R v Chesterman - [2017] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHESTERMAN
[2017] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Justice Doyle)
12 April 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Following pleas of guilty, the respondent was convicted of two counts of unlawful sexual intercourse with a person under 14 years, two counts of attempted unlawful sexual intercourse with a person under 14 years and aggravated indecent assault. The offending occurred against a background of similar conduct over a period of a few months. The victim was 13 years of age at the time of the offending and has an intellectual disability. The respondent, who was 59 years of age at the time of the offending, was aware of both the victim’s age and disability. The respondent was sentenced to eight years and four months imprisonment. This was reduced on account of the respondent’s pleas of guilty, resulting in a head sentence of five years imprisonment. A non-parole period of two years and six months imprisonment was fixed.
The Director of Public Prosecutions sought permission to appeal against the sentence imposed contending that both the head sentence and non-parole period were manifestly inadequate having regard to the seriousness of the offending (including the vulnerability of the victim), the impact of the offending upon the victim and his family, and the need for personal and general deterrence. The applicant further contends that the sentence is so manifestly inadequate as to warrant the intervention of this Court by granting permission to appeal, allowing the appeal and substituting an appropriate sentence of imprisonment.
Held per Doyle J (Kelly and Parker JJ agreeing), granting permission to appeal and allowing the appeal:
1. While the present case is distinguishable from R v D (1997) 69 SASR 413, the sentencing standard set in that case nevertheless provides significant guidance as to the appropriate penalty in the present case.
2. The features of this case, including the victim’s intellectual disability and the respondent’s knowledge of this, are such that the sentence imposed was significantly below the appropriate range.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50, 56, 270A, referred to.
R v Van Gelder (2003) 142 A Crim R 1, discussed.
R v Van Gelder (2003) 142 A Crim R 1; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Quinn (2012) 114 SASR 354; R v MJJ; R v CJN (2013) 117 SASR 81, considered.

R v CHESTERMAN
[2017] SASCFC 31
Court of Criminal Appeal: Kelly, Parker and Doyle JJ

KELLY J: I agree.
PARKER J: I agree with the reasons of Doyle J and the orders that he proposes.
DOYLE J: The applicant, the Director of Public Prosecutions, seeks permission to appeal against the sentence imposed on the respondent.
Following pleas of guilty, the respondent was convicted of the following offences:[1]
·    count 2 – unlawful sexual intercourse with a person under 14 years[2] (the respondent causing the victim to have anal sex with him);
·    count 3 – attempted unlawful sexual intercourse with a person under 14 years[3] (the respondent attempting to place his penis in the victim’s anus);
·    count 4 – unlawful sexual intercourse with a person under 14 years (the respondent performing fellatio on the victim);
·    count 5 – attempted unlawful sexual intercourse with a person under 14 years (the respondent attempting to have the victim perform oral sex on him); and
·    count 6 – aggravated indecent assault[4] (the respondent masturbating the victim).
[1] Count 1 (persistent sexual exploitation of a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA)) was not proceeded with once pleas of guilty were entered to counts 2 to 6.
[2] As to counts 2 and 4, contrary to s 49(1) of the CLCA.
[3] As to counts 3 and 5, contrary to ss 270A and 49(1) of the CLCA.
[4] Contrary to s 56 of the CLCA.
The maximum penalty for unlawful sexual intercourse with a person under the age of 14 years is life imprisonment; for attempted unlawful sexual intercourse with a person under the age of 14 years it is 12 years imprisonment; and for aggravated indecent assault it is 10 years imprisonment.
The offending was particularised as having occurred on a single day, namely 1 June 2015. However, the offences were not isolated. They occurred against a background of similar conduct over a period of a few months commencing in March 2015. The respondent had also shown the victim pornography.
The sentencing judge commenced with a notional head sentence of eight years and four months imprisonment. Her Honour reduced this by 40 per cent on account of the respondent’s pleas of guilty, resulting in a head sentence of five years imprisonment. Her Honour fixed a non-parole period of two years and six months imprisonment.
The applicant seeks permission to appeal on the single ground that the penalty imposed was manifestly inadequate. The applicant accepts that the sentencing judge identified all relevant sentencing considerations. The only qualification to this is that the sentencing judge did not mention the respondent’s conduct in showing the victim pornography, but the appellant accepts that this matter would not of itself have warranted appellate intervention. Further, the applicant makes no complaint about the 40 per cent discount on account of the respondent’s pleas of guilty.
The applicant’s contention is that both the head sentence and non-parole period are manifestly inadequate having regard to the seriousness of the offending (including the vulnerability of the victim), the impact of the offending upon the victim and his family, and the need for both personal and general deterrence. The applicant further contends that the sentence is so manifestly inadequate as to warrant the intervention of this Court by granting permission to appeal, allowing the appeal, and substituting an appropriate sentence of imprisonment.
Circumstances of the offending
The victim is a young boy with an intellectual disability. He was 13 years of age at the time of the offending, and was living with his parents and older sister.
The victim had been diagnosed with global development delay in 2005. In early 2015, and so only a few months prior to the offending, he was assessed by a psychologist for the purposes of recommending an appropriate education placement for him. The findings included that he suffered from a mild (borderline moderate) intellectual disability and adaptive behavioural difficulties; his vocabulary was at the level of an eight year old; and his reasoning skills and memory were well below the level of an average five year old.
The respondent was 59 years of age at the time of the offending. He lived on a corner of the victim’s street.
The victim would frequently attend areas around the neighbourhood to collect bottles and pick fruit in a laneway. During these outings the victim became acquainted with the respondent and began visiting his house. On occasion the respondent gave the victim fruit and other items and worked on the victim’s bike.
The victim’s parents were aware of some of these interactions. They told him not to go inside the respondent’s house as they did not know him.
On 17 May 2015, the victim’s older sister saw him at the local shopping centre with the respondent. The victim had gone there without the knowledge of his parents. The sister was distressed to find him with the respondent, and arranged for their mother to come and collect them.
On 1 June 2015, the victim was at home after being suspended from school for bad behaviour. During the day he twice left the family home and went to the respondent’s house, having lied to his mother about where he was going.
Later in the day, the victim disclosed to his mother that the respondent and he were “friends with benefits”, that they had kissed, and that they had licked and touched each other’s penises. The mother reported the matter to the police the same day.
The police attended the victim’s home that afternoon. The victim gave an account of what he and the respondent had been doing. He told the police that he went bottle collecting with the respondent earlier in the day, and that they went to the shops and then to the respondent’s house. He described the respondent’s offending that occurred while he was at the respondent’s house in quite detailed and graphic terms, albeit in the fairly basic language that one might expect from a young child. He described the offending as having occurred both before and after he had returned to his own house for lunch. He also mentioned that the respondent had made him watch pornographic videos, and that the respondent liked dressing up as a girl.
The victim was interviewed again on 6 and 7 June 2015. He gave an account of the offending that was consistent with what he told police on 1 June 2015. The victim told the police that he had visited the respondent’s home frequently, often after school. He described the various sexual acts in detail, and said that they happened frequently. He described an occasion when the respondent took him to the shops and licked his penis in the laneway of the shops. He said that this had occurred more than once. He said that the respondent would give him lollies, chocolates, and energy drinks, and on one occasion gave him a toy gun.
The victim also described, again in quite detailed and graphic terms, the various pornographic videos that he had been shown by the respondent.
The respondent was arrested on 1 June 2015. The police searched his house and located a number of electronic devices, some of which contained various types of adult pornography consistent with that described by the victim. Some of these devices also contained video files with footage of the respondent dressed in female underwear and other costumes. The videos showed the respondent masturbating, and included him speaking about having sexual intercourse with young boys, saying things such as “I love fucking little boys” and “rape my little boy ass”.
The impact of the offending on the victim and his family
The father of the victim provided a victim impact statement. It described the profound impact the offending has had on the victim and his family.
There have been a number of significant changes in the victim’s behaviour since the offending against him. His behaviour has become more erratic and unpredictable. He has developed significant anger management issues, and has become more disruptive, both at home and at school. His behaviour led to him being suspended from school on an almost weekly basis, and then ultimately expelled. He has thus been removed from the few friends that he did have at his school and has been forced to try and start again. His father described the victim as now being even more of an outcast than he had previously been.
The victim has also developed an interest in pornography, and in particular male genitalia, which has meant he can no longer be permitted to use his iPad unsupervised.
Further, the victim has on three separate occasions behaved in a sexually inappropriate manner with young boys. This has resulted in a visit from police in relation to one of the incidents. The victim is no longer allowed to leave his home alone.
The respondent’s personal circumstances
By the time of sentencing, the respondent was 60 years of age. He had no prior convictions of relevance.
The respondent came from a dysfunctional family. He was not close to either his parents or siblings. He had experienced a number of psychiatric problems since the age of 18.
After completing his schooling, the respondent commenced an arts degree at university, but did not complete it. He began working for the taxation office. He subsequently commenced studying an economics and commerce degree while working at the tax office.
The respondent was married at the age of 22, but divorced by the age of 31. He has no children. He developed a chronic gambling problem in his 20s, and when he took a redundancy package from the taxation office in his 30s, he gambled away the payout. The respondent later worked on a part-time basis as a taxation accountant. He had not worked for some years prior to his offending.
The respondent obtained a psychiatric report from Dr Jennings. This report addressed several significant matters.
The report mentioned that prison had been a difficult experience for the respondent. In part this was on account of his mental health problems, and because he had experienced some physical health concerns. The respondent had also been assaulted on a number of occasions by fellow prisoners. According to Dr Jennings, the assaults appeared to be the consequence of a combination of the respondent having revealed his offending, and the approach he took to other prisoners. I observe that while the difficulties endured by the respondent in prison are relevant, the authorities make it plain that little, if any, allowance should be made in the sentencing process for the harsher conditions that an offender might suffer while in custody to the extent that this is a product of the nature of their offending, and other prisoners’ response to that offending.[5]
[5] R v Van Gelder (2003) 142 A Crim R 1 at [50]-[51].
The report explained that Dr Jennings had treated the respondent from November 2010 to January 2015. He then interviewed the respondent in August 2016 for the purposes of sentencing. He described the respondent as suffering from a schizotypal personality disorder, which was marked by social isolation and social anxiety.
Dr Jennings noted that the respondent had described his contact with the victim as involving a “relationship”. He also said that the respondent was aware of the victim’s intellectual disability, and that he was regularly teased by other children.
Further, Dr Jennings expressed no positive view about the respondent’s prospects of rehabilitation. He saw that as a matter which would depend upon the degree of social isolation that he experienced upon release. In this respect it is notable that Dr Jennings had tried to assist the respondent with his social isolation in the approximately four years that he had treated him. Given that the respondent engaged in the present offending only a few months after ceasing his treatment by Dr Jennings, it would appear that the treatment was not very successful.
In summary, there are several concerning features of this matter relevant to the respondent’s prospects for rehabilitation, namely his apparent sexual interest in young boys (as evidenced by his offending and the material on his electronic devices), his references to his being in a “relationship” with the victim, and the unsuccessful attempts to treat his difficulties associated with his social isolation.
Analysis
The principles governing applications by the Crown for permission to appeal against sentence are well established.
Permission to appeal in such a case will only be granted in relatively rare and exceptional circumstances. A grant of permission may be appropriate in order to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes to be corrected; or if a sentence is so far below the appropriate range of sentence that it reflects an error of principle or would shock the public conscience.[6]
[6] Everett v The Queen (1994) 181 CLR 295 at 300, 306; R v Nemer (2003) 87 SASR 168 at [22]-[24]; R v Quinn (2012) 114 SASR 354 at [24].
Turning to the applicant’s contention that the sentence imposed in the present case was so manifestly inadequate as to warrant appellate intervention, it is appropriate to commence with some observations of general relevance to sexual offending against children.
In sentencing for such offending, paramount consideration should be afforded to the need for general deterrence and punishment.[7] This has long been recognised, but is now also statutorily enshrined in s 10(2)(c) of the Criminal Law (Sentencing) Act 1988 (SA). That section provides that in the case of an offence involving sexual exploitation of a child, the Court must give proper effect to the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence.
[7] R v Quinn (2012) 114 SASR 354 at [29].
In R v D,[8] this Court made a number of observations relevant to cases involving a course of sexual offending against a child by a person in a position of trust and authority. Doyle CJ observed:[9]
…They are offences 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.
It appears that the sexual abuse of children by persons in a position of trust is quite widespread. …the offences that are involved come before the courts with disturbing frequency. It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.
[8] R v D (1997) 69 SASR 413.
[9] R v D (1997) 69 SASR 413 at 423; Bleby J made some similar observations at 430.
More recently, in R v MJJ; R v CJN,[10] Kourakis CJ observed:[11]
There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.
[10] R v MJJ; R v CJN (2013) 117 SASR 81.
[11] R v MJJ; R v CJN (2013) 117 SASR 81 at [84].

In R v D the victim was the defendant’s 13 year old stepdaughter. The offending was broadly similar to the present, although the defendant (as the victim’s stepfather) was in a position of trust and authority. The Court drew a distinction between offending involving unlawful sexual intercourse with a child under 12 years of age, and offending involving a child 12 years or older. In the case of the former, it was necessary to reflect more clearly the fact that the maximum penalty was life imprisonment.[12]
[12] R v D (1997) 69 SASR 413 at 423-424, 430.
The Court held that 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. When the child victim was over 12 years of age, the starting point should be about 10 years. However, the Court also emphasised that the standard was a flexible one, and permitted higher or lower starting points depending on the circumstances of the particular case.[13]
[13] R v D (1997) 69 SASR 413 at 424, 431.
The standard set out in R v D has continued to be applied by this Court. Further, in 2006, the age in s 49(1) of the CLCA was increased from 12 years to 14 years. The sentencing standard in R v D should be adjusted to reflect this statutory change to extend the maximum penalty of life imprisonment to unlawful sexual intercourse with a child under the age of 14 years.
Turning to the present case, it is of some relevance that the respondent did not hold any formal position of trust and authority. While the present case is thus distinguishable from R v D, the standard set in that case nevertheless provides significant guidance as to the appropriate penalty in the present case.
Further, in the context of offending by an adult against a child, there is often some level of abuse of trust even in circumstances where the adult offender does not hold any formal position of trust. In a case, such as the present, where there has been a history of interaction between the child victim and adult offender, the child will often have developed a level of trust in the adult. The adult will often have assumed a position of authority and influence. That relationship of trust is even more likely, and even more significant, in the case of an intellectually disabled child. While not intending to diminish the significance of the existence of a formal relationship of trust, there will in some cases (such as the present) be a degree of trust, authority and influence, and consequential vulnerability, that falls short of a formal relationship of trust, but which is nevertheless relevant to a defendant’s culpability. Further, and in any event, the existence of a relationship of trust is but one of the range of matters relevant to the sentence ultimately imposed.
Putting to one side the absence of any formal relationship of trust, the present case otherwise has all the features of the cases to which the sentencing standard in R v D is intended to apply. The offending was not isolated. It involved multiple offences, and while these all occurred on the one day, the offending occurred against a background of similar conduct and other evidence suggesting a sexual interest in children. There was also an element of grooming in the respondent’s conduct in his use of gifts to the victim.The present case thus gives rise to the same need for personal and general deterrence that the Court was concerned to address in R v D.
Significantly, there were the additional features in this case that the victim was intellectually disabled, and the respondent knew this to be so. The resulting vulnerability of the victim, and knowledge of this vulnerability, are aggravating features of the offending which were not present in R v D. Related to this is the evidence as to the profound impact that the offending has had on the victim, as exemplified by his engaging in sexualised behaviour with other children.
Bearing all of the above in mind, I am satisfied that this is an appropriate case in which to give the applicant permission to appeal. The sentence is significantly below the appropriate range for a case such as the present.
Having decided to grant permission, and without expressing any view as to whether such discretion exists, I do not regard this as an appropriate case in which to exercise any residual discretion that the Court has to dismiss the appeal. In my view, the discrepancy between the appropriate sentence and the sentence imposed is sufficient to warrant the intervention of this Court. Further, having decided to grant permission to appeal, and to allow the appeal, the concern to avoid double jeopardy that informs the Court’s approach up to this point, thereafter has no role to play. By reason of s 340 of the CLCA, the Court is precluded from having regard to double jeopardy when determining the fresh sentence. It does not operate to temper the sentence to be imposed.
Resentence
In determining the appropriate sentence, I consider that the standard in R v D remains a relevant and appropriate standard. However, it must continue to be applied with the flexibility that the Court envisaged would be appropriate in the application of that standard.
While the present case did not involve the abuse of any formal relationship of trust, all of the other features and considerations underpinning that standard are relevant in the present case. Both personal and general deterrence, and the protection of children in the community more generally, are significant factors. Further, and unlike R v D, the present case involved an intellectually disabled (and hence peculiarly vulnerable) victim. The offending has had a profound and continuing impact on the victim and his family.
In my view, this is an appropriate case in which to impose a single sentence of imprisonment under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). I consider that a starting point of 12 years imprisonment is appropriate. I would reduce this by close to 40 per cent on account of the respondent’s earlier pleas of guilty, giving a reduced head sentence of seven years and three months imprisonment. For the reasons set out earlier, and despite the absence of any prior convictions of relevance, it is appropriate to be cautious about the respondent’s prospects of rehabilitation. I would fix a non-parole period of four years. I would backdate the sentence to the date the respondent was taken into custody, 1 June 2015.
There being no challenge to the intervention order made by the sentencing judge, I would not interfere with that order.
Conclusion
I would grant the applicant permission to appeal. I would allow the appeal, set aside the sentence imposed below, and impose a sentence of seven years and three months imprisonment, with a non-parole period of four years. I would backdate the sentence to 1 June 2015.