R v D, RHC - [2011] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v D, RHC
[2011] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Peek)
21 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant was convicted of one count of unlawful sexual intercourse with a person of the age of 14 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) and two counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) - the trial Judge sentenced the appellant to nine years' imprisonment with a four year non-parole period - the appellant appealed on the basis that the sentence was manifestly excessive in the circumstances of the case - whether the impact of imprisonment on the appellant's children warrants an allowance to the sentence and what, if any, allowance is appropriate in the circumstances of the case.
Held: appeal allowed. The head sentence imposed by the trial Judge was excessive in the circumstances of the case, in particular, the impact of the appellant's imprisonment on his children. The appellant was re-sentenced to seven years' imprisonment with a non-parole period of three years.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 48; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v D, RHC
[2011] SASCFC 31
Court of Criminal Appeal: Doyle CJ, Kelly and Peek JJ

DOYLE CJ: Mr D has applied to the Court for permission to appeal against sentence. Permission to appeal was refused by a single Judge.
After a trial before a jury in the District Court, Mr D was found guilty of one count of unlawful sexual intercourse with Ms V, a person of the age of 14 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and further found guilty of two counts of rape of Ms V contrary to s 48 of the CLCA. A District Court Judge sentenced Mr D to imprisonment for nine years and fixed a non-parole period of four years.
The case is an unusual one, as will appear. Mr Vadasz, counsel for Mr D, submits that the head sentence is manifestly excessive, but the main argument for Mr D is based on the impact of his imprisonment on two of his children. The case raises the issue of the allowance, if any, that should be made on that account.
Facts
In 1993 Ms V, then aged 14 years, ran away from home. She was unable or unwilling to live at home. She rented a room in a house occupied by Mr D. He was then 32 years of age. A sexual relationship began between them.
The offence of unlawful sexual intercourse occurred between February and July 1993. Bearing in mind that there was a continuing sexual relationship, the occasion of the offence was identified as an occasion when Ms V, Mr D and Mr A engaged in sexual activity together. Ms V said that she was affected by alcohol on the occasion in question. The sexual relationship continued. Ms V moved house with Mr D on more than one occasion. The charge of rape was based on an incident in May 1995. Ms V was then 16 years of age. The incident occurred shortly after she had given birth to a child by Mr D. The occasion was identified as one when acts of intercourse involving Ms V, Mr D and Mr A were filmed, unknown to Ms V. The rape by Mr D involved vaginal and penile intercourse.
Later again Ms V married Mr D. She had four children in all by him. The relationship broke down in 2005, resulting in the complaints made by Ms V against Mr D. There have been bitterly contested proceedings in the Family Court in relation to the custody of children. Material from the Family Court proceedings was before the sentencing Judge. The Judge was very critical of the conduct of Ms V and to a lesser extent that of Mr D. At one stage Ms V was convicted of attempting to procure the murder of Mr D, and as a result of that she was imprisoned in another State for a little more than a year.
When Mr D was sentenced he was 50 years of age. He had had a troubled childhood. He had a record of minor offending, but not a substantial record, and the most recent offence was in 2008. He had never served a sentence of imprisonment.
At the time of sentencing the children of Ms V and Mr D were aged 10 years, 11 years, almost 14 years (a boy) and 15 years (a girl). The younger two children had what the Judge called a “reasonable relationship” with Ms V, and were living with her. The two older children did not have a satisfactory relationship with Ms V. They had been living with Mr D until he was imprisoned, and wanted to continue to live with him. The Judge was told that the oldest child, Ms W, would nevertheless live with Ms V. Arrangements had been made for the boy T to live with another person. The Judge said:
Adequate arrangements are in place to care for the children. I am unable to find that circumstances amounting to them being characterised as exceptional with the consequences that flow from such a finding.
The Judge had a report from a psychiatrist relating to the circumstances of W and T. The psychiatrist had met with W and T. In his report he said:
They both stated that they are very angry at their biological mother, [V] and they reported that they believe she is an unfit mother …
On mental state examination both children presented as quite sad and depressed when they were giving reports about their biological mother. They both became quite tearful and at the same time angry at the prospect of their father being incarcerated. Other than that throughout the rest of the interview they both presented as quite reactive and appropriate and were engaging in coherent conversation. There was no evidence of any perceptual abnormalities.
…
I believe that the children are genuinely distressed at the prospect of their father being incarcerated. I am particularly concerned that their mental and emotional as well as their physical well-being can be affected should their father be incarcerated or at the prospect of them being re-united with their mother on a full time basis. It is apparent that despite all the chaos and distresses that have been happening in the family environment the children have coped surprisingly well. This is partly due to their display of resilience but also partly due to the effective job that their father has done as a parental figure. I believe that the children are functioning at a reasonable level at the present time. I would be particularly concerned if they were re-united with their mother. This may aggravate their level of functioning and create a major setback. Subsequently they would be at great risk of developing major psychiatric illness for which they will require ongoing therapy as well as interference with their level of functioning.
In relation to the offending the Judge said (he was also dealing with Mr A):
Both of you took advantage of a vulnerable young girl to satisfy your sexual desires. She was just 14 at the time of the first act of sexual activity between the three of you. You were both in your early 30s. The act of rape occurred shortly after the birth of her first child. At that stage she was just 16 years of age.
The Judge noted that the rape of a young girl, even though there was a sexual relationship at the time, was “an extremely serious matter”. He referred to the significant age difference between Ms V and Mr D. He referred to the need for general and personal deterrence, and for the need to protect children such as Ms V. There was no indication of remorse on the part of Mr D, as he continued to protest his innocence of the charge of rape. The Judge said that he took into account the position of the children when fixing a shorter than usual non-parole period. He was satisfied that Mr D was likely to be rehabilitated. He could not find good reason to suspend the sentence.
The appeal
On the hearing of the appeal Mr Vadasz tendered affidavits from each of the two older children.
Ms W is now about 16 years of age. The relationship with Ms V, her mother, broke down soon after Mr D was imprisoned. She states that she has not had any contact with her mother since August 2010. Mr D was sentenced in July 2010. She has moved from house to house. Her schooling has been completely disrupted. She is now living with her boyfriend. Her situation is quite unsatisfactory, and it is clear that she is very much at risk. The second child, T, is now 14 years of age. He also has gone from house to house. The living arrangements that had been made when Mr D was sentenced have not worked out. No satisfactory arrangements have been made for his care. He has had virtually no schooling for some time. He also is at risk.
The affidavits make it clear that contrary to the information before the Judge, and the Judge’s expectations, the arrangements for these children have not worked out. No-one is caring for them. The family situation is complicated. The material from the Family Court shows that. But I am most concerned that these two children are adrift in society, with no-one taking responsibility for their care. I do not suggest for a moment that to do so would be straightforward. I can only encourage the Director of Public Prosecutions to make contact with the appropriate government body, in the hope that something can be done.
I should add that Ms Matteo, counsel for the Director on appeal, did not oppose the Court receiving the further affidavits. Even so, I would not have admitted them as evidence were it not for the fact that the affidavits disclose that the basis on which the Judge sentenced Mr D collapsed quite quickly. The material in the affidavits was not available when the Judge was sentencing, because the relevant events had not occurred. The affidavits throw significant new light on the issue of the older two children of Mr D, a matter that was considered by the Judge.
I turn now to the sentence.
I agree that the sentence was a heavy one. But the offending was very serious. There can be no doubt that Mr D took advantage of Ms V when she was a vulnerable 14 year old girl. He was then a mature man. He established a sexual relationship with Ms V, aggravated by the circumstance that he encouraged sexual acts with another man. The offences of rape were serious. The filming of the incident added to the degradation of Ms V.
While the sentence is a heavy one, I do not agree that it was manifestly excessive, in light of the material then before the sentencing Judge. The offence of unlawful sexual intercourse warranted a sentence of imprisonment for several years. The offences of rape warranted a sentence of imprisonment for about six years. The sentence imposed by the sentencing Judge is within an appropriate range.
The only issue to my mind is whether the further evidence demonstrates that the sentence is manifestly excessive.
Mr D has previously demonstrated that he is able to care for the two older children, and to care for them satisfactorily. There is no reason to doubt that the two children wish to live with him. There is every reason to think that if he were able to he would care for them and that he would do his best.
But the impact of Mr D’s imprisonment on his two children is only one of a number of matters to be considered, as the Judge recognised. Concern for the children cannot “trump” all other considerations. I agree that the children are at risk, and that the circumstances could be regarded as exceptional. But even then concern for the children is only a factor to go into the scales, and to be considered along with other matters. The Judge’s sentencing remarks indicate that he bore in mind the position of the children, when fixing a much shorter non-parole period than would ordinarily be fixed.
After a good deal of thought, I am persuaded that in the light of the material the head sentence is excessive. I am satisfied that if the Judge had known what is now before the Court, he would have imposed a shorter sentence, having regard to the position of the children. But other sentencing considerations had to be given due weight as well. In the end, I consider that the head sentence of seven years should have been imposed, in light of the new material. I would fix a non-parole period of three years, a little less than half of the head sentence. This is similar to the approach taken by the sentencing Judge.
I recognise the odd aspect of this. I am proposing to reduce the sentence, but to impose a sentence that leaves the children at risk, and denies them the care of their father, for a substantial period. However, that is the inevitable result of the circumstance that the care of the children cannot dominate. I can only hope that in the meantime, through intervention by a State agency, something will be done to protect the two children in question.
I turn to the question of whether the sentence should be suspended. In my opinion it should not be suspended. I cannot find good reason to do so. Suspension of the sentence would be out of the question, were it not for the circumstances of the two children. But while the circumstances of those children support suspension, the other factors to be taken into account lead me to conclude that suspension cannot be warranted.
Conclusion
As I said at the outset, this is an unusual and difficult case. I am most concerned about the situation of the children. However there is a limit to what the Court can do to protect them.
I would allow the appeal, set aside the sentence imposed by the District Court Judge, and substitute a single sentence of imprisonment for seven years, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). I would fix a non-parole period of three years. The sentence and non-parole period should commence from 26 March 2010, when Mr D was taken into custody.
KELLY J: I agree with the orders proposed by the Chief Justice.
PEEK J: I agree with the orders proposed by the Chief Justice and with his reasons.