R v Cave

Case [2012] SASCFC 42

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CAVE

[2012] SASCFC 42

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)

26 April 2012

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - ELDERLY OFFENDER

The appellant was sentenced to imprisonment by three different District Court Judges for serious sexual offences – two sentences of imprisonment for 18 years and one sentence of 14 years were imposed – each sentence was cumulative upon its predecessor, with the effect that the total period to be served in custody is 50 years – the third judge extended the non-parole period to 33 years – the sentences will not be completed until the appellant is 106 years (if he reaches that age), and he will not be eligible for parole until he is 89.

Appeal against second and third sentences: whether the sentences are excessive – whether the combined effect of the sentences is disproportionate and should be reduced on account of totality – significance of the appellant’s age and of the sentences leaving him with no realistic prospect of life outside gaol – whether the third judge erred in regarding the second sentence to be also cumulative on a nine month sentence imposed in the Magistrates Court.

Held: (Doyle CJ and Anderson J), allowing the appeal for the limited purpose of correcting the error of the third Judge with respect to the sentence of nine months imposed by the Magistrates Court, but otherwise dismissing the appeal – the seriousness of the offences and protection of the public called for heavy sentences – it was not appropriate for any of the sentences to be made concurrent with another – considerations of totality did not call for a reduction in any of the sentences.

(White J, in dissent), the effect of the second and third sentences is disproportionate and so crushing that some adjustment should have been made to those sentences in accordance with the principle of totality – appropriate for the second and third sentences to be partly concurrent.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 29D, s 32(1)(b), s 10(1)(k), referred to.
Mill v The Queen (1988) 166 CLR 59, discussed.
R v D (1997) 69 SASR 413; R v E, AD (2005) 93 SASR 20; R v Liddy (No 2) (2002) 84 SASR 231; R v Ellis (2010) 107 SASR 94; Hoare v The Queen (1989) 167 CLR 348; Veen v The Queen (No 2) (1988) 164 CLR 465; R v Hunter (1984) 36 SASR 101; R v Roberts (1985) 37 SASR 566; R v Creed (1985) 37 SASR 566; R v B,…

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R v Cave [2012] SASCFC 42
Case
[2012] SASCFC 42
Decision Date

CaseChat Overview and Summary

The appellant, R v Cave, appealed against sentences of imprisonment imposed by three different District Court judges for serious sexual offences. The sentences comprised two terms of 18 years and one term of 14 years, each to be served cumulatively, resulting in a total period of 50 years imprisonment. The non-parole period was extended to 33 years, meaning the appellant would be 89 years old before becoming eligible for parole and would not complete his sentences until he was 106. The appeal concerned whether the sentences were excessive, whether the combined effect of the sentences was disproportionate due to totality, and the significance of the appellant's age and the lack of realistic prospect of release.

The central legal issues before the court were whether the cumulative sentences imposed were excessive and disproportionate, particularly when considered under the principle of totality. The court was required to determine if the appellant's advanced age and the virtual certainty that he would die in custody warranted a reduction in the overall sentence length. A further issue was whether the third judge had erred in treating a nine-month sentence imposed by the Magistrates Court as cumulative on the second District Court sentence.

The majority of the court, comprising Doyle CJ and Anderson J, dismissed the appeal, finding that the seriousness of the offences and the need for public protection justified heavy, cumulative sentences. They held that considerations of totality did not necessitate a reduction, as the crushing effect of the sentences, while acknowledged, was an inevitable consequence of imposing just and proportionate sentences for such grave crimes. The majority distinguished between sentences that are "crushing" in the sense of being inevitable outcomes of just punishment, and those that require adjustment due to specific features justifying a reduction while maintaining proportionality. They allowed the appeal only to correct a specific error regarding the Magistrates Court sentence. In dissent, White J argued that the cumulative effect of the sentences was disproportionate and crushing, warranting adjustment under the totality principle, and suggested that the second and third sentences should have been partly concurrent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion Mr Cave’s offending disentitles him to this exercise of mercy on the part of the Court. I accept that in a sense the head sentence can be said to be artificial or hypothetical, because there is no prospect of Mr Cave surviving that long. But, on the other hand, in my opinion the Court should not, because of that, reduce the head sentence to a figure likely to be reached before Mr Cave dies. To do so would significantly erode the elements of condemnation and general deterrence that are reflected in the sentence imposed on him.Conclusion For those reasons I would dismiss the appeal against the sentence imposed in respect of the second group of offences. In relation to the third group of offences, I would allow the appeal solely for the purpose of directing that the record of the District Court, and the Report of Prisoner Tried, be amended to delete reference to the period of nine months in the head sentence, but that subject to that the appeal against that sentence be dismissed. ANDERSON J: I agree that the appeal should be dismissed in relation to the second group of offences. I agree with the reasons of the Chief Justice. I also agree with the Chief Justice in allowing the appeal on the third group of offences for the limited purpose of correcting the court record. WHITE J: The circumstances giving rise to these appeals are set out in the reasons of the Chief Justice. Those circumstances, as distinct from the nature of the appellant’s offending, are unusual. The appellant is a paedophile. Over a period of just on 30 years, commencing in November 1971 and concluding in May 2001, he committed numerous offences involving the sexual abuse of boys and youths. There were some 17 victims. The first group of nine offences were committed between November 1971 and December 1976. I will refer to them as “the 1970s offences”. They involved six separate victims, aged between 11 and 14 years. On 30 April 2008, Judge Soulio sentenced the appellant in the District Court to a single sentence of 18 years (reduced from a starting point of 22 years on account of the appellant’s pleas of guilty) and fixed a non‑parole period of 12 years. Judge Soulio directed that the sentence commence on 29 September 2006, when the appellant was taken into custody. This sentence is not the subject of any appeal. The second group of offences were committed between January 1980 and June 1986 (the 1980s offences). They involved four separate victims, aged between 11 and 15. On 6 May 2011, Judge Stretton imposed a single sentence of imprisonment of 18 years for these offences and directed that it be served cumulatively upon the sentence imposed by Judge Soulio. Judge Stretton’s starting point was 26 years which he reduced to 20 years, apparently in accordance with the principle of totality, and then by a further two years on account of the appellant’s pleas of guilty. Acting under s 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), Judge Stretton then reviewed the non‑parole period and extended it by 14 years, resulting in a non‑parole period of 26 years. The appellant appeals against this sentence.

Ratio Decidendi

Legal Principle Established

As Doyle CJ has observed on a number of occasions, sentences are not to be regarded as crushing as a matter of routine. Many, perhaps most, sentences of imprisonment are, considered from the offender’s perspective, crushing. For a prisoner, the destruction of any prospect of regaining liberty, or of living a useful life after release, will be crushing. However, as the authorities indicate, that will sometimes be the inevitable result of the imposition of just and proportionate sentences, so that there can be no adjustment of the sentences on that account. What is required for the operation of the totality principle is some feature which justifies the adjustment of the sentences while still maintaining sentences which are otherwise proportionate to the offender’s circumstances.Consideration In my opinion, the effect of the sentences imposed for the 1980s offences and the 1990s offences is disproportionate to the gravity of the appellant’s offences. That is in part because of the crushing effect of the three sentences imposed on the appellant when considered in combination. In saying that, I am not intending any under-estimate of the enormity of the offences themselves, or of their effect on the appellant’s victims. The first consideration is that, leaving aside sentences of life imprisonment, the total period of 50 years to be served in custody is well in excess of any previous head sentence, or accumulation of head sentences, imposed in this State by either this Court or the District Courts. Of itself this may mean very little as previous sentences are not to be understood as setting some yardstick of severity which cannot be exceeded. There must always be at least one case in which the sentence, or combination of sentences, will result in the longest period required to be served in custody. However, the total period to be served in the appellant’s case exceeds by a considerable margin any previous sentence, or accumulation of sentences. This suggests that the total period is not fairly proportionate “in accordance with the prevailing standards of punishment”. The same applies, although not so obviously, if the sentence imposed by Judge Stretton is considered by itself. Related to this consideration is the fact that there is no realistic prospect of the appellant ever completing all three sentences. In order to do so, he would have to survive to the age of 106 years, a prospect which is so remote that it may be disregarded. As indicated earlier, this factor, considered by itself, may mean very little. Depending upon the age of an offender at the time of sentencing, and the length of the sentence imposed, there will always be cases in which an offender is likely to die before completing a head sentence. The significant matter in the present case, however, is that even after serving a longer period in custody (other than in cases of life imprisonment) than has been imposed on anyone else, the appellant will still have a substantial period to serve, so substantial that he will have no prospect of completing the sentence in his lifetime. It is to be observed that at the time of sentence the appellant had a statistical life expectancy of 22 years and yet the aggregate of the sentences exceeds that figure by 28 years.