R v B, RWK - [2005] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, RWK
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
The appellant was convicted on three counts of unlawful sexual intercourse with a person of the age of twelve years - the trial Judge imposed a head sentence of seven years' imprisonment with a non-parole period of five years - on appeal - whether the sentence was appropriate in all of the circumstances - discussion of factors that will operate to reduce sentence - discussion of the principle of totality - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413, discussed.
R v Major (1998) 70 SASR 488; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Johnson v The Queen (2004) 205 ALR 346; R v Symonds [1999] SASC 217; R v Bennett [2005] SASC 55; R v Place (2002) 81 SASR 395; Pearce v The Queen (1998) 194 CLR 610, considered.

R v B, RWK
[2005] SASC 84
Court of Criminal Appeal: Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: This is an appeal against sentence, brought by leave.
After a trial in the District Court the appellant was found guilty of three offences. Each was an offence of unlawful sexual intercourse with a person of the age of 12 years.
The first offence was committed between August and October 1999, and involved the appellant inserting his finger into the vagina of the victim. The second offence was committed on a separate occasion, but not long after the first offence. It involved an act of cunnilingus. The third offence was committed between about October 1999 and 2001, and involved the appellant inserting his finger into the vagina of the victim.
The victim in each case was a girl aged 12 years, a relative of the appellant. By the time of the third offence, she might have been 13 or 14 years old.
Each offence was committed at the home of the victim, where the appellant was living with his sister and her children. The circumstances of each offence are of an unfortunately common kind in such cases. The appellant was at the family home in the company of the victim and took an opportunity that presented itself to commit the offences.
The victim gave evidence of similar conduct by the appellant, not the subject of charges, extending over a period from 1991 until about 2001. The offences charged came towards the end of that lengthy period. The victim referred to about 17 incidents in all, but did not claim to have dealt with every instance of offending conduct. The course of conduct that preceded the events the subject of charges explains how the appellant was able to have the confidence to take the opportunities that he took, and how it might come about that the victim would have submitted to the conduct.
These are serious offences. The fact that the appellant is a relative of the victim, and had been allowed to live in his sister’s family home, emphasises the deep breach of trust that was involved.
A victim impact statement completed by the young victim, when she was 16 years of age on my calculations, discloses the severe effect that the offending conduct has had on her. It is unnecessary to go into detail, but appropriate to record that towards the end of the statement the victim says “every minute of every day I hate my life more and more because of what [the appellant] has done to us”.
This is a case in which there could be no reduction for a plea of guilty. Nor has the appellant demonstrated any contrition or remorse, continuing to maintain his innocence.
The Judge exercised the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single sentence of imprisonment for seven years. Each of the offences attracted a maximum punishment of imprisonment for seven years. The Judge fixed a non-parole period of five years. He had reduced the non-parole period by six months, to allow for an initial period in custody and a period of about seven months on what he described as “effectively home detention bail”.
The sentence that the Judge imposed is not manifestly excessive. In R v D (1997) 69 SASR 413 I said that “cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority”, could attract a head sentence of about 10 years’ imprisonment when the child in question was over 12 years of age: at 423-424. Of course, like all such statements this statement should be taken as no more than a general indication of the appropriate starting point, a starting point which could be higher or lower in an appropriate case.
The relevant circumstances in the present case are the absence of a basis for reducing the sentence on account of a plea of guilty or on account of indications of remorse and contrition, the fact that one cannot express any confidence in the appellant’s prospects of rehabilitation, and the fact that the offences are part of a lengthy course of conduct. That lengthy course of conduct cannot result in a heavier sentence than is appropriate for the offences in question, but it can and does operate to limit or remove the basis for a reduction in the sentence by reason of the offences being of an isolated kind, and not indicating an entrenched pattern of behaviour.
I consider that a head sentence of seven years’ imprisonment is well within the appropriate range of sentencing for these offences. To the extent that the Judge reduced the sentence on account of time spent on bail, the appellant is fortunate. The appellant’s bail was not subject to restrictive terms of the kind that would usually provide a basis for reducing the sentence.
The non-parole period is also within an appropriate range. The Judge described the appellant as “socially quite insular and unsophisticated”. He was diagnosed as suffering from an adjustment disorder at the time of sentencing. A psychologist who examined him considered that he was of “low average intelligence”. These are all matters to be taken into account, but they do not point necessarily to a lesser sentence.
General deterrence is an important aspect of sentencing for an offence of the kind in question. Moreover, the entrenched nature of the appellant’s conduct indicates a need for a sentence that will deter him, by bringing home to him the wrongfulness of his conduct.
In the course of submissions counsel for the appellant invoked the totality principle. There is no substance at all in that submission. The sentence in question cannot be regarded as a crushing sentence. That is often an indicator that a sentence should be reduced by applying the totality principle. The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.
I add that this is not a case in which it was essential for the Judge to consider the sentence that would have been imposed had a separate sentence been imposed in respect of each offence. Sometimes that will be appropriate or desirable: R v Major (1998) 70 SASR 488. It is an unfortunate aspect of the work of the criminal courts that cases involving a course of sexual misconduct with a child, by a person in a position of trust or authority, are sufficiently common for a general sentencing pattern to have emerged. It provides a guide to the single sentence that can be imposed in some of these cases, without the need to determine separate sentences and whether they should be concurrent or cumulative. There will, of course, still be cases in which it is appropriate to do that, but the present case is one of a kind in which there is no need to do so.
None of the criticisms of the sentence are well founded. The appeal against sentence should be dismissed.
DUGGAN J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
VANSTONE J: I agree that the appeal should be dismissed. I generally agree with the reasons given by the Chief Justice in the matter, but in respect of the ground raising the application of the totality principle, I prefer to express my own reasons.
The relevant complaint is framed as follows:
The sentence … is … manifestly excessive especially as the Learned Sentencing Judge:
(i) …
(ii)Erred in imposing one penalty under S. 18A of the Criminal Law (Sentencing) Act of seven years without also taking into account the principle of totality. The maximum sentence for these offences is seven years imprisonment.
In my view the ground contains a false assumption. In determining what the role of the totality principle might be in cases where s 18A Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) is utilised, it is helpful to examine its origin. In Mill v The Queen (1988) 166 CLR 59, 62-63 the High Court was content to describe the principle by reference to a passage in Thomas, Principles of Sentencing, 2^nd ed. (1979), pp 56-57:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’
As can be seen, the principle comes into play in quite specific circumstances and requires a court to take a “last look” at a total sentence arrived at to see whether it is just and appropriate. The court went on to observe that if a reduction were to be made, it could be achieved either by ordering that part of the sentence be served concurrently, or by lowering the length of the sentences going to make up the total head sentence. The court expressed a preference for the former method and that preference was reinforced in Johnson v The Queen (2004) 205 ALR 346.
In terms of the ambit of the principle McHugh J suggested in Postiglione v The Queen (1997) 189 CLR 295, 308 that the principle had been extended to cover not only the offences for which the offender was before the court, but also other terms of imprisonment to which he was liable.
It is plain from the statement of principle set out above that even where separate sentences for a multiplicity of offences are being imposed, the totality principle will not always result in a reduction of the final sentence.
In the matter on appeal, the sentencing judge chose to utilise s 18A of the Act, a tool not available in the jurisdictions from which Mill, Johnson and Postiglione originated, those being Queensland, Western Australia and New South Wales respectively. The judge chose not to ascribe certain sentences, often referred to as “notional sentences”, to each of the individual offences under consideration. That was a course sanctioned by Doyle CJ (with whom Prior and Mullighan JJ agreed) in R v Symonds [1999] SASC 217 for cases where the task is relatively straightforward. (See also R v Bennett [2005] SASC 55.) In my view it is implicit in the selection by the judge of a sentence of seven years imprisonment that he took into account the notion of totality. After all, it is the accumulation of separate sentences which can give rise to the vice to which the totality principle is directed. When such a process is not followed and specific punishments are not “totted up to make a total”, the “synthesis” of factors should result in an appropriate sentence.
However, where a person is to be sentenced for numerous offences, or where the offences committed are of various kinds, or stretch over a long period, or include offences committed against a number of different victims, it may be appropriate for the judge to approach the task of sentencing in the traditional way, at least to the extent of indicating what was considered to be the appropriate sentence for each offence or group of offences. (See R v Major (1998) 70 SASR 488; R v Place (2002) 81 SASR 395, 432.) A failure to do so might result in the final sentence masking error: Pearce v The Queen (1998) 194 CLR 610 at 624. Or the final sentence might not adequately reflect the overall criminality involved in the offending: Major at 490. Therefore, in those cases, even though s 18A might be used to express the final sentence, the process is such that it is still necessary to take a “last look” at the head sentence to see that the sentence arrived at is just and appropriate.