R v BOTTERILL

[2011] SASCFC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BOTTERILL

[2011] SASCFC 47

Judgment of The Court of Criminal Appeal

(The Honourable Justice White, The Honourable Justice Kelly and The Honourable Justice Peek)

23 May 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence – appellant convicted of one count of indecent assault and sentenced to 14 months imprisonment with a non-parole period of eight months – where victim the appellant’s step-granddaughter who was 12 or 13 years of age – offending occurred in the appellant’s home – appellant 67 years of age and in receipt of disability pension – appellant ostracised by family as a result of offending – appellant had no prior convictions – whether sentencing Judge erred in placing too much weight on appellant’s failure to plead guilty and lack of contrition – whether sentence manifestly excessive – whether sentencing Judge erred in failing to suspend the term of imprisonment.

Held: (Kelly J, White and Peek JJ concurring): Appeal dismissed – serious offence against a child of 12 or 13 years involving a breach of trust called for a substantial sentence of immediate imprisonment to reflect general deterrence – sentencing Judge did not place inappropriate emphasis on the failure to plead guilty and lack of contrition – sentence not manifestly excessive – sentencing Judge did not err in failing to suspend the term of imprisonment.

Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
R v Horstmann [2010] SASC 103, considered.

R v BOTTERILL
[2011] SASCFC 47

Court of Criminal Appeal:   White, Kelly and Peek JJ

1. WHITE J. I would dismiss the appeal.  I agree with the reasons of Kelly J.

2. KELLY J. This is an appeal against sentence. 

3. After a trial by jury on three counts of a sexual nature the appellant was convicted of one offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). That offence carries a maximum penalty of eight years imprisonment. At his trial the appellant was found not guilty of one count of persistent sexual exploitation of a child. The jury was unable to reach a verdict in relation to one count of unlawful sexual intercourse with the same victim.

4. On 22 October 2010 the District Court Judge sentenced the appellant to 14 months imprisonment and set a non‑parole period of eight months.  The Judge declined to suspend the sentence. 

5. On appeal the appellant contends that the sentence was manifestly excessive and that good reason should have been found to suspend the sentence.  Particular complaint was made of some remarks which the sentencing Judge made during submissions concerning the appellant’s failure to plead guilty and the lack of contrition shown by the appellant. 

   The Facts

6. The victim was the step‑granddaughter of the appellant.  The offence of indecent assault occurred at the home of the victim’s grandmother and the appellant in Elizabeth South.  The exact date of the offending was never clarified but the evidence at trial suggested that it occurred sometime in 2002 or 2003 when the child was 12 or 13 years of age. 

7. The appellant had access to the victim by virtue of the fact that his wife, the victim’s maternal grandmother, often cared for the victim after school and during school holidays.  The indecent assault occurred while the victim was sitting on the appellant’s lap at the kitchen table.  When no other person was present the appellant rubbed the victim’s vagina underneath her clothes and made remarks to the effect of “you’re growing pubes”. 

   The Sentencing Judge’s Remarks

8. The Judge noted the appellant’s personal circumstances including the fact he was 67 years of age, the fact that he was in receipt of a disability pension on account of injuries to his back and neck, and the fact that this offending has caused a rift within his family to the extent that the appellant has been ostracised socially by all of his family except for his brother.  The appellant had no prior convictions. 

9. During the course of sentencing submissions the following exchange occurred between the sentencing Judge and trial counsel:

   HIS HONOUR:    He hasn’t admitted his guilt, he has denied his guilt, he has put this girl through the ordeal of giving evidence.  Has he learned from his conduct?  I don’t know. It would seem not on the face of the jury’s verdict?

   MR STEWART:   Can I ask how your Honour would take that view from the jury’s verdict?

   HIS HONOUR:     They found him guilty of indecent assault.

   MR STEWART:    And not guilty of more serious offences.

   HIS HONOUR:    Theoretically, why hasn’t he apologised for the indecent assault that he perpetrated against this girl?

   MR STEWART:    He denies his guilt.

   HIS HONOUR:    That’s right, he has not admitted his guilt in relation to a serious sexual offence committed against a 12 or 13-year-old child.

   MR STEWART:    That’s correct.

   HIS HONOUR:    So to what extent has he learned from his conduct? There is no evidence of contrition or remorse.

   MR STEWART:   There is no evidence of contrition or remorse, I accept that, and obviously that’s taken into account because he gets no reduction in sentence for the fact that he took his course to trial …

   That doesn’t stop your Honour from embarking on an inquiry to see if there are good reasons to suspend a sentence. …

   HIS HONOUR:    I would be more confident he would not reoffend if he put his hand up and said ‘I did it’.  But as I said there is no evidence of contrition or remorse.

   MR STEWART:   No, I accept that. … There’s obvious limits to what counsel would submit on sentence when there’s an appeal at large.

   HIS HONOUR:    Do you want to get instructions from him as to whether he wants to apologise to this young girl?

   MR STEWART:    I don’t, that would be an imprudent course for me to take.

10. The appellant appealed his conviction and in due course the Court of Criminal Appeal dismissed the appeal against conviction. 

    Discussion

11. Counsel for the appellant submitted that a sentence of 14 months imprisonment and a non‑parole period of eight months in respect of a one‑off offence was manifestly excessive.  Moreover, in light of the appellant’s antecedents and the circumstances of the offending it was not open to the learned sentencing Judge to refuse to suspend the sentence of imprisonment.  He pointed to the fact that the offence itself did not involve any penetration, that since the offending the appellant has been the subject ridicule and social isolation, and the fact that the appellant is now a man of advanced age and suffers from a number of health conditions.  Counsel for the appellant submitted that in light of the sentencing Judge’s remarks during submissions, the appellant had in effect been subjected to extra punishment for failing to plead guilty.  At the very least it was submitted that the lack of a guilty plea and the lack of contrition loomed far too large in the Judge’s mind when determining whether the discretion to suspend the sentence should be exercised.

12. In my view no error in the approach taken by the sentencing Judge has been demonstrated.  He found, correctly in my view, that this was a serious offence perpetrated on a young child aged 12 or 13 involving an abuse of trust for the appellant’s own sexual gratification.  The sentencing Judge noted the likely psychological and emotional trauma suffered by the victim and the need to protect children from such criminal conduct.  That finding was supported by the victim impact statement tendered during sentencing submissions.

13. I agree with the observations of Gray J in R v Horstmann[1] that for indecent assaults against children there should be a strong component of deterrence in the sentence imposed and the further observation that a substantial sentence of immediate imprisonment will generally be appropriate. 

    [1]    R v Horstmann [2010] SASC 103 at [24].

14. In this context it is instructive to note that the primacy of general deterrence when sentencing for sexual offences against children has been enshrined in the Criminal Law (Sentencing) Act 1988 (SA), s 10(4). That section was introduced in 2005 and relevantly states:

    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.

15. I cannot agree with the submission that the sentencing Judge’s remarks reveal an inappropriate emphasis by the Judge on the appellant’s not guilty plea.  Clearly in offences of this nature, and particularly when consideration is given to the exercise of the discretion to suspend, an offender’s contrition and remorse is an important factor.  Contrition and remorse can be evidenced by a plea of guilty or it might be evidenced in other ways even after conviction by a jury.  Upon my reading of the transcript, the sentencing Judge in the exchange complained of was giving the appellant an opportunity to acknowledge his offending and indicate some contrition.  He noted, correctly in my view, that a court might be more confident that an offender would not reoffend if the offender is able to acknowledge his wrongdoing. 

16. The fact that for his own reasons the appellant was not ready, willing or able to express any remorse for his offending whether by reason of his appeal or for any other reason does not mean that the sentencing Judge could not take into account the lack of contrition evidenced.  Even after his appeal against conviction was dismissed on 21 September 2010 the appellant’s attitude did not change. 

17. It is to be accepted that a substantial sentence has been imposed in this case for an offence which the Judge found to have been an isolated instance.  However in my view it has not been demonstrated that the sentence is manifestly excessive nor has any error in the approach of the sentencing Judge to the exercise of the discretion not to suspend been identified.  The appellant’s offence constituted a serious breach of trust by a man who stood in the position of de facto grandfather to the child.  It has had permanent and lasting effects on the child and the rest of the family. 

18. It has not been suggested that the sentencing Judge failed to have regard to any material matter.  For the reasons I have already expressed I do not consider the Judge’s treatment of the not guilty plea or the failure to express any contrition or remorse on the part of the appellant, was in error.  On the contrary it was an important and relevant factor to take into account.  It has not been suggested that the sentencing Judge took into account any other irrelevant matter. 

19. Merely because it was open in this case to the sentencing Judge to exercise the discretion to suspend one way or the other, does not establish that the failure to exercise the discretion to suspend was therefore an error.  In the absence of error it is not for this Court to substitute its own view for that of the sentencing Judge.  The circumstances in which an appellate court will interfere with the exercise of the sentencing discretion are well known and limited.  Whether or not there is good reason to suspend a sentence of imprisonment is a matter which the court must consider in light of all the circumstances including both the objective seriousness of the offending and the mitigating factors.  That is the approach taken by the sentencing Judge in this case.  He determined in the end that it was not appropriate to exercise the discretion. 

20. For these reasons I would dismiss this appeal.

21. PEEK J.    I would dismiss the appeal.  I agree with the reasons of Kelly J.