R v BULLOCK - [2005] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BULLOCK
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Vanstone and The Honourable Justice Anderson)
18 May 2005
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
Appeal against sentence - unlawful sexual intercourse with a person under 12, two counts of serious criminal trespass, larceny - whether sentence imposed manifestly excessive - whether starting point for major offence too high - appeal allowed, head sentence for major offence reduced.
Criminal Law (Sentencing) Act 1988, s 18A, referred to.
R v D (1997) 69 SASR 413; R v Lees [2004] SASC 390; R v Monks [2002] SASC 352, discussed.
R v LLK (2003) 231 LSJS 458; Cameron v The Queen (2002) 209 CLR 339, considered.

R v BULLOCK
[2005] SASC 177
Court of Criminal Appeal: Bleby, Vanstone and Anderson JJ

BLEBY J: I agree with the orders proposed by Vanstone J and with her Honour’s reasons. I have nothing to add to those reasons. I also agree with her Honour’s observations on the procedure that was adopted in this case.
VANSTONE J. This is an appeal against a sentence imposed in the District Court for unlawful sexual intercourse with a person under the age of 12 years, two counts of serious criminal trespass and one offence of larceny. The learned sentencing Judge imposed head sentences totalling eleven years and a non-parole period of six years.
The appellant first appeared before the District Court on 12 January 2004 on an information charging two counts of unlawful sexual intercourse with a person under 12. On that occasion he pleaded not guilty. On 20 July 2004 he was arraigned on the second count of that information and pleaded guilty. Ms L Boord, for the Director of Public Prosecutions, indicated that the Crown was not proceeding on count 1 although it stood by the allegation. Apparently an arrangement had been reached whereby the court was to be invited to take into account the facts upon which count 1 was based in determining the sentence for count 2, but count 1 itself was not to be further prosecuted. In my view this is an unsatisfactory state of affairs since it means that so far as the record stands there has been no disposition of count 1. The “Report of Prisoner Tried” is marked, against count 1, “not proceeded with”. Additionally it smacks of being a device, presumably used during negotiations to secure a plea of guilty, but which imparts a measure of inconsistency to the process, thereby tending to undermine its integrity.
On 27 October 2004 the Judge was invited to call for an Adelaide Magistrates Court file which contained the information charging the dishonesty offences. Subsequently the appellant pleaded guilty to all three of those charges. The first two of those occurred at business premises at Edwardstown. The appellant broke into those premises by removing glass from a rear door and stole security cameras, computer monitors, an intercom and other smaller items of the value of about $4,400. Blood which matched the appellant’s DNA profile was located there. The third count concerned the entry into premises of the Basketball Association at Marion by jemmying a door. Again blood consistent with being the appellant’s was found inside the premises. The maximum penalty for the serious criminal trespass offences is ten years imprisonment.
The victim of the unlawful sexual intercourse offence was related to the appellant’s wife and was only six years of age at the time of the offence. The appellant was in a position of trust with respect to her. The offence occurred at a bedroom in his house, which the victim was visiting. On that occasion the appellant penetrated her vagina with his penis and ejaculated. Afterwards the girl complained to another family member and the police were called. After medical examination DNA material consistent with having come from the appellant was found on swabs taken from the victim’s vagina. That event occurred against the background of the earlier incident, formerly charged as count 1, which consisted of causing the child to perform an act of fellatio upon him. It further occurred against the background of one or more other incidents of a sexual nature over an unspecified period about which the Judge made no finding. The maximum penalty for unlawful sexual intercourse under 12 is life imprisonment.
The appellant was 39 years of age at the time of sentence. He had a long history of prior offending mostly for dishonesty offences and had previously served a number of terms of imprisonment.
The plea of guilty to the most serious offence was entered on the day the appellant’s trial was to take place. The victim and other witnesses had been “proofed” to prepare them to give evidence. In those circumstances only limited credit could properly be given for the plea.
The sentencing Judge had before him a report of Mr Fugler, a forensic psychologist. Mr Fugler referred to the appellant’s statement to him that on the day of the offence he had ingested cannabis, paracetamol and MS Contin. Mr Fugler said that this might have led to disinhibited behaviour on the appellant’s part. That apart, he could not offer any insight into the offending. He observed that the appellant seemed to have little understanding of the negative impact his offending was likely to have upon the victim.
On the major charge the Judge indicated a starting point of ten years, which he reduced to nine on account of the plea of guilty. In respect of the dishonesty offences the Judge fixed one penalty pursuant to s 18A Criminal Law (Sentencing) Act 1988, being two years imprisonment. He indicated that he had there given credit of six months for the pleas. He ordered that the two sentences be served consecutively and in respect of the total head sentence of eleven years he fixed a non-parole period of six years. He backdated the sentence to 15 September 2003, when the appellant went into custody.
On appeal the sole argument advanced was that the starting point selected by the Judge for the major offence was too high. Reference was made to R v D (1997) 69 SASR 413 which was the case in which this Court warned that, in future, repeated offences of unlawful sexual intercourse should be dealt with more severely than previously. The Chief Justice, with whom Bleby J agreed, said (at 424) as follows:
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 reduction on account of a plea of guilty, co-operation with the police, genuine 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.
It is not suggested that the case at bar is one to which this warning directly applies. The offence there referred to was persistent sexual abuse of a child. That provided the context in which the warning was given. In giving it the Chief Justice spoke of “multiple offences committed over a period of time”. In the case now under consideration there was only one offence for which sentence was to be imposed and the admitted similar conduct was not shown to extend over any significant period of time. Whilst the Judge did not refer to this case in his sentencing remarks he was referred to it by prosecuting counsel and it seems to me that in order to select a starting point as high as ten years, he must have had it in mind.
In substantiating his argument, the appellant’s counsel made particular reference to two decisions of this Court dealing with sentences for comparable courses of offending. The first of those was R v Lees [2004] SASC 390. There the appellant pleaded guilty to two counts of unlawful sexual intercourse consisting of digital penetration upon an eight year old girl on two separate occasions and one count of indecent assault on the girl’s thirteen year old brother. The offences were said not to be isolated ones. The appellant was the guardian of the children at the time of the offences. A total head sentence of seven years and two months was imposed and was upheld on appeal. In R v Monks [2002] SASC 352 this Court reduced sentences totalling seven and a half years imprisonment with a non-parole period of five years for one count of unlawful sexual intercourse on a person under 12 and indecent assault upon the same child. The most serious offence occurred when the appellant took the child to an abandoned church at Millicent. There he had sexual intercourse with her by penetrating her vagina with his penis. The appellant had been acquitted of two other offences of the same type. The conviction for indecent assault related to an incident at the prisoner’s home in which he made the child handle his penis. The Court found that the sentencing process was marred by error and proceeded to re-sentence the prisoner. It imposed a global sentence of six years and a non-parole period of four years.
I do not consider that either of these cases set any sort of standard for offending of this type, but they do tend to indicate something of the range of sentences customarily imposed in these cases. In both cases the offender was convicted of more than one offence.
The appellant’s crime was undoubtedly a serious one. I have referred to the very young age of his victim, the fact that she was a family member and that he was in a position of trust with respect to her, the fact that it was not an isolated incident, his limited insight into the seriousness of his conduct and his extensive criminal history. These matters dictated that the sentence imposed be a heavy one. However, even giving full allowance to those factors it seems to me that a starting point of ten years for a single offence of this type is very severe. The Judge’s sentencing remarks do not make it clear why he selected a starting point which, as seen, is within the range appropriate for multiple offences of this type committed over an extended period. Perhaps the Judge was inclined to approach the matter as if he were indeed sentencing for more than one offence. The stance of the Director could conceivably have confused the issue. But plainly he could be sentenced only for the offence of which he was convicted, albeit not on the basis that it was an isolated act: R v LLK (2003) 231 LSJS 458 per Doyle CJ.
The suggestion that the sentencing process may have been infected by error is reinforced, in my mind, by the fixing of a non-parole period which was low in relation to the head sentence. Had the Judge chosen such a high starting point as a reflection of a combination of the appellant’s bad criminal record or his limited insight into what he had done and poor rehabilitative prospects or indeed just because he viewed the offence as being a particularly bad example of its type, then one would have expected the non-parole period to comprise a much greater proportion of the head sentence. The fact that it does not, leads me to a conclusion that the sentencing process was flawed. But in any event, even giving full allowance to the serious nature of this offence and the other aggravating features I have mentioned, I have concluded that the head sentence falls outside the range of sentences appropriate to it. It is, in my view manifestly excessive.
I pause to say something about the credit of one year given by the Judge for the appellant’s plea of guilty on the main charge. There are no strict rules about the extent of credit to be allowed. It is a matter of discretion. I should have thought that an allowance of 10 per cent was overly generous for such a late plea, there being no demonstrated contrition and remorse and little, if any, indication of a willingness to facilitate the course of justice. (See Cameron v The Queen (2002) 209 CLR 339, 343.) Since, on my analysis, the appellant should be sentenced afresh for this offence, the question of credit should also be reassessed, along with the non-parole period.
Accordingly, I would set aside the sentence imposed for the offence of unlawful sexual intercourse under 12. In its place I would impose a head sentence of seven years, having allowed credit of six months for the very late plea of guilty. I would order that the sentence imposed by the Judge of two years for the dishonesty offences be served cumulatively, giving a total head sentence of nine years. In relation to that head sentence I would set a non-parole period of six years. A lesser period in my view cannot be justified having regard to the appellant’s antecedents and lack of insight into the results of his conduct, and to the seriousness of the offence itself. I would order that the sentence commence on 15 September 2003 when the appellant was taken into custody.
ANDERSON J I agree with the reasons of Vanstone J and with the orders which she proposes.