R v C, G (No 2)

[2013] SASCFC 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v C, G  (No 2)

[2013] SASCFC 84

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

16 August 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - HARDSHIP - TO OTHERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

The appellant was convicted in the District Court of four counts of unlawful sexual intercourse with his cousin who was 13 years old and five counts of unlawful sexual intercourse and one count of procuring an act of gross indecency with her twin sister.  The defendant was also convicted of persistent sexual exploitation of three male cousins who were approximately each under 17 at the time.

The Judge imposed a single sentence under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of 13 years imprisonment with a non-parole period of six and a half years.

The Director of Public Prosecutions seeks permission to appeal against the sentence on the ground that it is manifestly inadequate.

Held per the Court refusing permission to appeal:

1.      Permission to the Director to appeal against sentence should be granted only in rare exceptional cases in which it is necessary to establish and maintain adequate standards of punishment or correct idiosyncratic views, or where allowing the sentence to stand would shake public confidence in the administration of justice (at [6]).

2.      The Director has failed to establish that permission to appeal is necessary for one of the above purposes (at [22]).

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Everett v The Queen (1994) 181 CLR 295; The Queen v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Power v The Queen (1974) 131 CLR 623; R v Penno (2004) 236 LSJS 457, considered.

R v C, G  (No 2)
[2013] SASCFC 84

Court of Criminal Appeal:       Gray, Sulan and Blue JJ

THE COURT.

1. This is an application by the Director of Public Prosecutions for permission to appeal against sentence.

2. The defendant and respondent, following a trial, was convicted on four counts of unlawful sexual intercourse in relation to a female child, JM, and on four counts of unlawful sexual intercourse and one count of procuring an act of gross indecency in relation to JM’s twin sister, NM.  He pleaded guilty to one further count of unlawful sexual intercourse in relation to NM.  JM and NM were aged 13 years at the time of these offences. 

3. The defendant was also convicted following the trial on three counts of persistent sexual exploitation of a child, in each case a male.  Two of the male victims were under the age of 16 years and the third was under the age of 17 years at the time of the offending. 

4. The trial in relation to all offences was conducted in the District Court before a Judge alone.  The plea of guilty in respect of the earlier referred to offence of unlawful sexual intercourse was entered on arraignment before the trial Judge.  The defendant appealed against all verdicts of guilty, save for the one count in respect of which a plea of guilty had been entered.  This Court has dismissed that appeal.[1]

   [1]    R v C, G [2013] SASCFC 83.

5. The Judge considered it appropriate to exercise his powers pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and to impose the one sentence in respect of all the offending. The Judge sentenced the defendant to a term of imprisonment of 13 years and fixed a non-parole period of six years and six months. The Judge said that he fixed a lower than usual non-parole period to reflect the defendant’s rehabilitation, good character and future prospects.

6. The principles applicable to appeals against sentence by the Director are well established.  A court should grant permission only in the rare and exceptional case.[2]  It is insufficient for a grant of permission for the Director to demonstrate that error has occurred.  Permission should only be granted if it is necessary to enable the Court to establish and maintain adequate standards of punishment, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or if a sentence is so far below the appropriate range of sentence that it reflects an error of principle.[3]  If the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[4]

   [2]    Everett v The Queen (1994) 181 CLR 295.

   [3]    The Queen v Osenkowski (1982) 30 SASR 212, 213.

   [4]    R v Nemer (2003) 87 SASR 168, 172.

7. In the case of an offence involving the sexual exploitation of a child, the court in determining sentence is to give proper effect to the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence.  It is important that the public is aware that people who commit sexual offences against children will be brought to account for their crimes, no matter how much time may have passed.

8. The Director did not seek to identify any specific error on the part of the sentencing Judge.  The central argument advanced was that both the head sentence and the non-parole period were so low as to be manifestly inadequate and that the Judge must have erred in a manner not apparent in his sentencing remarks. 

9. The Director submitted that both the head sentence of 13 years and the non-parole period of six years and six months were manifestly inadequate having regard to the need to adequately punish the defendant; the importance of deterrence in sentencing for this type of offending; the fact that the defendant was in a position of authority and the offending constituted a breach of trust; and the fact that the offending occurred over a prolonged period and involved five separate victims and five separate sets of offending. 

10. The defendant pleaded guilty to one count of unlawful sexual intercourse but disputed all other charges.  He continued to maintain his innocence of those offences of which he was found guilty at the time of sentencing.  It was said that the defendant has demonstrated no real remorse or regret for his actions and that the offending caused profound and ongoing harm to all victims. 

11. The purpose of a non-parole period is to provide for conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of the offence.[5]  The Director, as noted above, submitted that the non-parole period was manifestly inadequate. 

    [5]    Power v The Queen (1974) 131 CLR 623.

12. All factors relevant to the imposition of a head sentence are also relevant to the fixing of a non-parole period.  In particular, the requirements of punishment, general deterrence and personal deterrence must be reflected.  The Director contended that a non-parole period of six years and six months failed to properly mark the gravity of the defendant’s offending, failed to provide adequate punishment and would not operate as a deterrent to others.

13. The Director submitted that the weight to be given to rehabilitation and future prospects had to be assessed in light of the defendant’s continued denial of all offending save for one count of unlawful sexual intercourse, the defendant’s failure to demonstrate any contrition or remorse and the absence of any explanation or insight into the offence to which the defendant pleaded guilty.

14. The Director accepted that the defendant’s good character since the offending was a relevant factor in sentencing, but it was contended that it should be borne in mind that the defendant had had the benefit of living free in the community, escaping the consequences of his crimes for a considerable time and without the blight of the convictions for these offences on his character.

15. The Judge when sentencing noted that the defendant owed a special duty of care to the victims as they were his younger cousins:

    ... They enjoyed your company and enjoyed being in your life.  They looked up to you.  Their parents trusted you as a fit and proper person to look after their children.  Unfortunately, for your own gratification, you breached the trust that was imposed on you.  Most of the offending occurred over 20 years ago now and there is no suggestion that you have been other than a hardworking and productive member of the community and a devoted father and husband in the interim.

    The Judge had regard to the impact of the offending on the victims:

    You have heard read a number of the victim impact statements.  They speak eloquently of the effect of your offending has had on the lives of these people.  It has not just affected them at the times the events were happening.  It is clearly something that has been dominating their thinking processes ever since.

    The Judge in determining the appropriate sentence to be imposed recognised the need to balance all relevant matters:

    ... I must take into account your breach of trust and the ongoing nature of your offending and the concept of general deterrence.  I must also try and allow some scope for your 20 odd years free of offending, your good character in the interim and beforehand and the manner in which you have established yourself in the community in Western Australia.  I do not think you will offend again.

    In fixing the non-parole period the Judge observed:

    ... I reflect your rehabilitation, your good character and your future prospects in nominating a lower than usual non-parole period.  The non-parole period I fix is six years and six months.

16. The Director identified two matters that it was said may have led to the suggested inadequacy of sentence.  It was claimed that the Judge had an erroneous understanding that the defendant had led a life free of offending for some “20 odd years”.  It was pointed out that one of the incidents of offending had occurred at some time after 2001.  It was further claimed that the Judge inappropriately took into account the impact of a custodial sentence on the defendant’s family. 

17. In the first of the above extracts, it is to be noted that the Judge correctly understood that most of the offending occurred 20 years ago.  Later references to 20 years in his remarks must be understood against this explicit reference to the fact that not all the offending had occurred 20 years ago.  We do not consider that the Judge proceeded under any misapprehension of fact.

18. In R v Penno, Gray J observed:[6]

    As some degree of hardship will invariably be suffered by dependants of a defendant upon imprisonment, hardship to those dependants will not generally to be taken into account in a defendant's favour except in extreme or extra-ordinary circumstances. In other words, the hardship must be of such a serious character as to call for a merciful approach to sentencing.

    [6]    R v Penno (2004) 236 LSJS 457, 465.

19. It is to be accepted that the Judge bore in mind that the sentence that he proposed to impose would bear heavily on members of the defendant’s family, many of whom reside in Western Australia.  Earlier in his remarks, the Judge had addressed this topic as follows:

    Your children are 18 years and 16 years old respectively.  The sentence that I must impose upon you will fall heavily on them.  It will also fall heavily on you as you are at the stage of your life when your children are growing up and will be ready to leave home, find their partners and establish their independence.  It will also fall heavily upon your wife who has stood loyally by you even though she was aware at least of the offending to which you pleaded guilty in count 5.

    However, there is nothing in the Judge’s observations to suggest that he gave inappropriate weight to any of these considerations.

20. The circumstances of this case do not require this Court to interfere with the sentence in order to maintain adequate standards of punishment.  It cannot be said that this case demonstrates an idiosyncratic view of the Judge, nor do we consider that the sentence imposed would erode public confidence in the administration of justice if permission were not granted.

21. It is to be accepted that the non-parole period was merciful.  We do not, however, consider that there was an error of principle in the approach taken by the Judge in respect to the fixing of the non-parole period. 

22. In summary, the application for permission to appeal does not raise any issue of principle that would warrant a grant of leave to appeal.  No error in approach has been identified.  The real question on appeal is whether the sentence is manifestly inadequate, and whether the inadequacy is sufficient to warrant the grant of leave to appeal.  For the reasons discussed above, the sentence imposed was within the sentencing discretion of the Judge.

23. We refuse the application by the Director of Public Prosecutions for permission to appeal against the sentence.