R v C, M

Case [2014] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v C, M

[2014] SASCFC 62

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Bampton)

12 June 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES

Appeal against sentence.  The defendant pleaded guilty in the District Court to four counts of unlawful sexual intercourse with the one complainant, M.  The first two counts concerned acts of digital and penile penetration when M was aged 12 or 13 years.  The third and fourth counts alleged an act of penile penetration when the complainant was aged 15 years.  The defendant’s conduct breached the terms of a suspended sentence bond in relation to similar offending against M’s sister, J, which had taken place around the same period as the offending against M.  The defendant was sentenced 12 years after the offending ceased.  The defendant’s relationship with M was known to the Judge and authorities at the time he was sentenced in relation to offending against J, but no action was taken.  Since the offending ceased the defendant has totally rehabilitated.  The Judge imposed a sentence of imprisonment of six years in respect of all offending against M.  The Judge made a reduction of three years on account of the pleas of guilty.  The Judge revoked the suspension and ordered that the sentence of imprisonment of six years be cumulative on the revoked suspended sentence of imprisonment of one year and ten months.  As a consequence, the defendant faced a total sentence of imprisonment of seven years and ten months.  The Judge fixed a non-parole period of four years. 

Whether the Judge erred by failing to give adequate weight to the delay between the date of the offending and the date of sentencing.  Whether the Judge erred by failing to give adequate weight to the defendant’s rehabilitation.  Whether the Judge erred by failing to make the sentences concurrent.  Whether the sentence was manifestly excessive.

Held per Gray and Bampton JJ (Peek J agreeing) (allowing the appeal):

(1)  The Judge did not have proper regard to or give sufficient weight to the defendant’s rehabilitation and the delay between offending and sentencing.

(2)  The Judge erred in making the sentences cumulative and by failing to have regard to the totality principle.  The offences were closely related and the sentences should have been made concurrent.

(3)  In the circumstances, the sentence was manifestly excessive.

(4)  Defendant resentenced to a term of imprisonment of three years and nine months.  The suspended sentence is revoked, to be served concurrently.  Non-parole period of 18 months fixed.

Criminal Law Consolidation Act 1935 (SA)…

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R v C, M [2014] SASCFC 62
Case
[2014] SASCFC 62
Decision Date

CaseChat Overview and Summary

The Court of Criminal Appeal of South Australia, constituted by Gray, Peek and Bampton JJ, heard an appeal by C against a sentence imposed by a sentencing judge. C was convicted of four counts of unlawful sexual intercourse, representing a course of conduct with M, who was between 12 and 17 years of age during the offending period. C complained that the head sentence and non-parole period were manifestly excessive, and that the sentencing judge erred in several respects, including failing to consider concurrency, being unaware of a prior police investigation, and inadequately weighing C's rehabilitation.

The legal issues before the Court of Criminal Appeal included whether the sentencing judge erred by failing to consider the concurrency of the sentence for the breaching offence with the revoked suspended sentence. The Court was also required to determine if the sentencing judge gave insufficient weight to C's rehabilitation between the time of the offending and the sentencing, and whether the judge was aware of and adequately considered a prior police investigation into the offending in 2000, which had not resulted in prosecution at that time.

The Court applied principles concerning the impact of delay and rehabilitation on sentencing. It referred to established authorities, including *R v Todd*, *Kernich v Director of Public Prosecutions (Cth)*, and *Duncan v The Queen*, which emphasise that fairness to an offender requires consideration of their rehabilitation during periods of delay between offending and sentencing. The Court noted that such delay, particularly when coupled with substantial and successful rehabilitation efforts, can necessitate a flexible and understanding approach to sentencing, potentially leading to leniency. The Court also acknowledged that the Director's Counsel could not resist the Court sentencing afresh given the circumstances, including the failure to address concurrency and the diminished weight of personal deterrence due to rehabilitation.

The Court of Criminal Appeal allowed the appeal, quashed the sentence imposed, and remitted the matter for resentencing. The Court ordered that the sentence for the breaching offence be served concurrently with the sentence for the new offending, and that the sentencing judge should give adequate weight to C's rehabilitation and the delay in prosecution.

Orders

Orders of the court

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Background

Background to the litigation

Pursuant to the Court’s permission, C filed “consolidated grounds of appeal” complaining that the head sentence and non-parole period are manifestly excessive and that the sentencing Judge:·erred by failing to consider the question of concurrency in the revocation of a suspended sentence bond and the sentence for the breaching offence; ·was unaware that the offending had been investigated in 2000 and it was then considered by police that it was not in the public interest to prosecute at the time; and ·gave inadequate weight to his rehabilitation between the offending and the time of sentence when considering the question of personal deterrence. Background to the offending The four counts of unlawful sexual intercourse, as noted by the sentencing Judge, were representative of a course of sexual conduct between C and M from when she was aged 12 years until she turned 17. I set out a summary of the relationship between C and M. M and her sister J met C at his 21st birthday party when M was 12 and J was 14. The sexual relationship between C and M commenced by C touching M’s upper leg, kissing her neck and breasts and inserting his finger inside her vagina. M told C she did not want to have sex until she was 16. He first had penile vaginal intercourse with her when she was 12 years old. Following C’s first act of intercourse with M, C engaged in a sexual relationship with J (who was 18 months older than M) between January and April 1999. During the course of that relationship with J, C started to see M again. He sent love letters to her through her friends at school; he would pick her up from school and take her to his house to have sex and then he would take her back to school in time for her first lessons. Sexual activity between C and M included penile vaginal intercourse, fellatio and anal intercourse. C put pressure on M to have oral sex with him a couple of times a week. M’s statement refers to C “consistently watching porn” depicting men having sex with young girls with titles such as “barely legal” and “just teens”. At the age of 13 or 14, M started living with C. M recounted that not long after commencing to live with C, he hid her at his aunt’s home when Family Services came looking for her. M tried to break up with C but he would threaten to kill himself and the relationship continued. M became pregnant when she was 15 years old. In an unsuccessful attempt to abort the pregnancy, M was given tablets and alcohol by C’s family. An ultrasound scan performed at the Pregnancy Advisory Clinic on 20 January 2000 indicated she was approximately eight to nine weeks pregnant. M would have conceived in November 1999, some two months after C entered into the three year good behaviour bond. On 27 January 2000, M underwent a surgical termination of pregnancy. The sexual relationship continued following the termination and, within a year, M became pregnant again. On this occasion, she did not tell anyone until later in the pregnancy. During Year 10, at seven and a half months pregnant, she left school and gave birth to C’s son in March 2001.

Evidence

Evidence Before The Court

The sentencing Judge imposed a single sentence of imprisonment utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). He adopted a starting point of a head sentence of nine years’ imprisonment, which he reduced to six years having regard to C’s pleas of guilty. The Judge noted that the four counts before the Court were representative of a lengthy course of similar offending and that the accused would not be punished for anything other than the charges to which he had pleaded guilty. The Judge revoked the suspended sentence bond, ordered that the sentence of one year and 10 months be carried into effect, and ordered that the sentence he imposed be cumulative upon it. This resulted in a total sentence of seven years and 10 months’ imprisonment. His Honour set a non-parole period of four years, taking into account C’s personal circumstances and the seriousness of his offending. Fresh evidence During the hearing of the appeal C’s counsel handed to the Court a Police Incident Report (the Report). It was accepted by Counsel for the Director that the Report should be received by the Court as relevant evidence. The document records a report made by the mother of M and J on 2 October 2000 that M, who was 15 years of age, was in a sexual relationship with C and was pregnant. The Report was not put before the sentencing Judge nor would it appear were counsel aware of it at the time of sentencing submissions.Concurrency and apparent rehabilitation C’s counsel asked the Judge during sentencing submissions to order that the sentence he imposed be concurrent with the suspended sentence it was accepted he would revoke. Counsel for the Director acknowledged that the Judge did not refer to the issue of concurrency in the sentence. Counsel for the Director said she could not resist the Court sentencing afresh in these circumstances. She also agreed that it was clear that the weight to be given to personal deterrence is diminished having regard to C’s apparent rehabilitation.Grounds of appeal Pursuant to the Court’s permission, C filed “consolidated grounds of appeal” complaining that the head sentence and non-parole period are manifestly excessive and that the sentencing Judge:·erred by failing to consider the question of concurrency in the revocation of a suspended sentence bond and the sentence for the breaching offence; ·was unaware that the offending had been investigated in 2000 and it was then considered by police that it was not in the public interest to prosecute at the time; and ·gave inadequate weight to his rehabilitation between the offending and the time of sentence when considering the question of personal deterrence. Background to the offending The four counts of unlawful sexual intercourse, as noted by the sentencing Judge, were representative of a course of sexual conduct between C and M from when she was aged 12 years until she turned 17. I set out a summary of the relationship between C and M.

Decision

Reasons for decision

GRAY J PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J, PEEK J

A convenient starting point in relation to delay where rehabilitation has been achieved during that period is the decision of Street CJ in Todd, where the following observations were made:[4]… Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.[Emphasis added.][4] R v Todd [1982] 2 NSWLR 517, 520. These remarks have been approved in a number of subsequent decisions; see, for example, R v Suckling (1983) 33 SASR 133, 136; R v Pickard [2011] SASCFC 134, [21]-[29]; [50], [89]-[100]. In Kernich, Debelle J extracted the observations of Street CJ and remarked:[5]Those observations were made in circumstances different from these, but they are, nevertheless, relevant. The observations apply with even greater force when there has been an exceptional delay of this kind, and in that period of delay the offender has taken substantial and successful steps towards his own rehabilitation.[Emphasis added.][5] Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459. The following observation of the Court of Criminal Appeal of Western Australia in Duncan provides a further indication of the importance of rehabilitation in circumstances such as the within matter:[6]… Where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.[6] Duncan v The Queen (1983) 9 A Crim R 354, 356. In the Victorian Court of Appeal in Liang & Li, Winneke P, in allowing an appeal and suspending sentences of imprisonment, said: [7]His Honour has fallen into error in failing to pay any or any sufficient regard to the effects of the delay which occurred between the commission of these offences and the date of the plea and sentence. As I have already indicated, these offences were committed between May and August 1992, yet it was not until April 1995 that the applicants were sentenced. By this stage, as might well have been expected, the circumstances of the applicants had changed significantly. Each applicant had married, each had fathered a child and each had obtained stable employment. That delay, on the material available to the judge, was in no way attributable to the fault of either applicant and provided, in my view, a powerful mitigating factor which does not appear to have been afforded proper weight in the sentencing process.[Emphasis added.][7] R v Liang & Li (1995) 82 A Crim R 39, 45.