R v Bonnici - [2005] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BONNICI
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Vanstone)
1 April 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON
Application by the Director of Public Prosecutions for leave to appeal against sentence - respondent found guilty of 5 counts of unlawful sexual intercourse - complainant aged 13 - trial judge imposed global penalty of imprisonment for 3 years and 6 months with non-parole period of 15 months - whether sentence is manifestly inadequate - trial judge's exercise of leniency unwarranted in the circumstances - sentence imposed was manifestly inadequate - leave to appeal granted - appeal allowed - sentence of trial judge set aside - sentence of imprisonment for 6 years with non-parole period of 3 years imposed.
R v Liddy (No 2) (2002) 84 SASR 231; R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 450; R v D (1997) 69 SASR 413, applied.

R v BONNICI
[2005] SASC 118
Court of Criminal Appeal: Duggan, Besanko and Vanstone JJ

DUGGAN J. This is an application by the Director of Public Prosecutions for leave to appeal against the sentence imposed on the respondent who was found guilty by a jury of five counts of unlawful sexual intercourse.
The offences took place between March 1999 and December 2000. The complainant turned 13 years of age shortly before the first offence. The prosecution also alleged a series of uncharged acts of a similar nature.
The respondent was sentenced in the District Court to a global penalty of imprisonment for three years and six months. A non-parole period of 15 months was imposed. Prior to sentencing the respondent pleaded guilty to two offences of breaching his bail agreement. He was convicted on each of these counts without penalty.
The Director of Public Prosecutions has submitted that the sentence imposed for the sexual offences is manifestly inadequate.
The respondent was 51 years of age at the time of the first offence. He is divorced and has three adult children. When the complainant met the respondent she was living with her mother, father and an intellectually handicapped sister. Her father and the respondent are Vietnam veterans who suffer from post-traumatic stress disorder. They met at a hospital where both were receiving treatment.
The complainant’s family were having difficulty coping at this time. Her mother was receiving treatment for cancer and it was in these circumstances that the respondent offered to assist the family by taking the complainant on outings. This led to the complainant staying overnight at the respondent’s home from time to time and it was on the occasion of the first such stay that the first offence charged in the information took place.
According to the prosecution case, the sexual conduct of the respondent continued over a period of four years. It included cunnilingus, fellatio, digital penetration and, eventually, penile intercourse.
In September 2000 the police spoke to the respondent after receiving information that he may have been committing sexual offences against the complainant. The respondent and the complainant denied that this was so. The conduct continued after the police interview. At the trial the respondent denied committing any sexual offence against the complainant. According to the evidence, he bought expensive presents for the complainant including jewellery and a car.
The learned sentencing judge expressed the view that the respondent had a genuine affection for the complainant and sought to do what he regarded as the best for her. His Honour also had regard to the respondent’s mental condition which arose from the respondent’s service in Vietnam. This has led to difficulties experienced by the respondent in coping with the pressures of life and has resulted in periods of hospitalisation.
The respondent left school at the age of 16 and, since then, has been employed in several occupations. He joined the army at the age of 18 and was posted to Vietnam in the following year. His tour of duty lasted approximately 12 months. Upon his return to Australia he remained in the Army until 1972 when he applied for discharge. By that time he had reached the rank of Sergeant.
The respondent then engaged in various types of employment including interstate truck driving. He also married. He and his wife separated in 1976 and were divorced in 1978. Since then he has had a number of relationships.
The respondent was interviewed by a psychologist after being found guilty of the offences and he has also been examined by Dr Raeside, the psychiatrist. The respondent told the medical experts that he had been in poor mental health since returning from Vietnam. He sought psychiatric assistance in 1997 and was diagnosed as suffering from post-traumatic stress disorder together with an episodic major depressive disorder. He was granted a Totally and Permanently Incapacitated Pension in 1998 by reason of his condition. The respondent has been admitted as an inpatient to the Adelaide Clinic on four occasions and to Kahlyn Hospital on a further occasion as a result of his psychiatric condition. The psychologist, Ms Hart, also reported that the respondent has a history of suicidal ideation.
Dr Raeside concurred with the diagnosis of post-traumatic stress disorder and episodic major depressive disorder. He expressed the following opinion:
“Mr Bonnici clearly denied any wrongdoing in relation to the current matters. Given that he has been convicted and assuming therefore that he has indeed done the actions for which he is now incarcerated this would appear to represent considerable denial, failure to accept responsibility for his actions, and therefore a poor prognostic factor in relation to sexual offending.
Again, and assuming that Mr Bonnici is in fact guilty, the formation of his sexual relationship with a young teenage girl would appear to be consistent with his longstanding difficulties in interpersonal relationships, particularly with adult women, which he attributed to his difficulty coping following his Vietnam service. However, in my view, there is no clear indication associating his chronic Post-traumatic Stress Disorder and major depression with his sexual offending. Rather, there may be secondary effects, such as his poor social skills, somewhat isolative lifestyle, and the opportunity to engage in the sexual activity with the young victim. Whilst he may have perceived that she willingly engaged in much of the sexual activity, given her age she clearly could not adequately consent. Additionally, there is no reason by virtue of Mr Bonnici’s mental illness that would have made him unaware of the inappropriateness of his actions, either morally or legally.”
The sentencing judge was faced with the difficult task of arriving at a sentence which took into account the nature of the offending and the considerations personal to the respondent. These circumstances included the fact that the respondent had no relevant previous convictions and had taken on a role assisting Vietnam veterans suffering from disorders similar to his own.
As I have pointed out, the first offence took place when the complainant had just turned 13 years of age. As a result of the influence which the respondent had over her and the money which he spent on her he was able to secure her compliance with his sexual advances. Eventually an ongoing relationship developed between the two. The complainant accompanied the respondent on visits to his friends and on other social occasions. Although the respondent was charged with and found guilty of five offences, the prosecution led evidence of a course of conduct involving a sexual relationship which began when the complainant was 13 and ended when she was 17. It is implicit in the sentencing judge’s remarks that he concluded that there was a course of conduct extending over this period. In these circumstances it was appropriate for sentencing to take place on the basis of the continuing course of conduct which reduced the scope for leniency: R v Liddy(No 2) (2002) 84 SASR 231 at [67]-[70].
It is also relevant to note that the respondent was not entitled to any reduction in his sentence for remorse or for pleading guilty to the charges. Furthermore, the conduct was continued despite the fact that the police spoke to the respondent about the nature of his relationship with the complainant. It is clear that the conduct involved a serious breach of trust.
The respondent’s mental condition was a factor to be taken into account in sentencing. However, according to the view of Dr Raeside, there was no clear causal link between the disorder and the sexual offending; nor was there any suggestion of lack of awareness by the respondent of the inappropriateness of his conduct. Although the respondent’s condition was relevant to the sentencing process, it was not of such a nature as to reduce to any significant degree the importance of general deterrence: R v Engert (1995) 84 A Crim R 67 per Gleeson CJ at 71; R v Wiskich (2000) 207 LSJS 450 per Martin J at 457.
The sentence imposed on the respondent falls a long way outside the range of penalties considered appropriate for offending of this nature in R v D (1997) 69 SASR 413 and the cases which have followed it. It goes without saying that the individual facts of each case must be taken into account in arriving at an appropriate sentence. However, apart from the appellant’s mental condition, there was little in the circumstances which warranted the exercise of leniency. As I have said, the mental condition has some relevance but, in the light of Dr Raeside’s opinion, it could not justify a departure from sentencing standards to the extent reflected in the sentence imposed.
I have had regard to the authorities which refer to the principles applicable to prosecution appeals against sentence. They are summarised in R v Wiskich at 462-463. The occasions on which the court will interfere are rare. However I have reached the conclusion that, in sentencing the respondent, the learned sentencing judge failed to have sufficient regard to the particularly serious offending of which the respondent was found guilty. I have reached the conclusion that the sentence imposed on the respondent was manifestly inadequate and requires the intervention of this court so as to maintain adequate standards of punishment.
I would grant leave to the Director of Public Prosecutions to appeal. I would allow the appeal and set aside the sentence imposed by the District Court judge in relation to the offences charged in the information. In lieu thereof I would impose a sentence of imprisonment for six years and I would fix a non-parole period of three years, the head sentence and the non-parole period to commence 13 October 2004.
BESANKO J. I agree that leave to appeal should be granted to the Director of Public Prosecutions and that the appeal should be allowed. I agree with the orders proposed by Duggan J and with his reasons.
VANSTONE J. I agree with the orders proposed by Duggan J and with the reasons he has given.