R v Chandra & Hart No. Sccrm-03-3, Sccrm-03-42

R v CHANDRA & HART
[2003] SASC 319
Court of Criminal Appeal: Debelle, Gray and Sulan JJ

DEBELLE J The appellants were convicted on their pleas of guilty to one count of administering a stupefying drug with intent to commit an indictable offence, namely, 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 appellant Chandra was also convicted on his plea of guilty to two counts of attempting to pervert the course of justice.
The offending concerns two females. The first is the natural daughter of the appellant Hart. I will call her “NH”. She was aged 23 years at the time of the offending. The second is a girl aged nine years at the time of the offending, who I will call “NJ”. The first two offences were committed against NH and the remaining four offences against NJ.
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. In each case, the head sentences and non-parole period were to commence on 20 November 2000. The appellants appeal against the sentences on the ground that they are manifestly excessive.
For convenience, I will refer to the appellants as “Chandra” and “Hart”. I mean no disrespect in doing so.
In 1998 the appellants lived in a house at North Haven. They had been living together for some time before that date.
The Crimes Against NH
On 17 December 1998 NH was admitted to hospital suffering from a severe attack of gastroenteritis. She was severely dehydrated and was put on a fluid drip. In addition, morphine and maxylon were administered to relieve her pain and the nausea. On 17 December she was discharged from hospital into the care of the appellants. She had not fully recovered from her illness. She was taken to the house at North Haven. That night, both the appellants, without her knowledge, administered the drug rohypnol to her. NH succumbed to the drug as it was intended she would. She has no independent memory of what followed.
While she was unconscious on the bed, Chandra removed NH’s underclothing. He removed his own clothing and proceeded to perform an act of sexual intercourse on NH. Hart videotaped the act of sexual intercourse. To assist with the videotaping, Hart held a torch which she directed at the genitals of Chandra and of NH. Hart also videotaped her daughter’s vagina whilst Chandra used his hand to part the lips of her vagina to perform the act of intercourse. In the course of the videotaping, Hart caused the camera to zoom in on her daughter’s genitals. NH did not learn about these events until October 1999 when police showed her the videotape which had been taken.
The Crimes Against NJ
The appellant Hart is the great aunt of the young girl called NJ. In 1999 NJ was nine years old. NJ and her parents and the rest of her family had moved from Tasmania to Adelaide. The appellants befriended them. The appellants asked if NJ could stay at their house at North Haven from time to time. Her parents agreed.
The four crimes against NJ were committed between March and September 1999.
On one of those occasions, the appellants spoke to NJ about babies and where they came from. The appellants indicated to her that they came from the area of their genitals. They showed NJ pornographic magazines with naked men and women depicted having sexual intercourse. They told her that the people in the magazines were making love. They then took her into their bedroom and said they would show her what she had seen in the magazines. Both of the appellants removed some of their clothing and engaged in sexual intercourse while NJ was sitting on the bed watching them. Throughout, the lower parts of their bodies were exposed for NJ to see.
On another occasion, NJ stayed at the appellants’ house after her parents had been there for an evening meal. After her parents had left, NJ was in the appellants’ bed with them. The appellants were lying on top of the bed with the lower parts of their bodies naked. The appellants commenced to engage in sexual intercourse. Chandra pulled up a quilt cover and put it over him and Hart. He then gave NJ a torch and asked her to go under the cover and look at what he and Hart were doing. She did so and, with the use of the torch, saw the appellants engaging in an act of intercourse.
On yet another occasion, the appellants engaged in sexual intercourse in front of NJ while sitting on a couch in their lounge room. After the act of intercourse, Chandra masturbated himself and ejaculated on to NJ in the presence of Hart.
These three separate incidents were the subject of the three counts of gross indecency.
On another occasion NJ stayed at the appellants’ house one night. NJ was sitting on their bed. The appellant Chandra was also lying on the bed with his genitals exposed. The appellant Hart showed NJ how to lick Chandra’s penis and the appellants both made NJ perform that act. This offending constitutes the act of unlawful sexual intercourse.
Offences in Victoria
When the appellants were sentenced, reference was made to offences committed on a young woman in Victoria. It occurred after the above offending. The appellants had sold the house at North Haven and had purchased a caravan with a view to touring Australia. On 15 September 1999 they befriended a woman in her early twenties in a caravan park near Melbourne. The next night they administered rohypnol to that woman. Whilst the woman was drugged by the rohypnol, Chandra performed numerous acts of sexual intercourse upon her and Hart participated in events. Hart made a videotape of those events. The woman had some memory of the events and reported them to the police in Melbourne. On 30 September 1999, when the appellants were at Deniliquin, New South Wales, police officers searched the caravan and found rohypnol and part empty packets of the drug. They found videotapes. One of the events videotaped were the events in Melbourne two weeks before as well as the videotape of the rape of NH. Another videotape was a compilation of excerpts from pornographic films. Parts of the videotape of the rape of NH had been edited into those excerpts.
The appellants were arrested and taken to Albury whence they were extradited to Victoria. On 4 October 2000, they pleaded guilty in the County Court in Victoria to administering a drug for the purpose of sexual penetration. On 19 October, Chandra was sentenced to imprisonment for two years and nine months. It was ordered that 19 months of that sentence be suspended. In consequence, he had to serve 14 months’ imprisonment. Hart was sentenced to imprisonment for three years. Twenty two months of that sentence was suspended so that she too was required to serve 14 months’ imprisonment. The period of 14 months’ imprisonment expired on 20 November 2000. On that date the appellants were extradited to this State to face charges for the offences they had committed on NH and NJ. They have remained in custody ever since.
Perverting the Course of Justice
Before being extradited to South Australia in November 2000, Chandra wrote two letters from a hospital prison in Victoria to two acquaintances who resided in Adelaide. In a letter dated 8 March 2000 he asked one of them to do what he called “a very big favour” which might stop him from going to gaol in South Australia. In that letter he said that he was looking for a witness or witnesses who would say that Chandra had asked them for a drink on his birthday on 17 December 1998. He said he wanted a witness to say that the witness had come to the house that night, had seen NH naked and had seen her take off Chandra’s dressing gown and start having sex with him. He suggested that the witness had then seen Hart bring NH back from hospital and that she had been acting strangely. The witness was also required to say that he had heard NH say that a videotape had been made. The witness would then say he had felt very uncomfortable and had then left. Chandra asked his acquaintance if he could contact another person to see if he could also help. He offered to pay money for this assistance.
On 18 June 2000 he wrote to another acquaintance. In the letter he said that he needed a witness in Adelaide and that, unless that witness were provided, the appellants would serve a gaol term in Adelaide. He suggested that the witness might say that on 17 December the appellants had picked NH up from hospital; that she was then very high on drugs; that upon arriving at North Haven, she had taken off all her clothes and had said that she would like to give Chandra a birthday present; and that, before he could do anything, NH was having sex with him. He suggested that the witness should say that NH had now changed the story because she had a boyfriend.
Plainly, by writing these letters, Chandra was attempting to pervert the course of justice, seeking to have acquaintances lie to the police and later to the court.
The Appellants Plead Guilty
The appellants were committed for trial on 18 July 2001. They were arraigned on 20 August 2001 and pleaded not guilty. The trial was ultimately fixed to commence on 6 May 2002. When arraigned, both appellants pleaded guilty to raping NH and Chandra pleaded guilty to the two counts of attempting to pervert the course of justice. However, both pleaded not guilty to the charge of administering a stupefying drug to NH and to the offences against NJ. A voir dire hearing commenced. On 25 May 2002 both appellants were rearraigned and pleaded guilty to administering a stupefying drug to NH, to the three counts of gross indecency involving NJ, and to the count of unlawful sexual intercourse with NJ.
The Sentences
The sentencing judge exercised the powers in s 18A of the Criminal Law (Sentencing) Act 1988 and imposed one sentence on each appellant for all of the offending. In determining each sentence, he first considered what sentence he would order in respect of each appellant for the offences committed against NH and then for the offences committed against NJ, as well as ordering a separate sentence for the two offences of attempting to pervert the course of justice to which Chandra had pleaded guilty.
The judge ordered the same sentence for each appellant for the offending against NH, namely, a head sentence of 11 years. But for the plea of guilty, the sentence would have been 13 years. He also ordered the same sentence for each appellant for the offending against NJ. Again, his starting point was 13 years which was reduced to 11 years to take account of the pleas of guilty. For the two offences of attempting to pervert the course of justice, he ordered that Chandra serve a period of two years’ imprisonment. But for his plea of guilty, that sentence would have been two years and six months’ imprisonment.
Thus, in the case of Chandra, the total sentence was 24 years’ imprisonment. Having regard to the principles of totality, as well as to the period of imprisonment served in Victoria, the judge reduced that sentence to 20 years’ imprisonment. He fixed a non-parole period of 15 years.
In the case of Hart, the sentences amounted to 22 years’ imprisonment which, by reason of the totality principle and the period of imprisonment in Victoria, the judge reduced to 18 years. He fixed a non-parole period of 13 years.
The judge ordered that both the sentence and the non-parole period commence on 20 November 2000, the day when the appellants were placed in custody in this State.
There are a number of routes by which the sentencing judge could have determined the appropriate sentence. For the purpose of determining whether each sentence is manifestly excessive, it is convenient to adopt the judge’s approach.
The sentencing judge expressly stated that he did not consider the offending in Victoria as prior offending. He sentenced both appellants on the footing that they had no relevant prior offending. Plainly, he was correct to do so as the offending in Victoria occurred after the offending in this State.
When applying the totality principle, the judge took into account the period of 14 months’ imprisonment in Victoria. He did not have regard to the rest of the sentence because it will effectively be served while the appellants serve the periods of imprisonment in South Australia. This was, I think, merciful. The offending in Victoria was a separate and distinct course of offending.
The Effect upon the Victims
The offending has obviously had a devastating impact on the two victims as well as upon the family of NJ. In the case of NH, her trust in her mother has been shattered. Very understandably, NH believes that she has been totally betrayed by her mother. The word “mother” is now a meaningless word to her. She believes that she has now lost her mother, having earlier lost her father who had died of cancer in 1997. She has expressed her thoughts in a poem called “The Unforgivable Sin” in which she describes herself with chilling accuracy as “a victim of the night”. She speaks of how the appellant Chandra has stolen so much from her, most importantly her pride and self-respect, as well as her willingness to trust others. She had to view the videotape in the presence of police for the purposes of identification. She is haunted by it. She has suffered depression in consequence of this appalling conduct.
The offending has also caused divisions within the wider family, some members of the family taking one side or the other. As the sentencing judge noted, that was undoubtedly compounded by the earlier denial of these charges by the appellants.
NJ too has been seriously affected. She did not like being subjected to having to watch the acts of sexual intercourse. On one occasion she fixed her gaze on curtains to avoid seeing it. She was frightened and did not know what to do. She, too, has lost the capacity to trust others. She was understandably disgusted by the conduct to which she was subjected. She was too frightened to tell her parents of it and it was long after she had confided in a friend that she was able to tell her parents. The offending has caused the breakdown of the marriage of her parents.
The First Sentence
Before examining the sentences, it is necessary to note two matters. First, there was no submission that the parties not bear the same culpability for these crimes or should be treated differently. The sentencing judge did not differentiate between them and I do not believe there is any cause to do so.
The sentencing judge accepted that the appellants were genuinely contrite for the offending but he did not believe they were genuinely rehabilitated. There is no reason to disagree with that conclusion. The expressions of contrition and remorse have to be weighed with the late guilty pleas, the letters seeking to pervert the course of justice, and the letter written by Hart to her daughter asking her not to proceed.
Mr Slade, who appeared for the first appellant, submitted that the sentence for the offences upon NH substantially exceeded the usual range of penalties for rape where there had been aggravated features of the offending such as threats with a weapon, threats to kill, or the binding up of the victim. There can be no standard penalty for the crime of rape and, in particular, for the worst kind of rape. As Mullighan J observed in R v Hitchens (1995) 184 LSJS 333 at 336:
“Circumstances of that crime and of the offender can vary enormously and it is inappropriate to try and establish a range of sentence by fixing a minimum or a maximum sentence.”
When determining whether a particular sentence is appropriate for the offending, very limited use can be made of sentences imposed in other cases even for the same crime. The lack of utility of such an exercise was pointed out some time ago by the Full Court in The Queen v O’Donnell (1974) 7 SASR 114 at 115:
“ This is the position in practically every case where this type of argument is put forward, that the facts of the cases cited are different, the circumstances in which the offence was committed are different, the offender is different, and the matters which have to be taken into consideration by the Judge are different. It is but rarely that lists of previous sentences, with short notes of the facts appended, are of use to a Court of Criminal Appeal.”
Thus, although some regard will be had to the level of sentences ordered in other cases, it is necessary to determine the appropriate sentence by reference to the individual circumstances of each case.
The absence of aggravating features such as threats, with or without a weapon, counts for little. The appellants drugged this woman for the purpose of their own sexual gratification. That is just as much an aggravating aspect of the offending as the other kinds of aggravating features which have been mentioned. The drugging of NH is the more disgraceful and the more culpable as she had been discharged from hospital only because the appellants had said they would care for her. On release, she was very much affected by the morphine administered in the hospital. The appellants took advantage of her then partially drugged state. Instead of caring for her, they administered rohypnol to achieve their own prurient ends. In short, NH was discharged from hospital as she believed to the safety and care of her mother. Unbeknown to her, she was drugged, raped, and the act of rape videotaped. It is difficult to conceive a more gross breach of trust. It was predatory conduct of a disgusting kind. Plainly, no regard was had to the possible effects of administering a drug to an already drugged woman.
There are at least two other aggravating aspects of the offending. First, the appellants kept the videotape for their own sexual gratification. Not content with that, part of the rape of NH was edited into another tape which had highlights from pornographic films. The second aggravating feature is that NH was informed by police that it was believed she was the subject of the videotape. She had to endure the disgust and shame of viewing the tape in the presence of a police officer and her partner to confirm that she was the subject of the film. She then realised that the appellants had had the tape for some 12 months.
It was appropriate for the sentencing judge to impose one penalty for the crimes against NH. While it formed one course of conduct, it involved two separate and serious offences. The drugging of the victim for the purpose of committing an indictable offence will itself attract a substantial sentence of six years: R v Ralph (1995) 184 LSJS 24 at 28. The crime of rape itself attracts a substantial sentence. In my view, the starting point selected by the sentencing judge was well within the range of sentences for this conduct. I do not mean to suggest that it is necessarily appropriate to dissect the conduct into parts. The fact that each aspect attracts a substantial sentence only serves to emphasise that the sentence was well within the range of appropriate sentences for these crimes.
The reduction for the plea of guilty cannot be criticised. The plea of guilty in respect of NH came late. It avoided the necessity for her to give evidence. However, it was necessary for her to remain on stand-by in respect of the other offence against her. Not until after the voir dire hearing did the appellants plead guilty to that offence. There is no reason, therefore, to interfere with the sentence of 11 years for this offending.
The Second Sentence
I turn to the sentence in respect of the crimes against NJ. The sentencing judge took as his starting point a sentence of 13 years’ imprisonment. He reduced that period to 11 years to take account of the appellants’ pleas of guilty. This too was predatory conduct of a disgusting nature. The appellants took advantage of this girl in a gross breach of trust. However, for the reasons which follow, I think that the sentence was manifestly excessive even for this terrible kind of offending.

There was one count of unlawful sexual intercourse and three counts of acts of gross indecency. The four separate counts represented a single offence. This was not a case where at least some of the counts were representative of a course of offending as quite frequently happens when persons are charged with sexual offences against children.
With this kind of offending, as with the crime of rape, there can be no prescribed penalty. Regard must be had to the particular circumstances of each offence. However, the starting point of a sentence of 13 years’ imprisonment is too high. It is the kind of sentence ordered where the offending is constituted by a large number of offences and the offending itself involves a gross breach of trust. It is sufficient to refer to R v D (1997) 69 SASR 413 and R v AJW (2001) 80 SASR 246.
Ms Barnett sought to distinguish this conduct from other kinds of sexual offences against children where the conduct, she said, involves an adult fondling with a child which might be construed by the child as some form of closeness or affection. By contrast, she said, NJ was subjected to watching two adults engage in bizarre sexual behaviour in circumstances where she could not leave. I do not think that any advantage is to be gained by seeking to contrast the facts in this case with other forms of sexual misconduct towards children. Almost invariably, sexual offences against children under the age of 13 years involve a gross breach of trust. Each case must be examined on its own facts.
This Court has said that penalties for offences involving sexual abuse of young children by adults in a position of trust should attract heavier sentences than in the past: R v D (supra). Where the offending involves multiple offences involving unlawful sexual intercourse of children under 12 years of age over a period of time, the starting point should be a head sentence of about 12 years’ imprisonment: R v D (supra) at 423 – 424. In R v AJW (supra) at 249, the court said that the thrust of the remarks in R v D applied to other offences of sexual abuse involving young children. The court repeated views expressed in R v D in these terms:
“… the sexual abuse of children by persons in a position of trust appears to be quite widespread. Persons charged with such offences appear before the courts quite regularly. The serious consequences that such offending has on the children involved, and the insidious effects on the social relationship between those responsible for children and people who deal with their children, are a reason for the courts to treat such offending very firmly. The courts must do what they can to show to parents, and those with parental responsibilities, that when their trust in others is abused, resulting in the sexual abuse of their children, the courts will do everything that they can to impose adequate punishment on the offenders.”
It will have been noticed that those remarks are addressed to sexual abuse of children under 12 where multiple offences have occurred.
The offending against NJ was of an appalling kind. There can be no doubt that the sentence must reflect the gravity of the offending and the fact that two adults subjected this nine year old child to their bizarre sexual tastes in a gross breach of trust. There must be a substantial sentence which has a substantial element of general, as well as personal, deterrence. While the offending is of a very serious nature, it is nevertheless constituted by four incidents only. The sentence must, therefore, be less than the sentence for sexual offending which involves a large number of separate incidents.
For these reasons, I would order a sentence of imprisonment for eight and one half years which I would reduce to seven years to take account of the pleas of guilty. The reduction for the pleas of guilty is of the same order as that ordered by the sentencing judge.
The Third Sentence
No submissions were made in respect of the sentence imposed on Chandra for the two crimes of attempting to pervert the course of justice and, properly so. These were serious offences. The sentence is well within the sentencing discretion.
Chandra’s Health
The appellant Chandra developed a serious back problem in mid-1990 for which he underwent surgery in 1996. This condition limited the amount of work he could do. He has been on an invalid pension since November 1997. He has been in a wheelchair since a short time after his arrest in Victoria. He says that he is unable to use either of his legs or his left arm. He says that this is a consequence of injuries sustained while being handled by police in Victoria. There is no evidence to support this allegation. An orthopaedic surgeon, who performed the surgery in 1996 and who had recently examined Chandra, can find no anatomical evidence to explain the loss of use of the legs and arm. A physician in Victoria has a like view and has expressed the opinion that it is probable that the paralysis has a psychiatric rather than an organic cause.
Chandra suffers from other medical conditions. The most obvious is a serious neurological disability causing chest pains and other problems. The physician in Victoria believes that there is a likelihood that coronary disease diagnosed in 1995 will progress and Chandra’s chance of having a heart attack in the future is high.
When sentencing Chandra, the judge referred to his medical problems. He noted also the quite serious medical difficulties suffered by Hart. He had regard to the fact that both would suffer difficulty in prison. He made a modest allowance for those matters, remarking that the “sentences must reflect the community’s abhorrence of these crimes”.
Counsel for Chandra submitted that an inadequate reduction had been made for Chandra’s medical disabilities. I do not agree. The extent to which the court will have regard to an offender’s ill health was noted in R v Smith (1987) 44 SASR 587 per King CJ at 589. Noting the responsibilities of the Correctional Services Department, His Honour said:
“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”
Thus, an offender’s psychological or medical condition which would render imprisonment a greater hardship to him than to another person is a relevant consideration in determining the length of a term of imprisonment and whether it should be suspended. Nevertheless, an offender cannot be allowed to escape punishment for a serious crime simply because he has such difficulties. The Correctional Services Department has the responsibility to manage prisoners in a way which minimises any harm to them which might result from abnormal, psychological or medical conditions: De Vroome (1988) 38 A Crim R 146 per King CJ at 147. King CJ added:
“The courts can make some adjustment to sentences to take account of the additional hardship caused to an offender by his condition, but they are necessarily limited in the extent of such adjustment by the necessity of maintaining proper standards of punishment.”
The fact that Chandra is confined to a wheelchair is not a factor which should lead to any substantial reduction in the sentence. There can be little doubt that being confined to a wheelchair will cause great hardship to him. It is unlikely that prisons in this State make sufficient provision for prisoners in wheelchairs. He will also be more vulnerable than an able bodied prisoner. However, I do not think that his medical condition requires any further reduction in his sentence.
Nevertheless, it is appropriate to add that the Correctional Services Department should take all reasonable steps to ensure that Chandra receives proper assistance and does not suffer undue hardship because he is in a wheelchair. He is entitled to that consideration no matter whether the cause of his being in a wheelchair is physical or psychological.
The Amended Sentence
By reason of the reduction to the head sentence for the offending against NJ, the head sentence for Chandra is reduced to a period of 20 years and for Hart it is reduced to 18 years.
The sentencing judge applied the totality principle and reduced the sentences. In doing so, he also had regard to the sentence of 14 months served in Victoria. In the result, he reduced each sentence by four years. Even though I have reduced each sentence, it is nevertheless appropriate to have regard to the totality principle and the period of imprisonment served in Victoria. However, because the sentences have already been reduced, the reduction for those factors will be three years.
I think I would have achieved a very similar result had I made what Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [75] called an “instinctive synthesis”, instead of the more mathematical approach outlined above. In the circumstances, it is unnecessary to examine that issue any further.
For these reasons, I would allow the appeal. I would set aside the sentence ordered in the District Court and, in lieu thereof, sentence Chandra to imprisonment for 17 years with a non-parole period of 12 years and would sentence Hart for 15 years with a non-parole period of 10 years. These sentences will all commence on 20 November 2000.
GRAY & SULAN JJ
These are appeals against sentence.
The appellants, Ramjas John Chandra and Teena Hart pleaded guilty to the crimes of administering a stupefying drug with intent to commit an indictable offence; rape; unlawful sexual intercourse with a girl under the age of 12 years and three counts of gross indecency. Mr Chandra also pleaded guilty to two counts of attempting to pervert the course of justice.
The offences of administering a stupefying drug, rape and unlawful sexual intercourse all carried a maximum term of life imprisonment. The offences of gross indecency each carried a maximum penalty of three years imprisonment. The offences of attempting to pervert the course of justice are common law offences and the penalty was at large.
The Approach of the Sentencing Judge
The sentencing judge imposed the one sentence on Mr Chandra pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). He was sentenced to imprisonment for 20 years with a non-parole period of 15 years.
The judge disclosed his process of reasoning. He first considered the heinousness of administering a stupefying a drug and rape. He started at 13 years imprisonment, made a reduction of 2 years on account of the pleas of guilty and arrived at a provisional head sentence of 11 years. The judge then addressed the offences of unlawful sexual intercourse and gross indecency. He started with 13 years imprisonment and again, made a reduction of 2 years on account of the pleas of guilty arriving at a provisional head sentence of 11 years. Finally the judge addressed the offences of attempt to pervert the course of justice. He started with 2 years and six months imprisonment, then made a reduction of 6 months on account of the pleas of guilty, and arrived at a provisional head sentence of two years.
The judge then added the three provisional head sentences to arrive at a total of 24 years imprisonment. He then made a reduction of 4 years having regard to the principle of totality and imposed one head sentence of 20 years imprisonment. A non-parole period of 15 years was fixed.
The sentencing judge followed the same approach when sentencing Mrs Hart. The judge saw no difference between the appellants’ culpability. He arrived at the same provisional head sentences for the offences of administering a stupefying drug and rape, arriving at a notional head sentence of 11 years. With respect to the offences of unlawful sexual intercourse and gross indecency he arrived at a provisional head sentence of 11 years. These were added to produce a notional total of 22 years. The principle of totality was then addressed and a further reduction of 4 years was made. This led to a head sentence of 18 years imprisonment. A non-parole period of 13 years was fixed.
It is from these sentences that Mr Chandra and Mrs Hart have appealed.
The Offending
The details of the offending are set out in the reasons of Debelle J and are summarised in these reasons only to the extent necessary.
Mr Chandra and Mrs Hart had been living together in metropolitan Adelaide for some months. They had been in a relationship for some time prior to moving to Adelaide.
On 17 December 1998 Mrs Hart’s daughter “N” was discharged from hospital that day into the care of Mr Chandra and Mrs Hart. She was being treated with medication for an ongoing illness. She had not fully recovered. Mr Chandra and Mrs Hart took N to their home to convalesce. That evening they administered a stupefying drug Rohypnol to N, probably in her food or drink. She was overcome by the drug. This was the intention of Mr Chandra and Mrs Hart.
Mr Chandra then had sexual intercourse with N whilst she was unconscious. Mrs Hart videotaped the act of sexual intercourse. One purpose of the crime appears to be some form of perverse sexual gratification. Another was the preparation of a pornographic video.
N did not learn about these events for some ten months. She had no memory of the rape. At that time she was shown the videotape by the police and was able to identify herself as the victim of the offending.
The crimes were very grave. Mr Chandra and Mrs Hart took advantage of an ill and trusting daughter. Their conduct was despicable, callous and depraved.
The offences of unlawful sexual intercourse and gross indecency were committed against a 9 year-old female child. The child was a great-niece of Mrs Hart. The child and her family had moved from Tasmania to Adelaide and were befriended by Mr Chandra and Mrs Hart. They invited the child to stay at their home. Her parents agreed. The offending against the child took place between March and September 1999.
Mr Chandra and Mrs Hart exposed the child to pornographic publications depicting sexual intercourse. After the child had been shown the publications she was instructed to observe Mr Chandra and Mrs Hart engaging in sexual intercourse. On another occasion the child was provided with a torch and instructed to make close inspection of an act of sexual intercourse. On a further occasion the child was instructed to observe an act of sexual intercourse between Mr Chandra and Mrs Hart in the lounge room. After that act Mr Chandra masturbated himself and ejaculated onto the child in the presence of Mrs Hart. These incidents gave rise to the three counts of gross indecency.
On another occasion the child was staying at the residence of Mr Chandra and Mrs Hart overnight. Mrs Hart committed an act of fellatio on Mr Chandra in the presence of the child and then both Mr Chandra and Mrs Hart forced the child to engage in an act of fellatio on Mr Chandra. This offending gave rise to the offence of unlawful sexual intercourse.
The gravity of the offending against the child is self-evident. Mr Chandra and Mrs Hart set about having the child accept abhorrent unlawful sexual conduct as normal and acceptable behaviour. These offences involving a young child would cause any right-minded member of the community to be outraged. Such offending can only result in the loss of innocence of a child and have the potential of having a long-term detrimental effect on the child. The conduct is of a grossly immoral and seriously illegal kind.
These matters are of particular relevance when regard is had to the observation of Doyle CJ in D[1]:
They are offences [sexual offending against children] that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.
[1] (1997) 69 SASR 413 at 423
Prior to being extradited to South Australia in November 2000 Mr Chandra set about a course of conduct to pervert the course of justice. At the time for reasons addressed by Debelle J Mr Chandra was in a hospital prison in Victoria. He wrote to acquaintances in Adelaide seeking to arrange for false testimony. He wanted a witness to give evidence that N was a knowing and willing participant in the sexual conduct, the subject of the stupefication and rape charges. In his correspondence, Mr Chandra outlined the false account he wished presented. That account included N agreeing to a videotape of the sexual conduct being made. Mr Chandra offered to make payment for the requested false testimony. In June 2000, Mr Chandra wrote to another acquaintance seeking another false account of N’s conduct at the time of the offending. The false accounts were intended to provide a defence for Mr Chandra.
This repeated conduct involved grave criminal offending. In R v Jenner[2] Doyle CJ said:
‘The offence of attempting to dissuade a witness is a serious one. … attempting to dissuade a witness from giving evidence strikes at the heart of the judicial system, by attempting to deprive a court of probative evidence. If a court is deprived of relevant probative evidence, the risk of a wrong decision clearly arises. The offence is serious not only because it involves the making of a threat to another person. It has the added seriousness that the purpose of the threat, and its possible consequence, is the making of a decision by a court which will be made on an incomplete appreciation of the relevant facts, and will possibly be erroneous for that reason. Such a decision can, in turn, weaken confidence in the system of justice. At the very least, some of the persons involved in the matter before the court are likely to know that a threatened witness has not given evidence and thus are likely to know that an unreliable decision has been made.
For those reasons, it is appropriate for the court to punish severely persons who commit this offence. In the end, the court must do so to protect the integrity of the system of justice.’
[2] (2000) 110 A Crim R 512 at 524; see also R v Liddy (No 2) (2002) 84 SASR 231 at [132], [173-174]

These remarks are of equal relevance to Mr Chandra’s attempts to pervert the course of justice.
Approach to Sentencing
Mr Chandra and Mrs Hart’s criminal offending against N occurred in December 1998, and against the child between March and September 1999. In March and June 2000 Mr Chandra engaged in conduct perverting the course of justice.
Shortly after the offending against N and the child Mr Chandra and Mrs Hart engaged in a further act of administering a stupefying drug and rape. This offence occurred in Victoria. Both were sentenced and were later extradited to face the charges the subject of these proceedings. All of this offending was related or connected. The stupefication, rape and videotaping of the rape of N was at least in part directed to the preparation of a pornographic video. It also appears that the criminal offending also involved an element of sexual gratification. The conduct concerning the child was directed to the child’s acceptance of such depraved behaviour as normal and the apparent use of the child for sexual gratification and other prurient interests. Mrs Hart’s offending against N and the child was particularly serious. The breach of N’s trust by her mother and the child’s trust by her great aunt are matters of aggravation. These matters were well known to Mr Chandra. As such, the conduct represents an ongoing course of related and connected conduct by both Mr Chandra and Mrs Hart.
The sentencing judge treated the offences against N as one incident, the offences against the child as a separate incident, and the attempt to pervert the course of justice as a third incident. As earlier observed, the sentencing judge arrived at provisional head sentences before considering the principles of totality.
It is artificial to treat the offending in respect of one victim as isolated and unrelated from the offending against the other victim. The conduct was related. It had common features, as in each case it involved a gross breach of trust, the use or creation of pornographic video material, sexual conduct which had serious effects upon the victim in each case, and sexual abuse of the most revolting kind. The acts in each case should be viewed against the backdrop of one another and the conduct must be viewed as a whole. This is a case where it was appropriate for the sentencing judge to pass one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act which provides:
“If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentences relate.”
The conduct is such that it should be viewed in an overall way and the final sentence should be considered as one sentence in that way.
The Approach of the Appellate Court
In Dinsdale v The Queen[3] the High Court considered the approach to be taken to the sentence appeal. Gleeson CJ and Hayne J observed:
The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v The King (16):
“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[3] (2000) 202 CLR 321 at 324-325
This court is also guided in its appellate jurisdiction by the provisions of section 353(4) and (5) of the Criminal Law Consolidation Act 1935 (SA).
(4) Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal.
(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
In the present case the sentencing judge disclosed his process of reasoning and mathematical calculations in some detail. This has allowed different aspects of the overall sentences to be criticised.
In AB v The Queen[4] McHugh observed:
‘To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take account of various factors is also a process which is plainly unsuited to the sentencing process in many cases. No doubt, where the circumstances of the offence are such that a heavy jail sentence is clearly required, the judge may make a notional or provisional assessment of the appropriate sentence and adjust it accordingly. But even in these cases - where punishment, deterrence and protection dominate the process - such an approach almost always invites error. Statutory exceptions aside, the task of the judge “is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence” (30). If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case. Instead of sentencing his embezzler, with this history, for taking this amount in these circumstances, consciously or unconsciously, the judge may determine the objective sentence by what is perceived to be appropriate for an embezzler who has taken a large (or small) amount of money in breach of trust. Abstraction replaces the convicted person’s circumstances in determining the appropriate sentence.
...
The factors bearing on a sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case. In R v Rushby (31), Street CJ said, correctly in my opinion, that the “determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements”. No doubt at the conclusion of the process, the judge will check the sentence against other comparable sentences and may feel compelled to adjust the sentence up or down. But that is quite different from beginning with an “objectively” determined sentence.’
[4] (1999) 198 CLR 111 at 121-122. See also Hayne J at 157
This represents the majority view of the High Court[5].
[5] Pearce v The Queen (1998) 194 CLR 610; Wong v The Queen (2001) 207 CLR 584; Cameron v The Queen (2002) 209 CLR 339
The view could be taken that the sentencing judge was lenient in imposing a provisional sentence of 11 years for the offences of administration of a stupefying drug and rape. These were grave crimes that could have attracted a higher sentence. As earlier discussed it could also be said that insufficient regard was had to the fact that the offending against N and the offending against the child were related conduct. This could be viewed as a matter of aggravation. In his sentencing remarks, the judge did not appear to have regard to the overall conduct and the manner in which the offending against each of the victims was related. This situation may have arisen as a result of the mathematical approach taken towards offences forming part of a course of conduct.
However, for the reasons mentioned earlier this court has to assess the overall sentences imposed. It is only if the court is of the view that a different sentence should have been passed that the court will proceed to pass “that other sentence warranted in law.”
In the present case, when regard is had to the totality of Mr Chandra’s criminal offending the sentence of imprisonment of 20 years and the fixing of a non-parole period of 15 years here was an appropriate sentence. In the case of Mrs Hart imprisonment for 18 years and a non-parole period fixed at 13 years was also an appropriate sentence.
For these reasons these appeals should be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 (1997) 69 SASR 413 at 423
2(2000) 110 A Crim R 512 at 524; see also R v Liddy (No 2) (2002) 84 SASR 231 at [132], [173-174]
3 (2000) 202 CLR 321 at 324-325
4 (1999) 198 CLR 111 at 121-122. See also Hayne J at 157
5Pearce v The Queen (1998) 194 CLR 610; Wong v The Queen (2001) 207 CLR 584; Cameron v The Queen (2002) 209 CLR 339

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established