R v CAMBRIDGE - [2004] SASC 399

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CAMBRIDGE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
2 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application by prosecution for leave to appeal against inadequacy of sentence - respondent sentenced to 10 years imprisonment with non-parole period of four and a half years for sexual offences involving children - whether aggravating features sufficiently reflected - whether discount for pleas excessive - application refused.
Criminal Law (Sentencing) Act 1988 (SA), s 18A, referred to.
R v D (1997) 69 SASR 413, distinguished.
Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Cameron v The Queen (2002) 209 CLR 339; R v Nemer (2003) 87 SASR 168; R v Mangelsdorf (1995) 66 SASR 60; Police v Cadd (1997) 69 SASR 150; R v Shepperbottom (2001) 121 A Crim R 69; R v Elliott (2001) 121 A Crim R 254, considered.

R v CAMBRIDGE
[2004] SASC 399
Court of Criminal Appeal: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ: I would refuse the application by the Director of Public Prosecutions for leave to appeal against the sentence in this case.
The application for leave to appeal does not raise any issue of principle that would warrant a grant of leave to appeal. Nor has any particular error in approach been identified. The real issue on appeal is whether the sentence is manifestly inadequate, and whether the inadequacy is sufficient to warrant the grant of leave of appeal.
The head sentence is within an appropriate range. The decision in R v D (1997) 69 SASR 413 does not indicate the appropriate sentence range for these offences, other than in an indirect fashion. This was not a case of prolonged sexual abuse within a family setting. Even if the decision in R v D did indicate the appropriate range, it would not follow that in the present case the sentence was outside that range.
The non-parole period was a merciful one. The Judge might have given more weight than was appropriate to enabling the respondent to undertake treatment. However, I do not read his remarks as indicating that this was the only matter that he considered. Accordingly, I do not consider that there was an error of principle in that respect. I agree with Vanstone J that a somewhat longer non-parole period would have been appropriate, but the non-parole period is not so low that it can be characterised as manifestly inadequate.
I agree generally with the reasons given by Vanstone J.
PERRY J. The circumstances of the offences upon which the respondent was sentenced in the District Court, are set out in the reasons for judgment of Vanstone J.
The narrow limits within which appeals by the Crown against sentence are entertained, have been well established by a long line of authority. The relevant principles are referred to by Vanstone J.
The application by the DPP in this case does not raise any question of general principle. However, that is not the end of the matter. The remarks of Doyle CJ in R v Nemer[1] are apposite:
“… the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But 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 leave to appeal even though no general point of principle will be established by the case.”[2]
[1] (2003) 87 SASR 168 at 172 [24].
[2] Doyle CJ goes on to refer to the following authorities: R v Mangelsdorf (1995) 66 SASR 60; Police v Cadd (1997) 69 SASR 150; R v Shepperbottom (2001) 121 A Crim R 69 and R v Elliott (2001) 121 A Crim R 254.
The offences now in question were serious.
On one information the respondent was charged with seven counts of unlawful sexual intercourse with a person under 12 years, two counts of inducing a child to expose his body, and four counts of indecent assault. Those offences were committed at Kurralta Park on two or three separate occasions between 1 November and 10 December 2003. The victims were two 7-year old boys. The victims were groomed to participate in the indecent acts. One of them said that he had met the respondent on about six occasions.
On a separate information the respondent was charged with two counts of gross indecency and three counts of procuring an act of gross indecency. The offences were committed at another location, Oaklands Park, and on different occasions from those which were alleged on the first information. Those offences were committed between 1 January 2003 and 30 September 2003. The victims were another two young boys.
So that the offending occurred during a period of about a year and involved multiple counts and four victims. I have viewed the video cassette taken by the respondent of some of the acts. The carrying out of them was in some instances quite extended. I estimated at least 30 minutes of indecent and obscene touching and other sexual activity.
In R v D,[3] the Court of Criminal Appeal considered an appeal against a sentence imposed upon the respondent, who was the victim’s step-father. The victim was 12 years of age at the time. She was subjected to a range of sexual acts on an almost daily basis over a two months period.
[3] (1997) 69 SASR 413.
In the course of his judgment in that case, Doyle CJ noted that the penalty for such offences involving children under 12 years of age was heavier than the penalty appropriate for cases involving children over that age.
He observed:[4]
“In my opinion offences involving unlawful sexual intercourse with children under twelve 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.”
[4] Ibid at 424.
In my view, the approach to sentencing identified by Doyle CJ in that passage, was applicable at least as a general guide to this case. I do not regard that approach as necessarily limited to cases involving a breach of trust or a family situation.
In this case, the offences were committed over a period of time. Although the offences were not so frequent as in the case of R v D, the spacing of the offences is such that they were committed over a period in excess of the two months period involved in that case.
At all events, I do not think that one should attempt to make too nice a comparison between the facts of this case in comparison with the circumstances of the offending in R v D, in the process of determining whether or not the sentencing approach referred to by the Doyle CJ should be regarded as applicable.
Offences committed against young children may be committed in a wide variety of circumstances, but in my view, the approach identified in R v D should be applied where the case involves multiple offences committed over a period of time upon children under 12 years of age.
However, I do not understand the remarks of Doyle CJ in R v D as suggesting that the starting point of about 12 years imprisonment should be applied with any rigidity. On the contrary, given that the particular circumstances of such cases may vary enormously, individual cases may properly be approached by adopting a starting point lower or higher than that figure.
During the course of his sentencing remarks in this case, the sentencing judge said:
“The offences were a consequence of you attending at a place where children play. You befriended young children and groomed them to participate in sexual intercourse. The first group of offences were not passing incidents but involved deliberate and prolonged grooming of the boys. Aggravating features include the very young age of the boys and the fact that the offences were recorded on film. You degraded the victims for your own sexual gratification. There can be no excuse for your behaviour which was appalling. You preyed upon very young boys and have left them scarred.”
Although the respondent was previously of good character, that cannot count for very much in a case such as this where there are repeated offences over a period of time.
I accept the submission of Ms Davison for the DPP that the respondent’s behaviour needs to be viewed against the background that thousands of pornographic images were found in his home, and he admitted when questioned by the police that he had previously engaged in taping of sexually intimate activities. Apparently he used a video tape secreted in a bag in a swimming pool change room, and he also video taped the genitalia of patients while washing them in an aged care facility in which he worked.
While he cannot be sentenced for that conduct, that he was engaged in such conduct makes it clear that the offending for which he stood to be sentenced with respect to the charges now in question, were not isolated offences or otherwise out of character.
Young children should be able to have resort to parks and public open spaces without fear of molestation in this way.
In sentencing the respondent, it was necessary for the court to make a substantial allowance for the need for general and personal deterrence.
Having regard to the matters to which I have so far referred, it seems to me that for the overall offending, a head sentence of 10 years imprisonment was modest. A higher sentence was justified.
Furthermore, I doubt that the circumstances warranted a reduction of 25 per cent for the plea of guilty to the offences committed in November and December 2003. The Crown case was strong. In pleading guilty, the respondent was bowing to the inevitable. In such circumstances, 25 per cent was an overly generous discount.
Be that as it may, at the end of the day, I have reached the view that it would not proper to allow the application for leave to appeal insofar as it relates to the head sentence of 10 years. Although I am of the view that the head sentence was unduly lenient, it was not so low as to justify intervention on an appeal by the Crown.
I take a different view as to the non-parole period of 4 years and 6 months.
In his sentencing remarks, the sentencing judge said:
“.. I fix a relatively low non-parole period of 4 years and 6 months so that you will have an opportunity to seek treatment.”
In that comment, the reference to treatment refers to the Sexual Offender Treatment and Assessment Program, to which the sentencing judge had earlier referred.
It may well be that the respondent does not have to wait until his release on parole before that treatment can be commenced, as it appears that the Department of Correctional Services is now beginning to make that program available to prisons inmates. I accept, however, that it is not entirely clear whether the program is well enough resourced at this stage to be able to say with confidence that the respondent will receive treatment while in custody.
The program would take 18 months to 24 months to be completed if the respondent seeks to avail himself of it on release on parole.
In those circumstances, it does not seem to me that the desirability of the respondent undergoing the program warranted the fixation of a non-parole period lower than that which might otherwise be justified.
While there is no fixed formula to be applied in setting a non-parole period, and no requirement that a non-parole period should be a fixed proportion of the head sentence, the non-parole period set by the sentencing judge was, in my view, so low that intervention on an appeal by the Crown is justified.
In expressing that view, it seems to me that the potential for a sentence to appear so low that to allow it to stand “would shake public confidence in the administration justice”, is as much applicable to the non-parole period as to the head sentence. There is much evidence to suggest that members of the public are as much concerned with the amount of time which an offender stands to serve in custody, as they may be with the head sentence itself.
Bearing in mind particularly the seriousness of the offending, and the need for general and personal deterrence, I would give leave to appeal and allow the appeal for the purpose of increasing the non-parole period to 6 years and 6 months.
VANSTONE J The Director of Public Prosecutions applies for leave to appeal against sentences imposed in the District Court for sexual crimes.
The respondent was charged on two informations. The first charged seven counts of unlawful sexual intercourse with a person under twelve years, two counts of inducing a child to expose his body, and four counts of indecent assault. Two seven year old boys were the victims. The respondent was committed for sentence for these offences. The first mentioned of these offences carries a maximum penalty of life imprisonment.
The second information contained three counts of gross indecency and two counts of inducing a child to expose his body. These offences occurred several months earlier but did not come to light until the respondent was apprehended for the more serious offences. They involved two boys aged 6 and 7 years who were encouraged to pose for photographs in various positions with their genitals exposed. The respondent pleaded guilty to these offences upon his first arraignment in the District Court, having earlier intimated pleas. The maximum penalties for these offences are three and two years imprisonment respectively.
The learned sentencing judge accumulated the sentences on the two informations. On the first, he imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of seven and a half years imprisonment, having allowed a reduction of two and a half years for the pleas. On the second information he imposed one sentence of two and a half years, having allowed six months credit for the pleas. In respect of the total sentence of ten years, he fixed a non-parole period of four and a half years.
No specific error in his approach was alleged, although it was suggested that the 25 per cent discount for the pleas on the more serious matters was overly generous. The central argument is that in fixing a head sentence and non-parole period as low as these, the judge must have erred in a way not apparent upon reading his remarks.
The principles applicable to prosecution appeals are well established. The Court should grant leave only in a “rare and exceptional case” when it is necessary to establish a matter of principle: Everett v R (1994) 181 CLR 295, 299-300. Mere inadequacy of the sentence, even manifest inadequacy, does not, of itself, justify the grant of leave. Careful and distinct consideration must be given to the question of the grant of leave: Malvaso v The Queen (1989) 168 CLR 227, 234-5.
The offences contained within the first information were undoubtedly serious. They took place at a park frequented by the respondent and used by the two boys. The boys would attend there together. They were, in effect, corrupted by the respondent. Some of the sexual activity – mainly involving fellatio – was captured on the respondent’s video camera and downloaded to his computer. The interaction and filming occurred over a few occasions in a period of several weeks. However it is not apparent that the offences of unlawful sexual intercourse occurred on more than two of those occasions, and they were of very brief duration. Particularly serious features of these crimes were that it appears that the boys were “groomed” over a period and that they were offered money for their co-operation. The judge described the respondent’s actions as appalling. The victim impact statements before him referred to the emotional scarring of the victims and their families.
In seeking to make good her complaint about the length of the head sentence for the most serious offences, Ms Davison for the Director, sought to rely on statements of the Chief Justice made in R v D (1997) 69 SASR 413, 423-4. There the Court of Criminal Appeal dealt with an appeal against sentence by a man who pleaded guilty to persistent sexual abuse of his step-daughter, who was then aged 13 years. The Chief Justice made observations as to the appropriate range of sentences for multiple crimes of unlawful sexual intercourse committed by persons in a position of trust over long periods of time. Bleby J agreed with those observations. I do not consider that those statements are apposite to the respondent’s case. His offences were not committed over a long period of time and did not occur within a family setting. There is no question of breach of trust.
The respondent was twenty-seven years of age at the time of sentence and had no prior convictions. There was a good deal of material about him before the judge, including two informative reports provided by the psychiatrist, Dr Raeside. He spoke of the respondent’s “disastrous early developmental history”; his “violent and dysfunctional [early] home life”; and the “bleak picture as to Mr Cambridge’s overall psychological functioning.” There was also reference to the part that long-standing use of illicit drugs played in the course of offending. That in turn was related to what Dr Raeside described as lifelong difficulties associated with anxiety, depression and difficulties in personal relationships.
In terms of rehabilitation, there were some promising signs. Before the time of sentence the respondent had voluntarily made contact with the Sexual Offenders Treatment and Assessment Program, and he had remained drug free for many months. He enjoyed some family support. The judge said, in fixing a non-parole period which was an unusually low proportion of the head sentence, that the period on parole would provide opportunity for treatment. I take him to have been referring to programs available from the Sexual Offender Treatment and Assessment Program, as well as treatment for drug dependence and depression.
In my view, the total period of imprisonment imposed was within the range appropriate to these crimes. Looking at the two sentences individually it could be said that the sentence on the offences which occurred first in time were rather severe, bearing in mind the respondent’s good character to that point. I say that notwithstanding that the later crimes tended to give the earlier ones a more serious tone. On the other hand, the sentence for the more serious offences could be viewed as moderate. I do not agree with the criticism of the discount of 25 per cent for the pleas on the more serious offences. The early pleas were indicative of acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339. They meant that the question of the two boys giving evidence was never a live one. A discount of that order was justified.
I think however that the non-parole period should have represented a greater proportion of the head sentence. Nevertheless, sentencing is not a precise matter and different judges will be influenced by the circumstances of any particular case and the factors going to rehabilitation in varying measure. It is not apparent that the learned sentencing judge overlooked any matter or made any error of approach. I am not persuaded that this application raises any question of principle which would justify the grant of leave to the Director.
I would dismiss the application.