R v Douglass

[2011] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DOUGLASS

[2011] SASCFC 6

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Anderson)

4 March 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - BREACH OF TRUST

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY

Appeal against sentence of imprisonment imposed by District Court Judge - appellant found guilty following trial by Judge alone of one count of aggravated indecent assault - offence committed against appellant's young granddaughter while appellant was in position of trust - appellant was 55 years of age at time of offending - appellant had prior convictions for offences of a sexual nature - head sentence of three years’ imprisonment imposed - non-parole period of 18 months imposed - sentencing Judge declined to suspend the sentence - whether sentencing Judge erred in failing to suspend the term of imprisonment imposed - whether sentence manifestly excessive.

Held: appeal dismissed - no error of sentencing principle identified - sentencing Judge entitled to decline to suspend sentence given seriousness of offending and appellant's prior criminal offending - sentence not manifestly excessive.

Statutes Amended (Sentencing of Sex Offenders) Act 2005 (SA) s 4(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
Director of Public Prosecutions (SA) v O'Connor (1995) 65 SASR 250, discussed.
R v Horstmann [2010] SASC 103, considered.

R v DOUGLASS
[2011] SASCFC 6

Court of Criminal Appeal         Gray, Sulan and Anderson JJ

THE COURT

1. This is an appeal against sentence. 

2. The defendant and appellant, Raymond Howard Lyle Douglass, was found guilty following a trial before a District Court Judge of the offence of aggravated indecent assault.  The offence involved the indecent assault of the defendant’s three year old granddaughter on 23 October 2008.  The maximum penalty for the offence is 10 years’ imprisonment. 

   Background

3. On 10 November 2010, the defendant was sentenced to a term of imprisonment of three years.  A non-parole period of 18 months was fixed.  The Judge declined to exercise his discretion to suspend the sentence.

4. The defendant’s granddaughter, C, was staying at her grandparents’ home, a farm in the Adelaide Hills.  C’s parents were estranged and at the time C was living with her mother, the daughter of the defendant.  The defendant took C with him when he went to visit his mother.  On the way the defendant stopped on a property where the offending conduct occurred.  The defendant had C hold his penis while he urinated. 

5. About a week later C spoke about the indecent assault to her father.  She recounted the incident as though it was an entirely normal event.  C’s father reported the conversation to C’s mother who then spoke to the defendant’s wife and then the defendant about the allegation.  The defendant denied the allegation and has continued to do so.

6. Victim impact statements from C’s mother and father were before the Court.  Those statements graphically portray the consequences of the defendant’s criminal conduct.  C’s mother’s statement outlined C’s changed behaviour.  Both have been to counselling.  One consequence of the defendant’s conduct has been to cause a major rift in the family.  C’s mother and her children have been ostracised by the rest of the family.  As she said in her victim impact statement:

   You have taken my family away from me and my children.  We no longer have any family as no-one except [R] contacts us.  Christmas and birthdays are horrible.  My kids have missed out on so much with their family as we are no longer invited to birthday’s [sic] or special occasions and no-one wants to socialise with us.  The kids miss [C] and [A] and they can’t see them even though they ask about them all the time.  I believe that -having family around children helps them grow and develop their own relationships, you have taken this from them and we are left on our own with no support.

7. The victim impact statement from C’s father attests to the impact of the defendant’s offending both to C and himself.  He too speaks of the rift in the family.  He describes how his own life has taken a back seat as he struggles to cope with the implications of the defendant’s offending.

8. The defendant is aged in his late 50s.  He has always lived in the Adelaide Hills on an orchard property.  He lived next door to his mother.  His mother is in her 80s and in poor health.  The sentencing Judge described the defendant as a hard worker who supported both his mother and his partner.  His partner is in poor health requiring hospitalisation from time to time.  The defendant also suffers from ill-health.  The sentencing Judge noted in particular the impact that an immediate custodial sentence would have on the defendant and his family.  The defendant had three children; one of whom is the mother of C.  One of the other children of the defendant lives close by in the Adelaide Hills.  The defendant’s partner is the mother of his three children.  They had earlier divorced but more recently have resumed a relationship as partners.

9. The defendant has a number of criminal antecedents including 24 offences committed in 1994 of a sexual nature.  Twenty-two of those offences involved indecent behaviour.  The defendant pleaded guilty to those offences and was sentenced to a suspended term of imprisonment of 15 months. 

10. In the present proceeding, the sentencing Judge declined to suspend the sentence and in that respect remarked:

    I have borne in mind that you have stayed out of trouble for 14 years.  I have borne in mind your good work record and the dependence of your mother and partner.  I accept that by reason of the nature of this offending, imprisonment will be harder for you than it is for some others.  I have borne in mind that you suffer ill health and that, at 57, you are going to prison for the first time.  However, I do not regard these considerations as sufficient to prevail in the face of the seriousness of this offending.  It was a gross breach of trust involving a very young child.  The sentence will run from today.

    The Appeal

11. On the hearing of the appeal senior counsel for the defendant submitted that the head sentence of three years was manifestly excessive, that as a consequence the non-parole period was excessive and that in all the circumstances any sentence of imprisonment should have been suspended.  This submission was supported by emphasis being placed on the fact that the offence was an isolated act and an offence not in the most serious category of offences of this nature.  Counsel described the offence “as a single touching of the penis in the context of urination”.  Counsel accepted that the conduct called for a term of imprisonment. 

12. The Director submitted that the sentence imposed was well within the discretion of the Judge.  It was further submitted that in all the circumstances the sentence was entirely appropriate. 

13. In O’Connor,[1] the question of suspension of a term of imprisonment was considered.  The Director sought leave to appeal on the grounds that the suspended sentence of 18 months’ imprisonment imposed was manifestly inadequate.  Perry J, with whom Cox and Williams JJ agreed, made the following comments in relation to suspension of imprisonment for offences against children:[2]

    Circumstances of aggravation in this case are constituted by the substantial disparity in ages, the gross breach of trust, the repetitive nature of the offences and that they were committed over a period of time. In my opinion, those factors gave rise to the need to have regard to general deterrence as the dominant consideration in imposing sentence.

    Matters personal to the defendant such as his prior good record and his psychological condition could not outweigh the need for punishment "proportionate to the gravity of the crime, and for the deterrence of others": see R v Lewis (1993) 60 SASR 582 at 584.

    In my view, the sentence of imprisonment was too short and its suspension not warranted. The sentence reflects a failure to give proper weight to the seriousness of the offending and the need for general deterrence.

    It is instructive to note that the primacy of deterrence when sentencing for sexual offences was enshrined in legislation by the enactment of the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) which introduced section 10(4) into the Criminal Law (Sentencing) Act 1988 (SA):

    A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

    That subsection clearly enunciates the recognised need to protect children when sentencing for sexual offences against children.

    [1]    Director of Public Prosecutions (SA) v O’Connor (1995) 65 SASR 250.

    [2]    Director of Public Prosecutions (SA) v O’Connor (1995) 65 SASR 250 at 253. See also R v Horstmann [2010] SASC 103 at [24]-[26].

14. The Director, supported by these authorities, placed particular emphasis on the respective ages of the defendant and C and the abuse of trust that had occurred.  It was also pointed out that having regard to his criminal antecedents, leniency that would otherwise have been available to a first offender should not be extended to the defendant.

15. It is the view of this Court that the defendant’s criminal conduct is serious.  The offence was committed to an innocent three year old child, the granddaughter of the defendant.  The conduct involved a gross breach of trust and the impact of the defendant’s conduct has been to cause a rift in the family with the consequence that the defendant’s granddaughter, her sibling and her parents have been ostracised.  This in turn has caused great distress.

16. The defendant has shown no contrition or remorse for his offending conduct.  Before this Court he asserted that he was not guilty of the earlier offending, notwithstanding his pleas of guilty.  He blamed poor legal representation. 

17. It is to be accepted that a substantial sentence has been imposed.  However, in our view it has not been demonstrated that the sentence is manifestly excessive.  No error of sentencing principle was identified.  It was not suggested that the Judge had failed to have regard to any material matter or had regard to any irrelevant consideration.  We add that in our view, in all the circumstances, the head sentence and non-parole period were entirely appropriate. 

18. Given the seriousness of the offending and the defendant’s criminal antecedents we consider that the sentencing Judge was entitled to decline to suspend the sentence of imprisonment. 

    Conclusion

19. This appeal is dismissed.