R v BIBL - [2004] SASC 215

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BIBL
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Anderson)
30 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Appeal against sentence imposed by District Court judge - six counts of indecent assault and four counts of gross indecency - charges related to three children and spanned six years - plea of guilty - after discount for plea, sentenced to nine years imprisonment with a six year non-parole period - whether sentence manifestly excessive - offences committed prior to R v D - whether judge failed to take into account question of delay when considering rehabilitation of offender - held that conduct was so serious that no sentencing standard applied - no clear evidence as to rehabilitation - appeal dismissed
Criminal Law (Sentencing) Act 1998 s 18A, referred to.
R v D (1997) 69 SASR 413; R v Liddy (No 2) (2002) 84 SASR 231; Beattie v R (1993) 169 LSJS 266; R v Whyte (2000) 207 LSJS 479; R v P (2003) 87 SASR 287, discussed.

R v BIBL
[2004] SASC 215
Court of Criminal Appeal: Doyle CJ, Nyland and Anderson JJ

DOYLE J: I would dismiss the appeal. In his submissions Mr Vadasz put a number of points that required careful consideration. They are referred to by Nyland J in her reasons.
However, at the end of the day, for the reasons given by Nyland J, I have concluded that the offences in question are so serious as to call for the heavy sentence that the Judge imposed. I agree with Nyland J that the present case is one in relation to which previous decisions provide no real guidance as to the appropriate penalty. Although the penalty is a heavy one, and in my opinion at the upper level of the appropriate range, I am not satisfied that it is excessive, or that there was any error in the approach the Judge took to her consideration of the appropriate sentence.
Accordingly, for the reasons given by Nyland J, I join in dismissing the appeal.
NYLAND J: This is an appeal against a sentence imposed by a District Court judge on 20 November 2003. The appellant pleaded guilty to six counts of indecent assault and four counts of gross indecency, the charges relating to three children. He was sentenced to be imprisoned for nine years with a six year non-parole period. There are two grounds of appeal:
1.That the sentence imposed was manifestly excessive in all the circumstances, and
2.That the learned sentencing judge failed to take into account the delay of the prosecution authorities in prosecuting the matter following the reporting of the offending.
Background:
The victims, A and J are brothers, and E is their sister. They are the natural children of the W family. The family became friends with the appellant. In 1984, the appellant moved into the W’s home at Largs Bay to reside with them.
The family’s surname was subsequently changed to that of the appellant for reasons which are irrelevant to this appeal. It is not suggested that there was any sinister motive attached to the change. Thereafter, however, the appellant took a greater role in the household and assumed a parental role with respect to the three children who are the subject of these charges.
The charges:
The appellant was initially charged with 16 offences, but following negotiations pleaded guilty to 10 of them. Those offences spanned a period between 1984 and 1990. As a result of his plea, the appellant was committed to the District Court for sentence on Counts 1, 2, 5, 9, 10, 11, 13, 14, 15 and 16.
The charges were representative of a course of conduct which had commenced when A was about 13, J about 12 and E about 9.
The following is a summary of the facts relating to each of the charged counts as outlined by the prosecutor in the course of submissions and which the appellant admitted through his counsel.
Count 1 is a charge of indecent assault in 1985. It relates to A who was then aged 13. A was in his first year of high school. He came home with a report card that contained bad grades. The appellant, having assumed the position of authority in the household, saw fit to discipline A. He did so by hitting him on his bare bottom with a belt. A was subsequently told to go to his bedroom. A short time later the appellant entered the room, and began cuddling and comforting A. He then put his hand down A’s underwear and played with his penis.
Count 2 is also a charge of indecent assault with respect to A and occurred on the same day as Count 1. After the incident which is the subject of Count 1, the appellant left the room. A subsequently had a shower and went to bed. At about 9 or 10 pm, the appellant entered the room where A was in bed. The appellant put his hand under the sheets and fondled A’s penis.
Count 5 is a further charge of indecent assault with respect to A in 1986. A was in the shower. The appellant came into the bathroom and got into the shower with him and masturbated A by fondling his penis until A became aroused.
Count 9 is a charge of indecent assault relating to J. The complaint alleges this offence occurred between 1985 and 1990. The prosecutor told the court J was over 12 at the relevant time. J arrived home from school and had a shower. The appellant got into the shower with J and there was mutual masturbation between them.
Count 10 is a charge of gross indecency in 1984 relating to J who was then aged 11, and E who was 9. E and J were playing cards with the appellant in the appellant’s bedroom. The appellant indicated that he wanted the children to take their clothes off and they complied. He made E lie on the floor on her back whilst naked and requested J to lie on top of her. The appellant then gave J instructions to insert his penis into E’s vagina. J refused to do so and started crying. J eventually got up. There was no penetration due to J’s refusal to comply.
Count 11 is a charge of indecent assault in 1984 with respect to E who was then aged 9. The family were watching the movie Puberty Blues. E, being a young child, wanted to know what the movie was about. The appellant told her to go to her bedroom and said he would, in due course, come and explain it to her. The appellant entered her room. A short time later, the appellant unzipped his pants and exposed his penis which was erect. He then made E touch his penis. He placed her hand on it, indicating to her that most girls do it, and told her that she must not tell her parents what had occurred.
Count 13 is a charge of indecent assault in 1984 and relates to E. The appellant indicated to E that he wanted her to come into his bedroom. When she entered the bedroom the appellant was touching his penis. The appellant told E to pull down her pants. The appellant then rubbed E on the outside of her vagina for a few minutes but there was no penetration.
Count 14 is a charge of gross indecency in 1985 and relates to E who was then aged 10. The appellant called to E to follow him into the toilet. He then caused her to masturbate him until he ejaculated into the toilet.
Count 15 is a charge of gross indecency alleged to have occurred between 1 January 1985 and 31 March 1985. It involves A, who was then 14 and E who was then 10. The appellant entered E’s bedroom whilst she was with A. He told both children to remove their clothes from the waist down and then told A to lie on top of E and put his penis between her legs while the appellant watched. The appellant asked A to put his penis into E’s vagina but A refused. There was therefore no penetration.
Count 16 is a charge of gross indecency in 1986 and involves all three children. E was then 11, J, 13 and A, 15. On this occasion, the appellant asked all the children to enter his bedroom. He then pulled down his pants and made all three children watch while he masturbated himself and then ejaculated into a tissue.
Statement of Agreed Facts:
In addition to summarising the facts relating to each of the charges against the appellant, the prosecution provided the sentencing judge with a written statement of agreed facts signed by counsel for both the appellant and the respondent. That document alleged that the offending in relation to each victim on occasion occurred several times a week, and consisted of the following:
“8.(a)         the [appellant] causing the victims to masturbate him, namely
i.     whilst the [appellant] was showering the victims;
ii.    in the shed at the rear of the Largs Bay address;
iii.   in his bedroom.
(b)the [appellant] fondling or masturbating the victims, including rubbing the outside of [E’s] vagina.
(c)the [appellant] causing [A] and [J] on separate occasions to lie on top of [E] whilst naked, with their penises between [E’s] legs, requesting that they insert their penises into her vagina whilst he watched. Penetration did not take place during these incidents as a result of refusals from both [A] and[ [J] to do so.
It went on to say:
“11.The offending in relation to [J] ceased after nine years when he was 21 years of age.
12.The offending in relation to [A] ceased after eight years when he was 21 years of age and left the family home.
13.The offending in relation to [E] continued for four years until she was 12 years of age. The offending stopped as a result of [E’s] mother refusing to allow [E] to sleep in the [appellant]’s bedroom.”
The judge’s sentencing remarks:
In the course of her sentencing remarks the judge referred to those agreed facts and went on to say:
“You are now 51 years of age. The offending in relation to the three victims occurred over approximately nine years, from 1984, and ended in approximately 1992. You were married in the year 2000, however, you met your current wife approximately nine years ago. As a result of that marriage you are father to five stepchildren, aged from 31 down to 18, and you have grandchildren. (emphasis added)
Your employment record is good. After you left the Army you worked with Telecom, and after there you went to the Defence Science and Technology Organisation in Salisbury. For the last several years you and your wife have worked in your own business as cleaning contractors. You have the love and support of your wife Christine, whose health is not good, and your stepchildren, two of them who have written of their support for you. You have written a letter, through your counsel, expressing deep remorse to your victims and to your wife and family. In that letter you say you cannot understand why you did these things and nothing of this nature will ever occur again.”
The judge then discussed the report of Dr Raeside, a psychiatrist. He had expressed the view that the appellant did not suffer from any formal psychiatric disorder but considered that the appellant had a range of underlying personality traits which had impacted on his ability to form appropriate social relationships. This had also impacted upon his understanding or knowledge of the inappropriateness of his sexual behaviour with the victims. A similar view was expressed in a pre-sentence report which was provided to the judge. Dr Raeside believed that it was important that the appellant engage in a sexual offenders treatment and assessment program (SOTAP). He considered that the appellant was at some risk of further offending unless he underwent an offender treatment program and explored the issues of his offending with the victims. The appellant had contacted SOTAP at one stage but found it difficult to keep appointments and Dr Raeside commented that he suspected the appellant had been “somewhat avoidant in this regard given his lack of understanding of the need for such treatment, although he acknowledges that he wants to ‘deal with it’”. The judge referred to Dr Raeside’s belief that the appellant required treatment, but noted that it was “now over 10 years since the last offence was committed and there is no suggestion, or any evidence, that any further offending has occurred since that time”.
The judge referred to the submission by counsel for the appellant that there had been some unexplained delay on the part of the prosecuting authorities since the matter first came to light in 1999. She indicated, however, that she did not have sufficient information as to the exact chronology of events, and given the age of the offences, the current age of the victims, the fact that they were now scattered over Australia and the nature of the offences, said she was not able to draw any inference that there had been, in fact, any undue delay in the prosecution and finalisation of the matter.
The judge had regard to the victim impact statements which disclosed ongoing difficulties for each of the victims which had significantly interfered with their ability to lead fulfilling and happy lives as adults. She described the conduct of the appellant as “depraved”, having taken advantage in an opportunistic way of his position of trust and responsibility. She went on to say that he continued to abuse them for a lengthy period, up to nine years in the case of [A], seven years in the case of [J], and four years in the case of [E].
The judge considered that an aggravating feature of the offending was that the appellant had frequently committed these acts in the presence of two or more of the children and made them, in effect, play sexual games with each other, including simulating sexual intercourse. The judge considered that general deterrence, and to a much lesser extent, personal deterrence, had to play a significant role in the sentencing process.
The judge exercised her powers pursuant to s 18A of the Criminal Law (Sentencing) Act 1998 to impose one sentence for all of the offences. She accepted that the pleas of guilty, which had been made in the Magistrates Court sprung from genuine contrition. She gave the appellant credit by discounting the head sentence and non-parole period by 25%. Although not prepared to say that the offending was at the highest end of the scale, the judge nevertheless considered that the appellant’s conduct placed it in a very serious category. She then indicated that but for the plea of guilty she would have imposed a head sentence of 12 years, but in light of the plea reduced that sentence to one of nine years imprisonment. The judge had regard to the principle of totality but considered that a head sentence of nine years was proportionate to the overall criminality involved, particularly having regard to the circumstances of aggravation. She also considered that it was not so crushing as to call for any downward adjustment. She then fixed a non-parole period of six years.
On the hearing of the appeal, Mr Vadasz submitted that the judge had failed to sentence in accordance with the standard which prevailed at the time of the commission of the offences and instead, had relied upon R v D[1], a judgment delivered subsequent to this offending, by fixing a sentence of 12 years as the starting point.
[1] (1997) 69 SASR 413
The sentencing standard:
In D, the offender pleaded guilty to the offence of persistent sexual abuse of a child and was sentenced to six years imprisonment with a non-parole period of four years, six months. The victim was the appellant’s step-daughter and was aged about 13 at the relevant time. The sexual abuse took place over a period of two months and on almost a daily basis and ranged from indecent assault, cunnilingus and fellatio to the digital penetration of the victim’s vagina. The appellant pleaded guilty at the first opportunity and had voluntarily ceased abusing the victim. The abuse had occurred over a relatively short period of time and the appellant had participated in family counselling, knowing his offending was likely to be revealed. He was genuinely remorseful and was of good character.
The court reviewed a number of sentences imposed with respect to sexual offences against children. In the course of his reasons, Doyle CJ (at 424) said:
“In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.”
D was discussed in R v Liddy (No.2)[2]. Mullighan J referred to the remarks of the Chief Justice in D as to the sentencing standard with respect to multiple counts of sexual offending involving children and said (at 237):
“… the Chief Justice made it plain that the standard should be applied in cases where conviction is recorded after the decision in D. He said that although the sentencing standard could be applied in that case, as a matter of fairness the sentence should be determined by reference to the standard reflected in the earlier cases to which he had referred. …
… AJW followed D in which it was made clear that the sentencing standard was applied to offences committed in the future. The appellant’s offending had occurred well before that standard was established. It is true that in D Doyle CJ did say, in a passage which I have cited, that the standard should apply where a conviction is recorded or a plea of guilty is entered after the decision in that case but, as has also been seen in an earlier passage of his judgment, he said that in future sentences ‘should be increased for persons who commit such offences in the future.”
[2] (2002) 84 SASR 231
As the appellant’s offending preceded the decision in D, Mr Vadasz submitted that the sentencing standard referred to therein was not applicable and that the correct standard was that established by Beattie v R[3]. The sentence in Beattie was imposed prior to Truth in Sentencing. It related to six crimes of indecent assault on young boys. Four of the crimes were committed against a boy who was nine years of age when the first three were committed, and 10 when the fourth was committed. The other two were committed against a boy of the age of 12 years. The sentencing judge imposed sentences of two years and six calendar months imprisonment for each of the crimes. He ordered the sentences to be served concurrently with one another and then fixed a non-parole period of 18 months. On appeal, the Court of Criminal Appeal reduced the sentence for the two counts (which related to the assault on the 12 year old boy) to one year and six calendar months, due to a misapprehension on the part of the sentencing judge as to the maximum sentence applicable to those offences, but otherwise affirmed the sentence.
[3] (1993) 169 LSJS 266
In the course of submissions, Mr Vadasz described Beattie as a guideline decision but he was unable to refer the court to any case in which it had been treated in that way. Beattie, was, however, referred to the sentencing judge in the course of submissions, as well as a number of other authorities including D, which related to sexual offences against children.

In R v Whyte[4], the sentencing standard in D was considered in the context of an offender who pleaded guilty to serious sexual offences committed against his niece on occasion over a period of about 13 years, from late 1982 until 1996. After discount for his plea, he was sentenced to imprisonment for nine years with a non-parole period of five years. The offences had occurred and the appellant had been sentenced prior to the decision in D but it was argued on his behalf that the sentencing judge had erroneously applied a sentencing standard which was equivalent to that which was shortly afterwards fixed in D for later offences.
[4] (2000) 207 LSJS 479
The appeal was dismissed. Mullighan J commented that sentencing standards established by the court are never rigid and said (at 481):
“The cases referred to in R v D, and in argument on this appeal, do not establish a maximum standard or a range of sentences for the worst type of case. In my view, they establish a general standard at the time for multiple offending of this nature where there are common features of aggravation such as breach of trust. There will always be cases which will be outside an established sentencing standard either because in particular circumstances the standard would be inadequate or too severe.”
In that case, Mullighan J considered the offending fell into the worst category of offences for which no particular sentencing standard was appropriate.
In R v P[5], the appellant appealed against a sentence of nine years imprisonment with a non-parole period of three years and six months imposed in the District Court following his plea of guilty to four counts of unlawful sexual intercourse and two counts of indecent assault. The charges were representative of a course of conduct committed over a period of time upon two daughters of the appellant aged eight and 12.
[5] (2003) 87 SASR 287
The appellant volunteered a full confession to the police after the offending came to light and for four years had attended SOTAP sessions. He was not, however, charged with the offending until about eight years later for reasons which were not explained. That sentence was eventually reduced (by majority) to six years imprisonment with a non-parole period of two years and six months.
Mullighan J, in the course of his judgment, referred to D and said:
“The offence of persistent sexual abuse of a child was introduced by s 74(1) of the Criminal Law Consolidation Act 1935 by Act 23 of 1994, well after the appellant committed the offences for which he has now been sentenced. The sentencing standard in R v D (1997) 69 SASR 413 was not established until some three years later, also well after the appellant’s offending. In my view, the Court in D intended to establish that standard for offending, which occurred after the standard was established, and in the circumstances in which it is appropriate. Doyle CJ began his observations about establishing a sentencing standard by saying at 423:
‘This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future.’ (my emphasis)
And later:
‘It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114, per King CJ; R v Lewfatt (1993) 3 NTLR 41 at 43-44, per Angel J and (at 45-46) per Priestley J. Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.’
While, as Perry J has pointed out, Doyle CJ said that the heavier penalty should be imposed in cases ‘in which a conviction is recorded hereafter or a plea of guilty is entered hereafter’, I think the tenor of his observations is that the heavier standard should only be applied where the offence was committed after R v D was decided or at least part of the persistent offending occurred thereafter. The same must be said in relation to sentences for individual offences which are regarded as representative offences. That is the view I expressed in R v Liddy (No 2) 84 SASR 231 at 236-237. Williams J expressed the same view, at 270, as did Gray J at 282-283. In that case the conduct was so severe that there was no applicable sentencing standard.
If there is a sufficient number of offences and s 18A of the Criminal Law (Sentencing) Act 1988 is employed, the new standard laid down in R v D should not be applied unless most of the offences were committed after R v D was decided. At least, that is my interpretation of the decision in R v D. In R v Liddy, I said that it was not necessary in that case to consider whether a contemporary sentencing standard should be applied to an offender who offended many years ago, and that that matter should be considered by this Court when it arises for decision: 239. I think that it is wrong to apply the standard in R v D to offending which occurred before the standard was established and it should not have been applied in the present case.
Of course a sentencing standard may not be appropriate in some cases. As Doyle CJ observed in R v D, ‘the starting point might be higher or lower’.
I think the conduct of the appellant to the two girls was persistent sexual conduct of a very serious nature because of the type of conduct and the long period during which it occurred. I do not think a sentencing standard for such conduct had been established at the time of the offending. In view of the seriousness of the offending the starting point should be eight years, after making due allowance for the likely reason for the offending as discussed by Mr White in his report. It appears that the sexual abuse of the appellant during his childhood is a significant matter.”
The judge did not refer to any of those cases in the course of her sentencing remarks but I am not persuaded that she overlooked any of them, nor do I think she fell into error and used D as the starting point for fixing the sentence. The prosecutor made it clear to the judge that she did not rely upon any other case as being directly on point. She commented that she had been unable to find any which dealt with the same sort of conduct as that of the appellant. This can be demonstrated by reference to D as that is a case which involved more serious offences but related to only one victim as opposed to three in the present case. The abuse in D also took place over a much shorter period. At the end of the day, D and the other authorities which were mentioned in the course of submissions, simply demonstrate the wide variety of circumstances which can arise with respect to sexual offences against children and the difficulty in setting a standard with respect to them. The court has, however, repeatedly emphasised the serious nature of offences committed against children by persons in positions of trust, and in my view, that is the approach taken in this case by the sentencing judge. She correctly placed the appellant’s offending in the very serious category. The aggravating features which she took into account included the appellant committing acts in the presence of two or more children and making them, in effect, play sexual games. In my opinion, this a case in which it cannot be said that there is any particular sentencing standard appropriate to the circumstances of it.
Delay:
Mr Vadasz further submitted that the judge had fallen into error and sentenced the appellant to offences not charged as she referred to the offending as having occurred over approximately nine years, that is, from 1984 until approximately 1992. She also made the comment that it was over 10 years since the last offence had been committed yet the latest date on the charged offences was 31 December 1990.
In order to consider this aspect of the matter, it is necessary to have regard to the submissions put to the sentencing judge with respect to the question of delay and the written chronology which was tendered with respect to that matter. That chronology is in the following terms:
1984  Offending commences
1992  Offending ceases      (emphasis added)
June 1998Family meeting with [appellant] and admits offending
23 September 1999    J gives statement
February 2000            CB marries [appellant]
13 August 2000          A gives statement
13 August 2000          E gives statement
23 November 2000     [Appellant] speaks to police at headquarters
1 April 2001               SD (the partner of A) gives statement
4 May 2002                A gives addendum statement
7 May 2002                Charges laid against [Appellant]
17 July 2002               [Appellant] appears in Elizabeth Magistrates Court
7 September 2002      T gives statement to police
[NBT was apparently another sibling but not the subject of any charges]
19 November 2002     Fresh information issued
20 November 2002     Old information dismissed
6 May 2003[Appellant] pleads guilty in the Elizabeth Magistrates Court
11 July 2003               Submission in the Elizabeth Magistrates Court
4 September 2003     Further submissions in the Elizabeth Magistrates Court
8 October 2003          Mr Millard, SM, commits to Central District Criminal Court.
Counsel who appeared for the appellant in the District Court referred to the agreed statement of facts which had been provided to the judge and acknowledged that this was a course of conduct by the appellant over a number of years. He then handed the judge the above chronology which he said tied in with the agreed statement of facts and said:
“Your Honour will see that the offending commenced in 1984. It would appear to have ceased in about 1992, without being too precise as to the dates. Then there was a family meeting in [June] 1998.” (emphasis added)
He then went on to explain to the judge in the terms of the chronology how the matter came to light and made submissions to the judge with respect to the question of delay.
It is apparent from the sentencing remarks that the comments made by the judge with respect to the date of cessation of the offending as being 1992, and the fact that it was now over 10 years since the offending had ceased, were made by her in the context of the submissions put to her by counsel with respect to the question of delay. The reference by the judge to the period of time over which the offending had taken place was taken from the statement of agreed facts, which covered a period of time greater than that covered by the charged counts. The judge referred to those matters in the context of showing that the charged offences were not isolated but were representative of a course of conduct which had taken place over a long period of time and that was admitted by the appellant. The fact that these were not isolated offences was a relevant sentencing matter. I am not persuaded that the judge fell into error and imposed a sentence with respect to offences other than those charged.
On the hearing of the appeal, Mr Vadasz referred to the issue of delay but limited his submissions to a complaint that the judge had not made any or sufficient allowance for the fact that the appellant had commenced his rehabilitation, despite the judge acknowledging that there was no suggestion or any evidence that offending had occurred in the last 10 years. The appellant had met his present wife in 1993 and married her in the year 2000. The children of his wife were supportive of him. Although the family conference was not initiated by the appellant, the appellant made admissions at that conference with respect to his conduct towards the three victims. At the time of sentencing he was aged 51 and he and his wife had been working for several years in their own business as cleaning contractors. The appellant had written a letter through his counsel expressing remorse to his victims and to his wife and family. He could not understand why he did these things and said that nothing of this nature would ever occur again. He had no prior record.
Mr Vadasz submitted that the admission by the appellant of the abuse and the substantial period of time between the cessation of offending and the imposition of sentence were indicative of the appellant embarking upon his rehabilitation but the judge had failed to take that into account when fashioning an appropriate sentence.
Due to the ages of the children at various times, the maximum penalty varied, although it has not been the subject of any increase since the date of the commission of the offences. Four of the offences of indecent assault carried a maximum penalty of eight years and two carried a maximum period of 10 years, the latter two relating to indecent assault offences against E who was then under the age of 10. The four offences of gross indecency each attracted a maximum penalty of three years.
These were very serious offences, particularly bearing in mind that E was under the age of 12 years when the offending occurred, and some of the offences involved causing the children to commit offences with each other. As I said earlier, this is a case for which there is no particular sentencing standard appropriate to it. Although there is no evidence of any further offending, and the appellant now has a new family who depend upon him, the matters referred to by Dr Raeside in his report disclose a limited understanding by the appellant of the impact of his offending upon the victims. It is also not clear from that report that the appellant has rehabilitated himself. I do not consider therefore that there should be any deduction on account of delay.
Conclusion:
The sentencing judge applied the provisions of s 18A of the Sentencing Act to impose one sentence for 10 offences committed against three victims between the years 1984 and 1990. Those offences were representative of a course of conduct over a much longer period. These were serious offences committed against children by a person who stood in loco parentis to them. The judge took a starting point of 12 years but allowed a discount of 25% to reflect the appellant’s plea of guilty and contrition. I can see nothing wrong with that approach. The sentence may be considered severe but not such as to require this court to interfere on appeal. I would dismiss the appeal.
ANDERSON J: I agree with the reasons of Nyland J and I would also dismiss the appeal.