R v C, Om - [2005] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, OM
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)
23 February 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Appeal against sentence - unlawful sexual intercourse with daughter - sexual misconduct over period of eight years - attempt to procure abortion - sentence of 23 years with a non-parole period of 15 years 6 months - whether term of imprisonment manifestly excessive - sentence within bounds of sentencing discretion - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Liddy (No 2) (2002) 84 SASR 231; R v Hooper (1995) 64 SASR 480, applied.
R v D (1997) 69 SASR 413, distinguished.
R v Wilson (1978) 19 SASR 311; R v Garrett (Court of Criminal Appeal, 29 May 1996, Judgment No 5652); R v AJW (2001) 80 SASR 246; R v Chandra and Hart [2003] SASC 319, considered.

R v C, OM
[2005] SASC 60
Court of Criminal Appeal: Debelle, Besanko and White JJ

DEBELLE J.This is an appeal against sentence. The appellant was charged with five counts of unlawful sexual intercourse with a person under the age of 12 years, six counts of unlawful sexual intercourse, and one count of attempting to procure an abortion. The offending occurred between 1992 and 2000. The counts named in the Information are representative of the appellant’s sexual misconduct to his daughter over a period of some eight years. The victim in each case was the appellant’s first-born daughter, born on 21 September 1984. She was the second of four children.
The appellant pleaded guilty to three counts of unlawful sexual intercourse, but not guilty to all other counts. After a trial by judge alone, he was found guilty on all of the counts save one count of unlawful sexual intercourse with a person under the age of 12 years
Acting pursuant to s 18A of the Criminal Law (Sentencing) Act1988, the judge imposed one sentence in respect of all of the offending. He ordered a sentence of 23 years imprisonment, fixing a non-parole period of 15 years 6 months, to run from 25 September 2002, the date when the appellant was taken into custody. The appellant appeals on the ground that the sentence is manifestly excessive.
The appellant’s offending placed it among the worst kind of criminal behaviour of this kind. It involved digital and penile penetration of the vagina, cunnilingus, fellatio and an offence of anal intercourse.
The offending began and continued within the confines of the appellant’s family, in an atmosphere of fear, brought about by the appellant’s physical violence towards his wife and his first three children. The violence was the more severe by reason of the fact that the appellant was frequently drunk. His wife and children were petrified of him. Regularly, the appellant assaulted his wife and each of the three older children. This occurred either when he had not been drinking or after he had been drinking. They feared him returning home, never knowing what might then occur.
It was in this atmosphere of physical abuse that the appellant began to groom his eldest daughter to satisfy his sexual desires, without complaint to her mother or any other person. This began when she was aged about three. The appellant required her to be naked with him in the house when his wife and other children were absent. The appellant would also be naked and he required her to lie on his bed with him. At first this activity was intermittent but over time it progressed in frequency and seriousness in a sexual sense.
The appellant and his family moved about South Australia relatively frequently. From 1984 until 2002, they lived at 13 separate addresses in South Australia. In that time, they also lived in Queensland for some months.
In 1992, when the appellant’s daughter was aged about eight years, he first had sexual intercourse with her at Peterborough. The appellant poked his fingers into his daughter’s vagina, drawing blood. The appellant then required his daughter to engage in penile sexual intercourse. By this time the appellant’s daughter was used to being severely dealt with physically by him. One instance occurred when the appellant and his family were living near Jamestown when his daughter was aged about six. The appellant punched her in the face as a form of discipline. In consequence she was not able to open her mouth to eat for some time nor able to go to school. She was not permitted to have medical attention so as to prevent the appellant’s behaviour becoming known to third persons. About twice a month, the appellant asked his daughter to make him coffee whilst naked.
About this time the appellant required his daughter to watch pornographic videos with him while he masturbated. On one occasion the appellant took his daughter from her bed while the family slept and had anal intercourse with her on the dining room floor, pushing her face into the carpet to keep her quiet when she started to scream.
At Peterborough the appellant threatened his daughter that if she spoke of his behaviour to her mother, he would kill her and then kill himself. Because the appellant was so violent, his daughter was scared and did not report the appellant’s behaviour to her mother.
Again at Peterborough the appellant engaged in an act of sexual intercourse in a car pit in a shed on the house property in which the family lived.
By the time his daughter had turned 10, in September 1994, the appellant used his daughter as his sexual plaything.
In September 1994 the family moved to stay with friends in Parafield Gardens. The appellant had brought a bus from Peterborough and he and his wife lived in the bus in the back yard of the friends in Parafield Gardens. The appellant continued to be violent to his wife and family. On one occasion, as a result of an assault upon his wife, her eye was split open. The appellant inserted some stitches and did not permit his wife to have the assistance of a medical practitioner. The appellant continued to have sexual intercourse with his daughter in the bus. Out of fear she continued to comply and not to speak to anyone about the continuing sexual abuse.
The family then moved to Paralowie for a time. Sexual intercourse continued, both in the appellant’s bedroom and in the lounge. The appellant would, on occasions, require his daughter to bend over the couch in the lounge and say to him, “Fuck me daddy, fuck me harder”, so as to excite him during sexual intercourse.
In 1996, when his daughter was aged 12, the appellant had sexual intercourse with her at a friend’s house while she was there baby sitting and his wife was in hospital with a new baby.
The appellant admitted further instances of sexual intercourse in the ensuing years until his daughter was 16. The sexual misconduct included the act of fellatio. The sentencing judge describes the appellant as having “a long-standing guilty passion towards his daughter”.
When the appellant’s daughter was about 14 years old, she reported a vaginal discharge to him. She was frightened to tell her mother because of the probable cause. The appellant diagnosed thrush. He made his daughter lie in the bathroom whilst he moved a bottle filled with hot salt water in and out of her vagina. This caused her considerable pain.
From the time she was aged 14 years, the appellant continued to have regular sexual intercourse with his daughter on no less than three occasions in each week.
As a result of this continued sexual intercourse, the appellant caused his daughter to become pregnant. On her fifteenth birthday she reported to him that she had missed her period. This upset the appellant and he hit her with a drill with such force that its plastic cover broke. The appellant also kicked her in the stomach. He did this in the hope that she would abort. In order to seek to induce abortion the appellant made his daughter wear tight belts, take large doses of aspirin several times each day, punch her in the stomach and, on one occasion, hit her in the stomach with a cricket bat. When these attempts failed, the appellant resorted to another much more dangerous remedy. He inserted a piece of wire into her vagina. This did not cause his daughter to lose the child. In due course the appellant’s daughter gave birth to a daughter. It is a healthy normal child. The appellant accepts that he is the father of the child, a fact confirmed by DNA evidence. Shortly after the birth of the child, the appellant again had sexual intercourse with her. After the family moved to Renmark, the appellant admitted to two further acts of sexual intercourse.
This criminal behaviour represents an appalling breach of the trust a daughter places in her father, a breach among the most serious it is possible to imagine. The sentencing judge expressed the view that the offending required a sentence to reflect the outrage felt by the community at such behaviour. In his view, it should be reflected by way of both general and personal deterrence. It is not possible to disagree with that view.
These shocking sexual crimes are aggravated by the fact that they occurred against a background of repeated violence. The violence is relevant because the appellant’s daughter was subjected to it and knew that the appellant was violent towards other members of the family. The appellant’s violence to other members of her family would have increased the fear instilled in her by his violence towards her. This violence towards her explains why the appellant’s daughter was unable to report the appellant’s conduct or to take other steps to prevent it from occurring.
The offending has had a devastating effect upon the appellant’s daughter. She has just reached the age of 20 years. She has been unable to cope in the community. She has great difficulty caring for her daughter because of the manner in which she has been upset by her father’s conduct and the fact that her daughter is her father’s child. She has great difficulty forming relationships. She is self-conscious about her own body, to such an extent that she is unable to cope with physical closeness. She is angry and concerned for her siblings. In her victim impact statement she relates how much she wanted a father who was good to her and who would not hurt her. The realisation that that will never occur only increases the extent to which she is upset.
The appellant is almost 50 years old. He has quite an extensive criminal record, commencing when he was 17 years old. It includes a number of offences for driving with an excessive blood alcohol content, as well as a number of offences for different forms of assault. The appellant has had the benefit of several suspended sentences. It appears he has not previously served a sentence of imprisonment.
The appellant himself had a violent upbringing. When he was 12, he was involved in a serious motor vehicle accident. Later in life he has had a number of accidents in which he became unconscious. While he has used drugs from time to time, it is excessive consumption of alcohol which has been his major difficulty. He began to drink in the company of his father before he was aged eight years. He accepts that he has been an alcoholic all of his life.
His education was brought to an end when he was quite young. For most of his life he has been unable to read or write. Because of his illiteracy he has worked in unskilled employment. Since about 1994 he has received a disability support pension. He has only begun to learn to read and write whilst on remand for this offending.
The sentencing judge had a number of psychiatric reports before him. They indicate that his intelligence level is in the low-average range. He has the literary skills of about a 12 year old. The psychiatrists have diagnosed a marked anti-social personality disorder, which they believe is a consequence of his abused childhood, neglect and poor education and social opportunities. The appellant’s eldest son died just before his eleventh birthday in a motor vehicle accident. For some time before that the appellant had suffered depression. It is possible that the delusional beliefs, to which reference was made by his counsel, had their beginning in a possible brain dysfunction referred to by a psychologist in a report before the Court.
It was submitted that this may have caused the appellant to commence and continue the sexual abuse of his daughter, convincing himself that she was a willing participant. However, as the trial judge correctly observed, that could hardly be so in the case of a child of three years, when the appellant began to groom her for the sexual activity, or at the age of eight, when he first had sexual intercourse with her. It is apparent that her subsequent compliance was very much induced by her fear of her father because of his violence and threats towards her. The appellant’s intellectual activities are not so limited that he is unable to distinguish between right and wrong. The psychiatric and psychological evidence does not suggest that he did not know his conduct was wrong.
Counsel for the appellant referred to R v D (1997) 69 SASR 413 and submitted that the offending in this case was within the parameters of the offending in R v D. The submission is misplaced. The offending in this case is of a far more serious kind and it occurred over a substantially longer period than that in R v D. In addition, the offending in this case is aggravated by the attempted abortion. In R v D at 424, Doyle CJ said
“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.”
It is apparent from those remarks that the starting point of 12 years was not intended to be an inflexible starting point. Plainly, regard should be had to the circumstances of the offending and, as the Chief Justice expressly stated, the starting point might be higher or lower. Furthermore, in no sense does the Chief Justice purport to determine the sentence for either the worst category of offending or for offending of so grave a nature as has occurred in this case.
The sentence must not only be an appropriate penalty for the appellant’s gross sexual misconduct but also for the attempted abortion. Regard must be had to the appalling nature of the offending. The offences charged were representative of a long course of repeated sexual misconduct extending over, at least, eight years. In later years the sexual intercourse was occurring about three times in each week. I repeat. This is an instance of the worst category of offending of this kind. In addition, the offending was aggravated by the brutality and the violence the appellant inflicted on his daughter. The appellant’s cruel and callous treatment of his daughter is as difficult as it is shocking to contemplate. The appellant is plainly bereft of any sympathy or understanding for his daughter. The appellant’s acts of cruelty when attempting to abort his daughter are difficult to comprehend. The attempted abortion when he inserted wire into her vagina was quite horrifying. When inserting the wire, the appellant was inflicting great pain on his daughter. She moved her legs in response to the pain. The appellant’s response was to tie her legs. He re-inserted the wire. She responded by putting her hands over her vagina. The appellant then tied her arms to the bed to prevent her from doing so and then continued to insert the wire. This perverted cruelty of a father towards his own daughter is as chilling as it is horrifying. I repeat that the attempted abortion must be viewed separately from the acts of sexual misconduct. It represented a real risk to the life of his daughter, as well as to the life of the unborn child.
The appellant perverted and humiliated his daughter in the most shameful manner. The appellant’s offending is remarkable for its brutality, its violence and its degradation of his daughter.
Little is to be gained by comparing the sentence with other sentences, since each case turns on its individual facts. Furthermore, there has never been a sentencing standard for the worst category of offences of this type. On those occasions, the court must fix a sentence proportionate to the gravity of the criminal conduct in the context of the range of penalties for each offence and upon the application of well established principles of sentencing: R v Liddy (No 2) 2002 84 SASR 231at [14] to [15]; R v Hooper (1995) 64 SASR 480 per Cox J at 491. Regard must also be had to the principles of totality.
The maximum penalty for each count of unlawful sexual intercourse with a person under the age of 12 years, as fixed by Parliament, is life imprisonment. Each count of unlawful sexual intercourse has a maximum penalty of imprisonment for a period not exceeding seven years. The maximum penalty for the offence of attempting to procure an abortion is life imprisonment.
The sentence is unquestionably very high. However, it is, broadly speaking, in line with sentences imposed in other cases of sexual offending of a gravely serious kind, that is to say, it is clearly within the bounds of the sentencing discretion.
In R v Wilson (1978) 19 SASR 311, the prisoner had pleaded guilty to five acts of rape committed by him on the same day upon three girls aged respectively 9, 10 and 11 years. Two of the children were known to the prisoner. A sentence of 25 years of imprisonment was upheld on appeal. Although three separate children were involved, the conduct was not as long and extensive and as manifestly cruel and violent as the appellant’s conduct in this case.
In R v Garrett (Court of Criminal Appeal, 29 May 1996, Judgment No 5652) the prisoner had been convicted on two counts of rape, one count of detaining with intent to have sexual intercourse, and one count of threatening life. He had three prior convictions for that offence. A sentence of 25 years imprisonment was imposed, with a non-parole period of 20 years. The sentence was upheld on appeal.
In R v AJW (2001) 80 SASR 246, the prisoner had been convicted of two counts of unlawful sexual intercourse, two counts of gross indecency and 12 counts of indecent assault. The offending had occurred over a period of just over three years. The victims in each case were young boys, except for two counts of indecent assault which involved a young girl. The ages of the children at the time of the offences ranged between six and 13 years. On a prosecution appeal the sentence was increased to 16 years, with a non-parole period of 9 years. The offending in that case was not as extensive as in the case at bar, nor did it occur over as long a period.
In R v Chandra and Hart [2003] SASC 319 the appellants pleaded guilty to one count of administering a stupefying drug with intent to commit rape, one count of rape, one count of unlawful sexual intercourse with a girl under the age of 12 years, and three counts of gross indecency. The first two offences were committed on a young woman. The remaining offences were committed on a girl under the age of 12 years. The criminal conduct consisted of six separate offences over a relatively short period of time. The appellant Chandra was sentenced to imprisonment for 20 years, with a non-parole period of 15 years. The appellant Hart was sentenced to imprisonment for a period of 18 years, with a non-parole period of 13 years. The sentences were upheld on appeal.

Although it is undoubtedly a harsh and a long term of imprisonment, it is not in all the circumstances manifestly excessive. There are occasions, and this is one, when the scales must be weighted in favour of punishment for a gross breach of the criminal law and where the penalty must reflect both personal and general deterrence. The appellant has been guilty of appalling conduct over a period of eight years. There are aggravated features of the offending. The enormity of the offending requires condign punishment. The appellant’s conduct has had an insidious and a lifelong effect upon the appellant’s daughter. The child of this conduct will be a permanent reminder to the appellant’s daughter of her father’s degrading conduct towards her.
The appellant is not entitled to any reduction in the sentence for his pleas of guilty to three offences. The judge rejected the basis of the plea to counts 7 and 11. The plea to count 9 did not avoid the need for the appellant’s daughter to give evidence nor did it shorten the trial. The sentencing judge did not believe the pleas entitled him to reduce the sentence. There is no basis for this court to interfere with those findings.
The appellant’s record, his appalling conduct towards his daughter, his violence, his lack of remorse and the manner in which he advanced his pleas of guilty indicate there was little prospect of rehabilitation. The appellant displays no signs of remorse. That is evident from his pleas of not guilty and the manner in which he advanced his pleas of guilty. There is no realistic prospect of rehabilitation.
No error was demonstrated in the approach of the sentencing judge. When regard is had to the sentence which might be imposed for the crime of attempted abortion as well as the acts of sexual intercourse, the sentence is within the bounds of the sentencing discretion. The sentence is proportionate to the gravity of the offending.
For these reasons, I would dismiss the appeal.
BESANKO J. The sentence imposed by the Judge in this case was a severe one. However, having regard to the circumstances of the offending as outlined in the reasons for judgment of Debelle J, including the circumstances surrounding the offence of attempting to procure an abortion, I do not think that it can be said that the sentence imposed is manifestly excessive. We were referred to the decisions of this Court in R v Wilson (1978) 19 SASR 311, R v Garrett (Court of Criminal Appeal, 29^th May 1996 Judgment No 5652), R v AJW (2001) 80 SASR 246 and R v Chandra and Hart [2003] SASC 319. Clearly, the facts of each case are different but I think the approach of the Court in each of these cases supports the conclusion that the sentence imposed in this case is not manifestly excessive. I agree with the reasons for judgment of Debelle J and I would dismiss the appeal.
WHITE J. I agree that this appeal should be dismissed. I am in general agreement with the reasons of Debelle J.
The sentence imposed in this case was undoubtedly severe.
Mr Vadasz, who appeared for the appellant, sought to demonstrate that the sentence was not only severe but excessive by reference to three principal considerations.
First, he submitted that the sentence exceeded the guideline for sentences for unlawful sexual intercourse contained in the judgment of Doyle CJ in R v D (1977) 69 SASR 413 at 424. The relevant passage appears in the judgment of Debelle J.
This submission overlooked three matters. The first is that, as Debelle J has pointed out, the guideline in R v D is just that; a guideline. The Chief Justice expressly contemplated that in some cases the starting point for offences of unlawful sexual intercourse with a child under the age of 12 years may be higher than the starting point of 12 years, which he suggested. In my opinion, the circumstances of this case did, for the reasons given by Debelle J, warrant a higher starting point.
The second matter affecting the validity of Mr Vadasz’s submission based on R v D is that the appellant was being sentenced not only for unlawful sexual intercourse with a child under the age of 12, but was also being sentenced for four counts of unlawful sexual intercourse with a person under the age of 17 years.
Thirdly, a direct comparison with the sentence guideline given in R v D was not possible in this case because the appellant was also being sentenced for a separate, and serious, offence, namely, the attempted procuring of an abortion. The maximum sentence for this offence is life imprisonment. The circumstances in which this offence occurred were quite severe. Those circumstances are set out in the judgment of Debelle J. This offence by itself warranted a substantial sentence of imprisonment. This can be indicated in another way. The appellant’s conduct in relation to the attempt to procure the abortion could also have been regarded as constituting a very serious rape, warranting a separate and substantial prison sentence.
Next, relying on R v Liddy(No 2) (2002) 84 SASR 231, the appellant submitted that the guidelines for sentencing for offences of unlawful sexual intercourse on children under the age of 12 should be applied only in relation to offences committed after R v D was decided, namely, 12 September 1997. In my opinion, it is unnecessary in this case to consider the validity of that submission.[1] Only four of the 10 offences of unlawful sexual intercourse for which the appellant was sentenced involved unlawful sexual intercourse with a child under 12. Further, the appellant’s offending occurred both before and after 12 September 1997. Given the repeated and prolonged nature of the appellant’s conduct, it is not easy to see how, in the circumstances of this case, application of the lower standard which pertained prior to R v D would have made a practical difference.
[1]See R v Liddy (No 2) (2002) 84 SASR 23 at 236-7 [7] per Mullighan J, at 270 [147] per Williams J and at 294-5 [221] – [224] per Gray J; R v P (2003) 87 SASR 287 at 296 [62] per Perry J (with whom Besanko J agreed) and at 300-1 [88] per Mullighan J.
Next, the appellant submitted that the sentencing Judge had had insufficient regard to the appellant’s own mental health. I agree with the reasons of Debelle J for concluding that this consideration does not indicate that the sentence is manifestly excessive.
In my opinion, whilst undoubtedly severe, the single sentence imposed was within the bounds of a reasonable sentencing discretion. I reach that conclusion by reference to a consideration of the sentences which might have been imposed for each individual offence. I would attach less weight to the sentences imposed in other cases for sexual offending of a serious kind. In this case the attempted procuration of an abortion makes comparison with other such cases difficult. Secondly, and in any event, limited use can be made of sentences imposed in other cases for the same or similar kinds of offending.[2]
[2]R v O’Donnell (1974) 7 SASR 114 at 115; R v Chandra and Hart [2003] SASC 319 at [34].
For these reasons I would dismiss the appeal