R v Clifford - [2004] SASC 344

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLIFFORD
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
3 November 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
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 Director of Public Prosecutions for leave to appeal against sentence - respondent found guilty by jury of one count of gross indecency and one count of unlawful sexual intercourse - respondent sentenced to imprisonment for 3 years with a non-parole period of 15 months - whether sentence reflects an adequate standard of punishment - whether sentence imposed reflects an error of principle - whether Judge erred in making sentences for the two offences concurrent - whether sentence manifestly inadequate - leave to appeal granted - appeal allowed - respondent's sentence of imprisonment increased to 6 years with a non-parole period of 3 years.
Criminal Law Consolidation Act 1935 (SA) s 49(4), s 58(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413, discussed.
R v Liddy (No 2) (2002) 84 SASR 231; R v P (2003) 87 SASR 287; R v Nemer (2003) 87 SASR 168, considered.

R v CLIFFORD
[2004] SASC 344
Court of Criminal Appeal: Doyle CJ, Besanko and White JJ

DOYLE CJ: This is an application by the Director of Public Prosecutions for leave to appeal against a sentence.
Mr Clifford was sentenced by a District Court Judge, after being found guilty by a jury on one count of procuring an act of gross indecency by a person under the age of 16 years, and on one count of unlawful sexual intercourse with a person of or above the age of 12 years and under the age of 17 years. The maximum penalty for the former offence is imprisonment for a term not exceeding three years: s 58(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum punishment for the latter offence is imprisonment for a term not exceeding seven years: s 49(4) of the Criminal Law Consolidation Act 1935 (SA).
The Judge imposed a single sentence of imprisonment in exercise of the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The Judge sentenced Mr Clifford to imprisonment for three years, and fixed a non-parole period of 15 months.
I will refer to the victim of the offences as J.
J was born in September 1982. Her mother separated from her father, and in 1989 her mother became friendly with another man. She married him in 1991. He lived with J’s mother for about one year before that. They began living together when J was about seven years old. J did not get on well with the man who was to become her stepfather.
J’s mother was friendly with Mr Clifford and his wife. The mother and J visited them, and they visited her. Apparently J got on well with Mr Clifford and his wife. A practice developed under which she would visit them most weeks, usually on a Saturday, and often spend much of the day with them, and with Mr Clifford in particular. This continued from when J was about seven years of age to when she was about 17 years of age. She did odd jobs for Mr Clifford when visiting him, and was able to earn some pocket money in this way. It seems that J and Mr Clifford and his family became quite close. Mr Clifford was born in 1941, and so was about 48 years of age when J began visiting him.
The prosecution case was that Mr Clifford embarked on a course of conduct with J that involved sexual abuse of J. Much of it took place in a garden shed at Mr Clifford’s house, although after a time it also took place inside the house. The misconduct began with Mr Clifford showing his penis to J. J was then about seven years old. It soon progressed to Mr Clifford asking her to touch his penis and to rub it, causing him to ejaculate.
The first of these incidents was the subject of count one, which was alleged to have occurred between September 1989 and September 1991, when J was less than nine years old.
J’s evidence was that this conduct occurred weekly, in the shed. It progressed to Mr Clifford touching J’s breasts when she was about ten years of age. Then he began touching her in the region of her vagina. Then he began putting his finger in her vagina, getting her to masturbate him at the same time. Then he began to insert his penis into her vagina. As I understand the evidence, these developments occurred while J was about 10 years of age.
J’s evidence was that Mr Clifford had penile intercourse with her on a regular weekly basis until she was about 18 years of age. As I mentioned earlier, much of this took place in the garden shed, but sometimes took place in the house when Mr Clifford’s wife was out shopping. There were other aspects of Mr Clifford’s sexual misconduct with J but it is not necessary to go into the details.
Count two was an act of vaginal intercourse when J was about 16 years of age. The particulars of the offence allege that count two occurred between 1 January 1996 and 31 December 1998.
The misconduct by Mr Clifford ended shortly after J turned 18 years old. At about this time J moved out of her mother’s home, and apparently decided to end her contact with Mr Clifford. She reported Mr Clifford’s conduct to the police in January 2002, at the urging of an acquaintance.
The jury must have accepted this evidence. The offences are of the utmost gravity. Although only two in number, they occurred in the context of a prolonged course of sexual abuse by Mr Clifford of J.
Mr Clifford was a mature man. He was in a position of trust as a family friend. He was a kind of father figure to J.
The victim impact statements indicate, not surprisingly, that J has suffered considerably as a result of her experience. She finds it difficult to trust people, and is afraid of men. Her mother has suffered as well.
The Judge noted Mr Clifford’s age, and that he had no previous convictions. But any credit attributable to the lack of previous convictions was eroded by the long course of conduct described by J. The Judge referred to the need to impose a sentence that would deter others from like offending. He then imposed a sentence of imprisonment for three years. In fixing the non-parole period of 15 months the Judge had regard to the fact that Mr Clifford had not been in prison before, and to his acceptance that Mr Clifford was unlikely to re-offend.
The Director’s argument on the application for leave to appeal was that the sentence failed to reflect the seriousness of the offences. The Director did not argue that the Judge had erred in law, or that the Judge’s reasons disclosed an error of principle.
Counsel for the Director and for Mr Clifford referred to this Court’s decision in R v D (1997) 69 SASR 413. In my reasons in that case I said that in future the sentences imposed for a course of conduct involving unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority, should be increased: at 423. I also said that sentences should reflect more clearly the different maximum punishments for offences with children under 12 years of age, and for offences with children over 12 years of age: at 423.
In later cases different views have been expressed on the question of whether that higher standard should apply to offending conduct that occurred before D was decided, so long as the conviction was recorded after the decision in D, or whether the higher standard should be applied only to offending conduct that occurred after D was decided in 1997: see R v Liddy(No. 2) [2002] SASC 306; (2002) 84 SASR 231 at [7] Mullighan J, at [147] Williams J, at [221]-[224] Gray J; R v P [2003] SASC 428; (2003) 87 SASR 287 at [62] Perry J, at [88] Mullighan J, at [96] Besanko J. For the reasons that will appear, it is not necessary to decide that issue here.
Each of the offences is of the utmost seriousness. The first offence of procuring an act of gross indecency, although committed early in the course of misconduct by Mr Clifford, was a step in a process of preparing a young child so that she would submit to further offending. It is to be seen as an offence, the purpose of which was not merely the immediate gratification of Mr Clifford, but the corruption of J so that she would participate in further misconduct by Mr Clifford. The offence of unlawful sexual intercourse is an offence committed on a young woman who had been prepared by Mr Clifford so that she would submit to the offending, and who had been led by Mr Clifford into a harmful and corrupting relationship. To say this is not to sentence Mr Clifford for conduct in respect of which he was not charged. It is to recognise the significance and the seriousness of the offences.
There are no mitigating circumstances except for Mr Clifford’s age, the fact that he has not been in prison before, and the fact that he is otherwise of good character. I do not consider that the decision in D indicates a standard for offending of this kind. Here only one offence of unlawful sexual intercourse is involved. Even though that offence is to be dealt with against its background of sexual abuse, the fact that only one such conviction is recorded limits the sentence to be imposed. I also consider that even judged by sentencing standards that applied before the decision in D, the sentence in question is far too low.
I turn to consider the appropriate sentence, before deciding whether leave to appeal should be granted.
When only two offences are charged, there is something to be said for sentencing separately for each offence, rather than imposing a single sentence under s 18A. I consider that the first offence called for a sentence of two years’ imprisonment. The sentence would be higher, but for the fact that the offence came early in the course of conduct. The second offence called for a sentence of not less than four years’ imprisonment. This offence occurred in a context of Mr Clifford thoroughly corrupting J and that adds to its seriousness. The sentence for the second offence should be cumulative upon the sentence for the first offence. Although each offence occurred in the course of the same relationship, each offence reflects a different stage and aspect of the relationship. Allowing the sentences to be concurrent would not adequately reflect the gravity of the offending.
Having regard to what I consider to be an appropriate sentence, I am satisfied that the sentence imposed by the Judge reflects an error of principle. The sentence fails to reflect an adequate standard of punishment. It is not merely lenient, it is outside the acceptable range of punishment for such offending. As well, it is a sentence that could undermine public confidence in the criminal justice system, because of its inadequacy. The sentence cannot be explained as an act of mercy, or as a merely lenient sentence. Nor is it a case in which genuine mitigating circumstances have persuaded the Judge to be unusually lenient.
It does not follow that leave to appeal should be granted, or that the appeal should be allowed.
The limits within which the Court considers applications by the Director for leave to appeal against sentence are well known. There is no need to repeat them on this occasion. I refer to my summary of the position in R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [23]-[24].
This is a case in which leave to appeal should be granted to the Director. It should be granted because the sentence fails to reflect an adequate standard of sentencing, and because the sentence might undermine public confidence in the criminal justice system. These are reasons for granting leave to appeal, even though no general point of sentencing principle arises.
I turn to the question of whether the appeal should be allowed. Sometimes it will suffice to identify an error that has been made, or to affirm a relevant sentencing principle, without setting aside the sentence under consideration. In the present case the sentence should not be allowed to stand. It does not reflect an adequate standard of punishment, and the inadequacy is a significant one. The offences are of a prevalent kind, and are of a kind that causes deep community concern. The Court must maintain and insist upon adequate standards of punishment for such offending.
I would allow the appeal, set aside the sentence, and substitute sentences of two years’ imprisonment and four years’ imprisonment as indicated. In fixing a non-parole period I am prepared to accept that Mr Clifford is unlikely to offend again. Having regard to his age, and the fact that he has not been in prison before, there is some scope for mercy in fixing the non-parole period. The fact that this is a Director’s appeal is also relevant. In relation to the combined head sentence of six years I would fix a non-parole period of three years, which is lower than usual.
Conclusion
I would grant leave to appeal. I would allow the appeal. I would set aside the sentence imposed by the District Court. I would impose a sentence of two years’ imprisonment for the first offence, and four years’ imprisonment for the second offence. I would direct that the second sentence be cumulative upon the first sentence. In relation to the combined head sentence of six years I would fix a non-parole period of three years. I would direct that the head sentence and non-parole period run from 22 April 2004, the date when Mr Clifford was taken into custody.
BESANKO J: I agree with the orders proposed by the Chief Justice and with his reasons. There is nothing I wish to add.
WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.