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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BIBL

Details

AGLC: R v BIBL [2004] SASC 215
Case: [2004] SASC 215
Decision Date: 30 July 2004

CaseChat Overview and Summary

The case of R v BIBL is an appeal against the sentence imposed by a District Court judge on a defendant who pleaded guilty to six counts of indecent assault and four counts of gross indecency. The offences involved three children and occurred over a period of six years. The defendant was sentenced to nine years imprisonment, with a non-parole period of six years. The appeal challenged the severity of the sentence, questioning whether the judge failed to consider the delay in bringing the case to trial and the defendant's rehabilitation prospects. The appeal was dismissed by the court.

The central legal issues in the appeal were whether the sentence was manifestly excessive and whether the sentencing judge failed to consider the delay in prosecuting the case and the defendant's potential for rehabilitation. The court had to determine if the severity of the offences warranted the sentence imposed and if the delay and the defendant's prospects for rehabilitation were appropriately considered.

The court found that the nature of the offences was so serious that no particular sentencing standard applied, as the court noted there was no evidence of further offending since the last offence. The court considered the psychiatrist's report, which suggested that the defendant had a limited understanding of the impact of his actions and required treatment to prevent further offending. However, the court also noted that it had been over ten years since the last offence and there was no suggestion of further offending. The court held that the delay in prosecuting the case and the defendant's rehabilitation prospects did not warrant a reduction in sentence. The court upheld the sentence, considering it severe but not excessive enough to warrant interference.

The appeal was dismissed by the court, affirming the sentence imposed by the District Court judge. The reasoning provided by the court emphasized the gravity of the offences and the absence of clear evidence of rehabilitation. The court concluded that the sentence was appropriate given the circumstances and did not constitute an error warranting appellate intervention.

Orders

Orders of the court

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Background

Background to the litigation

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, namelyi. 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”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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