R v BEER

[2007] SASC 375

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BEER

[2007] SASC 375

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bleby, The Honourable Justice Anderson and The Honourable Justice White)

26 October 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

Appellant found guilty by a jury of three counts of indecent assault and one count of unlawful sexual intercourse - victim aged between 13 and 15 over the course of the offending - sentenced to imprisonment of six years and six months, with a non-parole period of three years - whether head sentence and non-parole period manifestly excessive - whether sentencing judge took adequate account of the appellant's personal circumstances and in particular his role in caring for a disabled sister- whether relevant authorities were properly applied to the appellant's offending.

Held:  Appeal dismissed - the sentence gave due weight to the need for deterrence - the appellant's personal circumstances were appropriately reflected in the non-parole period - the nature of the appellant's conduct warranted the term of imprisonment imposed - no grounds for interfering with the sentence established.

Criminal Law (Sentencing) Act 1988 s 10, s 18A, referred to.
R v D (1997) 69 SASR 413, applied.
R v Smith (2007) 97 SASR 302; R v Benier (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Cox, Millhouse and Debelle JJ, 13 March 1997, No S6077), distinguished.
R v Adami (1989) 51 SASR 229; R v Penno (2004) 236 LSJS 457; Bignell v Police (Unreported, Supreme Court of South Australia, Bleby J, 11 December 1997, S6482), considered.

R v BEER
[2007] SASC 375

Court of Criminal Appeal:       Bleby, Anderson and White JJ

BLEBY J.

Background

1. This is an appeal against a sentence imposed in the District Court.  A jury found the appellant guilty of three counts of indecent assault and one count of unlawful sexual intercourse.  The counts reflected a course of conduct over approximately two years.  There was only one victim who was aged between 13 and 15 during that period.

   The facts

2. The appellant is currently 61 years old.  He developed a friendship with the victim, then a 13 year old boy, whom he met through amateur use of CB radio.  The sentencing Judge sentenced the appellant on the basis that he groomed the victim for sexual contact through gifts, outings and exposure to sexual material.  The Judge largely accepted the testimony of the victim, allowing for some understandable confusion over dates of specific acts and a reluctance to speak about the abuse.

3. After gaining the victim’s trust, the appellant committed the indecent assaults which all involved placing his hand inside the victim’s clothing and handling his penis.  The one act of sexual intercourse involved placing his mouth over the victim’s penis for some time.  Besides those four specific acts which were charged, there were other uncharged acts of indecent assault and there was evidence of one other act of fellatio committed on the victim.

   The sentence

4. The appellant had no relevant previous convictions.  The sentencing Judge made a finding, which was justified, that the appellant was a man of previous good character.  The Judge further noted that the appellant could receive no discount for a plea of guilty, for co-operation with the authorities or for contrition or remorse.

5. The Judge applied s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed a single head sentence of six years and six months imprisonment with a non-parole period of three years. Both the head sentence and the non-parole period commenced on the day that the sentence was imposed, 16 July 2007. His Honour found that there was no good reason to suspend the sentence.

6. The maximum penalty for a single offence of indecent assault at the relevant time was eight years imprisonment.  The maximum penalty for a single offence of unlawful sexual intercourse with a child under the age of 17 was seven years imprisonment.

   Ground of appeal

7. The only ground of appeal is that the sentence imposed was, in all the circumstances, manifestly excessive.  The argument of the appellant applied both to the head sentence and to the non-parole period.

   The appellant’s personal circumstances

8. As mentioned above, the appellant is aged 61 years.  He had a good relationship with his parents, living his entire life with them until they died.  He has one older brother aged 68 and an older sister aged 66.  The appellant has few friends of his own, has never married, and limits his entertainment to attending local football fixtures and hotel visits around Port Adelaide.  His one genuine interest is CB radio, through which he met the victim.

9. Due to lack of oxygen at birth, the appellant’s sister suffers from significant brain damage.  After being cared for by her parents until the age of 15, she lived at Minda Home for approximately 20 years, and then returned to the family home.  The appellant left the workforce in 1988 to care for his family members.  His father died in the late 1980’s after long-standing poor health.  His mother died in 1996 after a similar long-term decline in health.  The appellant then became the sole carer for his disabled sister.  He continued to live with and to provide sole care for his sister until being taken into custody on the day of sentencing.

10. It would appear that there is no possibility of the appellant’s sister remaining in home care while the appellant is in custody.  The appellant’s brother gave evidence to the effect that while he and his wife could provide emergency accommodation for the sister, they were not equipped to provide ongoing care for her.

11. The sentencing Judge took into account the appellant’s personal situation.  Having found that there was no reason to suspend the sentence, the Judge said:

    The matters personal to you, which your counsel has emphasised, can be reflected to a small extent in your head sentence, but can be reflected to a significant extent in your non-parole period.

    Consideration of the appeal

12. The appeal raises an obvious tension between the requirement for courts to punish and deter predatory, grooming sexual behaviour on the one hand, and the need to temper that with mercy where warranted by the personal circumstances of a defendant.  Care of close relatives may, in an exceptional case, be relevant in a decision to suspend a sentence.  However, it cannot be of great influence in deciding whether a head sentence should be six years and six months or something less.  Whatever period of imprisonment is fixed will require alternative arrangements to be made for the care of the appellant’s sister.  Obligations to close relatives will only ever be relevant in exceptional cases.[1]  The hardship to dependants would have to be of such a serious character as to call for a merciful approach to sentencing.[2]  The finding of alternative, probably institutional, accommodation for the appellant’s sister is a necessary consequence of any relevant period of incarceration of the appellant.  It cannot influence the outcome of the appeal.  Indeed, Mr Ibbotson, counsel for the appellant did not seek to argue that it should.

    [1]    R v Adami (1989) 51 SASR 229.

    [2]    R v Penno (2004) 236 LSJS 457 at 465, [2004] SASC 354 at [46].

13. Mr Ibbotson did not contest that this was serious offending, given the age of the victim, the fact that the offending occurred over a period of two years and the obvious abuse of the trust that the appellant had generated. It was also not contested that deterrence is a major influence in fixing an appropriate sentence. That is reflected in s 10(4) of the Criminal Law (Sentencing) Act which provides:

    A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

14. The principal argument put for the appellant was that most of the offending involved indecent assault rather than sexual intercourse, and that compared with other cases to which the sentencing Judge had reference, the offending in this case was less serious than in those other cases where lower penalties were imposed.

15. Circumstances of sexual offending will seldom be similar from one case to the next, and direct comparisons are often odious.  For example, in this case reliance was placed on the actual sentences imposed in R v Smith[3] and R v Benier.[4]  There are immediate distinguishing features in both.

    [3] (2007) 97 SASR 302, [2007] SASC 64.

    [4]    Unreported, Full Court, 13 March 1997 Judgment No S6077.

16. In Smith there were two cumulative components to the total sentence relating to two separate victims.  In respect of one of them there was a trial resulting in a conviction on three counts of unlawful sexual intercourse with a girl aged 13 and 14.  In respect of the other, being one count of unlawful sexual intercourse with a 15 year old girl, there was a plea of guilty.  The total sentence was suspended by the sentencing Judge.  There was a prosecution appeal against both the suspension and the leniency of the two sentences.  The sentence in respect of the plea of guilty was increased on appeal.  The other was not, and the revised sentence was required to be served.  The relationships between the appellant and the victims were quite different.  In respect of the sentence that was varied, the Court observed, because it was a prosecution appeal, that it was “appropriate to fix a head sentence at the lower end of the appropriate range”.[5]  The total sentence after appeal was less than the sentence in the instant case.  However, I have said enough to indicate how inappropriate the ultimate sentences in that case are as a guide to the proper sentence to be adopted in this case.

    [5]    R v Smith (2007) 97 SASR 302 at 311, [2007] SASC 64 at [35].

17. Benier also involved a slightly more lenient penalty than that imposed in this case in respect of three counts of unlawful sexual intercourse with a girl over the age of 12.  However, two obvious features render the comparison odious.  The appellant in Benier pleaded guilty to the charges, and Benier was decided before R v D[6] to which reference is made below.

    [6] (1997) 69 SASR 413.

18. Both these comparisons which were relied on are, I consider, of little assistance.  It was also submitted that personal deterrence in this case should not be a major consideration, as there was no evidence that the appellant was likely to re-offend.  Equally, however, there was no evidence that the appellant had any apparent insight into his offending and no indication that he was unlikely to re-offend.  In my opinion, personal deterrence also remained a relevant factor.

19. This case can only be approached by applying the appropriate principles.  The starting point must be the decision of this Court in R v D[7], where a majority of the Court indicated that for multiple acts of unlawful sexual intercourse with children over the age of 12 the appropriate starting point should be 10 years imprisonment.  There will need to be obvious adjustments to that starting point for a variety of different circumstances.

    [7] Ibid.

20. Given the nature of the offending in this case, the deliberate grooming engaged in by the appellant, the duration of the offending, the abuse of the victim’s trust in the appellant and the appellant’s apparent lack of any contrition, and taking into account the appellant’s personal circumstances, a head sentence of six years and six months, while tending towards the higher end of the scale, cannot be said to be excessive.  There could be no discount for a plea of guilty.  General deterrence and the protection of children are of paramount importance in the sentencing process.[8]

    [8]    R v Smith (2007) 97 SASR 302 at 311, [2007] SASC 64 at [38] – [39], citing with approval the dictum of Bleby J in Bignell v Police, Unreported, 11 December 1997, Judgment No S6482.

21. The sentencing Judge fixed a relatively merciful and generous non-parole period of three years.  I am unable accept that the sentence was manifestly excessive or that the sentencing discretion miscarried.  I would dismiss the appeal.

22. ANDERSON J.     I agree that the appeal should be dismissed for the reasons given by Bleby J.

23. WHITE J:             I agree that the appeal should be dismissed.  I agree with the reasons of Bleby J.