:       Bampton and Parker JJ, David AJ

1. BAMPTON J:      I agree with the reasons of David AJ.  I would dismiss the appeal.

2. PARKER J:          I would dismiss the appeal for the reasons given by David AJ.

3. DAVID AJ:            This is an appeal against a sentence imposed for two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).

   Background

4. On 1 December 2017, following a trial by jury the appellant was convicted of the offence of maintaining an unlawful sexual relationship with Child A, in 2004 or 2005.

5. On 22 January 2018, following a trial by jury the appellant was convicted of a further offence of maintaining an unlawful sexual relationship with Child B, between 2000 and 2008.

6. It is to be noted that the sentencing Judge was not the trial Judge in relation to the case of Child B.  For the purposes of sentencing, she read the evidence that Child B gave at the trial and the sentencing Judge indicated in her sentencing remarks that she would sentence the appellant on the basis of the evidence of Child B. 

   Offending against Child A

7. Child A came to live with the appellant, his partner and his children in Munno Para when she was about five or six years old, for a period of approximately five months.  It is not known why she came to live with the appellant.

8. During these approximately five months, the appellant sexually assaulted Child A on an almost daily basis by putting his fingers inside her vagina.  This occurred almost every evening in the appellant’s bedroom when Child A was lying between the appellant and his partner.  On some occasions, Child A fell asleep while the appellant was engaging in this behaviour.  The appellant sometimes carried Child A back to her own bed afterwards, which was also in the appellant’s bedroom.

9. There were also multiple occasions in which the appellant digitally penetrated Child A’s vagina under the cover of a blanket, while she sat on his lap in the lounge room.  This occurred while his family were in the same room watching TV.

10. On one other occasion, the appellant washed Child A’s vagina with soap while she was in the bath, such that it started to sting.  This was not part of the subject of the charge, but was nevertheless found to be proved.

11. Child A is now a young adult.  She explained in her victim impact statement that because of the actions of the appellant she struggled with depression and anxiety throughout her teenage years.  For many years she blamed herself for the appellant’s conduct.  The appellant severely breached her trust, and caused her to suffer feelings of insecurity, embarrassment and disgust.  She has also often felt suicidal and alone.  She explained that at the age of 12 years old she was put on medication for nightmare terrors, because she would wake up screaming.  During her teenage years, she suffered very bad anger issues and deeply wished to feel like a normal teenage girl.  She said that the five months during which she lived with the appellant felt like forever.

    Offending against Child B

12. When Child B was very young, her parents separated.  Following that separation, when she stayed with her father, she would visit the appellant’s home in Elizabeth Grove to both use the pool and see his three children.  She was younger than the appellant’s children.  On one occasion, when Child B was about five years old, the appellant sexually assaulted her the morning after she stayed overnight at his home.  The appellant asked Child B to come to the kitchen and said that he would make her breakfast.  The appellant told her to face the wall and stand still, which she did.  The appellant proceeded to rub Child B’s chest with his palm over the top of her pyjama top.  On this occasion, and almost every occasion of offending against Child B that followed, the appellant told her not to tell anyone what had happened and that this was their secret.

13. In November 2002, shortly after Child B turned seven, the appellant moved to live at Munno Para.  Both on weekends and during school holidays, Child B would regularly visit to use the pool and see the appellant’s children.  On most, but not all, of these visits, Child B be would sleep at the appellant’s house overnight, in the appellant’s daughter’s room.  On the majority of occasions where Child B slept overnight at this house, the appellant sexually abused her.

14. All of the appellant’s offending against Child B at Munno Para occurred in a similar fashion to the occasion at Elizabeth Grove, with the appellant instructing Child B to face the wall and then proceeding to touch her.  The nature of this touching escalated over time, eventually to digital penetration.  The appellant’s offending at Munno Para began with rubbing Child B’s chest with his hand over the top of her pyjamas, which occurred on more than five but less than 10 times.  The appellant then progressed over time to moving his hand underneath Child B’s pyjama top, which occurred on more than five but less than 10 times.  When Child B was between seven and 10 years old, the appellant’s offending escalated to include touching her vaginal area over her pyjamas, which occurred on more than five but less than 10 occasions.  The appellant later touched her vaginal area under her pyjamas but over her underwear on less than five occasions, before escalating further to touching her vagina under her underwear.  When Child B was 11 or 12,[1] the appellant digitally penetrated her for a period of a few minutes, on more than one but less than five occasions.  The appellant’s offending against Child B concluded when she was 12 years old and in year 7.  Child B continued visiting for a short time after, before moving with her family to a different area.

    [1]    The appellant submits that Child B’s evidence was inconsistent as to whether she was nine years old or alternatively 11 or 12 when digital penetration first occurred.  The sentencing Judge proceeded on the basis that Child B was 11 or 12.

15. Child B is also now a young adult.  She explained in her victim impact statement that the appellant’s abuse affected all aspects of her life.  She has difficulty being around men, especially where they physically resemble the appellant.  She does not like being touched by other people, especially on her back where she cannot see.  She felt that she has been emotionally tormented over the past 17 years.  She remarked that she was previously a happy, extroverted and outgoing child, which has changed as a result of the appellant’s abuse.  She went on to say that she no longer wants to feel like a victim.  She now sees herself as a survivor and is proud of that.

    Personal circumstances

16. At the time he was sentenced in February 2018, the appellant was 58 years old.  He was born in Victoria, and moved to Adelaide at a young age — living at Wallaroo between the ages of five and 25.  The appellant’s parents separated when he was 14.  He completed year 12 at Kadina High School and went on to work with his father as a decorator, and later also worked as a plumber and a groundsman.  The appellant has no relevant prior convictions.

17. The appellant met his partner when he was aged 23.  He has three children who are now in their late 20s and early 30s.

18. A medical report dated 24 November 2017 prepared by Dr Dan Pronk, Medical Director of the SA Prison Health Services, was provided to the Court.  The appellant’s cardiac health is poor.  He suffered heart attacks in February 2015 and November 2017, in addition to a cardiac vasospasm in December 2017 while in custody.  The appellant will likely continue to suffer cardiac issues while in custody.  Also of note is that the appellant was diagnosed with depression in 2012 and attempted suicide in March 2015.  In his report, Dr Pronk expressed the view that the appellant will be able to receive community equivalent medical care for his conditions whilst incarcerated.

    Sentencing remarks

19. After outlining the facts of the offending and the appellant’s personal circumstances, the Judge turned to sentence.  Her Honour noted that the maximum penalty for each of the two offences is imprisonment for life, and that she was required by legislation to give proper effect to the need to protect children by ensuring that paramount consideration is given to the need for personal and general deterrence.

20. Although the appellant pleaded not guilty to the offending, her Honour noted that he would not receive a heavier penalty for that.  However, the appellant had not expressed any remorse or contrition for the offending, nor had he demonstrated any insight into the effect of his offending on Child A and Child B.  Her Honour therefore considered his prospect of rehabilitation to be poor, and found that there was a strong need for personal deterrence in the sentence imposed.

21. Her Honour remarked that the appellant’s behaviour towards Child A and Child B had been abhorrent.  Both victims were very young and vulnerable when the offending began, and many years later have continued to feel its effects.

22. Her Honour noted that in 1997 the Supreme Court indicated a starting point — which is now enshrined in legislation — of 12 years’ imprisonment for offending involving unlawful sexual intercourse with children under 12 years old, where there are multiple offences committed over a period of time.[2]

    [2]    Although it was not expressly referenced by name, it is clear that her Honour was referring to the decision of the Court of Criminal Appeal in R v D (1997) 69 SASR 413.

23. In respect of the offending against Child A, her Honour found no reason to depart from that notional starting point — noting that a period of five months is a significant period of time in the life of a five or six-year-old child, and that the penetration of her occurred frequently.  Her Honour therefore started with a notional sentence of 12 years’ imprisonment for the offending against Child A.[3]

    [3]    In respect of the offending against Child A, her Honour in fact remarked that she starts with a notional sentence of “12 months imprisonment”, as opposed to 12 years imprisonment.  However, it is clear from context that this was a typographical error, and that her Honour intended to start with a notional sentence of 12 years imprisonment.  Nothing turns on this minor typographical error.

24. In respect of the offending against Child B, her Honour again could see no reason to depart from the notional starting point of 12 years.  Her Honour noted that, while in a position of trust, authority and influence, the appellant groomed Child B over many years, both commencing and concluding while she was a young child.  In her Honour’s view, the appellant’s grooming of Child B was deliberate and focused on escalating to the end point of penetration.  Her Honour therefore started with a notional head sentence of 12 years’ imprisonment for the offending against Child B.

25. Her Honour held that the sentences should be cumulative, on the basis that the offending against each victim represented two separate incursions into criminal conduct.  This brought her Honour to a notional head sentence of 24 years’ imprisonment.

26. Her Honour reviewed this notional head sentence to ensure proportionality to the overall criminality and circumstances of the appellant’s offending, and the appellant’s own circumstances.  In her Honour’s view, the aggregate sentence of 24 years’ imprisonment was too much in all of the circumstances.  Applying the principle of totality, her Honour reduced that and fixed a sentence of 18 years’ imprisonment.

27. Her Honour did not consider that there was any basis to set a lower than usual non-parole period, and therefore fixed a non-parole period of 12 years.

    Ground of appeal

28. The sole ground of appeal advanced by the appellant is that: “[t]he head sentence and non-parole period are manifestly excessive”.

29. On 31 July 2018, a Judge of this Court granted permission to appeal on this ground.

    The appellant’s submissions

30. Mr Redford, counsel for the appellant, in his thoughtful and thorough submissions, indicated that although there was only one ground of appeal, namely that the head sentence and non-parole period are manifestly excessive, nevertheless there are several aspects to his argument.

31. He firstly argues that the sentencing Judge erred in making no distinction between the two complainants in setting the same notional head sentence in relation to both.  He points out in argument the differences between the two sets of offending, namely that the offending against Child A is of a younger person over a shorter period of time but done with greater frequency whereas the offending against Child B was for a longer period of time in which there were less frequent acts of a different nature until the complainant was at least 11 or 12 years of age.  The offending against Child A was clearly more serious because of the age of the complainant and the fact that the behaviour almost always amounted to penetration. 

32. Mr Redford argues that therefore to set notional starting points of 12 years consistent with authority for both is an error. 

33. Mr Redford also argues that the sentencing Judge has not adhered to s 50(11) of the CLCA as amended. That section reads as follows:

    (11)A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).

34. Mr Redford argues that within the evidence at trial of the appellant in relation to Child B there were inconsistencies as to whether penetration occurred when she was nine years of age or at a later time when she was aged 11 or 12. 

35. The third basis of Mr Redford’s argument in support of the appeal is that there should have been some form of concurrency in the sentencing process between the two complainants, rather than a strict cumulation of notional sentences.

    The respondent’s submissions

36. Mr Press SC, counsel for the respondent, argues that all three submissions are misconceived.  He argues that just because the two sets of offending are different in time and nature does not preclude the sentencing Judge from imposing the same notional starting point when sentencing. 

37. He further argues that whatever inconsistency there was in the evidence of Child B about the starting point of digital penetration, the Judge’s sentencing remarks indicated that she resolved that inconsistency in favour of the appellant. He argues that this satisfies the obligations created by s 50(11) of the CLCA.

38. Finally, he argues that any question of concurrency as opposed to cumulation of sentences is a discretionary matter for the sentencing Judge and, in this case, that discretion was properly exercised. 

    Consideration

39. It is clear that the two sets of offending have a number of fundamental differences.  They are clearly set out in the recitation of facts. 

40. It would appear that the thrust of Mr Redford’s argument is that the offending against Child B was less serious than that against Child A and warranted a lesser sentence.  To compare the seriousness of both sets of offending, which are both heinous and considered, amounts to an almost metaphysical exercise.   However, if there is a difference in gravity, nevertheless her Honour’s starting point of 12 years for each is not inappropriate. 

41. In her sentencing remarks, when dealing with the behaviour against Child B, the sentencing Judge said the following:

    I turn to the circumstances of your offending in relation to child B.  I have read the evidence that she gave at trial.  It has not been suggested that I sentence you on the basis other than in accordance with that evidence and I do so.

    When she was very young her parents separated.  During the time that she stayed with her father after that separation she would visit your home at Elizabeth Grove, mainly because you had a pool and to see your children.  She was younger than your three children.  There was an occasion when she stayed overnight that you sexually assaulted her the next morning.  She was about five years of age.  You said that you would make her breakfast and asked her to come to the kitchen.  You told her to face the wall and stand still, which she did.  You proceeded to put your hand on top of her pyjama top and rub all over her chest with your palm.  You said to her 'Don't tell anyone, this is yours and my secret'.  Indeed, those words were repeated to her almost every occasion when you offended against her until she was 12 years old.

    In November 2002 you moved to live at Munno Para.  Child B had just turned seven.  She visited there because you had a pool and she wanted to see your children.  Most of the time she slept overnight.  That occurred on weekends as well as during school holidays.  She visited most often during summer and slept in your daughter's room.  Your offending occurred on those occasions when she slept over, not on those occasions when she just visited for the day.  Your offending did not occur on every sleepover but it occurred more often than not.

    At the start the nature of your offending behaviour was similar to what happened on the occasion at Elizabeth Grove.  There were times when you were making breakfast with nobody else in the kitchen.  You asked her to come over to you and told her to face the wall, which she did.  In fact, all of your offending occurred in that same scenario.

    At the beginning you rubbed your hand over her chest, over her pyjamas.  There were over five but less than 10 times when that happened.

    Then your offending progressed to you putting your hand underneath her top by going underneath the neck of her top.  You would put your whole hand under her pyjama top and your hand would move around for a few minutes.  That happened more than five but less than 10 times.

    When she was somewhere between seven and 10 years old your behaviour escalated to include your touching her vagina area over her pyjamas.  That happened more than five but less than 10 times.

    You then started to touch her vaginal area under her pyjamas but over her knickers.  She thought that happened less than five times and then you began touching her vagina under her knickers and therefore touching her skin.

    When she was about 11 or 12 you digitally penetrated her.  You put at least one of your fingers in her vagina when she was facing the wall.  You penetrated her for a few minutes.  She believed that happened more than once but less than five times.

    Your behaviour stopped by the time she was 12 years old and in year 7.  She visited for a short time after that and then moved with her family to a different area.

    (Emphasis added)

1. As can be seen, whatever inconsistency there may have been in Child B’s evidence about when digital penetration started, the sentencing Judge sentenced on the basis most favourable to the appellant. In doing so, the sentencing Judge complied with the obligation under s 50(11) of the CLCA.

2. I am also of the view that the Judge did not err in making both sentences cumulative.  These were clearly separate offences against two children, each of whom were separately groomed and abused whilst the appellant was in a position of trust.  There was no basis for concurrency and any aspect of the cumulation of sentences amounting to a crushing period was addressed by the sentencing Judge when applying the totality principle to reduce the notional cumulative head sentence. 

   Conclusion

3. I would dismiss the appeal.