R v E, AD - [2005] SASC 332

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v E, AD
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Besanko)
1 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal and leave to appeal against sentence - the appellant was sentenced in the District Court to imprisonment for ten years and five months with a non-parole period of six years and six months after pleading guilty to offences of: unlawful sexual intercourse with a person under the age 12; two counts of indecent assault; 13 counts of inducing a child to expose his or her body contrary to s 58A(1)(b) of the Criminal Law Consolidation Act (now repealed) - general principles of sentencing discussed - the use of sentencing standards discussed - whether the sentence was manifestly excessive - the totality principle discussed - leave to appeal application renewed before the Full Court on grounds of rehabilitation, guilty pleas and the totality principle - leave to appeal refused - appeal dismissed.
Criminal Law Consolidation Act 1935 s 58A(1)(b); Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v D (1997) 69 SASR 413, distinguished.
Postiglione v The Queen (1997) 189 CLR 295, discussed.
R v Kench [2005] SASC 85; Wong v The Queen (2001) 207 CLR 584; Police v Cadd (1997) 69 SASR 150; R v Place (2002) 81 SASR 395; R v Major (1998) 70 SASR 488; R v Bennett [2005] SASC 55; R v B, RWK (2005) 91 SASR 200; R v Rossi (1988) 142 LSJS 451, considered.

R v E, AD
[2005] SASC 332
Court of Criminal Appeal: Doyle CJ, Debelle and Besanko JJ

DOYLE CJ: This is an appeal by leave against a sentence imposed by the District Court. The complaint is that the penalty is manifestly excessive. Leave to appeal was refused on three grounds. The appellant requested that the application for leave to appeal on those grounds be considered and determined by the Full Court. The Full Court considered the application for leave to appeal on the hearing of the appeal, treating the argument on the application for leave as the argument on the appeal.
Facts
The appellant pleaded guilty to a number of offences. The victims were twins, his stepdaughter and his stepson. When the first few offences were committed they were nine years of age. In the closing stages of the offending conduct they were ten years of age.
The first offence was one of unlawful sexual intercourse with a person under twelve years of age. The victim was the stepdaughter. The appellant inserted his finger into her vagina. The offence was committed in July 2002. The maximum penalty for this offence is imprisonment for life.
The next two offences are offences of indecent assault. The victim was again the appellant’s stepdaughter. These offences were committed in July 2002, on separate occasions within a few days of the first offence. The offences involved touching the child in her vaginal area. The maximum punishment for each of these offences is ten years’ imprisonment.
This group of offences was committed over the course of a few days when the appellant’s wife and stepson were absent from the home. The appellant was caring for his stepdaughter.
In August 2002 the stepdaughter told her mother. She confronted the appellant. He admitted his offending conduct to her, and apologised. The mother, the appellant and the stepdaughter discussed the situation. The appellant apologised to the stepdaughter. The family remained together. The mother kept a close watch on things.
The next group of offences occurred on eight separate occasions between October 2002 and March 2003. This group comprises 13 counts of inducing a child to expose his or her body contrary to s 58A(1)(b) (now repealed) of the Criminal Law Consolidation Act 1935. Eight counts involved the stepdaughter. Five counts involved the stepson. For each of these offences the maximum punishment is two years’ imprisonment.
The background to these offences is that it was not uncommon for the children to be naked, or to be in the company of the appellant when they were naked. The sentencing Judge suggested that this demonstrated “grooming” by the appellant of the stepchildren. On a number of occasions over the period in question the appellant got his stepchildren to undress and to shower together. On some occasions the appellant also undressed. He filmed the children using a video camera. On some occasions he got them to stand so as better to expose their genitals, to enable him to film them at close range. He loaded the photographs on to a computer and showed the images to the children.
I have viewed copies of the photographs and the video recording. The video recording is disturbing, and puts this group of offences in the category of serious offending of its kind. Without going into detail, the appellant did not merely film the children naked. Much of the video recording focuses on the children’s genitals, and involves repeated instances of them exposing and handling their genitals while the camera is up close. On some occasions the appellant is naked. In one of them the appellant has a partial erection.
The appellant pleaded guilty also to one count of indecent assault on his stepson. This offence occurred in December 2002. It involved the appellant handling his stepson’s penis, and squeezing it, so as better to expose it so that the appellant could film it. This offence attracts a maximum punishment of ten years’ imprisonment.
In June 2003 the children told their mother what the appellant had been doing. They told their mother that the appellant had been taking photos of them when they were naked in the shower, and that they did not like it. They said they pretended to enjoy it but they were scared and they did not like it. The children’s mother confronted the appellant and, while not admitting everything, he did not deny the substance of the allegations. The appellant left the family home. The pictures that he had taken were located. As well, the police found thousands of pornographic pictures of children on his computer. This material was not the subject of any charges and I record it merely as relevant background to the offending conduct.
The appellant was 35 years old when sentenced. He had no previous convictions of any relevance. There is nothing out of the ordinary in his background. His marriage to the victims’ mother was his second marriage, his first marriage having ended after a few years. He married the mother of the victims in 2001. On the material before the Judge, there was nothing out of the ordinary in the marital relationship, or in the appellant’s life, after that marriage. That is, of course, subject to the offending conduct.
After the second group of offences came to light the appellant sought medical treatment privately and through the Sexual Offenders’ Treatment and Assessment Program (SOTAP).
The appellant has said that he regrets the offending conduct and feels remorseful. He appears to realise that he has caused harm to the victims and to his second wife. The Judge accepted that he had insight into the effect of what he had done, and that he was remorseful for the pain that he had caused to others.
Evidence before the Judge indicated that the appellant had been suffering from depression when he committed the offences. That depression was attributable to some difficulties in his employment, and possibly was contributed to by a difficult childhood relationship between the appellant and his father. However, it does not appear that this was a significant factor.
A clinical psychologist who was involved in the appellant’s treatment through SOTAP provided a report to the Judge. His opinion was that there was a risk of the appellant re-offending but that his prospects of rehabilitation were reasonably good. He had made significant progress during the Program. The psychologist referred to the fact that the appellant had voluntarily sought treatment and summarised the positioned as follows:
This suggests that [E] is motivated to change his behaviour. In addition, [E] has been relatively open about his deviant interests and his sexual abuse of children. Openness about such matters has facilitated his progress in treatment. As noted earlier, [E] has not only come to acknowledge offending behaviour that he initially denied, but has begun to identify ways of thinking that he had used to allow himself to commit the offences. [E] has invested a great deal of time and effort in reducing his risk of re-offending: he is likely to benefit from ongoing participation in treatment.
The Judge also had a report from a psychiatrist. The psychiatrist said that in his opinion there was a low risk of the appellant re-offending, although re-offending could not be totally excluded should he again find himself in stressful circumstances.
The Judge used the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 to impose a single sentence of imprisonment. He said that taking all matters into account, and but for the pleas of guilty, he would have imposed a sentence of imprisonment for 14 years. He reduced that by 25 per cent, and imposed a single head sentence of imprisonment for 10 years 5 months. He fixed a non-parole period of 6 years 6 months, to date from 22 February 2005 when the appellant was taken into custody.
Like all such cases, this is a tragic case. Until he committed these offences, the appellant had led an apparently normal life as a member of the community. Now the appellant must face the immediate consequence of imprisonment and the longer term consequences of his offending, with the difficulty of resuming a normal life after serving his sentence of imprisonment.
The tragedy for the children, their mother and their close relatives is even greater. The victim impact statements reveal the impact of the offending, and of the harm done to the children, and to their mother. The appellant’s conduct has had a direct effect on her, and also indirect effects as a result of the reaction of others to the family crisis. It is not so easy to assess the impact of the offending on the children. They are not of an age to be able to explain this. However, and sadly, experience suggests that the adverse effects are likely to be long term.
The appeal
The submission by Mr Mancini, counsel for the appellant, is founded on the decision of this Court in R v D (1997) 69 SASR 413. In that case I reviewed sentences imposed for offences involving unlawful sexual intercourse with children. Having done so, I said that the court should increase the level of penalty imposed for such offences: at 423. I added that a clearer distinction should be drawn in sentencing offenders between the offence of unlawful sexual intercourse with a child under 12 years of age, for which the maximum punishment is life imprisonment, and unlawful sexual intercourse with a child over 12 years of age, for which the maximum sentence is seven years’ imprisonment. I then said at 424:
In my opinion 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. In saying that I refer to a sentence imposed under s 47(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.
Bleby J agreed with my reasons. That decision has been followed since then: see R v Kench [2005] SASC 85 at [23]–[32].
As I have emphasised on a number of occasions, my observations in D provide no more than a general guide to sentencing judges. This is not the occasion to restate the role of this Court in providing guidance to the courts of the State in relation to sentencing. On that topic I refer to the decision of the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and to the decisions of the Full Court in Police v Cadd (1997) 69 SASR 150 at 165-166 Doyle CJ and in R v Place [2002] SASC 101; (2002) 81 SASR 395, in particular at [21]–[33]. The guidance given by the Full Court in indicating a sentencing standard is no more than that and, in particular cases to which that guidance may be relevant, the appropriate sentence may be a heavier sentence or lighter sentence than that suggested by the Full Court. As the authorities referred to by me indicate, each case must be considered on its merits, in the light of the circumstances of that case and in the light of the requirements of the Criminal Law (Sentencing) Act 1988 (SA). To some extent the significance of the guidance given by the Full Court lies in the weight that it indicates should be given to particular factors in the sentencing process, rather than on the result of the sentencing process. Accordingly, in D I emphasised the need for courts to impose heavier sentences than in the past, having regard to the seriousness of the kind of offending in question, its effects on the community, its prevalence, and public concern about this kind of offending. I also said that courts should distinguish between offences of unlawful sexual intercourse that attracted a maximum punishment of life imprisonment, and offences that attracted a lesser maximum punishment.
I refer to these matters because Mr Mancini argued, in effect, that the offending conduct in the present case was less serious than that referred to by me in D and that accordingly the Judge’s starting point of 14 years’ imprisonment, before reducing the sentence on account of the pleas of guilty, could not be justified. Mr Mancini quite properly emphasised the mitigating factors that were present, and to which the Judge referred, and which the Judge undoubtedly took into account. Mr Mancini submitted that having regard to the circumstances of the offending conduct, its seriousness and the mitigating circumstances, the decision in D demonstrated that the starting point of 14 years was manifestly excessive.
That submission proceeds on an unsound basis. It reflects an assumption that the appellant is to be sentenced by comparing his case with the circumstances referred to by me in D. It assumes that the sentence is to be measured or fixed by reference to the general standard referred to by me in D by way of guidance to sentencing courts. The submission also proceeds on the basis that a judge is wrong to impose a sentence higher than the standard referred to by way of guidance, unless this Court agrees that the case is a more serious one than the offending under consideration in D. Each of those submissions is unsound.
First, it is an error of principle to suggest that the appellant was to be sentenced by comparing the circumstances of the present offending with the offending referred to in D. First, when giving guidance in D I referred to a category of offending, not to any particular circumstances. But, even if in D the kind of offending under consideration had been identified by reference to particular aspects of the offending conduct, Mr Mancini’s submission would be unsound. When the court gives guidance of the kind that it gave in D, it does not follow that in later cases offenders are to be sentenced by comparing the facts of their case with the facts under consideration in D. All that the court can do, and all that the court purported to do in D, and in other cases in which it has given guidance to sentencing judges, is to indicate a general range to be borne in mind when considering the circumstances of a particular case in light of the sentencing principles to be found in the Criminal Law (Sentencing) Act1988 (SA). The decision in D does not require or invite courts to compare the facts of a particular case with the circumstances referred to in D. As I have already said, in any event in D the guidance was given by reference to no more than a category of offending, unlawful sexual intercourse with a child. It was not given by reference to the circumstances of a particular offence.
The second flaw in the submission by Mr Mancini is one based in the circumstances of the present case. Unlike D, it is not one involving multiple offences of unlawful sexual intercourse with a child under 12 years of age, the offences being committed over a period of time. This case involves two kinds of offence not referred to at all in D. The difference between the offences in the present case, and the general category of offending referred to in D, means that what the Court said in D was of limited relevance to the task of the sentencing Judge in the present case. This point is reinforced when one turns to the particular circumstances of the present case. The offending conduct involved two different children. Some of the offending involved conduct by the children in the presence of each other. There was a resumption of offending conduct after the first group of offences was disclosed and after the appellant had promised to the children’s mother that he would stop his offending behaviour. In short, quite apart from the point that one cannot compare a particular case with a category of offending, there is the point that there are significant differences between the circumstances of the present case and the general category of offending considered in D. For those reasons, the decision in D does not provide any significant guidance for the present case, and it does not advance the appellant’s argument to compare the starting point taken by the Judge with the starting point suggested in D.
The third flaw in Mr Mancini’s submission is the assumption that the starting point in the present case could not be more than 12 years (the standard referred to in D) unless it could be shown that the present case involves more serious offending than the offending under consideration in D. Even if the first two errors referred to by me were not present, to take that approach would be an error. This aspect of Mr Mancini’s submission treats the decision in D not as giving general guidance to a sentencing court, but as establishing a benchmark which must be adhered to unless it can be demonstrated that the case under consideration involves offending that is more serious or less serious than the offending referred to in D.
D provides no more than general guidance to sentencing judges. It allows a sentencing judicial officer, as it must, to make the judicial officer’s own assessment of the seriousness of the offending conduct and of the sentence required. Even when the decision in D is applicable, it provides a guide, not a rigid benchmark. Even when D is applicable, to impose a sentence that is heavier than the sentence suggested in D is not of itself an indicator of an error. Error would be demonstrated only by establishing that the sentence under consideration was manifestly excessive, and that it was not open to the sentencing judge to impose the sentence in question having regard to that judge’s assessment of the seriousness of the offending conduct.

For those reasons I reject the submission advanced by Mr Mancini.
Putting the decision in D to one side, I turn to the question of whether the sentence is manifestly excessive. I am not persuaded that it is. These were serious offences. I have already referred to the aggravating circumstances that two children were involved, that some of the offending involved the children in the presence of each other, and that further offences were committed after the first group of offences had been uncovered.
As a way of testing the sentencing Judge’s approach, I have considered the sentence that would be appropriate if the offences were considered separately. Taking that approach, and emphasising that this is no more than a rough check, I came to the conclusion that a sentence of about ten years’ imprisonment was appropriate. I arrived at that conclusion on the basis that the offence of unlawful sexual intercourse would warrant imprisonment for about four years. The two offences of indecent assault that were committed at about the same time would warrant together a single sentence of about two years’ imprisonment, to be served concurrently with the sentence of four years’ imprisonment. The later offence of indecent assault would warrant a sentence of imprisonment for about one year, to be served cumulatively on the sentences just referred to. The 13 offences of inducing a child to expose his or her body warranted a single sentence of imprisonment for about five years. The seriousness of these offences called for substantial punishment. That sentence again would be cumulative upon the earlier sentences. The seriousness of these offences called for substantial punishment. The sentences to which I refer take account of all mitigating circumstances, and make allowance for the guilty pleas.
For those reasons, while I accept that the sentence is a heavy one, I do not agree that it is manifestly excessive.
Other grounds
Mr Mancini renewed the application for leave to appeal on grounds 3, complaining that the Judge failed adequately to allow for the prospects of rehabilitation, and on ground 4, claiming that the Judge failed to make an adequate reduction on account of the appellant’s guilty pleas. I would refuse leave to appeal on each of these grounds. They are not reasonably arguable.
As to the former ground, it suffices to say that the Judge referred to the prospects of rehabilitation, plainly took them into account, and having regard to my conclusion that the sentence is not manifestly excessive, it cannot be said that the Judge failed to make adequate allowance for prospects of rehabilitation. As to the latter ground, Mr Mancini’s submission was that the utilitarian benefits of a plea of guilty to offending of this kind were so great that the Court should, as a matter of uniform practice, make a greater reduction in sentence on account of a plea of guilty than is the case with other types of offending. I do not accept the premise on which that submission is based. While the utilitarian benefit of a plea of guilty might vary from case to case, it cannot be said that in cases of sexual offences involving children it will be greater than is the case with other types of offending. In any event, the submission fails to recognise that in deciding upon the reduction to be made on account of a plea of guilty, a sentencing judge or magistrate will take account of all relevant circumstances. If, in a particular case, it is appropriate to make a substantial reduction because of the particular circumstances, the sentencing judge or magistrate will do so. It cannot be said that the reduction made in the present case is arguably inadequate.
Mr Mancini also renewed the application for leave to appeal on the grounds that the Judge should have reduced the sentence in application of the totality principle.
In my opinion this ground also is not reasonably arguable.
The concept of totality will usually have little part to play when a sentence is imposed in exercise of the powers conferred by s 18A of the Sentencing Act. If the sentencing judge arrives at a sentence, without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate: see R v Major (1998) 70 SASR 488. No further reduction under the totality principle would usually be called for: see R v Bennett [2005] SASC 55 at [15]-[16] Doyle CJ; R v B, RWK [2005] SASC 84; (2005) 91 SASR 200 at [16]–[17] Doyle CJ, at [24]–[25] Vanstone J. That is not to say that the principle of totality never requires consideration in such a case. Ordinarily one would not expect it to require separate consideration.
The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that “the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 McHugh J. The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so “crushing” as to call for some reduction in the aggregate: see King CJ in R v Rossi (1988) 142 LSJS 451, cited by McHugh J in Postiglione at 308. I refer also to the remarks of Kirby J on this point in Postiglione at 340-341. As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
In recent times there has been at tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
In the present case the sentence imposed was a heavy one. However, the non-parole period is relatively moderate. The sentence is not disproportionate to the overall criminality involved. It is an appropriate sentence. It is not a sentence that calls for reduction on the basis that it is crushing. It does not deny the appellant the prospect of release into the community. Indeed, it contemplates the possibility of such release when the appellant will still have a good deal of his life before him.
There is one further point that should be made in relation to this submission. In seeking leave to appeal on this ground, Mr Mancini sought to canvass afresh a number of matters that fall for consideration in arriving at the head sentence, and in arriving at the non-parole period. He referred to the length of the head sentence, the appellant’s depression, his good character apart from the offending in question, the fact that he had not been in prison before and so on. The submission that the totality principle calls for a reduction in the proposed sentence is not a submission that invites reconsideration yet again of all the factors that the sentencing judge or magistrate considered in arriving at the head sentence. The submission invites the sentencing judge or magistrate to stand back, as it were, and to consider the aggregate sentence in relation to the overall seriousness of the criminality. To invite the sentencing judge or magistrate to reconsider, for a second time, each or most of the factors that have already been considered, with a view to making some further reduction in the sentence on account of them, is to depart from the appropriate sentencing approach.
For the reasons given I would refuse leave to appeal on grounds 2, 3 and 4.
Conclusion
I would refuse leave to appeal on grounds 2, 3 and 4. I would dismiss the appeal against sentence.
DEBELLE J: I have had the advantage of reading the reasons of the Chief Justice. I prefer not to express a view on the question of totality which was not argued at length. I nevertheless believe that the principles of totality were not breached by the sentence. I agree with the balance of the reasons of the Chief Justice.
I agree that the appeal should be dismissed and leave to appeal refused on grounds 2, 3 and 4.
BESANKO J: I agree that leave to appeal on grounds 2, 3 and 4 should be refused and that the appeal against sentence should be dismissed. I agree with the reasons for judgment of the Chief Justice.