R v Byars - [2005] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BYARS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Besanko)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
The appellant pleaded guilty in the District Court to: one count of indecent assault and nine counts of unlawful sexual intercourse for which he was sentenced to nine years and six months' imprisonment; one count of possessing child pornography for which he was sentenced to six months' imprisonment to be served concurrently; and 14 counts of larceny as a servant for which he was sentenced to two years' imprisonment to be served cumulatively - the total head sentence was 11 years and six months' imprisonment with a non-parole period of six years - the appellant appeals on the grounds that the Judge erred by not applying an appropriate sentence, in the circumstances, for the sexual offending and that the sentence is manifestly excessive - starting points for sentence in matters of unlawful sexual intercourse - mitigating factors that might apply - aggravating factors that might apply - overall category of offending - whether the sentence is appropriate in all the circumstances - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 176 (repealed); Summary Offences Act 1953 (SA) s 33(3), referred to.
R v D (1997) 69 SASR 413, discussed.

R v BYARS
[2005] SASC 86
Court of Criminal Appeal: Doyle CJ, Duggan and Besanko JJ

DOYLE CJ: This is an appeal against a sentence imposed by the District Court. It is brought by leave of a Judge of this Court.
The offences and the sentence
The appellant pleaded guilty to all of the offences in question.
The first group of offences comprised one count of indecent assault and nine counts of unlawful sexual intercourse with a person of the age of 14 years. The offences were committed between June 2002 and March 2003. In each case the victim was the same young boy. The offences of unlawful sexual intercourse included four counts involving fellatio upon the appellant, two counts involving fellatio on the boy, one count of digital anal intercourse with the boy, and two counts of anal sexual intercourse with the boy.
The pleas of guilty were entered on the basis that over a period of 12 months, from June 2002 to July 2003, like offences had been committed on almost a daily basis, and sometimes more than one offence on a day.
The offence of indecent assault attracts a maximum punishment of imprisonment for ten years. The offence of unlawful sexual intercourse attracts a maximum punishment of imprisonment for seven years.
The appellant pleaded guilty to one count of possessing child pornography on 3 July 2003, contrary to s 33(3) of the Summary Offences Act 1953 (SA). That offence attracts a maximum punishment of imprisonment for one year or a fine of $5,000. The appellant was found to be in possession of a large amount of pornographic material in hard copy and electronic form. A small proportion of the material included sexual explicit images of young boys.
Finally, there was a group of 14 offences each being the offence of larceny as a servant. They were committed between January 2003 and July 2003. The appellant stole $37,304.72 from his employer. These charges were laid under the now repealed s 176 of the Criminal Law Consolidation Act 1935 (SA), and each offence attracts a maximum punishment of imprisonment for eight years.
For the first group of offences the Judge imposed a single sentence of imprisonment for 9 years 6 months, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). He referred to the decision of this Court in R v D (1997) 69 SASR 413 as providing guidance. In that case I said at 423-424:
“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. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.
…
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) Act1988 (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.
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.”
Bleby J agreed with those observations. Those observations have subsequently been applied in a number of decisions in this Court and by single judges.
For the possession of child pornography the Judge imposed a sentence of imprisonment for six months, and directed that that sentence be served concurrently with the sentence just referred to.
For the offences of larceny, the Judge exercised the powers conferred by s 18A and imposed a single sentence of imprisonment for two years, and directed that that sentence be served cumulatively upon the other sentences.
That led to a combined head sentence of 11 years 6 months. The Judge fixed a non parole period of six years. He directed that it commence on 1 August 2003, when the appellant was taken into custody.
Circumstances of the offences
The circumstances of these offences are unusual, and reveal a very serious course of offending.
The appellant was employed in a shop in a suburban shopping centre. The boy, who had just turned 14, went to the shop to pay for some items on lay‑by. He and the appellant struck up a conversation, and the boy spent some time at the shop.
Rather surprisingly, the boy asked the appellant to lend him $20. He asked how he could earn $20. The appellant asked him to go into the storeroom and take off his top, which the boy did.
This led to a series of events over the next few days. The boy returned to the shop and asked for more money. The appellant gave the boy more money, in return for him first taking off other items of clothing, and then in return for the boy allowing the appellant to touch his penis. That incident was the subject of the first count.
The boy continued to return to the shop, asking for increasing amounts of money, which the appellant willingly supplied. In return the appellant sought from the boy an increasing level of sexual intimacy, which progressed to acts of fellatio and other forms of intercourse. By Christmas 2002 the appellant was apparently giving the boy about $200 a day, with which the boy was buying alcohol, cigarettes and marijuana.
The offending conduct continued during 2003 both at the shop where the appellant worked and at the appellant’s home. The appellant continued to bribe the boy with money stolen from his employer.
In short, the appellant embarked on a course of unlawful conduct with this young boy, in the course of which the boy was corrupted, using the employer’s money as an inducement.
The conduct came to light when the boy disclosed to a friend what was happening. In due course the police went to the appellant’s home, and the pornographic material was found there. Irregularities in the banking of takings at the shop then came to light. An audit disclosed that between January and June 2003 over $37,000 had not been banked. The Judge said that much of this was given by the appellant to the boy. It indicates the scale of corruption and the scale of offending.
The appellant was not in a position of trust in relation to the victim. Many offences involving sexual offending against young children are committed by persons in a position of trust. But in the present case there are other circumstances that satisfy me that the absence of any abuse of a position of trust is not a mitigating factor. The appellant systematically exploited the boy’s desire for money and other benefits in a calculated fashion. The boy came from a disadvantaged background. The appellant must surely have realised that. He relied on the boy’s immaturity and his vulnerability to inducements. The systematic and prolonged way in which he exploited the boy is a circumstance of the utmost gravity. He used his employer’s property to that end. While one might think that detection was inevitable, the offending stopped only when the boy disclosed what was happening.
The appellant had to be sentenced on the basis that the offences charged involved corruption of the boy sexually and through money, and on the basis that the offences were committed against a background of like conduct.
The victim will find it difficult to get over effects of this offending. A Victim Impact Statement, completed when he was 15 years of age, suggests that he is seriously disturbed by the experience.
I record that the Judge reduced the sentences that otherwise would have been imposed by 20 per cent on account of the pleas of guilty.
The appellant’s circumstances
The appellant was 40 years of age when sentenced. He had no relevant convictions. Some years back he had been involved in a failed business, and his parents lost money as a result of that. Subsequently his father suffered a stroke and died. The appellant was affected by deep feelings of guilt, blaming himself for what had happened to his parents.
Despite this he had a reasonable employment record. But for many years prior to the offending he had abused alcohol to escape from his feelings of guilt, shame and depression. He drank heavily while working.
The appellant said that he had collected the pornographic material out of curiosity. He told a forensic psychologist, whose report was before the Judge, that his sexual orientation was predominantly homosexual. However, he denied sexual contact with young people, other than the boy in question.
In short, the appellant depended on alcohol to relieve his feelings of anxiety, and the abuse of alcohol probably contributed to the offences by reducing any feelings of anxiety he might have had about the consequences of the offending conduct. But, as the psychologist observed, the use of alcohol was “neither a necessary nor sufficient cause of offending”. Not surprisingly the psychologist recommended that Mr Byars should have treatment for his alcohol dependence, and treatment through a sexual offenders’ treatment program.
Issues on appeal
Mr Mead, counsel for the appellant, made the point that the Judge did not explain why he took 12 years as a starting point. Mr Mead submitted that there was no reason to start any higher than 10 years, relying on my observations in D. He also emphasised that in this case there was no abuse of a position of trust.
He pointed also to the appellant’s previous good record, to the contrition and regret that he had expressed, and to the appellant’s recognition of the need for treatment. He emphasised the role played in the offending conduct by the appellant’s feelings of guilt, and the alcohol dependence that developed.
I have already explained why I regard the present case as being every bit as serious as the more commonly occurring type of case, in which an offender engages in a course of sexual misconduct, taking advantage of a position of trust. The appellant’s case cannot be regarded as any less serious than a case of that kind, and in my opinion taken overall is in the category of the more serious kind of offending.
It was open to the Judge to take the view that the first group of offences warranted a sentence of 12 years’ imprisonment subject to the reductions that he made. There was no particular need to explain why he did not take a sentence of 10 years’ imprisonment as a starting point. The submission that the difference called for a direct explanation ignores the fact that my observations in D did not, as I attempted to make clear, provide a precise figure or starting point. I consider that the circumstances of the present case provide an obvious basis for a conclusion that the case called for more severe punishment than was suggested in D.
In my view, the sentence imposed for the first group of offences was appropriate.
No specific complaint was made about the sentence imposed for the offence of possessing pornography.
Nor was any particular complaint made about the sentence imposed for the larceny offences. I regard the sentence for those offences as a merciful one. The order that the sentence be served cumulatively was an appropriate one.
Standing back and considering the sentence as a whole, I regard it as an appropriate sentence. The Judge imposed a substantial period of imprisonment. This is a heavy punishment for a person who has never been in prison before. But the seriousness of the offending left the Judge with no choice but to act as he did.
The non parole period was moderate, and no complaint can be made about that.
For those reasons I would dismiss the appeal.
DUGGAN J: I agree that this appeal should be dismissed. I agree with the reasons prepared by the Chief Justice.
BESANKO J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice.